9:00 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Richard Phillip Dagres Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 8
NONE LISTED -
On December 6, 2017, Debtor filed this chapter 11 case. Debtor had one previous bankruptcy case that was dismissed in the last year. The previous case, 1:16-bk- 10767-MT, was a chapter 13, later converted to chapter 11, which was filed on 3/16/2016 and dismissed on 10/20/2017 due to infeasibility.
Debtor now moves for an order continuing/imposing the automatic stay as to all creditors (the "Motion"). Debtor argues that the present case was filed in good faith notwithstanding the dismissal of the previous case because his income has increased and he will therefore be able to propose a feasible plan. Debtor further states that the secured creditor’s interest can be adequately protected through adequate protection payments.
Secured creditor, PROF-2013-M4 Legal Title Trust, by U.S. Bank National Association ("Creditor") timely responded to the Motion. Creditor states that the case was presumptively filed in bad faith pursuant to § 362(c)(3)(C)(i)(I), (II), and (III).
Creditor incorrectly cites In re Castaneda, 342 B.R. 90, 95 (Bankr. S.D. Cal. 2006) as supporting its position that "debtors bear the ultimate burden of persuasion to demonstrate through clear and convincing evidence to the contrary that the presumption of bad faith does not apply." To the contrary, Castaneda states that "the burden of establishing the presence of presumptive bad faith rests upon the opponent to the motion." Id.; See also In re Montoya, 342 B.R. 312, 316 (Bankr. S.D. Cal. 2006). As the opponent of the motion, Creditor bears the burden of establishing that the presumption of bad faith under § 362(c)(3)(C). "If the presumption does not arise, the debtor need only show that the current case was filed in good faith under
9:30 AM
the less demanding preponderance of the evidence standard." 3 Collier on Bankruptcy 362.06[3][b] (16th ed. 2016).
Creditor’s argument that Debtor is presumed to have filed in bad faith under 362 (c) (3)(C)(i)(I) is incorrect. That subsection creates a presumption of bad faith where "more than 1 previous case… in which the individual was a debtor was pending within the preceding 1-year period." 11 U.S.C. 362 (c)(3)(C)(i)(I); In re Montoya, 342 B.R. 312, 316 (Bankr. S.D. Cal. 2006) ("no presumption of bad faith arises in this case Debtor had only one other pending bankruptcy case within the
preceding year which she voluntarily dismissed even though she was current with her plan payments and her duties and obligations."). Because debtor has only had one case pending within the preceding 1-year period, the presumption of bad faith under § 362(c)(3)(C)(i)(I) does not arise.
Creditor has also failed to establish the presence of presumptive bad faith under
§ 362(c)(3)(C)(i)(II), which creates a presumption of bad faith where:
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--
11 U.S.C.A. § 362. Creditor does not clarify which condition of § 362(c)(3)(C)(i)(II) is satisfied here such that the presumption of bad faith arises. Creditor does not provide the court for any basis for the court to presume bad faith under (aa). There is no allegation that Debtor failed to provide adequate protection in the previous case giving rise to a presumption under (bb). No plan was ever confirmed in the previous case which could give rise to a presumption under (cc).
Creditor also alleges that the presumption of bad faith arises under § 362(c)(3)(C)(i) (III). Under this subsection, a presumption of bad faith arises if:
there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13
9:30 AM
or any other reason to conclude that the later case will be concluded--
Debtor alleges to have projected monthly income in excess of $11,300 compared with $7,200-$7,800 in the previous case. Debtor states that his income has increased since the previous case due to his new employment with "Q Biz Media." The two paystubs attached as Exhibit 1 to Debtor’s reply to the Motion shows a hire date of 11/20/17, and bi-weekly payments of $1,661.54. Debtor also states that he has been employed with GotMortgage for over 10 years. Debtor lists his income from GotMortgage in Schedule I as $5,000 per month, slightly lower than the $6,000 listed in his schedules from the previous case. Lastly, Debtor’s rental income has allegedly increased from the previous bankruptcy from $1,200 per month to $2,600 per month. The $2,600 rental income is listed in Debtor’s Schedule G as a month- to-month lease effective 12/1/2017. Debtor’s expenses have also increased to a total of $8,851.86, including payments of $2,000 per month for child support payments to Debtor’s ex-wife. He provides no additional evidence of these payments and acknowledges that no court order exists for the child support payments.
Creditor argues that the above changes do not satisfy § 362(c)(3)(C)(i)(III). Creditor points to Debtor’s failure to show that a feasible plan is possible despite the new income. Creditor points to Debtor’s unreliable income which led the Court to dismiss the previous case. While Creditor’s arguments certainly affect whether the case was filed in good faith, the Creditor has not carried its burden under § 362(c)(3)(C)(i)(III) of showing that there was not a substantial change in Debtor’s financial affairs. The recent full time employment, supported by paystubs, is persuasive evidence of substantially changed financial affairs.
It does not appear that any of the criteria under § 362(c)(3)(C) exist here to give rise to the presumption of bad faith. As such, Debtor must show that the case was filed in good faith under the ordinary preponderance of the evidence standard under
§ 362(c)(3)(B). 3 Collier on Bankruptcy 362.06[3][b] (16th ed. 2016).
Nevertheless, the Court is concerned about Debtor’s sudden oral child support agreement for $2,000 per month as well as Debtor’s lack of evidence to support his
9:30 AM
assertion that the property subject to Creditor’s claim is generating rent. Debtor should be prepared to discuss these issues at the hearing.
APPEARANCE REQUIRED
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
Movant(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
9:30 AM
Docket 14
NONE LISTED -
What are the "personal training sessions" referenced on p. 6?
This is debtor's 4th bankruptcy case affecting this property. It does not appear there is any equity.
The payments are authorized as there is no opposition. If lenders come in for RFS or a different adequate protection argument, this motion is granted without prejudice to that motion.
APPEARANCE REQUIRED
Debtor(s):
S.B.R.S., Inc. Represented By
Michael Jay Berger
Movant(s):
S.B.R.S., Inc. Represented By
Michael Jay Berger
9:30 AM
fr. 12/13/17
Docket 7
NONE LISTED -
At the hearing the hearing on 12/13/17, the U.S. Trustee ("UST") stipulated that the Debtor was substantially compliant with the UST’s requirements, and continued this hearing to allow Debtor to complete a monthly operating report and further determine compliance.
On December 28, Debtor filed a response to the motion stating that it had achieved compliance with the UST’s requirements, including proof of insurance requirement, and asks that the motion be withdrawn at or before the hearing. What is the status of this motion?
APPEARANCE REQUIRED
Debtor(s):
Tatonka Acquisitions, Inc. Represented By Dana M Douglas
9:30 AM
Docket 0
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Tatonka Acquisitions, Inc. Represented By Dana M Douglas
11:00 AM
Docket 86
NONE LISTED -
At the November 29, 2017 hearing, Wells Fargo indicated that it was still reviewing the loan modification. What is the status of this motion?
APPEARANCE REQUIRED
Debtor(s):
Warren Johnson Represented By Nathan A Berneman
Joint Debtor(s):
Alicia Davis Represented By
Nathan A Berneman
Movant(s):
WELLS FARGO BANK, N.A. Represented By
Dane W Exnowski
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 137
NONE LISTED -
Creditor still has a security interest in teh property, so this should be continued so that the 522(f) motion may be heard. Will the parties be seeking updated appraisals?
APPEARANCE REQUIRED
Debtor(s):
Akop Gasparyan Represented By Vahe Khojayan
Movant(s):
Donna Fuller Represented By
Michael Jay Berger
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
Ervin Cohen & Jessup LLP
11:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
Docket 43
NONE LISTED -
Petition Date: September 9, 2015
Chapter: 13
Service: Proper. No opposition filed.
Property: 10443 Peach Avenue, Mission Hills, CA 91345 Property Value: $ 429,000 (per debtor's schedules) Amount Owed: $ $559,234.66 (per RFS motion)
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $7,572.79 (2 payments of $1,865.87, 2 payments of
$2,019.61)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower as defined in Cal. Civ. Code 2920.5(c)(2)(C).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Armando Sanchez Represented By John Burt
Movant(s):
Deutsche Bank National Trust Represented By
11:00 AM
Trustee(s):
Kristin A Zilberstein Nancy L Lee
Kelly M Raftery
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/29/17
Docket 40
NONE LISTED -
At the hearing on 11/29, the parties indicated that they were working on an APO. Nothing new has been filed. What is the status of this motion?
APPEARANCE REQUIRED
11/29/17 Tentative
Petition Date: 02/24/2016
Chapter:13 (plan confirmed on 06/15/2016) Service: Proper. Opposition filed.
Property: 11654 Gladstone Ave, Sylimar, CA 91342-6406 Property Value: $415,000.00 (per debtor’s schedules) Amount Owed: $327,231.81 (per RFS motion)
Equity Cushion: 13.15% Equity: $54,568.19
Post-Petition Delinquency: $7149.29 (4 payments behind)
Movant requests relief under 11 U.S.C. 362(d)(1) and specific relief in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 13 (if relief from stay is not granted, adequate protection shall be ordered).
Debtor opposes the motion and requests an accounting to prove debtor's post-petition default. And debtor wants an APO over 12-months to repay the
11:00 AM
correct amount in default, if any.
APPEARANCE REQUIRED
Debtor(s):
Jose Antonio Alva Represented By Louis S Brenes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY fr. 7/5/17, 9/6/17; 10/18/17, 11/29/17
Docket 39
NONE LISTED -
At the previous hearing on November 29, 2017, the parties indicated that Debtor was going to make up a $400 shortage on the amended plan. Nothing new has been filed. What is the status of this motion?
11/29/17 Tentative
This hearing was continued from 10/18/17. On 11/14/17, the Court entered an order granting Debtor’s MOMOD. Under the modified plan, two payments were suspended, the new monthly payment of $912 began in Oct. 2017, with the distribution to unsecured creditors remaining at 100%. Nothing further filed with respect to this motion. What is the status of this motion?
APPEARANCE REQUIRED.
10/18/17 Tentative
Hearing continued from 09/06. Debtor has filed motion to modify/suspend plan payment on 10/07. No response from the bank. What is the status of this motion?
APEARANCE REQUIRED.
9/6/17 Tentative
Hearing was continued from July 5, 2017 for Movant to workout accounting issues. Nothing new filed. What is the status of this motion?
7/5/17 Tentative
11:00 AM
Petition Date: 11/25/2016
Chapter: 13 (plan confirmed on 03/09/2017) Service: Proper. No opposition filed
Property: 11060 Vanda Way, Sun Valley, CA 91352 Property Value: $ 660,000 (per Debtor’s schedule) Amount Owed: $ 36,729.27
Equity Cushion: 86.4% Equity: $570,470.73
Post-Petition Delinquency: $4,404.62 ( 3 payments of $578.76; $1,637.34 in conventional loan fees; and $1,031 in attorney’s fees and costs)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activates); and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
James Joseph Hullihan Represented By Charles O Agege
Movant(s):
Deutsche Bank National Trust Represented By Nichole Glowin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 27
NONE LISTED -
Petition Date: August 31, 2017
Chapter: 13
Service: Proper. No opposition filed. Property: 2015 Volkswagen Jetta
Property Value: $ 8,000 (per debtor’s schedules) Amount Owed: $ 18,510.62
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $1,194.42 (3 payments of $398.14)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001 (a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Igor Gary Deck Represented By Joshua L Sternberg
Movant(s):
VW Credit, Inc. Represented By Austin P Nagel
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
PEACE FOR YOU PEACE FOR ME
Docket 21
NONE LISTED -
APPEARANCE REQUIRED
The movant asks for very limited relief which seems proper, especially because the erroneous order was entered in Superior court because the debtor failed to give the Superior Court notice of the bankruptcy action.
Debtor(s):
Robin DiMaggio Represented By Moises S Bardavid
Movant(s):
Svilosa AD Represented By
Matthew A Lesnick
Krasimir Dachev Represented By Matthew A Lesnick
Peace for You Peace for Me Represented By Matthew A Lesnick
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
BMW BANK OF NORTH AMERICA
Docket 20
NONE LISTED -
Petition Date: 10/20/17 Chapter: 7
Service: Proper. No opposition filed. Property: 2013 BMW X1
Property Value: $ 15,475 (per motion; vehicle not listed in debtors' schedules) Amount Owed: $ 16,311.21
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $485 (1 payment)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001 (a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Boris Blum Represented By
Andrew S Mansfield
Joint Debtor(s):
Stella Kogan Represented By
Andrew S Mansfield
11:00 AM
Movant(s):
BMW Bank of North America Represented By Bret D. Allen
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELLON
Docket 15
NONE LISTED -
Petition Date: October 31, 2017
Chapter: 7
Service: Proper. No opposition filed. Movant: The Bank of New York Mellon
Property Address: 991 Gold Bear Dr. Henderson, NV 89052 Type of Property: Residential
Occupancy:
Foreclosure Sale: 9/30/2016 UD case filed: October 19, 2017 UD Judgment: N/A
Disposition: GRANT under 11 U.S.C. 362(d)(1); (d)(2)). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)(3) stay). GRANT relief as to paragraph 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non- bankruptcy law); 9 (relief binding & effective for 180 days against any debtor), and 11 (relief binding & effective for 180 days against the Debtor).
DENY relief requested in paragraph 10.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Paul Ruff Pro Se
Movant(s):
The Bank of New York Mellon fka Represented By
Erin M McCartney
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 12
NONE LISTED -
Petition Date: November 8, 2017
Chapter: 7
Service: Proper. No opposition filed.
Property: 2016 Mercedes Benz SL400 (on lease) Property Value: $ 50,000 (per debtor’s schedules) Amount Owed: $ 68,998.32
Equity Cushion: N/A, leased property Equity: N/A, leased property
Post-Petition Delinquency: $0 per motion
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001 (a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Garen Artuni Represented By
Steven A Alpert
Movant(s):
Daimler Trust Represented By
Sheryl K Ith
11:00 AM
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
U.S. BANK NATIONAL ASSOCIATION
Docket 13
NONE LISTED -
Petition Date: November 21, 2017
Chapter: 13
Service: Proper. No opposition filed.
Property: 6641 Catania Place, Rancho Cucamonga, CA 91701 Property Value: N/A. Not listed in debtor's schedules.
Amount Owed: $ 811,664.28 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: $3,667.47
Movant claims that the bankruptcy was filed in bad faith because the property was transferred to the debtor either just before or just after te filing of the bankruptcy and other cases have been filed in which an interest in the property was asserted. Case was dismissed with a 180 day bar following a status conference.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)(4)); and 10 (relief binding & effective for 180 days against any debtor).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS. MOVANT IS ORDERED TO SERVE A COPY OF THE ENTERED ORDER ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
11:00 AM
Debtor(s):
Debra Ann Tiesi Represented By Corey Phuse
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 83
NONE LISTED -
Petition Date: April 13, 2016
Chapter: 7
Service: Proper. No opposition filed.
Property: 5831 Fullerton Avenue, Buena Park, CA 90621 Property Value: $ N/A (per debtor’s schedules)
Amount Owed: $ N/A (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: N/A
This case, filed April 13, 2016, was dismissed on August 1, 2016 for debtor’s failure to appear at the meeting of creditors. The case was reopened on December 5, 2017 in order to allow Movant to bring this motion to retroactively annul the automatic stay.
Section 362(d) grants a bankruptcy court the express power to retroactively annul the automatic stay and gives the court "wide latitude" in determining when annulment is appropriate. In re Fjeldsted, 293 B.R. 12, 21 (9th Cir. B.A.P. 2003). In determining if cause exists to annul the stay, the appropriate test is to balance the equities. Two factors are normally considered in granting retroactive relief: 1) whether the creditor was aware of the bankruptcy petition and 2) whether the debtor engaged in unreasonable or inequitable conduct, or prejudice would result to creditor. In re Nat’l Environmental Waste Corp., 129 F.3d 1052, 1055 (9th Cir.
1997). Additional factors may include number of filings and whether circumstances indicate an intent to delay an hinder creditors. In re Fjeldsted, 293 B.R. at 25.
Movant avers that the Debtor's bankruptcy was part of a scheme to delay, hinder, or defraud creditors due to multiple bankruptcies affecting the property and a transfer of
11:00 AM
all or part ownership in the property without the consent of the Movant. In total, Movant has filed five Notices of Trustee’s Sale from 2010 to 2016 but was prevented from completing the sale due to thirteen bankruptcy filings by twelve different persons during those years. The most recent Notice of Trustee’s Sale was filed during the pendency of the bankruptcy, on May 17, 2016. Movant declares it was unaware of the bankruptcy case at the time, and the property was successfully sold to an outside bidder on May 24, 2017.
No opposition was filed. Having considered the circumstances surrounding the property, the prior bankruptcy cases, and the circumstances of the sale, the court finds that the equities require annulment of the stay retroactive to the petition date.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 5 (stay annulled retroactive to petition date); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under 362(d)(4)).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS. MOVANT IS ORDERED TO SERVE A COPY OF THE ENTERED ORDER ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
Debtor(s):
Global Tech-Research & Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By Darlene C Vigil Brett P Ryan
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
HSBC BANK USA, TRUSTEE
FOR OPTEUM MORTGAGE ACCEPTANCE
fr. 11/16/16, 11/30/16; 1/25/17; 3/29/17, 8/2/17; 8/23/17; 10/18/17
Docket 31
NONE LISTED -
Hearing was continued in order to allow Debtor time to pursue a reverse mortgage which would potentially resolve this motion as well as the HSBC adversary, Case No. 16-01155 (the "Adversary"). On November 25, 2017, a status report was filed in the Adversary indicating that the parties had reached a tentative settlement requiring performance in early 2018. What is the status of this Motion?
APPEARANCE REQUIRED
10/18/17 Tentative Petition Date: 4/15/16 Ch: 13
Service: Proper. Opposition filed.
Property: 12530 Herrick Ave., Sylmar (Los Angeles), CA 91342 Property Value: $374,000 (per debtor’s schedules)
Amount Owed: $319,516.55 Equity Cushion: 6.5% Equity: $54,483.45.
Post-Petition Delinquency: $8,865.60 (5 payments of $1,773.12)
Movant requests relief under 11 U.S.C. 362(d)(1), with the relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
11:00 AM
At the August 23 hearing, parties continued this matter to engage in settlement negotiations with regard to the adversary action and this RFS motion. What is the status of those discussions?
APPEARANCE REQUIRED
Debtor(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:16-01155 Landeros v. HSBC BANK USA, NATIONAL ASSOCIATION et al
fr. 8/23/17; 10/18/17
Docket 32
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Defendant(s):
HSBC BANK USA, NATIONAL Represented By
Lovee D Sarenas
Sylvia Villapando Pro Se
Frank Villapando Pro Se
Movant(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Plaintiff(s):
Hope H. Landeros Represented By
R Grace Rodriguez
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:16-01155 Landeros v. HSBC BANK USA, NATIONAL ASSOCIATION et al
fr. 1/25/17; 3/29/17, 8/2/17; 8/23/17, 11/29/17
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Defendant(s):
HSBC BANK USA, NATIONAL Pro Se
Sylvia Villapando Pro Se
Frank Villapando Pro Se
Plaintiff(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01090 Solimani v. Aboudaher
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Rima Aboudaher Represented By Navid Kohan
Defendant(s):
Rima Aboudaher Pro Se
Plaintiff(s):
Arman Solimani Represented By Jan T Aune
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 27
NONE LISTED -
Juliana Njeim ("Debtor") filed this chapter 7 bankruptcy case on August 22, 2017. The bankruptcy filing stayed a state court action against Debtor by Maryam Seyedan ("Creditor"). Creditor is listed in Debtor’s schedule F as having a disputed claim of
$0.00.
Creditor has been attempting to determine the status of Debtor’s ownership in three corporations which Debtor’s initial Statement of Financial Affairs listed as closed as of January 2016. Creditor’s efforts include filing a Motion for 2004 Examination, supported by bank statements that seem to indicate account activity for one of the corporations extended at least two months beyond the alleged January 2016 closing date. The Court granted Creditor’s Motion for 2004 Examination on November 14, 2017. On November 16, Debtor filed an amended Statement of Financial Affairs stating that the businesses existed until 2016, and that dates of operation are estimates only.
On November 21, 2017, Creditor brought this motion under Fed. R. Bankr. P. 4004 (b)(1) for an order extending by 60 days the deadline to file an complaint objecting to Debtor’s discharge under 11 U.S.C. § 727. The deadline for objecting to discharge is currently November 24, 2017. Because the motion was brought before the expiration of the time for objection to discharge, the court may extend the deadline "for cause" upon notice and a hearing. Fed. R. Bankr. P. 4004(b)(1)-(2).
Creditor cites its diligence and continuing efforts to investigate the facts surrounding purported false statements in Debtor’s schedules. Creditor also details hiring a private investigator on November 13, 2017, who observed and took photographs of a Maserati automobile in Debtor’s driveway. Creditor argues that this automobile is likely the same leased 2015 Maserati Ghibli listed in Debtor’s Schedule G and
11:00 AM
Amended Statement of Financial Affairs as being subleased on July 20, 2016 to Azza Abbou, an unrelated party. Creditor cites case law supporting an extension under Rule 4004(b)(1) where a creditor has acted diligently by either attending the meeting of creditors or utilizing procedures under Rule 2004.
In her response, Debtor states that her husband, a non-debtor in this bankruptcy, made all business decisions for one of the corporations at issue. Debtor therefore seems to argue that she had no knowledge of the exact closing date of the business. Debtor also cites previous failed attempts by creditors during her husband’s bankruptcy in 2016 to gather information on the corporations and bring a discharge action against him. Simply put, those facts are not relevant here. This court is not required to determine the merits of a § 727 action in deciding this motion.
Creditor’s reply attaches as Exhibit 6 bank statements obtained through the Rule 2004 Subpoena since the Motion to Extend was first filed. Creditor argues that those bank statements indicate more income than Debtor reports in her schedules.
Additional records pursuant to the subpoena were erroneously omitted by Bank of America, and Creditor had not obtained them as of December 27.
Due to Creditor’s diligence and the fact that records pursuant to the Rule 2004 subpoenas were not fully produced a full month after the discharge deadline, and for good cause appearing, the motion is GRANTED.
APPEARANCE REQUIRED
Debtor(s):
Juliana Njeim Represented By
Richard Mark Garber
Movant(s):
Maryam Seyedan Represented By James R Selth Elaine Nguyen
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
Docket 12
NONE LISTED -
RFS GRANTED as to Florida litigation as that is not opposed.
The Virginia litigation has been underway for longer, the court there is familiar with the issues, and this is essentially a two-party dispute that the Virginia court should complete. The debtor has not yet been shown to be insolvent, and tying its hands before an order for relief is entered unnecessarily shuts down its business operations and ability to pay its debts. Thus, RFS will be GRANTED as to the VA action also.
APPEARANCE REQUIRED
Debtor(s):
Mainstream Advertising, a Represented By Michael Jay Berger
Movant(s):
Mainstream Advertising, a Represented By Michael Jay Berger
9:00 AM
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Toni Ann Mendez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Mohammad Reza Mayeh Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
fr. 12/6/17
Docket 151
NONE LISTED -
Debtor scheduled an unsecured claim of Bank of America ("Creditor") in the amount of $51,098. Creditor did not file a timely claim. Debtor attaches a letter his attorney sent on October 22, 2017 requesting that Creditor provide any and all documentation of the claim, including any documentation of the alleged debt Creditor purchased from credit card issuer U.S. Bank. Debtor states that he received no response to the letter, and no response to this objection to claim.
Creditor is an FDIC insured institution that must be served per the requirements of FRBP 7004(h). Service is proper. No opposition was filed. Objection is SUSTAINED. Debtor will lodge order.
NO APPEARANCE REQUIRED.
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
Movant(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
Docket 170
NONE LISTED -
Debtor scheduled an unsecured claim of Wells Fargo ("Creditor") in the amount of
$51,098. Creditor did not file a timely claim. Debtor attaches a letter his attorney sent on October 22, 2017 requesting that Creditor provide any and all documentation of the claim, including any documentation of the alleged debt Creditor purchased from credit card issuer U.S. Bank. Debtor states that he received no response to the letter, and no response to this objection to claim.
Creditor is an FDIC insured institution that must be served per the requirements of FRBP 7004(h). Service is proper. No opposition was filed. Objection is SUSTAINED. Debtor will lodge order.
NO APPEARANCE REQUIRED
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
Movant(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
fr. 12/6/17
Docket 153
NONE LISTED -
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
Movant(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
fr. 12/18/14, 3/26/15; 6/4/15, 8/27/15, 10/29/15 2/4/16, 4/7/16, 5/23/16, 1/19/17, 2/9/17, 8/16/17
Docket 1
NONE LISTED -
Having considered the status report, for good cause appearing, the status conference is continued to June 6, 2018 at 9:30 a.m.
Debtor to give notice of continued status conference. APPEARANCE WAIVED on January 10, 2018.
Debtor(s):
Tony Servera Company, Inc. Represented By Steven R Fox
Movant(s):
Tony Servera Company, Inc. Represented By Steven R Fox
9:30 AM
Docket 0
NONE LISTED -
Nothing other than Monthly Operating Reports have been filed since the hearing was continued. In the December Monthly Operating Report, Debtor stated that the progress made toward filing a plan was: "reviewing plan response, exploring possible amendment to reorganization plan." What is the status of this Chapter 11 plan?
APPEARANCE REQUIRED
Debtor(s):
Samuil Preys Represented By
Lewis R Landau
9:30 AM
fr. 4/7/16, 4/27/16; 5/11/16, 6/1/16, 7/28/16, 8/4/16, 9/8/16; 2/23/17, 3/1/17; 4/12/17, 9/7/17,
11/8/17
Docket 1
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Samuil Preys Represented By
Lewis R Landau
9:30 AM
Docket 1
NONE LISTED -
Having considered the status report, for good cause appearing, the status conference is continued to March 28, 2018 at 9:30 a.m.
Debtor to give notice of continued status conference. APPEARANCE WAIVED on January 10, 2018.
Debtor(s):
Martha Alicia Ybanez Represented By Matthew D Resnik Matthew D Resnik
9:30 AM
Docket 85
NONE LISTED -
NONE LISTED -
Debtor(s):
FAMOSO PORTERVILLE, LLC Represented By
Jeffrey S Shinbrot
9:30 AM
Docket 54
NONE LISTED -
NONE LISTED -
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu
Joint Debtor(s):
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu
9:30 AM
fr. 7/26/17, 9/6/17, 9/27/17; 11/15/17
Docket 39
NONE LISTED -
NONE LISTED -
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Joint Debtor(s):
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Movant(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
9:30 AM
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Joint Debtor(s):
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
9:30 AM
Docket 0
NONE LISTED -
Debtor should submit a claims bar date order.
APPEARANCE REQUIRED
Debtor(s):
S.B.R.S., Inc. Represented By
Michael Jay Berger
9:30 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Benzeen Inc. Represented By
Robert Reganyan
9:30 AM
Docket 12
NONE LISTED -
No opposition was filed. The motion is GRANTED. NO APPEARANCE REQUIRED
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
Movant(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
11:00 AM
a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 8
NONE LISTED -
On January 3, 2018, Debtor filed this chapter 13 case. Debtor had 2 previous bankruptcy cases that were dismissed within the previous year. The First Filing, 17- 10271, was a chapter 13 that was filed on 2/1/17 and dismissed on 2/21/17 for failure to file schedules. The Second Filing, 17-10664, was a chapter 13 that was filed on 3/16/17 and dismissed on 7/27/17 at the confirmation hearing. In the Motion, Debtor states that he was unable to continue running his business because his sister (the administrator of his business) was diagnosed with cancer and he could not continue with the case because "the debtor has decided to dismiss the case. The debtor is able to do some things differently now." No mention of these factual circumstances was made at the confirmation hearing.
Debtor now moves for an order imposing the automatic stay as to all creditors. Debtor argues that the present case was filed in good faith notwithstanding the dismissal of the previous cases because he now has a new business administrator to replace his sister. Debtor claims that the presumption of bad faith is overcome as to all creditors per 11 U.S.C. 362(c)(3)(C)(i) because there has been a substantial change in his/her financial affairs. Debtor states that since the First and Second Filings were dismissed, he has gotten a new administrator for his business and his business affairs are back in order. Debtor claims that the property is necessary for a successful reorganization because the Property has significant equity.
Service NOT proper per order shortening time - Debtor did not file the declaration of serivce on or before 1/8/18, as ordered. No opposition filed.
MOTION GRANTED. RULING MAY BE MODIFIED AT HEARING. APPEARANCE REQUIRED DUE TO SHORTENED TIME
11:00 AM
Debtor(s):
James C Alexander Represented By
R Grace Rodriguez
Movant(s):
James C Alexander Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 41
NONE LISTED -
Debtor(s):
Joe Momdjian Represented By Roland H Kedikian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 59
NONE LISTED -
Debtor(s):
Maria Socorro Quimson Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
WILMINGTON SAVINGS FUND SOCIETY
Docket 32
NONE LISTED -
Petition Date: 10/14/16
Chapter 13 plan confirmed: 3/9/17 Service: Proper. No opposition filed.
Property: 17625 Crabapple Way, Carson, CA 90746 Property Value: not listed on debtor’s schedules Amount Owed: $727,010
Equity Cushion: unk.
Equity: unk.
Post-Petition Delinquency: $41,694 (approx. 14 payments of between $2,588 and $2622.07)
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfers of, and multiple bankruptcies affecting, the subject property. Subject property not listed on Debtor's schedules, and not treated under the confirmed plan.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (waiver of the 4001(a)(3) stay); and 8 (relief under 362(d)(4)).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
MOVANT IS ORDERED TO SERVE A COPY OF THE ENTERED ORDER
11:00 AM
ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
Debtor(s):
Yinka Brandy Nunoo Represented By Devin Sawdayi
Movant(s):
WILMINGTON SAVINGS FUND Represented By
Nichole Glowin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
FORUM ENTERTAINMENT GROUP INC
Docket 29
NONE LISTED -
Petition Date: 9/12/17 Chapter: 7
Service: Proper. No opposition filed. Movant: Forum Ent. Group
Relief Sought to: Pursue Pending Litigation
Pursue Insurance
Commence Litigation Other
Litigation Information
Case Name:
Court/Agency:
Date Filed:
Judgment Entered:
Trial Start Date:
Action Description:
Grounds
Bad Faith Claim is Insured Claim Against 3rd Parties
Nondischargeable
Mandatory Abstention Non-BK Claims Best Resolved in Non-BK Forum
Other:
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in
11:00 AM
paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate); and 5 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Robin DiMaggio Represented By Moises S Bardavid
Movant(s):
Forum Entertainment Group, Inc. Represented By
Sandeep J Shah
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 16
NONE LISTED -
Petition Date: 9/22/17 Chapter: 7
Service: Proper. No opposition filed.
Property: 17552 Gledhill St., Northridge, CA 91325 Property Value: $799,000 (per debtor’s schedules) Amount Owed: $1,394,637
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $157,539 (approx. 58 payments of $2,719)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Joseph Peaks Durant Represented By Dominic Afzali
11:00 AM
Movant(s):
U.S. Bank NA, Successor Trustee Represented By
Nichole Glowin
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
BMW BANK OF NORTH AMERICA
Docket 19
NONE LISTED -
Petition Date: 10/17/17 Chapter: 7
Service: Proper. No opposition filed. Property: 2013 BMW 6 Series Convertible
Property Value: $46,850 (per Movant's evidence, NADA Guide) Amount Owed: $54,175
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $5,246 (approx. 6 payments of $874.49)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Adriano Milani Represented By Alon Darvish
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
11:00 AM
U.S. BANK NATIONAL ASSOCIATION fr. 12/13/17
Docket 16
NONE LISTED -
This hearing was continued from 12/13/17, so that the parties could discuss an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED.
12/13/17 Tentative Petition Date: 11/02/2017 Chapter: 13
Service: Proper. Opposition filed.
Property: 12600 San Fernando Road #126, Los Angeles, CA 91342 Property Value: $457,000.00 (per debtor’s schedules)
Amount Owed: $445,451.97 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: N/A
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfers of, and multiple bankruptcies affecting the subject property.
Movant requests relief under 11 U.S.C. 362(d)(1) and specific relief in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (Co-debtor stay annulled); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under 362(d)(4)).
11:00 AM
Debtor opposes the motion and argues that he is current on post-petition mortgage payments and the movant is adequately protected. Debtor is going to keep making mortgage payments and to work on an APO with movant.
APPEARANCE REQUIRED
Debtor(s):
Arturo Romero Represented By Kevin Tang
Movant(s):
U.S. Bank National Association, as Represented By
Kelsey X Luu
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 15
- NONE LISTED -
Petition Date: 11/6/17 Ch: 7
Service: Proper. No opposition filed. Movant: Creditor Clear Inv., LLC
Property Address: 15227 Otsego Dr., Sherman Oaks, CA 91403 Type of Property: Residential
Occupancy: holdover after lease in default Foreclosure Sale: n/a
UD case filed: 7/3/17
UD Judgment: n/a (UD trial continued to 12/4/17)
Movant alleges cause for extraordinary relief due to multiple bankruptcies affecting the subject property.
Disposition: GRANT under 11 U.S.C. 362(d)(2). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)
stay). GRANT relief as to paragraph 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law); 9 (relief binding and effective against any debtor for 180 days); and 10 (relief binding and effective for two years in any case purporting to affect the subject property).
DENY relief requested in paragraph 4 (annulment of stay), as Movant has not alleged grounds for such relief; DENY relief requested in paragraph 8 (in rem relief under 362(d)(4)), as Movant is not a secured creditor and is thus not
11:00 AM
eligible to request such relief
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Christopher Eric Traendly Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 25
- NONE LISTED -
- NONE LISTED -
Debtor(s):
Ruben Lvovich Gukasov Represented By Alfred O Anyia
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
STEARNS BANK NATIONAL ASSOCIATION
Docket 20
- NONE LISTED -
Petition Date: 11/27/17 Chapter: 7
Service: Proper. No opposition filed.
Property: Two (2) 2006 Refrigeration Utility trailers with carrier
Property Value: $7,850 per trailer (per Movant's evidence, Truckpaper.com) Amount Owed: $52,526
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $51,111 (judgment obtained for unpaid balance)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Ruben Lvovich Gukasov Represented By Alfred O Anyia
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
11:00 AM
Docket 8
- NONE LISTED -
Petition Date: 12/6/17 Chapter: 7
Service: Proper. No opposition filed. Property: 2011 Chevrolet Camaro
Property Value: $12,550 (per Movant's evidence, NADA Guide) Amount Owed: $15,986
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $1,641 (approx. 4 payments of $340.93)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Alexander Panov Represented By
James Geoffrey Beirne
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
11:00 AM
Adv#: 1:13-01120 Miller v. Kahrilas
of First Amended Complaint for: (1) Breach of contract; (2) Fraud; (3) Determination of non- dischargeability under 11 USC 523(a)(2); and
Determination of Non-dischargeability under 11 USC 523(a)(3)
fr. 8/7/13, 12/18/13, 4/30/14, 6/11/14; 7/30/14, 10/1/14, 12/3/14, 1/21/15, 3/4/15, 6/3/15, 7/22/15, 9/2/15, 10/21/15,
12/16/15; 2/24/16, 3/30/16, 5/25/16, 7/27/16; 9/28/16, 11/30/16
2/1/17; 3/29/17; 12/6/17
Docket 1
H.D.
Attorney(s):
Nicholas Barton Represented By Todd J Cleary
Todd J Cleary Represented By
Todd J Cleary
Debtor(s):
Nicholas Stephen Kahrilas Represented By John D Monte
Defendant(s):
Nicholas Stephen Kahrilas Represented By Todd J Cleary
11:00 AM
Joint Debtor(s):
Laura Rae Kahrilas Represented By John D Monte
Plaintiff(s):
Robert L. Miller Represented By Ian Landsberg
Trustee(s):
Nancy J Zamora (TR) Pro Se
Nancy J Zamora (TR) Represented By Kyra E Andrassy
US Trustee(s):
United States Trustee (SV) Pro Se
11:00 AM
Adv#: 1:15-01005 EHRENBERG v. Youseffia
11 USC 523(a)(2)(A) and 11 USC 523 (a)(6)
fr. 4/1/15, 6/3/15; 7/1/15; 1/27/16, 3/30/16, 4/26/16
Docket 1
NONE LISTED -
Having reviewed Defendant's unilateral status report, filed Jan. 7, 2018, and finding no objection filed, this status conference is continued to March 7, 2018, at 11:00 a.m. Defendant to give notice of continued status conference.
Parties are to file a status report informing the Court of the status of performance under the Settlement on or before February 28, 2018.
APPEARANCES WAIVED 1/10/18.
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
Defendant(s):
Joseph Youseffia Pro Se
Plaintiff(s):
HOWARD M EHRENBERG Represented By Sanaz S Bereliani
11:00 AM
US Trustee(s):
United States Trustee (SV) Pro Se
11:00 AM
Adv#: 1:15-01215 van der Velde et al v. Mensch et al
fr. 11/18/15, 12/2/15; 2/24/16, 3/2/16; 3/9/16, 5/11/16, 6/8/16, 12/7/16; 2/8/17, 4/26/17, 7/12/17; 10/18/17
Docket 19
Holding Date
In light of the terms contained within the Stipulation Regarding Settlement and Entry of Judgment (doc. 62), the Court finds cause to continue this adversary status conference to March 21, 2018 at 11:00 a.m.
Parties are to file a joint status report informing the Court of the status of performance under the Stipulation on or before March 14, 2018.
APPEARANCES WAIVED ON 1/10/18.
Debtor(s):
Ludo Gust Mensch Represented By Michael Jay Berger
Defendant(s):
Ludo Gust Mensch Represented By Michael Jay Berger
Lorraine Patricia Mensch Represented By Michael Jay Berger
11:00 AM
Mensch Company Inc. Represented By Michael Jay Berger
Joint Debtor(s):
Lorraine Patricia Mensch Represented By Michael Jay Berger
Plaintiff(s):
Nadine van der Velde Represented By Kenneth S Grossbart Kurt Ramlo
Sharice B. Marootian
Scott Kraft Represented By
Kenneth S Grossbart Kurt Ramlo
Sharice B. Marootian
US Trustee(s):
United States Trustee (SV) Pro Se
11:00 AM
#7 by Nadine Van Der Velde and Scott Kraft
fr. 12/2/15, 12/3/15, 2/24/16, 3/2/16; 3/9/16,
5/5/16, 6/8/16, 12/7/16; 2/8/17, 4/26/17, 7/12/17; 10/18/17; 12/6/17
Docket 38
settled, H.D.
In light of the terms contained within the Stipulation Regarding Settlement and Entry of Judgment (doc. 62), the Court finds cause to continue the hearing on this Objection to March 21, 2018 at 11:00 a.m.
APPEARANCES WAIVED ON 1/10/18.
Debtor(s):
Ludo Gust Mensch Represented By Michael Jay Berger
Joint Debtor(s):
Lorraine Patricia Mensch Represented By Michael Jay Berger
11:00 AM
Adv#: 1:17-01028 Rosales et al v. New Penn Financial LLC dba Shellpoint Mortgage Ser
Violation of Californina Homeowner Bill of Rights
Wrongful Foreclosure;
Negligence;
Judgment to Cancel TDUS; 5) Quiet Title; 6) Declaratory Relief
7) Unlawful Business Practices fr. 6/14/17, 8/2/17
Docket 16
NONE LISTED -
NONE LISTED -
Debtor(s):
Rodolfo Rosales Represented By Kevin T Simon
Defendant(s):
New Penn Financial LLC dba Pro Se
MTC FINANCIAL, INC., DBA Pro Se
Duke Partners II, LLC Pro Se
The Bank of New York Mellon Pro Se
Joint Debtor(s):
Rosa Maria Hinojosa Represented By Kevin T Simon
11:00 AM
Plaintiff(s):
Rodolfo Rosales Represented By Matthew D Resnik Matthew D Resnik
Rosa Maria Hinojosa Represented By Matthew D Resnik Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01083 Vargas et al v. Gitnick et al
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Neil D Gitnick Represented By James R Selth
Defendant(s):
Neil D Gitnick Represented By James R Selth Elaine Nguyen
Anita Marton Represented By
James R Selth
Joint Debtor(s):
Anita Marton Represented By
James R Selth
Plaintiff(s):
Patricia Vargas Represented By Jay W Smith
Ana Contreras Represented By Jay W Smith
11:00 AM
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 58
NONE LISTED -
Robert Carey ("Debtor") filed this voluntary chapter 7 bankruptcy on January 24, 2013. A discharge was entered on May 13, 2013 and the case was closed on October 3, 2014. Debtor brought a motion to reopen this case on September 27, 2017 (Doc. No. 52) for purposes of filing a lien avoidance motion against Omni Bank ("Creditor"). The motion to reopen was granted on October 25, 2017. (Doc. No. 56) Debtor then filed the instant Motion to Avoid Lien under 11 U.S.C. § 533(f) (the "Motion"). (Doc No. 58)
Debtor attached as Exhibit 1 to the Motion an Abstract of Judgment—Civil and Small Claims by Omni Bank against Debtor on December 7, 2012. The abstract of judgment was recorded in Los Angeles County on December 26, 2012.
Under California law, recordation of an abstract of money judgment with a county recorder's office creates a lien against any property in the county in which the abstract of judgment is recorded. C.C.P. 397.340(a). The lien also attaches to any property in the county in which the abstract of judgment was recorded acquired after the judgment lien was created. C.C.P. 397.340(b). Such a lien continues for 10 years from the date of the entry of judgment.
Debtor at no point owned property to which the abstract of judgment could attach, but now appears to be seeking financing to purchase a home. This case raises the issue of whether an abstract of judgment recorded before debtor filed bankruptcy, which never attached to any property, could become a lien on any property acquired after the debt is discharged in bankruptcy. The issue has been considered previously by a bankruptcy court in the Eastern District of California. In re Thomas, 102 B.R. 199 (Bankr. E.D. Cal. 1989). The facts in Thomas are very similar to the facts here. In Thomas, the creditor obtained a judgment against the debtors and recorded an abstract of judgment thereon in Sutter County. Id. at 200. The debtors subsequently filed chapter 7 bankruptcy and received a
11:00 AM
discharge. Id. The debtors never owned any property in Sutter County prior to the bankruptcy, and the judgment was discharged. Id. Post-bankruptcy, debtors purchased a home in Sutter County. Id. The Thomas court was faced with the question of whether creditor had a valid lien against the proceeds of a sale of the property. The creditor argued that it had a valid lien on debtors' after acquired property which had neither been discharged or avoided under the bankruptcy code. Id. The creditor argued further that, while it was enjoined by the discharge injunction from enforcing the lien, it was not required to release the debtors from the lien absent an order of the bankruptcy court. Id. at 200-01. The Thomas court rejected creditor's argument, stating that the argument was "based upon the false premise that a 'lien' actually exists." Id. at 201.
The California courts have long recognized the maxim that a lien cannot survive (much less be created in the first place) absent the existence of an enforceable underlying obligation. (Gostin v. State Farm Insurance Co., 224 Cal.App.2d 319, 325, 36 Cal.Rptr. 596 (citing East Bay Municipal Utility
District v. Garrision, 191 Cal. 680, 692, 218 P. 43; Pacific Finance
Corporation v. Hendley, 119 Cal.App. 697, 704, 7 P.2d 391)). Furthermore, as was noted above, a lien cannot exist in the absence of an underlying attachable "res".
Id. at 201. Based upon its analysis, the court ordered that the lien was void and expunged of the record. Id. at 202. The Thomas court noted that this result is consistent with the definition of "lien" under the California Code of Civil Procedure: "[a] lien is a charge imposed upon specific property, by which it is made security for the performance of an act." C.C.P. § 1180 (emphasis added).
The conclusion reached by the Thomas court has been cited favorably in similar situations:
The parties do not dispute that IFS owned no real property in Los Angeles County on the date of recordation. IFS still owns no real property.
Moreover, under California law a lien cannot exist absent attachable property. Here, IFS did not own any real property in Los Angeles County
on the date of recordation or at any time from that date through the petition date. IFS still owns no real property. Thus, DC Media's recordation of the abstract of judgment did not create or perfect a lien, or otherwise affect IFS' property or an interest in IFS' real property—because IFS owned
11:00 AM
no real property.
In re Imagine Fulfillment Servs., LLC, 489 B.R. 136, 152–53 (Bankr. C.D. Cal. 2013). See In re Baker, 217 B.R. 609, 613 (Bankr. N.D. Cal. 1998) ("This Court views the Thomas court's logic as unassailable. For a lien to exist, both the property and the obligation must exist at the
same time. A lien may not 'survive' bankruptcy unless it first exists.")
A debtor may avoid a lien under 522(f)(1)(A) if: "(1) there was a fixing of a lien on an interest of the debtor in property; (2) such lien impairs an exemption to which the debtor would have been entitled; and (3) such lien is a judicial lien." In re Pederson, 230 B.R. 158, 160 (B.A.P. 9th Cir. 1999).
Because there is no valid lien to be avoided, Debtor is not entitled to the protections of 522(f). The Court recognizes that Debtor is trying to ensure that no encumbrance results from a pre-petition recorded abstract of judgment; such a result would have the absurd consequence of creating an unenforceable lien on property acquired post- petition, but only in the specific counties which the creditor recorded the abstract of judgment. Addressing a similar dilemma, an Idaho bankruptcy court offered the following:
Thus, while the Code provides no mechanism for the Court to preemptively order that no lien for a prepetition debt ever attach to Debtors' after-acquired property, such an order appears unnecessary. In this case, there are no judgment liens because there is no real property; Debtors' personal liability has been discharged, and future efforts to collect on the judgments are prohibited by the discharge injunction. Should a creditor make such collection efforts against after-acquired property, that creditor could be subject to sanctions. Zilog, Inc. v. Corning (In re Zilog, Inc.), 450 F.3d 996, 1007 (9th Cir.2006).
In re Davis, No. 07-00622, 2007 WL 2710403, at *3 (Bankr. D. Idaho Sept. 13, 2007).
For the foregoing reasons, the Motion is DENIED.
Debtor(s):
Robert Carey Represented By
Steven M Gluck
11:00 AM
Movant(s):
Robert Carey Represented By
Steven M Gluck Steven M Gluck
Trustee(s):
David Seror (TR) Represented By David Seror (TR)
11:00 AM
Docket 23
NONE LISTED -
Service proper. No opposition filed.
Motion GRANTED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Sharay Lo Sann Moreland Pro Se
Movant(s):
Nancy J Zamora (TR) Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
Adv#: 1:16-01150 Tessie Cleveland Community Services Corp. v. Loghmani et al
Docket 33
NONE LISTED -
NONE LISTED -
Debtor(s):
Mahshid Loghmani Represented By Allan D Sarver
Defendant(s):
Mohsen Loghmani Pro Se
Mashid Loghmani Pro Se
Joint Debtor(s):
Mohsen Loghmani Represented By Allan D Sarver
Movant(s):
Tessie Cleveland Community Represented By Bruce M Cohen
Michael E Thompson
Plaintiff(s):
Tessie Cleveland Community Represented By Bruce M Cohen
1:00 PM
Trustee(s):
Michael E Thompson
David Keith Gottlieb (TR) Pro Se
1:00 PM
Adv#: 1:16-01150 Tessie Cleveland Community Services Corp. v. Loghmani et al
fr. 3/22/17; 8/23/17; 10/18/17
Docket 30
NONE LISTED -
Debtor(s):
Mahshid Loghmani Represented By Allan D Sarver
Defendant(s):
Mohsen Loghmani Pro Se
Mashid Loghmani Pro Se
Joint Debtor(s):
Mohsen Loghmani Represented By Allan D Sarver
Plaintiff(s):
Tessie Cleveland Community Represented By Bruce M Cohen
Michael E Thompson
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
1:00 PM
Adv#: 1:17-01037 State Compensation Insurance Fund v. Maranon
fr. 12/6/17, 12/13/17
Docket 14
NONE LISTED -
State Compensation Insurance Fund ("Plaintiff") is a California state agency authorized to provide workers’ compensation insurance to California employers.
Plaintiff issued a worker’s compensation insurance policy, Policy No. 9095289-14 (the "Policy"), to J & J General Contractors ("J&J"), a business solely owned by Jose Matias Maranon ("Debtor"), for April 8, 2014 to April 8, 2015 (the "Policy Contract").
Plaintiff alleges in the FAC that J&J was to pay a premium for the Policy, and perform all other duties and obligations set forth in the Policy (i.e. submitting complete and accurate employee classifications, payroll reports, and other business records for audit at the end of each policy year). Between June 3, 2015 and June 11, 2015, Plaintiff conducted an audit of Debtor’s payroll. Plaintiff alleges that it determined that Debtor, doing business as J&J, had underreported his payroll by approximately $223,185, and had failed to report payroll for unlicensed sub- contractors he had hired. As a result, Debtor owed Plaintiff $43,343.09 in past premiums. See First Amended Complaint (the "FAC"), 10:1-12:10. Furthermore, when Debtor was applying for the Policy, Plaintiff alleges that Debtor falsely represented that he did not use subcontractors, to procure a lower policy premium.
See FAC, 4:4-11; Ex. B.
Plaintiff requests that Debtor’s debt of $43,343.09 be non-dischargeable due to his misrepresentations of payroll reports and withholdings of employee cards and other documents. Plaintiff further requests that the Court award it reasonable attorney’s fees to the fullest extent allowed by the law.
1:00 PM
In response, Debtor filed a Motion to Dismiss the FAC under Fed R.Civ P. 12 (b)(6) (the "MTD"). Debtor asserts that Plaintiff failed to assert sufficient facts in support of its claim that Debtor acted with the intent to defraud when he entered into the Policy – that is, that Debtor intentionally misrepresented his estimated business payroll.
Plaintiff opposes the Motion (the "Opposition"), arguing the FAC is sufficiently pled and that the MTD should be denied. Plaintiff requests leave to file a second amended complaint in the event that the Court finds merit in the MTD.
Standard
A motion to dismiss under Civil Rule 12(b)(6) challenges the sufficiency of the allegations set forth in the complaint. "A Rule 12(b)(6) dismissal may be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’" Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dept., 901 F.2d 696,
699 (9th Cir. 1990)).
In resolving a Civil Rule 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff, and accept all well-pleaded factual allegations as true. Johnson, 534 F.3d at 1122; Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001). On the other hand, the court is not bound by conclusory statements, statements of law, and unwarranted inferences cast as factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations omitted). "In practice, a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562 (emphasis added) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court elaborated on the Twombly standard: To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content
1:00 PM
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 663 (citations and internal quotation marks omitted). In light of that standard, the Supreme Court invited courts considering a motion to dismiss to use a two pronged approach. First, "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal at 680-1. After those pleadings are excised, all that is left to consider are the factual allegations in the "complaint to determine if they plausibly suggest an entitlement to relief." Id. Courts should assume the veracity of well-plead factual allegations. Id.
"If there are two alternative explanations, one advanced by the defendant and the other advanced by plaintiff, both of which are plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6)." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); see also Moss v. United States Secret Serv., 2013 U.S. App. LEXIS 4121 (9th Cir. Feb. 26, 2013).
Federal Rule of Civil Procedure 9(b) imposes heightened pleading requirements for claims of fraud. See Fed. R. Civ. P. 9(b). Under Rule 9(b), a plaintiff "must state with particularity the circumstances constituting fraud," but can allege generally "[m]alice, intent, knowledge, and other conditions of a person's mind." Twombly, 550 U.S. at 559. The particularity requirement "has been interpreted to mean the pleader must state the time, place and specific content of the false representations as well as the identities of the parties to the misrepresentation." In re MannKind Sec. Actions, 2011 U.S. Dist. LEXIS 145253, 19-20 (C.D. Cal. Dec. 16, 2011).
"Averments of fraud must be accompanied by the who, what, when, where and how of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotations omitted) and Walling v. Beverly Enterprises, 476 F.2d 393, 397 (9th Cir. 1973). "Rule 9(b) ensures that allegations of fraud are specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v.
Weidner, 780 F.2d 727, 731 (9th Cir. 1985). "It also prevents the filing of a complaint as a pretext for the discovery of unknown wrongs and protects potential defendants - - especially professionals whose reputations in their fields of expertise are most sensitive to slander - - from the harm that comes from being charged with the commission of fraudulent acts." Id.
1:00 PM
Analysis
As noted above, the FAC must contain "either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562. This pleading requirement is heightened by Federal Rule of Civil Procedure 9(b) when there is a claim of fraud.
Here, after amending the original complaint, the particularity requirement of Fed. R. Civ. P. 9(b) satisfied. Plaintiff alleged that Debtor committed fraud by underreporting his payroll, failing to properly account for unlicensed subcontractors, and failing to provide required documentation. FAC ¶ 16-21. Debtor again argues that the mere fact that he underreported his payroll is insufficient to support the allegation of fraud where the Policy seemingly contemplates occasional underreporting by providing for an audit and reassessment, resulting in a final premium. The allegations in the FAC, however, are very specific as to Debtor’s statement at the inception of the Policy that he did not employ subcontractors, and all of the specific details of the instances when Plaintiff alleges that Debtor employed unreported subcontractors. Id. at ¶¶ 22- 27.
According to the Policy, Debtor was to provide Plaintiff with copies of records upon request. FAC ¶14F. While Debtor contends that Plaintiff fails to specify in the FAC the "time, place or content of any of Defendant’s alleged fraudulent conduct," a review of the FAC shows Debtor is incorrect. Plaintiff has identified when and how many requests were made for Debtor to turn over documentation. Id. at ¶¶ 28-33.
Plaintiff’s allegations regarding Debtor’s alleged fraudulent acts are sufficiently pled to satisfy the particularity requirement of Fed. R. Civ. P. 9(b)
Plaintiff also amended its allegations that Debtor "knowingly and intentionally under reported his payroll and failed to provide employee time cards/alleged independent contractor’s 1099 forms, with the intent to deceive Plaintiff and wrongfully reduce the premiums it owed to Plaintiff." FAC ¶28-33. Plaintiff clarified that the factual allegations contained in paragraphs 28-33 of the FAC support a claim for relief under § 523(a)(2)(B), while the allegations contained in paragraphs 22-27 of the FAC support a claim for relief under § 523(a)(2)(A). As such, Plaintiff’s allegations in the FAC meet "the material elements necessary to sustain recovery under" either 11 U.S.C. § 523(a)(2)(A) or (B). Twombly, 550 U.S. at 555 (citations omitted)(quoting Car Carriers, Inc., 745 F.2d at 1106.
Motion to Dismiss FAC is DENIED.
1:00 PM
Debtor(s):
Jose Matias Maranon Represented By
Geoffrey G Melkonian
Defendant(s):
Jose Matias Maranon Represented By
Geoffrey G Melkonian
Plaintiff(s):
State Compensation Insurance Fund Represented By
Rhett Johnson
Trustee(s):
David Seror (TR) Pro Se
1:00 PM
Adv#: 1:17-01037 State Compensation Insurance Fund v. Maranon
Complaint to Determine Dischargeability of Debt Under 11 U.S.C. Sec. 523(a)(2)
fr. 6/21/17, 7/26/17, 8/2/17, 11/8/17
Docket 1
NONE LISTED -
Discovery cut-off (all discovery to be completed*):
Expert witness designation deadline (if necessary):
Case dispositive motion filing deadline (MSJ; 12(c)):
Pretrial conference:
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil Procedure.
Meet and Confer
Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
1:00 PM
Discovery Motion Practice:
All discovery motions must be filed within 30 days of the service of an objection, answer, or response which becomes the subject of dispute or the passing of a discovery due date without response or production, and only after counsel have met and conferred and have reached an impasse with regard to the particular issue.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
Jose Matias Maranon Represented By
Geoffrey G Melkonian
Defendant(s):
Jose Matias Maranon Pro Se
Plaintiff(s):
State Compensation Insurance Fund Represented By
Rhett Johnson
Trustee(s):
David Seror (TR) Pro Se
1:00 PM
Docket 25
NONE LISTED -
NONE LISTED -
Debtor(s):
Ruben Lvovich Gukasov Represented By Alfred O Anyia
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
# 4 by Claimant U.S. Bank National Association,
as Trustee for Harborview Mortgage Loan Trust 2005-16, Mortgage Loan Pass-Through Certificates, Series 2005-16, as serviced by Nationstar Mortgage LLC
fr. 7/12/17, 8/2/17; 9/27/17; 11/07/17
Docket 82
APPEARANCE REQUIRED
Debtor(s):
Farideh Warda Represented By
M Jonathan Hayes Roksana D. Moradi
Movant(s):
Farideh Warda Represented By
M Jonathan Hayes Roksana D. Moradi
10:00 AM
Docket 143
APPEARANCE REQUIRED
Debtor(s):
Farideh Warda Pro Se
8:30 AM
Docket 14
Petition date: 9/14/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? No.
Discharge?: No
Property: 2009 Chevrolet Traverse
Debtor’s valuation of property (Sch. B): $6,000 Amount to be reaffirmed: $7,897.58
APR: 12.9%
Contract terms: $323.42 for 49 months, with any remaining balance due at the end of the contract)
Monthly Income (Schedule I): $2,190 Monthly expenses: (Schedule J): $2,194 Disposable income: <$4.00>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor has already included the payment on this debt on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until Feb. 20, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Anthony Richard La Grasta Pro Se
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
Docket 17
Petition date: 9/22/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2009 Honda CRV
Debtor’s valuation of property (Sch. B): not valued (LEASE) Amount to be reaffirmed: $661.13
APR: 0%
Contract terms: $330.56 per month for 2 months Monthly Income (Schedule I): $2,223.43 Monthly expenses: (Schedule J): $2,327 Disposable income: <$103.57>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor states that this payment is provided for on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until Feb. 26, 2018,
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Sheila J. Rogers Represented By Janet A Lawson
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
Docket 17
Petition date: 9/26/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2017 Honda Accord
Debtor’s valuation of property (Sch. B): $18,000 Amount to be reaffirmed: $15,050
APR: 0.9%
Contract terms: $306.83 per month for 50 months Monthly Income (Schedule I): $3,034
Monthly expenses: (Schedule J): $3,823 Disposable income: <$788.67>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor explains she no longer has dependents, so her expenses have decreased. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until January 22, 2018,
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Bertha Ledesma Represented By Carlo Reyes
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
fr. 12/19/17
Docket 9
Petition date: 9/29/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2011 Toyota Camry
Debtor’s valuation of property (Sch. B): $3,098 Amount to be reaffirmed: $4,732.28
APR: 21.99%
Contract terms: $291.54 per month for 19 months Monthly Income (Schedule I): $3,929
Monthly expenses: (Schedule J): $3,913 Disposable income: $16.13
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
This payment is provided for in Sch. J
Debtor has a right to rescind agreement anytime prior to discharge, or until January 20, 2018,
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Alejandro Rodriguez Represented By
R Grace Rodriguez
Trustee(s):
Nancy J Zamora (TR) Pro Se
8:30 AM
Docket 23
Petition date: 10/4/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2015 Toyota Tundra
Debtor’s valuation of property (Sch. B): $38,200 Amount to be reaffirmed: $33,790
APR: 1.9%
Contract terms: $852.80 per month for 49 months Monthly Income (Schedule I): $4,755
Monthly expenses: (Schedule J): $4,867.15 Disposable income: <$111.16>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor says he is seeking to reduce expenses and family/friends will provide financial assistance, if needed
Debtor has a right to rescind agreement anytime prior to discharge, or until February 15, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Davey James Short Orinas Represented By David A Tilem
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
and Santander Consumer USA Inc., dba Chrysler Capital
Docket 15
Petition date: 10/4/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2013 Range Rover
Debtor’s valuation of property (Sch. B): $23,095 Amount to be reaffirmed: $24,109
APR: 10.39%
Contract terms: $471.50 per month until May 2023 Monthly Income (Schedule I): $4,755
Monthly expenses: (Schedule J): $4,867.15 Disposable income: <$111.16>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor says he is seeking to reduce expenses and family/friends will provide financial assistance, if needed
Debtor has a right to rescind agreement anytime prior to discharge, or until January 24, 2018,
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Davey James Short Orinas Represented By David A Tilem
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
fr. 12/19/17
Docket 12
Petition date: 10/4/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No Property: 2010 Honda Fit
Debtor’s valuation of property (Sch. B): $4,860 Amount to be reaffirmed: $4,872
APR: 11.9%
Contract terms: $309.61 per month for 17 months Monthly Income (Schedule I): $4,755
Monthly expenses: (Schedule J): $4,867.15 Disposable income: <$111.16>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor says he shares title with his daughter and she makes these payments.
Debtor has a right to rescind agreement anytime prior to discharge, or until January 14, 2018,
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Davey James Short Orinas Represented By David A Tilem
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
Debtor and American Honda Finance Corporation
Docket 18
Petition date: 10/4/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2014 Honda Accord
Debtor’s valuation of property (Sch. B): $12,625 Amount to be reaffirmed: $16,526
APR: 17.30%
Contract terms: $444.96 per month for 53 months Monthly Income (Schedule I): $4,755
Monthly expenses: (Schedule J): $4,867.15 Disposable income: <$111.16>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor says he shares title with his brother-in-law and he makes these payments.
Debtor has a right to rescind agreement anytime prior to discharge, or until January 28, 2018,
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Davey James Short Orinas Represented By David A Tilem
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
Docket 10
Petition date: 10/16/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2017 Ford Escape
Debtor’s valuation of property (Sch. B): $27,625 Amount to be reaffirmed: $11,285 (LEASE) APR: n/a
Contract terms: $331.93 per month for 34 months Monthly Income (Schedule I): $2,077.54
Monthly expenses: (Schedule J): $3,298.95 Disposable income: <$1,221.41>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor explains that her expenses are now lower after having filed bankruptcy. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until January 25, 2018,
RULING MAY BE MODIFIED AT HEARING
8:30 AM
Debtor(s):
Anjenette Solano Pro Se
Trustee(s):
David Seror (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Fernando R Ochoa Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Jeffery Scott Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Bagrat Ogannes Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Ha Min Chi Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Cynthia Deniese Sanders Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Period: 1/6/2017 to 9/15/2017 Fees: $13234 Expenses: $314.50
fr. 10/18/17
Docket 128
NONE LISTED -
Debtors stated they were dismissing case upon approval of the settlement.
Debtor(s):
Ludo Gust Mensch Represented By Michael Jay Berger
Joint Debtor(s):
Lorraine Patricia Mensch Represented By Michael Jay Berger
Movant(s):
Ludo Gust Mensch Represented By Michael Jay Berger
Lorraine Patricia Mensch Represented By Michael Jay Berger
9:30 AM
fr. 11/19/15, 5/5/16, 7/28/16, 12/7/16; 2/8/17, 4/26/17, 7/12/17; 10/18/17
Docket 1
NONE LISTED -
The debtors represented that no disclosure would be filed because they were going to dismiss case. When will that motion be filed?
Debtor(s):
Ludo Gust Mensch Represented By Michael Jay Berger
Joint Debtor(s):
Lorraine Patricia Mensch Represented By Michael Jay Berger
9:30 AM
SECURED CREDITORS COUNTY OF VENTURA
Docket 43
NONE LISTED -
Petition Date: March 17, 2016
Chapter: 11
Service: Proper. No opposition filed.
Property: 21 La Cam Rd., Newbury Park, CA 91320, Ventura County Assessor's Parcel Nos. 1) 668-0-070-195, 2) 668-0-070-205; 3) 668-0-070-215.
Property Value: $ 1,500,000 (per debtor’s schedules) Amount Owed: $ 285,552.42 (per RFS motion)
This case was dismissed on August 22, 2016 on Debtor's own motion. Movant's motion to reopen the case was granted on December 15, 2017. The Motion alleges and is not disputed that the bankruptcy was part of a thirty year scheme to delay, hinder, or defraud creditors due to 1) the transfer of all or part ownership of the property without the consent of Movant and 2) multiple bankruptcies affecting the property. Debtor has filed two previous bankruptcies since 2015, 16-bk-10783-MT and 15-bk-11086-DS, and Movant lists seven other prior cases affecting the properties filed by other entities. Debtor and Debtor's sole shareholder, John Harry Byrd, have repeatedly filed bankruptcies in order to avoid tax sales on the vacant lots. $285,552.42 is owed in back taxes.
No opposition has been filed.
Disposition: GRANT relief requested in paragraph 9 (relief under 362(d)(4)).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
9:30 AM
MOVANT TO LODGE ORDER WITHIN 7 DAYS. MOVANT IS ORDERED TO SERVE A COPY OF THE ENTERED ORDER ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
Debtor(s):
Harlequins Web, LLC Represented By Robert Reganyan
Movant(s):
VENTURA COUNTY TAX Represented By Linda K Ash
Andrew Gschwind
County Of Ventura Represented By Linda K Ash
Andrew Gschwind
9:30 AM
Docket 70
NONE LISTED -
NONE LISTED -
Debtor(s):
Paul Vincent Wojdak Pro Se
9:30 AM
Docket 1
NONE LISTED -
No status report was timely filed.
Debtor(s):
Ferdinand Holgado Represented By Dana M Douglas
9:30 AM
fr. 9/6/17; 11/15/17
Docket 56
NONE LISTED -
Given stipulations re plan, is this agreement continuing also?
Debtor(s):
FAMOSO PORTERVILLE, LLC Represented By
Jeffrey S Shinbrot
9:30 AM
Docket 50
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
FAMOSO PORTERVILLE, LLC Represented By
Jeffrey S Shinbrot
9:30 AM
Docket 0
NONE LISTED -
Debtor should propose a solicitation/plan confirmation schedule with potential hearing dates on March 7, 21 or 28 at 9:30 am
Debtor(s):
FAMOSO PORTERVILLE, LLC Represented By
Jeffrey S Shinbrot
9:30 AM
Docket 95
NONE LISTED -
Debtors state in Class 6(b) that there they will pay "$15 per month according to Disclosure Statement, $60 quarterly per Chapter 11 plan." These numbers are not consistent. $15 per month is $45 per quarter.
Nationstar filed a limited objection to approval of the Amended Disclosure Statement due to Debtors attaching an incorrect copy of the stipulation to plan treatment entered into between Debtors and Nationstar. Doc. No. 108. Debtors and Nationstar filed a stipulation to plan treatment (Doc. No. 92) which was rejected by the court due to noticing the hearing for the incorrect date. An amended stipulation was filed on December 12 (Doc. No. 99) and approved by the court (Doc. No. 102). Debtors attached a copy of the unapproved stipulation (Doc. No. 92) to the disclosure statement, rather than the amended stipulation (Doc. No. 99). Nationstar requests that Debtors be required to modify or amend the Disclosure statement to attach the amended stipulation. Nationstar also requests that Debtors amend the Plan to reference the correct docket number for the amended stipulation.
Alternatively, Nationstar requests that the disclosure statement be conditionally approved subject to Debtors making the requested changes.
The plan should be amended to reflect the correct amount to be paid to unsecured creditors—$15 per month ($45 per quarter), or $60 per quarter.
THE STIPULATIONS REACHED WITH CREDITORS MUST BE INCORPORATED INTO THE PLAN SO THE TERMS ARE CLEAR TO ALL.
9:30 AM
The disclosure statement will be APPROVED subject to modification of the plan that is sent out incorporating the proper terms of the stipulated treatment of Nationstar and proper math on the payments to unsecured creditors.
Debtor's counsel should propose a solicitation / confirmation schedule with a hearing date of March 21 or 28 at 9:30 am
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu Crystle J Lindsey
Joint Debtor(s):
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu Crystle J Lindsey
9:30 AM
fr. 11/29/17
Docket 82
NONE LISTED -
This will be continued until the confirmation hearing, so will not be heard on 1/17. All fees will be reviewed at the final fee hearing when that gets set.
Debtors must personally appear at the final fee hearing.
Previous Tentative:
No fees will be approved in this case until after the plan is confirmed. This hearing is continued to January 18, 2018 at 9:30 a.m., to trail approval of disclosure statement and plan confirmation. Debtor to give notice of continued hearing.
NO APPEARANCE REQUIRED ON 11/29/17.
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu Crystle J Lindsey
Joint Debtor(s):
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
9:30 AM
Clarissa D Cu Crystle J Lindsey
9:30 AM
fr. 7/26/17, 9/6/17, 9/27/17; 11/15/17
Docket 39
NONE LISTED -
NONE LISTED -
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Joint Debtor(s):
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Movant(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
9:30 AM
Docket 1
NONE LISTED -
The Disclosure Statement, Chapter 11 Plan of Reorganization (the"Plan"), and a ballot conforming to Official Form 14, shall be mailed, along with notice of all relevant dates, to creditors, equity security holders, the Office of the United States Trustee and other parties in interest, pursuant to Bankruptcy Rule 2002, no later than :
Ballots to be returned and
objections to confirmation to be filed no later than:
Confirmation Brief stating why the Plan should be confirmed and admissible evidence supporting all applicable elements of 11 U.S.C. §1129, a ballot summary, and Debtor’s response to any objections to be filed no later than:
Confirmation hearing to be held on:
DEBTOR TO LODGE CONFIRMATION SCHEDULING ORDER WITH THE DATES SET BY THE COURT WITHIN 7 DAYS.
FAILURE TO LODGE THE CONFIRMATION SCHEDULING ORDER MAY RESULT IN DISMISSAL OR CONVERSION.
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
9:30 AM
Joint Debtor(s):
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
9:30 AM
Docket 35
- NONE LISTED -
Under § 1125(b), "the court may approve a disclosure statement without a valuation of the debtor or an appraisal of the debtor's assets." Whether a valuation issue is sufficient to deny a disclosure statement under § 1125(b) is a case by case determination which turns on whether the valuation provided in the disclosure statement provides adequate information. See In re Reilly, 71 B.R. 132, 135 (Bankr.
D. Mont. 1987). Because this is a single asset real estate bankruptcy, the value of the property is of chief importance in determining whether a hypothetical reasonable investor would vote for or against the plan. The age of the debtor's valuation and the discrepancy between it and the lenders BPO cause me to conclude that a proper valuation hearing would be better for all creditors before any disclosure statement is approved.
The declaration of Mr. Zilberstein should also be more detailed. What would his tax exposure be to distribute so many of Oakdale's funds? What has been the historical relationship between Oakdale, any other LLCs and this debtor? Is there any explicit or implied agreement to pay Oakdale or him back?
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
Docket 0
- NONE LISTED -
Debtor indicated in its chapter 11 petition that it is a Single Asset Real Estate case under 101(51B). Under § 362(d)(3) the following dates apply:
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
Docket 0
- NONE LISTED -
claim bar date: March 30 -SUBMIT ORDER BY Jan. 22 disclosure statement filing deadline: April 15 disclosure statement hearing: June 6, 2018 at 9:30 am
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Debtor(s):
Benzeen Inc. Represented By
Robert Reganyan
9:30 AM
Docket 13
- NONE LISTED -
Debtor seems to be making progress toward meeting the Trustee’s requirements. If the US Trustee amenable to a continuance to allow Debtor to come into compliance, US Trustee may stipulate to continue. If no agreement, then APPEARANCE REQUIRED
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
9:30 AM
Docket 1
- NONE LISTED -
claim bar date: April 4 - submit claims bar date order on LOU by January 26
Objections to claims deadline: May 15 disclosure statement filing deadline: April 24
disclosure statement hearing: June 13 at 9:30
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
fr. 1/10/18
Docket 16
- NONE LISTED -
This hearing was continued from 1/10/18 so that the parties could talk. Discharge was entered in this case on 1/8/18. What is the status of this Motion?
APPEARANCE REQUIRED.
1-10-18 TENTATIVE BELOW
Petition Date: 9/22/17 Chapter: 7
Service: Proper. No opposition filed.
Property: 17552 Gledhill St., Northridge, CA 91325 Property Value: $799,000 (per debtor’s schedules) Amount Owed: $1,394,637
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $157,539 (approx. 58 payments of $2,719)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
9:30 AM
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Joseph Peaks Durant Represented By Dominic Afzali
Movant(s):
U.S. Bank NA, Successor Trustee Represented By
Nichole Glowin
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
WILMINGTON SAVINGS FUND SOCIETY
Docket 70
- NONE LISTED -
Petition Date: 1/22/14
Chapter 13 plan confirmed: 7/3/14 Service: Proper. No opposition filed.
Property: 18169 Andrea Circle North #1, Northridge, CA 91325
Property Value: $420,000 (per Order Granting Mtn. to Avoid Lien, doc. 29) Amount Owed: $438,347
Equity Cushion: 0.0% Equity: $0.00.
Post-confirmation Delinquency: $50,989 (approx. 33 payments of between
$1,458.77 and $1,877, less suspense account balance of <$19>)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Robert Richard Loski Represented By Gregory M Shanfeld
11:00 AM
Joint Debtor(s):
Sheila Faith Loski Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELLON
fr. 12/13/17
Docket 54
- NONE LISTED -
This hearing was continued from Dec. 13, 2017, so that the parties could discuss the terms of an APO. Nothing filed since the last hearing. What is the status of this motion?
APPEARANCE REQUIRED
12/13/17 Tentative Petition Date: 05/22/2015 Chapter: 13
Service: Proper. No opposition filed.
Property: 12479 Debby Street, Los Angeles, CA 91606-3106
Property Value: 440,000.00 (per debtor’s schedules) Amount Owed: $436,391.69 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: $3,441.37 (2 payments behind)
11:00 AM
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); 12 (Debtor is a borrower as defined in Cal. Civ. Code 2920.5(c)C(2)(C)); and 13 (if relief from stay is not granted, adequate protection shall be ordered).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Karapet Dermendjian Represented By Aris Artounians
Joint Debtor(s):
Anait Dermendjian Represented By Aris Artounians
Movant(s):
The Bank of New York Mellon f/k/a Represented By
Mark D Estle
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
AMERICAN BEAUTY VILLAGE OWNERS ASSOCIATION
fr. 12/13/17
Docket 54
- NONE LISTED -
This hearing was continued from Dec. 13, 2017, so that Movant had an opportunity to withdraw this Motion based on the evidence presented at the hearing. Nothing further filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED.
12/13/17 Tentative below
Petition Date: 01/21/2016
Chapter: 13 (plan confirmed on 10/07/2016) Service: Proper. No opposition filed.
Property: 26873 Claudette Street, Canyon Country, CA 91351 Property Value: $268,416.00 (per debtor’s schedules) Amount Owed: $3,126.00 (per RFS motion)
Equity Cushion: 0.0% Equity: $0.00.
11:00 AM
Post-Petition Delinquency: $2,021.00
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (Co-debtor stay annulled); and 12 (Debtor is a borrower as defined in Cal. Civ. Code 2920.5(c)C(2)(C)).NO APPEARANCE REQUIRED— RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS. MOVANT IS ORDERED TO SERVE A COPY OF THE ENTERED ORDER ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
Debtor(s):
Heliodoro Navarro Represented By Daniel F Jimenez
Movant(s):
American Beauty Village Owners Represented By
Neil B Katz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELLON
Docket 31
NONE LISTED -
NONE LISTED -
Debtor(s):
Mary J Hilyard Represented By Dana M Douglas
Movant(s):
The Bank of New York Mellon FKA Represented By
Mark D Estle
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 35
NONE LISTED -
Petition Date: 8/31/17
Chapter 13 plan confirmed: 12/18/17 Service: Proper. No opposition filed.
Property: 18823 Erwin St., Tarzana, CA 91355 Property Value: $800,000 (per debtor’s schedules) Amount Owed: $436,400
Equity Cushion: 45.5% Equity: $363,600
Post-Petition Delinquency: $4,884.81 (three pre-confirmation payments of
$2,328.27, less suspense account balance of $2,100)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
stay). While Movant alleges cause for relief because post-petition payments are delinquent, there is sufficient equity here that the parties should be able to work out an APO.
APPEARANCE REQUIRED
Debtor(s):
Igor Gary Deck Represented By Joshua L Sternberg
11:00 AM
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Christina J O
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 9
NONE LISTED -
Petition Date: 11/30/17 Chapter: 7
Service: Proper. No opposition filed. Property: 2016 Mercedes Benz E350W
Property Value: $30,000 (per debtor’s schedules - LEASE) Amount Owed: $55,240
Equity Cushion: n/a Equity: n/a
Delinquency: $3,430.56 (approx. 3 payments of $1,057.64)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Robert Kleshon Blackburn Represented By Floyd Aragon
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
11:00 AM
Docket 7
NONE LISTED -
On December 26, 2017, Debtor filed this chapter 7 case. Debtor had 1 previous bankruptcy case that was dismissed within the previous year (the "First Filing"). The First Filing, 17-12136-MB, was a chapter 7 that was filed on 8/14/17 and dismissed on 8/29/17 for failure to file required documents.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor argues that the present case was filed in good faith notwithstanding the dismissal of the previous case for failure to file required documents because Debtor's previous counsel for the First Filing did not respond to notices from the Court about filer errors that needed to be corrected. Debtor claims that there has been a substantial change in her financial or personal affairs because she now has competent counsel who will assist Debtor in making sure is compliant with her duties as a debtor, and thus the presumption of bad faith under 11 U.S.C. 362(c)(3)(C)(i) does not arise.
Service proper. No opposition filed.
Will current counsel be making any arrangements with prior counsel for a return of all or part of the $1500 fee collected for previous skeletal and incomplete filing?
MOTION GRANTED. RULING MAY BE MODIFIED AT HEARING. APPEARANCE REQUIRED DUE TO SHORTENED TIME.
11:00 AM
Debtor(s):
Mindy Ellen Goldberg Represented By Jeffrey J Hagen
Movant(s):
Mindy Ellen Goldberg Represented By Jeffrey J Hagen
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
HSBC BANK USA, TRUSTEE
FOR OPTEUM MORTGAGE ACCEPTANCE
fr. 11/16/16, 11/30/16; 1/25/17; 3/29/17, 8/2/17; 8/23/17; 10/18/17, 1/3/18
Docket 31
NONE LISTED -
APPEARANCE REQUIRED
10/18/17 Tentative Petition Date: 4/15/16 Ch: 13
Service: Proper. Opposition filed.
Property: 12530 Herrick Ave., Sylmar (Los Angeles), CA 91342 Property Value: $374,000 (per debtor’s schedules)
Amount Owed: $319,516.55 Equity Cushion: 6.5% Equity: $54,483.45.
Post-Petition Delinquency: $8,865.60 (5 payments of $1,773.12)
Movant requests relief under 11 U.S.C. 362(d)(1), with the relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
At the August 23 hearing, parties continued this matter to engage in settlement negotiations with regard to the adversary action and this RFS motion. What is the
11:00 AM
status of those discussions?
APPEARANCE REQUIRED
Debtor(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:16-01155 Landeros v. HSBC BANK USA, NATIONAL ASSOCIATION et al
fr. 8/23/17; 10/18/17, 1/3/18
Docket 32
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Defendant(s):
HSBC BANK USA, NATIONAL Represented By
Lovee D Sarenas
Sylvia Villapando Pro Se
Frank Villapando Pro Se
Movant(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Plaintiff(s):
Hope H. Landeros Represented By
R Grace Rodriguez
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:16-01155 Landeros v. HSBC BANK USA, NATIONAL ASSOCIATION et al
fr. 1/25/17; 3/29/17, 8/2/17; 8/23/17, 11/29/17,
1/3/18
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Defendant(s):
HSBC BANK USA, NATIONAL Pro Se
Sylvia Villapando Pro Se
Frank Villapando Pro Se
Plaintiff(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 33
NONE LISTED -
NONE LISTED -
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Ruben Fuentes
Trustee(s):
David Seror (TR) Represented By Reagan E Boyce
11:00 AM
Docket 17
NONE LISTED -
NONE LISTED -
Debtor(s):
Evangeline A. Romero Represented By Walter Scott
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 28
NONE LISTED -
Motion GRANTED. Movant to lodge order within 7 days.
NO APPEARANCE REQUIRED.
Debtor(s):
Davit Mnatsakanyan Represented By Anita Khachikyan
Movant(s):
Davit Mnatsakanyan Represented By Anita Khachikyan
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Two-Year Bar to Re-Filing fr. 1/9/18
Docket 12
NONE LISTED -
On 11/27/17, Debtors’ pro se chapter 13 was dismissed for failure to file all required case commencement documents (the "Dismissal Order"). On December 12, 2017, US Trustee moved to amend the Dismissal Order to include a two year bar to refiling. US Trustee argues that Debtors’ pattern of repeat filing of improperly prosecuted cases (this case is Debtors’ ninth case filed since 2011) demonstrates their bad faith that has caused unreasonable delay that is prejudicial to creditors.
Service proper. No opposition filed.
Motion GRANTED. UST to lodge order in 7 days. NO APPEARANCE REQUIRED.
Debtor(s):
Christel Maria Reyes Pro Se
Joint Debtor(s):
George Edward Reyes Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 69
NONE LISTED -
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON 1/17/18.
Debtor(s):
Toi F Cook Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Monserrat Morales
11:00 AM
Docket 139
NONE LISTED -
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON 1/17/18.
Debtor(s):
David Brent Joseph Represented By Todd J Roberts
Trustee(s):
Nancy J Zamora (TR) Represented By John D Ott
11:00 AM
Docket 51
NONE LISTED -
The settlement is reasonable and a proper exercise of the Trustee's business judgment. No opposition filed.
Motion GRANTED. No Appearance required
Debtor(s):
David Saghian Represented By Edmond Nassirzadeh
Movant(s):
Diane C Weil (TR) Represented By Michael G D'Alba John N Tedford
Trustee(s):
Diane C Weil (TR) Represented By Michael G D'Alba John N Tedford
11:30 AM
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Mainstream Advertising, a Pro Se
1:00 PM
Adv#: 1:17-01090 Solimani v. Aboudaher
Docket 5
NONE LISTED -
A motion to dismiss under Civil Rule 12(b)(6) challenges the sufficiency of the allegations set forth in the complaint. "A Rule 12(b)(6) dismissal may be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’" Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dept., 901 F.2d 696,
699 (9th Cir. 1990)).
In resolving a Civil Rule 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff, and accept all well-pleaded factual allegations as true. Johnson, 534 F.3d at 1122; Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001). On the other hand, the court is not bound by conclusory statements, statements of law, and unwarranted inferences cast as factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations omitted). "In practice, a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562 (emphasis added) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court elaborated on the Twombly standard: To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content
1:00 PM
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice. Id. at 678 (citations and internal quotation marks omitted). In light of that standard, the Supreme Court invited courts considering a motion to dismiss to use a two pronged approach. First, "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. After those pleadings are excised, all that is left to consider are the factual allegations in the "complaint to determine if they plausibly suggest an entitlement to relief." Id. at 681. Courts should assume the veracity of well-plead factual allegations. Id. at 679. "If there are two alternative explanations, one advanced by the defendant and the other advanced by plaintiff, both of which are plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6)." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); see also Moss v. United States Secret Serv., 2013 U.S. App. LEXIS 4121 (9th Cir. Feb. 26, 2013).
Moreover, Federal Rule of Civil Procedure 9(b) imposes heightened pleading requirements for claims of fraud. See Fed. R. Civ. P. 9(b). Under Rule 9(b), a plaintiff "must state with particularity the circumstances constituting fraud," but can allege generally "[m]alice, intent, knowledge, and other conditions of a person's mind." Twombly, 550 U.S. at 559. The particularity requirement "has been interpreted to mean the pleader must state the time, place and specific content of the false representations as well as the identities of the parties to the misrepresentation." In re MannKind Sec. Actions, 2011 U.S. Dist. LEXIS 145253, 19-20 (C.D. Cal. Dec. 16, 2011).
"Averments of fraud must be accompanied by the who, what, when, where and how of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotations omitted) and Walling v. Beverly Enterprises, 476 F.2d 393, 397 (9th Cir. 1973). "Rule 9(b) ensures that allegations of fraud are specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v.
Weidner, 780 F.2d 727, 731 (9th Cir. 1985).
Discussion
DENIAL OF DISCHARGE UNDER §727(a)
The provisions denying a discharge to a debtor are generally construed
1:00 PM
liberally in favor of the debtor and strictly against the creditor. Courts have noted that "a total bar to discharge is an extreme penalty." The reasons for denial of a discharge must be real and substantial rather than technical and conjectural.
However, "[w]hile the law favors discharges in bankruptcy; it will not ordinarily tolerate the [debtor’s] intentional departure from honest business practices where there is a reasonable likelihood of prejudice." See COLLIER ON BANKRUPTCY, ¶
727.01 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.).
Those objecting to discharge "bear[] the burden of proving by a preponderance of the evidence that [the debtor’s] discharge should be denied. Khalil v. Developers Sur. & Indem. Co. (In re Khalil), 379 B.R. 163, 172 (B.A.P. 9th Cir.
2007), aff’d, 578 F.3d 1167, 1168 (9th Cir. 2009) (expressly adopting the BAP’s statement of applicable law). "In keeping with the ‘fresh start’ purposes behind the Bankruptcy Code, courts should construe § 727 liberally in favor of debtors and strictly against the parties objecting to discharge." Beranrd v. Sheaffer (In re Bernard), 96 F.3d 1279, 1281 (9th Cir. 1996). This does not alter the burden on the objector, but rather means that "actual, rather than constructive, intent is required" on the part of the debtor. Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010), quoting In re Khalil, 379 B.R. at172.
11 U.S.C. § 727(a)(2)
The Bankruptcy code provides for situations when the Court shall not grant a discharge. This is covered in §727(a). In relevant part:
the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed--
property of the debtor, within one year before the date of the filing of the petition; or
property of the estate, after the date of the filing of the petition.
11 U.S.C. §727(a)(2). The 9th Circuit Bankruptcy Appellate Panel has specifically articulated the elements necessary to for the moving party to show that a §727(a)(2) claim has merit. The burden of proof is on the creditor to show that: (1) the debtor transferred or concealed property; (2) the property belonged to the debtor; (3) the transfer occurred within one year of the bankruptcy filing; and (4) the debtor executed the transfer with the intent to hinder, delay or defraud a creditor. In re Aubrey, 111 B.R. 268, 273 (9th Cir. B.A.P. 1990).
1:00 PM
Section 727(a)(3) - Failure to Keep or Preserve Books or Records
Section 727(a)(3) provides for denial of a debtor’s discharge if the debtor "has concealed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure was justified under all of the circumstances of the case." 11
U.S.C. § 727(a)(3).
The [Debtor] must present sufficient written evidence which will enable his creditors reasonably to ascertain his present financial condition and to follow his business transactions for a reasonable period in the past. In re Cox, 904 F.2d 1399, 1400 (9th Cir. 1990). In some cases, a failure to produce proper records will not justify a denial of discharge when the missing information can be reconstructed from records kept by others. See COLLIER ON BANKRUPTCY, ¶ 727.03 (Alan N. Resnick & Henry J. Sommer eds., 16th ed).
11 U.S.C. § 727(a)(4)
Under §727(a)(4), a debtor may not be granted a discharge if:
the debtor knowingly and fraudulently, in or in connection with the case--
made a false oath or account;
presented or used a false claim;
gave, offered, received, or attempted to obtain money, property, or advantage, or a promise of money, property, or advantage, for acting or forbearing to act; or
withheld from an officer of the estate entitled to possession under this title, any recorded information, including books, documents, records, and papers, relating to the debtor's property or financial affairs.
11 U.S.C. §727(a)(4).
Thus, the code here reflects the overall twofold purpose of bankruptcy: 1) to secure the equitable distribution of the bankrupt’s estate among his creditors and 2) to relieve the honest debtor from the weight of indebtedness and provide an opportunity for him to have a fresh start. In re Devers, 759 F.2d 751, 754 (9th Cir. 1985). The fundamental purpose of § 727(a)(4)(A) is to insure that the trustee and creditors have accurate information without having to conduct costly investigations. In re Wills, 243 B.R. 58, 63 (B.A.P. 9th Cir. 1999).
1:00 PM
11 U.S.C. §727(a)(5)
Section 727(a)(5) is broadly drawn and gives the bankruptcy court broad power to decline to grant a discharge in bankruptcy when the debtor does not adequately explain a shortage, loss, or disappearance of assets." Aoki v. Atto Corp. (In re Aoki), 323 B.R. 803, 817 (B.A.P. 1st Cir. 2005). See In re D'Agnese, 86 F.3d 732, 734 (7th Cir.1996)(citing First Fed. Life Ins. Co. v. Martin ( In re Martin), 698 F.2d 883, 886 (7th Cir.1983)).
The objecting party bears the initial burden of proof under § 727(a)(5). Once the objecting party has met this initial burden by producing evidence establishing the basis for the objection, it then shifts to the debtor to provide a satisfactory explanation for the disposition of the assets. Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 619 (11th Cir.1984); Aoki, 323 B.R. at 817.
Section 727(a)(5) does not require that the loss or other disposition of the asset be proper; it requires only that the explanation satisfactorily describe or account for the disposition. See Rawlings v. Tapp (In re Tapp), 339 B.R. 420, 427 (Bankr.W.D.Ky.2006), Peoples State Bank of Mazeppa, Mn. v. Drenckhahn (In re Drenckhahn), 77 B.R. 697, 709 (Bankr.D.Minn.1987)(both citing Great Am. Ins. Co. v. Nye (In re Nye), 64 B.R. 759, 762 (Bankr.E.D.N.C.1986)). However, vague, indefinite, and uncorroborated explanations are unsatisfactory. Bell v. Stuerke (In re Stuerke), 61 B.R. 623, 626 (B.A.P. 9th Cir. 1986); Aoki, 323 B.R. at 817.
Whether a debtor satisfactorily explains a loss of assets is a question of fact. Stuerke, 61 B.R. at 626; Chalik, 748 F.2d at 619. The bankruptcy court has a great deal of discretion in determining whether an explanation is satisfactory so as to defeat the objection. Aoki, 323 B.R. at 817. See D'Agnese, 86 F.3d at 734 (citing Martin, 698 F.2d at 886)(same).
Here, the Motion to Dismiss the First Amended Complaint (the "FAC") is granted with leave to amend because, as it stands, the factual allegations under each cause of action are insufficient to meet the applicable pleading standards under Fed. R. Civ. P. 12(b)(6) and 9(b). A review of the FAC shows that Plaintiff’s factual allegations are more akin to a breach of contract action. As these causes of action sound in fraud, Plaintiff cannot rest on mere recitations of the elements of the causes of action, and must instead explain which of the alleged facts support each cause of action. While Plaintiff may rely allege on general allegations regarding fraudulent intent, the heightened pleading standard requires that Plaintiff "must state with particularity the circumstances constituting fraud," i.e., "the who, what, when, where and how of the misconduct charged." Twombly, 550 U.S. at 559; Vess v.
1:00 PM
Ciba-Geigy Corp. USA, 317 F.3d 1097 at 1106.
Motion GRANTED. Defendant to lodge order within 7 days.
Debtor(s):
Rima Aboudaher Represented By Navid Kohan
Defendant(s):
Rima Aboudaher Represented By Sanaz S Bereliani
Plaintiff(s):
Arman Solimani Represented By Jan T Aune
Trustee(s):
David Seror (TR) Pro Se
1:00 PM
Adv#: 1:17-01090 Solimani v. Aboudaher
Docket 1
- NONE LISTED -
- NONE LISTED -
Debtor(s):
Rima Aboudaher Represented By Navid Kohan
Defendant(s):
Rima Aboudaher Pro Se
Plaintiff(s):
Arman Solimani Represented By Jan T Aune
Trustee(s):
David Seror (TR) Pro Se
9:00 AM
Docket 8
- NONE LISTED -
Debtor(s):
Sabrina Pirnejad Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 8
- NONE LISTED -
Debtor(s):
Ivan Santana Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 7
- NONE LISTED -
Debtor(s):
Anthony James Damon Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/25/17, 9/26/17, 11/28/17
Docket 100
This matter has now been continued for six months. What progress has been made toward resolving this claim?
APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Movant(s):
Victoria Ruiz Represented By
Siamak E Nehoray Siamak E Nehoray Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/28/17, 5/23/17;l 7/25/17, 9/26/17, 11/28/17
Docket 89
- NONE LISTED -
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 44
Debtor(s):
Brenton Haggin Represented By Elena Steers
Joint Debtor(s):
Gisa Haggin-Seeholzer Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/25/17, 8/22/17, 9/26/17, 11/28/17
Docket 43
An order granting the motion to modify was entered on December 15, 2017. Does trustee intend to withdraw this motion?
APPEARANCE REQUIRED
Debtor(s):
Jose Ricardo Eduardo Represented By
George C Panagiotou
Joint Debtor(s):
Cecilia Isabel Eduardo Represented By
George C Panagiotou
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17
Docket 50
An order granting the motion to modify was entered on December 15, 2017. Does trustee intend to withdraw this motion?
APPEARANCE REQUIRED
11/28/17 Tentative
Debtor filed a motion to modify on November 15, to which trustee responded with conditional approval on November 17. See Docs. No. 52, 54. What is the status of this motion?
APPEARANCE REQUIRED
An order granting the motion to modify was entered on December 15, 2017. Does trustee intend to withdraw this motion?
APPEARANCE REQUIRED
11/28/17 Tentative
Debtor filed a motion to modify on November 15, to which trustee responded with conditional approval on November 17. See Docs. No. 52, 54. What is the status of this motion?
APPEARANCE REQUIRED
Debtor(s):
Jose Ricardo Eduardo Represented By
11:00 AM
George C Panagiotou
Joint Debtor(s):
Cecilia Isabel Eduardo Represented By
George C Panagiotou
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 100
Nothing new has been filed. What is the status of Debtor’s attempt to sell property? APPEARANCE REQUIRED
11/28/17 Tentative
Trustee moves to dismiss due to expiration of the plan and failure to pay remaining balance of $14,100. Debtor opposes the motion on the grounds that debtor is prepared to make the final payment with funds from the proceeds from the sale of her house. The house was listed in the past week, and debtor will file a motion to sell once a buyer is found. See Doc. No. 101.
Debtor(s):
Christine Grimes Shore Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 73
On December 5, 2017, chapter 13 trustee Elizabeth Rojas ("Trustee") filed a motion to dismiss this case due to expiration of the plan under § 1307(c)(8) (the "Motion") stating that Debtor’s plan has a remaining unpaid balance of $19,350. Doc. No. 73.
Debtor filed an opposition explaining that the Franchise Tax Board ("FTB") filed a proof of claim for $17,237.17 ("Claim #8") on September 21, 2015. FTB’s claim is based upon Debtor’s tax liability for the years 2012 and 2013, for which Debtor failed to file tax returns. No objection to Claim #8 was ever filed. According to Debtor, Trustee has already disbursed $9,646.38 to the FTB.
Nonetheless, Debtor claims that her tax liability is significantly lower than Claim #8 states. Debtor is seeking to clear up the issue with the FTB. After contacting the FTB, Debtor was informed that she needed to mail copies of the tax returns for those years to the FTB and wait several months for the FTB to process them. Debtor attaches to her opposition a letter sent to the FTB dated January 16, 2018. Debtor asks that the court continue this matter to allow her time to resolve the FTB claim.
Debtor suggests tendering the Trustee $11,759.21 to pay the remainder of all claims except the priority claim of FTB. Debtor provides no authority for this suggestion and it seems to undermine the purpose of bankruptcy’s priority scheme. See § 507(a).
Dismissal of a chapter 13 case at the final stage is not taken lightly. Debtor’s counsel should have noticed this claim when it was filed in 2015 and addressed the issue.
Mr. Aver agreed, under the Rights and Responsibilities Agreement filed as docket number 14, to "[m]onitor all incoming case information throughout the case for accuracy and completeness. Contact the trustee promptly regarding any discrepancies" and to "[f]ile objections to improper or invalid claims, when appropriate." This plan has been doomed to fail for over two years and Mr. Aver did nothing, even after reviewing the case for the purpose of opposing a relief from stay
11:00 AM
and a separate trustee’s motion to dismiss.
The Court is open to a continuance to allow Debtor a chance to straighten out the claim with FTB.
APPEARANCE REQUIRED
Debtor(s):
Elizabeth Maybalian Represented By Raymond H. Aver
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 82
As Debtor has properly filed the Declaration after Chapter 13 Plan Completion or Discharge re: Debtor’s Motion to Avoid Junior Lien on Principal Residence (mandatory form 4003-2.4.DEC.AFTERDISCH) and the Motion has already been granted, no further hearing is required on the Motion to Avoid Junior Lien. Debtor should lodge the required order for the Court’s consideration.
NO APPEARANCE REQUIRED
Debtor(s):
David A Panthen Represented By Sharon C Hughes
Joint Debtor(s):
Kandice M Deem Represented By Sharon C Hughes
Movant(s):
David A Panthen Represented By Sharon C Hughes Sharon C Hughes Sharon C Hughes Sharon C Hughes
Kandice M Deem Represented By Sharon C Hughes Sharon C Hughes
11:00 AM
Trustee(s):
Sharon C Hughes Sharon C Hughes Sharon C Hughes Sharon C Hughes Sharon C Hughes Sharon C Hughes Sharon C Hughes
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/27/16, 11/15/16, 2/28/17, 3/28/17; 7/25/17, 9/26/17, 11/28/17
Docket 100
- NONE LISTED -
Debtor(s):
Irma J Inda Represented By
R Grace Rodriguez
Joint Debtor(s):
Fernando Inda Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 92
- NONE LISTED -
Debtor(s):
Arthur Geoffrey Abeyesinhe Represented By
Molly L Froschauer Gregory M Shanfeld
Joint Debtor(s):
Debra Louise Abeyesinhe Represented By
Molly L Froschauer Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/24/17
Docket 110
- NONE LISTED -
Debtor(s):
Amir Sharifi Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 135
- NONE LISTED -
Debtor(s):
Peter Clayton Purcell Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 103
- NONE LISTED -
Debtor(s):
Jane Onssy Anis Shaw Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17
Docket 47
- NONE LISTED -
Debtor(s):
Henry Guzman Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17
Docket 40
- NONE LISTED -
Debtor(s):
Dewi A. Cashion Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/24/17
Docket 84
- NONE LISTED -
Debtor(s):
Humberto Delgadillo Garcia Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17
Docket 51
- NONE LISTED -
Debtor(s):
Ana Elsa Maza Represented By Eric A Jimenez
Joint Debtor(s):
Ricardo Salvador Maza Sr. Represented By Eric A Jimenez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17
Docket 88
- NONE LISTED -
Debtor(s):
Ronny Bess Represented By
Stella A Havkin
Joint Debtor(s):
Jeannie Renat Bess Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr.11/28/17
Docket 41
- NONE LISTED -
Debtor(s):
Gary Leslie Margolis Represented By Gregory M Shanfeld
Joint Debtor(s):
Yvette Alejandrino Margolis Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 34
- NONE LISTED -
Debtor(s):
Narkell Hobbs-James Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr.11/28/17
Docket 44
- NONE LISTED -
Debtor(s):
Hernan Alberto Orantes Represented By
Eric Bensamochan
Joint Debtor(s):
Maria Del Rocio Sanchez Represented By
Eric Bensamochan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17
Docket 36
- NONE LISTED -
Debtor(s):
Emma Corina Sosa Represented By Giovanni Orantes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17
Docket 42
- NONE LISTED -
Debtor(s):
Andre Fitzgerald Hayes Represented By Nicholas M Wajda
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17
Docket 31
- NONE LISTED -
Debtor(s):
Cesar Guzman Represented By Leonard Pena
Joint Debtor(s):
Martha Guzman Represented By Leonard Pena
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17
Docket 39
- NONE LISTED -
Debtor(s):
Pablo Arreola Represented By
Eric Bensamochan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/24/17, 11/29/17
Docket 30
Debtor(s):
Suresh V. Kumar Represented By Kevin T Simon
Joint Debtor(s):
Savitha Suresh Kumar Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 74
- NONE LISTED -
Debtor(s):
Gregory A Harris Represented By Brad Weil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 58
Service: Improper.
Property Address: 19000 Strathem St., Reseda, CA 91335 First trust deed: $ 410,836.23 (Wells Fargo)
Second position lien: $ 12,017.46 (German Moran) Third position lien: $ 6,611.19 (Capital One Bank) Fourth position lien: $ 5,785.07 (CACH, LLC)
Fifth position lien: $1,599.20 (Portfolio Recover Associates)
Sixth position lien (TO BE AVOIDED): $ 80,495.26 (Department of U.S. Treasury) Seventh position lien: $ 6,212.63 (CACH, LLC)
Eighth position lien: $ 51,493.76 (State of California) Ninth position lien: $ 20,208.36 (State of California) Fair market value per appraisal: $470,000
Opposition was untimely filed by the Internal Revenue Service ("IRS"). The IRS alleges that service was improper under Rules 7004(b)(4) and 9014. The IRS further challenges the valuation of $470,000, and points to the valuation of $655,000 on Zillow.com as of May 2017. The IRS requests additional time to obtain a formal valuation of the Property.
The IRS further argues that Debtor may only avoid a lien under § 506(d) where the
11:00 AM
underlying claim is invalid. In re Blendheim, 803 F.3d 477, 489 (9th Cir. 2015); see Dewsnup v. Timm, 502 U.S. 410 (1992). Because the Debtor has not objected to the claim under § 502, the claim is deemed allowed under § 502(a).
In order to avoid prejudice to the Debtor and allow a full reply to the IRS’s late-filed opposition, as well as to allow the IRS time to conduct an appraisal, this hearing will be continued to February 27, 2018 at 11:00 a.m.
NO APPEARANCE REQUIRED
Debtor(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber
Joint Debtor(s):
Violet Khachikyan Osmanian Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 60
Because this motion will be affected by the result of any appraisal conducted for calendar number 80, this hearing will be continued to February 27, 2018.
NO APPEARANCE REQUIRED
Debtor(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber
Joint Debtor(s):
Violet Khachikyan Osmanian Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 61
Because this motion will be affected by the result of any appraisal conducted for calendar number 80, this hearing will be continued to February 27, 2018.
NO APPEARANCE REQUIRED
Debtor(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber
Joint Debtor(s):
Violet Khachikyan Osmanian Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 49
$14,041.47. Debtors allege that they have requested that Ally Financial amend its proof of claim to reflect a balance of $14,041.47 as an unsecured claim. Ally Financial has not amended its claim, nor has it filed an opposition to this objection.
· Claim #3-1:
o Filed 5/5/17 (Secured)
o Description: 2015 DODGE 3500 VIN: 3C63RPAL1FG661231 Disposition: SUSTAINED. NO APPEARANCE REQUIRED
Debtor(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber
Joint Debtor(s):
Violet Khachikyan Osmanian Represented By
Richard Mark Garber
11:00 AM
Movant(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber Richard Mark Garber Richard Mark Garber Richard Mark Garber
Violet Khachikyan Osmanian Represented By
Richard Mark Garber Richard Mark Garber Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
# 17 by Claimant Toyota Lease Trust.
Docket 50
· Claim #17-1:
o Filed 8/1/17 (Secured)
o Description: 2015 LEXUS RC350, JTHHE5BC0F5009624 Disposition: SUSTAINED. NO APPEARANCE REQUIRED.
Debtor(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber
Joint Debtor(s):
Violet Khachikyan Osmanian Represented By
Richard Mark Garber
Movant(s):
Hovanes Antoine Osmanian Represented By
11:00 AM
Richard Mark Garber Richard Mark Garber Richard Mark Garber Richard Mark Garber
Violet Khachikyan Osmanian Represented By
Richard Mark Garber Richard Mark Garber Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 59
Debtor filed this motion to convert the case from chapter 13 to chapter 11 pursuant to § 1307(d) on November 30, 2017. No opposition has been filed.
The motion is GRANTED. NO APPEARANCE REQUIRED.
Debtor(s):
Nurit Petri Represented By
Matthew D Resnik Roksana D. Moradi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
#1 by Claimant U.S. Bank Trust, N.A
Docket 29
- NONE LISTED -
Debtor(s):
Makedon Makarian Represented By
Rabin J Pournazarian
Movant(s):
Makedon Makarian Represented By
Rabin J Pournazarian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 27
Debtors object to claim numbers 3 and 4 filed by Murphy Bank on the grounds that they do not attach any proof of personal liability on the part of these Dana and Elaine Lieberman ("Debtors"). The proofs of claim each attach a UCC Financing Statement evidencing a lien on equipment of Bent Up Cycles, Inc. ("BUC"). The proofs of claim do not include a note or other proof of Murphy Bank’s claim against Debtors.
According to Debtors’ schedules, BUC is 100% owned by one or both of the debtors with a nominal value of $1.
On January 3, 2018, Murphy Bank timely filed a response to the Objection to Claim, stating that it inadvertently did not attach a copy of the original promissory note to the claims, but attaches the promissory note to the response.
Claim #3-1:
o Filed: 8/31/17 $3,575.81 (Secured)
Description: UCC financing statement
Claim #4-1:
o Filed: 8/31/17 $148,509.94 (Secured)
Description: UCC financing statement
11:00 AM
A proof of claim is deemed allowed unless a party in interest objects under § 502(a) and constitutes "prima facie evidence of the validity and amount of the claim" pursuant to Bankruptcy Rule 3001(f). See also Fed. R. Bankr.P. 3007. The filing of an objection to a proof of claim "creates a dispute which is a contested matter" within the meaning of Bankruptcy Rule 9014 and must be resolved after notice and opportunity for hearing upon a motion for relief. See Adv. Comm. Notes to Fed. R. Bankr.P. 9014. Upon objection, the proof of claim provides "some evidence as to its validity and amount" and is "strong enough to carry over a mere formal objection without more." Wright v. Holm (In re Holm ), 931 F.2d 620, 623 (9th Cir.1991) (quoting 3 Collier on Bankruptcy § 502.02, at 502-22 (15th ed.1991)); see also Ashford v. Consolidated Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff'd, 91 F.3d 151, 1996 WL 393533 (9th Cir.1996). To
defeat the claim, the objector must come forward with 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." In re Holm, 931 F.2d at 623. "If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence." In re Consol. Pioneer, 178 B.R. at 226 (quoting In re Allegheny Int'l, Inc., 954 F.2d 167, 173-74 (3d Cir.1992)). The ultimate burden of persuasion remains at all times upon the claimant. See In re Holm, 931 F.2d at 623.
The promissory note contained in Murphy Bank’s response to the objection contains a provision that a guaranty had been executed by debtor Dana Lieberman. The promissory note also contains a cross-collateralization provision. Even if claim number 3 and 4 are not duplicative, it would appear that all debt owed to Murphy Bank by Dana Lieberman would be secured by either financing statement. Debtor has not filed any reply. If Debtors would like to pursue this objection after the production of the promissory note, an evidentiary hearing may be necessary.
Disposition: APPEARANCE REQUIRED
Debtor(s):
Dana Alexander Lieberman Represented By
Richard Mark Garber
11:00 AM
Joint Debtor(s):
Elaine Michelle Lieberman Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 28
See calendar #87 APPEARANCE REQUIRED
Debtor(s):
Dana Alexander Lieberman Represented By
Richard Mark Garber
Joint Debtor(s):
Elaine Michelle Lieberman Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 0
The Chapter 13 Trustee Objects to Debtor’s claim of exemption in 100% of an unknown value of Debtor’s 2016 tax refund.
Debtor’s response to Objection to Confirmation (Doc. No. 28) states that resolution of this issue is likely to require further amendment to the chapter 13 plan.
What is the status of the mortgage modification that Debtor was pursuing as of the November confirmation hearing?
APPEARANCE REQUIRED
Debtor(s):
Mary J Hilyard Represented By Dana M Douglas
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Period: 8/30/2017 to 10/30/2017, Fee: $1,398.00, Expenses: $.
Docket 21
This matter will be heard on February 27, 2018, along with the Motion to Withdraw as Counsel filed by M. Erik Clark.
NO APPEARANCE REQUIRED
Debtor(s):
Dilip Vasant Ghotikar Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 19
Debtor has claimed a $5,000 exemption in Sharon Skin Rejuvenation under C.C.P.
§ 704.120. On November 14, 2017, Chapter 13 trustee Elizabeth Rojas ("Trustee") filed and objection to the claimed exemption on the grounds that C.C.P. § 704.120 provides an exemption for contributions to the Unemployment Compensation Disability Fund and Debtor has provided no evidence that the funds qualify for exemption under the statute.
On November 22, 2017, Debtor filed a response, stating that the Trustee’s objection is moot as Debtor filed an amended schedule C on November 20. The amended schedule C claims a $0 exemption in the same property and under the same code section. Will the trustee be withdrawing this objection?
APPEARANCE REQUIRED
Debtor(s):
Sharon Azoulay Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 35
Debtor has claimed a $77,480 homestead exemption under C.C.P. § 704.730. On November 14, 2017, Trustee filed this objection to Debtor’s homestead exemption on the grounds that Debtor has not shown that he is entitled to a homestead exemption in excess of $75,000. According to Debtor’s schedule J, Debtor is single with no dependents.
No response has been filed.
OBJECTION SUSTAINED. Absent evidence of entitlement to a greater exemption, Debtor’s exemption is limited to $75,000. NO APPEARANCE REQUIRED.
Debtor(s):
Fary Talei Represented By
Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 68
Claimant failed to respond.
Claim #9-1:
o Filed: 11/29/17 $22,573.25 unsecured
Description: No description
Disposition: The objection is SUSTAINED. Claim number 9 by American Express Bank, FSB c/o Becket and Lee, LLP is disallowed in full. NO APPEARANCE REQUIRED
Debtor(s):
Richard Khatibi Represented By Kevin T Simon
Movant(s):
Richard Khatibi Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 19
An amended schedule C was filed on November 29, 2017. The objection is DENIED as moot.
NO APPEARANCE REQUIRED
Debtor(s):
Norman Everett Ross Jr. Represented By Barry E Borowitz
Joint Debtor(s):
Edna Henderson Ross Represented By Barry E Borowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 24
MOTION GRANTED. NO APPEARANCE REQUIRED.
Debtor(s):
Maria A Ramos Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 11
Petition Date: 12/1/17 Chapter: 7
Service: Proper on shortened time. Opposition may be made at hearing. Property: 3520 Ridgeford Dr., Westlake Village, CA 91361
Property Value: not listed on Debtor's blank schedules Amount Owed: $981,114.48
Equity Cushion: unk.
Equity: unk.
Delinquency: $981,114.48 (loan matured prepetition)
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfers of, and multiple bankruptcies affecting, the subject property.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)(4)); and 10 (relief binding & effective for 180 days against any debtor).
DENY relief requested in paragraph 11, as such injunctive relief requires an adversary proceeding under FRBP 7001.
APPEARANCE REQUIRED DUE TO SHORTENED TIME RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
MOVANT IS ORDERED TO SERVE A COPY OF THE ENTERED ORDER ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
11:00 AM
Debtor(s):
Melanya Adamian Pro Se
Movant(s):
AMF Holdings, LLC Represented By Abigail V O'Brient
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 69
APPEARANCE REQUIRED
Debtor(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
Movant(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 68
APPEARANCE REQUIRED
Debtor(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
Movant(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
fr. 8/30/10,12/1/10, 2/10/11, 4/27/11, 7/14/11, 9/1/11, 9/28/11, 11/9/11, 2/2/12, 4/12/12, 6/21/12, 8/30/12,
11/1/11,12/20/12, 2/7/13, 3/21/13,11/21/13, 12/5/13,
2/27/14, 10/23/14, 2/19/15; 9/10/15; 3/31/16, 11/10/16,
1/5/17, 2/9/17, 8/16/17
Docket 1
- NONE LISTED -
Debtor(s):
John Cooper Represented By
Michael D Kwasigroch
9:30 AM
fr. 7/3/14, 10/23/14, 1/22/15, 2/12/15, 4/2/15, 5/28/15; 7/30/15; 10/22/15; 3/31/16;
6/16/16, 10/6/16, 7/27/17
Docket 1
Having considered the post-confirmation status report and finding good
cause, this status conference is continued to August 1, 2018 at 9:30 a.m.
Debtor to give notice of continued status conference. APPEARANCES WAIVED ON 1/24/18
Debtor(s):
Freedom Films, LLC Represented By
M Jonathan Hayes
Movant(s):
Freedom Films, LLC Represented By
M Jonathan Hayes
9:30 AM
fr. 2/4/16; 6/16/16, 7/28/16, 9/29/16, 11/17/16, 1/12/17, 4/26/17, 7/26/17; 10/18/17
Docket 1
Debtor(s):
Ignacio Ramirez Represented By
Anthony Obehi Egbase
11:00 AM
Adv#: 1:17-01095 Nazaryan v. Bag Fund, LLC et al
Docket 1
- NONE LISTED -
Debtor(s):
Hermine Nazaryan Represented By Lloyd D Dix
Defendant(s):
Bag Fund, LLC Pro Se
Leo Fasen Pro Se
Vincent J Quigg Pro Se
Michael Waldren Pro Se
Plaintiff(s):
Hermine Nazaryan Represented By Lloyd D Dix
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Adv#: 1:16-01133 Kutasi et al v. Allen et al
from Discharge pursuant to 11 U.S.C. section 523(a)(2)(A) 523(a)(4) and 523(a)(6
fr. 12/7/16; 3/1/17, 3/22/17, 6/13/17
Docket 1
- NONE LISTED -
Debtor(s):
Joshua Ross Allen Represented By
Glenn Ward Calsada
Defendant(s):
Joshua Ross Allen Pro Se
Amy Jill Allen Pro Se
Joint Debtor(s):
Amy Jill Allen Represented By
Glenn Ward Calsada
Plaintiff(s):
John Kutasi Represented By
Jeffrey F Gersh
West Valley Collection Services, Represented By
Jeffrey F Gersh
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
11:00 AM
Adv#: 1:16-01134 Kutasi et al v. Allen
Docket 1
- NONE LISTED -
Debtor(s):
David B. Allen Represented By
Glenn Ward Calsada
Defendant(s):
David B. Allen Pro Se
Plaintiff(s):
John Kutasi Represented By
Jeffrey F Gersh
West Valley Collection Services, Represented By
Jeffrey F Gersh
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01004 Ballout v. Sarieddine
Docket 19
- NONE LISTED -
Debtor(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
Defendant(s):
Mike Sarieddine Represented By Daniel J King Daniel J King
Plaintiff(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Miguel A Aguilar Pro Se
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
Docket 28
NONE LISTED -
Debtor(s):
Mary F Kimball Represented By Leslie Richards
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:16-01119 Moussighi et al v. Talasazan
for NonDischargeability of Debt Pursuant to 11 U.S.C. Sec. 523 and 727.
11/5/16, 11/30/16; 3/29/17, 7/5/17
Docket 1
Debtor(s):
Yoram Talasazan Represented By Raymond H. Aver
Defendant(s):
Yoram Talasazan Pro Se
Plaintiff(s):
Moeir Moussighi Represented By Donna R Dishbak
Hanrit Moussighi Represented By Donna R Dishbak Donna R Dishbak
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:17-01012 David K. Gottlieb, solely in his capacity as chapt v. D'Arco et al
Docket 1
Debtor(s):
Thomas R D'Arco Represented By Chris Gautschi
Defendant(s):
Carol V D'Arco Pro Se
Does 1-100 Pro Se
Plaintiff(s):
David K. Gottlieb, solely in his Represented By Fahim Farivar
Trustee(s):
David Keith Gottlieb (TR) Represented By Ashley M McDow Michael T Delaney Fahim Farivar
9:45 AM
Docket 10
Debtor(s):
Michael Anthony Warren Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:45 AM
fr. 2/7/18
Docket 7
Debtor(s):
Michael Anthony Warren Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
fr. 11/29/17; 12/6/17
Docket 29
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
Movant(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
10:00 AM
Subject to bona fide dispute; and
Paying debts as come due fr. 12/6/17
Docket 1
Debtor(s):
Mainstream Advertising, a Pro Se
9:00 AM
Docket 7
NONE LISTED -
Debtor(s):
Michael Anthony Warren Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 8
NONE LISTED -
Debtor(s):
Pavel Kostruba Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Gloria Rodriguez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
fr. 1/17/13, 2/21/13, 5/30/13, 10/10/13, 3/27/14, 10/2/14, 4/23/15, 4/23/15; 12/3/15, 2/4/16, 4/7/16;
6/9/16, 8/4/16, 11/10/16; 1/26/17, 3/1/17; 3/22/17,
4/26/17, 6/14/17, 6/20/17; 7/6/17; 8/1/17; 8/16/17,
8/17/17, 9/13/17; 10/11/17, 12/14/17
Docket 210
What is the status of the APO with Chase?
APPEARANCE REQUIRED
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L James Lindsey L Smith
Movant(s):
JPMorgan Chase Bank, National Represented By
Christopher M McDermott
9:30 AM
2/21/13, 5/30/13, 10/10/13,
3/27/14, 10/2/14, 4/9/15; 4/23/15; 12/3/15
4/7/16, 4/7/16, 6/9/16, 8/4/16, 11/10/16; 1/26/17,
3/1/17; 3/22/17, 4/26/17, 6/14/17; 7/6/17; 8/1/17; 8/16/17,
8/17/17, 9/13/17; 10/11/17, 12/13/17
Docket 1
NONE LISTED -
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L Rodriguez
9:30 AM
Docket 162
This will be continued 4 weeks until March 7 at 9:30 based on the status report. Debtor should give notice.
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
fr. 1/8/15; 7/30/15, 10/15/15; 1/20/16; 3/31/16, 6/2/16, 7/28/16, 11/3/16, 7/28/17; 10/18/17; 12/6/17
Docket 1
This will be continued 4 weeks until March 7 at 9:30 based on the status report. Debtor should give notice.
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
Movant(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
fr. 8/13/15, 9/17/15, 12/10/15; 8/18/16, 9/29/16, 12/8/16; 3/16/17, 3/22/17, 7/26/17; 11/15/17
Docket 1
The request to continue this status conference is denied.
Debtor(s):
Oracle Transportation Solutions, Inc. Represented By
Steven R Fox
9:30 AM
fr. 9/8/16, 11/17/16; 1/19/17; 1/26/17, 3/22/17; 4/12/17 11/15/17
Docket 1
Based on the settlement, closing of sale and status report, this status conference will be continued to Februsry 7, 2018 at 9:30 am to allow the debtor to either formulate a plan and disclosure or move to disnmiss the case. Debtor should notice the continuance
Debtor(s):
Muntaser A. Ammari Represented By Mark S Horoupian Mark S Horoupian Mark S Horoupian Jason Balitzer Jason Balitzer Jason Balitzer
9:30 AM
fr. 11/171/6; 3/2/17, 3/8/17; 3/29/17, 4/26/17, 5/31/17, 7/26/17
Docket 1
Debtor(s):
Rade Raicevic Represented By Mark J Markus
9:30 AM
Docket 1
This is continued to March 28 at 9:30 am. Debtor to give notice of continued status conference.
APPEARANCE WAIVED on February 7, 2018.
Debtor(s):
Bang T Phan Represented By
John K Rounds
9:30 AM
fr. 10/18/17; 11/15/17; 12/6/17
Docket 1
Having considered the status report, for good cause appearing, the status conference is continued to March 1, 2018 at 9:30 a.m.
Debtor to give notice of continued status conference. APPEARANCE WAIVED on February 7, 2018.
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro
10:00 AM
Docket 139
Service: Proper
Property Address: 3708 Alomar Dr., Sherman Oaks, CA 91723 ("Property"). On June 12, 2012, Midland Funding, LLC recorded an abstract of judgment in Los Angeles County, attached to the motion as Exhibit 4.
Consensual 1st DoT: $1,057,466 Consensual 2nd DoT: $510,850 Donna Fuller: $ 1,111,200.40 Wells Fargo: $ 56,995.73
KFT Enterprises No. 2, LP: $163,026.83 Midland Funding, LLC: $4,839.19 Exemption claimed: $175,000
Total liens plus claimed exemption: $3,079,378.15 SUBTRACT FMV of property (per Debtor): <$1,700,000>
See In re Pike, 243 B.R. 66, 71 (B.A.P. 9th Cir. 1999). An appraisal was submitted in opposition to this motion by Donna Fuller et al ("Creditors"). The appraiser, John Dart, states that on or about March 11, 2013, more than a year pre-petition, he conducted an exterior-only inspection of the Property for Prospect Mortgage, LLC for purposes of a refinance transaction. Dart’s first appraisal valued the property at $2,718,000. Doc. 157 p.2. On January 22, 2018, Mr. Dart conducted a second appraisal of the Property and estimated that, as of the petition date, April 18, 2014, the Property’s value was
$2,600,000.
Creditors also argue that Debtor provides no evidence of entitlement to an enhanced homestead exemption of $175,000, and contends that Debtor is entitled to a homestead exemption of only $75,000 under Cal. Civ. Code 704.730(a)(1).
10:00 AM
Assuming that the creditor’s valuation and exemption amount are correct, the calculation under § 522(f) would be:
Consensual 1st DoT: $1,057,466 Consensual 2nd DoT: $510,850 Donna Fuller: $ 1,111,200.40 Wells Fargo: $ 56,995.73
KFT Enterprises No. 2, LP: $163,026.83
Exemption: $75,000
Total liens plus exemption: $3,405,375.75
SUBTRACT FMV of property (per creditor): <$2,600,000>
Regardless of which valuation or exemption is used, Midland Funding’s judicial lien impairs an exemption to which the Debtor is entitled.
The motion is therefore GRANTED.
Debtor(s):
Akop Gasparyan Represented By Vahe Khojayan
Movant(s):
Akop Gasparyan Represented By Vahe Khojayan Vahe Khojayan Vahe Khojayan
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
Ervin Cohen & Jessup LLP
10:00 AM
Docket 141
Service: Proper
Property Address: 3708 Alomar Dr., Sherman Oaks, CA 91723 ("Property"). On December 23, 2009, KFT Enterprises No. 2, LP ("KFT Enterprises") recorded an abstract of judgment in Los Angeles County, attached to the motion as Exhibit 4.
Following the avoidance of the junior judicial lien of Midland funding, LLC, lien avoidance under § 522(f) would be calculated as follows.
Consensual 1st DoT: $1,057,466 Consensual 2nd DoT: $510,850 Donna Fuller: $ 1,111,200.40 Wells Fargo: $ 56,995.73
Exemption claimed: $175,000
Total liens plus claimed exemption: $3,074,538.96 SUBTRACT FMV of property (per Debtor): <$1,700,000>
See In re Pike, 243 B.R. 66, 71 (B.A.P. 9th Cir. 1999). An appraisal was submitted in opposition to this motion by Donna Fuller et al ("Creditors"). The appraiser, John Dart, states that on or about March 11, 2013, more than a year pre-petition, he conducted an exterior-only inspection of the Property for Prospect Mortgage, LLC for purposes of a refinance transaction. Dart’s first appraisal valued the property at $2,718,000. Doc. 157 p.2. On January 22, 2018, Mr. Dart conducted a second appraisal of the Property and estimated that, as of the petition date, April 18, 2014, the Property’s value was
$2,600,000.
Creditors also argue that Debtor provides no evidence of entitlement to an enhanced homestead exemption of $175,000, and contends that Debtor is
10:00 AM
entitled to a homestead exemption of only $75,000 under Cal. Civ. Code 704.730(a)(1).
Assuming that the Creditors’ valuation and exemption amount are correct, the calculation under § 522(f) would be:
Consensual 1st DoT: $1,057,466 Consensual 2nd DoT: $510,850 Donna Fuller: $ 1,111,200.40 Wells Fargo: $ 56,995.73
Exemption: $75,000
Total liens plus claimed exemption: $2,974,538.96 SUBTRACT FMV of property (per creditor): <$2,600,000>
It appears that all parties agree that, regardless of which valuation or exemption is used, KFT Enterprises’ judicial lien impairs an exemption to which the Debtor is entitled.
The motion is GRANTED.
Debtor(s):
Akop Gasparyan Represented By Vahe Khojayan
Movant(s):
Akop Gasparyan Represented By Vahe Khojayan Vahe Khojayan Vahe Khojayan
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
Ervin Cohen & Jessup LLP
10:00 AM
Docket 140
Service: Proper
Property Address: 3708 Alomar Dr., Sherman Oaks, CA 91723 ("Property"). On October 19, 2009, Wells Fargo Bank recorded an abstract of judgment in Los Angeles County, attached to the motion as Exhibit 4.
Following the avoidance of the junior judicial liens of Midland funding, LLC, and KFT Enterprises, lien avoidance under § 522(f) would be calculated as follows.
Consensual 1st DoT: $1,057,466 Consensual 2nd DoT: $510,850 Donna Fuller: $ 1,111,200.40
Exemption claimed: $175,000
Total liens plus claimed exemption: $2,911,512 SUBTRACT FMV of property (per Debtor): <$1,700,000>
See In re Pike, 243 B.R. 66, 71 (B.A.P. 9th Cir. 1999). An appraisal was submitted in opposition to this motion by Donna Fuller et al ("Creditors"). The appraiser, John Dart, states that on or about March 11, 2013, more than a year pre-petition, he conducted an exterior-only inspection of the Property for Prospect Mortgage, LLC for purposes of a refinance transaction. Dart’s first appraisal valued the property at $2,718,000. Doc. 157 p.2. On January 22, 2018, Mr. Dart conducted a second appraisal of the Property and estimated that, as of the petition date, April 18, 2014, the Property’s value was
$2,600,000.
Creditors also argue that Debtor provides no evidence of entitlement to an enhanced homestead exemption of $175,000, and contends that Debtor is entitled to a homestead exemption of only $75,000 under Cal. Civ. Code
10:00 AM
704.730(a)(1).
Assuming that the Creditors’ valuation and exemption amount are correct, the calculation under § 522(f) would be:
Consensual 1st DoT: $1,057,466 Consensual 2nd DoT: $510,850 Donna Fuller: $ 1,111,200.40
Exemption: $75,000
Total liens plus claimed exemption: $2,811,512.13 SUBTRACT FMV of property (per creditor): <$2,600,000>
It appears that all parties agree that, regardless of which valuation or exemption is used, Wells Fargo Bank’s judicial lien impairs an exemption to which the Debtor is entitled.
The motion is GRANTED.
Debtor(s):
Akop Gasparyan Represented By Vahe Khojayan
Movant(s):
Akop Gasparyan Represented By Vahe Khojayan Vahe Khojayan Vahe Khojayan
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
Ervin Cohen & Jessup LLP
10:00 AM
April Wyman & Kathleen McTeague
Docket 142
Service: Proper
Property Address: 3708 Alomar Dr., Sherman Oaks, CA 91723 (the "Alomar Property"). On April 3, 2008, judgement creditors Donna Fuller, Lucy Kapetanich, Valerie Kerr, Lisa McGrath, April Wyman, and Kathleen McTeague (collectively, "Creditors") recorded an abstract of judgment in Los Angeles County, attached to the motion as Exhibit 4. A chapter 7 voluntary petition was filed in this case was filed on April 18, 2014. On June 24, 2014, Creditors entered into a stipulation with the chapter 7 trustee providing for payment of proceeds from the sale of the Alomar Property and the Verdugo Property, which would otherwise be payable to the Creditors, would be paid to 1) the trustee, 2) the trustee’s attorneys, and 3) the bankruptcy estate.
Creditors timely filed a secured proof of claim for $1,111,200.40 on July 30, 2014 (Claim 7-1). On September 18, 2014, Debtor entered into an agreement with the chapter 7 trustee to abandon the Alomar Property and debtor’s liquor license in exchange for paying $65,000 into the estate.
Debtor argues that, upon discovering that assets would be administered to unsecured creditors, Creditors subsequently amended their proof of claim on June 26, 2017 asserting an unsecured claim.
As a threshold matter, the Court will address Debtor’s judicial estoppel argument. Debtor argues that the Court should apply judicial estoppel to bar Creditors from asserting a security interest in the Alomar Property. Effectively, Debtor asks the Court to apply an equitable doctrine to strip a lien lawfully attached to property under California state law—otherwise, that by entering into the carve-out Agreement, Creditors "essentially waived their secured interest" in the Alomar Property.
In their response, Creditors state that they amended their claim to unsecured after being told to do so by the attorney for the chapter 7 trustee, Ori Blumenfeld. Mr.
10:00 AM
Blumenfeld, via email, stated that Creditors do "not have a security interest in any of the funds recovered, as they came from litigation recoveries or settlements." A declaration to that effect and a copy of the email are attached to Debtor’s response.
Judicial estoppel is a "flexible equitable doctrine" which, among other applications, "estops a party from gaining an advantage by taking one position and then seeking another advantage from an inconsistent position." In re An-Tze Cheng, 308 B.R.
448, 452 (B.A.P. 9th Cir. 2004), aff'd and remanded sub nom. In re Cheng, 160 F. App'x 644 (9th Cir. 2005). Furthermore, "[j]udicial estoppel should be reserved for compelling situations." Id. at 456. Midland Funding and Wells Fargo both filed unsecured claims and will receive estate funds according to the Trustee’s Final Report despite similarly holding a judicial lien against the Alomar Property. There is no appearance of any wrongdoing on the part of the Creditors. Creditors effectively agreed for purposes of this bankruptcy to be treated as unsecured creditors in order to collect what they could from the sale of the properties. Even if such conduct was inequitable, Debtor has provided no authority for the Court’s authority to strip a lien under the theory of judicial estoppel. Nor is the Debtor correct in stating that Creditors "waived" their lien in signing the carve-out agreement. Judicial estoppel is not applicable.
Following the avoidance of the junior judicial liens of Midland funding, LLC, KFT Enterprises, and Wells Fargo, lien avoidance under § 522(f) would be calculated as follows.
Consensual 1st DoT: $1,057,466 Consensual 2nd DoT: $510,850
Exemption claimed: $175,000
Total liens plus claimed exemption: $2,854,516.40 SUBTRACT FMV of property (per Debtor): <$1,700,000>
See In re Pike, 243 B.R. 66, 71 (B.A.P. 9th Cir. 1999). An appraisal was submitted in opposition to this motion by Creditors. The appraiser, John Dart, states that on or about March 11, 2013, more than a year pre-petition, he conducted an exterior-only inspection of the Property for Prospect Mortgage, LLC for purposes of a refinance transaction. Dart’s first appraisal valued the property at $2,718,000. Doc. 157 p.2.
On January 22, 2018, Mr. Dart conducted a second appraisal of the Property and estimated that, as of the petition date, April 18, 2014, the Property’s value was
$2,600,000. However, Mr. Dart also states that the appraisal is based upon the
10:00 AM
"extraordinary assumption" that certain damage, including currently existing water damage, occurred subsequent to April 18, 2014. While Mr. Dart had no evidence of when the damage occurred, large repair estimates "could have a significant impact on this appraisal." In their response, Creditors argue that the higher, $2,718,000 valuation from the exterior-only inspection should be used for purposes of this 522(f) motion.
Creditors also argue that Debtor provides no evidence of entitlement to an enhanced homestead exemption of $175,000, and contend that Debtor is entitled to a homestead exemption of only $75,000 under Cal. Civ. Code 704.730(a)(1). A party in interest may challenge the validity of a claimed exemption for the first time on a lien avoidance motion, even where the deadline for objection under 522(I) has run. In re Morgan, 149 B.R. 147, 151-52 (B.A.P. 9th Cir. 1993).
Assuming that the Creditors’ appraisal valuation and exemption amount are correct, the calculation under § 522(f) would be:
Consensual 1st DoT: $1,057,466 Consensual 2nd DoT: $510,850
Exemption: $75,000
Total liens plus claimed exemption: $2,754,516.40 SUBTRACT FMV of property (per creditor): <$2,600,000>
Debtor has not submitted a reply. It appears that there are two remaining issues: 1) the amount of the homestead exemption and 2) the value of the property. Debtor must provide evidence of his entitlement to an enhanced homestead exemption. It seems likely that, even accepting Creditor’s exemption amount and appraiser’s valuation upon a full inspection, a portion of Creditor’s lien may be avoided under
§ 522(f). It appears that an evidentiary hearing will be necessary. The parties should appear prepared to discuss possible dates and deadlines.
APPEARANCE REQUIRED
Debtor(s):
Akop Gasparyan Represented By Vahe Khojayan
10:00 AM
Movant(s):
Akop Gasparyan Represented By Vahe Khojayan Vahe Khojayan Vahe Khojayan
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
Ervin Cohen & Jessup LLP
10:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
THE BANK OF NEW YORK MELLON
fr. 12/13/17, 1/17/18
Docket 54
At the hearing on 1/17, counsel for Movant appeared and informed the Court that they were close to reaching an adequate protection agreement. Nothin new has been filed. What is the status of this motion?
APPEARANCE REQURED
Debtor(s):
Karapet Dermendjian Represented By Aris Artounians
Joint Debtor(s):
Anait Dermendjian Represented By Aris Artounians
Movant(s):
The Bank of New York Mellon f/k/a Represented By
Mark D Estle
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
LOGIX FEDERAL CREDIT UNION
Docket 154
NONE LISTED -
Debtor(s):
Darren Bond Represented By
Kevin T Simon
Movant(s):
Logix Federal Credit Union Represented By Kristi M Wells Erica T Loftis Jonathan J Damen Brett P Ryan Jason C Kolbe
Erin M McCartney
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 52
Petition Date: 12/19/2014 Chapter: 13
Service: Proper. No opposition filed.
Property: 6519 Kelvin Avenue Winnetka, CA 91306 Property Value: $450,000 (per debtor’s schedules) Amount Owed: $480,319.67 (per RFS motion) Equity Cushion: N/A
Equity: $0.00.
Post-Petition Delinquency: $12,671.82 (6 payments of $2,111.97)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Henry Guzman Represented By Ali R Nader
Movant(s):
Wells Fargo Bank, National Represented By Keith Labell Sean C Ferry
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY fr. 7/5/17, 9/6/17; 10/18/17, 11/29/17, 1/3/18
Docket 39
What is the status of Debtor’s payments under the amended plan? APPEARANCE REQUIRED
1/3/18 Tentative
At the previous hearing on November 29, 2017, the parties indicated that Debtor was going to make up a $400 shortage on the amended plan. Nothing new has been filed. What is the status of this motion?
11/29/17 Tentative
This hearing was continued from 10/18/17. On 11/14/17, the Court entered an order granting Debtor’s MOMOD. Under the modified plan, two payments were suspended, the new monthly payment of $912 began in Oct. 2017, with the distribution to unsecured creditors remaining at 100%. Nothing further filed with respect to this motion. What is the status of this motion?
APPEARANCE REQUIRED.
10/18/17 Tentative
Hearing continued from 09/06. Debtor has filed motion to modify/suspend plan payment on 10/07. No response from the bank. What is the status of this motion?
APEARANCE REQUIRED.
9/6/17 Tentative
Hearing was continued from July 5, 2017 for Movant to workout accounting issues.
11:00 AM
Nothing new filed. What is the status of this motion?
7/5/17 Tentative
Petition Date: 11/25/2016
Chapter: 13 (plan confirmed on 03/09/2017) Service: Proper. No opposition filed
Property: 11060 Vanda Way, Sun Valley, CA 91352 Property Value: $ 660,000 (per Debtor’s schedule) Amount Owed: $ 36,729.27
Equity Cushion: 86.4% Equity: $570,470.73
Post-Petition Delinquency: $4,404.62 ( 3 payments of $578.76; $1,637.34 in conventional loan fees; and $1,031 in attorney’s fees and costs)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activates); and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
James Joseph Hullihan Represented By Charles O Agege
Movant(s):
Deutsche Bank National Trust Represented By Nichole Glowin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 28
Petition Date: 06/30/2017 Chapter: 13
Service: Proper. Opposition filed.
Property: 8050 Lindley Avenue Reseda, CA 91335 Property Value: $495,221.00 (per debtor’s schedules) Amount Owed: $438,087.73 (per RFS motion) Equity Cushion: 3.5%
Equity: $17,515.59
Post-Petition Delinquency: $8,720.43 (3 payments of $2,857.95; 1 payment of
$2,857.95; less suspense account or partial paid balance $2,711.37)
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2). Specifically, movant requests relief in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor filed an opposition on the grounds 10 (debtor will be prejudiced if the Nonbankruptcy Action is allowed to continue the nonbankrupty forum; and 11 (Other; Debtor's attorney will work with creditor to enter into an Adequate Protection Agreement which will resolve the delinquent amount.) Debtor’s opposition seems to state that postpetition payments are in fact current.
APPEARANCE REQUIRED
Debtor(s):
Mark Conrad Castillo Ochoco Represented By Raymond J Bulaon
11:00 AM
Joint Debtor(s):
Sheena Jane V Ochoco Represented By Raymond J Bulaon
Movant(s):
PennyMac Loan Services, LLC Represented By Theron S Covey Robert P Zahradka
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 42
Petition Date: 09/20/2017 Chapter: 13
Service: Proper. No opposition filed.
Property: 9038 Orion Ave North Hills, CA 91343 Property Value: $200,000 (per debtor’s schedules) Amount Owed: $155,307.85 (per RFS motion) Equity Cushion: 14.3%
Equity: $ 28,692.15
Post-Petition Delinquency: $3,523.87 (1 Payment of $1,170.78; 1 Payment of
$1,151.82; 1 Payment of $1,201.27)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Fary Talei Represented By
Daniel King
Movant(s):
Citibank, N.A. Represented By Robert P Zahradka
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
11:00 AM
KERN COUNTY TREASURER AND TAX COLLECTOR
fr.11/8/17
Docket 12
Debtor submits a supplemental response in support of his opposition to the Motion. Debtor asks the Court to direct movant to comply with the Court’s order imposing the automatic stay, dated November 8, 2017 (Docket No. 59). The Order imposing the stay allowed the movant to make preparations for a tax sale of three real properties dated March 26, 2018. The Order contained the following provision:
"If by March 23, 2018, the Debtor has complied with all payments under his plan and complied with all bankruptcy court orders, then the Kern County Treasurer/Tax Collector shall remove the Properties from the tax sale and the stay will continue until further order or operation of law. Should the Debtor not be in compliance with all bankruptcy court orders or current on payments, the Kern County Treasurer/Tax Collector is granted relief to sell the properties in the March 26, 2018, tax sale."
Debtor’s plan came before this Court for confirmation on January 23, 2018 and was confirmed by the court with certain interlineations. Debtor represents that he is current on plan payments, with the next plan payment due February 21, 2018. The order confirming the plan has not yet been entered, though a proposed order was docketed on February 1, 2018 (Docket No. 80).
What is Kern County’s position?
APPEARANCE REQUIRED
Debtor(s):
Richard Khatibi Represented By Kevin T Simon
11:00 AM
Movant(s):
Kern County Treasurer and Tax Represented By Nicole M Misner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELLON
Docket 25
Petition Date: 10/20/2017 Chapter: 7
Service: Proper. No opposition filed.
Property: 7624 Atherton Lane West Hills, CA 91304 Property Value: $1,100,000.00 (per debtor’s schedules) Amount Owed: $1,891,199.21 (per RFS motion) Equity Cushion: N/A
Equity: $
Post-Petition Delinquency:
Disposition: DENY under 11 U.S.C. 362(d)(1) and (d)(2) as MOOT. Debtor has received a discharge in this case, and therefore the automatic stay is no longer in effect. 11 U.S.C. §362(c)(2)(C).
DENY under 11 U.S.C. 362(d)(4). The pattern of filings indicated by movant are not sufficient to establish a scheme to hinder, delay, or defraud creditors.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Boris Blum Represented By
Andrew S Mansfield
Joint Debtor(s):
Stella Kogan Represented By
Andrew S Mansfield
11:00 AM
Movant(s):
The Bank of New York Mellon Represented By Allan P Bareng
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
U.S. BANK NATIONAL ASSOCIATION fr. 12/13/17; 1/10/18
Docket 16
12/13/17 Tentative Petition Date: 11/02/2017 Chapter: 13
Service: Proper. Opposition filed.
Property: 12600 San Fernando Road #126, Los Angeles, CA 91342 Property Value: $457,000.00 (per debtor’s schedules)
Amount Owed: $445,451.97 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: N/A
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfers of, and multiple bankruptcies affecting the subject property.
Movant requests relief under 11 U.S.C. 362(d)(1) and specific relief in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (Co-debtor stay annulled); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under 362(d)(4)).
Debtor opposes the motion and argues that he is current on post-petition mortgage payments and the movant is adequately protected. Debtor is going to keep making mortgage payments and to work on an APO with movant.
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Arturo Romero Represented By Kevin Tang
Movant(s):
U.S. Bank National Association, as Represented By
Kelsey X Luu
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
TOYOTA MOTOR CREDIT CORPORATION
Docket 7
Petition Date: 11/16/2017 Chapter: 7
Service: Proper. No opposition filed. Property: Vehicle 2013 Toyota Tacoma
Property Value: $8,000 (per debtor’s schedules) Amount Owed: $ 8,226.73
Equity Cushion: N/A Equity: $0.00.
Delinquency Amount: $1,918.86
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001 (a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Nicholas Carcamo Pro Se
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
TOYOTA MOTOR CREDIT CORPORATION
Docket 12
Petition Date: 12/06/2017 Chapter: 7
Service: Proper. No opposition filed. Property: Vehicle 2008 Toyota Prius Property Value: $ 6,200 (per Motion) Amount Owed: $ 5,514.41
Equity Cushion: 3% (after 8% cost of sale) Equity: $189.59
Delinquency Amount: $568.92
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001 (a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Alexander Panov Represented By
James Geoffrey Beirne
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
Docket 13
Petition Date: 12/15/2017 Chapter: 7
Service: Proper. No opposition filed.
Property: 8157 White Oak Avenue Los Angeles, CA 91335 Property Value: $620,000 (per debtor’s schedules) Amount Owed: $809,458.16 (per RFS motion)
Equity Cushion: N/A Equity: $0.00.
Delinquency Amount: $407,753.78 (103 months)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); 12 (Debtor is borrower under Cal. Civ. Code 2920.5(c)(2)(C)).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Rosa Elia Jimenez Represented By Derik N Lewis
Movant(s):
Deutsche Bank National Trust Represented By Darlene C Vigil
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 7
Petition Date: 12/28/2017 Chapter: 7
Service: Proper. No opposition filed.
Property: Vehicle 2005 Chevrolet Colorado; VIN: 1GCDT136058240124 Property Value: $4,500 (per debtor’s schedules)
Amount Owed: $ 10,046.83 Equity Cushion: N/A Equity: $0.00.
Delinquency Amount: $620.68
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 6 and (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Mike Anthony Ruiz Represented By Navid Kohan
Joint Debtor(s):
Jacqueline Michelle Ruiz Represented By Navid Kohan
Movant(s):
CIG Financial, LLC Represented By Stephanie A Newport
11:00 AM
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Adv#: 1:13-01231 People of the State Of California, ex rel et al v. Amidon
fr. 12/18/13, 1/15/14, 1/29/14, 12/3/14; 10/14/15, 3/15/17;1018/17
Docket 1
Having reviewed the status reports and for good cause appearing, this status conference is continued to June 20, 2018. Debtor to give notice of continued status conference.
APPEARANCES WAIVED on February 7, 2018.
Defendant(s):
Robert B Amidon Represented By Michael Goch
Robert B Amidon Represented By Michael Goch
Movant(s):
People of the State Of California, ex Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange and Mid Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
11:00 AM
Fire Insurance Exchange Represented By Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Mid Century Insurance Company Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Plaintiff(s):
Mid Century Insurance Company Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Mid Century Insurance Company Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange Represented By Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange Represented By Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange and Mid Represented By
11:00 AM
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
People of the State Of California, ex Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
People of the State Of California, ex Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange and Mid Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Trustee(s):
Diane Weil (TR) Pro Se
Diane Weil (TR) Pro Se
US Trustee(s):
United States Trustee (SV) Pro Se
United States Trustee (SV) Pro Se
11:00 AM
Adv#: 1:16-01139 Olsen v. Wojdak
11 USC 523(a)(2)(a) and (a)(6); Fraud; Conversion; Violation of Penal Code 496; Unfair, Unlawful or Fraudulent Business Practice of Act; Financial Elder Abuse and Aiding and Abetting
fr. 12/7/16; 1/25/17, 4/5/17, 7/26/17; 10/18/17
Docket 1
Debtor(s):
Paul Vincent Wojdak Pro Se
Defendant(s):
Paul Vincent Wojdak Pro Se
Plaintiff(s):
Peggy Olsen Represented By
Ronald P. Slates Jesse Yanco
11:00 AM
Adv#: 1:16-01141 Parker et al v. WOJDAK
fr. 12/7/16; 10/18/17
Docket 1
Debtor(s):
Paul Vincent Wojdak Pro Se
Defendant(s):
PAUL VINCENT WOJDAK Pro Se
Plaintiff(s):
Donald Parker Represented By Leslie R Horowitz
Donald C Parker Separate Property Pro Se
11:00 AM
Adv#: 1:17-01099 Dachev et al v. DiMaggio
Docket 1
NONE LISTED -
Debtor(s):
Robin DiMaggio Represented By Moises S Bardavid
Defendant(s):
Robin DiMaggio Pro Se
Plaintiff(s):
Krasimir Dachev Represented By Matthew A Lesnick
Peace for You Peace for Me Represented By Matthew A Lesnick
Svilosa AD Represented By
Matthew A Lesnick
Trustee(s):
David Seror (TR) Pro Se
1:00 PM
Adv#: 1:16-01133 Kutasi et al v. Allen et al
Docket 22
In or about April 2014, Plaintiffs John Kutasi ("Kutasi") as owner and president of West Valley Collections Services, Inc. ("WVCS") (collectively, "Plaintiffs") and Josh Allen and his brother, David Allen (individually as "Josh" and "David," collectively as "Defendants") agreed to join their businesses.
Prior to the agreement, Josh and David state that they had been in the merchant services business for more than 17 years. The business was to operate under a newly formed entity, Open Payment Systems, LLC, a Nevada limited liability company ("OPS").
On or about May 22, 2014, Agoura and West Valley entered into an Operating Agreement for OPS (the "OPS Agreement"). The OPS Agreement reflects that the members of OPS are Agoura Partners, LLC ("Agoura") and WVCS and that Kutasi, Josh and David would be the managers of OPS. Complaint, Ex. 1. Josh and David are the sole members and managers of Agoura. The parties dispute the facts about the circumstances regarding the funding provided for in the OPS Agreement.
Plaintiffs contend that Defendants signed a promissory note for a portion of the capitalization of OPS, evincing their intent to pay the note personally (the "OPS Note"). Complaint, Ex. 2. Josh and David allege that they agreed to transfer 33% of the membership interest of OPS to Kutasi and WVCS in exchange for $300,000. Decl. of David Allen ISO Opposition (the "David Decl."), ¶5; Decl. of Joshua Allen ISO Opposition (the "Josh Decl."), ¶
5. On or about May 23, 2014, Josh and David allege that the parties verbally agreed that $100,000 of the consideration of the shares would instead be in the form of a loan, memorialized by the OPS Note, which would be repaid from David and Josh’s share of the OPS profits. David Decl., ¶ 6; Josh Decl.,
¶ 6; see also Opp. of David Allen to MSJ (the "David Opposition"), 6:16-17. The other $200,000 payment was reflected in the OPS Agreement. David
1:00 PM
Decl., ¶ 7, Ex. Ex. A, p. 21; Josh Decl., ¶ 7.
Kutasi disputes Defendants’ allegation that Kutasi and WVCS agreed that the repayment of the OPS Note was contingent upon OPS's performance and to be paid from OPS's income. The parties engaged in litigation in the California Superior Court, commenced on or about September 2015 (the "State Court Litigation"). During the State Court Litigation, David and Josh returned to Plaintiffs verified responses to Requests for Admission, within which the Defendants explained that they had no intention of personally repaying the OPS Note. Decl. of Jeffrey Gersh ISO MSJ, Ex. 3-6.
On January 11, 2016 Josh filed a voluntary chapter 7 bankruptcy petition with this Court, assigned case number 1:16-bk-10062-MT. On that same date, David filed a chapter 13 bankruptcy petition with this Court, assigned case number 1:16-bk-10068-MT. On September 16, 2016, Plaintiffs filed complaints against Josh and David under various subsections of § 523
to determine dischargeability.
Plaintiffs moved for summary judgment on the § 523(a)(2)(A) claims against Josh and David. Plaintiffs rest their case, in part, on the admissions of David and Joshua, under oath, in the State Court Litigation Requests for Admission and at their 2004 Examinations. Plaintiffs argue that the evidence presented shows that David and Joshua admitted that when they executed the OPS Note, they had no intention of paying it personally. David and Joshua, for their part, contend that they orally agreed with Kutasi to pay the OPS Note from their share of the OPS profits, rather than be personally liable for the note.
Standard
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FRCP 56(c) (incorporated by FRBP 7056).
The moving party has the burden of establishing the absence of a
1:00 PM
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir.1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). The inference drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 886 F.2d 1135, 1137 (9th Cir.1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir.1981).
Analysis
A. 11 U.S.C. §523(a)(2)(A)
To prevail under this section the plaintiff must demonstrate that:
the debtor made a false representation;
at the time the debtor knew the representation was false;
the debtor made the representation deliberately and intentionally with the intention and purpose of deceiving the creditor;
the creditor justifiably relied on the representation; and
the creditor sustained loss and damage as a proximate result of the representation having been made.
11 U.S.C. §523(a)(2).
Consistent with effectuating the underlying purposes of the Bankruptcy Code, exceptions to discharge under § 523 are to be narrowly construed. See Snoke v. Riso (In re Riso), 978 F.2d 1151, 1154 (9th Cir.1992). A creditor bears the burden of proof to establish each of the five elements by a preponderance of the evidence. Turtle Rock Meadows Homeowners Ass'n v. Slyman (In re Slyman), 234 F.3d 1081, 1085 (9th Cir.2000).
1:00 PM
Knowingly False and Intent to Deceive
Plaintiffs contend that Defendants’ answers in the RFAs and the 2004 Transcripts establish that the Defendants defrauded Plaintiffs by promising to repay the OPS Note without any intent to repay it. RAF 1-49.
As explained above, Josh and David maintain that the OPS Note of
$100,000 would be repaid from David and Josh’s share of the OPS profits. David Decl., ¶ 6; Josh Decl., ¶ 6; see also David Opposition, 6:16-17. Kutasi disputes Defendants’ allegation that Kutasi and WVCS agreed that the repayment of the loan was contingent upon OPS's performance and be paid from OPS's income. Kutasi argues that it is not plausible that he would agree to be repaid from the profits of OPS, questioning why Plaintiffs would agree to use their own funds to repay a portion of the funds owed.
Here, Plaintiffs misinterpret Defendants’ position. Josh and David do not allege that the OPS Note was to be repaid from the gross profits of OPS. Instead, Josh and David contend that they intended to pay the OPS Note from their share of the OPS profits. David Decl., ¶ 6; Josh Decl., ¶ 6. The terms of the OPS Agreement itself lend credence to Defendants’ belief. The OPS Agreement provided for WVCS to pay its capital contribution loan from the profits of OPS. Article 3.1 states in relevant part:
Notwithstanding anything to the contrary herein, West Valley Collection Services, Inc., shall be entitled to fund Fifty Percent (50%) of its Capital Contribution by way of a loan to the Company […] and shall be repaid after the maturity date only from the profits of the Company (if any) pursuant to a payment schedule unanimously agreed upon in writing between the Members […].
Complaint, Ex. 1, ¶ 3.1.
It is plausible that, given the above-quoted provision in the OPS Agreement, Defendants believed that they would be afforded the same chance to repay the OPS Note from their share of the OPS profits. Indeed, Defendants contend that such provision was bargained for with Kutasi.
1:00 PM
Plaintiffs stretch the Defendants’ admissions that they "personally had no intention of paying the Promissory Note" into a broad statement that Josh and David never intended to pay the loan. That is not Defendants’ positon, and there is sufficient information in the record to make each party’s explanation plausible. Here, where different ultimate inferences may be drawn from the parties’ differing characterization of the facts, summary judgment is inappropriate. Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir.1981).
Justifiable Reliance
The standard for fraud under § 523(a)(2)(A) requires that the standard from tort law be applied to the element of justifiable reliance; that "justification is a matter of the qualities of the particular plaintiff." Field v. Mans, 516 U.S. 59, 70, 71 (1995). Thus, for fraud under §523(a)(2)(A), we inhabit the particular mindset and circumstances of the plaintiff in question to determine whether or not a plaintiff is willfully blind to the potential for fraud presented to them. Heritage Pac. Fin., LLC v. Trejo (In re Trejo), 2011 Bankr. LEXIS 4292, 14 (Bankr. N.D. Cal. Nov. 2, 2011).
Plaintiffs’ reliance on Josh and David’s alleged representation that they would personally repay the OPS Note, on summary judgment, is shaky. In response to Plaintiffs’ questions at his 2004 Examination, David explained that neither he nor Josh guaranteed the OPS Note. Decl. of Jeffrey Gersh ISO MSJ, Ex. 8, 4:10-15. Then, David goes onto explain that Kutasi guaranteed the OPS Note because "he had the banking relationship and the finances to be approved for it." Id. By David’s explanation, he and Josh were not sufficiently creditworthy to be guarantors on the Loan. Thus, there are questions of material fact as to whether Kutasi was justified in his reliance on Defendants’ alleged promise to repay the Loan personally, rather than from what would be a more reliable stream of money - the Allen’s portion of the OPS profits. Here, Plaintiff has not met his burden on summary judgment.
There is questions of material fact about whether Kutasi was justified in relying on Defendants’ alleged promise to repay the OPS Note personally.
Parol Evidence
1:00 PM
In California, the parol evidence rule provides for certain exceptions,
including establishing fraud. Cal.Civ.Proc.Code § 1856(g). Here, Plaintiffs are not seeking to enforce or void the written agreement; instead, they are seeking a judgment of nondischargeability and damages for fraud.
Defendants' cite the California Supreme Court's recent decision in Riverisland Cold Storage, Inc. v. Fresno–Madera Production Credit Assoc., 55 Cal.4th 1169 (Cal. 2013) to support their position that this circumstance falls under an exception to the parol evidence rule. While dropping a short assertion in a footnote that the OPS Note is ambiguous on its face, Defendants also contend that they believe that Plaintiffs fraudulently induced them to sign the OPS Note by agreeing verbally that the OPS Note would be paid from Josh and David’s share of the OPS profits. David Decl., ¶ 21, Ex. C, p. 2; Josh Decl., ¶ 21, Ex. C, p. 2; see also David Opposition, 8:27-9:3.
In Riverisland, the California Supreme Court reaffirmed the statutory exception to the parol evidence rule that allows a party to present extrinsic evidence to show that a written agreement was procured by fraud, even if the alleged misrepresentations were inconsistent with the subsequent language contained in the written agreement. Id. at 1174–1183; see also Cal. Code Civ. Proc., § 1856(g). In so doing, the California Supreme Court overruled Bank of America Assn. v. Pendergrass, 4 Cal.2d 258 (Cal. 1935), which held that alleged misrepresentations to induce a party's assent to the contract are inadmissible if the alleged misrepresentations are inconsistent with the provisions of the written contract. The Riverisland court reasoned that Pendergrass was not supported by the plain language of Code of Civil Procedure § 1856 and Pendergrass "failed to account for the fundamental principle that fraud undermines the essential validity of the parties' agreement." Riverisland, 55 Cal. 4th at 1182. The Riverisland court stated: "When fraud is proven, it cannot be maintained that the parties freely entered into an agreement reflecting a meeting of the minds." Id.
Plaintiffs argue that Riverisland is inapplicable here because Defendants did not alleged fraud in their respective Answers to the dischargeability complaints or argued in this forum that Plaintiffs engaged in any promissory fraud. This is not an accurate statement of Defendants’ position. In the context of a dischargeability action, Defendants were not
1:00 PM
required to plead in their respective answers their allegations of fraud against Kutasi as they are not seeking damages and such facts would be no defense to a nondischargeability action.
Further, as for Josh, he did not have standing to bring such claims. Legal claims and causes of action held by a debtor that existed at the time the debtor's bankruptcy case was filed become property of the estate. See 11 U.S.C.§ 541(a). See also City & County of San Francisco v. PG & E Corp., 433 F.3d 1115, 1126 (9th Cir.2006); Sierra Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705, 708 (9th Cir.1986). Josh’s rights of action to collect damages for such alleged fraud were prepetition assets and, thus, property of his bankruptcy estate. A review of Josh’s bankruptcy docket shows that, at the time his answer was filed, this property of the estate has not been abandoned, and only the chapter 7 trustee had the right and ability to sue for recovery. See In re Spirtos v. One San Bernardino Cnty. Superior Ct., 443 F.3d 1172, 1175 (9th Cir.2006) (citing Parker v. Wendy's Int'l, Inc., 365 F.3d 1268, 1272 (11th Cir.2004) ("[A] trustee, as the representative of the bankruptcy estate, is the proper party in interest, and is the only party with standing to prosecute causes of action belonging to the estate.")).
For the reasons explained above, the Court finds that Defendants are not barred by the parol evidence rule from introducing evidence at trial to support their theory of the case, e.g., that the repayment terms of the OPS Note agreed to by the parties were that it would be repaid from Josh and David’s portion of the OPS profits.
Plaintiff's Motion for Partial Summary Judgment under 11 U.S.C.
§ 523(a)(2)(A) is DENIED.
Debtor(s):
Joshua Ross Allen Represented By
Glenn Ward Calsada
Defendant(s):
Joshua Ross Allen Pro Se
Amy Jill Allen Pro Se
1:00 PM
Joint Debtor(s):
Amy Jill Allen Represented By
Glenn Ward Calsada
Plaintiff(s):
John Kutasi Represented By
Jeffrey F Gersh
West Valley Collection Services, Represented By
Jeffrey F Gersh
Trustee(s):
David Seror (TR) Pro Se
1:00 PM
Adv#: 1:16-01134 Kutasi et al v. Allen
Docket 39
See tentative ruling for cal. no. 27
Debtor(s):
David B. Allen Represented By
Glenn Ward Calsada
Defendant(s):
David B. Allen Represented By
Glenn Ward Calsada Jeffrey F Gersh
Movant(s):
West Valley Collection Services, Represented By
Jeffrey F Gersh Glenn Ward Calsada
Plaintiff(s):
John Kutasi Represented By
Jeffrey F Gersh Glenn Ward Calsada
West Valley Collection Services, Represented By
Jeffrey F Gersh Glenn Ward Calsada
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
fr.11/10/16; 1/26/17; 2/1/17; 3/9/17, 7/12/17, 10/18/17; 11/29/17
Docket 150
The following is the ruling for all 4 claims on calendar:
On January 11, 2016, Osher and Osher, Inc. ("Debtor") filed this voluntary chapter 11 case. On August 17, 2016, proofs of claim were filed by four persons (the "Claimants") represented by the same law firm, Fischbach & Fischbach. Each of the Claimants was already listed in Debtor’s amended schedule E/F with the basis of their claim stated as "loan." None of the proofs of claim at issue included a description of the basis of the claim or any supporting documentation.
Lakewood Parkway, LLC ("Lakewood") filed an unsecured proof of claim in the amount of $145,000 (claim 6-1). Debtor’s schedules state the amount of Lakewood’s claim as $140,000.
Jasmin Boodaie filed an unsecured claim for $9,000 (claim 7-1), which was later amended on October 8, 2017 to a claim for $2,000 (claim 7-2). Debtor’s schedules state the amount of Jasmin Boodaie’s claim as $18,000.
Audrey Max filed an unsecured claim for $13,500 (claim 8-1). Audrey Max later stated in it the declaration submitted by attorney Jimmy C. Taus that the correct amount of the claim is in fact $15,000. Doc. No. 293. Debtor’s schedules state the amount of $2,000 owed to Audrey Max Group.
Rak Tov submitted an unsecured claim for $475,000 (claim 9-1). Debtor’s schedules
1:00 PM
state the amount of $16,000 owed to Rak Tov Investments, LLC.
On October 11, 2016, Debtor filed objections to the claims of the Claimants. The objections to claims are largely identical. Each objection argues that the claim should be disallowed due to failure to comply with Fed. R. Bankr. Proc. 3001. Rule 3001(c) states that a claim based upon a writing to file a copy of that writing with the proof of claim. Debtor states that it attempted to obtain information to substantiate Claimants’ claims by mailing them requests for information. Debtor argues that, without any substantiating information to verify the validity of Claimants’ claims, they should be disallowed in their entirety.
On May 19, 2017, Debtor filed motions to compel responses to Debtor’s requests for production of documents relating to Claimants’ claims against Debtor. On July 12, 2017, a hearing was held on the objections to Claimants claims. Debtor had suspicions that the claims at issue were not being prosecuted by the named creditors, but were being prosecuted by Yoossef Boodaie, the former principal of Debtor and the father of Jasmin Boodaie, one of the Claimants here. The motions to compel included a request for signature samples so that Debtor could determine whether relevant documents were in fact signed by Claimants.
The Court granted Debtor’s motions to compel, Doc Nos. 280-283, and entered a scheduling order stating that a supplemental response would be due by August 23, 2017 and a supplemental objection and reply was due by September 13. Doc. No. 277. Claimants filed their supplemental responses on August 23, 2017. On September 15, 2017, parties entered into a stipulation to extend Debtor’s time to file a supplemental objection and reply and continue the hearing on the claims objections. The stipulation detailed the progress made by the parties in the discovery process and stated that additional time was required in order to take depositions of the individuals who have provided declarations in support of the Claimants’ oppositions before Debtor could complete any supplemental objection and reply. The court approved the stipulation and the hearing on the claims objection was continued to November 29, 2017.
On November 17, 2017, the parties entered into a stipulation to extend the deadline to file supplemental objection and reply papers and continue claim objection hearings and status conference. The stipulation asserted that the Debtor was informed that
1:00 PM
the principals of two of the Claimants, Hedayat Golcheh and Herman Mendel, would not appear for their depositions. Mr. Mendel is apparently ill, though no reason was provided for Mr. Golcheh’s failure to appear. The deposition of Mr. Darvish was taken, and the deposition of Jasmin Boodaie has been alleviated due to her filing an amended proof of claim. Debtor states that it has been attempting to reschedule deposition dates for Mr.
Mendel and Mr. Golcheh. The stipulation further provided that the hearing on the objections to claim would be continued to February 7, 2018 with the time for Debtor to file a supplemental objection and reply extended to January 24, 2018.
As of January 31, no replies or supplemental objections have been filed. The time for Debtors to file a reply has once again expired. This has taken a ridiculously long time to resolve a fairly straightforward issue. It is time to rule based on the proofs presented.
Standard
A proof of claim is deemed allowed, unless a party of interest objects. 11 U.S.C. § 502(a). A proof of claim filed and executed in accordance with the rules shall constitute prima facie evidence of the validity and amount of the claim. Fed. R. Bankr. P 3001-3007; LBR 3007-1.
It is not a sufficient objection to rely solely on an alleged lack of prima facie validity of the proof of claim and its documentation. In re Heath, 331 B.R. 424, 435, 437-38 (B.A.P. 9th Cir. 2005). Section 502 deems a claim allowed and directs that the bankruptcy court "shall" allow claims with limited exceptions (i.e. debtor was wrongly charged for goods or services, specific interest charges or fees were miscalculated or wrongly imposed). See, e.g., id., 331 B.R. at 437-38. "If there is no substantive objection to the claim, the creditor should not be required to provide any further documentation of it." Id. at 436, citing In re Shank, 315 B.R. 799, 813 (Bankr. N.D. Ga. 2004). However, "creditors have an obligation to respond to formal or informal requests for information. That request could even come in the form of a claims objection." In re Heath, 331 B.R. at 436. Any objection that raises a legal or factual ground to disallow the claim will likely prevail over a proof of claim lacking prima facie validity. In re Campbell, 336 B.R. 430 (B.A.P. 9th Cir. 2005).
Statements in a debtor’s bankruptcy schedules can constitute admissions under
1:00 PM
Fed.R.Evid. 801(d)(2). In re Heath, 331 B.R. at 431; In re Lasky, 364 B.R. 385, 390 (Bankr. C.D. Cal. 2007). Objections to claim "should not be inconsistent with sworn schedules that concede all or some portion of the debt." In re Heath, 331 B.R. at 437 n.6. Debtor retains the ability to amend its schedules, and, given that ability, the BAP has declined to answer the question of whether a debtor’s admission in their bankruptcy schedules can be binding in an objection to claim context. In re Campbell, 336 B.R. 430, 436 (B.A.P. 9th Cir. 2005). The Campbell court, however, provided some guidance to courts:
[W]hen a debtor objects to a creditor's proof of claim that does not conform with Rule 3001(c) by including copies of the documentation on which it is based, the bankruptcy court should resolve the issues by reference to the usual burdens of proof associated with claims litigation. In doing so, the bankruptcy court may properly consider as admissions or evidence any information contained in debtor's bankruptcy schedules, and may also consider the creditor's failure to provide relevant documentation.
Id. The Campbell Court ultimately disallowed the claims on the grounds that Debtor’s objection relied solely on the alleged lack of prima facie validity of the proofs of claim, which is not a sufficient objection recognized by § 502(b). Id.
Discussion
The law of this circuit is clear that a bankruptcy court may not disallow a claim entirely based merely upon lack of prima facie validity. In re Heath, 331 B.R. at 434-35 (discussing and rejecting the minority approach that claims lacking prima facie validity can be disallowed on that basis alone). Debtor cites Hutson v. Coffman, 100 F.2d 640 (9th Cir. 1938), for the proposition that a claimant’s failure to provide even a minimal amount of support for a proof of claim justifies the disallowance of the claim, which directly contradicts recent controlling precedent.
The business dealings which form the basis for each of the four claims are undeniably opaque, but the Debtor’s schedules admit that Claimants are creditors. Debtor and Creditors have been embroiled in litigation over these claims for over a year and a half, which has mostly been comprised of discovery disputes, and yet Debtor has failed to raise
1:00 PM
any legally cognizable grounds for the disallowance of Claimants’ claims. Furthermore, Debtor failed to timely file any reply or supplemental objection to the claims, or to submit any pleading informing the court of its progress and requesting a continuance. For the foregoing reasons, the claims will be allowed as follows.
Lakewood Parkway:
$140,000 Allowed based on the submission of a check from Lakewood Parkway, LLC to Osher and Osher Inc.
Rak Tov:
Claimant Rak Tov’s supplemental response attaches as proof of its $475,000 loan four cashier’s checks.
$16,000 from Rak Tov Investments, LLC to Osher and Osher, Inc.
$23,500 from Republic Metal to Osher and Osher, Inc.
Republic Metal is an unknown entity and no explanation has been provided
$273,000 from Republic Metal to Osher and Osher, Inc.
$123,000 paid from "Replace Cashier’s Check 1120414846" to Kol Tov Enterprises, Inc.
"Kol Tov Enterprises, Inc." is an unknown entity and no explanation provided.
No testimony of Herman Mendel has been submitted in order to verify the amount of the claim. Only one of the provided cashier’s checks was from Rak Tov to Debtor, and the amount is only $16,000.
Based on the submissions of the creditor, the amount allowed in $16,000.
Audrey Max, Inc.:
1:00 PM
Claimant Audrey Max’s supplemental response attaches two cashier’s checks in support of its claim. There are three images, but one of the checks is clearly a duplicate. The supplemental opposition argues that the original attorney failed to attach all three checks, but it is apparent that this attorney is also mistaken.
$8,000 from Audrey Max Group, Inc. to Yoossef Boodaie.
$3,500 from Audrey Max Group, Inc. to Mensch Enterprises, Inc. (check no. xxx2951)
A duplicate of check no. xxx2951, above.
The claim is disallowed because nothing links this to the debtor
Jasmin Boodaie:
This claim was amended to $2,000 on 10/8/17. This is supported by the debtor’s schedules and the check. For $9,000 from Jasmin Boodaie to Osher and Osher, Inc.
Claim allowed for $2,000
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
Movant(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
1:00 PM
fr. 11/10/16; 1/26/17; 2/1/17; 3/29/17, 5/24/17, 6/14/17, 7/12/17, 10/18/17; 11/29/17
Docket 152
see ruling under calendar #29
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
1:00 PM
fr. 11/10/16; 1/26/17; 2/1/17; 3/29/17, 5/24/17, 6/14/17, 7/12/17, 10/18/17; 11/29/17
Docket 148
see ruling under calendar #29
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
1:00 PM
fr. 11/10/16; 1/26/17; 2/1/17; 3/29/17, 5/24/17, 6/14/17, 7/12/17, 10/18/17; 11/29/17
Docket 146
see ruling under calendar #29
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
Movant(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
1:00 PM
fr. 11/3/16, 11/10/16; 1/26/17; 2/1/17; 3/29/17, 5/24/17, 6/14/17, 7/12/17, 10/18/17; 11/29/17
Docket 1
This case needs to be wrapped up soon.
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
10:00 AM
Adv#: 1:15-01103 Joudeh v. Truppa, Jr et al
105 And Inherent Authority Of Court
fr. 10/18/17, 12/11/17
Docket 113
Debtor(s):
Ronald David Truppa Jr Represented By John W Sullivan
Defendant(s):
Ronald David Truppa Jr Represented By John W Sullivan
Santa Catalina Film Festival, a Represented By John W Sullivan
David Seror, not individually but Pro Se
Plaintiff(s):
Tifanie Joudeh Represented By Yoon O Ham Michael R Lewis
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
(B) Danny Bibi; and (C) Sheila Mishkan
Docket 0
- NONE LISTED -
Debtor(s):
Mainstream Advertising, a Represented By Michael Jay Berger
9:30 AM
fr. 8/30/10,12/1/10, 2/10/11, 4/27/11, 7/14/11, 9/1/11, 9/28/11, 11/9/11, 2/2/12, 4/12/12, 6/21/12, 8/30/12,
11/1/11,12/20/12, 2/7/13, 3/21/13,11/21/13, 12/5/13,
2/27/14, 10/23/14, 2/19/15; 9/10/15; 3/31/16, 11/10/16,
1/5/17, 2/9/17, 8/16/17, 1/24/18
Docket 1
- NONE LISTED -
Debtor(s):
John Cooper Represented By
Michael D Kwasigroch
9:30 AM
fr. 1/15/15; 3/5/15, 3/26/15, 5/7/15, 8/13/15, 10/15/15, 11/19/15; 2/11/16; 3/3/16; 5/12/16,
5/19/16, 11/10/16, 2/9/17, 3/8/17, 6/21/17,
7/12/17, 11/8/17
Docket 1
Having considered Debtor’s post-confirmation status report, the Court finds cause to continue this post-confirmation status conference to May 2, 2018 at 9:30 a.m.
Debtor to give notice of continued status conference. NO APPEARANCE REQUIRED ON 2/14/18
Debtor(s):
Martha J. Castro Represented By Anthony Egbase
Movant(s):
Martha J. Castro Represented By Anthony Egbase
9:30 AM
fr. 2/4/16; 6/16/16, 7/28/16, 9/29/16, 11/17/16, 1/12/17, 4/26/17, 7/26/17; 10/18/17, 1/24/18
Docket 1
Having considered Debtor’s post-confirmation status report, the Court finds cause to continue this post-confirmation status conference to May 2, 2018 at 9:30 a.m.
Debtor to give notice of continued status conference. NO APPEARANCE REQUIRED ON 2/14/18
Debtor(s):
Ignacio Ramirez Represented By
Anthony Obehi Egbase
9:30 AM
fr. 9/1/16, 2/9/17, 3/22/17, 4/26/17, 7/5/17, 8/16/17; 9/27/17, 11/29/17
Docket 1
Based on the status report and the fact that tax returns were filed and agreements
reached with creditors, this will be continued to a date when an amended D/S can be filed and heard. This matter is continued to April 25, 2018 at 9:30 am.
NO Appearance required on Feb. 14
Debtor(s):
Samuel James Esworthy Represented By
M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes
9:30 AM
Docket 1
When does debtor expect to have a reply from Bayview on loan mod app? Appearance required.
Debtor(s):
Ferdinand Holgado Represented By Dana M Douglas
9:30 AM
Docket 17
Appearance required unless UST withdraws motion.
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
9:30 AM
Docket 140
To be granted if the settlement check has cleared.
Debtor(s):
Ludo Gust Mensch Represented By Michael Jay Berger
Joint Debtor(s):
Lorraine Patricia Mensch Represented By Michael Jay Berger
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
9:30 AM
fr. 11/19/15, 5/5/16, 7/28/16, 12/7/16; 2/8/17, 4/26/17, 7/12/17; 10/18/17, 1/17/18
Docket 1
- NONE LISTED -
Debtor(s):
Ludo Gust Mensch Represented By Michael Jay Berger
Joint Debtor(s):
Lorraine Patricia Mensch Represented By Michael Jay Berger
11:00 AM
Docket 41
Parties stipulated to continue this hearing from January 10, 2018 to continue to discuss terms of an APO. What is the status of this motion?
APPEARANCE REQUIRED
Debtor(s):
Joe Momdjian Represented By Roland H Kedikian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 37
Petition Date: 10/02/2015 Chapter: 13
Service: Proper. No opposition filed. Property: Vehicle 2008 BMW 528i Sedan
Property Value: $12,000 (per debtor’s schedules) Amount Owed: $21,496.54
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency Amount: $14,248.08
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 5 (co-debtor stay of
U.S.C. 1201(a) or 1301(a) is terminated, modified, or annulled as to the co-debtor, on the same terms and conditions as to the debtor)
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Mario E Ortiz Represented By
Yeznik O Kazandjian
Joint Debtor(s):
Maria E Ortiz Represented By
Yeznik O Kazandjian
Movant(s):
Foreman Financial, Inc. Represented By
11:00 AM
Trustee(s):
Jonathan David Leventhal
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
AMERICAN BEAUTY VILLAGE OWNERS ASSOCIATION
fr. 12/13/17, 1/17/18
Docket 54
- NONE LISTED -
Debtor(s):
Heliodoro Navarro Represented By Daniel F Jimenez
Movant(s):
American Beauty Village Owners Represented By
Neil B Katz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
U.S. BANK NA
Docket 29
- NONE LISTED -
Debtor(s):
Felipe Rosas Represented By
Mark M Sharf
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 78
- NONE LISTED -
Debtor(s):
Allen Charles Mixon III Represented By Stella A Havkin
Joint Debtor(s):
Gladys Stennis Mixon Represented By Stella A Havkin
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
MERCEDES-BENZ FINANCIAL SERVICES USA LLC
Docket 38
- NONE LISTED -
Debtor(s):
John A, Gillett Represented By Julie J Villalobos
Joint Debtor(s):
Pearlene Gillett Represented By Julie J Villalobos
Movant(s):
Mercedes-Benz Financial Services Represented By
Ed J Gezel Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 50
Petition Date: 06/23/17 Chapter: 7
Service: Proper. Opposition filed 01/31/18.
Movant: Corinth Films, Inc.
Relief Sought to: Pursue Pending Litigation _X
Pursue Insurance
Commence Litigation
Other
Litigation Information
Case Name: Corinth Films, Inc. v. Inception Media Group, LLC Court/Agency: Supreme Court of The State of New York
Date Filed: October 19, 2015
Judgment Entered: February 22, 2017 Trial Start Date:
Action Description: Breach of contact / enforcement of judgement against nominal defendant
Grounds
Bad Faith Claim is Insured
Nondischargeable
Claim Against 3rd Parties _X_
Mandatory Abstention X Other:
Non-BK Claims Best Resolved in Non-BK Forum _X_
Movant seeks relief under 11 U.S.C. 362(d)(1). Movant seeks specific relief in paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate); and 5 (waiver of the 4001(a)(3) stay).
Movant seeks to continue litigation in New York against Wells Fargo for allegedly mishandling a levy against Debtor’s bank account. Movant obtained a judgment
11:00 AM
against Debtor in the amount of $72,975 on December 2, 2016. Movant avers that it is a secured creditor on the basis of obtaining a restraining notice from the Supreme Court of New York, County of New York and serving it upon Wells Fargo. The restraining notice, obtained pursuant to N.Y. C.P.L.R. 5222, serves as an injunction prohibiting the transfer of the judgment debtor’s property. Arias v. Gutman, Mintz, Baker & Sonnenfeldt LLP, 875 F.3d 128, 132 (2d Cir. 2017). In response to Movant’s restraining notice, Wells Fargo responded that it was holding "$57,832.02
$55,379.02" of Debtor’s funds, which Movant takes to mean a total of $113,211.04. In response to an order to show cause Wells Fargo later indicated that it made a mistake, and that there was in fact $0 in the account. Movant argues that the Court should abstain from hearing the dispute between Movant and Wells Fargo under 28 U.S.C. 1334(c).
Diane Weil, chapter 7 trustee for this case ("Trustee") filed a response. There is clear precedent that a restraining notice obtained under N.Y. C.P.L.R. 5222 does not create a lien. In re Adomah, 340 B.R. 453, 458 (Bankr. S.D.N.Y. 2006), order aff'd, appeal dismissed, 368 B.R. 134 (S.D.N.Y. 2007) ([i]t is emphasized that this case only deals with a restraining notice, which does not operate as a lien or encumbrance on property"); 4A N.Y. Practice § 58:18 (4th ed.) (A restraining notice "establishes neither a lien against the debt or property to which it is directed or priority over any other judgment creditor or lienor, who may subsequently pursue that same debt or property," but "simply enjoins the debtor or third party from transferring the debt or property to which the restraint attaches.").
Nevertheless, Movant’s secured status is not the issue. Movant seeks to pursue a claim against a third party in which the estate does not appear to have any interest.
MOTION GRANTED. APPEARANCE REQUIRED
Debtor(s):
Inception Media Group, LLC Represented By Ian Landsberg
Movant(s):
Corinth Films, Inc. Represented By Daren M Schlecter
11:00 AM
Trustee(s):
Diane C Weil (TR) Represented By Sonia Singh John N Tedford
11:00 AM
THE BANK OF NEW YORK MELLON
Docket 22
Petition Date: 07/10/2017 Chapter: 13
Service: Proper. No opposition filed.
Property: 7252 Capps Avenue, Reseda CA, 91335 Property Value: $465,870 (per debtor's schedules) Amount Owed: $293,542.94 (per RFS motion) Equity Cushion: 29% (assuming 8% cost of sale) Equity: $21,751.94
Post-Petition Delinquency: $5,084.94
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (co-debtor stay is terminated, modified, or annulled as to the co-debtor, on same terms and conditions as to Debtor); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Sergio Estuardo Camey Represented By Donald E Iwuchuku
Movant(s):
The Bank of New York Mellon fka Represented By
Erin M McCartney
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 1/17/18
Docket 35
Petition Date: 8/31/17 Chapter: 13
Service: Proper. No opposition filed.
Property: 18823 Erwin St., Tarzana, CA 91355 Property Value: $800,000 (per debtor’s schedules) Amount Owed: $436,400
Equity Cushion: 37% Equity: $278,44500
Post-Petition Delinquency: $4,884.81 (three pre-confirmation payments of $2,328.27, less suspense account balance of $2,100)
Disposition: GRANT under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay)..
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Igor Gary Deck Represented By Joshua L Sternberg
Movant(s):
U.S. Bank Trust, N.A., as Trustee Represented By
Christina J O
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANKOF NEW YORK MELLON F/K/A THE BANK OF NEW YORK
Docket 20
Petition Date: 10/09/2017 Chapter: 13
Service: Proper. No opposition filed.
Property: 26540 Sheldon Avenue, Area of Santa Clarita, CA 91351 Property Value: $150,000 (per debtor's schedules)
Amount Owed: $635,874.31 (per RFS motion) Equity Cushion: N/A
Equity: $0.00.
Post-Petition Delinquency: $6,022.70
Movant details five prior transfers of fractional interests in the property and six bankruptcy filings by other individuals over the course of the past year. This pattern sufficiently demonstrates a scheme to hinder, delay, or defraud creditors.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)(4) (bad faith and secured creditors)); 10 (relief binding & effective for 180 days against any debtor); 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5)
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Norman Fathi Represented By
11:00 AM
Trustee(s):
Dana M Douglas
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 23
Petition Date: 11/21/2017 Chapter: 13
Service: Proper. No opposition filed.
Property: 5012 Ludgate Drive Calabasas, CA 91301 Property Value: $785,000.000 (per debtor’s schedules) Amount Owed: $ (per RFS motion)
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency:
Movant details a transfer of an interest in the property to Ann Vigneron on March 2, 2017. Subsequently, Debtor filed three bankruptcies, including this case. Ms.
Vigneron also filed a chapter 7 bankruptcy on November 20, 2017, in which she failed to list the subject property on her schedule A. These facts indicate a scheme to hinder, delay, or defraud creditors. This case was dismissed with a 180-day bar after debtor failed to appear at an order to show cause on December 21, 2017.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 3 (Movant permitted to engage in loss mitigation activities); 4 (Confirming that there is and was no stay in effect due to two cases pending in the previous year); 7 (waiver of the 4001(a)(3) stay); 8 (designated law enforcement officer may evict any occupant, upon recording of the order in compliance with applicable non-bankruptcy law); 9 ((relief under 362(d)(4) (bad faith)); 10 (relief binding & effective for 180 days against any debtor); 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5)
DENY relief under paragraphs 2 (proceed under non-bankruptcy law) as moot; 5 (the stay is annulled retroactive to bankruptcy petition date) because no stay was in effect; 6 (Co-debtor stay is waived) because there is no co-debtor stay in effect; 11 (order binding & effective against any debtor) per Fed. R. Bankr. P. 7001(7).
11:00 AM
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Debra Ann Tiesi Represented By Corey Phuse
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Merdaud Jafarnia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
TOYOTA MOTOR CREDIT CORPORATION
Docket 10
Petition Date: 12/06/2017 Chapter: 7
Service: Proper. No opposition filed. Property: Vehicle 2009 Toyota Prius
Property Value: $5,000 (per debtor’s schedules) Amount Owed: $7,267.03
Equity Cushion: N/A Equity: $0.00.
Delinquency Amount: $851.96
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001 (a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Alexander Panov Represented By
James Geoffrey Beirne
Movant(s):
TOYOTA MOTOR CREDIT Represented By Mark D Estle
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 11
On January 29, 2018, Debtor filed this chapter 13 case. Debtor has two previous bankruptcy cases that were dismissed a short time ago. The first dismissed case, 1:17-bk-12312-MT, was a chapter 13 filed on August 31, 2017 and dismissed on September 6, 2017 for failure to file schedules. The second dismissed case, 1:18-bk- 10017-VK, was a chapter 13 filed on January 3, 2018 and dismissed on January 22, 2018 for failure to file a chapter 13 plan. No relief from stay motion was filed in either previous case.
Debtor now moves for an order continuing the automatic stay as to creditor Carrington Mortgage Services LLC, holder of a claim secured against Debtor’s property located at 22051 Sagebrook Dr., Chatsworth, CA 91311. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous cases. Debtor contends the previous cases were dismissed due to the mistakes of Debtor’s lawyer and previous lawyer in failing to file necessary documents. Because two or more cases of the Debtor were pending within the previous year but were dismissed, no stay went into effect upon the filing of this case. § 362(d)(4)(A)(i). This case is furthermore presumptively not filed in good faith under, but the presumption can be rebutted by clear and convincing evidence to the contrary. § 362(d)(4)(D).
Debtor claims that the presumption of bad faith is overcome as to all creditors because Debtor has obtained new work since the filing of the first case and the dismissals of the first two cases were due to the negligence of the attorneys.
Debtor’s schedules indicate significant income and Debtor intends to pay creditors 100% on their claims in this chapter 13. No opposition was filed.
MOTION GRANTED. APPEARANCE REQUIRED.
11:00 AM
Debtor(s):
Jose Luis Gonzalez Represented By
R Grace Rodriguez
Movant(s):
Jose Luis Gonzalez Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 1/24/17
Docket 10
- NONE LISTED -
Debtor(s):
Miguel A Aguilar Pro Se
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Adv#: 1:17-01095 Nazaryan v. Bag Fund, LLC et al
fr. 1/24/18
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Hermine Nazaryan Represented By Lloyd D Dix
Defendant(s):
Bag Fund, LLC Pro Se
Leo Fasen Pro Se
Vincent J Quigg Pro Se
Michael Waldren Pro Se
Plaintiff(s):
Hermine Nazaryan Represented By Lloyd D Dix
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Adv#: 1:17-01013 David K. Gottlieb, solely in his capacity as chapt v. Jerald Abes aka Jerry
Docket 1
Debtor(s):
Thomas R D'Arco Represented By Chris Gautschi
Defendant(s):
Does 1-100 Pro Se
Jerald Abes aka Jerry Abes, an Pro Se
Plaintiff(s):
David K. Gottlieb, solely in his Represented By Fahim Farivar
Trustee(s):
David Keith Gottlieb (TR) Represented By Ashley M McDow Michael T Delaney Fahim Farivar
11:00 AM
Adv#: 1:16-01133 Kutasi et al v. Allen et al
from Discharge pursuant to 11 U.S.C. section 523(a)(2)(A) 523(a)(4) and 523(a)(6
fr. 12/7/16; 3/1/17, 3/22/17, 6/13/17, 1/24/18
Docket 1
This matter is continued to March 7, 2018 at 11:00 a.m.
NO APPEARANCE REQUIRED on February 14.
Debtor(s):
Joshua Ross Allen Represented By
Glenn Ward Calsada
Defendant(s):
Joshua Ross Allen Pro Se
Amy Jill Allen Pro Se
Joint Debtor(s):
Amy Jill Allen Represented By
Glenn Ward Calsada
Plaintiff(s):
John Kutasi Represented By
Jeffrey F Gersh
West Valley Collection Services, Represented By
Jeffrey F Gersh
11:00 AM
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Adv#: 1:16-01134 Kutasi et al v. Allen
fr. 12/7/16; 3/1/17, 3/22/17, 6/13/17, 1/24/18
Docket 1
This matter is continued to March 7, 2018 at 11:00 a.m.
NO APPEARANCE REQUIRED on February 14.
Debtor(s):
David B. Allen Represented By
Glenn Ward Calsada
Defendant(s):
David B. Allen Pro Se
Plaintiff(s):
West Valley Collection Services, Represented By
Jeffrey F Gersh
John Kutasi Represented By
Jeffrey F Gersh
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01004 Ballout v. Sarieddine
Docket 19
Parties should come prepared to discuss the following deadlines: Exchange of exhibit lists:
Plaintiff to file and serve witness declaration(s):
Defendant to file and serve witness declaration(s):
Parties to file and serve objections to witness declarations and exhibits:
Parties to file and serve Notice of Cross-Examination of Witness:
Hard copies of exhibit books exchanged (if not already done):
Parties to file and serve trial briefs:
TRIAL TO BE HELD ON:
PLAINTIFF TO LODGE SCHEDULING ORDER WITHIN 7 DAYS.
Debtor(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
11:00 AM
Defendant(s):
Mike Sarieddine Represented By Daniel J King Daniel J King
Plaintiff(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:16-01119 Moussighi et al v. Talasazan
for NonDischargeability of Debt Pursuant to 11 U.S.C. Sec. 523 and 727.
11/5/16, 11/30/16; 3/29/17, 7/5/17, 1/31/18
Docket 1
APPEARANCE REQUIRED
Defendant states that he is planning a motion for summary judgment and possible discovery motions. The parties should be ready to discuss deadlines for both events, and a pretrial conference following that.
Debtor(s):
Yoram Talasazan Represented By Raymond H. Aver
Defendant(s):
Yoram Talasazan Pro Se
Plaintiff(s):
Moeir Moussighi Represented By Donna R Dishbak
Hanrit Moussighi Represented By Donna R Dishbak Donna R Dishbak
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
#1 by Claimant U.S. Bank Trust, N.A fr. 1/23/18
Docket 29
- NONE LISTED -
Debtor(s):
Makedon Makarian Represented By
Rabin J Pournazarian
Movant(s):
Makedon Makarian Represented By
Rabin J Pournazarian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 2057
No opposition was filed. To be APPROVED subject to overbid at hearing.
APPEARANCE REQUIRED
Debtor(s):
Owner Management Service, LLC Pro Se
Movant(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
Trustee(s):
David Seror (TR) Represented By Richard Burstein
11:00 AM
Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Docket 18
The United States Trustee ("Trustee") asks the Court to find that this chapter 7 was filed in bad faith for purposes of forestalling an unlawful detainer action and dismiss Christopher Traendly’s ("Debtor") case with a 180 day bar to refiling. This is the third bankruptcy case within a year which has stayed the unlawful detainer action, the first two filed by another individual living at the property.
Trustee’s motion details two prior filings affecting the property. On September 14, 2017, the day before trial in the unlawful detainer action, Jean Pauline Hogan filed a skeletal chapter 7 case, 1:17-bk-12466-VK. Clear Investment, LLC ("Clear Investment") was granted relief from stay to pursue the unlawful detainer action. The case was dismissed on October 2, 2017 for failure to file schedules. On October 16, 2017, Ms. Hogan filed a second pro se chapter 7, 1:17-bk-12962. Clear Investment was granted relief from stay to pursue an unlawful detainer action in Ms. Hogan’s second case on January 10, 2018.
Christopher Traendly ("Debtor"), appearing pro se, has filed essentially blank schedules. Debtor owes monthly rent from November 2016 at $2,900 per month, for a total of $23,200. Debtor failed to list the amount owed to Clear Investment on his schedule E/F, indicating on his form 106Sum (Summary of Assets and Liabilities) that he owed $0 to secured and unsecured creditors. Debtor has no prior filings and files no opposition to the Trustee’s motion. On January 10, 2018 the Court heard a motion for Relief from Stay in this case filed by Clear Investment. The Court granted relief from the stay on January 11, 2018.
Section 707(b) of the Bankruptcy Code allows a court to dismiss a Chapter 7 bankruptcy case when an individual has primarily consumer debt and the court finds that granting relief would be an abuse of the provisions of the chapter.11 U.S.C.
§ 707(b)(1); In re Price, 353 F.3d 1135, 1138 (9th Cir. 2004). In considering whether granting relief would be "an abuse of the provisions of this chapter" under § 707(b) (1), Courts consider A) whether the debtor filed the petition in bad faith, or B) the totality of the circumstances of the debtor’s financial situation demonstrates abuse.
11:00 AM
§ 707(b)(3). Courts consider a number of factors in determining whether a case was filed in bad faith, including:
(1) whether the debtor has a likelihood of sufficient future income to fund a Chapter 11, 12, or 13 plan which would pay a substantial portion of the unsecured claims; (2) whether the debtor's petition was filed as a consequence of illness, disability, unemployment, or some other calamity; (3) whether the schedules suggest the debtor obtained cash advancements and consumer goods on credit exceeding his or her ability to repay them; (4) whether the debtor's proposed family budget is excessive or extravagant; (5) whether the debtor's statement of income and expenses is misrepresentative of the debtor's financial condition; (6) whether the debtor has engaged in eve-of-bankruptcy purchases; (7) whether the debtor has a history of bankruptcy petition filings and case dismissals; (8) whether the debtor intended to invoke the automatic stay for improper purposes, such as for the sole objective of defeating state court litigation; and (9) whether egregious behavior is present.
In re Mitchell, 357 B.R. 142, 154–55 (Bankr. C.D. Cal. 2006). Another important factor is whether Debtor is actually in need of bankruptcy protection. In re Marshall, 298 B.R. 670, 681 (Bankr. C.D. Cal. 2003).
Trustee directs the Court’s attention to factor number 7 above, debtor’s history of petition filings and case dismissals, due to the failure of any of the three bankruptcy cases to be prosecuted. The Court is hesitant to hold the actions of another individual against the Debtor, though the facts surrounding Ms. Hogan’s filings are relevant to this totality of the circumstances determination. More persuasive is Debtor’s failure to even attempt to fill out schedules properly in this case. The Court is unable to determine the situation that precipitated Debtor’s bankruptcy filing or whether Debtor is actually in need of bankruptcy protection.
Motion is GRANTED. Debtor is dismissed with a 180 day bar to refiling.
Debtor(s):
Christopher Eric Traendly Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
11:00 AM
Docket 48
Conversion to Ch. 13 will be allowed as long as the plan is for 100% and the debtors include $5,000 payment for fees to the Chapter 7 trustee. The debtors have already stipulated to no discharge in Chapter 7 and are willing to pay creditors 100%.
Has anyone even deposed their former attorney Madaen? His negligence needs to be investigated as well,
APPEARANCE REQUIRED
Debtor(s):
Ovidio A Flores Represented By David H Chung
Joint Debtor(s):
Silene M Flores Espitia Represented By David H Chung
Movant(s):
Ovidio A Flores Represented By David H Chung
Silene M Flores Espitia Represented By David H Chung
Trustee(s):
Diane C Weil (TR) Represented By John N Tedford Sonia Singh
11:00 AM
11:00 AM
Docket 42
No objection filed. Having reviewed Trustee's final report, and finding that the fees and costs are reasonable and necessary, approval is GRANTED. NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Davide Ghizzoni Represented By Ginger Marcos
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 4
Marwill Properties LLC ("Debtor") filed this voluntary chapter 7 on January 31, 2018. Debtor is a limited liability company not represented by counsel in violation of LBR 9011-2(a). No notice of appearance has been filed by any attorney.
APPEARANCE REQUIRED
Debtor(s):
Marwill Properties LLC Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
Adv#: 1:17-01066 American Contractors Indemnity Company v. Ragsdale
Docket 11
- NONE LISTED -
Debtor(s):
Claudia Maria Ragsdale Pro Se
Defendant(s):
Claudia Maria Ragsdale Represented By William J Smyth
Plaintiff(s):
American Contractors Indemnity Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
Adv#: 1:17-01066 American Contractors Indemnity Company v. Ragsdale
fr. 9/27/17, 12/13/17
Docket 1
- NONE LISTED -
Debtor(s):
Claudia Maria Ragsdale Pro Se
Defendant(s):
Claudia Maria Ragsdale Pro Se
Plaintiff(s):
American Contractors Indemnity Represented By
R Gibson Pagter Jr.
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
Chapter 7 Involuntary Petition fr. 12/6/17, 1/17/18
Docket 1
- NONE LISTED -
Debtor(s):
Mainstream Advertising, a Pro Se
10:00 AM
Order to Show Cause Re: Civil Contempt Against (A) Mainstream Advertising;
(B) Danny Bibi; and (C) Sheila Mishkan fr. 2/13/18
Docket 0
- NONE LISTED -
Debtor(s):
Mainstream Advertising, a Represented By Michael Jay Berger
8:30 AM
fr. 1/16/18
Docket 14
This hearing was continued from January 16, 2018, to allow Debtor an opportunity to attempt negotiating a lower payment. What is the status of this matter?
APPEARANCE REQUIRED
Petition date: 9/14/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? No.
Discharge?: No
Property: 2009 Chevrolet Traverse
Debtor’s valuation of property (Sch. B): $6,000 Amount to be reaffirmed: $7,897.58
APR: 12.9%
Contract terms: $323.42 for 49 months, with any remaining balance due at the end of the contract)
Monthly Income (Schedule I): $2,190 Monthly expenses: (Schedule J): $2,194 Disposable income: <$4.00>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
8:30 AM
Debtor has already included the payment on this debt on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until Feb. 20, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
Anthony Richard La Grasta Pro Se
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
Docket 20
Petition date: September 26, 2017
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2017 Toyota Corolla
Debtor’s valuation of property (Sch. B): $25,000 Amount to be reaffirmed: $25,749.50
APR: 0.9% fixed
Contract terms: $399.98 per month for 66 months Monthly Income (Schedule I): $3,034.33
Monthly expenses: (Schedule J): $3,823 Disposable income: <$788.67>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor explained in Sch. B that she is the co-obligor on the note and Crystal Ledesma makes the payments on this vehicle.
Debtor has a right to rescind agreement anytime prior to discharge, or until February 21, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING
8:30 AM
Debtor(s):
Bertha Ledesma Represented By Carlo Reyes
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
fr. 1/16/18
Docket 23
This hearing was continued from January 16, 2018, to allow Debtor an opportunity to offer creditor timely payments without reaffirming the debt, or to attempt negotiating a lower payment. What is the status of this matter?
APPEARANCE REQUIRED
Petition date: 10/4/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2015 Toyota Tundra
Debtor’s valuation of property (Sch. B): $38,200 Amount to be reaffirmed: $33,790
APR: 1.9%
Contract terms: $852.80 per month for 49 months Monthly Income (Schedule I): $4,755
Monthly expenses: (Schedule J): $4,867.15 Disposable income: <$111.16>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
8:30 AM
Debtor says he is seeking to reduce expenses and family/friends will provide financial assistance, if needed
Debtor has a right to rescind agreement anytime prior to discharge, or until February 15, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
Davey James Short Orinas Represented By David A Tilem
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
and Santander Consumer USA Inc., dba Chrysler Capital fr. 1/16/18
Docket 15
This hearing was continued from January 16, 2018, to allow Debtor an opportunity to offer creditor timely payments without reaffirming the debt, or to attempt negotiating a lower payment. What is the status of this matter?
APPEARANCE REQUIRED
Petition date: 10/4/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2013 Range Rover
Debtor’s valuation of property (Sch. B): $23,095 Amount to be reaffirmed: $24,109
APR: 10.39%
Contract terms: $471.50 per month until May 2023 Monthly Income (Schedule I): $4,755
Monthly expenses: (Schedule J): $4,867.15 Disposable income: <$111.16>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
8:30 AM
Debtor says he is seeking to reduce expenses and family/friends will provide financial assistance, if needed
Debtor has a right to rescind agreement anytime prior to discharge, or until January 24, 2018,
RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
Davey James Short Orinas Represented By David A Tilem
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
Docket 12
Petition date:
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2013 Nissan Rogue
Debtor’s valuation of property (Sch. B): $7,747 Amount to be reaffirmed: $3,882.84
APR: 0% (fixed)
Contract terms: $323.57 per month until October 5, 2018 Monthly Income (Schedule I): $2,198
Monthly expenses: (Schedule J): $2,178 Disposable income: $20
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor listed this payment on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until March 9, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING
8:30 AM
Debtor(s):
Lourdes Barros Represented By
R Grace Rodriguez
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Adv#: 1:16-01084 Weil, Trustee v. Bursalyan et al
fr. 8/3/16; 11/2/16; 1/25/17, 3/1/17; 4/12/17; 8/23/17
Docket 1
Having considered the status report, for good cause appearing, the status conference is continued to August 22, 2018 at 11:00 a.m.
APPEARANCE WAIVED on Feb. 21, 2017.
Debtor(s):
Alisa Terkarapetyan Pro Se
Defendant(s):
Markar Bursalyan Pro Se
Haroutun Bursalyan Pro Se
Alisa Terkarapetyan Pro Se Alisa Terkarapetyan as a Trustee of Pro Se Markar Bursalyan as a Trustee of the Pro Se
Plaintiff(s):
Diane C. Weil, Trustee Represented By Aaron E de Leest
Trustee(s):
Diane Weil (TR) Represented By Brad Krasnoff
11:00 AM
US Trustee(s):
United States Trustee (SV) Pro Se
2:00 PM
fr. 11/4/15; 12/16/15, 2/3/16, 3/30/16; 5/11/16; 8/17/16, 2/8/16, 11/16/16, 2/8/17, 6/14/17,10/18/17
Docket 619
- NONE LISTED -
Debtor(s):
R.J. Financial, Inc. Represented By Sandford Frey Stuart I Koenig Marta C Wade
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels
11:00 AM
fr. 1/23/18
Docket 44
1/23/18 Tentative
Trustee’s MTD claims that the Debtor is $3,675 in arrears. Debtor filed an opposition on January 16. Debtor’s opposition argues that the balance is incorrect and requests that trustee perform a full accounting.
Debtor(s):
Brenton Haggin Represented By Elena Steers
Joint Debtor(s):
Gisa Haggin-Seeholzer Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 100
It appears that Debtors are making progress toward selling the property.
1/23/18 Tentative
Nothing new has been filed. What is the status of Debtor’s attempt to sell property? APPEARANCE REQUIRED
11/28/17 Tentative
Trustee moves to dismiss due to expiration of the plan and failure to pay remaining balance of $14,100. Debtor opposes the motion on the grounds that debtor is prepared to make the final payment with funds from the proceeds from the sale of her house. The house was listed in the past week, and debtor will file a motion to sell once a buyer is found. See Doc. No. 101.
Debtor(s):
Christine Grimes Shore Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 107
Service: Proper.
Property Address: 8524 Lindley Ave, Northridge, CA 91325 First trust deed: $419,503.08 (WF)
Second trust deed: $ 78,987.52 (WF)
Third Trust Deed (to be avoided): $109,522.58 (BNYM)
Fair market value per appraisal: $415,000 as of August 29, 2012
No opposition filed. Debtor has not shown compliance with In re Chagolla, 544 B.R. 676 (B.A.P. 9th Cir. 2016).
"In order to bring a motion to value and avoid the lien of a junior lienholder under the section of the Bankruptcy Code governing determination of secured status after a debtor has received a discharge or the case is closed, at a minimum, the following must be satisfied: (1) the confirmed plan must call for avoiding the wholly unsecured junior lien and treat any claim as unsecured, (2) the Chapter 13 trustee must treat the claim as unsecured pursuant to the plan, and (3) the creditor must not be sufficiently prejudiced so that is would be inequitable to allow avoidance after entry of discharge or the closing of the case. 11 U.S.C.A. § 506(a)." Id.
While Debtor's second amended plan (Doc. No. 40) provided for the avoidance of a judgment lien held by Equable Ascent Financial, LLC, it did not provide for avoidance of Bank of New York Mellon's junior mortgage. In fact, the plan did not provide any treatment of BNYM's claim. Debtor appears to have forgotten that this lien existed at the time the case was filed. BNYM was not included in Debtor's amended schedules, so it is unclear whether BNYM received notice. Also unclear is the chapter 13 trustee's treatment of the claim. The trustee paid a portion of BNYM's late filed claim, but not until the final two months of the plan and not in the amount it would have received if it had been treated as a general unsecured claim. It is hard to imagine such circumstances satisfying the second requirement under In re Chogalla.
11:00 AM
Motion is DENIED. APPEARANCE REQUIRED
Debtor(s):
Christine Grimes Shore Represented By Elena Steers
Movant(s):
Christine Grimes Shore Represented By Elena Steers Elena Steers Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 105
Claim #6-1:
Filed: March 29, 2013 for $109,522.58 (SECURED)
Claims bar date: December 26, 2012
o Description: Fully unsecured junior lienholder secured by debtor’s primary residence.
Disposition: GRANTED
Debtor(s):
Christine Grimes Shore Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17, 1/23/18
Docket 47
- NONE LISTED -
Debtor(s):
Henry Guzman Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 28
Debtors move the court for entry of discharge pursuant to § 1328(b). No opposition has been filed. Section 1328(b) allows the Court to grant a "hardship discharge" is if several requirements are met:
Subject to subsection (d), at any time after the confirmation of the plan and after notice and a hearing, the court may grant a discharge to a debtor that has not completed payments under the plan only if—
the debtor’s failure to complete such payments is due to circumstances for which the debtor should not justly be held accountable;
the value, as of the effective date of the plan, of property actually distributed under the plan on account of each allowed unsecured claim is not less than the amount that would have been paid on such claim if the estate of the debtor had been liquidated under chapter 7 of this title on such date; and
modification of the plan under section 1329 of this title is not practicable.
A discharge granted under subsection (b) of this section discharges the debtor from all unsecured debts provided for by the plan or disallowed under section 502 of this title, except any debt—
provided for under section 1322(b)(5) of this title; or
of a kind specified in section 523(a) of this title.
Upon a motion for discharge under §1328(b), Rule 4007(d) requires the Court to take certain actions:
Rule 4007. Determination of Dischargeability of a Debt
11:00 AM
As of the petition date in August 2015, Ron Cota earned $1,300 per month as an Uber driver. Co-debtor Magnolia Sancho Cota has been employed in food service by the Los Angeles Unified School District since the petition date, earning $1,849 per month. Debtors filed amended schedules I and J showing that, while Ms. Cota’s income has not changed, Mr. Cota is not employed. Debtors’ monthly expenses now exceed their income by over $300. The expenses listed on the amended schedule J are modest, including $800 rental payments. All payments are at or below the IRS National Standards for Allowable Living Expenses. Even at the time of filing, Debtors’ combined income was $33,636.24, far below the median income for a family of their size as calculated on Form 22C-1. Mr. Cota states in his declaration that, with him unable to find employment, he and his wife have been living on a "tight budget." The documents submitted by Debtors indicate that they have been living on an impossible budget. Including the $370 plan payments, Debtors’ monthly expenses exceed their income by over $670, or roughly 50% of their net income.
The motion and supporting declarations establish that Mr. Cota is no longer able to work as an Uber or Lyft driver because the three cars owned by the couple, a 1988 Toyota Pickup, 1985 Volkswagen Rabbit, and a 2001 Honda Odyssey, are in poor condition and would not pass inspection to drive for Lyft and Uber. Mr. Cota worked for a short time post-petition as a truck driver, but was laid off in June 2017.
The Court finds that the Debtors’ failure to complete plan payments were due to circumstances for which Debtors could not justly be held accountable in satisfaction of § 1328(b)(1).
11:00 AM
Debtor’s chapter 13 plan reflects that the amount distributed to nonpriority unsecured creditors in a hypothetical chapter 7 liquidation would be $0 as all of Debtors’ assets are exempt. No objection to the confirmation of Debtors’ plan ever contested this liquidation analysis. The liquidation analysis component of § 1328(b)(2) is satisfied.
Modification of a chapter 13 plan under § 1329(a) must meet the requirements of §§ 1322(a), 1322(b), and 1322(c). 11 U.S.C. 1329(b). Section 1322 (a)(6) requires that "the debtor will be able to make all payments under the plan and to comply with the plan." This feasibility requirement, as incorporated by § 1329(b), requires that any modification be supported by realities of Debtors’ budget. Based upon the evidence before the Court, modification of the plan under § 1329 is not feasible and § 1328(b)(3) is therefore satisfied.
Debtors previously filed a chapter 7 on June 29, 2010 and received a standard chapter 7 discharge on October 22, 2010. Section 1328(f) states as follows:
Notwithstanding subsections (a) and (b), the court shall not grant a discharge of all debts provided for in the plan or disallowed under section 502, if the debtor has received a discharge—
in a case filed under chapter 7, 11, or 12 of this title during the 4-year period preceding the date of the order for relief under this chapter, or
in a case filed under chapter 13 of this title during the 2-year period preceding the date of such order.
This case was filed more than four years after the prior case in which Debtors
11:00 AM
received a discharge was filed.
It does not appear that Debtors have completed a personal financial management course as required by § 1328(g). Debtors will need to complete the course before the Court can enter a discharge under § 1328.
The Court will enter an order pursuant to Rule 4007(d) and continue this matter to March 27, 2018. In that time, Debtors should take action to comply with
§ 1328(g).
NO APPEARANCE REQUIRED
Debtor(s):
Ron Cota Represented By
Steven A Alpert
Joint Debtor(s):
Magnolia Sancho Cota Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 78
- NONE LISTED -
Debtor(s):
Jorge A. Gomez Represented By Arsen Pogosov Yuri Voronin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 48
NONE LISTED -
Debtor(s):
William Michael Desmuke Sr Represented By Claudia L Phillips
Joint Debtor(s):
Priscilla Ann Desmuke Represented By Claudia L Phillips
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
13 trustee.
Docket 0
- NONE LISTED -
Debtor(s):
William Michael Desmuke Sr Represented By Claudia L Phillips
Joint Debtor(s):
Priscilla Ann Desmuke Represented By Claudia L Phillips
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Period: 1/27/2017 to 2/27/2018 Fees: $5,069.50 Expenses: $0
Docket 54
APPEARANCE REQUIRED
Debtor(s):
Sonia E Mole Represented By
Elena Steers
Edmond Richard McGuire
Movant(s):
Diane C Weil (TR) Represented By John N Tedford Sonia Singh
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Period: 6/20/2017 to 2/27/2018 Fees: $16,760 Expenses: $984.70
Docket 55
APPEARANCE REQUIRED
Debtor(s):
Sonia E Mole Represented By
Elena Steers
Edmond Richard McGuire
Movant(s):
Danning, Gill, Diamond & Kollitz, Represented By
John N Tedford
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
as Trustee for the J.P.MORGAN Alternative Loan Trust
Docket 48
· Claim #4-1:
o Filed: April 6, 2017 for $397,388.67 (SECURED)
o Description:
Debtor is seeking declaratory relief to determine Debtor’s actual mortgage payment and the arrears, if any, owed to HSBC’s mortgage loan servicer (Nationstar/Mr.
Cooper). Debtor claims that Nationstar incorrectly inflated her interest payments under the Adjustable Rate Rider to the Note and Deed of Trust. Debtor alleges that Cooper was informed of the mistaken mortgage interest calculation approximately a year ago but has taken no action to correct the mortgage payment. Debtor seeks sanctions against HSBC for filing an improper claim using an interest rate of 6.5% rather than a lower rate (between 3% and 3.59%) claimed by Debtor based on the LIBOR Index at the time. Debtor also claims that HSBC improperly charged her for hazard insurance.
HSBC responds that Debtor is incorrect in her understanding of the applicable interest rate under the loan. HSBC claims that the correct interest rate for September 1, 2011 through August 1, 2016 was 6.5%. On August 1, 2016, Debtor’s interest rate declined to 3.5% according to HSBC, but payments were increased based upon delinquent interest payments which were added to the unpaid principal balance. HSB alleges that the interest rate on the variable rate loan then changed again post- petition on August 1, 2017. HSBC makes no response as to the allegations that
11:00 AM
hazard insurance was improperly charged.
Is Debtor’s objection satisfied by HSBC’s response, or will an evidentiary hearing be necessary?
APPEARANCE REQUIRED
Debtor(s):
Kathy Sophia Brening-Ray Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 1/23/18
Docket 74
- NONE LISTED -
Debtor(s):
Gregory A Harris Represented By Brad Weil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 51
Service: IMPROPER under Rule 7004(h). Service on an Insured Depository Institution must be made by certified mail to an officer of the institution.
Debtor(s):
Jorge Osvaldo Ortiz Represented By Grace White
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 0
Trustee did not have an opportunity review the amended schedule C or amended plan which were filed on same day as the previous hearing. Having had time to review the amended schedules, does Trustee intend to withdraw this objection?
1/23/18 Tentative
The Chapter 13 Trustee Objects to Debtor’s claim of exemption in 100% of an unknown value of Debtor’s 2016 tax refund.
Debtor’s response to Objection to Confirmation (Doc. No. 28) states that resolution of this issue is likely to require further amendment to the chapter 13 plan.
What is the status of the mortgage modification that Debtor was pursuing as of the November confirmation hearing?
APPEARANCE REQUIRED
Debtor(s):
Mary J Hilyard Represented By Dana M Douglas
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 28
Debtor and his counsel, M. Erick Clark, have had a dispute over Clark’s services, specifically in relation to Mr. Clark filing a supplemental fee application for $1,398 for work done on a motion to extend the automatic stay under § 362(c)(3). Debtor states that Mr. Clark did not consult nor inform him of any additional services—meaning, presumably, the motion to impose the automatic stay.
The Rights and Responsibilities Agreement ("RARA") filed as document number 13 in this case and signed by Debtor requires Mr. Clark to provide certain services. One of the required services which is listed, but not covered the $7,000 RARA fee, is "15. Prepare, file, and serve any other motion that may be necessary to appropriately represent the Debtor in the Case, including, but not limited to, motions to impose or extend the automatic stay."
Clark’s reply to Debtor’s objection states that a motion to continue the automatic stay was contemplated at the time the case was filed due to the dismissal of Debtor’s prior chapter 13 case, 14-10770-VK. Indeed, the chapter 13 plan filed on August 30, the same day the petition was filed in this case, provides for $2,000 in estimated fees for "anticipated supplemental attorney’s fee for a Motion to Extend the Stay is listed herein to best estimate the amount of the plan payment going forward. Debtor and his attorney understand that this fee will not be paid unless the Court approves an application for supplemental fee." The plan bears an electronic signature for Debtor.
It appears that Debtor agreed to the filing of the motion to extend before the case was even filed.
Clark provides case law to support the motion to withdraw due to conflicts regarding attorney fees. Debtor has filed no opposition to the motion to withdraw.
The motion to withdraw is GRANTED. Mr. Clark’s supplemental fee application is
11:00 AM
APPROVED. APPEARANCE REQUIRED
Debtor(s):
Dilip Vasant Ghotikar Represented By Michael E Clark Barry E Borowitz
Movant(s):
Dilip Vasant Ghotikar Represented By Michael E Clark Michael E Clark Barry E Borowitz Barry E Borowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Period: 8/30/2017 to 10/30/2017,
Fee: $1,398.00, Expenses: $ fr. 1/23/18
Docket 21
See Calendar Number 48.
Debtor(s):
Dilip Vasant Ghotikar Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 29
Trustee objects to Debtor's exemption because Debtor claims homestead exemption under both C.C.P § 703 and § 704. California offers debtors a choice from two different, mutually exclusive exemption schemes. In re Geisenheimer, 530 B.R. 747, 749 (Bankr. E.D. Cal. 2015). Under California law, debtors may elect either the set of special exemptions under §703.140(b) available only to debtors in bankruptcy ("special bankruptcy exemptions") or the set of regular exemptions under sections 704.010-704.995 available to judgment debtors generally outside of bankruptcy ("regular exemptions"), but they may not elect both. In re Geisenheimer, 530 B.R. at 750 (citing Cal. Civ. Proc. Code §703.140(a), stating that the exemptions provided by subdivision (b) may be elected in lieu of all other exemptions provided by this chapter).
Trustee also objects to Debtor’s attempt to exempt $325.00 of equity in a checking account under §706.050 because §706.050 provides for the amount of employee earnings exempt under a wage levy and Debtor has not provided any evidence that these funds were employee earnings under a wage garnishment. In addition, as stated above, the Debtor must either use §703 or §704 code sections for exemptions.
Trustee also objects to Debtor’s attempt to exempt an unknown amount of equity in her Pfizer Pension. The Debtors must state the dollar amount of the exemption amount claimed. Schwab v. Reilly, 560 U.S. 770, 790 (2010) (holding that a party can object to an exemption on the basis of an unstated amount to test the value of that exemption).
On February 12, 2018, Debtor filed an Opposition to Chapter 13 Trustee’s Notice of Objection and Objection to Debtor’s Claim of Homestead Exemptions (Doc. No. 32), filing Amended schedules A, B, and C to remove claimed exemptions under C.C.P. §
11:00 AM
703.
Additionally, Debtor amended claimed exemptions of $25.00 cash and $300.00 checking account balance as exempt under C.C.P. §704.070. Debtor has withdrawn the claimed exemption of an unknown exemption amount in the Pfizer Pension account.
It appears that the objections are moot, will the Trustee withdraw objections? APPEARANCE REQUIRED
Debtor(s):
Janice Marie Semien Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 12
APPEARANCE REQUIRED
Debtor(s):
Natalia V Altun Pro Se
Movant(s):
Natalia V Altun Pro Se
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 34
NONE LISTED -
Debtor(s):
Miriam Claudia Munoz Represented By Scott Kosner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 18
The Trustee objects to the Debtor’s attempt to exempt $2,475 of cash in a personal savings account under C.C.P. §704.070 (pre-petition wages). The Debtor has provided no evidence that the funds in the personal accounts were in fact paid earnings as defined as above or if the funds are subject to an enforcement of a money judgement or levy. Further, the Debtor has not provided any evidence as to the origin of the funds, or if the funds were subject to any earnings withholding orders.
On January 23, 2018 around noon, Debtor filed an Amended Schedule C, removing the $2,475 cash amount in a personal savings account. That same day, around 4:30 p.m., Trustee filed an amended objection with no apparent changes which attached the original, unamended schedule C. Did the Trustee see the amended schedule C? This issue appears to be moot, will trustee withdraw the objection?
APPEARANCE REQUIRED
Debtor(s):
Nicholas Peter Mascis Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 30
NONE LISTED -
Debtor(s):
Robert Marasigan Artificio Represented By Carlo Reyes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 24
APPEARANCE REQUIRED
Debtor(s):
Karen Marcy Santos Pham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 19
The Trustee objects to the Debtors’ attempt to exempt $1,800 in a tax refund under
C.C.P. §704.070 (pre-petition wages). The Debtors have not provided a tax year for the tax refund of $1,800. The Trustee objects to the Debtors’ attempt to exempt this equity as the Debtors have not provided any evidence that they are entitled to this exemption. Furthermore, the Trustee objects to this attempt to exempt refunds on the grounds that such refunds actually constitute future income which must be contributed to the Debtors’ Chapter 13 plan.
As of February 15, Debtor has filed no response. OBJECTION SUSTAINED.
APPEARANCE REQUIRED
Debtor(s):
Gary Anthony Radford Represented By David H Chung
Joint Debtor(s):
Joelle Catherine Radford Represented By David H Chung
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 37
Secured creditor William Bigelson as trustee for the William Bigelson CPA 401(k) Profit Sharing Plan ("Creditor") filed this motion to dismiss the case under §1307(c) for cause due to bad faith. Creditor holds a note secured by a deed of trust on debtor’s residence located at 23625 Summit Dr., Calabasas, CA 91302 (the "Property"). A foreclosure sale was scheduled for November 3, 2017. The motion alleges that debtor attempted to prevent the foreclosure sale by recording a deed of trust in favor of an entity called "7 Anvil Trust," which Debtor allegedly told Creditor was in chapter 13 bankruptcy. It was later clarified that the case was filed by an individual, Robert Dorian aka 7 Anvil. The Robert Dorian case was dismissed on November 13, 2017 for failure to file papers. This case was filed on November 12, 2017. Creditor attaches a copy of the deed of trust as evidence of the transfer of the Property.
Debtor failed to file an opposition to this motion. The uncontroverted statements by Creditor indicate bad faith in filing this case sufficient to warrant dismissal under § 1307(c). Motion GRANTED.
APPEARANCE REQUIRED
Debtor(s):
Michael Kewley Represented By Jerry Rulsky
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 22
This chapter 13 case was filed as an emergency filing on November 20, 2017. On
December 4, 2017, the final day for filing schedules, Debtor filed a Motion to Extend Time to File Schedules or Provide Required Information, and/or Plan. The Court granted the order, extending the time to file schedules to December 18, 2017.
Debtor failed to file any further documents, and the case was dismissed on January 9, 2018.
The United States Trustee brings this motion to compel Debtor’s attorney, Robert S. Altagen, to file a disclosure of compensation statement pursuant to § 329 and Rule 2016. Section 329 provides as follows:
§ 329. Debtor's transactions with attorneys
Any attorney representing a debtor in a case under this title, or in connection with such a case, whether or not such attorney applies for compensation under this title, shall file with the court a statement of the compensation paid or agreed to be paid, if such payment or agreement was made after one year before the date of the filing of the petition, for services rendered or to be rendered in contemplation of or in connection with the case by such attorney, and the source of such compensation.
If such compensation exceeds the reasonable value of any such services, the court may cancel any such agreement, or order the return of any such payment, to the extent excessive, to--
the estate, if the property transferred--
would have been property of the estate; or
was to be paid by or on behalf of the debtor under a plan under chapter 11,
11:00 AM
12, or 13 of this title [11 USCS §§ 1101 et seq., 1201 et seq., or 1301 et seq.]; or
the entity that made such payment.
Mr. Altagen subsequently filed a disclosure of compensation form dated February 8, 2018, indicating that he received $1,500 in compensation, including the $310 filing fee. Mr. Altagen provides substantially no reason for why Debtor’s documents were not timely filed.
Rule 2017(a) requires the court to determine, upon notice and a hearing, "whether any payments of money or transfer of property by the debtor . . . to an attorney for services rendered or to be rendered is excessive."
The Trustee reserved the right in its motion to request disgorgement of the fees. Does the trustee intend to seek disgorgement of the attorney fees based upon the compensation disclosure?
APPEARANCE REQUIRED
Debtor(s):
Richard C Barrett Represented By Robert S Altagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 23
The United States Trustee ("Trustee") brings this motion as a result of a string of cases filed by attorney Leslie Richards, including three previous cases filed by this debtor in 2017, in which no disclosure of compensation was filed as required by 11
U.S.C. § 329(b) and FRBP 2016. Trustee seeks disgorgement of any fees paid, if appropriate under the circumstances.
Richards filed a compensation disclosure in this case on January 28 as docket number 35. The disclosure was flagged with a filer error due to Debtor’s name being signed using an improper electronic signature. The disclosure states that Debtor’s signature could not be obtained because Debtor is out of the country until February 20, 2018. The Disclosure states that Richards agreed to accept $3,000 for the case, but has not received any payments to date.
In a previous hearing, on a motion to vacate dismissal brought by Debtor, Richards admitted that she did not file this case, and that it was filed without her knowledge by her paralegal, Mr. Hill.
The motion compelling disclosure of compensation is GRANTED with no ruling on disgorgement.
APPEARANCE REQUIRED
Debtor(s):
Mary F Kimball Represented By Leslie Richards
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 18
On January 11, 2018, Debtor filed this Chapter 13 case. Debtor has one previous bankruptcy case that was dismissed a short time ago. The dismissed Chapter 13 case,17-12361-MT, was filed on September 2, 2017 and dismissed on December 1, 2017 for failure to appear at a confirmation hearing. Debtor has moved to vacate the dismissal, but does not appear to have lodged an order for the Court’s consideration.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case.
No opposition was filed. The Court finds that the instant case was filed in good faith under § 362(c)(3)(B) as to all creditors.
MOTION GRANTED. No Appearance required. Movant to lodge order.
Debtor(s):
Calina Guadalupe Salgado Represented By Anthony P Cara
Movant(s):
Calina Guadalupe Salgado Represented By Anthony P Cara Anthony P Cara
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
11:00 AM
Docket 26
NONE LISTED -
Debtor(s):
Norman Fathi Represented By Dana M Douglas
Movant(s):
Norman Fathi Represented By Dana M Douglas
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Melania Adamian Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Katie Sulamita Coreas Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 10
NONE LISTED -
NONE LISTED -
Debtor(s):
Ronald Love Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 90
NONE LISTED -
The Court is inclined to APPROVE the Application if Counsel agrees to (1) be employed under §§ 327 & 330; and (2) a 50% holdback in any drawdown on the post-petition retainer until a plan is confirmed. Counsel may also be required to file monthly fee statements if there is any drawdown on the post-petition retainer.
APPEARANCE REQUIRED
Debtor(s):
Anzhey Barantsevich Represented By Stephen L Burton
9:30 AM
fr. 9/8/16; 1/19/17; 1/26/17, 7/12/17; 9/27/17, 11/29/17
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Anzhey Barantsevich Represented By Michael Jay Berger
9:30 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
11:00 AM
10/18/17, 12/6/17, 1/10/18, 2/14/18
Docket 41
NONE LISTED -
Parties stipulated to continue this hearing from February 14, 2018 to continue to discuss terms of an APO. What is the status of this motion?
APPEARANCE REQUIRED
2/21/18 Tentative
Parties stipulated to continue this hearing from February 14, 2018 to continue to discuss terms of an APO. What is the status of this motion?
APPEARANCE REQUIRED
2/14/18 Tentative
Parties stipulated to continue this hearing from January 10, 2018 to continue to discuss terms of an APO. What is the status of this motion?
APPEARANCE REQUIRED
1/10/18 Tentative
This hearing was continued by stipulation from Dec. 6, 2017, so that the parties could continue discussing the terms of an APO. Nothing filed since the stipulation. What is the status of this motion?
APPEARANCE REQUIRED
10/18/17 Tentative
11:00 AM
Petition Date: 04/22/13
Chapter: 13 (Plan confirmed on 07/31/13) Service: Proper. Opposition filed.
Property: 5214 Woodman Ave. Sherman Oaks, CA 91402-5828 Property Value: $580,000.00 (per debtor’s schedules)
Amount Owed: $ 453,820.20 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: $15,409.49 (4 payments of $2,824.12; 2 payments of
$2,803.13)
Movant requests relief under 11 U.S.C. 362(d)(1) and specific relief in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); 12 (Debtor is a borrower as defined in Cal. Civ. Code 2920.5(c)C(2)(C)); and 13 (if relief from stay is not granted, adequate protection shall be ordered).
Debtor opposes the motion and arguing that the real property worth $1,000,000.00 and thus movant has a sufficient equity cushion to provide adequate protection.
APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.Petition Date: 04/22/13
Chapter: 13 (Plan confirmed on 07/31/13) Service: Proper. Opposition filed.
Property: 5214 Woodman Ave. Sherman Oaks, CA 91402-5828 Property Value: $580,000.00 (per debtor’s schedules)
Amount Owed: $453,820.20 (per RFS motion) Equity Cushion: 14%
Equity: $126,179.80
Post-Petition Delinquency: $15,409.49 (4 payments of $2,824.12; 2 payments of
$2,803.13)
Movant requests relief under 11 U.S.C. 362(d)(1) and specific relief in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower as defined in Cal. Civ. Code 2920.5(c)C(2)(C)).
Debtor opposes the motion and argues that the real property is worth $1,000,000.00 and thus movant has a sufficient equity cushion to provide adequate protection.
11:00 AM
APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Joe Momdjian Represented By Roland H Kedikian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 60
NONE LISTED -
Petition Date: 06/22/2011 Chapter: 13
Service: Proper. No opposition filed.
Property: 11355 Camaloa Avenue, Sylmar, CA 91342 Property Value: $360,000 (per debtor’s schedules) Amount Owed: $451,736.81 (per RFS motion)
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency: $100,764.08 (2 payments of $2,216.80; 1 payment of
$2,144.63; 3 payments of $2,140.72; 9 payments of $2,278.67; 3 payments of
$2,278.65; 4 payments of $2,426.94; 12 payments of $2,507.68; 2 payments of
$2,425.16; 1 payment of $3,222.00; 4 payments of $3,226.17; less suspense account or partial paid balance of $357.21)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5).
DENY relief under paragraph 6 (Co-debtor stay is waived) because there is no co- debtor stay in effect.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Nathaniel Hall Represented By Stephen Parry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
Docket 2053
NONE LISTED -
Petition Date: 01/09/2012 Chapter: Ch.7 (Previous Ch. 11)
Service: Proper. No opposition filed.
Property: 896 South Garfield Avenue, Monterey Park, CA 91754 Property Value: $223,334 (per debtor’s schedules)
Amount Owed: $614,529.42 (per RFS motion) Equity Cushion: N/A
Equity: $0.00.
Post-Petition Delinquency: 133 unmade payments of $209,780.94
Movant details the unauthorized transfer in April 2007, of all or part ownership of, or other interest in, the Property without the consent of the Movant or court approval. This pattern sufficiently demonstrates a scheme to hinder, delay, or defraud creditors.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under 362 (d)(4) (bad faith));
DENY relief under paragraphs; 6 (Co-debtor stay is waived) because there is no co- debtor stay in effect;
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Owner Management Service, LLC Pro Se
Movant(s):
Deutsche Bank National Trust Represented By Merdaud Jafarnia
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Docket 72
NONE LISTED -
Petition Date: 06/03/2016 Chapter: 13
Service: Proper; co-debtor served. No opposition filed.
Movant: Roberto Mendoza
Relief Sought to: Pursue Pending Litigation
Pursue Insurance
Commence Litigation
Other
Litigation Information
Case Name: Roberto Mendoza v. Francisco Victor Rodriguez
Court/Agency: Superior Court of California, County of Los Angeles, Glendale Courthouse
Date Filed: 05/12/2015 Judgment Entered:
Trial Start Date:
Action Description: Breach of Contract; Breach of Covenant of Good Faith and Fair Dealing; Breach of Fiduciary Duty; Fraud; Slander; Assault; Battery; Conversion; Common Count; Statutory Unfair Competition; Accounting; Declaratory Relief; Intentional Infliction of Emotional Distress; Unfair Competition
Grounds
Bad Faith Claim is Insured
Nondischargeable
Claim Against 3rd Parties _X
Mandatory Abstention
Other:
Non-BK Claims Best Resolved in Non-BK Forum
11:00 AM
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate); 4 (co-debtor stay is waived) and 5 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Francisco Victor Rodriguez Represented By Kevin T Simon
Movant(s):
Roberto Mendoza Represented By Eamon Jafari
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 38
NONE LISTED -
Petition Date: 04/18/2017 Chapter: 13
Service: Proper. Opposition filed 02/15/18 (1 day late) Property: 8037 Mammoth Avenue, Los Angeles, CA 91402 Property Value: $439,000.00 (per debtor’s schedules) Amount Owed: $284,644.27 (per RFS motion)
Equity Cushion: 27% Equity: $160,262.01
Post-Petition Delinquency: $9,926.95 (5 payments of $1,779.55; $1,031.00 in Attorneys’ fees and costs; Less $1.80 in suspense account or partial paid balance)
Movant requests relief under 11 U.S.C. 362(d)(1), with the relief listed in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5).
Debtor opposes the Motion, declaring that all postpetition arrearages will be cured by the hearing date on this motion and/or debtor will enter into an APO with Movant.
APPEARANCE REQUIRED
Debtor(s):
Mario Alberto Cerritos Represented By Luis G Torres
11:00 AM
Movant(s):
Wells Fargo Bank,N.A, As Trustee Represented By
Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 73
NONE LISTED -
Petition Date: 05/12/2017 Chapter: 13
Service: Proper. Opposition filed on 2/16/18 (2 days late)
Property: 13849-13851 Roscoe Boulevard, Panorama City, California 91402 Property Value: $475,000.00 (per debtor’s schedules)
Amount Owed: $448,347.23 (per RFS motion) Equity Cushion: N/A
Equity: $26,652.77
Post-Petition Delinquency: $1,853.52 (2 payments of $1,853.32; less $1,853.12 of suspense account of partial paid balance)
Movant requests relief under 11 U.S.C. 362(d)(1), with the relief listed in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5).
Debtor opposes the motion, arguing that the Property is necessary for an effective reorganization. Debtor filed or intends to file a plan of reorganization that requires use of the Property.
Debtor also argues the motion should be denied because the Debtor will be current on or before the hearing. In the alternative, Debtor will seek an Adequate Protection Order to cure arrears that have accrued post-petition.
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Irma Villalpando Represented By Steven A Alpert
Movant(s):
Nationstar Mortgage LLC Represented By
Dane W Exnowski John D Schlotter
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELLON
fr. 2/14/18
Docket 22
NONE LISTED -
This hearing was continued from February 14, 2018 to discuss terms of an APO. What is the status of this motion?
APPEARANCE REQUIRED
2-14-17 TENTATIVE BELOW
Petition Date: 07/10/2017 Chapter: 13
Service: Proper. No opposition filed.
Property: 7252 Capps Avenue, Reseda CA, 91335 Property Value: $465,870 (per debtor's schedules) Amount Owed: $293,542.94 (per RFS motion) Equity Cushion: 29% (assuming 8% cost of sale) Equity: $172,327.06
Post-Petition Delinquency: $5,084.94 (1 payment of $1,895.93; 2 payments of
$1,895.93; less suspense account or partial paid balance $1,633.85)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (co-debtor stay is terminated, modified, or annulled as to the co-debtor, on same terms and conditions as to Debtor); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Sergio Estuardo Camey Represented By Donald E Iwuchuku
Movant(s):
The Bank of New York Mellon fka Represented By
Erin M McCartney
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
TOYOTA MOTOR CREDIT CORPORATION
Docket 10
NONE LISTED -
Petition Date: 12/21/2017 Chapter: 7
Service: Proper. No opposition filed. Property: Vehicle 2013 Toyota Sienna
Property Value: $15,000 (per debtor’s schedules) Amount Owed: $24,348.31
Equity Cushion: N/A Equity: $0.00.
Delinquency Amount: $2,464.45
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law)
DENY relief under paragraph 6 (Co-debtor stay is waived) because there is no co- debtor stay in effect;
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Isabel Corona Represented By Jennifer Ann Aragon
Joint Debtor(s):
Sergio Rodriguez Represented By
11:00 AM
Trustee(s):
Jennifer Ann Aragon
Nancy J Zamora (TR) Pro Se
11:00 AM
DEUTSCHE BANK NATIONAL TRUST CO., ON BEHALF OF BOSCO CREDIT II TRUST
Docket 13
NONE LISTED -
Petition Date: 01/12/2018 Dismissed w/ 180-day bar: 1/24/18 Chapter: 13
Service: Proper. No opposition filed.
Property: 5050 Serrania Avenue, Woodland Hills, CA 91364 Property Value: $950,000 (per debtor’s schedules)
Amount Owed: $195,552.14 (per RFS motion) Equity Cushion: N/A
Equity: $754,447.86
Post-Petition Delinquency: $1,031.00 (Attorney’s Fees and Costs)
Movant details 3 prior Ch. 13 bankruptcy cases affecting the Property filed on: 03/14/2016, 06/08/2016, and 08/22/2017. This pattern sufficiently demonstrates a scheme to hinder, delay, or defraud creditors.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)
(4) (bad faith)); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5).
DENY relief under paragraph 6 (Co-debtor stay is waived) because there is no co- debtor stay in effect;
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Sabrina Pirnejad Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
Docket 11
NONE LISTED -
Petition Date: 01/16/2018 Chapter: 13
Service: Proper. Opposition filed.
Property: 22355 Burbank Boulevard, Woodland Hills, CA 91367 Property Value: $ 690,000 (per debtor’s schedules)
Amount Owed: $ 661,969.39 (per RFS motion) Equity Cushion: N/A (Assuming 8% cost of sale) Equity: $28,030.61
Post-Petition Delinquency: $
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfers of, and multiple bankruptcies affecting the subject property.
Movant requests relief under 11 U.S.C. 362(d)(1) and specific relief in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (Co-debtor stay annulled); 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)(4)); 10 (relief binding & effective for 180 days against any debtor); 11 (order binding & effective against any debtor); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5).
Debtor opposes the motion and argues that after the filing of the first Ch. 13 case, the Debtor maintained current payments to Movant. After the filing of this instant case Debtor has continued to maintain current payments to Movant. Debtor has reached out to counsel for Movant to enter an Adequate Protection Order for Debtor to maintain current payments after filing. Counsel for Movant is drafting the stipulation to resolve the pending motion. The multiple filings were not with the
11:00 AM
intention to delay, hinder, or defraud.
APPEARANCE REQUIRED
Debtor(s):
Cheryl S Orleans Represented By Julie J Villalobos
Movant(s):
U.S. Bank National Association, as Represented By
Merdaud Jafarnia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 15
NONE LISTED -
Case dismissed Feb. 5, 2018 (doc. 18). Motion is DENIED as moot, as Movant did not request in rem relief or annulment..
MOVANT TO LODGE ORDER WITHIN 7 DAYS. RULING MAY BE MODIFIED AT HEARING.
APPEARANCES WAIVED ON 2/28/18.
Debtor(s):
Erika Krayndler Represented By Walter Scott
Movant(s):
Chris Eskijian Represented By Alla Tenina
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
CHATEAU HASKELL APARTMENTS LLC
Docket 17
NONE LISTED -
Petition Date: 01/23/2018 Chapter: 7
Service: Proper. No opposition filed. Movant: Chateau Haskell Apartments, LLC
Property Address: 7337 Haskell Ave., Van Nuys, CA 91406 Type of Property: Residential
Occupancy: Month-to-Month
Foreclosure Sale: None UD case filed: 10/05/2017 UD Judgment: None
Disposition: GRANT under 11 U.S.C. 362(d)(1); (d)(2). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of 4001(a)(3) stay).
APPEARANCE REQUIRED DUE TO SHORTENED TIME—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Kanita Kennetha Elaine Petties Pro Se
Movant(s):
Chateau Haskell Apartments LLC Represented By
William E Windham
11:00 AM
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 16
NONE LISTED -
On Jan. 29, 2018, Debtor filed this chapter 13 case. Debtor had one bankruptcy case that was dismissed within the previous year. The First Filing, 17-10472-MB, was a chapter 13 that was filed on Feb. 24, 2017 and dismissed on Oct. 17, 2018 at confirmation.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor argues that the present case was filed in good faith notwithstanding the dismissal of the previous case because there has been a substantial change in his financial affairs, as he and his wife are now earning more money. Debtor states that since the First Filing was dismissed, he is no longer relying on a contribution from his son or his friend to cover the vehicle payment. Debtor claims that the property is necessary for a successful reorganization because this is his primary residence.
Service proper. No opposition filed.
MOTION GRANTED. RULING MAY BE MODIFIED AT HEARING. APPEARANCE REQUIRED DUE TO SHORTENED TIME.
Debtor(s):
Marcelo Alejandro Cabrera Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01110 Weil, Chapter 7 Trustee v. Espitia et al
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Ovidio A Flores Represented By David H Chung
Defendant(s):
Oscar Espitia Pro Se
Elsa Espitia Pro Se
Joint Debtor(s):
Silene M Flores Espitia Represented By David H Chung
Plaintiff(s):
Diane C. Weil, Chapter 7 Trustee Represented By
Sonia Singh
Trustee(s):
Diane C Weil (TR) Represented By John N Tedford
11:00 AM
Sonia Singh
11:00 AM
Adv#: 1:17-01107 Forum Entertainment Group, Inc. v. DiMaggio
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Robin DiMaggio Represented By Moises S Bardavid
Defendant(s):
Robin DiMaggio Pro Se
Plaintiff(s):
Forum Entertainment Group, Inc. Represented By
Sanaz S Bereliani
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Adv#: 1:17-01113 Sajadi et al v. Durant
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Joseph Peaks Durant Represented By Dominic Afzali
Defendant(s):
Joseph Peaks Durant Pro Se
Plaintiff(s):
Shawn S Sajadi Represented By Adela Z Ulloa
Zhila T Sajadi Represented By Adela Z Ulloa
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 9
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Yeimy E Coca Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 95
NONE LISTED -
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON 2/28/18.
Debtor(s):
Terrence Carson Represented By Brenda J Logan
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
Trustee:
David Seror
Attorney for Trustee: Brutzkus Gubner LLP
Accountant for Trustee: Lea Accountancy, LLP
Docket 136
NONE LISTED -
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON 2/28/18.
Debtor(s):
Spotless Cleaners, Inc. Represented By Marvin Levy
Trustee(s):
David Seror (TR) Represented By Reed Bernet Richard Burstein Talin Keshishian
11:00 AM
Jessica L Bagdanov Steven T Gubner
1:00 PM
Adv#: 1:17-01066 American Contractors Indemnity Company v. Ragsdale
Docket 11
NONE LISTED -
Background
This dispute arises from the circumstances surrounding debtor Claudia Ragsdale’s ("Defendant" or "Ragsdale") actions as administrator of the probate estate of her late husband, Jim Ragsdale (the "Probate Estate"). Ragsdale was appointed administrator of the Probate Estate on September 11, 2008. A condition of Ragsdale’s appointment as administrator was obtaining a fiduciary bond. Plaintiff, American Contractor’s Indemnity Company ("ACIC"), issued a $306,000 bond (the "Bond") on her behalf.
Probate estate administrators have a number of duties under California state law. Ragsdale signed and filed a "Duties and Liabilities of Personal Representative" form ("Duties statement") with the probate court, acknowledging her duties as administrator. Exh. 2. The Duties Statement sets forth, among others, the following obligations:
There are many other restrictions on your authority to deal with estate property. You should not spend any of the estate’s money unless you have received permission from the court or have been advised to do so by an attorney. If you do not obtain the court’s permission
when it is required, you may be removed as personal representative or you may be required to reimburse the estate from your own
1:00 PM
personal funds, or both.
Exh. 2, ¶ d. Following her appointment as administrator, Ragsdale transferred as much as $345,000 to herself or to others for her personal benefit. On May 17, 2012, the probate court removed Ragsdale as administrator and appointed a replacement, Pamela Muir ("Muir"). Muir brought an action to surcharge Ragsdale for unlawfully converting estate principal and income and failing to make estate property productive. Exh. 3. The surcharge complaint details $190,723.72 in distributions from the Probate Estate directly to herself, with an additional $86,755.10 apparently distributed for her personal benefit, including payments to restaurants, grocery stores, airline tickets, and housekeeping services. Exh. 3, p.9. The surcharge complaint also details $32,540.43 in rental income generated by properties of the Probate Estate during the time Ragsdale was administrator, yet less than $5,000 was marshalled by Ragsdale into the estate account. The complaint also sought a surcharge for late fees for unpaid property taxes, income taxes, and an additional
$17,400 for failure to make estate property productive.
Ragsdale did not oppose the surcharge action. Muir reached a settlement with ACIC, and an order giving effect to the judgment was entered. On September 19, 2013, the Superior Court ordered that "Claudia M. Ragsdale is surcharged
$200,000 for knowingly breaching her fiduciary duties by utilizing estate assets for her personal benefit" and was denied any further distribution from the Probate estate. Exh. 4 (emphasis added). Furthermore, judgment was entered in favor of Muir and against Ragsdale and ACIC, jointly and severally, for $200,000, (less unpaid bond premiums). Exh. 4. ACIC paid $198,722 to Muir, satisfying the judgment, and became subrogated to the rights of the Probate Estate as against Ragsdale. ACIC obtained judgment against Ragsdale in Los Angeles Superior Court on April 7, 2014 in the amount of $214,659.12. Exh. 6.
Ragsdale devotes the bulk of her opposition to this motion to arguing that she lacked the scienter required by § 523(a)(4). Ragsdale supports her argument with a declaration regarding her actions as a probate administrator, which largely lays the blame at the feet of her attorney in the probate matter, Stephen Feldman ("Feldman"). Ragsdale, a native Spanish speaker who did not complete any schooling beyond the 7th grade, claims that Feldman failed to explain her rights and responsibilities as personal representative of the Probate Estate. She claims that
1:00 PM
Feldman did not explain the necessity of the bond or her duties under the Duties Statement. She claims that she was coerced into drafting a living trust under which Feldman would be a beneficiary of her estate. Ragsdale’s declaration further details how Feldman instructed her to pay personal bills from the probate estate. Ragsdale also describes Feldman’s directions to make certain payments relating to real property located at 15203 Flagstaff St., La Puente, CA, 91744 ("Flagstaff Property"). The Flagstaff property was foreclosed on around March 2011, and Ragsdale states that she has had no contact with Feldman since that time.
Due to her estrangement from her attorney, Ragsdale claims that she had no knowledge of 1) the petition to remove her as administrator of the Probate estate, 2) the petition to surcharge her, or 3) the motion for judgment against her filed by ACIC. Dec. of Claudia Ragsdale, ¶¶15, 21. She states that if she had known of the actions against her, she would have found new counsel and defended herself.
Debtor filed chapter 7 bankruptcy on June 9, 2017. Discharge was entered on September 11, 2017. ACIC timely filed this adversary action for nondischargeability of its judgment under § 523(a)(4), which excepts from discharge any debt "for fraud or defalcation while acting in a fiduciary capacity."
Summary Judgment Standard
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FRCP 56(c) (incorporated by FRBP 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the nonmoving party. Bell v.
Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir.1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). The inference drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 886 F.2d 1135, 1137 (9th Cir.1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th
1:00 PM
Cir.1981).
Collateral Estoppel
Collateral estoppel principles apply in a discharge exception proceeding under § 523(a). Grogan v. Garner, 498 U.S. 279, 284 n.11 (1991). Under 28
U.S.C. 1738, as a matter of full faith and credit, federal courts are required to apply the pertinent state’s collateral estoppel principles. Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir. 1995). Under California law, collateral estoppel applies only if certain threshold requirements are met: 1) the issue sought to be precluded from relitigation is identical to that decided in the former proceeding;
the issue was actually litigated in the former proceeding; 3) the issue was necessarily decided in the former proceeding; 4) the issue in the former proceeding was final and on the merits; and 5) the party against whom preclusion is sought is the same, or in privity with, the party to the former proceeding. Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir. 2001).
If the threshold requirements are met, the court must also find that giving the previous judgment preclusive effect would further the public policies underlying the collateral estoppel doctrine. Id. at 1245.
In a case with similar facts to those presented here, the Ninth Circuit Bankruptcy Appellate Panel upheld a summary judgment where the bankruptcy court determined that a surcharge judgment in California probate court against an administrator of a decedent’s probate estate fell within the exception to discharge under § 523(a)(4). In re Heers, 529 B.R. 734, 745 (B.A.P. 9th Cir. 2015). The lower court applied issue preclusion, also known as collateral estoppel, B& B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1299 (2015), based upon the probate court's order. In another case with almost identical facts to those here, the bankruptcy court determined that a surcharge judgment in California probate court was a sufficient basis for application of collateral estoppel in a § 523(a)(4) action. In re Stark, No. 06-11966-B-7, 2007 WL 2505563, at *6 (Bankr. E.D. Cal. Aug. 31,
2007), aff'd sub nom. Stark v. Stark, No. 1:07-CV-01366 OWW, 2009 WL 3162250 (E.D. Cal. Sept. 29, 2009), rev'd and remanded on other grounds, 414 F. App'x 981
1:00 PM
(9th Cir. 2011).
Ragsdale's primary contention in her response and in her separate statement of uncontroverted facts and conclusions of law is that the knowledge requirement of
§ 523(a)(4) has not been satisfied because she did know her duties as administrator due to the negligent legal advice of her attorney; however, this type of argument on the merits of a previously determined issue is precisely what collateral estoppel operates to prohibit. In re Child, 486 B.R. 168, 172 (B.A.P. 9th Cir. 2013). The rationale behind finding defendants estopped by default judgments is that "a defendant who is served with a summons and complaint but who fails to respond is presumed to admit all the facts which are well pleaded in the complaint." In re Harmon, 250 F.3d at 1245. Additionally, the probate court specifically found that Ragsdale knowingly breached her fiduciary duties as administrator. A defense based upon Ragsdale's lack of knowledge of her duties is insufficient to defeat the application of collateral estoppel.
The only cognizable argument that Ragsdale makes in opposition to the application of collateral estoppel is the following: "[i]mposition of issue preclusion would be unfair and inconsistent with sound public policy as the issue of Defendant's intent under § 523(a)(4) should be actually litigated."
Actually Litigated
Under California law, default judgments may provide the basis for a finding that a matter was "actually litigated" for purposes of collateral estoppel as long as the defendant was personally served with a summons or has actual knowledge of the existence of the litigation. In re Harmon, 250 F.3d 1240, 1247 (9th Cir. 2001). Collateral estoppel applies to default judgments only to the extent defendant had a full and fair opportunity to litigate. In re Cantrell, 329 F.3d 1119, 1124 (9th Cir.
2003) (even where a defendant did not receive personal service or have actual knowledge of the action, but had actual knowledge of the lawsuit with time remaining to set aside the default judgment, the full and fair opportunity to litigate requirement was satisfied and collateral estoppel could be appropriate).
Under California law, the presence or absence of a full and fair opportunity to litigate usually is relevant not to the threshold inquiry, but rather to the public policy inquiry. Williams' Estate's notice
1:00 PM
requirement makes the full and fair opportunity showing a part of the threshold inquiry in the context of default judgments.
In re Harmon, 250 F.3d at 1247, n.6 (citations omitted). "[T]he party asserting the collateral estoppel effect of a default judgment must provide evidence that (i) the defendants either were personally served with the complaint or had actual knowledge of the litigation; and (ii) the default judgment necessarily required the finding at issue." In re Aalam, 538 B.R. 812, 825 (Bankr. C.D. Cal. 2015).
Here, while Ragsdale does not allege that she was never served or was improperly served, she explicitly states that she had no knowledge of the action to removed her as administrator, the surcharge action, or the motion for judgment brought by ACIC. Dec. of Claudia Ragsdale, ¶¶15, 21.
The exhibits attached to ACIC's summary judgment motion do not include any evidence that Ragsdale was personally served or had actual knowledge of any of the actions in the probate court. Exhibit 4 includes a proof of service indicating that on September 5, 2013 the proposed order surcharging Ragsdale was sent to her and Feldman, among others, by U.S. mail. According the Ragsdale's declaration, she had not spoken to Feldman since March 2011. Exhibit 6 includes a proof of service indicating that on June 2, 2014, the Notice of Entry of Judgment against Ragsdale and in favor of ACIC was served on Ragsdale and Feldman, among others, by mail. There is no indication that either of the addresses used to serve Ragsdale were current or reliable. Neither proof of service document provides evidence that Ragsdale was personally served or had actual knowledge of the probate court proceedings against her in satisfaction of the full and fair opportunity to litigate requirement of collateral estoppel under California law. The statement of undisputed facts conveniently omits any reference to the crucial question of whether Ragsdale had an opportunity to defend herself in the probate action.
The Court therefore denies ACIC's request to apply collateral estoppel.
Conclusion
Application of collateral estoppel is not appropriate here because ACIC has provided no evidence that Ragsdale was personally served with notice of or had actual knowledge of the prior matter. Without the application of collateral estoppel,
1:00 PM
ACIC's motion for summary judgment cannot succeed. A genuine issue of material issue of fact exists as to whether Ragsdale meets the culpable state of mind requirement set forth in Bullock v. Bankchampaign, N.A. 133 S. Ct. 1754 (2013). The Motion is therefore DENIED.
Debtor(s):
Claudia Maria Ragsdale Pro Se
Defendant(s):
Claudia Maria Ragsdale Represented By William J Smyth
Plaintiff(s):
American Contractors Indemnity Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
Adv#: 1:17-01066 American Contractors Indemnity Company v. Ragsdale
fr. 9/27/17, 12/13/17; 2/14/18
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Claudia Maria Ragsdale Pro Se
Defendant(s):
Claudia Maria Ragsdale Pro Se
Plaintiff(s):
American Contractors Indemnity Represented By
R Gibson Pagter Jr.
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
fr. 11/29/17; 12/6/17; 2/5/18
Docket 29
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
Movant(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
10:00 AM
# 4 by Claimant U.S. Bank National Association,
as Trustee for Harborview Mortgage Loan Trust 2005-16, Mortgage Loan Pass-Through Certificates, Series 2005-16, as serviced by Nationstar Mortgage LLC
fr. 7/12/17, 8/2/17; 9/27/17; 11/07/17, 1/11/18
Docket 82
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Farideh Warda Represented By
M Jonathan Hayes Roksana D. Moradi
Movant(s):
Farideh Warda Represented By
M Jonathan Hayes Roksana D. Moradi
9:00 AM
Docket 12
NONE LISTED -
Debtor(s):
Daniela Alejandra Rowson Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Shiri Guttman Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Sylvia Marie Oliva Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 7
NONE LISTED -
Debtor(s):
James Calhoun Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
fr. 1/17/13, 2/21/13, 5/30/13, 10/10/13, 3/27/14, 10/2/14, 4/23/15, 4/23/15; 12/3/15, 2/4/16, 4/7/16;
6/9/16, 8/4/16, 11/10/16; 1/26/17, 3/1/17; 3/22/17,
4/26/17, 6/14/17, 6/20/17; 7/6/17; 8/1/17; 8/16/17,
8/17/17, 9/13/17; 10/11/17, 12/14/17, 2/7/18
Docket 210
What is the status of the APO with Chase?
APPEARANCE REQUIRED
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L James Lindsey L Smith
Movant(s):
JPMorgan Chase Bank, National Represented By
Christopher M McDermott
9:30 AM
2/21/13, 5/30/13, 10/10/13,
3/27/14, 10/2/14, 4/9/15; 4/23/15; 12/3/15
4/7/16, 4/7/16, 6/9/16, 8/4/16, 11/10/16; 1/26/17,
3/1/17; 3/22/17, 4/26/17, 6/14/17; 7/6/17; 8/1/17; 8/16/17,
8/17/17, 9/13/17; 10/11/17, 12/13/17, 2/7/18
Docket 1
NONE LISTED -
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L Rodriguez
9:30 AM
Docket 162
Having reviewed the status report and Debtor’s request for a 30 day continuance, and for good cause appearing, this matter will be continued to April 4, 2018 at 9:30.
NO APPEARANCE REQUIRED on March 7. Debtor shall notice continuance.
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
fr. 1/8/15; 7/30/15, 10/15/15; 1/20/16; 3/31/16, 6/2/16, 7/28/16, 11/3/16, 7/28/17; 10/18/17; 12/6/17,
2/7/18
Docket 1
Having reviewed the status report and Debtor’s request for a 30 day continuance, and for good cause appearing, this matter will be continued to April 4, 2018 at 9:30.
NO APPEARANCE REQUIRED on March 7. Debtor shall notice continuance.
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
Movant(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
Docket 65
Having considered Debtor's Motion to Dismiss and finding good cause, the Motion is GRANTED. Debtor to lodge order within 7 days.
APPEARANCE WAIVED ON 3/7/18.
Debtor(s):
Nurit Petri Represented By
Matthew D Resnik Roksana D. Moradi
9:30 AM
Docket 21
Tentative ruling may be posted or updated before hearing. If this tentative is not updated by 4:00 p.m. on the day before the hearing, no tentative shall be posted and appearances are required.
Calls to the Court to check the status of tentative rulings are not permitted.
Debtor(s):
Barton Wayne Fishback Represented By Matthew Abbasi
Joint Debtor(s):
Carol Fishback Represented By Matthew Abbasi
Movant(s):
COUNTY OF VENTURA Represented By David J Cook
11:00 AM
THE BANK OF NEW YORK MELLON
fr. 12/13/17, 1/17/18, 2/7/18
Docket 54
NONE LISTED -
Debtor(s):
Karapet Dermendjian Represented By Aris Artounians
Joint Debtor(s):
Anait Dermendjian Represented By Aris Artounians
Movant(s):
The Bank of New York Mellon f/k/a Represented By
Mark D Estle
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
PLAZA HOME MORTGAGE INC.
Docket 33
NONE LISTED -
Debtor(s):
Jose Luis Valencia Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 53
NONE LISTED -
Debtor(s):
Kervin Linton Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 2/7/18
Docket 28
Parties requested a continuance to pursue an APO. No What is the status of the APO?
2/7/18 Tentative
Petition Date: 06/30/2017 Chapter: 13
Service: Proper. Opposition filed.
Property: 8050 Lindley Avenue Reseda, CA 91335 Property Value: $495,221.00 (per debtor’s schedules) Amount Owed: $438,087.73 (per RFS motion) Equity Cushion: 3.5%
Equity: $17,515.59
Post-Petition Delinquency: $8,720.43 (3 payments of $2,857.95; 1 payment of
$2,857.95; less suspense account or partial paid balance $2,711.37)
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2). Specifically, movant requests relief in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor filed an opposition on the grounds 10 (debtor will be prejudiced if the Nonbankruptcy Action is allowed to continue the nonbankrupty forum; and 11 (Other; Debtor's attorney will work with creditor to enter into an Adequate Protection Agreement which will resolve the delinquent amount.) Debtor’s opposition seems to state that postpetition payments are in fact current.
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Mark Conrad Castillo Ochoco Represented By Raymond J Bulaon
Joint Debtor(s):
Sheena Jane V Ochoco Represented By Raymond J Bulaon
Movant(s):
PennyMac Loan Services, LLC Represented By Theron S Covey Robert P Zahradka
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
AMERICAN HONDA FINANCE CORPORATION
Docket 42
Petition Date: 08/31/2017 Chapter: 13
Service: Proper. No opposition filed. Property: Vehicle 2012 Honda CR-V
Property Value: $4,000 (per debtor’s schedules) Amount Owed: $3,160.35
Equity Cushion: 13% Equity: $839.65
Post-Petition Delinquency: $853.52 (2 payments of $426.76)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 5 (the co-debtor stay is terminated); and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Igor Gary Deck Represented By Joshua L Sternberg
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 17
Petition Date: 11/29/2017 Chapter: 13
Service: Proper. No opposition filed. Property: Vehicle 2015 Nissan Sentra
Property Value: $ 10,000 (per debtor’s schedules) Amount Owed: $ 17,855.19
Equity Cushion: N/A Equity: $0.
Post-Petition Delinquency: $803.38 (2 payments of $401.69)
Debtor’s second amended plan specifies that this vehicle will be surrendered.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001 (a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Sonia Pantoja Represented By Lauren M Foley
Movant(s):
NISSAN-INFINITI LT. Represented By
Michael D Vanlochem
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
Docket 10
Petition Date: 01/05/2018 Chapter: 7
Service: Proper. No opposition filed.
Movant: State Farm Mutual Automobile Insurance Company
Relief Sought to: Pursue Pending Litigation Commence Litigation
Pursue Insurance _X_ Other
Litigation Information
Case Name: State Farm Mutual Automobile Ins. Co. v. Alan Rick Villegas
Court/Agency: Ventura County Superior Court Date Filed: 06/07/2017
Judgment Entered:
Trial Start Date: 05/14/2018
Action Description: Subrogation for property damages Grounds
Bad Faith Claim is Insured _X_ Claim Against 3rd Parties Nondischargeable
Mandatory Abstention
Other:
Non-BK Claims Best Resolved in Non-BK Forum
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate).
NO APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Alan Rick Villegas Represented By
D Justin Harelik
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 12
Petition Date: 01/16/2018 Chapter: 13
Service: Proper. No opposition filed.
Property: 344 Peralta Street, Oakland, CA 94607-1242 Property Value: $ (per debtor’s schedules)
Amount Owed: $ 281,274.25 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.
Post-Petition Delinquency:
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); and 9 ((relief under 362(d)(4) (bad faith and secured creditors));
Motion claims that this bankruptcy filing is part of a scheme to hinder, delay, or defraud creditors by filing multiple bankruptcy cases affecting the Property.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Shaun Michael Reynolds Represented By Ronald A Norman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
2007 Mercedes Benz C-Class vehicle
Docket 9
On February 16, 2018, Debtor filed this Chapter 13 case. Debtor has two previous bankruptcy cases that were dismissed a short time ago. The first prior case, 15- 10983-VK, was filed on March 24, 2015 and dismissed on June 14, 2017 for failure to make plan payments. The second prior case, 17-12442-MB, was filed on September 13, 2017 and dismissed on February 5, 2018 for failure to comply with a court order.
Debtor now moves for an order imposing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous cases. The dismissal of the first case was due to missing certain payments due to illness, and the dismissal of the second case was due to Debtor’s attorney’s failure to file a proof of service of the amended bankruptcy Plan.
No opposition was filed.
MOTION GRANTED. NO APPEARANCE REQUIRED.
Debtor(s):
Jose Barreto Represented By
Donald E Iwuchuku
Movant(s):
Jose Barreto Represented By
Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
11:00 AM
Docket 9
Petition Date: 02/20/2018 Chapter: 13
Service: Proper. No opposition filed. Movant: SC Colony LTD
Property Address: 1056 E. Philadelphia Street #107, Ontario, CA 91761 Type of Property: Residential
Occupancy: 12-Month Term Lease
Foreclosure Sale: None UD case filed: 1/23/18 UD Judgment: Pending
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
James Calhoun Pro Se
Movant(s):
SC COLONY LTD Represented By Helen G Long
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:15-01005 EHRENBERG v. Youseffia
11 USC 523(a)(2)(A) and 11 USC 523 (a)(6)
fr. 4/1/15, 6/3/15; 7/1/15; 1/27/16, 3/30/16, 4/26/16; 1/10/18
Docket 1
This matter was awaiting final performance of the settlement agreement, which was
due in late January. Nothing new has been filed. When will this case be dismissed?
1/10/18 Tentative
Having reviewed Defendant's unilateral status report, filed Jan. 7, 2018, and finding no objection filed, this status conference is continued to March 7, 2018, at 11:00 a.m. Defendant to give notice of continued status conference.
Parties are to file a status report informing the Court of the status of performance under the Settlement on or before February 28, 2018.
APPEARANCES WAIVED 1/10/18.
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
Defendant(s):
Joseph Youseffia Pro Se
Plaintiff(s):
HOWARD M EHRENBERG Represented By Sanaz S Bereliani
11:00 AM
US Trustee(s):
United States Trustee (SV) Pro Se
11:00 AM
Adv#: 1:16-01133 Kutasi et al v. Allen et al
from Discharge pursuant to 11 U.S.C. section 523(a)(2)(A) 523(a)(4) and 523(a)(6
fr. 12/7/16; 3/1/17, 3/22/17, 6/13/17, 1/24/18; 2/14/18
Docket 1
Please advise whether any conflict with a pretrial conference on June 13 at 11 am.
Any objection to trying the two cases together for administrative purposes only?
Debtor(s):
Joshua Ross Allen Represented By
Glenn Ward Calsada
Defendant(s):
Joshua Ross Allen Pro Se
Amy Jill Allen Pro Se
Joint Debtor(s):
Amy Jill Allen Represented By
Glenn Ward Calsada
Plaintiff(s):
John Kutasi Represented By
Jeffrey F Gersh
West Valley Collection Services, Represented By
Jeffrey F Gersh
11:00 AM
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Adv#: 1:16-01134 Kutasi et al v. Allen
fr. 12/7/16; 3/1/17, 3/22/17, 6/13/17, 1/24/18; 2/14/18
Docket 1
Please advise whether any conflict with a pretrial conference on June 13 at 11 am.
Any objection to trying the two cases together for administrative purposes only?
Debtor(s):
David B. Allen Represented By
Glenn Ward Calsada
Defendant(s):
David B. Allen Pro Se
Plaintiff(s):
John Kutasi Represented By
Jeffrey F Gersh
West Valley Collection Services, Represented By
Jeffrey F Gersh
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01032 Swift Capital Corporation dba Swift Capital v. Fuscaldo et al
Docket 1
NONE LISTED -
Debtor(s):
Matthew Fuscaldo Represented By Jeffrey J Hagen
Defendant(s):
Matthew Fuscaldo Pro Se
Melissa Lynn Golde-Fuscaldo Pro Se
Joint Debtor(s):
Melissa Lynn Golde-Fuscaldo Represented By Jeffrey J Hagen
Plaintiff(s):
Swift Capital Corporation dba Swift Represented By
Daren M Schlecter
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:17-01037 State Compensation Insurance Fund v. Maranon
Complaint to Determine Dischargeability of Debt Under 11 U.S.C. Sec. 523(a)(2)
fr. 6/21/17, 7/26/17, 8/2/17, 11/8/17; 1/10/18
Docket 1
Parties indicated at the 1/10/18 hearing that they had reached a settlement. Nothing has yet been filed with the court. Have the parties made progress reducing the settlement to writing?
APPEARANCE REUQUIRED
Debtor(s):
Jose Matias Maranon Represented By
Geoffrey G Melkonian
Defendant(s):
Jose Matias Maranon Pro Se
Plaintiff(s):
State Compensation Insurance Fund Represented By
Rhett Johnson
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
§§ 109, 521 and 707(a), and 2) for Order Compelling Attorney to File Disclosure of Compensation Pursuant to 11 U.S.C. § 329.
Docket 8
The United States Trustee ("UST") brings this motion to dismiss this case in part on the grounds that The Martin Family Trust Dated 7/9/04 (the "Trust") does not appear to be eligible to be a debtor under § 109. The Trust has filed no opposition, and indeed has failed to file anything since the case was commenced on January 17, 2018. The deadline to file papers was January 31, 2018.
Trustee also requests an order compelling attorney for the Trust, Dominic Afzali, to file a disclosure of compensation as required by § 329.
The Motion is GRANTED. The Trustee shall lodge a separate order compelling attorney to file a disclosure of compensation form. The Court retains jurisdiction to take any further action arising from or related to § 329.
NO APPEARANCE REQUIRED
Debtor(s):
The Martin Family Trust Dated Represented By Dominic Afzali
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 9
Background
Margie Lieser ("Debtor") filed a voluntary chapter 7 petition on December 23, 2016. On January 20, Debtor moved to convert her case to chapter 13. An opposition was filed by the chapter 7 trustee, Diane Weil ("Trustee").
Trustee opposed the conversion on a number of grounds, including that conversion is not supported by any evidence, Debtor’s prior filings show that she cannot fund a confirmable chapter 13 plan, and conversion would serve no proper purpose and would only delay recovery by creditors of the estate.
There are at least two administrable assets which the Trustee believes would enable her to pay holders of allowed claims in full: a potential class action settlement in a vaginal mesh class action ("Mesh Settlement") and certain annuities with a value of $78,246.80 stated in the schedules ("Annuities").
The Mesh Settlement was not disclosed in the originally filed schedule
B. On the day before the first scheduled meeting of creditors, Debtor filed amended schedules to add the "potential class settlement in vaginal mesh class matter" with an "unknown" value. Trustee’s motion represents that Debtor estimated the value of the settlement at approximately $70,000. However, due to medical lien deductions, the net value due to Debtor is
$38,689.11. Trustee makes no claim that Debtor fraudulently concealed the
11:00 AM
value of the settlement; in fact, it appears that the amount of the settlement was unknown until December 2017.
The Annuities were claimed as fully exempt in Debtor’s schedule C. Trustee filed an objection to the exemption claimed on the Annuities alongside her opposition to conversion to chapter 13.
Objection to Exemption
Trustee objects to Debtor’s claim of exemption in the Annuities listed in schedule B on the grounds that neither qualifies as a "private retirement plan."
The California Code of Civil Procedure provides an exemption for private retirement accounts as follows:
C.C.P. 704.115.
As used in this section, "private retirement plan" means:
Private retirement plans, including, but not limited to, union retirement plans.
Profit-sharing plans designed and used for retirement purposes.
Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1986, as amended, including individual retirement accounts qualified under Section 408 or 408A of that code, to the extent the amounts held in the plans, annuities, or accounts do not exceed the maximum amounts exempt from federal income taxation under that code.
All amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability payment, or death benefit
11:00 AM
from a private retirement plan are exempt.
Debtor’s annuity purchased from Allianz in January 2006, proof of
which is attached to exemption objection as exhibit 3, appears to have been purchased with a one-time transfer of $40,000, rather than the regular payments of pre-tax earnings contemplated by C.C.P. 704.115(b). The annuity purchased from Fidelity & Guaranty Life Insurance Company, proof of which is attached to the exemption objection as exhibit 4, does not appear to provide any detail as to whether it is a qualified annuity.
The burden of proof in claiming an exemption is on the debtor under California law. In re Diaz, 547 B.R. 329, 337 (B.A.P. 9th Cir. 2016). Debtor has failed to respond to the arguments set forth by the Trustee, which cast serious doubt on whether these annuities may be exempted under
C.C.P. 704.115. Therefore, the court cannot make a determination that the annuities are "private retirement plans" falling within the exemption provided by C.C.P. 704.115(b). Trustee’s objection to Debtor’s claimed exemption is SUSTAINED.
Opposition to Conversion
Section 706(a) of the Bankruptcy code provides:
(a) The debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title. Any waiver of the right to convert a case under this subsection is unenforceable.
11 U.S.C. 706(a). The Supreme Court has found that a chapter 7 debtor can forfeit their right to convert the case to chapter 13 where debtor engaged in bad-faith conduct which would warrant dismissal or re-conversion of the chapter 13 case. Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365, 373-74 (2007). The court, however, warned that such action should only be
11:00 AM
taken by the court in the case of an "atypical litigant," or alternatively stated, in "extraordinary circumstances." Id. at 375; See Id. at N. 11. The court in Marrama found a bankruptcy court’s authority under section 105(a) was sufficiently broad to deny a motion to convert under section 706 where the conversion would "merely postpone the allowance of equivalent relief and may provide debtor with an opportunity to take action prejudicial to creditors." Id. In Marrama, the debtor engaged in pre-petition bad faith conduct by making misleading or inaccurate statements within his schedules, failed to disclose a pre-petition transfer of real property, attempted to obtain homestead exemption on rental property and failed to disclose an anticipated tax refund.
Trustee argues that this conversion would only delay recovery by creditors of the estate. The Court agrees. Debtor’s schedule J shows a net income of negative $480.88 per month; Debtor’s motion to convert did not explain how she would fund a plan with such a significant deficit. Debtor has not filed a proposed chapter 13 plan in support of this motion to convert for the Court and the Trustee to consider. There is no evidence that Debtor could be successful in a Chapter 13. Additionally, allowing conversion would be an unreasonable delay which would be unfairly prejudicial to creditors. This case was filed in December 2016; Debtor could have converted this case sooner than January 2018, after Trustee has employed counsel in connection with the case.
For the foregoing reasons, Debtor’s motion to convert is DENIED. APPEARANCE REQUIRED
Debtor(s):
Margie Ann Lieser Represented By Eric Ridley
11:00 AM
Trustee(s):
Diane C Weil (TR) Represented By Brad Krasnoff Sonia Singh
11:00 AM
Docket 29
See Calendar 21
Debtor(s):
Margie Ann Lieser Represented By Eric Ridley
Trustee(s):
Diane C Weil (TR) Represented By Brad Krasnoff Sonia Singh
11:00 AM
Docket 14
Having reviewed the motion and for good cause appearing, the United States Trustee's motion is GRANTED.
Appearances are waived on March 7.
Debtor(s):
Karine Aslanyan Pro Se
Joint Debtor(s):
Hakob Gasparyan Pro Se
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 6
Derrick J. Hunter ("Debtor") previously filed a chapter 7 on March 11, 2010 in the Northern District of Indiana, Case no 1:10-bk-10925-REG (the "2010 Case"). Debtor received a discharge in the 2010 Case on June 21, 2010. The present voluntary chapter 7 petition was filed on January 24, 2018.
Section 727(a) of the Bankruptcy Code provides that a debtor shall receive a discharge unless one of a number of conditions are met. Subsection (8) specifies that a debtor shall not receive a discharge if the debtor has been granted a discharge in a prior chapter 7 bankruptcy "in a case commenced within 8 years before the date of the filing of the petition. " The 2010 Case
was commenced on March 11, 2010, which is less than eight years before the current petition was filed. Debtor is therefore ineligible for a discharge under
§ 727(a)(8).
Trustee filed this motion to dismiss under § 707(a), which allows the court to dismiss a case "for cause, including (1) unreasonable delay by debtor that is prejudicial to creditors." Trustee argues that cause exists to dismiss this case because Debtor is ineligible for a discharge, and therefore continuing this case would be an unreasonable delay that is prejudicial to creditors.
Debtor has not come forward in response to Trustee’s motion to offer any reason why continuing this case is not an unreasonable delay.
For good cause appearing, the Trustee’s motion is GRANTED. NO APPEARANCES REQUIRED
11:00 AM
Debtor(s):
Derrick Johnathan Hunter Represented By Nicholas M Wajda
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Trustee:
Dian Weil
Attorney for Trustee:
Levene Neale Bender Yoo & Brill LLP
Other:
SLBIGGS, and Division of Singerlewak
Docket 86
Service proper. No objection filed. Having reviewed Trustee's final report, and finding that the fees and costs are reasonable and necessary, approval is GRANTED. NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Susanne Renee Williams Represented By Michael F Chekian
Trustee(s):
Diane C Weil (TR) Represented By Timothy J Yoo Carmela Pagay
11:00 AM
Trutee: Amy Goldman
Docket 27
- NONE LISTED -
Debtor(s):
Charles C Kim Represented By Robert K Lee
Joint Debtor(s):
Jin Kim Represented By
Robert K Lee
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
fr. 2/7/18
Docket 75
- NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
1:00 PM
Adv#: 1:17-01110 Weil, Chapter 7 Trustee v. Espitia et al
fr. 2/28/18
Docket 1
- NONE LISTED -
Debtor(s):
Ovidio A Flores Represented By David H Chung
Defendant(s):
Oscar Espitia Pro Se
Elsa Espitia Pro Se
Joint Debtor(s):
Silene M Flores Espitia Represented By David H Chung
Plaintiff(s):
Diane C. Weil, Chapter 7 Trustee Represented By
Sonia Singh
Trustee(s):
Diane C Weil (TR) Represented By John N Tedford Sonia Singh
1:00 PM
9:30 AM
fr. 8/4/16; 1/19/17; 1/26/17, 4/26/17, 6/14/17, 8/16/17
Docket 1
NONE LISTED -
This status conference is continued to June 14, 2017 at 9:30 a.m., to trail the hearing on the amended disclosure statment. Debtor to give notice of the continued status conference.
NO APPEARANCE REQUIRED on 4/26/17.
Debtor(s):
Lonnie James Coughlin Represented By Onyinye N Anyama
8:30 AM
Docket 9
Petition date: 1/8/2018
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2016 Ford Fiesta
Debtor’s valuation of property (Per reaff): N/A, Leased vehicle Amount to be reaffirmed: $6,419.38
APR: N/A, Leased vehicle
Contract terms: $336.54 per month Monthly Income (Schedule I): $,2935 Monthly expenses: (Schedule J): $3,440 Disposable income: <$505>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
"Debtor is self-employed and will be able to make payments."
Debtor has a right to rescind agreement anytime prior to discharge, or until April 21, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
David Mitchell Parks Represented By David S Hagen
Joint Debtor(s):
Marisa Amy Parks Represented By David S Hagen
Trustee(s):
Nancy J Zamora (TR) Pro Se
8:30 AM
Docket 17
Petition date: 1/5/2018
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2006 Ford Mustang
Debtor’s valuation of property (Sch. B): $7,390 Amount to be reaffirmed: $7,958.28
APR: 5.99%
Contract terms: $185.63 per month for 49 months Monthly Income (Schedule I): $5,543.44
Monthly expenses: (Schedule J): $5,442 Disposable income: $1.44
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
N/A
Debtor has a right to rescind agreement anytime prior to discharge, or until April 23, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Nathan Bosinger Represented By
R Grace Rodriguez
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
Docket 18
Petition date: 11/9/2017
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2013 Lexus ES300H (Leased vehicle)
Debtor’s valuation of property (Sch. B): N/A, leased vehicle Amount to be reaffirmed: $23,239
APR: 5.5%
Contract terms: $529.76 per month Monthly Income (Schedule I): $0
Monthly expenses: (Schedule J): $600 (does not include car payments)
Disposable income: N/A (schedule J contains insufficient information), but negative due to zero income.
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
No explanation provided.
Debtor has a right to rescind agreement anytime prior to discharge, or until April 17, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Washington Castro Franco Represented By Grace White
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
Docket 12
Petition date: 1/19/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No Property: 2016 Kia Soul
Debtor’s valuation of property (Sch. B): $10,900 Amount to be reaffirmed: $ 11,683
APR: 11.9%
Contract terms: $315.87 per month for 46 months Monthly Income (Schedule I): $2,515
Monthly expenses: (Schedule J): $2,560 Disposable income: <$45>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor's husband is helping her with car payments and Debtor is actively looking for employment.
Debtor has a right to rescind agreement anytime prior to discharge, or until March 20, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Gabriela Piceno-Amurrio Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Joseph T DeBano Jr Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 11
NONE LISTED -
Debtor(s):
Louis Vargas Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Marvin Davis Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Miguel Rodriguez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 52
Petition Date: November 16, 2017
Chapter: 11
Service: Proper. Opposition filed.
Property: 3442 Malaga Court, Calabasas, CA 91302 Property Value: $ 1,350,000 (per debtor’s schedules) Amount Owed: $ 1,547,323.17 (per RFS motion) Equity Cushion: 0.0%
Equity: <-$1,207,629.32>.
Pre-petition Delinquency: $472,988.21 (92 payments in arrears, per motion; no payments made since July 2010)
Post-Petition Delinquency: None
Movant requests relief under 11 U.S.C. 362(d)(1). Movant requests specific relief under paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (waiver of the 4001(a)(3) stay); 9 (relief under (d)(4)); 10 (Order binding and effective for 180 days against any debtor; and 13 (Other: if case is dismissed before hearing, movant requests that the court retain jurisdiction to hear motion under § 362(d)(4)).
Movant alleges that this bankruptcy is part of a scheme to delay, hinder, or defraud creditors. Movant claims that the Property was transferred to Debtor from the original borrower, Homeyra M. Arbabi, Trustee of the HLA Family Trust Dated March 14, 2005, without Movant’s consent. The transfer occurred on January 26, 2011. This is the third bankruptcy filed by Debtor affecting the Property. The two prior cases are 1:12-bk-11389-MT and 8:15-bk-10657-ES. Movant alleges that Debtor incorrectly named Bank of America instead of Movant in the schedules, so Movant received no notice of the filing nor of the November 27, 2017 cash collateral motion.
Debtor’s response requests that the hearing on this motion be continued for 90 days to allow Debtor time to market the property. Debtor received an offer for $1.25 million
9:30 AM
on the property on March 2, and hopes to elicit higher offers. Debtor’s chief financial officer is also pursuing a quiet title action against JP Morgan Chase, the second position lien holder, which could reduce the secured debt against the property by
$226,898. Lastly, Debtor argues that the hearing should be continued because Debtor has been pursuing an adequate protection order with Bayview since this motion was filed.
Movant’s reply states that it has rejected offers from the Debtor as insufficient, and that the litigation against the junior lienholder is not relevant to Movant’s claim.
The Court agrees with the Movant’s characterization that the Property is "hopelessly overencumbered." Even if Debtor’s litigation against JP Morgan Chase is successful, the property would still be nearly a $1 million underwater. The monthly operating reports do not show any income from the Malaga property—or from any source at all, for that matter. Debtor’s opposition did not raise any grounds to deny the motion. Due to the extreme amount of pre-petition arrearages, $472,988.21 reflecting 92 months without payments, it is doubtful that Debtor could possibly propose adequate protection payments. The Court finds cause to grant relief under § 362(d)(1), as described above.
Because there is no equity in the property and Debtor has not met its burden of proving that the property is necessary for reorganization, § 362(g)(2), the Court finds sufficient grounds for relief under § 362(d)(2).
Because this is the third case filed by Debtor to prevent foreclosure on this property, and because the property was acquired by an unauthorized transfer, the Court finds sufficient grounds for relief under § 362(d)(4).
The motion is GRANTED.
APPEARANCE REQUIRED.
Debtor(s):
S.B.R.S., Inc. Represented By
Michael Jay Berger Todd S Garan
9:30 AM
Docket 40
Petition Date: November 20, 2017
Chapter: 11
Service: Proper. Opposition filed.
Property: 3243 Iredell Lane, Studio City, CA 91604 Property Value: $ 5,900,000 (per debtor’s schedules) Amount Owed: $ 3,238,344 (per debtor’s schedules) Equity Cushion (assuming 8% cost of sale): 37% Equity: $2,264,108.
Post-Petition Delinquency: N/A
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(4). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (waiver of the 4001(a)(3) stay); 9 (order binding and effective in any case for 2 years).
Movant alleges that this case was filed in bad faith to delay, hinder, or defraud creditors. Movant details five deeds of trust, four of which were for exactly $25,000, which were granted to individuals who subsequently filed bankruptcy between 2012 and 2014. Copies of the deeds of trust are attached to the motion. Movant also details an unauthorized grant deed in favor of Riverside Investors, LLC conveying 70% of the interest in the Property for no consideration.
Debtor responds that, although the above described grant deeds were executed by Debtor’s principal, Roman Preys, they were done in order to fund an alleged class action to be brought by MMM Property Management against a lender. MMM Property Management appears to have been engaged in some dishonest practices, though Debtor denies knowledge of any such activities at the time and states that it severed ties with MMM after questions about MMM’s practices arose. It appears that nothing came of the class action.
9:30 AM
Somewhat confusingly, Debtor also states that some of the liens granted were to guarantee payment for services rendered. Ultimately, Debtor states that it secured complete reconveyances of all of the documents referenced in Movant’s motion. The Court notes that these reconveyances were obtained after Debtor had received the benefit of the automatic stay in cases apparently coincidentally filed by individuals who performed services for Debtor. Debtor further states that the allegedly unauthorized conveyance to Riverside Investors was known by movant, and was an attempt to satisfy movant’s lien.
Debtor further responds that movant fails to explain how the filings by the other lien holders resulted in any delay, hindrance, or fraud, and points out that movant failed to provide a sworn declaration to substantiate their allegations. Debtor points out that the most recent bankruptcy filed by other lien holders was four years before the commencement of this case.
Finally, Debtor argues that the equities favor denial of the motion and the movant has a substantial equity cushion.
APPEARANCE REQUIRED
Debtor(s):
Benzeen Inc. Represented By
Robert Reganyan
Movant(s):
JPMorgan Chase Bank, National Represented By
Jennifer C Wong Merdaud Jafarnia
9:30 AM
Docket 44
Petition Date: December 18, 2017
Chapter: 11
Service: Proper. Opposition filed.
Property: 13236 Valleyheart Dr. #102, Studio City, CA 91604 Property Value: $380,000 (per debtor’s schedules)
Amount Owed: $295,926 (Movant’s 2nd DoT); (First DoT, in favor of CitiMortgage,
$250,000 )
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $295,926 (loan matured 11/6/16)
11 U.S.C. §362(d) provides that after notice and a hearing, a party in interest may obtain relief from the automatic stay provided in 11 U.S.C. § 362(a). Relief may consist of terminating, annulling, modifying or conditioning the stay. The court shall grant relief from the stay "for cause, including the lack of adequate protection of an interest in property of such party in interest." 11 U.S.C. §362(d)(1). In addition, relief may be granted "with respect to a stay of an act against property under subsection (a) of this section, if the debtor does not have equity in such property; and such property is not necessary to an effective reorganization." 11 U.S.C.
§ 362(d)(2)-(2)(B).
Movant seeks relief under 11 U.S.C. 362(d)(1) and (d)(2), as well as (d)(4) due to this alleged bad faith filing, and waiver of 4001(a)(3) stay. Movant alleges cause for relief under 362(d)(4) due to an unauthorized transfer the subject property on April 20, 2017, from borrower Gladys Husanu to herself and Steven Ben Husanu ("Gladys & Ben"), Co-Trustees of the Living Trust for Gladys Husanu. Motion, Ex. 4. Then, on that same date, Gladys & Ben transferred the subject property again to Castillo I Partnership. Id., Ex. 5, p. 79. Movant alleges this bankruptcy filing was in bad faith as evidenced by the transfers and other indicia of bad faith, such as listing Movant (a known creditor) on the Schedules with the wrong address, the lack of
9:30 AM
insurance for the property, and the alleged $40,000 paid by Debtor to "purchase" the Property, without the secured creditor’s permission or paying the encumbrances before transferring title.
Debtor argues in opposition that it did not file this case in bad faith – instead it filed this case because a trustee’s sale of Debtor’s other property on Castillo Lane in Northridge was scheduled for late in the day on the Petition Date. Debtor provides proof of insurance and offers adequate protection payments of $1,000 per month on the matured obligation until confirmation.
Movant counters that the Grant Deed shows that the transfer was a "bona fide gift" and that there was no $40,000 "payment" for the Property. The Grant Deed from Gladys & Ben to Debtor did indicate that "valuable consideration" was received. It was the Grant Deed from Gladys to Gladys and Ben (Ex. 4) that was for no consideration. Nevertheless, Movant correctly points out that the offered adequate protection payment of $1,000 is not sufficient here, where the obligation is a
$295,000 non-performing, fully matured loan. Movant also notes that the insurance is inadequate, as Movant is not a loss payee, nor does the policy list a mortgagee.
Most compellingly, Movant notes that Debtor proposes to cram down Movant's claim based on the value of the Property. Debtor’s standing to propose such action is dubious where it is the unauthorized transferee of the Property with a complete lack of privity with Movant. Because the Property is not earning revenue, as no rent from the Property is reported on the MORs, Movant alleges that it is a
non-performing asset and not necessary for an effective reorganization. Use of cash collateral from this Property has not been approved.
Debtor’s unapproved1 Sur-Reply cites an Idaho bankruptcy case for the proposition that a debtor may restructure a ‘claim’ on property he owns, even though he is not the note obligor to the creditor. Surreply, 2:5-14, citing In re Thompson, 454 B.R. 486 (Bankr. D. Idaho, 2011)(internal citations omitted). Debtor’s reliance on Thompson, a non-controlling Idaho bankruptcy case, is overbroad. The circumstances here are factually distinguishable from those in Thompson. The analysis of the Thompson holding re property of the estate is focused on the Thompson creditor’s argument about the reach of § 541 where the debtor holds bare legal title in trust for another and whether the trust ceased to exist when the legal and beneficial title were unified. Id. at 492.
Other facts distinguish Thompson and make it inapplicable here. The Thompson
9:30 AM
Court also found that due-on-sale clauses in deeds of trust for real properties included in bankruptcy estate did not prohibit chapter 11 debtors from restructuring a creditor's nonrecourse claims against property that did not serve as debtors' principal residence. Here, the obligation to Movant is likely a recourse claim, as the deed of trust secures a HELOC, rather than a purchase money loan. Motion, Ex. 1, p. 23; Ex. 2.
The facts that supported the good faith finding in Thompson are missing here, e.g., the transfers were interfamilial transfers, done by unsophisticated parties whose actions were, in the bankruptcy court’s view, consistent with "Debtors’ lay approach to real estate issues generally." The creditor in Thompson also waited almost two years before objecting to having its claim treated in the bankruptcy, including not having responded to a motion to value. This, the Thompson court found, allowed for "ample opportunity for opposing evidence to be developed and presented."
Also militating against application here is the fact that the good faith analysis employed by the Thompson court was for whether a chapter 11 plan was proposed in good faith under § 1129(a)(3). See id., fn. 10. Here, in the relief from stay context, the proper good faith analysis is for whether a petition was filed in good faith under § 1112(b) – that is, whether the filing was motivated by Debtor attempting to unreasonably deter and harass creditors, or whether Debtor was attempting to effect a speedy, efficient reorganization on a feasible basis.
For the reasons stated above, the Court finds Thompson to be inapplicable here and Movant’s Motion to Strike is granted. The Court grants relief from stay, as Movant has demonstrated grounds under § 362, the extent to which relief is granted to be discussed at the hearing.
APPEARANCE REQUIRED
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Comerica Bank Represented By
Raffi Khatchadourian
9:30 AM
Docket 56
Motion GRANTED. See tentative ruling for cal. no. 3.
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
fr. 8/13/15, 9/17/15, 12/10/15; 8/18/16, 9/29/16, 12/8/16; 3/16/17, 3/22/17, 7/26/17; 11/15/17, 2/7/18
Docket 1
No Status Report filed. What progress has been made toward resolving professional fees?
APPEARANCE REQUIRED
Debtor(s):
Oracle Transportation Solutions, Inc. Represented By
Steven R Fox
9:30 AM
fr. 6/18/15; 6/11/15; 9/10/15; 12/10/15; 3/3/16, 5/5/16, 7/28/16, 9/15/16, 10/20/16; 3/30/17; 3/29/17
7/12/17, 11/8/17, 12/13/17
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Mark Handel Represented By
David L. Neale
John-Patrick M Fritz
9:30 AM
Docket 0
APPEARANCE REQUIRED
Debtor(s):
Menco Pacific, Inc. Represented By Jeffrey S Shinbrot
9:30 AM
Docket 64
After having reviewed Debtor’s Plan, the ballot summary, and the Confirmation Brief, the Court finds that all requirements for confirmation have been met. Debtor should include requisite findings under § 1129(a) and (b) in confirmation order.
Post-confirmation status conference will be held on 11/7/18 at 9:30 am Please advise if any date conflict.
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
9:30 AM
Docket 16
NONE LISTED -
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
9:30 AM
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Tours Incorporated, Inc. Represented By Mark E Brenner
9:30 AM
Docket 1
No status report has been filed. Trustee withdrew its Motion to dismiss or convert on December 11, 2017. What progress has Debtor made toward proposing a plan?
APPEARANCE REQUIRED
Debtor(s):
Vladimir Vekic Represented By Stephen L Burton
9:30 AM
Docket 6
NONE LISTED -
Debtor(s):
Original Thai 2015, Inc. Represented By
Michael D Kwasigroch
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
9:30 AM
Docket 11
NONE LISTED -
Debtor(s):
Original Thai 2015, Inc. Represented By
Michael D Kwasigroch
9:30 AM
Docket 147
Debtor's response to the U.S. Trustee's motion states that he will be in full compliance with the U.S. Trustee by the date of the hearing. What is the status of Debtor's compliance efforts?
APPEARANCE REQUIRED
Debtor(s):
Jack Piandaryan Represented By Vahe Khojayan
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker S Margaux Ross
9:30 AM
Of Quarterly Fees And For Judgment Thereon
Docket 194
NONE LISTED -
Debtor(s):
Martha J. Castro Represented By
Anthony Obehi Egbase Crystle J Lindsey Edith Walters
W. Sloan Youkstetter
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker S Margaux Ross
9:30 AM
Docket 313
NONE LISTED -
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
Movant(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
9:30 AM
For Allowance Of Fees And Reimbursement Of Costs
Period: 1/10/2017 to 1/17/2018
Fees: $46,932.50 Expenses: $1,960
Docket 119
Service proper. No objections filed. Having reviewed the First and Final Application for Allowance of Fees and Reimbursement of Costs, the Court finds that the fees and costs were necessary and reasonable, and are approved as requested.
APPLICANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 3/21/18.
Debtor(s):
Nahrin Beno Represented By
Matthew D Resnik Roksana D. Moradi
Movant(s):
Nahrin Beno Represented By
Matthew D Resnik Roksana D. Moradi
11:00 AM
fr. 12/7/16; 3/8/17, 6/14/17, 9/27/17, 12/13/17
Docket 1784
NONE LISTED -
Debtor(s):
Owner Management Service, LLC Pro Se
Movant(s):
Farhad Zaghi Represented By
Fahim Farivar
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
11:00 AM
Docket 78
Petition Date: 08/13/2012 Chapter: 13
Service: Proper. Opposition filed.
Property: 20637 Wells Drive, Woodland Hills, CA 91364 Property Value: $714,000 (per debtor’s schedules) Amount Owed: $772,540.69 (per RFS motion)
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency: $308,087.21 (10 payments of $4,410.38; 5 payments of
$8,350.33; 16 payments of $8,483.22; 8 payments of $8,644.15; $17,761.90 in post- petition advances; $1,031 in attorneys’ fees; less $1,445.86 in suspense account or partial paid balance)
Movant requests relief under 11 U.S.C. 362(d)(1). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5).
Debtor filed a late opposition.
APPEARANCE REQUIRED
Debtor(s):
Elizabeth Maybalian Represented By Raymond H. Aver
Movant(s):
COMPASS BANK, its successors Represented By
11:00 AM
Trustee(s):
Nichole Glowin
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELLON
Docket 64
NONE LISTED -
Debtor(s):
Milton A. Martinez Represented By James B Smith
Movant(s):
THE BANK OF NEW YORK Represented By
Erin M McCartney
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
REVERSE MORTGAGE SOLUTIONS INC
Docket 26
Petition Date: 08/15/2016 Chapter: 13
Service: Proper. Opposition filed on 3/7/18.
Property: 8849 Comanche Avenue Canoga Park, CA 91306 Property Value: $485,000 (per debtor’s schedules)
Amount Owed: $411,833.09 (per RFS motion) Equity Cushion: 7%
Equity: $73,166.91
Post-Petition Delinquency: $3,779.95
Movant requests relief under 11 U.S.C. 362(d)(1), with the relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, contending that the Property is necessary for an effective reorganization. Debtor intends to file a plan for reorganization that requires the use of the Property. Debtor also claims that the Property is insured and Debtor is seeking an Adequate Protection Order to cure arrears that have accrued post- petition.
APPEARANCE REQUIRED.
Debtor(s):
Dorothy Lee Carter Represented By Steven A Alpert
Movant(s):
REVERSE MORTGAGE Represented By
11:00 AM
Trustee(s):
Anish Matchanickal Madison C Wilson Sean C Ferry
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
AMERICREDIT FINANCIAL SERVICES INC
Docket 52
NONE LISTED -
Debtor(s):
Rose Jelaca Represented By
Rabin J Pournazarian
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 49
Petition Date: 01/12/2017 Chapter: 13
Service: Proper. Opposition filed on 3/7/18. Reply filed on 3/14/18. Property: 277 East Camino Limon Verde, Sahuarita, AZ 85629 Property Value: $125,000 (per debtor’s schedules)
Amount Owed: $71,132.43 (per RFS motion) Equity Cushion: 35%
Equity: $53,867.57.
Post-Petition Delinquency: $4,389 ($1,239 in post-petition advances or other charges due but unpaid; $3,150 in attorneys’ fees and costs)
Movant requests relief under 11 U.S.C. 362(d)(1) and specific relief requested in paragraph 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the motion and argues that the Property is fully provided for in the chapter 13 plan, all postpetition plan payments are current, and Debtor has provided funds to pay the insurance premium in full. In addition, Debtor asserts that the Property is necessary for an effective reorganization because the Property is an income producing rental property.
Movant’s reply states that contrary to Debtor’s declaration in its opposition, Debtor has failed to maintain property insurance coverage. Movant also asserts that as of March 14, 2018, property taxes remain delinquent, and Movant has not received the reimbursement of $1,239 as evinced by the two money orders Debtor attached to the declaration.
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Georg Bruno Ehlert Represented By Kevin T Simon
Movant(s):
Holding Pen, LLC Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
TOYOTA MOTOR CREDIT CORPORATION
Docket 29
Petition Date: 05/12/2017 Chapter: 7 (previous 13)
Service: Proper. No opposition filed. Property: Vehicle 2016 Toyota Prius
Property Value: $33,500 (per debtor’s schedules) Amount Owed: $33,587.16
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency: $4,921.47
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Josue Marcus Garcia Represented By
Raj T Wadhwani
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 52
Petition Date: 05/26/2017 Chapter: 13
Service: Proper. No opposition filed. Property: 3167 Fond Drive, Encino, CA 91436
Property Value: $2,038,064 (per debtor’s schedules) Amount Owed: $906,142.61 (per RFS motion) Equity Cushion: 48%
Equity: $755,255.39
Post-Petition Delinquency: $23,080.60 (4 payment of $5,770.15)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Upon entry of the order, for purposes of Cal. Civ. Code §2923.5, the Debtor is a borrower as defined in Cal. Civ. Code §2920.5(c)(2)(C)).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Hamila Salehi Tabaie Represented By Kevin T Simon
Movant(s):
HSBC Bank USA, National Represented By Nancy L Lee Merdaud Jafarnia
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
KERN COUNTY TREASURER AND TAX COLLECTOR
fr.11/8/17, 2/7/18
Docket 12
At the February 7 hearing, the Court continued this hearing to March 21, 2018 to allow Debtor an opportunity to make the February and March plan payments. If Debtor has proof that both payments were made, the Court stated that this matter could be taken off calendar. What is the status of Debtor’s plan payments?
APPEARANCE REQUIRED
2/7/18 Tentative
Debtor submits a supplemental response in support of his opposition to the Motion. Debtor asks the Court to direct movant to comply with the Court’s order imposing the automatic stay, dated November 8, 2017 (Docket No. 59). The Order imposing the stay allowed the movant to make preparations for a tax sale of three real properties dated March 26, 2018. The Order contained the following provision:
"If by March 23, 2018, the Debtor has complied with all payments under his plan and complied with all bankruptcy court orders, then the Kern County Treasurer/Tax Collector shall remove the Properties from the tax sale and the stay will continue until further order or operation of law. Should the Debtor not be in compliance with all bankruptcy court orders or current on payments, the Kern County Treasurer/Tax Collector is granted relief to sell the properties in the March 26, 2018, tax sale."
Debtor’s plan came before this Court for confirmation on January 23, 2018 and was confirmed by the court with certain interlineations. Debtor represents that he is current on plan payments, with the next plan payment due February 21, 2018. The order confirming the plan has not yet been entered, though a proposed order was docketed on February 1, 2018 (Docket No. 80).
What is Kern County’s position?
11:00 AM
APPEARANCE REQUIRED
11/08/17 Tentative Petition Date: 9/21/17 Chapter: 13
Service: Proper. Opposition filed.
Property: No addresses—vacant lots in Kern County
Property Value: $81,857 Per Motion. Due to the lack of street addresses on the numerous scheduled vacant lots, it is unclear whether any of the scheduled lots in Mojave, CA are same as the subject lots in Rosamond, CA.
Amount Owed: $ 189,851.98 Equity Cushion: N/A
Equity: N/A
Post-Petition Delinquency: N/A
On October 25, the Court held a continued hearing on debtor’s Motion to Impose or Continue the Automatic Stay. At that hearing, the Court continued the Automatic Stay to February 28, 2018 in order to give Debtor a chance to work out a plan with the taxing authorities. At that hearing, Movant stated that there was a tax sale scheduled for one of the subject properties for mid-March. The Court therefore limited the imposition of the stay in order to allow Movant to list the property for a tax sale. As of November 3, the order had not been lodged with the court.
Movant requests relief under 11 U.S.C. 362(d)(1), (d)(2), and (d)(4), and specific relief in paragraphs 2 (Proceed under non-bankruptcy law); 4 (Confirmation that there is no stay in effect); 5 (Retroactive annulment of the Automatic Stay); 7 (waiver of the 4001(a)(3) stay); 9 (Relief under (d)(4) for bad faith. Relief is binding in any other case filed within two years affecting the property); 10 (Order binding and effective for 180 days against any debtor); 11 (Order binding and effective against any debtor); 13 (if relief from stay is not granted, adequate protection shall be ordered).
Motion claims that this bankruptcy filing is part of a scheme to hinder, delay, or defraud creditors in order to avoid paying property taxes which are, at least in some instances, 14 years overdue. Movant points to the fact that this is Debtor’s sixth bankruptcy filing in the last nine years, four of which were on the eve of the county’s tax sales and were dismissed for failure to file required documents.
Debtor’s opposition to this motion states that this bankruptcy was not filed in bad
11:00 AM
faith and that his previous cases were dismissed because he was unrepresented and unfamiliar with the bankruptcy process. Debtor intends this Chapter 13 to be a 100% plan which includes all pre-petition arrearages due to the Movant.
Movant’s request under paragraph 11 is DENIED per Fed. R. Bankr. P. 7001(7).
APPEARANCE REQUIRED
Debtor(s):
Richard Khatibi Represented By Kevin T Simon
Movant(s):
Kern County Treasurer and Tax Represented By Nicole M Misner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 93
Having reviewed the motion to impose, the Court sees no authority under § 362 nor grounds in this case to impose the automatic stay at this point.
APPEARANCE REQUIRED
Debtor(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Movant(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 12
Petition Date: 01/29/2018 Chapter: 13
Service: Proper. No opposition filed.
Property: 1826 Leimert Boulevard, Oakland, CA 94602 Property Value: $ (per debtor’s schedules)
Amount Owed: $1,196,568.46 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: $5,228.35 (1 payment of $5,228.35)
Debtor’s case was dismissed on March 2, 2018 with a 180 day bar to refiling. Movant produces evidence of a number of fractional interest transfers and prior bankruptcies.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 6 (Co-debtor stay is waived); 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)(4) (bad faith and secured creditors));
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Melania Adamian Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr/ 2/28/18
Docket 38
Petition Date: 07/20/2017 Chapter: 13
Service: Proper. No opposition filed.
Property: 10165 Woodman Avenue, Los Angeles, CA 91345 Property Value: $460,000 (per debtor’s schedules)
Amount Owed: N/A (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency:
Disposition: The motion is DENIED as moot pursuant to the Order Vacating Order Granting Motion to Impose Stay, Doc. No 45.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Antonio Gonzalez Jr. Represented By Donald E Iwuchuku
Movant(s):
Citibank N.A., as Trustee for the Represented By
Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
11:00 AM
Aside Foreclosure Sale fr. 2/27/18
Docket 40
Background
This case was filed on July 20, 2017, the day before the scheduled foreclosure sale of debtor Antonio Gonzales Jr.’s ("Debtor") property commonly known as 10165 Woodman Ave., Mission Hills, CA 91345 (the "Property") by the first priority lien holder, Citibank, N.A. ("Citibank"). Within one year prior to filing, Debtor had two other chapter 13 bankruptcy cases pending: 15-bk-13970-MT, dismissed on September 27, 2016, and 17-bk-11044-MB. Therefore, when the instant case was filed, no automatic stay was in place pursuant to
§ 362(c)(4)(A)(i).
The foreclosure trustee learned of the bankruptcy filing on the day of the trustee’s sale, July 21, 2017. However, determining correctly that no automatic stay went into effect upon Debtor’s filing of this case, the trustee went forward with the sale and sold the property to the highest bidder. On the same day as the sale, Debtor filed a motion for an order imposing the automatic stay under § 362(c)(4)(B) (the "Motion to Impose"). Doc. No.
8. The Motion to Impose was set for hearing on August 16, 2017. No opposition to the Motion to Impose was filed. The Court ruled orally at the hearing, granting the Motion to Impose except as to unsecured creditor, the Internal Revenue Service, which was improperly served. The order on the Motion to Impose which was lodged by Debtor’s counsel, however, contained a provision for relief that was not included in the motion: "The Stay is imposed effective the petition date, July 20, 2017, as to all creditors EXCEPT unsecured creditor, the Internal Revenue Service." Doc. No. 24, emphasis added. This language is clearly violative of § 362(c)(4)(C), which state that "a stay imposed under subparagraph (B) shall be effective on the date of entry of the order allowing the stay to go
11:00 AM
into effect." Unfortunately, the Court did not notice the improper language inserted by Debtor’s counsel and the order was entered on September 7, 2017.
On January 17, 2018, Citibank filed an objection to the confirmation of Debtor’s chapter 13 plan on the grounds that it included a miscellaneous provision seeking to rescind the July 21 foreclosure sale. The Court continued the confirmation the following week out of concern that Debtor had not addressed Citibank’s objection. Debtor’s Declaration Setting Forth Post Petition, Preconfirmation Payments filed on January 19 avers that Debtor has attempted to make payments of $1,404.55 each month since the petition was filed, but that none of his payments were accepted by the lender. Shortly thereafter, Debtor responded to Citibank’s objection to the confirmation of the chapter 13 plan (the "Plan") with a number of arguments against Citibank’s ability to challenge the order on the Motion to Impose.
The Court became aware of the additional language improperly inserted into the order on the Motion to Impose before the February 27 confirmation hearing. At the hearing, the Court notified the parties that it would vacate the order on the Motion to Impose and correct the language with a new order. See Doc Nos. 45 and 46. The same day, Citibank filed the instant Motion for Relief from the Automatic Stay requesting annulment of the stay retroactive to the petition date. Also the same day, Debtor filed the instant Motion to Set Aside Foreclosure Sale. Both matters are before the Court today.
Motion to Set Aside Foreclosure Sale
Debtor moves to set aside the foreclosure sale as violative of either the automatic stay of § 362 or the co-debtor stay of § 1301. Debtor’s argument that the foreclosure sale violated § 362 is rejected pursuant to the Court’s order vacating the original order imposing the stay "effective the petition date." The Court notes that the Motion to Impose did not request such extraordinary relief, nor does the code allow it. Debtor’s attorney improperly inserted language into the lodged order for relief that was not requested in the motion, and should not benefit thereby.
The co-debtor stay argument requires further analysis. While § 362(c)(4) prevents
11:00 AM
the automatic stay from taking effect under § 362(a), there is no similar provision preventing the co-debtor stay from taking effect under § 1301(a). Keith M. Lundin & William
H. Brown, Chapter 13 Bankruptcy, 4th Edition, § 433.1, at ¶ 16, Sec. Rev. July 26, 2007, www.Ch13online.com. Several cases in other circuits, primarily in the Fourth Circuit, have held that a post-petition foreclosure sale in violation the co-debtor of § 1301 stay is void, In re Harris, 203 B.R. 46, 51 (Bankr. E.D. Va. 1994), even where no stay arose under § 362(a) due to multiple dismissed cases within the prior year, In re King, 362 B.R. 226, 233 (Bankr. D. Md. 2007). The Court must determine whether the co-debtor stay was in effect as of the petition date.
Three elements must be satisfied for the co-debtor stay to apply: (1) the debt must be a consumer debt; (2) the consumer debt at issue must be a debt of the debtor; and (3) the co-debtor must be liable on the debt with the debtor. In re Fadel, 492 B.R. 1, 15 (B.A.P. 9th Cir. 2013). The first two elements are not at issue here; the only question is whether the co-debtor is liable on the debt with the Debtor.
Debtor never mentioned a co-debtor or raised the argument that a co-debtor stay under § 1301 was in effect until the instant Motion to Set Aside Foreclosure Sale was filed on February 27, 2018. Debtor’s schedules, filed under penalty of perjury, indicate that he had no co-debtors. Debtor’s schedules indicate that he lived in a community property state with his spouse within the last 8 year, but the box describing which state reads "NONE," and no name of any spouse was given. Schedule A does not reflect that the property was held as community property, and the debt to Nationstar (the mortgage loan servicer for Citibank) in schedule D does not indicate that this is a community debt. The only reference to Debtor’s spouse is apparently schedule I, which shows Debtor’s non-filing spouse’s occupation as "housewife." Debtor was the only individual who signed the note, attached to Citibank’s Response to the Motion to Set Aside as exhibit 4.
Debtor’s argument for why his spouse is liable on the debt relies primarily upon community property law—in particular, California Family Code Section § 910.
(a) 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
11:00 AM
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.
Cal. Fam. Code § 910. The Bankruptcy Appellate Panel has considered a similar issue where a Debtor argued that Cal. Fam. Code § 910 made her liable for the debt on the property titled in her husband’s name, and she sought to void a post-petition foreclosure sale as violative of § 1301 or § 362. In re Fadel, 492 B.R. 1, 7 (B.A.P. 9th Cir. 2013). All of the documents produced in Fadel, including an interspousal transfer agreement, evidenced an intent that the property be held as the husband’s separate, sole property. Under California law, the description in a deed as to how title is held presumptively reflects the ownership status of the property. Id. at 11. The presumption may be rebutted only by clear and convincing proof. Id.
Citibank relies upon Fadel for the claim that the Property was intended as Debtor’s separate property and that Ms. Gonzalez is not liable for the debt to Citibank. Similar to Fadel, the deed specifically states that the Property is held by Debtor, as his sole and separate property. Also similar to Fadel, Ms. Gonzalez executed an interspousal transfer deed in 2007, a copy of which is attached to Debtor’s Motion to Set Aside, transferring all of her interest in the Property to Debtor. Debtor does not challenge the validity of the interspousal transfer deed—indeed, the only apparent grounds for doing so would be admitting that Debtor exerted undue influence over his wife. Id. at 12.
It appears that the BAP’s decision in Fadel is controlling. Debtor has not overcome the title presumption. The property is therefore Debtor’s sole and separate property.
Because the Property is solely owned by Debtor, Cal. Fam. Code § 910 does not apply because the Property was not part of the community estate. In re Fadel, 492 B.R. at 16. Without application of Cal. Fam. Code § 910, Debtor has not provided any proof that his wife is liable on the debt as required to trigger the protection of the co-debtor stay of
§ 1301. The Court also notes that the co-debtor stay theory for avoiding this foreclosure was not raised until seven months after the foreclosure sale, when it became apparent that Debtor’s other arguments would not be persuasive to the Court. The alleged co-debtor was not even revealed until this motion was filed. This abusive behavior by Debtor should not
11:00 AM
inure to his benefit.
Furthermore, Debtor’s motion is improper under Federal Rule of Bankruptcy Procedure 7001(2), which requires an adversary proceeding for "a proceeding to determine the validity, priority, or extent of a lien or other interest in property." Fed. R. Bankr. P. 7001; In re Commercial W. Fin. Corp., 761 F.2d 1329, 1336 (9th Cir. 1985).
For the reasons stated above, Debtor’s motion is DENIED.
Debtor(s):
Antonio Gonzalez Jr. Represented By Donald E Iwuchuku
Movant(s):
Antonio Gonzalez Jr. Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01005 Zamora, Chapter 7 Trustee v. Mendez et al
Docket 1
NONE LISTED -
Debtor(s):
Ricardo Mendez Represented By David H Chung
Defendant(s):
Jose Mendez Pro Se
Lucina Mendez Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Michelle A Marchisotto
Trustee(s):
Nancy J Zamora (TR) Represented By
Michelle A Marchisotto
11:00 AM
Adv#: 1:18-01008 E-Central Credit Union v. Tech
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Ovidio Tech Represented By
Kian Mottahedeh
Defendant(s):
Ovidio Tech Pro Se
Joint Debtor(s):
Dinora Tech Represented By
Kian Mottahedeh
Plaintiff(s):
E-Central Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01007 Karish Kapital LLC v. Aleksaudrovic et al
Docket 6
NONE LISTED -
Debtor(s):
Yakov Aleksaudrovich Represented By Elena Steers
Defendant(s):
Yakov Aleksaudrovic Represented By Stella A Havkin
Natalia Koutina Represented By Stella A Havkin
Yanna Aleksaudrovich Represented By Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Law Offices of Steers & Assoc. Pro Se
RWB Consulting Services & Sales, Represented By
Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
11:00 AM
Joint Debtor(s):
Natalia Koutina Represented By Elena Steers
Movant(s):
Yakov Aleksaudrovic Represented By Stella A Havkin
Yanna Aleksaudrovich Represented By Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Plaintiff(s):
Karish Kapital LLC Represented By Timothy McFarlin
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:18-01007 Karish Kapital LLC v. Aleksaudrovic et al
Docket 1
Having reviewed the docket for this adversary proceeding, the Court finds cause to continue this status conference to April 4, 2018, at 1:00 p.m., to be heard with the Motion to Dismiss Amended Complaint. Plaintiff to give notice of continued status conference.
APPEARANCES WAIVED ON 3/21/18
Debtor(s):
Yakov Aleksaudrovich Represented By Elena Steers
Defendant(s):
Yakov Aleksaudrovic Represented By Stella A Havkin
Natalia Koutina Represented By Stella A Havkin
Yanna Aleksaudrovich Represented By Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Law Offices of Steers & Assoc. Pro Se
RWB Consulting Services & Sales, Represented By
Stella A Havkin RWB Consulting Services & Sales, Represented By
11:00 AM
Stella A Havkin
Joint Debtor(s):
Natalia Koutina Represented By Elena Steers
Plaintiff(s):
Karish Kapital LLC Represented By Timothy McFarlin
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
#7 by Nadine Van Der Velde and Scott Kraft
fr. 12/2/15, 12/3/15, 2/24/16, 3/2/16; 3/9/16,
5/5/16, 6/8/16, 12/7/16; 2/8/17, 4/26/17, 7/12/17; 10/18/17; 12/6/17
1/10/18
Docket 38
Debtor(s):
Ludo Gust Mensch Represented By Michael Jay Berger
Joint Debtor(s):
Lorraine Patricia Mensch Represented By Michael Jay Berger
11:00 AM
Adv#: 1:15-01215 van der Velde et al v. Mensch et al
fr. 11/18/15, 12/2/15; 2/24/16, 3/2/16; 3/9/16, 5/11/16, 6/8/16, 12/7/16; 2/8/17, 4/26/17, 7/12/17; 10/18/17; 1/10/18
Docket 19
Debtor(s):
Ludo Gust Mensch Represented By Michael Jay Berger
Defendant(s):
Ludo Gust Mensch Represented By Michael Jay Berger
Lorraine Patricia Mensch Represented By Michael Jay Berger
Mensch Company Inc. Represented By Michael Jay Berger
Joint Debtor(s):
Lorraine Patricia Mensch Represented By Michael Jay Berger
Plaintiff(s):
Nadine van der Velde Represented By Kenneth S Grossbart Kurt Ramlo
11:00 AM
Sharice B. Marootian
Scott Kraft Represented By
Kenneth S Grossbart Kurt Ramlo
Sharice B. Marootian
US Trustee(s):
United States Trustee (SV) Pro Se
11:00 AM
Adv#: 1:17-01113 Sajadi et al v. Durant
Docket 0
APPEARANCE REQUIRED
Debtor(s):
Joseph Peaks Durant Represented By Dominic Afzali
Defendant(s):
Joseph Peaks Durant Pro Se
Plaintiff(s):
Shawn S Sajadi Represented By Adela Z Ulloa
Zhila T Sajadi Represented By Adela Z Ulloa
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 31
Service proper. No objection filed. Having reviewed Trustee's final report, and finding that the fees and costs are reasonable and necessary, approval is GRANTED. NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Charles C Kim Represented By Robert K Lee
Joint Debtor(s):
Jin Kim Represented By
Robert K Lee
Trustee(s):
Amy L Goldman (TR) Pro Se
1:00 PM
Re: Civil Contempt Against (A) Mainstream Advertising;
(B) Danny Bibi; and (C) Sheila Mishkan fr. 2/13/18, 2/15/18; 3/8/18
Docket 0
APPEARANCE REQUIRED
Debtor(s):
Mainstream Advertising, a Represented By Michael Jay Berger
9:30 AM
fr. 1/11/18
Docket 143
APPEARANCE REQUIRED
Debtor(s):
Farideh Warda Pro Se
1:30 PM
re: Motion to 1) Determine the Value of Real Property Located at 3655 Elm Ave, Long Beach 90807 as Collateral for First Note and Deed of Trust of Temple Beth Shalom-Long Beach; 2) to Determine the Extent of Secured Claim of the First Note & Deed of Trust; and 3) Avoid Junior Liens
fr. 11/29/17; 12/6/17; 2/5/18; 3/1/18
Docket 29
APPEARANCE REQUIRED
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
Movant(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
11:00 AM
fr. 7/25/17, 9/26/17, 11/28/17, 1/23/18
Docket 100
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Movant(s):
Victoria Ruiz Represented By
Siamak E Nehoray Siamak E Nehoray Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/28/17, 5/23/17;l 7/25/17, 9/26/17, 11/28/17, 1/23/18
Docket 89
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 1/23/18; 2/27/18
Docket 44
Debtor(s):
Brenton Haggin Represented By Elena Steers
Joint Debtor(s):
Gisa Haggin-Seeholzer Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 81
Debtor(s):
Henry Gonzalez Silva Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 121
Debtor(s):
Christine Grimes Shore Represented By Elena Steers
Movant(s):
Christine Grimes Shore Represented By Elena Steers Elena Steers Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 110
Debtor(s):
Christine Grimes Shore Represented By Elena Steers
Movant(s):
Christine Grimes Shore Represented By Elena Steers Elena Steers Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 73
Debtor(s):
Elizabeth Maybalian Represented By Raymond H. Aver
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 82
Debtor(s):
Veronica Irene Esparza Represented By Leon D Bayer
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 134
Debtor(s):
Todd Lorenzen Represented By Steven A Wolvek
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 99
Debtor(s):
Nedra Sneed Represented By
Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 78
Debtor(s):
Carmine Antoniello Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 55
Debtor(s):
Irving Antonio Solorzano Represented By Peter M Lively
Joint Debtor(s):
Rosie Ann Solorzano Represented By Peter M Lively
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17, 1/23/18; 2/27/18
Docket 47
Debtor(s):
Henry Guzman Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 77
Debtor(s):
Kelly D Hankins Represented By Steven A Wolvek
Joint Debtor(s):
Pamela J Hankins Represented By Steven A Wolvek
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 110
Debtor(s):
Emma L Gutierrez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 28
Debtor(s):
Ron Cota Represented By
Steven A Alpert
Joint Debtor(s):
Magnolia Sancho Cota Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 31
Debtor(s):
Ron Cota Represented By
Steven A Alpert
Joint Debtor(s):
Magnolia Sancho Cota Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 64
Debtor(s):
Seth Eric Simon Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 74
Debtor(s):
ESTHER OCAMPO Represented By
R Grace Rodriguez
Movant(s):
Cab West, LLC Represented By Sheryl K Ith Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17, 1/23/18
Docket 88
Debtor(s):
Ronny Bess Represented By
Stella A Havkin
Joint Debtor(s):
Jeannie Renat Bess Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 30
Debtor(s):
Macario Asistio Viceral Represented By Sanaz S Bereliani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 78
Debtor(s):
Yolanda Villanueva Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 40
Debtor(s):
Joann B Atkins Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 38
Debtor(s):
Edgar Rufino Hernandez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 48
Debtor(s):
William Michael Desmuke Sr Represented By Claudia L Phillips
Joint Debtor(s):
Priscilla Ann Desmuke Represented By Claudia L Phillips
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 20
Debtor(s):
James A Arce Represented By
James Geoffrey Beirne
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 50
Debtor(s):
Alicia Butterfield Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 39
Debtor(s):
Mari Armandaryan Zakaryan Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 74
Debtor(s):
Nafees Memon Represented By William R Ramsey
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 38
Debtor(s):
Fakhrudin Noorbhai Represented By Jeffrey N Wishman
Joint Debtor(s):
Asma Fakhrudin Noorbhai Represented By Jeffrey N Wishman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 38
Debtor(s):
Yinka Brandy Nunoo Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 57
Debtor(s):
Richard Calvin Shirley Represented By Thomas B Ure
Joint Debtor(s):
Sandra Alexis Pearsonshirley Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 52
Debtor(s):
Bruce Jeffrey Starin Represented By John D Monte
Joint Debtor(s):
Geraldine Papel Starin Represented By John D Monte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 1/23/18
Docket 58
Debtor(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber
Joint Debtor(s):
Violet Khachikyan Osmanian Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 1/23/18
Docket 60
Debtor(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber
Joint Debtor(s):
Violet Khachikyan Osmanian Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 1/23/18
Docket 61
Debtor(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber
Joint Debtor(s):
Violet Khachikyan Osmanian Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 31
Debtor(s):
Yoddy Milton Muguertegui Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 51
Debtor(s):
Hamila Salehi Tabaie Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 41
Debtor(s):
Cindy Lee Harris Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Aside Foreclosure Sale
Docket 40
Debtor(s):
Antonio Gonzalez Jr. Represented By Donald E Iwuchuku
Movant(s):
Antonio Gonzalez Jr. Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 24
Debtor(s):
Karen Marcy Santos Pham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 2/27/18
Docket 23
Debtor(s):
Mary F Kimball Represented By Leslie Richards
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 60
Debtor(s):
Erick Chicas Represented By
Eric Bensamochan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:30 AM
13 trustee. fr. 2/27/18
Docket 0
Debtor(s):
William Michael Desmuke Sr Represented By Claudia L Phillips
Joint Debtor(s):
Priscilla Ann Desmuke Represented By Claudia L Phillips
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 9
NONE LISTED -
Debtor(s):
Gerard Schetritt Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
fr. 3/21/18
Docket 11
NONE LISTED -
Debtor(s):
Louis Vargas Pro Se
9:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Docket 7
NONE LISTED -
Debtor(s):
Julio C Molica Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 106
NONE LISTED -
Debtor(s):
Anzhey Barantsevich Represented By Stephen L Burton
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
Debtor Or Convert Case Under 11 U.S.C. 1112(b)
Docket 136
NONE LISTED -
Debtor(s):
Martha Alicia Ybanez Represented By Matthew D Resnik
9:30 AM
Movant(s):
Roksana D. Moradi
Rainbow Villas HOA Represented By
Mark J Markus | ||
1:16-12315 | Martha Alicia Ybanez | Chapter 11 |
#3.00 | Status and Case Management Conference fr. 10/6/16; 3/2/17, 3/8/17; 4/12/17, 7/12/17; 1/10/18 | |
Docket | 1 | |
NONE LISTED -
Debtor(s):
Martha Alicia Ybanez Represented By Matthew D Resnik Matthew D Resnik
Period: 11/16/2017 to 2/14/2018 Fees: $20656.00 Expenses: $502.31
Docket 59
Granted with the reduction agreed to by counsel based on the UST objection.
9:30 AM
NO Appearance required, given that debtor's counsel agreed with objection.
Debtor(s):
S.B.R.S., Inc. Represented By
Michael Jay Berger Todd S Garan
Movant(s):
S.B.R.S., Inc. Represented By
Michael Jay Berger Todd S Garan
Period: 4/4/2017 to 11/1/2017
Fees: $12,015.00 Expenses: $409.80 fr. 11/29/17, 1/17/18
Docket 82
GRANTED. No appearance required. (Appearance will be for confirmation hearing)
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu
9:30 AM
Crystle J Lindsey
Joint Debtor(s):
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu Crystle J Lindsey
Docket 122
Appearance required.
It appears feasibility is questionable, but the contributions may make this work. Lender has its remedies if payments are not made.
Given that all other requirements are met and debtor's family seem to be willing to make this work, I am inclined to allow confirmation
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu Crystle J Lindsey
Joint Debtor(s):
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
9:30 AM
Movant(s):
Clarissa D Cu Crystle J Lindsey
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu Crystle J Lindsey
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu Crystle J Lindsey
Docket 1
If confirmed, post-confirmation status conference would be November 14 at 9:30 am. Please advise if any conflicts.
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Joint Debtor(s):
Leticia Rodriguez Represented By
9:30 AM
Anthony Obehi Egbase Edith Walters
fr. 6/16/16, 2/9/17; 4/12/17, 7/12/17; 9/27/17, 12/13/17
Docket 1
Based on the status report, this is continued to May 23 at 9:30 am
Debtor(s):
Picture Car Warehouse Inc Represented By Carolyn A Dye
fr. 9/8/16, 11/17/16; 1/19/17; 1/26/17, 3/22/17; 4/12/17 11/15/17; 2/7/18
Docket 1
Based on the settlement, closing of sale and status report, this status conference will be continued to Februsry 7, 2018 at 9:30 am to allow the debtor to either formulate a plan and disclosure or move to disnmiss the case. Debtor should notice the continuance
9:30 AM
Debtor(s):
Muntaser A. Ammari Represented By Mark S Horoupian Mark S Horoupian Mark S Horoupian Jason Balitzer Jason Balitzer Jason Balitzer
fr. 12/1/16; 4/27/17, 4/26/17; 5/10/17, 7/26/17, 2/7/18
Docket 1
Debtor's 1/24 s/r stated that Debtor would consummate the plan and file an application for final decree by March 1. This was continued to after that date to allow for that, but nothing further has been filed.
APPEARANCE REQUIRED
Debtor(s):
Bang T Phan Represented By
John K Rounds
Docket 0
9:30 AM
Claims bar date has been set already at 3/8/18 Objections to claims deadline: July 13, 2018 Disclosure statement filing deadline: August 31, 2018
Proposed disclosure statement hearing: October 24. 2018, 9 :30 am
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Debtor(s):
Henrik Andreas Ingvarsson Represented By Matthew D Resnik
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D Resnik
fr. 3/7/18
Docket 21
Petition Date: 02/23/2018
9:30 AM
Chapter: 11
Service: Proper (Motion heard on Shortened Notice). Opposition filed on 3/6/18. Property: Contents of safe deposit box
Property Value: Unknown – contents of the safe deposit box are unknown Amount Owed: $28,431,172.20 ($21,710,000 in Principal from Cross-Complaint Judgment; $6,721,172.20 in Accrued Interest)
Equity Cushion: N/A Equity: Unknown
Post-Petition Delinquency: N/A
The County of Ventura (Movant) alleges bad faith as cause to seek relief from the automatic stay under 11 U.S.C. §362(d)(1). Movant argues this bankruptcy petition is a part of a scheme to delay, hinder, or defraud creditors. Movant cites to Debtor’s failure to list Movant on initial bankruptcy filings, Debtor’s previously dismissed chapter 11 petition, and further alleges that Debtor intentionally mislead the court in listing an incorrect mailing / residential address. In addition to those allegations, Movant claims Debtor is currently operating an illegal dumpsite in Los Angeles County. Movant asserts that an outstanding $28 million-dollar judgment against Debtor is nondischargeable under §532(a)(7), making reorganization impossible.
Movant requests that the Court: enter an order directing the LA County Sheriff to retain custody of the safe deposit box, set a hearing to determine the disposition of the box, authorize the drilling and inventorying the contents of the box, and impound the assets of the box.
Debtor opposes the Motion, arguing that the listed addresses are correct and that an active lawsuit against Movant (which equals or exceeds the Movant’s judgment) is currently pending in state court. In addition to the potential judgment amount against Movants, Debtor declares he owns millions of dollars’ worth of land and has a regular monthly income. Further, Debtor argues that this motion is without merit because the safe deposit box has nothing of value.
At the previous hearing, parties agreed that the scope of the ruling was limited to maintaining the status quo of the safe deposit box. Both parties agreed for the box to remain secured in Sheriff’s custody and agreed to continue the matter to the Status Conference Hearing on March 28th. The court ordered parties to confer about which state court claims were going forward, and to specifically update the
9:30 AM
court on the process of resolving the underlying dispute at the next hearing.
No further opposition or response to this motion has been filed.
It appears the safe deposit bix issue can be easily resolved. The parties were to confer. has this happened?
APPEARANCE REQUIRED.
Debtor(s):
Barton Wayne Fishback Represented By Matthew Abbasi
Joint Debtor(s):
Carol Fishback Represented By Matthew Abbasi
Movant(s):
COUNTY OF VENTURA Represented By David J Cook
Docket 0
Proposed claim bar date: June 7. 2018 - submit claims bar date order within a week
Objections to claims deadline: July 31, 2018
9:30 AM
Proposed disclosure statement filing deadline: October 25, 2018 Proposed disclosure statement hearing: December 12, 2018 at 9:30
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Debtor(s):
Barton Wayne Fishback Represented By Matthew Abbasi
Joint Debtor(s):
Carol Fishback Represented By Matthew Abbasi
Docket 199
Having reviewed Debtor’s Motion for Discharge and Final Decree, and finding that all requirements are met and no opposition has been filed, the motion is GRANTED.
NO APPEARANCE REQUIRED
Debtor(s):
Martha J. Castro Represented By
Anthony Obehi Egbase Crystle J Lindsey
9:30 AM
Movant(s):
Edith Walters
W. Sloan Youkstetter
Martha J. Castro Represented By
Anthony Obehi Egbase Crystle J Lindsey Edith Walters
W. Sloan Youkstetter
10:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Menco Pacific, Inc. Represented By Jeffrey S Shinbrot
11:00 AM
FORD MOTOR CREDIT COMPANY LLC
Docket 80
- NONE LISTED -
Debtor(s):
Kelly D Hankins Represented By Steven A Wolvek
Joint Debtor(s):
Pamela J Hankins Represented By Steven A Wolvek
Movant(s):
Ford Motor Credit Company LLC Represented By
John H Kim Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
fr. 2/28/18
Docket 73
11:00 AM
2/28/18 Tentative Petition Date: 05/12/2017 Chapter: 13
Service: Proper. Opposition filed on 2/16/18 (2 days late)
Property: 13849-13851 Roscoe Boulevard, Panorama City, California 91402 Property Value: $475,000.00 (per debtor’s schedules)
Amount Owed: $448,347.23 (per RFS motion) Equity Cushion: N/A
Equity: $26,652.77
Post-Petition Delinquency: $1,853.52 (2 payments of $1,853.32; less $1,853.12 of suspense account of partial paid balance)
Movant requests relief under 11 U.S.C. 362(d)(1), with the relief listed in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5).
Debtor opposes the motion, arguing that the Property is necessary for an effective reorganization. Debtor filed or intends to file a plan of reorganization that requires use of the Property.
Debtor also argues the motion should be denied because the Debtor will be current on or before the hearing. In the alternative, Debtor will seek an Adequate Protection Order to cure arrears that have accrued post-petition.
APPEARANCE REQUIRED
Debtor(s):
Irma Villalpando Represented By Steven A Alpert
Movant(s):
Nationstar Mortgage LLC Represented By
Dane W Exnowski John D Schlotter
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
SHERWOOD TOWNHOMES ASSOCIATION
Docket 41
- NONE LISTED -
Debtor(s):
Silvia N Veliz Chinchilla Represented By
R Grace Rodriguez
Movant(s):
Sherwood Townhomes Association Represented By
Neil B Katz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Docket 38
11:00 AM
- NONE LISTED -
Debtor(s):
Antonio Gonzalez Jr. Represented By Donald E Iwuchuku
Movant(s):
Citibank N.A., as Trustee for the Represented By
Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
MERCEDES-BENZ FINANICAL SERVICES USA LLC
Docket 33
Petition Date: 08/22/2017 Chapter: 13
Service: Proper. No opposition filed.
Movant: Mercedes-Benz Financial Services USA LLC Relief Sought to: Pursue Insurance _X
Claim Against 3rd Parties Only
Disposition: GRANTED under 11 U.S.C. 362(d)(1). GRANTED relief requested in paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate); 4 (co-debtor stay is waived); and 5 (waiver of the 4001(a)(3) stay).
11:00 AM
NO APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Hakeem Ademola Omisore Represented By David H Chung
Movant(s):
Mercedes-Benz Financial Services Represented By
Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
FEDERAL NATIONAL MORTGAGE ASSOCIATION
Docket 15
- NONE LISTED -
Debtor(s):
Natalia V Altun Pro Se
Movant(s):
Federal National Mortgage Represented By Nichole Glowin
11:00 AM
Trustee(s):
David Seror (TR) Pro Se
Docket 11
Petition Date: 01/19/2018 Chapter: 7
Service: Proper.
Property: Vehicle 2016 Dodge Ram 1500
Property Value: $18,450 (per motion; not listed in debtor’s schedules) Amount Owed: $5,453.49
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency: $33,415.87 Debtor does not oppose granting relief.
Disposition: GRANTED under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Mario Sergio Nunez Miron Represented By Kevin T Simon
Movant(s):
Santander Consumer USA Inc. dba Represented By
11:00 AM
Trustee(s):
Jennifer H Wang
David Keith Gottlieb (TR) Pro Se
FORD MOTOR CREDIT COMPANY LLC
Docket 24
Petition Date: 01/29/2018 Chapter: 13
Service: Proper. No opposition filed. Property: Vehicle 2011 Jaguar XJL
Property Value: $20,000 (per debtor’s schedules) Amount Owed: $57,458.56
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency: $57,458.56
Disposition: GRANTED under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jose Luis Gonzalez Represented By
R Grace Rodriguez
11:00 AM
Movant(s):
Ford Motor Credit Company LLC Represented By
Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Docket 10
Petition Date: 02/09/2018 Chapter: 7
Service: Proper. No opposition filed. Property: Vehicle 2016 Lincoln Navigator L Property Value: $37,725 (per motion) Amount Owed: $8,547.62
Equity Cushion: 69% Equity: $29,177.38
Post-Petition Delinquency: $44,907.28
Disposition: GRANTED under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Double Black Limousine Represented By Aris Artounians
11:00 AM
Movant(s):
Ally Bank Represented By
Adam N Barasch
Trustee(s):
Nancy J Zamora (TR) Pro Se
US BANK NATIONAL ASSOCIATION
Docket 15
Petition Date: 02/16/2018 Chapter: 13
Service: Proper. No opposition filed.
Property: 13513 South Bluefield Rd, Riverton, Utah 84065 Property Value: $495,000 (per debtor’s schedules) Amount Owed: $546,070.09 (per RFS motion)
Equity: $0.00.
Post-Petition Delinquency: $1,031
Reopened for the purpose to hear Motion for relief from stay on 362(d)(4)
Movant cites to previous filings dating back from 1/14/14, 5/4/16, 3/16/17. 6/15/17, 10/4/17, 2/16/18 as a scheme to hinder, delay, or defraud creditors.
Movant requests that the Court take judicial notice of serial filings and requests the Order become binding in any prior, current, or subsequent bankruptcy filings by any person or entity, with respect to the subject property upon recording of a copy of the Order or giving appropriate notice of its entry in compliance with non-bankruptcy law.
Disposition: GRANTED under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief
11:00 AM
requested in paragraphs 2 (proceed under non-bankruptcy law); and 3 (Movant permitted to engage in loss mitigation activities); 6 (Co-debtor stay is waived).
*Bankruptcy case closed - DISMISSED entered 3/13/18 (see Doc. #28) ; Reopened for the purpose to hear Motion for relief from stay on 362(d)(4)
NO APPEARANCE REQUIRED
Debtor(s):
Daniela Alejandra Rowson Pro Se
Movant(s):
U.S. Bank National Association as Represented By
Alexander G Meissner
CHATEAU HASKELL APARTMENTS LLC
fr. 2/28
Docket 17
Petition Date: 01/23/2018 Chapter: 7
Service: Proper. Opposition filed on 2/28/18. Reply filed 3/8/18. Movant: Chateau Haskell Apartments, LLC
Property Address: 7337 Haskell Ave., Van Nuys, CA 91406 Type of Property: Residential
Occupancy: Month-to-Month UD case filed: 10/05/2017
11:00 AM
UD Judgment: None
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2) and specific relief as requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of 4001(a)(3) stay).
Debtor opposes the motion, arguing that there was insufficient notice of the hearing. Debtor also asserts that more payments have been made to Movant than the Motion accounts for, attaching canceled checks proving payments as Exhibit A. Debtor additionally asserts that Movant’s description of the status of the unlawful detainer proceeding is not accurate and that Debtor will be prejudiced if the Nonbankruptcy Action is allowed to continue the nonbankruptcy forum. Debtor specifically asserts that the motion should be denied because the summons and complaint filed by Creditor in Superior Court on 10/5/17 was quashed, and the Judgment was vacated on 11/29/20.
Movant’s reply asserts that contrary to Debtor’s statement on 2/28/18, Debtor’s opposition was never served on Movant. Further, Movant asserts that as of 3/10/17, the tenant payment ledger shows a running balance of "$ &, 619.60." (See doc. 22 at 2). The exhibit seems to show a balance due of $10,629.10 Movant requests that the court grant the motion to lift the automatic stay so that these issues may be adjudicated in the state court.
This would properly be an issue sorted out by the Superior Court, so RFS is warranted.
APPEARANCE REQUIRED
Debtor(s):
Kanita Kennetha Elaine Petties Pro Se
Movant(s):
Chateau Haskell Apartments LLC Represented By
William E Windham
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 37
Petition Date: 08/22/2017 Chapter: 7
Service: Proper. No opposition filed. Property: Vehicle. 2015 Maserati Ghibli
Property Value: $ (per debtor’s schedules) no Maserati in schedules Amount Owed: $38,204.50
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency: $37,754.50
Disposition: GRANTED under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Juliana Njeim Represented By Kevin T Simon
Movant(s):
Ally Bank Lease Trust Serviced by Represented By
Adam N Barasch
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:18-01010 Seyedan v. Njeim
Docket 1
Continued to 4/25 at 1 pm to be heard with Motion to Dismiss
Debtor(s):
Juliana Njeim Represented By
Richard Mark Garber
Defendant(s):
Juliana Njeim Pro Se
Plaintiff(s):
Maryam Seyedan Represented By James R Selth
Trustee(s):
Nancy J Zamora (TR) Pro Se
Docket 36
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the
11:00 AM
Court finds that the fees and costs are reasonable and are approved as requested.
TRUSTEE TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 3/28/18.
Debtor(s):
Sharay Lo Sann Moreland Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
Docket 37
Why is there no declaration from former counsel?
Why did debtors not appear at the hearing when they could not reach counsel?
Why did debtors not tender payments?
Given the amount of equity in the home, can an APO be figured out? APPEARANCE REQUIRED
Debtor(s):
Salvador Garcia Jr. Represented By Donald E Iwuchuku
Joint Debtor(s):
Yolanda M. Garcia Represented By
11:00 AM
Movant(s):
Donald E Iwuchuku
Salvador Garcia Jr. Represented By Donald E Iwuchuku
Yolanda M. Garcia Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
Adv#: 1:17-01023 Zambo v. Jeffries
Docket 10
- NONE LISTED -
Debtor(s):
Penelope Charlene Jeffries Represented By Ginger Marcos
Defendant(s):
Penelope Charlene Jeffries Pro Se
Movant(s):
Nicole Zambo Pro Se
Plaintiff(s):
Nicole Zambo Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
Adv#: 1:17-01023 Zambo v. Jeffries
fr. 6/14/17; 9/27/17
1:00 PM
Docket 1
Parties to file and serve trial briefs (if required):
TRIAL TO BE HELD ON:
COURT TO ISSUE SCHEDULING ORDER
Debtor(s):
Penelope Charlene Jeffries Represented By Ginger Marcos
Defendant(s):
Penelope Charlene Jeffries Pro Se
Plaintiff(s):
Nicole Zambo Pro Se
Trustee(s):
Diane Weil (TR) Pro Se
2:00 PM
fr. 10/18/17; 11/15/17; 12/6/17, 2/7/18,
Docket 1
- NONE LISTED -
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro
1:17-12260 #29.00 | Senior Community Housing Long Beach, LLC EVID HRG - | Chapter 11 |
re: Motion to 1) Determine the Value of Real Property Located at 3655 Elm Ave, Long Beach 90807 as Collateral for First Note and Deed of Trust of Temple Beth Shalom-Long Beach; 2) to Determine the Extent of Secured Claim of the First Note & Deed of Trust; and 3) Avoid Junior Liens | ||
fr. 11/29/17; 12/6/17; 2/5/18; 3/1/18, 3/22/18 | ||
Docket 29 |
Based on the testimony at the hearing, as will be explained on the record, I find the value of the property to be $ 2, 054,110 SOLELY for purposes of section 362(d)(3)(B), The parties should figure out what they believe to be
2:00 PM
the "nondefault contract rate of interest on the value of teh creditor's interest" in teh property so that I can set the ongoing monthly payments until confirmation value can be established.
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
Movant(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
Docket 98
This declaration was not authorized and does not present evidence on any issues provided for in the motion or scheduling order. It will not be considered and is stricken. If debtor wants evidence as to zoning and value considered, it must file a plan and state exactly what the use is and what value such use makes the property. Until such time, these issues are premature.
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
2:00 PM
9:30 AM
Re: Motion to Avoid Lien Judicial Lien with Donna Fuller, Lucy Kapetanich, Valerie Kerr, Lisa McGrath,
April Wyman & Kathleen McTeague fr. 2/7/18
Docket 142
Service: Proper
Property Address: 3708 Alomar Dr., Sherman Oaks, CA 91723 (the "Alomar Property"). On April 3, 2008, judgement creditors Donna Fuller, Lucy Kapetanich, Valerie Kerr, Lisa McGrath, April Wyman, and Kathleen McTeague (collectively, "Creditors") recorded an abstract of judgment in Los Angeles County, attached to the motion as Exhibit 4. A chapter 7 voluntary petition was filed in this case was filed on April 18, 2014. On June 24, 2014, Creditors entered into a stipulation with the chapter 7 trustee providing for payment of proceeds from the sale of the Alomar Property and the Verdugo Property, which would otherwise be payable to the Creditors, would be paid to 1) the trustee, 2) the trustee’s attorneys, and 3) the bankruptcy estate.
Creditors timely filed a secured proof of claim for $1,111,200.40 on July 30, 2014 (Claim 7-1). On September 18, 2014, Debtor entered into an agreement with the chapter 7 trustee to abandon the Alomar Property and debtor’s liquor license in exchange for paying $65,000 into the estate.
Debtor argues that, upon discovering that assets would be administered to unsecured creditors, Creditors subsequently amended their proof of claim on June 26, 2017 asserting an unsecured claim.
As a threshold matter, the Court will address Debtor’s judicial estoppel argument. Debtor argues that the Court should apply judicial estoppel to bar Creditors from asserting a security interest in the Alomar Property. Effectively, Debtor asks the Court to apply an equitable doctrine to strip a lien lawfully attached to property under California state law—otherwise, that by entering into the carve-out Agreement,
9:30 AM
Creditors "essentially waived their secured interest" in the Alomar Property.
In their response, Creditors state that they amended their claim to unsecured after being told to do so by the attorney for the chapter 7 trustee, Ori Blumenfeld. Mr. Blumenfeld, via email, stated that Creditors do "not have a security interest in any of the funds recovered, as they came from litigation recoveries or settlements." A declaration to that effect and a copy of the email are attached to Debtor’s response.
Judicial estoppel is a "flexible equitable doctrine" which, among other applications, "estops a party from gaining an advantage by taking one position and then seeking another advantage from an inconsistent position." In re An-Tze Cheng, 308 B.R.
448, 452 (B.A.P. 9th Cir. 2004), aff'd and remanded sub nom. In re Cheng, 160 F. App'x 644 (9th Cir. 2005). Furthermore, "[j]udicial estoppel should be reserved for compelling situations." Id. at 456. Midland Funding and Wells Fargo both filed unsecured claims and will receive estate funds according to the Trustee’s Final Report despite similarly holding a judicial lien against the Alomar Property. There is no appearance of any wrongdoing on the part of the Creditors. Creditors effectively agreed for purposes of this bankruptcy to be treated as unsecured creditors in order to collect what they could from the sale of the properties. Even if such conduct was inequitable, Debtor has provided no authority for the Court’s authority to strip a lien under the theory of judicial estoppel. Nor is the Debtor correct in stating that Creditors "waived" their lien in signing the carve-out agreement. Judicial estoppel is not applicable.
Following the avoidance of the junior judicial liens of Midland funding, LLC, KFT Enterprises, and Wells Fargo, lien avoidance under § 522(f) would be calculated as follows.
Consensual 1st DoT: $1,057,466 Consensual 2nd DoT: $510,850
Exemption claimed: $175,000
Total liens plus claimed exemption: $2,854,516.40 SUBTRACT FMV of property (per Debtor): <$1,700,000>
See In re Pike, 243 B.R. 66, 71 (B.A.P. 9th Cir. 1999). An appraisal was submitted in opposition to this motion by Creditors. The appraiser, John Dart, states that on or about March 11, 2013, more than a year pre-petition, he conducted an exterior-only inspection of the Property for Prospect Mortgage, LLC for purposes of a refinance
9:30 AM
transaction. Dart’s first appraisal valued the property at $2,718,000. Doc. 157 p.2. On January 22, 2018, Mr. Dart conducted a second appraisal of the Property and estimated that, as of the petition date, April 18, 2014, the Property’s value was
$2,600,000. However, Mr. Dart also states that the appraisal is based upon the "extraordinary assumption" that certain damage, including currently existing water damage, occurred subsequent to April 18, 2014. While Mr. Dart had no evidence of when the damage occurred, large repair estimates "could have a significant impact on this appraisal." In their response, Creditors argue that the higher, $2,718,000 valuation from the exterior-only inspection should be used for purposes of this 522(f) motion.
Creditors also argue that Debtor provides no evidence of entitlement to an enhanced homestead exemption of $175,000, and contend that Debtor is entitled to a homestead exemption of only $75,000 under Cal. Civ. Code 704.730(a)(1). A party in interest may challenge the validity of a claimed exemption for the first time on a lien avoidance motion, even where the deadline for objection under 522(I) has run. In re Morgan, 149 B.R. 147, 151-52 (B.A.P. 9th Cir. 1993).
Assuming that the Creditors’ appraisal valuation and exemption amount are correct, the calculation under § 522(f) would be:
Consensual 1st DoT: $1,057,466 Consensual 2nd DoT: $510,850
Exemption: $75,000
Total liens plus claimed exemption: $2,754,516.40 SUBTRACT FMV of property (per creditor): <$2,600,000>
Debtor has not submitted a reply. It appears that there are two remaining issues: 1) the amount of the homestead exemption and 2) the value of the property. Debtor must provide evidence of his entitlement to an enhanced homestead exemption. It seems likely that, even accepting Creditor’s exemption amount and appraiser’s valuation upon a full inspection, a portion of Creditor’s lien may be avoided under
§ 522(f). It appears that an evidentiary hearing will be necessary. The parties should appear prepared to discuss possible dates and deadlines.
APPEARANCE REQUIRED
9:30 AM
Debtor(s):
Akop Gasparyan Represented By Vahe Khojayan
Movant(s):
Akop Gasparyan Represented By Vahe Khojayan Vahe Khojayan Vahe Khojayan
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
Ervin Cohen & Jessup LLP
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Andy Hong Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Francis Grant Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 162
If there is no stipulation with bank, debtor will need explain why case should not be dismissed. There has been more than sufficient time to work this out.
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
fr. 1/8/15; 7/30/15, 10/15/15; 1/20/16; 3/31/16, 6/2/16, 7/28/16, 11/3/16, 7/28/17; 10/18/17; 12/6/17,
2/7/18; 3/7/18
Docket 1
No status report was timely filed and the disclosure statement and plan cannot go forward where debtor is attempting to cram down a primary residence.
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
Movant(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
fr. 3/21/18
Docket 313
Debtor filed this Motion to Disallow ("Motion") the claim of Sarah Boodaie ("Claimant") as untimely filed. Debtor further argues that the Court should estimate Claimant’s claim under § 502(c) to be $0.00 as contingent and unliquidated.
Sara Boodaie and Joseph Boodaie were, as of the petition date, co-trustees of the Yahouda Revocable Living Trust dated July 6, 2007 (the "Trust"). Since the petition date, Sara Boodaie has petitioned the probate court to remove Joseph Boodaie a co-trustee for his misconduct as co-trustee of the Trust. The probate court litigation is still pending. However, in March 2016, the Los Angeles Superior Court found that Debtor is owned by Joseph Boodaie, rather than the Trust. Request for Judicial Notice, Exhibit G. The Superior Court further stated that it "would authorize the judgment creditor to levy on the stock certificates of Osher and Osher, Inc. as an asset of the debtor [Joseph Boodaie], were it not for the stay of the Bankruptcy Court." Id. The Superior Court subsequently entered its Findings and Order at Evidentiary hearing to Determine Ownership of Osher and Osher, Inc., which specified that "Joseph Boodaie, in his personal, individual capacity, is the owner of Osher and Osher, Inc." Request for Judicial Notice, Exhibit H. On August 2, 2016 this Court granted the judgment creditors relief from the automatic stay to allow levy on the stock certificates of Debtor. Judgment Creditors now control the case and have consented to it continuing so that the distribution of the proceeds of the sale can be resolved.
The claims bar date in this case was August 17, 2016. Claimant filed her proof of claim six months later on February 21, 2017. A claim may be disallowed under § 502(b)(9) if untimely filed, with certain enumerated exceptions. Claimant has not indicated that her claim falls within one of those exceptions. Claimant instead argues, in her untimely filed opposition to the Motion, that she was the acting
9:30 AM
principal of the Debtor at the time of the petition and continued to be so "for a period longer thereafter longer [sic] than expiration of the Claims Bar Date." Claimant Response, 3:5. Therefore, Claimant argues, "it is fully reasonable that the Claims Bar Date did not apply to Claimant’s interest(s) at the time the Claims Bar Date expired or that Claimant did not understand, nor should have understood, that she needed to file a proof of claim before the Claim[s] Bar Date or for a considerable period thereafter." Claimant Response, 3:14-17. Claimant provides no authority to support her argument.
Claimant’s claim was filed in February 2017, almost a full year after the Superior Court’s March 2016 judgment and order determining that the Debtor was owned by Joseph Boodaie, and not the Trust. The Court did not fix the claims bar date until June 16, 2016. Claimant should have known months before the claims bar date was even set that the Trust did not have an equity interest in the Debtor. If it was still unclear, the Court’s order August 2016 allowing judgment creditors relief from the automatic stay to levy on the stock certificates, and the subsequent levy, should have resolved any doubt as to Claimant’s position as an equity holder.
Claimant also never clearly explains how her personal claim would not have to be asserted in the Osher bankruptcy estate regardless of who controls Osher.
Claimant further argues that Federal Rule of Civil Procedure ("FRCP") 60(b)
provides a basis for the Court to grant relief from the claims bar date. The Supreme Court considered a similar argument in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship. 507 U.S. 380 (1993). However, unlike the claimant in Pioneer, Ms. Boodaie did not comply with the requirements of Rule 9006(b)(1) by moving the Court to allow her claim as late-filed due to excusable neglect. Furthermore, a motion under FRCP 60(b) must be brought within one year of relevant order or judgment. The Order Setting Last Day to File Proofs of Claim was entered June 20, 2016. More than a year has therefore elapsed since the order was entered, and relief under FRCP 60(b) is not available.
Furthermore, even if the court were able to overlook (1) the late filing of the claim, and (2) the Rule 60(b) deadline, Claimant has failed throughout the duration of this case to produce any evidence to support her claim in this bankruptcy. As we enter April 2018, no documentation has been produced to support any claim by Claimant either in the original claim or in response to the objection to claim. Claimant now requests that the Court continue this hearing to mid-May in anticipation of further rulings from the probate court. It is difficult to imagine what relief Claimant could obtain in probate court by removing Joseph Boodaie as co-trustee of the Trust due to the fact that the Superior Court has determined that the Trust does not have
9:30 AM
an ownership interest in the Debtor; ownership is held by Joseph Boodaie. A statement filed in support of disallowance of Claimant’s claim asserts that Claimant has not filed anything with the probate court since October 2016 other than a substitution of attorney filed in March 2017. Rulings coming from the probate court appear unlikely, and any evidence that would support a ruling there could have been produced here to support this claim. The case has been pending for years -- if there were any merit to this claim, there has been more than sufficient time to demonstrate that. This lack of proof requires the Court to estimate the claim at $0 under § 502(c) if the claim were not disallowed as untimely filed.
.
For the reasons stated above, Claim number 10 is DISALLOWED. APPEARANCE REQUIRED
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
Movant(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
9:30 AM
Docket 0
No plan and disclosure were filed by the mandatory deadline. Ms. Warda has said in response that filing a plan is not possible, given the valuation and debt level. These have been determined and are final. The choice at this hearing will be whether to dismiss the case or convert to Chapter 7. Parties may be heard on this. A chapter 11 trustee is not an option and not appropriate here.
Debtor(s):
Farideh Warda Pro Se
9:30 AM
Docket 1
No plan and no status report have been filed. It is time to decide whether this case should be dismissed or converted to Chapter 7.
Debtor(s):
Ferdinand Holgado Represented By Dana M Douglas
9:30 AM
fr. 3/21/18
Docket 147
Debtor's response to the U.S. Trustee's motion states that he will be in full
compliance with the U.S. Trustee by the date of the hearing. What is the status of Debtor's compliance efforts?
APPEARANCE REQUIRED
Debtor(s):
Jack Piandaryan Represented By Vahe Khojayan
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker S Margaux Ross
9:30 AM
with an Order Directing Payment Of Quarterly Fees And For Judgment Thereon
Docket 37
Appearance required.
Debtor(s):
Tatonka Acquisitions, Inc. Represented By Dana M Douglas
9:30 AM
Docket 34
Service: Proper. No opposition filed.
Property Address: 1315 S. Keene Ave, Compton, CA 90220
First position lien: $250.74 (LA County Treasurer and Tax Collector) Second trust deed (to be avoided): $501,922.55
Fair market value per appraisal: $350,000
Secured Portion of U.S. Bank’s Claim: $349,749.26 Unsecured Portion of U.S. Bank’s Claim: $152,173.29
Disposition: GRANTED.
PREVAILING PARTY SHOULD SUBMIT THE FORM ORDER, A BLANK COPY OF WHICH MAY BE DOWNLOADED FROM THE JUDGE’S FORMS SECTION ON THE COURT’S WEBSITE.
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
9:30 AM
Docket 36
Debtor has not filed a status report as required.
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
11:00 AM
fr. 2/28/18
Docket 38
Petition Date: 04/18/2017 Chapter: 13
Service: Proper. Opposition filed 02/15/18 (1 day late) Property: 8037 Mammoth Avenue, Los Angeles, CA 91402 Property Value: $439,000.00 (per debtor’s schedules) Amount Owed: $284,644.27 (per RFS motion)
Equity Cushion: 27% Equity: $160,262.01
Post-Petition Delinquency: $9,926.95 (5 payments of $1,779.55; $1,031.00 in Attorneys’ fees and costs; Less $1.80 in suspense account or partial paid balance)
Movant requests relief under 11 U.S.C. 362(d)(1), with the relief listed in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5).
Debtor opposes the Motion, declaring that all postpetition arrearages will be cured by the hearing date on this motion and/or debtor will enter into an APO with Movant.
APPEARANCE REQUIRED
Debtor(s):
Mario Alberto Cerritos Represented By Luis G Torres
11:00 AM
Movant(s):
Wells Fargo Bank,N.A, As Trustee Represented By
Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
WELLS FARGO BANK, AS TRUSTEE FOR STRUCTURED ADJUSTABLE RATE
Docket 66
This case will be transferred to Judge Barash to commence the loan
modfication process through the Court's loan modification program.
Debtor(s):
Maria Teresa A. Jalbuena Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
WELLS FARGO BANK, N.A. dba WELLS FARGO DEALER SERVICES
Docket 23
Petition Date: 10/07/2017 Chapter: 7
Service: Proper. No opposition filed.
Property: Vehicle. 2007 Ford Truck F350 Super Duty-V8 Property Value: $8,720 (per debtor’s schedules)
Amount Owed: $19,935.09 Equity Cushion: N/A Equity: $0.
Post-Petition Delinquency: $1,570.12
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Francisco Jose Jimenez Represented By David H Chung
Joint Debtor(s):
Norma Jimenez Represented By David H Chung
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
11:00 AM
EASTON INVESTMENTS II, LP DBA THE VILLAGE APARTMENTS
Docket 9
- NONE LISTED -
Debtor(s):
Marvin Davis Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/21/18
Docket 52
Debtor appeared at March 21 hearing on this motion and indicated that she was
interested in potentially working with the lender or possibly putting the property on the market. Nothing new has been filed on the docket. What is the status of Debtor’s attempt to resolve this issue?
APPEARANCE REQUIRED
Debtor(s):
Hamila Salehi Tabaie Represented By Kevin T Simon
Movant(s):
HSBC Bank USA, National Represented By Nancy L Lee Merdaud Jafarnia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:16-01119 Moussighi et al v. Talasazan
To Appear For And Provide Testimony At Continued Deposition, And Request For Sanctions, Including Reimbursement Of Court Reporter And Interpreter Non Appearance Fees
Docket 38
This could be considered a routine discovery dispute, but since it is exactly the kind of dispute that attorneys should work out together as professionals, it is necessary to describe what happened in boring detail in order to explain this ruling properly. There was a great deal of unnecessary confusion regarding the timing of the depositions in this matter. After reading all emails submitted by both sides, the court concludes that the confusion was a result of sloppy practice and poor communication by Defendant’s attorney, Raymond Aver, not the Plaintiffs. Because there was no meaningful meet and confer before the motion was filed and no basis for the motion, the motion is denied.
Mr. Aver requested dates to schedule the depositions of Moeir Moussighi and Hanrit Moussighi from Mr. Ashour by email on October 30, 2017. Motion to Compel, Exh. A. Mr. Ashour responded on November 20 with four potential dates and times for each Plaintiff. Joint Stipulation Exh. 1. On December 6, Mr. Aver emailed Mr. Ashour that he had not received any response to his October 30 email, and that he had unilaterally scheduled depositions for each Plaintiff. Joint Stipulation Exh. 2. The depositions scheduled by Mr. Aver, January 8, 2018 at 10:00 p.m. for Moeir and January 10 at 10:00 p.m. for Hanrit, did not correspond to the days provided by Mr. Ashour. Motion to Compel, Exh. B, C. In response to Mr. Aver’s email the following day, Mr. Ashour expresses confusion that the deposition dates and times do not match those provided in the November 20 email. Joint Stipulation Exh. 3.
The papers hint at further emails exchanged between the attorneys in December, but the next most recent emails filed with the Motion are from January 2. In that exchange, Mr. Aver informs Mr. Ashour that neither Mr. Aver nor his client, Mr. Talasazan, would be attending Mr. Talasazan’s deposition scheduled for January
4. When asked if Plaintiffs would be attending their scheduled depositions, Mr.
11:00 AM
Ashour repeated his criticism that the dates scheduled did not match the dates provided in the November 20 email. Mr. Aver responds by stating that the 10 p.m. time was merely a typographical error on the front page, but it appears that the parties agree to continue the depositions.
The parties agreed on January 23 to dates for Plaintiffs’ depositions: February 8 for Moeir and February 9 for Hanrit. Motion to Compel, Exh. G. Mr. Aver provided notice to Mr. Ashour on February 6 that Hanrit’s deposition would have to be continued due to a "court ordered deposition." Motion to Compel, Exh. H. Moeir’s deposition, however, went ahead as planned on February 8. A partial transcript of that deposition is attached to the Motion as Exhibit I. This select portion of the last several minutes of a more than five hour deposition does not cast either attorney in a flattering light. Mr. Ashour claims that at a break during the deposition, Mr. Aver informed him that the scheduling conflict for Hanrit’s deposition the following day had been resolved. Mr. Ashour attempted to contact Hanrit that night, but was unable to do so.
The following day, February 9, Mr. Aver emailed Mr. Ashour at 10:24 a.m. to ask why neither he nor Hanrit had appeared at the deposition scheduled for that morning. Motion to Compel, Exh. J. Mr. Ashour responded that Mr. Aver’s February 6 email had led Hanrit to believe that her deposition on February 9 would not be going forward, and that she had made other plans in the interim. Motion to Compel, Exh. K. Mr. Aver then recorded an Affidavit re Nonappearance.
On February 19, Mr. Ashour provided new three possible dates for a rescheduled deposition of Hanrit: February 26, 27, and March 8. Motion to Compel, Exh. O. Mr. Aver responded the next day by sending a stipulation regarding dates for Plaintiffs’ depositions, including the February 26 date for Hanrit. The stipulation was never signed, and there is no evidence that Mr. Ashour agreed to the date requested. Mr. Ashour denies that he was ever informed by Mr. Aver that Hanrit’s deposition would be on February 26. Motion to Compel, Exh. T. Mr. Ashour states that he did not agree to the stipulation due to a provision requiring his client to pay the court reporter’s fees. Joint Stipulation Exh. 7. According to Mr. Ashour, no correspondence occurred between the attorneys for the two following weeks.
Regardless, Mr. Aver unilaterally scheduled the deposition of Plaintiff Hanrit for Monday, February 26, and emailed Plaintiff’s attorney at 3:00 p.m. on Friday, February 23 to confirm that Hanrit would appear. The email records of the interactions between the attorneys are telling:
11:00 AM
On Feb 23, 2018, at 3:28 PM, Ashkan Ashour ,Ash@aaa-law.com> wrote:
I don’t remember you scheduling the deposition at that time. Although that was one of the 3 dates we provided, I don’t have any record of you actually letting us know that you would be taking the deposition on that date.
I will have to contact my client and see if she is still available at that time and get back to you. If you believe you have sent a previous indication that this was the date you were going to depose her, please forward it to me because as I said I search[ed] my records and e-mail and I have not received anything from you indicating that you would be taking her deposition on that date.
I will do my best to get back to you by 5:00pm but you only e-mailed me at 3:06pm
Motion to Compel, Exh. Q. The deposition scheduled for February 26 apparently did not go forward, and on that day Mr. Ashour again provided potential dates to Mr.
Aver for a deposition. Motion to Compel, Exh. R. On February 28, Mr. Aver responded with a chosen date in a frustrated email, and Mr. Ashour responded with his own frustrated email stating that Mr. Aver would end up "unhappy and unpaid" like several attorneys before him in this case. Motion to Compel, Exh. T.
At 10:30 a.m. on Tuesday March 6, Mr. Aver emailed Mr. Ashour to inform him of this Motion to Compel and request that he provide Mr. Aver with Plaintiff’s portions of the joint stipulation as required under LBR 7026-1(c)(3) within 24 hours. Motion to Compel, Exh. U. Mr. Ashour informed Mr. Aver that he was preparing for trial on Monday, and that he would have difficulty meeting the 24 hour deadline. The Motion to Compel was filed on March 7 at 5:16 p.m. along with Defendant’s Unilateral Stipulation Pursuant to LBR 7026-1(c)(3). Mr. Ashour alleges that he forwarded his portion of the Joint Stipulation at 5:52 p.m., but was informed by Mr. Aver’s firm that a Unilateral Stipulation had been entered because Mr. Ashour did not comply with the 24 hour deadline. At 5:05 p.m. on March 8, Mr. Aver filed a Declaration of Raymond H. Aver re Noncooperation/Cooperation of Plaintiff’s’ Counsel regarding the stipulation. At 5:07 p.m., Mr. Aver filed the Joint Stipulation containing Mr. Ashour’s portions of the stipulation.
Mr. Aver has omitted some of the less flattering emails from the Motion, and yet the emails attached to the Motion paint a pretty clear picture.
FRCP 37 (FRBP 7037) Motion to Compel
11:00 AM
Defendant brings this motion to compel under Rule 37(a) of the Federal Rules of Civil Procedure ("FRCP"), made applicable to this adversary by Federal Rules of Bankruptcy Procedure ("FRBP") 7037 and 9014(c).
FRCP 37(a)(5) states as follows:
Payment of Expenses; Protective Orders.
If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
the opposing party's nondisclosure, response, or objection was substantially justified; or
other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5). (emphasis added). Defendant argues that sanctions under FRCP 37 are mandatory here, as the underlined text above indicates. However, FRCP 37(a)(5)(A) provides three exceptions to the obligatory language. The Court finds that Plaintiff’s actions surrounding the depositions, described above, were substantially justified under FRCP(a)(5)(A)(ii) and, in addition, that the circumstances make an award under FRCP 37(a) unjust. The emails demonstrate that Mr. Ashour demonstrated great patience with Mr. Aver’s inability to communicate effectively.
Defendant also moves for sanctions under FRCP 37(d)(5), which states:
Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.
In General.
Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:
a party or a party's officer, director, or managing agent--or a person designated under Rule 30(b)(6) or 31(a)(4)--fails, after being served with proper notice, to appear for that person's deposition; or
11:00 AM
a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.
Fed. R. Civ. P. 37(d). While it is undisputed that Hanrit, a party to this action, did not attend her own deposition, sanctions under FRCP 37(d)(1) are discretionary. Here, it appears that the primary reason that Hanrit did not attend her deposition was the poor communication and scheduling of attorney for Defendant, Mr. Aver. The Court declines impose sanctions on Plaintiffs or Mr. Ashour under FRCP 37(d).
LBR Sanctions
Defendant argues that sanctions are mandatory under LBR 7026-1(c)(4), which states as follows:
( 4 ) Cooperation of Counsel; Sanctions. The failure of any counsel either to cooperate in this procedure, to attend the meeting of counsel, or to provide the moving party the information necessary to prepare the stipulation required by this rule within 7 days of the meeting of counsel will result in the imposition of sanctions, including the sanctions authorized by FRBP 7037 and LBR 9011-3.
(emphasis added). Notably, Mr. Ashour did not have seven days to respond to this motion; he only had 24 hours. This is completely violative of the meet and confer requirement of LB 7026-1(c)(2):
Meeting of Counsel. Prior to the filing of any motion relating to discovery, counsel for the parties must meet in person or by telephone in a good faith effort to resolve a discovery dispute. It is the responsibility of counsel for the moving party to arrange the conference. Unless altered by agreement of the parties or by order of the court for cause shown, counsel for the opposing party must meet with counsel for the moving party within 7 days of service upon counsel of a letter requesting such meeting and specifying the terms of the discovery order to be sought.
The actions taken by Mr. Aver do not demonstrate a good faith effort to resolve the discovery dispute. Plaintiff argues that, "pursuant to his own moving papers, it is Mr.
11:00 AM
Aver who should be sanctioned here." The Court will not consider sanctions against Mr. Aver, as they are not currently properly before the Court. A separate motion may be brought if counsel seeks to pursue this further.
For the above stated reasons, Defendant’s requests for sanctions against Plaintiffs and their counsel is DENIED. There will be no appearances on April 4 for this motion as the court has already spent enough time on an unnecessary motion. The parties should complete the remaining depositions discussed above as soon as possible in a professional manner.
Debtor(s):
Yoram Talasazan Represented By Raymond H. Aver
Defendant(s):
Yoram Talasazan Represented By Raymond H. Aver
Plaintiff(s):
Moeir Moussighi Represented By Ashkan Ashour
Hanrit Moussighi Represented By Ashkan Ashour
Moeir and Hanrit Moussighi dba Represented By
Ashkan Ashour
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:17-01072 LOANME, INC. v. Mandavi
fr. 11/1/17, 11/8/17
Docket 7
Debtor(s):
Milad Mandavi Represented By David S Hagen
Defendant(s):
Milad Mandavi Represented By David S Hagen
Plaintiff(s):
LOANME, INC. Represented By Tina M Pivonka
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:18-01022 Dagres v. Countrywide Bank, N.A. et al
Docket 1
Remanded to Superior Court
Debtor(s):
Richard Phillip Dagres Pro Se
Defendant(s):
Countrywide Bank, N.A. Pro Se RECONTRUST COMPANY, N.A. Pro Se MORTGAGE ELECTRONIC Pro Se NATIONSTAR MORTGAGE LLC Pro Se BANK OF AMERICA, N.A. Pro Se BAC HOME LOANS SERVICING, Pro Se
NBS Default Services, LLC Pro Se
DEUTSCHE BANK NATIONAL Pro Se
Plaintiff(s):
Richard Phillip Dagres Represented By Christopher O Rivas
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1) Approve Sale of Real Property Free and Clear of all Liens, Interests, Claims, and Encumbrances with Such Liens, Interests, Claims, and Encumbrances to Attach to Proceeds Pursuant to 11 U.S.C. §§ 363(b) and (f); 2) Approve Overbid Procedures; 3) Determine that Buyer is Entitled to Protection Pursuant to 11 U.S.C. § 363(m).
Docket 2073
Appearance required
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
fr. 11/29/17
Docket 20
- NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
1:00 PM
Adv#: 1:18-01007 Karish Kapital LLC v. Aleksaudrovic et al
Docket 11
This motion is DENIED as moot per the stipulation and order thereon dismissing the action as to defendant Yakov Aleksaudrovich (doc. 17; 19)
Movant to lodge order within 7 days.
No appearance required on 4/4/18 for this matter.
Debtor(s):
Yakov Aleksaudrovich Represented By Elena Steers
Defendant(s):
Yakov Aleksaudrovic Represented By Stella A Havkin
Natalia Koutina Represented By Stella A Havkin
Yanna Aleksaudrovich Represented By Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Law Offices of Steers & Assoc. Pro Se
RWB Consulting Services & Sales, Represented By
Stella A Havkin
1:00 PM
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Joint Debtor(s):
Natalia Koutina Represented By Elena Steers
Plaintiff(s):
Karish Kapital LLC Represented By Timothy McFarlin
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
Adv#: 1:18-01007 Karish Kapital LLC v. Aleksaudrovic et al
Docket 9
APPEARANCE REQUIRED
Debtor(s):
Yakov Aleksaudrovich Represented By Elena Steers
Defendant(s):
Yakov Aleksaudrovic Represented By Stella A Havkin
Natalia Koutina Represented By Stella A Havkin
Yanna Aleksaudrovich Represented By Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Law Offices of Steers & Assoc. Pro Se
RWB Consulting Services & Sales, Represented By
Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
1:00 PM
Joint Debtor(s):
Natalia Koutina Represented By Elena Steers
Plaintiff(s):
Karish Kapital LLC Represented By Timothy McFarlin
Trustee(s):
Nancy J Zamora (TR) Pro Se
8:30 AM
Docket 10
Petition date: 12/22/17
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge: No
Property: 2013 Honda Civic
Debtor’s valuation of property (Sch. B): $10,834 Amount to be reaffirmed: $2,956.40
APR: 1.9%
Contract terms: $425.73 per month Monthly Income (Schedule I): $2,540.62 Monthly expenses: (Schedule J): $2,530.73 Disposable income: $9.89
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
There is no presumption of undue hardship.
Debtor has a right to rescind agreement anytime prior to discharge, or until May 12, 2018,
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Sylvester A. Talavera Represented By
R Grace Rodriguez
Trustee(s):
Nancy J Zamora (TR) Pro Se
8:30 AM
Docket 18
Petition date: 1/11/2018
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2015 Jeep Patriot 4-Cyl.
Debtor’s valuation of property (Sch. B): $9,000 Amount to be reaffirmed: 6,334.31
APR: 4.990%
Contract terms: $247.40 per month Monthly Income (Schedule I): $ 2,500 Monthly expenses: (Schedule J): $ 4,510 Disposable income: <$2,010>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debt expects to have higher income once he starts up his business again.
Debtor has a right to rescind agreement anytime prior to discharge, or until May 15, 2018,
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
James Mark Eisenman Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
8:30 AM
Docket 9
Petition date: 2/20/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2012 Nissan Frontier (Schedule B notes that the car does not belong to the Debtor and that "'constructive trustee' Enrique Suarez Galindo is paying for the vehicle")
Debtor’s valuation of property (Sch. B): $15,325 Amount to be reaffirmed: $12,184
APR: 2.74%
Contract terms: $263.56 per month Monthly Income (Schedule I): $ 1,457.50
Monthly expenses: (Schedule J): $ 1,493.75 Disposable income: <$36.25>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor states that Enrique Suarez has the vehicle in his possession and makes all payments related to the vehicle.
Debtor has a right to rescind agreement anytime prior to discharge, or until May 25, 2018,
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Maria Del Carmen Suarez Represented By
Carlos A Delgado Ibarcena
Trustee(s):
Diane C Weil (TR) Pro Se
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marianna Scalise Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ramon Valadez Jr Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
FORD MOTOR CREDIT COMPANY LLC
Docket 62
Petition Date: 12/21/2016 Chapter: 13
Service: Proper. No opposition filed. Property: Vehicle 2015 Ford Fiesta
Property Value: $20,000 (per debtor’s schedules) Amount Owed: $18,961.37
Equity Cushion: N/A Equity: $0.
Post-Petition Delinquency: $5,500 (5 payments of $1,100)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001 (a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Rose Jelaca Represented By
Rabin J Pournazarian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELLON
Docket 62
Petition Date: 02/20/2013 Chapter: 13
Service: Proper. No opposition filed.
Property: 17138 Sunderland Drive, Los Angeles, CA 91344 Property Value: $399,000 (per grant deed in motion) Amount Owed: $616,320.77 (per RFS motion)
Equity Cushion: N/A Equity: $0.
Post-Petition Delinquency: $145,655.61
Movant argues that cause exists to terminate the automatic stay under §§ 362(d)(1) and (d)(4) because the subject loan obligation is in long-standing default and there have been multiple transfers and bankruptcy filings affecting the property. Movant details nine bankruptcy filings since Debtor filed this chapter 13 bankruptcy.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 5 (the stay is annulled retroactive to bankruptcy petition date); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under 362 (d)(4) (bad faith and secured creditors)).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Fabian Hernandez Represented By Kenumi T Maatafale
Joint Debtor(s):
Carmela Valenzuela Represented By
11:00 AM
Trustee(s):
Kenumi T Maatafale
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 85
Petition Date: 01/18/2016 Chapter: 13
Service: Proper. Opposition filed on 4/4/18. Property: 13338 Friar Street, Los Angeles, CA 91401 Property Value: $560,000 (per debtor’s schedules) Amount Owed: $582,644.22 (per RFS motion)
Equity Cushion: N/A Equity: $0.
Post-Petition Delinquency: $13,203.19 (5 payments of $2,686.87, $88 in postpetition advances or other charges, $0.46 in attorneys’ fees and costs, less $319.62)
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities);and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the motion, arguing that more payments have been made to Movant than the Motion accounts for, attaching canceled checks as Exhibit A. Additionally, Debtor argues that the Property is necessary for an effective reorganization because the Property is Debtor’s primary residence. Debtor also requests to enter into a repayment agreement with Movant, by curing remaining delinquencies through an Adequate Protection Order.
APPEARANCE REQURIED.
Debtor(s):
Anaida Prazyan-Vartanyan Represented By Kevin T Simon
11:00 AM
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 7
Petition Date: 03/19/2018 Chapter: 7
Service: Proper. No opposition filed. Movant: Innovest Group, LLC
Property Address: 5165 Chimineas Avenue, Tarzana, CA 91356 Type of Property: Residential
Occupancy:
Foreclosure Sale: 09/28/2017 UD case filed: 01/18/2018 UD Judgment:
Disposition: GRANT under 11 U.S.C. 362(d)(1); (d)(2). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Farhad Ahoubim Pro Se
Movant(s):
Innovest Group, LLC Represented By Joseph Cruz
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 12
On March 26, 2018, Debtor filed this Chapter 13 case. Debtor has 1 previous bankruptcy case that was dismissed a short time ago. The dismissed Chapter 13 case, 16-12383-MB, was filed on August 15, 2016 and dismissed on January 25, 2018 for failure to make required payments.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case. Debtor contends the previous case was dismissed because she could not maintain plan payments, but that she now has a new job with higher pay. Debtor claims that the presumption of bad faith is overcome as to all creditors per Section 362(c)(3)(C)(i) because Debtor’s new employment constitutes a substantial change in financial affairs.
No opposition was filed. The motion is GRANTED.
NO APPEARANCE REQUIRED. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Anna Gevorkian Represented By Robert T Chen
Movant(s):
Anna Gevorkian Represented By Robert T Chen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
10:00 AM
fr. 1/23/18; 3/27/18
Docket 60
APPEARANCE REQUIRED
Debtor(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber
Joint Debtor(s):
Violet Khachikyan Osmanian Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
fr. 1/23/18; 3/27/18
Docket 61
APPEARANCE REQUIRED
Debtor(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber
Joint Debtor(s):
Violet Khachikyan Osmanian Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
fr. 1/23/18; 3/27/18
Docket 58
APPEARANCE REQUIRED
Debtor(s):
Hovanes Antoine Osmanian Represented By
Richard Mark Garber
Joint Debtor(s):
Violet Khachikyan Osmanian Represented By
Richard Mark Garber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/25/17, 9/26/17, 11/28/17, 1/23/18; 3/27/18
Docket 100
At the March 27 hearing, the parties indicated that this matter was settled, but they needed two weeks to close the deal. What is the status of the settlement?
APPEARANCE REQUIRED
3/27/18 Tentative
Nothing new has been filed in this case since the 1/23/18 hearing. This case expired over a year ago. Are parties cooperating to resolve this dispute, or is an evidentiary hearing needed?
APPEARANCE REQUIRED
1/23/18 Tentative
This matter has now been continued for six months. What progress has been made toward resolving this claim?
APPEARANCE REQUIRED
11/29/17 Tentative
At 9/26 hearing, parties requested a continuance in order to allow time to work toward a deal. What is the status of this motion?
APPEARANCE REQUIRED
9/26/17 Tentative
At 7/25/17 hearing, debtor and Selene Finance indicated that they were working toward a deal. Nothing new has been filed. What is the status of this motion?
11:00 AM
APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Movant(s):
Victoria Ruiz Represented By
Siamak E Nehoray Siamak E Nehoray Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/28/17, 5/23/17;l 7/25/17, 9/26/17, 11/28/17, 1/23/18; 3/27/18
Docket 89
APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 53
Since ECMC’s debt is nondischargeable, modifying the plan may be a solution since the full debt can be paid post discharge. This is does sufficiently address what went wrong here to be sure this type of issue does not recur.
The Court has reviewed the chapter 13 trustee’s online records of payments ("Payment Record") in this case. The Payment Record seems to reflect the two claims filed by ECMC as Payee 11 (corresponding to Proof of Claim 15-1) and Payee 40 (corresponding to Proof of claim 16-1). It appears that ECMC’s claim noted as Payee 11 received payments over the full course of the plan. The Payment Records indicate that Payee 40, however, did not receive any payments until May, 2017. The sixtieth month of this plan was March, 2017. In April 2017, a large number of checks to other Payees were cancelled, and a number of creditors also provided refunds to the Trustee. Those funds were used to make payments to ECMC’s Payee 40 claim.
This confusion undermines Trustee’s argument that ECMC has received less than 13% due solely to Debtors’ failure to schedule the full amount of unsecured debt. All proofs of claim in this case were submitted before the plan was confirmed. Trustee makes distributions based upon submitted proofs of claim, not scheduled debts. It is apparent that both Trustee and Debtors failed to account for all proofs of claim when confirming this plan, but Trustee further seems to have commenced payments without recognizing that there were two proofs of claim filed by ECMC.
Further confusing the issue, the Breakdown for Combined Schedules in Trustee’s online records indicates that Debtors timely completed all payments due under the plan, and shows that Debtor’s current Amount Due is $0.
Trustee and debtor’s counsel should come prepared to explain how this plan fell
11:00 AM
through multiple cracks in their system. The problem should not have been discovered so late in the plan.
APPEARANCE REQUIRED
Debtor(s):
Brenton Haggin Represented By Elena Steers
Joint Debtor(s):
Gisa Haggin-Seeholzer Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 100
The Court granted Debtor’s Motion for Authority to Sell Real Property. A motion for relief from stay regarding the subject real property was filed on April 13. What is the status of the sale?
APPEARANCE REQUIRED
2/27/18 Tentative
It appears that Debtors are making progress toward selling the property.
1/23/18 Tentative
Nothing new has been filed. What is the status of Debtor’s attempt to sell property? APPEARANCE REQUIRED
11/28/17 Tentative
Trustee moves to dismiss due to expiration of the plan and failure to pay remaining balance of $14,100. Debtor opposes the motion on the grounds that debtor is prepared to make the final payment with funds from the proceeds from the sale of her house. The house was listed in the past week, and debtor will file a motion to sell once a buyer is found. See Doc. No. 101.
Debtor(s):
Christine Grimes Shore Represented By Elena Steers
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/8
Docket 82
- NONE LISTED -
Debtor(s):
Veronica Irene Esparza Represented By Leon D Bayer
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 75
- NONE LISTED -
Debtor(s):
Henrik Zadourian Represented By Devin Sawdayi
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18
Docket 99
- NONE LISTED -
Debtor(s):
Nedra Sneed Represented By
Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 73
- NONE LISTED -
Debtor(s):
Engelberto Garcia De Alba Represented By Luis G Torres
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 68
- NONE LISTED -
Debtor(s):
Maria Socorro Quimson Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18
Docket 77
- NONE LISTED -
Debtor(s):
Kelly D Hankins Represented By Steven A Wolvek
Joint Debtor(s):
Pamela J Hankins Represented By Steven A Wolvek
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18
Docket 110
- NONE LISTED -
Debtor(s):
Emma L Gutierrez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 73
- NONE LISTED -
Debtor(s):
ESTHER OCAMPO Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17, 1/23/18; 3/27/18
Docket 88
- NONE LISTED -
Debtor(s):
Ronny Bess Represented By
Stella A Havkin
Joint Debtor(s):
Jeannie Renat Bess Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 36
- NONE LISTED -
Debtor(s):
Dawn Elizabeth Thomas Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18
Docket 78
- NONE LISTED -
Debtor(s):
Yolanda Villanueva Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 59
- NONE LISTED -
Debtor(s):
Farshid Tebyani Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18
Docket 50
- NONE LISTED -
Debtor(s):
Alicia Butterfield Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18
Docket 38
- NONE LISTED -
Debtor(s):
Yinka Brandy Nunoo Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 22
- NONE LISTED -
Debtor(s):
Vladimir Fernado Macapagal Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Myla Rutaquio Macapagal Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 73
- NONE LISTED -
Debtor(s):
Leonor Cecilia Garcia Represented By Andrew Moher
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 42
- NONE LISTED -
Debtor(s):
Mario Alberto Cerritos Represented By Luis G Torres
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18
Docket 31
- NONE LISTED -
Debtor(s):
Yoddy Milton Muguertegui Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 60
- NONE LISTED -
Debtor(s):
Levia Blane Arbuckle Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 35
Debtor to provide trustee 6 months of bank statements, 2017 tax return, and proof regarding support payments.
APPEARANCE REQUIRED
Debtor(s):
Terry O. Perkins Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 30
- NONE LISTED -
Debtor(s):
Samuel Araos Pasag Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Nellie Garingan Pasag Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 2/27/18
Docket 26
- NONE LISTED -
Debtor(s):
Norman Fathi Represented By Dana M Douglas
Movant(s):
Norman Fathi Represented By Dana M Douglas
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 24
- NONE LISTED -
Debtor(s):
Karen Marcy Santos Pham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 25
Service: Proper. No Opposition filed
Property Address: 20762 Ingomar St., Winnetka (Canoga Park), CA 91306. First trust deed: $ $714,822.87 (Citimortgage)
Second trust deed (to be avoided): $247,026.27 (Anson Street, LLC c/o Shellpoint Mortgage servicing)
Fair market value per appraisal: $550,000
Disposition: GRANTED.
PREVAILING PARTY SHOULD SUBMIT THE FORM ORDER, A BLANK COPY OF WHICH MAY BE DOWNLOADED FROM THE JUDGE’S FORMS SECTION ON THE COURT’S WEBSITE.
Debtor(s):
Jana Marinova Sotirova Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 29
- NONE LISTED -
Debtor(s):
Richard Phillip Dagres Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 31
- NONE LISTED -
Debtor(s):
Richard Phillip Dagres Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 312
Service proper. No objections filed. Having considered the Motion, reviewed the docket and the procedural history of the case, and finding that the case has been fully administered, the Motion is GRANTED.
Movant to lodge order within 7 days.
NO APPEARANCE REQUIRED on 4/25/18.
Debtor(s):
Oracle Transportation Solutions, Inc. Represented By
Ovsanna Takvoryan Joseph Chora
Movant(s):
Oracle Transportation Solutions, Inc. Represented By
Ovsanna Takvoryan Ovsanna Takvoryan Joseph Chora Joseph Chora
9:30 AM
fr. 8/13/15, 9/17/15, 12/10/15; 8/18/16, 9/29/16, 12/8/16; 3/16/17, 3/22/17, 7/26/17; 11/15/17, 2/7/18,
3/21/18
Docket 1
- NONE LISTED -
Debtor(s):
Oracle Transportation Solutions, Inc. Represented By
Steven R Fox
9:30 AM
Docket 335
Debtor objects to the proof of claim filed on 2/22/16 by Sony Pictures Studios ("SPS"), in the amount of $37,100. The claim stems from a contract entered into between Debtor and SPS on or about March 26, 2012, that provided for the sale of certain vehicles to Debtor for $160,000, and a credit for SPS of $40,000 towards future rentals from Debtor for a period of four years from the date of contract.
Objection, Ex. A. The breakdown attached to the Proof of Claim indicates that it used $2,900 of the credit and based the claim on what it asserted was a remaining credit balance of $37,100.
A proof of claim is deemed allowed unless a party in interest objects under § 502(a) and constitutes "prima facie evidence of the validity and amount of the claim" pursuant to Bankruptcy Rule 3001(f). See also Fed. R. Bankr.P. 3007. The filing of an objection to a proof of claim "creates a dispute which is a contested matter" within the meaning of Bankruptcy Rule 9014 and must be resolved after notice and opportunity for hearing upon a motion for relief. See Adv. Comm. Notes to Fed. R. Bankr.P. 9014.
Upon objection, the proof of claim provides "some evidence as to its validity and amount" and is "strong enough to carry over a mere formal objection without more." Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir.1991) (quoting 3 Collier on Bankruptcy § 502.02, at 502-22 (15th ed.1991)); see also Ashford v. Consolidated Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff'd, 91 F.3d 151, 1996 WL 393533 (9th Cir.1996). To defeat the claim, the objector must come forward with 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." Holm, 931 F.2d at 623.
"If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence." In re Consol. Pioneer, 178 B.R. at
9:30 AM
226 (quoting In re Allegheny Int'l, Inc., 954 F.2d 167, 173-74 (3d Cir.1992)). The ultimate burden of persuasion remains at all times upon the claimant. See In re Holm, 931 F.2d at 623.
Debtor argues that implicit in the contract was that SPS was under no obligation to rent vehicles from Debtor, and Debtor’s only obligation was to provide a credit if (1) SPS decided to rent a vehicle from it; and (2) SPS decided to use the credit towards that particular rental. The contract also provided for a four year time period within which the credit was available to SPS, or March 26, 2016. Thus, because there the contract created no right to payment of money and because there is no enforceable contract obligation to support this claim, Debtor objects to the allowance of this claim.
Service proper per proof of claim. No response filed. Objection SUSTAINED. Debtor to lodge order within 7 days.
APPEARANCES WAIVED ON 4/25/18
Debtor(s):
Picture Car Warehouse Inc Represented By Carolyn A Dye
9:30 AM
fr. 9/1/16, 2/9/17, 3/22/17, 4/26/17, 7/5/17, 8/16/17; 9/27/17, 11/29/17, 2/14/18
Docket 1
- NONE LISTED -
Debtor(s):
Samuel James Esworthy Represented By
M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes
9:30 AM
Docket 75
Service proper. No opposition filed. Having reviewed the First and Final Fee Application for Debtor's Reorganization Counsel, the Court finds that the fees and costs are reasonable, necessary and are approved as requested.
Applicant to lodge order within 7 days. APPEARANCES WAIVED ON APRIL 25, 2018
Debtor(s):
Bang T Phan Represented By
John K Rounds
9:30 AM
Period: 11/21/2016 to 3/31/2018 Fees: $89977.50 Expenses: $3136.88
Docket 88
Service proper. No opposition filed. Having reviewed the First and Final Fee Application for Debtor's Reorganization Counsel, the Court finds that the fees and costs are reasonable, necessary and are approved as requested.
Applicant to lodge order within 7 days. APPEARANCES WAIVED ON APRIL 25, 2018
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
9:30 AM
fr. 3/8/17, 6/14/17, 7/26/17, 8/16/17, 11/1/17, 11/8/17
Docket 1
Having reviewed the Status Report and the docket for this case, the Court finds cause to continue this status conference to May 3, 2018, at 9:30 a.m., so that Debtor’s Motion for Final Decree & Order Closing Case can be resolved.
If the Order Granting Motion for Final Decree & Order Closing Case is entered before the continued date, the continued status conference may be vacated.
NO APPEARANCE REQUIRED ON 4/25/18
Debtor(s):
Nahrin Beno Represented By
Matthew D Resnik Roksana D. Moradi
9:30 AM
Docket 108
After having reviewed Debtor’s Second Amended Plan, the ballot summary, and Motion for Confirmation, the Court finds that all requirements for confirmation have been met. Debtor should include requisite findings under § 1129(a) and (b) in confirmation order.
Debtor(s):
FAMOSO PORTERVILLE, LLC Represented By
Jeffrey S Shinbrot
9:30 AM
Docket 0
Post-confirmation status conference will be held on February 27, 2019 at 9:30 am Please advise if any date conflict.
Debtor(s):
FAMOSO PORTERVILLE, LLC Represented By
Jeffrey S Shinbrot
9:30 AM
Docket 63
Petition Date: 6/27/17 Chapter: 11
Service: Proper. Opposition filed.
Property: 17169 Stare St., Northridge, CA 91325 Property Value: $750,000 (per debtor’s schedules) Amount Owed: $703,815
Equity Cushion: 6.2% Equity: $46,185.
Post-Petition Delinquency: approx. $50,712 (10 post-petition payments of approx.
$5,071.24)
Movant alleges cause for relief under 11 U.S.C. 362(d)(1); (d)(2); and (d)(4), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay); and 9 (in rem relief). Movant alleges that grounds for in rem relief exist here because the Property has been affected by multiple filings and transfers of interest, evincing a scheme to delay, hinder, or defraud creditors. Debtor has filed two prior chapter 13 cases that were dismissed, 16-12675-VK (dismissed 11/10/16) and 16-13514-MT (dismissed w/ 180-day bar 2/27/17). On 3/11/18, Debtor allegedly executed a quitclaim deed transferring the Property to himself and Virginia Vilciauskaite as a "bona fide gift." Motion, Ex. 4. Thereafter, on 3/13/18, Virginia Vilciauskaite filed a facesheet voluntary chapter 7 petition (17-10625-VK, the "Virginia Bankruptcy"). The Virginia Bankruptcy was dismissed for failure to file schedules on 3/31/18. Movant filed a motion for relief from stay in the Virginia Bankruptcy, seeking in rem relief as to this Property. It is currently not set for hearing, as the case is closed.
Debtor opposes the Motion, arguing that this income property is necessary for his reorganization. Debtor intends to file a plan that may propose a cram down. Debtor alleges that he did not authorize the filing of the prior cases, and offers adequate
9:30 AM
protection with respect to the Property. The opposition does not have a declaration from Debtor to support these assertions.
Is Movant amenable to an offer of adequate protection?
APPEARANCE REQUIRED
Debtor(s):
Vladimir Vekic Represented By Stephen L Burton
9:30 AM
with an Order Directing Payment Of Quarterly Fees And For Judgment Thereon fr. 4/4/18
Docket 37
- NONE LISTED -
Debtor(s):
Tatonka Acquisitions, Inc. Represented By Dana M Douglas
9:30 AM
Docket 0
APPEARANCE REQUIRED
Debtor(s):
Zarui Sarah Adjian Represented By Robert S Altagen
11:00 AM
WILMINGTON SAVINGS FUND SOCIETY
Docket 69
Petition Date: 05/22/2013 Chapter: 13
Service: Proper. No opposition filed.
Property: 19507 Schoolcraft St., Reseda, California 91335 Property Value: $362,000 (per debtor’s schedules) Amount Owed: $158,014.60 (per RFS motion)
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $7,938.41
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law);
stay).
Debtor(s):
Aliakbar Barzinpour Represented By Matthew Abbasi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 70
Petition Date: 12/22/2015 Chapter: 13
Service: Proper. No opposition filed. Property: Vehicle 2012 GMC Canyon
Property Value: $16,790 (per debtor’s schedules) Amount Owed: $9,509.78
Equity Cushion: 35% Equity: $7,280.22
Post-Petition Delinquency: $9,509.78
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Ronald Krivitsky Represented By Todd J Roberts
Joint Debtor(s):
Tina Lynne Greisman Represented By Todd J Roberts
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:16-01024 Poteet et al v. Levy
fr. 5/4/16; 11/16/16; 3/29/17, 8/2/17; 10/18/17
Docket 1
Having considered the Status Report and for good cause appearing, this status conference will be continued to August 15 at 11:00 a.m.
Plaintiff to provide notice of continued status conference. APPEARANCES WAIVED ON APRIL 25.
Debtor(s):
David Brown Levy Pro Se
Defendant(s):
David Brown Levy Pro Se
Plaintiff(s):
The Workshop LLC Represented By Bernard J Kornberg
Gene Salkind Represented By
Bernard J Kornberg
Michael Clofine Represented By Bernard J Kornberg
Victor Poteet Represented By
Bernard J Kornberg
11:00 AM
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
US Trustee(s):
United States Trustee (SV) Pro Se
11:00 AM
WILMINGTON SAVINGS FUND SOCIET
Docket 69
Petition Date: 10/17/2016 Chapter: 7
Service: Proper. No opposition filed.
Property: 5131 Strohm Avenue, Los Angeles, CA 91601 Property Value: $520,000 (per debtor’s schedules) Amount Owed: $51,816.57 (per RFS motion)
Equity Cushion: 82% Equity: $468,183.43.
Post-Petition Delinquency: Not listed in motion
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor(s):
Gabriel Fagiani Represented By Julie J Villalobos
Trustee(s):
David Seror (TR) Represented By Jessica L Bagdanov
11:00 AM
Docket 45
- NONE LISTED -
Debtor(s):
Pablo Arreola Represented By
Eric Bensamochan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 45
- NONE LISTED -
Debtor(s):
Pablo Arreola Represented By
Eric Bensamochan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 29
Petition Date: 09/20/2017 Chapter: 13
Service: Proper. Opposition filed on 04/06/18 Property: 19919 Lassen Street, Chatsworth, CA, 91311 Property Value: $851,184.00 (per debtor’s schedules) Amount Owed: $603,036.06 (per RFS motion)
Equity Cushion: 21% Equity: $248,147.94.
Post-Petition Delinquency: $6,352.70 (3 payments of $3,032.83, less suspense account of partial paid balance of $2,745.79)
Movant requests relief under 11 U.S.C. 362(d)(1) with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (Co-debtor stay is waived); 7 (waiver of the 4001(a)(3) stay); and 12 (Upon entry of the order, for purposes of Cal. Civ. Code 2923.5, the Debtor is a borrower as defined in Cal. Civ. Code 2920.5(c)(2)(C)).
Debtor opposes the motion and argues that the value of the Property is $776,000 based on comparable sales, more payments have been made to Movant than the Motion accounts for, the Property is necessary for an effective reorganization, and denies that this bankruptcy case was filed in bad faith. Debtor also asserts that she has equity in the Property in the amount of $102,672.
APPEARANCE REQUIRED.
Debtor(s):
Jacqueline B Urenda Represented By
James Geoffrey Beirne
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
ROSAMOND COMMUNITY SERVICES DISTRICT
Docket 97
APPEARANCE REQUIRED
The plan provided for direct payments to the Rosamond Comm. Services District, so there is no improper amendment to the plan. The claim was timely filed. There is no automatic stay in place. To the extent there is any confusion, an order can be entered confirming such.
Debtor(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
GATEWAY ONE LENDING & FINANCE
Docket 20
Petition Date: 11/27/2017 Chapter: 13
Service: Proper. No opposition filed. Property: Vehicle 2008 Infiniti EX35
Property Value: $6,000 (per debtor’s schedules) Amount Owed: $8,389.38
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency: $860.94 (3 payments of $286.98)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jose Rivas Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Sandra Alas Represented By
Rebecca Tomilowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 25
Petition Date: 02/23/2018 Chapter: 13
Service: Proper. No opposition.
Property: Vehicle 2017 Mercedes Benz E300
Property Value: $0.00 (Surrendering lease; Per debtor’s schedules) Amount Owed: $49,496.82
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency: $704.71
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Marina Novak Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 10
Petition Date: 03/09/2018 Chapter: 13
Service: Proper. No opposition filed.
Movant: Jennifer Sartory
Relief Sought to: Pursue Pending Litigation _X_ Commence Litigation
Litigation Information
Pursue Insurance
Other
Case Name: Jennifer Sartory v. Bernice Peterson, et al. Court/Agency: Los Angeles Superior Court – Northwest District Date Filed: 08/07/2017
Judgment Entered:
Trial Start Date: 10/15/2018
Action Description: Quiet Title Action Grounds
Bad Faith Claim is Insured Claim Against 3rd Parties Nondischargeable
Mandatory Abstention
Other:
Non-BK Claims Best Resolved in Non-BK Forum _X_
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate); 5 (waiver of the 4001(a)(3) stay); 6 (binding and effective against the Debtor for 180 days); and 7 (order binding & effective against any debtor).
NO APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Jillian Rhonda Peterson Represented By Christopher J Langley
Movant(s):
Jennifer Sartory Represented By Hamid R Rafatjoo
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
JENNIFER SARTORY (17VERO00648)
Docket 11
Petition Date: 03/09/2018
Chapter: 13
Service: Proper. No opposition filed.
Movant: Jennifer Sartory
Relief Sought to: Pursue Pending Litigation _X_ Commence Litigation
Litigation Information
Pursue Insurance
Other
Case Name: Jennifer Sartory v. Jennifer Peterson, et al. Court/Agency: Los Angeles Superior Court – Northwest District Date Filed: 08/28/2017
Judgment Entered:
Trial Start Date: 05/11/2018
Action Description: Civil Harassment Prevention Grounds
Bad Faith Claim is Insured Claim Against 3rd Parties Nondischargeable
Mandatory Abstention
Other:
Non-BK Claims Best Resolved in Non-BK Forum _X_
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate); 5 (waiver of the 4001(a)(3) stay); 6 (binding and effective against the Debtor for 180 days); and 7 (order binding & effective against any debtor).
11:00 AM
NO APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jillian Rhonda Peterson Represented By Christopher J Langley
Movant(s):
Jennifer Sartory Represented By Hamid R Rafatjoo
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
TOYOTA MOTOR CREDIT CORPORATION
Docket 8
Petition Date: 03/13/2018 Chapter: 7
Service: Proper. No opposition filed. Property: Vehicle 2015 Lexus GS350
Property Value: $5,000 (listed as 2014 Lexus per debtor’s schedules) Amount Owed: $37,492.62
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency:
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Mohammad Hashim Hassankhail Represented By
Ali R Nader
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
DESERT SHADOWS INVESTMENTS LLC
Docket 10
- NONE LISTED -
Debtor(s):
Andy Hong Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
Docket 28
Petition Date: 10/8/2017 Chapter: 13
Service: Proper. Opposition filed on 4/23.
Property: 16439 Jersey St., Granada Hills, CA 91344 Property Value: $ 542,000 (per debtor’s schedules) Amount Owed: $ 461,626.14 (per RFS motion) Equity Cushion (assumes 8% cost of sale): 7.0% Equity: $80,373.86
Post-Petition Delinquency: $4,526.62
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the motion and argues that the value of the Property is $562,367 based upon online valuation tools and realtor comments, and that the total amount of debt on the Property is $461,626.14. Additionally, debtor claims to have incurred unforeseeable expenses because he traveled to Mexico to tend to his ill brother.
APPEARANCE REQUIRED.
Debtor(s):
Jose R. Fernandez Represented By Donald E Iwuchuku
Joint Debtor(s):
Esther Fernandez Represented By
11:00 AM
Movant(s):
Donald E Iwuchuku
U.S. Bank National Association, not Represented By
Kelsey X Luu
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:16-01155 Landeros v. HSBC BANK USA, NATIONAL ASSOCIATION et al
fr. 1/25/17; 3/29/17, 8/2/17; 8/23/17, 11/29/17, 1/3/18, 1/17/18
Docket 1
- NONE LISTED -
Debtor(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Defendant(s):
HSBC BANK USA, NATIONAL Pro Se
Sylvia Villapando Pro Se
Frank Villapando Pro Se
Plaintiff(s):
Hope H. Landeros Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01090 Solimani v. Aboudaher
Docket 20
- NONE LISTED -
Debtor(s):
Rima Aboudaher Represented By Navid Kohan Sanaz S Bereliani
Defendant(s):
Rima Aboudaher Represented By Sanaz S Bereliani
Plaintiff(s):
Arman Solimani Represented By Jan T Aune
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Adv#: 1:17-01113 Sajadi et al v. Durant
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Joseph Peaks Durant Represented By Dominic Afzali
Defendant(s):
Joseph Peaks Durant Pro Se
Plaintiff(s):
Shawn S Sajadi Represented By Adela Z Ulloa
Zhila T Sajadi Represented By Adela Z Ulloa
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Adv#: 1:18-01015 American Express Bank FSB et al v. Steichen et al
Docket 1
- NONE LISTED -
Debtor(s):
Laurie Jean Steichen Represented By
J. Bennett Friedman
Defendant(s):
Walter Clifford Ingram Pro Se
Laurie Jean Steichen Pro Se
Joint Debtor(s):
Walter Clifford Ingram Represented By
J. Bennett Friedman
Plaintiff(s):
American Express Centurion Bank Represented By
Dennis Winters
American Express Bank FSB Represented By Dennis Winters
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Adv#: 1:17-01012 David K. Gottlieb, solely in his capacity as chapt v. D'Arco et al
Docket 1
This matter will be continued to June 20 to be heard with the Motion for
Summary Judgment. Plaintiff to provide notice of continued hearing.
APPEARANCES WAIVED on April 25.
Debtor(s):
Thomas R D'Arco Represented By Chris Gautschi
Defendant(s):
Does 1-100 Pro Se
Carol V D'Arco Pro Se
Plaintiff(s):
David K. Gottlieb, solely in his Represented By Fahim Farivar
Trustee(s):
David Keith Gottlieb (TR) Represented By Ashley M McDow Michael T Delaney Fahim Farivar
11:00 AM
Trustee:
David Serror
Attorney for Trustee: Brutzkus Gubner
Accountant for Trustee: LEA Accountancy LLP
Docket 292
APPEARANCE REQUIRED
Debtor(s):
Doron Ezra Represented By
Shalem Shem-Tov
Joint Debtor(s):
Nava Tomer-Ezra Represented By Shalem Shem-Tov
Trustee(s):
David Seror (TR) Represented By Steven T Gubner Corey R Weber Michael W Davis David Seror (TR) Richard Burstein Nina Z Javan
1:00 PM
Adv#: 1:17-01090 Solimani v. Aboudaher
Docket 22
BACKGROUND
On November 9, 2017, Plaintiff Arman Solimani (Plaintiff) filed this adversary complaint against chapter 7 Debtor Rima Aboudaher (Defendant). Three days later, Plaintiff filed its First Amended Complaint (FAC), to determine the nondischargeability of debt pursuant to 11 U.S.C. § 727(a)(2), (a)(3), (a)(4), (a)(5), and (a)(7). Defendant filed a Motion to Dismiss the Adversary Proceeding under FRCP 12(b)(6) and FRBP 7012, arguing that Plaintiff has failed to establish a claim upon which relief could be granted. At the hearing on January 17, 2018, this court acknowledged the vagueness of the FAC, commenting that the FAC lacked necessary facts to move forward to trial. This court also noted that § 727 is a high standard and suggested Plaintiff’s counsel to research § 727 case law prior to amending the FAC. Defendant’s Motion to Dismiss was granted with leave to amend.
The FAC alleges that Defendant asked Plaintiff to pay her attorney’s fees in her dissolution of marriage case and fraudulent transfer case against Defendant’s husband, Mohtadi (Husband). Plaintiff paid approximately $27,500 in attorney’s fees for Defendant in both cases. According to Defendant’s allegations against her Husband, Plaintiff alleges that Defendant claimed an interest in a property located at 4950 Dobkin Avenue in Tarzana (Dobkin property), worth approximately
$500,000.000 as of August 2017. Plaintiff also alleges that Defendant claimed more than the $17,000 settlement she received from a previous lawsuit against Griffith Park. On August 9, 2017, Defendant filed her chapter 7 petition and dismissed her Fraudulent Transfer case against her Husband with prejudice. Two days later, Defendant filed a stipulation ending the Dissolution of Marriage case.
1:00 PM
On February 16, 2018, Plaintiff filed a Second Amended Complaint (SAC).
The SAC heavily relies on previous allegations and claims Defendant made in her Dissolution of Marriage case against her husband back in 2015. Plaintiff’s SAC adds that around January 28, 2016, Plaintiff and Defendant entered into a written agreement where Defendant agreed to repay the money Plaintiff loaned to her to litigate the Dissolution of Marriage case. The SAC alleges that in 2016, Plaintiff and Defendant attended a meeting with their attorney Michael Champ present. It was at this meeting where Defendant explained how her Husband defrauded her out of her interest in the Dobkin property. Additionally, the SAC alleges that Defendant dismissed the pending actions against her Husband because he offered her $50,000 to settle the cases. Plaintiff also asserts the $50,000 settlement offer was not listed in Defendant’s schedules.
On March 26, 2018, Defendant filed a Motion to Dismiss. Plaintiff opposed the Motion. Defendant filed her Reply to the Opposition on April 16, 2018.
STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the allegations set forth in the complaint." A Rule 12(b)(6) dismissal may be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’" Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008), quoting Balistreri v. Pacifica Police Dept., 901 F.2d 696,
699 (9th Cir. 1990).
In resolving a Rule 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. Johnson, 534 F.3d at 1122; Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001). On the other hand, the court is not bound by conclusory statements, statements of law, and unwarranted inferences cast as factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
1:00 PM
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations omitted). "In practice, a complaint … must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984).
Moreover, Federal Rule of Civil Procedure 9(b) imposes heightened pleading requirements for claims of fraud. See Fed. R. Civ. P. 9(b). Under Rule 9(b), a plaintiff "must state with particularity the circumstances constituting fraud," but can allege generally "[m]alice, intent, knowledge, and other conditions of a person's mind." Id. The particularity requirement "has been interpreted to mean the pleader must state the time, place and specific content of the false representations as well as the identities of the parties to the misrepresentation." In re MannKind Sec. Actions, 2011 U.S. Dist. LEXIS 145253, 19-20 (C.D. Cal. Dec. 16, 2011).
The plaintiff "must specifically plead as to (1) how, (2) where, and (3) when the alleged misrepresentation was communicated as well as the (4) specific contents of the misrepresentation, rather than a vague and conclusory synopsis." Blake v.
Dierdorff, 856 F.2d 1365, 1369 (9th Cir. 1988).
"Averments of fraud must be accompanied by the who, what, when, where and how of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotations omitted) and Walling v. Beverly Enterprises, 476 F.2d 393, 397 (9th Cir. 1973). "Rule 9(b) ensures that allegations of fraud are specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v.
Weidner, 780 F.2d 727, 731 (9th Cir. 1985). "It also prevents the filing of a complaint as a pretext for the discovery of unknown wrongs and protects potential defendants - - especially professionals whose reputations in their fields of expertise are most sensitive to slander - - from the harm that comes from being charged with the commission of fraudulent acts." Id.
1:00 PM
ANALYSIS
First Cause of Action: 11 U.S.C. § 727(a)(2) – Fraudulent Transfer or Concealment of Property
The Bankruptcy code provides for situations when the Court shall not grant a discharge. This is covered in §727(a). In relevant part:
the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed--
property of the debtor, within one year before the date of the filing of the petition; or
property of the estate, after the date of the filing of the petition.
11 U.S.C. §727(a)(2). Section 727 is to be construed liberally in favor of debtors and strictly against the creditor. In re Neff, 505 B.R. 255, 262 (B.A.P. 9th Cir.
2014), aff'd, 824 F.3d 1181 (9th Cir. 2016). The 9th Circuit Bankruptcy Appellate Panel has specifically articulated the elements necessary to for the moving party to show that a §727(a)(2) claim has merit. The burden of proof is on the creditor to show that: (1) the debtor transferred or concealed property; (2) the property belonged to the debtor; (3) the transfer occurred within one year of the bankruptcy filing; and (4) the debtor executed the transfer with the intent to hinder, delay or defraud a creditor. In re Aubrey, 111 B.R. 268, 273 (9th Cir. B.A.P. 1990).
Here, Plaintiff fails to even allege the elements of a §727(a)(2) claim.
The Debtor Transferred or Concealed Property
First, this SAC contains no allegations that Defendant transferred or attempted to conceal property. Plaintiff merely alleges Defendant claimed an interest in the Dobkin property in a separate state court lawsuit. No facts are alleged that Defendant owned the property or attempted to transfer the property within the relevant one-year period for purposes of § 727(a)(2). Moreover, the allegations specify that Defendant’s ex-husband fraudulently kept property from the Defendant
1:00 PM
and the defendant was not able to get it back. This allegation is insufficient for denial of discharge under § 727(a)(2), which requires intentional or fraudulent action on the part of the Defendant.
The Property Belonged to the Debtor
Second, Plaintiff’s allegations fail to state whether the property belonged to the Debtor. The SAC is ambiguous as to which property Plaintiff is alleging that Defendant has transferred, removed, destroyed, mutilated, or concealed. In addition to ambiguity regarding the alleged property, the SAC does not allege that the property was owned by the Defendant or belonged to the estate. The best that can be said is that the Defendant tried to make a claim to some property, but was unsuccessful. What the Plaintiff’s theory is, on his third attempt, is unclear.
Transfer Occurred Within One Year of Bankruptcy Filing
Third, there are no allegations that pertain to Defendant attempting to transfer or transferring any property within one year of her bankruptcy filing.
Debtor Executed the Transfer with the Intent to Hinder, Delay, or Defraud a Creditor
Fourth, there are no facts that indicate an intent to hinder, delay, or defraud creditors. Defendant’s schedules indicate that Defendant never received ownership in the Dobkin property, and the allegations do not explain anything about the intent to hinder, delay or defraud.
Plaintiff fails to sufficiently allege a viable §727(a)(2) claim because none of the four required elements have been met.
Second Cause of Action: 11 U.S.C. § 727(a)(3) - Failure to Keep or Preserve Records
Section 727(a)(3) provides for denial of a debtor’s discharge if the debtor "has concealed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure was justified under all of the circumstances of the case." 11
U.S.C. § 727(a)(3).
1:00 PM
The [Debtor] must present sufficient written evidence which will enable his
creditors reasonably to ascertain his present financial condition and to follow his business transactions for a reasonable period in the past. In re Cox, 904 F.2d 1399, 1400 (9th Cir. 1990). In some cases, a failure to produce proper records will not justify a denial of discharge when the missing information can be reconstructed from records kept by others. See COLLIER ON BANKRUPTCY, ¶ 727.03 (Alan N. Resnick & Henry J. Sommer eds., 16th ed).
Here, the SAC contains no allegations regarding any information or documents to support a §727(a)(3) action. Although Plaintiff cites the text of §727(a) (3), Plaintiff does not plead any facts or allegations regarding Defendant’s failure to keep or preserve records under §727(a)(3). Formulaic recitation of the elements of a cause of action are insufficient. Twombly, 550 U.S. at 555.
Third Cause of Action: 11 U.S.C. § 727(a)(4) – Knowingly and Fraudulently Making a False Oath or Account
Under §727(a)(4), a debtor may not be granted a discharge if:
the debtor knowingly and fraudulently, in or in connection with the case--
made a false oath or account;
presented or used a false claim;
gave, offered, received, or attempted to obtain money, property, or advantage, or a promise of money, property, or advantage, for acting or forbearing to act; or
withheld from an officer of the estate entitled to possession under this title, any recorded information, including books, documents, records, and papers, relating to the debtor's property or financial affairs.
11 U.S.C. §727(a)(4).
Thus, the code here reflects the overall twofold purpose of bankruptcy: 1) to secure the equitable distribution of the bankrupt’s estate among his creditors and 2) to relieve the honest debtor from the weight of indebtedness and provide an opportunity for him to have a fresh start. In re Devers, 759 F.2d 751, 754 (9th Cir. 1985). The fundamental purpose of § 727(a)(4)(A) is to insure that the trustee and creditors have accurate information without having to conduct costly investigations. In re Wills, 243 B.R. 58, 63 (B.A.P. 9th Cir. 1999).
1:00 PM
Here, like in Plaintiff’s failure to establish a §727(a)(2) cause of action,
Plaintiff again fails meet its burden in establishing a §727(a)(4) cause of action because Plaintiff lacks facts in its SAC. The SAC contains no allegations about what specifically is the false oath or omission Defendant has made. While Plaintiff alleges that Defendant "ha[s] violated 11 U.S.C. § 727(a)(4)(A), (B), (C), and/or (D)," there are no specific facts that seem to give rise to a plausible claim under any of those subsections. Plaintiff has not clearly expressed how, where, and when the alleged misrepresentation was communicated as nor the specific contents of the misrepresentation. Blake v. Dierdorff, 856 F.2d at 1369. The SAC fails to give Defendant notice of the particular misconduct alleged to constitute fraud, and therefore fails to satisfy the heightened pleading standard of Fed. R. Civ. P. 9(b).
Plaintiff has failed to establish a cause of action under §727(a)(4).
"Sixth" Cause of Action: 11 U.S.C. § 727(a)(5) – Explaining Loss of Assets
The SAC skips from the third cause of action to the "sixth" cause of action. It is unclear which cause of action under § 727 is being pursued by Plaintiff in the "sixth" cause of action. While the heading of the sixth cause of action indicates a claim under § 727(a)(7), this portion of the complaint only provides the rule for
§ 727(a)(4)–(5). Because § 727(a)(4) is addressed under "Third Cause of Action" above, and because there is no indication that "(a)(7)" was anything other than a typographical error, the court will treat the "sixth" claim as a claim under § 727(a)(5).
Section 727(a)(5) is broadly drawn and gives the bankruptcy court broad power to decline to grant a discharge in bankruptcy when the debtor does not adequately explain a shortage, loss, or disappearance of assets." Aoki v. Atto Corp. (In re Aoki), 323 B.R. 803, 817 (B.A.P. 1st Cir. 2005). See In re D'Agnese, 86 F.3d 732, 734 (7th Cir.1996)(citing First Fed. Life Ins. Co. v. Martin ( In re Martin), 698 F.2d 883, 886 (7th Cir.1983)).
Plaintiff’s last cause of action is garbled and confusing, and there are no details about which assets have disappeared or been lost. Plaintiff simply restates the rule and then alleges that "[a]s stated in the factual allegations," Defendant has "violated 11 U.S.C. § 727(a)(5)." This inartful pleading is simply inadequate. As noted above, the SAC contains no additional allegations that contradict what Defendant has disclosed in her schedules. Plaintiff has not met its burden in establishing any basis for a § 727(a)(5) action.
1:00 PM
CONCLUSION
The Motion to Dismiss the Second Amended Complaint is granted as to all causes of action and Plaintiff’s Second Amended Complaint is dismissed with prejudice because the factual allegations under each cause of action are insufficient to meet the applicable pleading standards under Fed. R. Civ. P. 12(b)(6) and 9(b). This Second Amended Complaint merely contains boiler-plate terms found civil complaints, and since Plaintiff has had two opportunities to amend the complaint, this third complaint should have been clear with well-plead factual allegations. Here, Plaintiff’s allegations found in lines 15 – 26 under "General Allegations" make no sense in a §727 complaint, indicating how boilerplate this SAC is. Although only allegations – not evidence - are considered on a motion to dismiss, Plaintiff’s boilerplate terms and allegations are insufficient and fail to meet the applicable pleading standard.
Debtor(s):
Rima Aboudaher Represented By Navid Kohan Sanaz S Bereliani
Defendant(s):
Rima Aboudaher Represented By Sanaz S Bereliani
Movant(s):
Rima Aboudaher Represented By Sanaz S Bereliani
Plaintiff(s):
Arman Solimani Represented By Jan T Aune
1:00 PM
Trustee(s):
David Seror (TR) Pro Se
1:00 PM
Adv#: 1:17-01090 Solimani v. Aboudaher
Docket 20
- NONE LISTED -
Debtor(s):
Rima Aboudaher Represented By Navid Kohan Sanaz S Bereliani
Defendant(s):
Rima Aboudaher Represented By Sanaz S Bereliani
Plaintiff(s):
Arman Solimani Represented By Jan T Aune
Trustee(s):
David Seror (TR) Pro Se
1:00 PM
Adv#: 1:18-01010 Seyedan v. Njeim
Docket 5
Background
Juliana Njeim ("Debtor") filed a voluntary chapter 7 bankruptcy on August 22, 2017. On November 14, the Court granted Maryam Seyedan’s ("Plaintiff") motions for examination under Rule 2004 upon subpoena served upon Bank of America and Wells Fargo Bank. The Rule 2004 examinations were intended to determine whether Debtor made false statements or omissions in her schedules with respect to funds held in certain accounts at Bank of America and Wells Fargo Bank. Two days after the court granted the motions for the Rule 2004 examinations, Debtor filed an amended Statement of Financial Affairs. ECF doc. no. 22. Debtor’s original Statement of Financial Affairs indicates that each of her three businesses operated until 1/2016 (January 2016). After those dates were called into question, Debtor amended the Statement of Financial Affairs. The only apparent change in the first amended Statement of Financial affairs was to change the dates that her businesses existed to reflect that the businesses closed in 2016, and that those dates are estimates only.
Plaintiff filed this adversary action on January 23, 2018 objecting to Debtor’s discharge under § 727(a)(4)(A). Plaintiff’s complaint alleges that the documents obtained pursuant to the Rule 2004 subpoenas contain evidence that Debtor knowingly and fraudulently made material false statements under in her original and first amended Statement of Financial Affairs. Specifically, Debtor lists her gross income from wages and tips in 2016 as $35,280, but Debtor’s personal bank statements allegedly show deposits of $71,995 into her two bank accounts in 2016. Complaint 4:5-7. Further, the Complaint alleges that the bank statements for Debtor’s corporation, Beauty Live Forever, Inc. ("Beauty Live Forever"), shows deposits of $269,187 in 2016, none of which was disclosed in Debtor’s original or first amended Statement of Financial Affairs. Although Part 11 of Debtor’s original and first amended Statement of Financial Affairs indicate that Beauty Live Forever existed until "1/1/2016" and "2016" respectively, the complaint alleges that Beauty
1:00 PM
Live Forever had ongoing bank deposits from sales as late as May 2017. Complaint 4:25-5:2. Plaintiff’s sole grounds for objecting to dischargeability is that Debtor made a false statement or omission in her schedules in this bankruptcy case.
On February 15, Debtor obtained new counsel for both the lead bankruptcy case and the adversary action. In early March, Debtor filed amended schedules A/B, C, I, and J as well as a second amended Statement of Financial Affairs. ECF doc. no. 36, March 5, 2018. The amended schedules and second amended Statement of Financial affairs contain a number of changes large and small, including disclosing a "Potential Malpractice Suit vs Debtor’s Former Bankruptcy Attorney, Richard Garber." Debtor filed the instant Motion to Dismiss ("Motion") on March 13, 2018.
Standard
A motion to dismiss under Civil Rule 12(b)(6) challenges the sufficiency of the allegations set forth in the complaint. "A Rule 12(b)(6) dismissal may be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’" Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dept., 901 F.2d 696,
699 (9th Cir. 1990)).
In resolving a Civil Rule 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff, and accept all well-pleaded factual allegations as true. Johnson, 534 F.3d at 1122; Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001). On the other hand, the court is not bound by conclusory statements, statements of law, and unwarranted inferences cast as factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations omitted). "In practice, a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562 (emphasis added) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
Moreover, Federal Rule of Civil Procedure 9(b) imposes heightened pleading requirements for claims of fraud. See Fed. R. Civ. P. 9(b). Under Rule 9(b), a plaintiff "must state with particularity the circumstances constituting fraud," but can allege
1:00 PM
generally "[m]alice, intent, knowledge, and other conditions of a person's mind." Twombly, 550 U.S. at 559. The particularity requirement "has been interpreted to mean the pleader must state the time, place and specific content of the false representations as well as the identities of the parties to the misrepresentation." In re MannKind Sec. Actions, 2011 U.S. Dist. LEXIS 145253, 19-20 (C.D. Cal. Dec. 16, 2011).
"Averments of fraud must be accompanied by the who, what, when, where and how of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotations omitted) and Walling v. Beverly Enterprises, 476 F.2d 393, 397 (9th Cir. 1973). "Rule 9(b) ensures that allegations of fraud are specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v.
Weidner, 780 F.2d 727, 731 (9th Cir. 1985). "It also prevents the filing of a complaint as a pretext for the discovery of unknown wrongs and protects potential defendants - - especially professionals whose reputations in their fields of expertise are most sensitive to slander - - from the harm that comes from being charged with the commission of fraudulent acts." Id.
Analysis
The sole grounds for nondischargeability alleged in the complaint is § 727(a) (4)(A). Pursuant to § 727(a)(4)(A), the court shall grant the debtor a discharge unless –
the debtor knowingly and fraudulently, in or in connection with the case—
made a false oath or account
§ 727(a)(4)(A). A false statement or omission in debtor’s bankruptcy schedules or Statement of Financial Affairs can constitute a false oath within the meaning of
§ 727(a)(4). In re Khalil, 379 B.R. 163, 172 (B.A.P. 9th Cir. 2007), aff'd, 578 F.3d
1167 (9th Cir. 2009). "The fundamental purpose of § 727(a)(4)(A) is to insure that the trustee and creditors have accurate information without having to conduct costly investigations." Id. A false statement or omission must be material to the bankruptcy case to provide grounds for a denial of discharge. In re Khalil, 379 B.R. at 172.
Therefore, there are three elements to an action under § 727(a)(4)(A): (1) Debtor made such a false statement or omission, (2) regarding a material fact, and (3) did
1:00 PM
so knowingly and fraudulently. Id.; In re Retz, 606 F.3d 1189, 1197 (9th Cir. 2010).
False Statement or Omission
When accepting all well-pleaded allegations in the complaint as true, the first element is clearly met. The allegation is clear that Debtor made certain misstatements in the original and first amended Statement of Financial Affairs as detailed above. This is bolstered by the fact that Debtor amended the Statement of Financial Affairs and various schedules after 1) the Order Granting Motion for 2004 Examination and 2) the filing of this adversary action. Those amendments indicate that earlier statements were changed.
Materiality
A fact is material "if it bears a relationship to the debtor's business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of the debtor's property." In re Retz, 606 F.3d at 1198. An omission or misstatement that "detrimentally affects administration of the estate" is material. Id. (denying discharge under § 727(a)(4)(A) where debtor omitted information relating to his assets, property, and business dealings, making it almost impossible to reconstruct his financial affairs). A false oath may be "material" even though it does not cause direct financial prejudice to creditors. In re Wills, 243 B.R. 58, 63 (B.A.P. 9th Cir. 1999).
Here, Debtor has allegedly made misstatements regarding the amount of income received by her and her business for the years leading up to the bankruptcy. Plaintiff alleges that Debtor disclosed as income less than half of the money she deposited into her personal bank accounts. Furthermore, Plaintiff alleges a number of misstatements or omissions regarding the Debtor’s fully-owned business. It would not be possible to "reconstruct" Debtor’s financial affairs without an understanding of what happened to Debtor’s business, which, Debtor now admits in the second amended Statement of Financial Affairs, received almost $270,000 in gross income in 2016. ECF Doc. No. 36, p. 15.
With the limited discovery granted under the Rule 2004 motion, Plaintiff alleges to have discovered information that Debtor now seems to acknowledge should have been disclosed in the statement of financial affairs. The Plaintiff has met her burden of showing that the false statements or omissions were material.
Knowingly and Fraudulently
1:00 PM
The "knowing and fraudulent" intent standard of § 727(a)(4) means that
Debtor must have actual (not constructive) intent in concealing records or making an omission in schedules. In re Wills, 243 B.R. at 64. However, for purposes of pleading under Fed. R. Civ. P. 9(b) and 12(b), Plaintiff may allege fraud generally.
Twombly, 550 U.S. at 559. The complaint alleges as follows:
Plaintiff alleges that Defendant knowingly and fraudulently made material false statements under penalty of perjury in her Schedules and Statement of Financial Affairs filed on September 4, 2017 ("Original SOFA") and in her Amended Statement of Financial Affairs filed on November 16, 2017 ("Amended SOFA"), including those set forth below.
Complaint 3:22-27. The complaint goes on to allege particular misstatements or omissions from the original Statement of Financial Affairs, most or all of which were amended into the Statement of Financial Affairs following the filing of the complaint in this adversary. The complaint provides specific enough information regarding the details of the alleged fraud to enable Debtor to answer the allegations. The complaint contains sufficient details regarding the "who, what, when, where and how of the misconduct charged" to allow Debtor to defend herself. Vess v. Ciba-Geigy Corp. USA, 317 F.3d at 1106. Indeed, Debtor was eager to explain why the facts alleged by Plaintiff were misconstrued or out of context. In the Motion, Debtor explains that the alleged additional income evidenced by deposit and withdrawal discrepancies were contributions made by Debtor’s family to keep the business running; however, this factual assertion is improper in the context of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). The Court is required to accept as true all well-pleaded allegations in the complaint, with exceptions not relevant here. Debtor’s arguments go primarily to the weight of the evidence and whether Plaintiff can meet her burden of proof, issues which cannot be considered on a motion to dismiss.
The fact that Debtor amended her schedules does not excuse her from full disclosure at the time of filing the initial schedules and Statement of Financial Affairs. In re Shoemaker, No. 1:14-AP-01206-GM, 2018 WL 300524, at *14 (Bankr. C.D. Cal. Jan. 4, 2018); In re Beauchamp, 236 B.R. 727, 734 (B.A.P. 9th Cir.
1999), aff'd, 5 F. App'x 743 (9th Cir. 2001) (no error in denying discharge under
§ 727, even though debtor amended schedules, where bankruptcy court found that the amendment was motivated by the setting of a Rule 2004 examination); In re Cummings, 595 F. App'x 707, 709 (9th Cir. 2015)(chapter 7 debtors' eventual disclosure, on their third amended Schedule B, of their interest in a limited liability
1:00 PM
company (LLC) did not negate their initial fraud for discharge denial purposes).
The Court declines Debtor’s invitation to treat the Motion as a motion for summary judgment pursuant to Fed. R. Civ. P. 12(d), which states:
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Courts have complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a motion to dismiss under Fed. R. Civ. P. 12(b)(6), and conversion of a motion to dismiss to a motion for summary judgment is therefore in the discretion of the court.
§ 1366 Conversion of a Rule 12(b)(6) Motion Into a Summary Judgment Motion, 5C Fed. Prac. & Proc. Civ. § 1366 (3d ed.); Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997)(refusing to rule on motion for summary because discovery had not taken place when case was dismissed, Rule 56(f) motion was pending, and court could not determine from record whether genuine issue of material fact existed). Consideration of materials outside of the pleadings is unlikely to dispose of this matter, as Plaintiff has had no opportunity for discovery other than the Rule 2004 motion. The Court excludes the declarations submitted by Debtor.
The Court may furthermore consider facts subject to judicial notice in deciding a motion to dismiss. Hsu v. Puma Biotechnology, Inc., 213 F. Supp. 3d 1275, 1280 (C.D. Cal. 2016). Debtor has filed a request for judicial notice under Federal Rule of Evidence Rule 201. However, the two documents attached have no bearing on this Motion. Both documents are related to Debtor’s argument that the chapter 7 trustee in Michel Kanaan’s case investigated all of Kanaan’s assets and liabilities, including conducting a Rule 2004 examination against Debtor Juniana Njeim. Motion to Dismiss, 9:15-25. Debtor also points to the fact that the chapter 7 trustee in this case has not pursued any action related to Debtor’s business entities. Motion to Dismiss, 9:26-10:4. While it is clear from the pleadings that Mr. Kanaan, Debtor’s spouse, was closely involved with Debtor’s business dealings, he is not the Debtor in this case and his actions are not relevant to whether Plaintiff has stated a plausible claim under § 727(a)(4)(A).
1:00 PM
Conclusion
Plaintiff meets the heightened pleading standard for all three elements of an action under § 727(a)(4)(A). The declaration of Debtor and the declaration of Kevin Simon are excluded from consideration on this motion to dismiss.
Debtor(s):
Juliana Njeim Represented By Kevin T Simon
Defendant(s):
Juliana Njeim Represented By Kevin T Simon
Movant(s):
Juliana Njeim Represented By Kevin T Simon
Plaintiff(s):
Maryam Seyedan Represented By James R Selth
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
Adv#: 1:18-01010 Seyedan v. Njeim
Docket 1
Continued to 4/25 at 1 pm to be heard with Motion to Dismiss
Debtor(s):
Juliana Njeim Represented By
Richard Mark Garber
Defendant(s):
Juliana Njeim Pro Se
Plaintiff(s):
Maryam Seyedan Represented By James R Selth
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
Adv#: 1:17-01023 Zambo v. Jeffries
fr. 6/14/17; 9/27/17; 3/28/18
Docket 1
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Penelope Charlene Jeffries Represented By Ginger Marcos
Defendant(s):
Penelope Charlene Jeffries Pro Se
Plaintiff(s):
Nicole Zambo Pro Se
Trustee(s):
Diane Weil (TR) Pro Se
10:00 AM
Re: Civil Contempt Against (A) Mainstream Advertising;
Danny Bibi; and (C) Sheila Mishkan fr. 2/13/18, 2/15/18; 3/8/18, 3/21/18
Docket 27
NONE LISTED -
Having reviewed the docket, and for good cause appearing, this matter will be continued to May 1, 2018, at 1:00 p.m. to be heard along with the Motion to Convert. Appearances waived on April 26.
Debtor(s):
Mainstream Advertising, a Represented By Michael Jay Berger
9:30 AM
Docket 0
NONE LISTED -
Debtor(s):
Thomas J Hopkins PH.D., M.D., Represented By
Leslie S Gold
Ira Benjamin Katz Martin P Cohn
9:30 AM
fr. 12/18/14, 3/26/15; 6/4/15, 8/27/15, 10/29/15 2/4/16, 4/7/16, 5/23/16, 1/19/17, 2/9/17, 8/16/17
1/110/18
Docket 1
The status report was helpful and generally indicates progress, although not as good as projected. Given the slow payment to the trust funds, the status conference will remain on calendar in case any creditor appears. If no issue to address at the status conference, the matter will be continued at the hearing to September 26 at 9:30, as requested in the status report.
Debtor(s):
Tony Servera Company, Inc. Represented By Steven R Fox
Movant(s):
Tony Servera Company, Inc. Represented By Steven R Fox
9:30 AM
As Containing Adequate Information
Docket 342
Debtor filed the disclosure statement at issue on April 25, 2018 (the "Disclosure Statement"). On May 24, a day after the deadline for objections under Local Bankruptcy Rule 3017-1(b), Sara Boodaie filed an objection to the approval of the Disclosure Statement. There is a question as to whether Ms. Boodaie has standing to bring this objection. Section 1109 states that:
A party in interest, including the debtor, the trustee, a creditors’ committee, an equity security holders’ committee, a creditor, an equity security holder, or any indenture trustee, may raise and may appear and be heard on any issue in a case under this chapter.
Ms. Boodaie is the co-trustee, along with her son Joseph Boodaie, of the Yahouda Boodaie Revocable Living Trust Dated July 6, 2007 (the "Trust"). Previously in the case, there was a dispute as to whether ownership of Osher and Osher, Inc. ("Debtor") was held by the Trust or by Joseph Boodaie individually. The Court granted relief from the automatic stay on February 29, 2016 to Kourosh Vosoghi and 26 Moorpark, LLC, the judgment creditors of Joseph Boodaie ("Judgment Creditors"), to continue litigation in the Superior Court of California for the County of Los Angeles (the "State Court") to determine the ownership of Debtor. The State Court determined that the Debtor was owned by Joseph Boodaie, individually, rather than the Trust. On August 2, 2016, the Court granted Judgment Creditors relief from stay to levy upon the stock of the Debtor. Following a claim objection, Ms. Boodaie’s claim was disallowed in its entirety by the Court’s order dated April 24, 2018 (Doc.
No. 339).
9:30 AM
Ms. Boodaie argues that the Disclosure Statement contains inadequate
information because "it fails to accurately characterize the contingencies associated [with] the proposed distribution." In particular, Ms. Boodaie points to a minute order issued by the State Court on March 1, 2016, stating "[t]he Court’s finding is without prejudice to the Probate Court and any findings or disposition made by that Court." Ms. Boodaie asserts that the probate court is "poised to rule on that issue, possibly as early as the hearing on these issues that is currently scheduled to occur in the Probate Court on June 8, 2018."
Despite Ms. Boodaie’s argument, the Disclosure Statement does disclose the existence the probate court proceeding in which Debtor may be a party in interest:
There are no significant adversary proceedings or motions pending at the present time. While OOI may be an interested party in connection with certain nonbankruptcy legal proceeding(s) involving Joseph Boodaie et al., inclusing probate court actions, in re Yahouda Boodaie Revocable Living Trust, dated July 2, 2007, Case No. 17STPB04365, OOI is currently not involved in any other nonbankruptcy legal proceeding(s).
(Disclosure Statement 13:13-21). It is unclear what additional information Ms. Boodaie believes should be included in the Disclosure Statement. The Disclosure Statement contains adequate information regarding the probate court action.
Ms. Boodaie also argues that the Disclosure Statement lacks adequate information because it fails to state from where the "$1,000,000 in funds recovered by the equity security holders" was recovered and where the funds are currently located. The Disclosure Statement, in fact, explains that the equity security holders recovered the approximately $1,000,000 in cash "as a result of a settlement with Aminpour dba DTC Holdings," and that "the Current Equity Holders will retain the recovered funds." Ms. Boodaie’s second objection is without merit.
Ms. Boodaie’s objection is overruled as untimely and for failing to raise any meritorious arguments. The Court finds that the Disclosure Statement contains adequate information.
APPEARANCE REQUIRED
9:30 AM
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
9:30 AM
Docket 341
NONE LISTED -
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
9:30 AM
fr. 11/3/16, 11/10/16; 1/26/17; 2/1/17; 3/29/17, 5/24/17, 6/14/17, 7/12/17, 10/18/17; 11/29/17, 2/7/18, 5/2/18
Docket 1
The confirmation hearing will be August 1 at 9:30 am.
Debtor should upload an approval of disclosure statement and confirmation scheduling order by June 8.
The solicitation package with scheduling order, ballots, disclosure and plan, should be sent out by June 15.
Objections to the plan and ballots should be filed by July 13.
Reply to Objections, ballot summary and any confirmation brief are to be filed by July 20.
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
9:30 AM
Docket 0
NONE LISTED -
Debtor(s):
Menco Pacific, Inc. Represented By Jeffrey S Shinbrot
9:30 AM
Docket 60
Before a disclosure statement may be approved after notice and a hearing, the court must find that the proposed disclosure statement contains "adequate information" to solicit acceptance or rejection of a proposed plan of reorganization. 11 U.S.C. § 1125(b). The disclosure statement does not mention that the Court granted in rem relief from stay in March 2018 or that Debtor appealed that ruling.
Here, where the entire plan depends on a sale the real property on which in rem relief from stay was granted, a disclosure statement that has no information about the in rem Order and the appeal cannot satisfy the standards for approving a disclosure statement. "Adequate information" means information of a kind, and in sufficient detail, so far as is reasonably practicable in light of the nature and history of the debtor and the condition of the debtor's books and records, that would enable a hypothetical reasonable investor typical of the holders of claims against the estate to make a decision on the proposed plan of reorganization." 11 U.S.C. § 1125(a).
APPROVAL DENIED. APPEARANCE REQUIRED
Debtor(s):
Benzeen Inc. Represented By
Robert Reganyan Michael R Sment
9:30 AM
Docket 0
NONE LISTED -
Debtor(s):
Benzeen Inc. Represented By
Robert Reganyan
9:30 AM
fr. 5/16/18
Docket 69
This hearing was continued from 5/16/18, to allow Debtor the opportunity to file the lending agreement between Debtor and the "third party" vaguely referred to in the Motion to Borrow. Debtor was to have filed the lending agreement on or before May 23, 2018. Debtor filed nothing further in support of this Motion, and therefore has failed to address the U.S. Trustee’s objection.
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 70
This hearing was continued from 5/16/18, to allow Debtor the opportunity to file the settlement agreement between Debtor’s principal Ahron Zilberstein and secured creditor Comerica for satisfaction of its claim. On May 23, 2018, Debtor filed the executed settlement agreement, ECF doc. 103.
While there is now sufficient evidence in the record in support of this Motion to Approve Compromise, Debtor’s performance under this settlement agreement is dependent on obtaining the financing that is the subject of the Motion to Borrow. The Motion to Borrow, however, is not likely to be granted because Debtor did not file the evidence in support of the Motion to Borrow (i.e., the lending agreement) by the Court-ordered deadline.
APPEARANCE REQUIRED.
APPEARANCE REQUIRED
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 84
APPEARANCE REQUIRED. Debtor also should address whether sufficient environmental issues have been disclosed.
Debtor(s):
Barton Wayne Fishback Represented By Matthew Abbasi
Joint Debtor(s):
Carol Fishback Represented By Matthew Abbasi
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
9:30 AM
Docket 12
NONE LISTED -
Debtor(s):
MEJD PARTNERSHIP Represented By
Mark E Goodfriend
9:30 AM
Docket 1
Proposed claim bar date: August 15, 2018 - serve order this week Proposed disclosure statement filing deadline: September 26, 2018
File motion to value and self calendar it before this date.
Check loan documents and make sure rents are cash collateral before filing any motion.
Is property insured for a tenant?
Proposed disclosure statement hearing: November 14, 2018 at 9:30
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Debtor(s):
Fatemah Dowlatinow Represented By Dana M Douglas
9:30 AM
Docket 11
Appearance required, unless withdrawn
Debtor(s):
01 BH Partnership Represented By
Mark E Goodfriend
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
11:00 AM
Docket 34
Petition Date: 8/21/15
Chapter 13 plan confirmed: 12/8/18 Service: Proper. Oposition filed.
Property:14164 Paddock St., Sylmar, CA 91342 Property Value: $271,000 (per debtor’s schedules) Amount Owed: $181,772
Equity Cushion: 32.9% Equity: $89,228
Postconfirmation Delinquency: $2,458.41 (two payments of $1,239.82), last payment received April 2018.
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
stay).
Debtor opposes the Motion, arguing that there is a sufficient equity cushion to protect Movant's claim and that, on that basis alone, relief should be denied. Debtor does not, however, address that the language of 362(d)(1) contemplates other grounds as cause for relief. See In re Ellis, 60 B.R. 432, 435 (B.A.P. 9th Cir. 1985) (failure to make post-confirmation payments can constitute cause for lifting the stay).
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Jean'e Milika Blair Represented By Arsen Pogosov
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
REVERSE MORTGAGE SOLUTIONS INC
fr. 3/21/18, 5/2/18
Docket 26
this hearing was continued from 3/21/18 so that the parties could negotiate an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
3/21/18 Tentative:
Petition Date: 08/15/2016 Chapter: 13
Service: Proper. Opposition filed on 3/7/18.
Property: 8849 Comanche Avenue Canoga Park, CA 91306 Property Value: $485,000 (per debtor’s schedules)
Amount Owed: $411,833.09 (per RFS motion) Equity Cushion: 7%
Equity: $73,166.91
Post-Petition Delinquency: $3,779.95
Movant requests relief under 11 U.S.C. 362(d)(1), with the relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, contending that the Property is necessary for an effective reorganization. Debtor intends to file a plan for reorganization that requires the use of the Property. Debtor also claims that the Property is insured and Debtor is seeking an Adequate Protection Order to cure arrears that have accrued post- petition.
APPEARANCE REQUIRED.
11:00 AM
Debtor(s):
Dorothy Lee Carter Represented By Steven A Alpert
Movant(s):
REVERSE MORTGAGE Represented By
Anish Matchanickal Madison C Wilson Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 39
Petition Date: 11/13/17 Chapter: 13
Service: Proper. No opposition filed. Property: 2014 Nissan Sentra
Property Value: $8,000 (per debtor’s schedules) Amount Owed: $17,345
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $1,268.23 (three payments of $396.33; four late charges of $19.81)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Barry Lee Morgan Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 12
Petition Date: 4/30/18 Chapter: 7
Service: Proper. No opposition filed. Property: 2016 Toyota Prius Property Value: $0 (lease)
Amount Owed: $24,305.36 Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $602.64
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jose Antonio Nanola Paredes Represented By Navid Kohan
Joint Debtor(s):
Rowena Cruz Paredes Represented By Navid Kohan
11:00 AM
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
SANTANDER CONSUMER USA INC DBA CHRYSLER CAPITAL
Docket 12
Petition Date: 11/29/17 Chapter: 7
Service: Proper. No opposition filed. Property: 2015 Jeep Cherokee
Property Value: $26,300 (per Movant's evidence - NADA Guide) Amount Owed: $35,994.43
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $845.16
Movant alleges grounds for annulment of the stay because Debtor surrendered, and Movant accepted possession of, the subject vehicle post- petition.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 4 (annulment of stay); and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Alycia Anne Holowchak Represented By
James Geoffrey Beirne
11:00 AM
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
fr. 5/2/18
Docket 47
- NONE LISTED -
Debtor(s):
Reynaldo Jesus Sosa Represented By Tawni Takagi
Movant(s):
U.S. Bank National Association, as Represented By
Kelsey X Luu Renee M Parker
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 35
Petition Date: 1/3/18 Chapter: 13
Service: Proper. Opposition filed. Property: 14153 Claretta St.,
Property Value: $469,000 (per debtor’s schedules) Amount Owed: $500,568.42
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $5,015.97 (three payments of $1,671.99)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
stay).
Debtor opposes the Motion, arguing that her proposed chapter 13 plan provides for treatment of this claim, and that all delinquent post-petition payments will be cured by the date of the hearing.
APPEARANCE REQUIRED
Debtor(s):
Cynthia Deniese Sanders Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
11:00 AM
Docket 33
Petition Date: 1/3/18 Chapter: 13
Service: Proper. Opposition filed. Property: 2012 Jeep Compass
Property Value: $3,651 (per debtor’s schedules) Amount Owed: $10,057
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $898.62 (three post-petition payments of $299.54)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
Debtor opposes the Motion, arguing that her proposed chapter 13 plan provides for treatment of this claim, and that all delinquent post-petition payments will be cured by the date of the hearing.
APPEARANCE REQUIRED
Debtor(s):
Cynthia Deniese Sanders Pro Se
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Jamie D Hanawalt
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 10
Petition Date: 4/11/18 Dismissed: 4/11/18 Chapter: 7
Service: Proper. No opposition filed.
Property: 1632 Ben Lomond Dr., Glendale, CA 91202 Property Value: no schedules filed
Amount Owed: not provided Equity Cushion: unk.
Equity: unk.
Post-Petition Delinquency: unk.
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfers of, and multiple bankruptcies affecting, the subject property. Movant also alleges cause for annulment of the stay because ithe Trustee's sale of the subject property went forward without notice or knowledge of the bankruptcy.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 5 (annulment of stay); 7 (waiver of the 4001(a)(3) stay); 8 (law enforcement may evict); and 9 (relief under 362(d)(4)).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
MOVANT IS ORDERED TO SERVE A COPY OF THE ENTERED ORDER ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
11:00 AM
Debtor(s):
Bayline Holding Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
TOYOTA MOTOR CREDIT CORPORATION
Docket 9
Petition Date: 4/14/18 Chapter: 7
Service: Proper. No opposition filed. Property: 2013 Toyota RAV 4
Property Value: $16,150 (per Movant's evidence - NADA Guide) Amount Owed: $19,133
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $1,457 (3 payments of $485.77)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Ismael Gonzalez Represented By Lauren M Foley
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
fr. 5/2/18
Docket 9
- NONE LISTED -
Debtor(s):
Maria Mercedes Arana Represented By Kevin T Simon
Movant(s):
Maria Mercedes Arana Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 13
Petition Date: 4/18/18
Chapter 13 dismissed w/ 180-day bar: 5/2/18 Service: Proper. No opposition filed.
Property: 34561 Red Rover Mine Rd., Acton, CA 93510 Property Value: no schedules filed
Amount Owed: $416,895 Equity Cushion: unk.
Equity: unk.
Post-Petition Delinquency: n/a
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfers of, and multiple bankruptcies affecting, the subject property.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under 362(d)(4)).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
MOVANT IS ORDERED TO SERVE A COPY OF THE ENTERED ORDER ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
11:00 AM
Debtor(s):
Gonzalo Gonzalez Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 10
Petition Date: 4/27/18 Ch: 7
Service: Proper. No opposition filed. Movant: HPG Mgmt., Inc.
Property Address: 7230 De Soto Ave. #206, Canoga Park, CA 91303 Type of Property: residential
Occupancy: holdover after month-to-month tenancy in default Foreclosure Sale: n/a
UD case filed: 3/7/18 (trial cont'd due to filing) UD Judgment: n/a
Disposition: GRANT under 11 U.S.C. 362(d)(1); (d)(2). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jeff Murdock Represented By
Scott D Olsen
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 9
Petition Date: 5/16/18
Ch. 13 dismissed w/ 180-day bar: 6/1/18
Service: Proper on Judge's shortened time procedures. No opposition filed. Movant: Palmer/Boston St. Properties III, LP
Property Address: 606 N. Figueroa St. #312, Los Angeles, CA 90012 Type of Property: Residential
Occupancy: unknown - debtor not a resident or party to the residential lease in
default Foreclosure Sale: n/a
UD case filed: 2/20/18 (5/22/18 trial continued because of this filing) UD Judgment: n/a
Movant requests extraordinary relief, due to multiple filings by unaffiliated debtors that are affecting the UD action.
Disposition: GRANT under 11 U.S.C. 362(d)(1); (d)(2). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)(3) stay). GRANT relief as to paragraph 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law); 9 (order is binding and effective for 180-days against any debtor)
APPEARANCE REQUIRED DUE TO SHORTENED TIME RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Marcus Black Pro Se
Movant(s):
Palmer/Boston St. Properties III, A Represented By
Joseph Cruz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
SHRI AGARWAL AND SUDHA AGARWAL
Docket 10
Petition Date: 5/14/18 Ch: 13
Service: Proper on Judge's shortened time procedures. No opposition filed. Movant: Shri & Sudha Agarwal
Property Address: 20542 Como Lane, Porter Ranch, CA 91326 Type of Property: Residential
Occupancy: unknown - debtor not a resident or party to the residential lease in
default Foreclosure Sale: n/a
UD case filed: 2/21/18 (5/16/18 trial continued to 6/6/18 because of this filing) UD Judgment: n/a
Disposition: GRANT under 11 U.S.C. 362(d)(1); (d)(2). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)(3) stay).
APPEARANCE REQUIRED DUE TO SHORTENED TIME RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Aaron Johnson Pro Se
Movant(s):
Shri Agarwal and Sudha Agarwal Represented By
Sandeep G Agarwal
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01039 Weil, Chapter 7 Trustee v. Saghian et al
Docket 1
Defendants must brief their assertion of a lack of jurisdiction by June 20 and notice it for July 18 at 1 pm or it is waived.
Discovery cut-off (all discovery to be completed*): 3/15/19 Expert witness designation deadline (if necessary): 4/12/19
Case dispositive motion filing deadline (MSJ; 12(c)): 3/29/19 (may self calendar earlier)
Pretrial conference: 5/8/19 at 11 am
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A)- 4/24/19
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil Procedure.
Meet and Confer
Counsel/parties must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
Discovery Motion Practice:
All discovery motions must be filed within 30 days of the service of an objection,
11:00 AM
answer, or response which becomes the subject of dispute or the passing of a discovery due date without response or production, and only after counsel have met and conferred and have reached an impasse with regard to the particular issue.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
David Saghian Represented By Edmond Nassirzadeh
Defendant(s):
David Saghian Pro Se
PARVANEH SAGHIAN Pro Se
Plaintiff(s):
Diane C. Weil, Chapter 7 Trustee Represented By
Michael G D'Alba
Trustee(s):
Diane C Weil (TR) Represented By Michael G D'Alba John N Tedford
11:00 AM
Adv#: 1:17-01072 LOANME, INC. v. Mandavi
fr. 11/1/17, 11/8/17, 4/4/18
Docket 7
Debtor(s):
Milad Mandavi Represented By David S Hagen
Defendant(s):
Milad Mandavi Represented By David S Hagen
Plaintiff(s):
LOANME, INC. Represented By Tina M Pivonka
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:18-01040 American Express National Bank v. Kayed
Docket 1
Discovery cut-off (all discovery to be completed*):
Expert witness designation deadline (if necessary):
Case dispositive motion filing deadline (MSJ; 12(c)):
Pretrial conference:
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil Procedure.
Meet and Confer
Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
Discovery Motion Practice:
All discovery motions must be filed within 30 days of the service of an objection, answer, or response which becomes the subject of dispute or the passing of a discovery due date without response or production, and only after counsel have met
11:00 AM
and conferred and have reached an impasse with regard to the particular issue.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
Carol Kayed Represented By
Daniel King
Defendant(s):
Carol Kayed Pro Se
Plaintiff(s):
American Express National Bank Represented By
Robert S Lampl
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 35
Debtor is an actress who receives residuals for her works through her wholly owned loan out production companies, Odawno, Inc. and/or Eternal Dawn, Inc.
Based on Trustee’s review and investigation, the estate and its creditors have a right to recover significant residual income stream post-petition from works that Debtor performed pre-petition ("Pre- Petition Work Residuals"). Pursuant to 11 U.S.C. § 541 (a)(6), residuals from post-petition works performed by Debtor ("Post-Petition Work Residuals") would not be property of the estate.
Debtor filed this voluntary chapter 7 on December 30, 2017. Trustee alleges that Debtor misstated her income in the schedules and means test, by failing to disclose income from residuals earned pre-petition. Debtor, through her original bankruptcy counsel John Faucher, filed Schedules I and J which report monthly income of $5,000 and expenses of $4,873, leaving monthly net income of $127.00.
On March 15, 2018, Trustee made a written demand upon Debtor (through John Faucher), that Debtor immediately deliver to the estate all residual income or payment received by Debtor, directly or through her loan out production companies from and after the Petition Date, together with a monthly accounting of the same from SAG-AFTRA to verify such income and payments. Also on March 15, 2018, Trustee made a written demand upon SAG-AFTRA to direct all future royalty payments that are otherwise payable to Dawn O. Olivieri and/or her loan-out companies to Trustee.
On March 30, 2018, Trustee received a listing of all residual payments received by Debtor from December 30, 2017 through March 20, 2018. This listing showed that Debtor received total residuals of $6,636.70 during this period. Trustee received a wire of this amount from John Faucher on March 23, 2018.
From and after March 20, 2018, Trustee alleges that he sent many written requests to John Faucher, and later to Larry Simons, Debtor’s new bankruptcy lawyer, for further accounting of all residuals received on and after March 20, 2018 and delivery of the funds to Trustee. Trustee states that Debtor did not respond to
11:00 AM
his request for further accounting.
On May 1, 2018, Debtor, with the assistance of her new lawyer, amended her Schedule C, exempting for the first time up to $28,225 of Pre-Petition Work Residuals pursuant to C.C.P. § 703.140(b)(5). On May 15, 2018, Debtor then filed the Motion seeking to convert to Chapter 13. In the Motion, Debtor places blame on her prior counsel, arguing that he did not realize that Debtor’s residual stream was an asset that could be monetized by Trustee. With the advice of new counsel, Larry Simmons, Debtor argues that she is eligible to be a chapter 13 debtor, and that if the case is converted, the proposed plan is to pay creditors 100% on their claims.
The chapter 7 trustee, David Gottlieb, opposes on the ground that the Motion, filed four and one-half months after the petition date, is prejudicially untimely to creditors, as Trustee has already collected more than three months of residual payments and was working towards recovering other Pre-Petition Work Residuals
for recovery to creditors. Trustee notes that there has been interest for the sale of the residual stream, which would pay creditors more quickly. Furthermore, Trustee contends that the proposed plan is infeasible and that there is no evidence to support Debtor’s proposed amendment to Sch. I that would reflect an increase in income and the proposed amendment to Sch. J that would inexplicably reduce Debtor’s expenses (including reducing her tax payments to $0 per month).
The Supreme Court has found that a chapter 7 debtor can forfeit their right to convert the case to chapter 13 where debtor engaged in bad-faith conduct which would warrant dismissal or re-conversion of the chapter 13 case. Marrama v.
Citizens Bank of Massachusetts, 549 U.S. 365, 373-74 (2007). The court, however, warned that such action should only be taken by the court in the case of an "atypical litigant," or alternatively stated, in "extraordinary circumstances." Id. at 375; See Id. at N. 11. The court in Marrama found a bankruptcy court’s authority under section 105(a) was sufficiently broad to deny a motion to convert under section 706 where the conversion would "merely postpone the allowance of equivalent relief and may provide debtor with an opportunity to take action prejudicial to creditors." Id. In Marrama, the debtor engaged in pre-petition bad faith conduct by making misleading or inaccurate statements within his schedules, failed to disclose a pre-petition transfer of real property, attempted to obtain homestead exemption on rental property and failed to disclose an anticipated tax refund. The court reasoned that the debtor may exceed the debt limits under 11 U.S.C §109(e) and his aforementioned conduct was bad faith amounting to an abuse of process if he were allowed to
11:00 AM
convert from Chapter 7 to Chapter 13. Id at 372-76.
While Trustee opposes the Motion for all of the reasons explained above, Trustee does request that, if the Motion is granted and Debtor is permitted to propose a chapter 13 plan, as conditions to the granting of the Motion, Debtor be required to (i) pay, prior to the effectiveness of the conversion, for all approved fees and expenses of Trustee and his counsel, and (ii) account for and deliver to Trustee and subsequently to the Chapter 13 trustee all Pre-Petition Work Residuals received by Debtor through the effective date of confirmation of the plan, with such funds to be returned to any subsequent chapter 7 trustee in the event of a "re-conversion" of the case to Chapter 7. Trustee argues that these conditions are necessary in order to protect creditors.
Debtor has known of the residual issue since at least February of 2018 when the trustee inquired about them at the 341(a) but waited until May 15 to file a motion to convert. Trustee has hired counsel and proceeded to administer this case, incurring fees and expenses.
Although debtor argues that she will pay 100% to creditors over 5 years, it is not clear that she will be able to do that. In addition, the trustee can have creditors paid more quickly by selling the residual stream. The Debtor has provided no evidence to support her proposed amendments to her income and expenses – without which feasibility and good faith are still questionable.
Debtor(s):
The court is inclined to deny the motion to convert.
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
David Keith Gottlieb (TR) Represented By Monica Y Kim
11:00 AM
Docket 30
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED on June 6, 2018. Trustee to submit order within 7 days.
Debtor(s):
James Mark Eisenman Represented By
Amelia Puertas-Samara
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
Adv#: 1:16-01119 Moussighi et al v. Talasazan
Docket 54
Introduction
Yoram Talasazan ("Debtor" or "Defendant") and Moeir and Hanrit Moussighi dba Roll Tex ("Plaintiffs") entered into approximately forty agreements, dating back to 2007, for purchasing discount "fire sales" of garments for resale to retailers. Debtor would locate potential merchandise, purchase it, then store it in the warehouse of a business he operated, Ban-V, Inc., until a purchaser was located. When the goods were sold, profits were split between Ban-V and Plaintiffs 60%-40%, respectively.
The parties' business relationship ended after Debtor allegedly failed to honor the terms of the agreements. The parties have previously been involved in litigation in the Superior Court of the State of California for the County of Los Angeles (the "Superior Court") in connection with the allegations at issue in this adversary action. That case, assigned case number BC459337 (the "State Court Action"), was resolved with a judgment (the "Third Amended Judgment") and Statement of Decision (the "Statement of Decision") being entered in favor of Plaintiffs and against Debtor on six causes of action: breach of contract, open book account, account stated, unjust enrichment, negligent misrepresentation, and dishonored checks. The Third Amended Judgment and the Statement of Decision were, however, silent on a number of other causes of action brought against Debtor, including fraud, conspiracy to defraud, conversion, assault, battery, and intentional infliction of emotional distress.
This matter comes before the Court on cross motions for summary judgment (referred to herein as "Plaintiffs’ Motion," "Debtor’s Motion," and, collectively, the "Motions"). Both parties agree that the Statement of Decision
1:00 PM
and Third Amended Judgment have preclusive effect on the Motions, though they disagree on which issues are precluded from re-litigation. The extent of the application of collateral estoppel is the primary issue before the Court.
Standard
Under Federal Rule 56(c), on a summary judgment motion, the movant in order to succeed must establish the lack of a genuine issue of material
fact and entitlement to judgment as a matter of law. In re Aubrey, 111 B.R. 268, 272 (BAP 9th Cir. 1990). The moving party must support its motion with credible evidence, as defined in Rule 56(c), which would entitle it to a directed verdict if not controverted at trial. Id. If a party fails to address another party’s assertion of fact, the court may consider the fact undisputed for purposes of the summary judgment motion. Fed. R. Civ. P. 56(e)(2). Substantive law determines which facts are material for purposes of summary judgment; factual disputes that are irrelevant or unnecessary are not counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The court must view all the evidence in the light most favorable to the nonmoving party. In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008). The court may not evaluate the credibility of a witness or weigh the evidence. California Steel & Tube v. Kaiser Steel Corp., 650 F.2d 1001, 1003 (9th Cir. 1981).
Analysis
Plaintiffs seek a judgment for nondischargeability under two theories: false representations under § 523(a)(2)(A) and embezzlement under § 523(a) (4). Defendant similarly seeks summary judgment on the claims under §§ 523 (a)(2)(A) and (a)(4).
Requests for Judicial Notice
There are three separate requests for judicial notice filed in connection with the Motions. In the first, Plaintiffs request judicial notice of the Statement of Decision and the Third Amended Judgment entered in the State Court Action. (ECF Doc. No. 55). The Court takes judicial notice of these
1:00 PM
documents under Federal Rule of Evidence 201.
In the second request for judicial notice (ECF Doc. No. 64), Debtor seeks to admit seven separate documents in support of Debtor’s Motion. The documents, attached as exhibits A-G, are as follows: A) the first amended complaint filed in the State Court Action; B) the Statement of Decision in the State Court Action; C) the third amended judgment from the State Court Action; D) Case Summary for the State Court Action; E) the first amended complaint in this adversary; F) the Court’s Notice of Tentative Ruling re: Motion to Dismiss First Amended Complaint in this adversary; and G) the order on the motion to dismiss the first amended complaint in this action.
Each of these documents is a public record from prior court proceedings and is therefore properly subject to judicial notice.
The third request for judicial notice was submitted by Debtor in support of his opposition to Plaintiffs’ Motion. (ECF Doc. No. 77). The documents listed are all the same documents subject to the Debtor’s request for judicial notice in support of Debtor’s Motion. As stated above, the Court will take judicial notice of each of these documents.
Section 523(a)(2)(A)
Section 523(a)(2)(A) excepts from discharge any debt "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." 11
U.S.C. § 523(a)(2)(A). A creditor’s claim of nondischargeability based on
§ 523(a)(2)(A) must satisfy five elements: (1) the debtor made false statement or deceptive conduct; (2) the debtor knew the representation to be false; (3) the debtor made the representation with the intent to deceive the creditor; (4) the creditor justifiably relied on the representation; and (5) the creditor sustained damage resulting from its reliance on the debtor’s representation.
In re Slyman, 234 F.3d 1081, 1085 (9th Cir. 2000). Each element must be shown by a preponderance of the evidence. Id. In order to avoid unjustifiably impairing a debtor’s fresh start, exceptions to discharge should be strictly construed against creditors and in favor of debtors. Klapp v. Landsman, 706 F.2d 998, 999 (9th Cir. 1983).
Preponderance of Evidence Standard Applied to
1:00 PM
California Fraud Claim
Plaintiffs argue that the fraud claim was denied in the State Court
Action because the evidentiary standard for fraud under California state law is clear and convincing evidence, whereas the burden under § 523(a)(2)(A) is preponderance of the evidence. Debtor correctly points out that Plaintiffs are wrong in stating that fraud under California law requires a showing by clear and convincing evidence. Liodas v. Sahadi, 19 Cal. 3d 278, 292, 562 P.2d 316, 324 (1977) (Standard of proof of fraud in civil cases is the usual preponderance of the evidence standard; fraud need not be proved by clear and convincing evidence). Plaintiffs provide no argument or authority otherwise in their reply. As the evidentiary standard for fraud under California law is preponderance of the evidence, Plaintiffs’ argument fails.
Defendant’s Motion
Both parties request summary judgment in their favor on this claim based upon the collateral estoppel effect of the judgment in the State Court Action. Collateral estoppel principles apply in a discharge exception proceeding under § 523(a). Grogan v. Garner, 498 U.S. 279, 284 n.11 (1991). Under 28 U.S.C. 1738, as a matter of full faith and credit, federal courts are required to apply the pertinent state’s collateral estoppel principles. Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir. 1995). Under California law, collateral estoppel applies only if certain threshold requirements are met: 1) the issue sought to be precluded from relitigation is identical to that decided in the former proceeding; 2) the issue was actually litigated in the former proceeding; 3) the issue was necessarily decided in the former proceeding; 4) the decision in the former proceeding was final and on the merits; and 5) the party against whom preclusion is sought is the same, or in privity with, the party to the former proceeding. Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir. 2001). If the threshold requirements are met, the court must also find that giving the previous judgment preclusive effect would further the public policies underlying the collateral estoppel doctrine. Id. at 1245.
Debtor’s argues in his Motion that the judge in the State Court Action ruled in favor of the Debtor on the fraud action based upon the same facts as
1:00 PM
presented here, and therefore, collateral estoppel precludes Plaintiffs from seeking a nondischargeable judgment under § 523(a)(2)(A). Neither the Statement of Decision nor the Third Amended Judgment, however, explicitly indicate that the Superior Court ruled in favor of the Debtor on the fraud cause of action. The Superior Court was simply silent as to a number of causes of action, including fraud and other intentional torts.
No authority has been presented for how collateral estoppel should be applied where the previous court was silent as to the cause of action upon which issue preclusion is sought. The rule has typically been that "a court’s silence concerning a pleaded allegation does not constitute adjudication of the issue" for purposes of collateral estoppel. In re Harmon, 250 F.3d at 1247; see also People v. Sims, 32 Cal.3d 468, 186 (1982) (stating that an issue is "actually litigated" when it is properly raised by a party's pleadings or otherwise, when it is submitted to the court for determination, and when the court actually determines the issue).
There is authority to support the proposition that where an affirmative defense is pled and the court enters judgment against defendant without any explicit finding on the affirmative defense, it must be assumed that the court rejected the affirmative defense. Kaye v. Jacobs, 122 Cal. App. 421, 431 (Cal. Ct. App. 1932), overruled on other grounds in Bumb v. Bennett, 51 Cal. 2d 294 (1958); Calzada v. Sinclair, 6 Cal. App. 3d 903, 916, 86 Cal. Rptr.
387, 396 (Ct. App. 1970) ("Appellant by his answer raised the issue of laches. While no express finding was made by the court upon this issue, it must be assumed in support of the judgment that it was decided adversely to appellant"); Wabakken v. CA. Dep't of Corr. & Rehab., 2013 WL 12218259, at
*5 (C.D. Cal. Feb. 25, 2013) (discussing and requesting further briefing on whether state agency’s silence regarding pleaded affirmative defense constituted an implied rejection of that affirmative defense for purposes of collateral estoppel). In these cases, however, the court explicitly made a ruling against the defendant on the underlying cause of action.
Debtor cites several out-of-circuit cases to support the proposition that an arbitrator’s determination that there is no merit to a state law fraud action is preclusive as to that creditor’s ability to assert a nondischargeability claim under § 523(a)(2)(A). In re Schurtenberger, 2014 WL 92828, at *6 (Bankr.
1:00 PM
S.D. Fla. Jan. 9, 2014); 114 Kimbell Square, Ltd. v. Ritter, 2007 WL 1660676, at *6 (N.D. Tex. June 8, 2007). However, these cases are not on point. The arbitration panel in Schurtenberger did not make any specific findings supporting fraud. Here, the Superior Court made a number of specific findings in the Statement of Decision which, taken together, seem to amount to a claim for fraud. Similarly, the Kimbell Square case is also not helpful because the underlying judgment specifically denied to fraud claim and did not make other findings of fact that supported the elements of fraud. Kimbell Square, 2007 WL 1660676, at *2.
In short, it is unclear based upon the Statement of Decision and applicable law whether the claim for fraud was "actually litigated" and "necessarily decided" in the State Court Action. By way of explanation for why the Statement of Decision only addresses certain causes of action, Debtor attaches a Declaration of Steve P. Scandura, Debtor’s attorney in the State Court Action. (ECF Doc. No. 76). Scandura’s declaration explains the process by which the Statement of Decision was drafted. Apparently, the request for statement of decision was deemed to be applicable to the first amended judgment, which was similarly silent as to causes of action including fraud.
Implicit in the tentative/proposed judgments and the Final Judgment is that the plaintiffs did not prove their causes of action for fraud[, etc.] all of which were prosecuted by the
plaintiffs at trial and in many of the post trial briefs. I have a
clear recollection of plaintiff’s counsel arguing in one of the post- judgment hearings that the Court should make a finding of fraud, and the Court very clearly rejecting that cause of action. I recall the Court asking Plaintiffs’ counsel what evidence he had of intent, and that he could not identify any such evidence.
(Scandura Declaration, ECF Doc. No. 76 6:5-25). The exhibits attached to Scandura’s Declaration include a number of documents filed in the State Court Action including post-trial briefs, objections to the tentative decision, and previous iterations of the judgment and statement of decision. Notably, none of the drafts of the Statement of Decision, the judgment, or any of the objections thereto address the additional causes of action, including fraud, as to Debtor. The defendants in the State Court Action worked diligently to
1:00 PM
ensure that language was added to the judgment and Statement of Decision to make it clear that the Court had ruled in favor of Noga Talasazan, Debtor’s wife, on all causes of action alleged in the first amended complaint. No such effort was made to clarify the ruling with respect to the fraud cause of action against Debtor. No authority has been presented to show that it is proper for the Court to read an implicit ruling on the fraud cause of action into the Statement of Decision. For the reasons stated above, Debtor’s Motion is DENIED as to the action under § 523(a)(2)(A).
Plaintiffs’ Motion
This motion comes down to the question of whether the findings made by the Superior Court under the subheading "negligent misrepresentation" are sufficient for a claim under § 523(a)(2)(A). It seems although the cause of action is called negligent misrepresentation, the court found all the elements for fraud. The findings made by the Superior Court are fairly serious against Debtor. It details consistent misrepresentations inducing investment, an outright ongoing scheme to defraud using false invoices and bad checks, and disappearance of inventory. Debtor seems to have played games with discovery and supplying exhibit and witness lists, and then lied at trial. This is clearly not a typical breach of contract action turned into a § 523(a)(2)(A) claim.
In the Statement of Decision, the roughly forty transactions between the parties are divided into two agreements: the Y-Agreement (transactions 1- 38), and the YD Agreement (aka Greenwest Deal or transaction 39). The Superior Court, however, did not award separate damages for these two agreements. The Court instead reasoned that the Debtor’s misrepresentations in connection with the Y-Agreement induced Plaintiffs to make further investments and incur further expenses by further entering into the YD-Agreement. The Court determined that Debtor was liable to Plaintiffs in connection with both agreements in the amount of $779,841, plus costs in the amount of $16,595.21 and interest in the amount of $473,061.29 for a total of $1,269,498.50 as of the day of the judgment. Plaintiffs calculate the current amount for this claim as $1,575.413.90.
Y-Agreement
1:00 PM
According to the Statement of Decision, Debtor made several
misstatements in connection with the Y-Agreement: 1) the merchandise would be sold under the name Rolltex; 2) Plaintiff Moeir Moussighi would have full access to the records and the warehouse; 3) Debtor would pay Moeir Moussighi in the amount of his investment prior to taking profits himself; and 4) the checks issued to Moeir Moussighi would be honored by the Bank. (Statement of Decision, 11:11-18).
The Statement of Decision establishes that the Debtor knew that the bank accounts contained insufficient funds to honor the checks written to Plaintiffs, and furthermore placed a stop payment on some of the checks. (Statement of Decision, 11:18-25). This is sufficient to satisfy the knowledge requirement of § 523(a)(2)(A).
Debtor "made the misleading statements in order to induce [Plaintiffs] to continue investing with him in the deals. The timing of the checks . . . directly correlates with the beginning of the Greenwest Deal and had an impact on Moussighi’s willingness to invest in the Greenwest Deal." (Statement of Decision, 12:1-5). This establishes intent.
The Statement of decision states that Plaintiffs’ reliance on Debtor’s representations was justified because Debtor 1) showed Moeir Moussighi invoices; 2) initially granted Moeir Moussighi access to the warehouse and merchandise; 3) issued hundreds of thousands of dollars in checks; and 4) received profits on some of the initial deals which were shared with Plaintiffs. (Statement of Decision, 12:5-12).
The Statement of Decision finds that Plaintiffs were damaged as a proximate result by the misrepresentations in connection with the Y- Agreement because they induced Plaintiffs to make further investments with Debtor. This statement of damages is ambiguous. It indicates that all of Plaintiffs’ losses were from funds extended after the Y-Agreement.
YD-Agreement
In connection with the YD-Agreement, Debtor falsely represented that he had pre-sold the merchandise and showed Plaintiffs a purchase order for the alleged pre-sale. False invoices were presented to Moeir Moussighi which
1:00 PM
indicated that the payment for the pre-sold merchandise was payable to Plaintiffs’ company. (Statement of Decision, 12:18-23).
Knowledge is established based upon the Statement of Decision indicating that invoices presented to Plaintiffs were false.
Debtor’s use of the false invoices and representations that the merchandise was pre-sold were done with the intent to defraud Moeir Moussighi by inducing him to make further investments. (Statement of Decision, 12:20-24).
Justifiable reliance is established by Debtor presenting Plaintiffs with falsified invoices, as well as checks in connection with the Y-Agreement (which ultimately were not honored and, indeed, certain checks were canceled).
The Statement of Decision finds that, as a result of the misrepresentations at issue, Plaintiffs were damaged in the amount of
$779,841 plus costs and interest, as calculated above.
Section 523(a)(4): Embezzlement
Section 523(a)(4) excepts from discharge any debt "for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." 11
U.S.C. § 523(a)(4). The FAC requests nondischargeability under § 523(a)(4), but was ambiguous as to which theory Plaintiffs were pursuing. In its tentative ruling on the Debtor’s Motion to Dismiss the FAC, which was subsequently adopted, the Court found that the Plaintiffs failed to state a claim as to embezzlement under § 523(a)(4). (ECF Doc. No. 27). However, the Court found that the Plaintiffs stated a plausible claim under § 523(a)(4) as to fraud or defalcation while acting in a fiduciary capacity. An order was entered to that effect on April 21, 2017. (ECF Doc. No. 30).
Plaintiffs’ Motion argues that summary judgment should be granted under § 523(a)(4) because all of the requirements of embezzlement under that subsection have previously been found by the Superior Court. The Court need not address whether the elements of collateral estoppel are met. Debtor correctly argues that this cause of action was dismissed pursuant to the
1:00 PM
Court’s order on the Motion to Dismiss the FAC. Section 523(a)(4) contains multiple theories for relief, each with their own elements and case law.
Plaintiffs argue in their reply that Debtor failed to address whether summary judgment should be granted as to (a)(4) for fraud or defalcation while acting in a fiduciary capacity, but Plaintiff’s motions simply does not contain any request for judgment on that cause of action. The memorandum of points and authorities in support of Plaintiffs’ Motion cites no law regarding fraud or defalcation while acting in a fiduciary capacity. Nothing in the Plaintiffs’ Motion indicates that Debtors should defend against such allegations. As Plaintiff apparently wants to move for summary judgment under (a)(4) for fraud or defalcation while acting in a fiduciary capacity, the Court will set an extended briefing schedule for the parties to more fully address the issue.
Summary judgment is therefore GRANTED in favor of Debtor on the claim for embezzlement under § 523(a)(4). Parties should come prepared to discuss a briefing schedule for the claim for fraud or defalcation while acting in a fiduciary capacity.
Debtor(s):
Yoram Talasazan Represented By Raymond H. Aver
Defendant(s):
Yoram Talasazan Represented By Raymond H. Aver
Plaintiff(s):
Moeir Moussighi Represented By Ashkan Ashour
Hanrit Moussighi Represented By Ashkan Ashour
Moeir and Hanrit Moussighi dba Represented By
Ashkan Ashour
1:00 PM
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
Adv#: 1:16-01119 Moussighi et al v. Talasazan
For Relief For Determination Of Dischargeability Of Debt Pursuant To 11 U.S.C. Section 523(a)
(2)(A); And Third Claim For Relief For Determination Of Dischargeability Of Debt Pursuant To 11 U.S.C. Section 523(a)(4)
Docket 60
See calendar number 34
Debtor(s):
Yoram Talasazan Represented By Raymond H. Aver
Defendant(s):
Yoram Talasazan Represented By Raymond H. Aver
Plaintiff(s):
Moeir Moussighi Represented By Ashkan Ashour
Hanrit Moussighi Represented By Ashkan Ashour
Moeir and Hanrit Moussighi dba Represented By
Ashkan Ashour
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
1:00 PM
Adv#: 1:16-01119 Moussighi et al v. Talasazan
for NonDischargeability of Debt Pursuant to 11 U.S.C. Sec. 523 and 727.
11/5/16, 11/30/16; 3/29/17, 7/5/17, 1/31/18, 2/14/18,
5/30/18
Docket 1
APPEARANCE REQUIRED
Defendant states that he is planning a motion for summary judgment and possible discovery motions. The parties should be ready to discuss deadlines for both events, and a pretrial conference following that.
Debtor(s):
Yoram Talasazan Represented By Raymond H. Aver
Defendant(s):
Yoram Talasazan Pro Se
Plaintiff(s):
Moeir Moussighi Represented By Donna R Dishbak
Hanrit Moussighi Represented By Donna R Dishbak Donna R Dishbak
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
2:00 PM
fr. 11/4/15; 12/16/15, 2/3/16, 3/30/16; 5/11/16; 8/17/16, 2/8/16, 11/16/16, 2/8/17, 6/14/17,10/18/17,
2/21/18
Docket 619
- NONE LISTED -
Debtor(s):
R.J. Financial, Inc. Pro Se
Movant(s):
MBNB Financial, Inc. Represented By Daniel J McCarthy
Diamonds Trading Company of Represented By Daniel J McCarthy
Diamond Trading Company of Represented By Daniel J McCarthy
Diamond Trading Company of Represented By Daniel J McCarthy
Diamond Trading Company of Main Represented By
Daniel J McCarthy
Diamond Trading Company of Plaza Represented By
Daniel J McCarthy
Diamond Trading Company of Represented By Daniel J McCarthy
2:00 PM
California Diamonds Trading Represented By Daniel J McCarthy
Branden & Company, Inc. Represented By Daniel J McCarthy
Romano's Jewelers, Inc. Represented By Daniel J McCarthy
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
9:30 AM
Docket 112
Debtor does not actually dispute that payments were not timely made to meet the requirements of section 362(d)(3). The statute provides that the court shall grant RFS where the debtor has not commenced the payments required by 362(d)(3)(B)(ii) within 90 days. While the court can terminate, annul, modify or condition the stay, it is not clear that any additional conditions would suffice where the bad checks do indicate that the debtor does not have the financial ability to reorganize.
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
Movant(s):
Temple Beth Shalom Represented By William S Brody Brian T Harvey
9:30 AM
Docket 62
- NONE LISTED -
Debtor(s):
Tatonka Acquisitions, Inc. Represented By Dana M Douglas
Movant(s):
U.S. Bank Trust, N.A. as Trustee for Represented By
Darlene C Vigil
9:30 AM
Docket 15
- NONE LISTED -
Debtor(s):
Neli Maria Negrea Represented By Stella A Havkin
Movant(s):
Neli Maria Negrea Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 349
No opposition. GRANTED. NO APPEARANCE REQUIRED.
Debtor should submit appropriate order
Debtor(s):
Picture Car Warehouse Inc Represented By Carolyn A Dye
Movant(s):
Picture Car Warehouse Inc Represented By Carolyn A Dye
9:30 AM
Docket 79
5/23/18 Tentative
The County of Ventura ("Ventura County") objects to the $175,000 homestead exemption in the property located at 3106 Calusa Ave, Simi Valley, CA 93093 ("Calusa Property") claimed by Barton and Carol Fishback ("Debtors") under California Code of Civil Procedure § 704.730.
In order to qualify for an enhanced $175,000 homestead exemption under
§ 704.730(a)(3), Debtor must meet one of three conditions, as spelled out in subsections (A)-(C). While Debtors have not filed an opposition to the objection to their claimed exemption, there have been previous statements filed with the Court that indicate that Carol Fishback "requires constant oxygen because of emphysema and COPD." Dec. of Barton Fishback 7:16-20, ECF No. 41. This may fall within the ambit of subsection (3)(B), which grants a $175,000 exemption if the Debtor is disabled.
More importantly, Ventura County alleges that Debtors have not resided in the Calusa Property since January 10, 2018, so they are not entitled to a homestead exemption in that property. They point to the same declaration filed by Barton Fishback cited above:
Since the home invasion robbery, my wife and I have lived at the ranch house on the Chatsworth Property as our primary residence. Currently, my wife is in San Antonio, Texas, being cared for by our son and has no plans of returning to California until the perpetrators are caught.
Dec. of Barton Fishback 7:16-8:1, ECF No. 41. The robbery referenced occurred on January 10, 2018, a month and a half before this case was filed. Entitlement to a homestead exemption is determined as of the petition date. In re Whitman, 106 B.R.
9:30 AM
654, 656 (Bankr. S.D. Cal. 1989). Debtors have the burden of proof under California state law as to whether exemption was properly claimed. In re Diaz, 547 B.R. 329, 337 (B.A.P. 9th Cir. 2016).
"Homestead" is defined as:
the principal dwelling (1) in which the judgment debtor or the judgment debtor's spouse resided on the date the judgment creditor's lien attached to the dwelling, and (2) in which the judgment debtor or the judgment debtor's spouse resided continuously thereafter until the date of the court determination that the dwelling is a homestead.
C.C.P. §704.710(c). Under California law, the factors a court should consider in determining residency for homestead purposes are 1) physical occupancy of the property and 2) the intention with which the property is occupied. In re Kelley, 300 B.R. 11, 21 (B.A.P. 9th Cir. 2003).
It appears from the Declaration filed on the Court’s docket that the Calusa Property does not qualify as a Homestead. Debtor did not live in the property at the time of the filing, and neither Debtor expressed any intent to return to the property "until the perpetrators [of the robbery and assault] are caught." Indeed, Debtors have expressed an intent to rent out the Calusa Property for $5,000 per month. Because no opposition has been filed explaining otherwise, and because it appears by debtor Barton Fishback’s own admission that neither debtor resides at the Calusa Property, the motion is GRANTED
NO APPEARANCE REQUIRED
Debtor(s):
Barton Wayne Fishback Represented By Matthew Abbasi
Joint Debtor(s):
Carol Fishback Represented By Matthew Abbasi
9:30 AM
fr. 6/6/18
Docket 84
APPEARANCE REQUIRED.
Debtor also should address whether sufficient environmental issues have been disclosed.
Without appropriate insurance on the properties, there is nothing further to discuss, and the case must be dismissed.
Debtor(s):
Barton Wayne Fishback Represented By Matthew Abbasi
Joint Debtor(s):
Carol Fishback Represented By Matthew Abbasi
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
9:30 AM
Docket 231
Debtor failed to include his First Amended Chapter 11 Plan of Reorganization, as pointed out by the U.S. Trustee.
Trustee objects on the grounds that Debtor’s projection of $5,000 per month from employment is unrealistic where the monthly operating reports reveal on average
$993 per month in employment income. Trustee correctly argues that the plan is infeasible because Debtor has not received rental income on four of the rental properties for a year. Trustee points out that the balance of the Debtor in Possession account, since August 2016, has decreased from $97,884.87 to $6,800.39. Debtor’s other accounts show a significant number of checks that were outstanding as of December 2017, which were voided in January 2017. No explanation seems to be provided of these checks, particularly whether they represent unpaid mortgage payments.
The Trustee also points out inconsistent statements regarding the payment of unsecured creditors:
The Disclosure Statement provides inconsistent information about the treatment of unsecured claims. First on page 5, it states that the plan provides for payment of 100% of all allowed claims. Then, on page 17 of the Disclosure statement it states that unsecured creditors will be paid
$60,000 over five years or approximately 14% of their unsecured claims. On page 26 i[t] states that the unsecured class will be paid $48,000 over 48 months, and finally on page 35 it states that unsecured creditors will receive a 16% payout on their claims. The Disclosure Statement needs to be amended to rectify these inconsistencies so unsecured creditors know how much the plan is proposing to pay them.
U.S. Trustee Objection, 5:4-11.
9:30 AM
For the reasons above, Court finds that the Disclosure Statement does not contain adequate information.
APPEARANCE REQUIRED
Debtor(s):
Samuel James Esworthy Represented By
M Jonathan Hayes
9:30 AM
fr. 9/1/16, 2/9/17, 3/22/17, 4/26/17, 7/5/17, 8/16/17; 9/27/17, 11/29/17, 2/14/18, 4/25/18
Docket 1
NONE LISTED -
Debtor(s):
Samuel James Esworthy Represented By
M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes
9:30 AM
Docket 65
NONE LISTED -
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 1
NONE LISTED -
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 75
On 5/21/18, Debtor filed a notice of non-opposition to the Trustee’s Motion to Dismiss or Convert requesting dismissal because there are no assets to administer. Debtor’s primary asset was real property located at 3442 Malaga Court, Calabasas, CA 91302. On April 2, 2018, the Court entered an order granting relief from stay to Bayview Loan Servicing, LLC, a creditor with a claim secured by the Malaga Property, under §§ 362(d)(1), (d)(2), and (d)(4). The Court found that the filing of the bankruptcy petition was part of a scheme to hinder, delay, or defraud creditors that involved transfer of ownership in the property and multiple (3) bankruptcy filings by Debtor to prevent foreclosure on the property.
Because there is no property to administer and because Debtor no longer wishes to pursue this case, the Motion is GRANTED and the case is dismissed.
NO APPEARANCE REQUIRED
Debtor(s):
S.B.R.S., Inc. Represented By
Michael Jay Berger Todd S Garan
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
9:30 AM
Docket 43
Nothing new has been filed. What is the status of Debtor’s compliance efforts?
Debtor(s):
Henrik Andreas Ingvarsson Represented By Matthew D Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D Resnik
Roksana D. Moradi-Brovia
10:00 AM
fr. 2/21/12, 3/1/12, 4/10/12, 6/7/12, 6/12/12, 8/22/12, 9/27/12, 11/8/12, 1/17/13, 2/28/13, 4/4/13, 7/18/13,
1/9/14, 5/15/14, 6/11/14, 12/11/14, 2/18/15, 5/13/15,
12/9/15, 2/10/16; 2/17/16, 6/2/16, 12/8/16, 4/6/17;
4/12/17, 8/23/17, 12/13/17
Docket 1
Having reviewed the joint status report and finding good cause, the Court continues this status conference to September 26, 2018, at 9:30 a.m.
Trustee's litigation counsel to give notice of the continued status conference. APPEARANCES WAIVED ON 6/13/18.
Debtor(s):
C.M. Meiers Company, Inc. Pro Se
Trustee(s):
Bradley D. Sharp (TR) Represented By David Gould
10:00 AM
Adv#: 1:14-01042 Sharp v. Essex Insurance Company
Breach of COntract;
Breach of the Implied Covenant of Good Faith and Fair Dealing
fr. 5/7/14, 10/29/14, 11/12/14, 12/3/14, 2/18/15, 5/13/15; 12/9/15, 2/10/16; 2/17/16, 2/24/16, 4/11/16,
4/12/16, 9/13/16, 10/18/16, 11/8/16; 11/16/16,4/6/17,
4/12/17, 8/23/17, 12/13/17
Docket 1
Having reviewed the joint status report and finding good cause, the Court continues this status conference to September 26, 2018, at 9:30 a.m.
Trustee's litigation counsel to give notice of the continued status conference. APPEARANCES WAIVED ON 6/13/18.
Debtor(s):
C.M. Meiers Company, Inc. Pro Se
Defendant(s):
Essex Insurance Company Pro Se
Plaintiff(s):
Bradley D Sharp Represented By Larry W Gabriel
10:00 AM
Trustee(s):
Bradley D. Sharp (TR) Represented By David Gould Stanley H Shure Larry W Gabriel
US Trustee(s):
United States Trustee (SV) Pro Se
11:00 AM
fr. 3/21/18, 5/16/18
Docket 78
APPEARANCE REQUIRED
Debtor(s):
Elizabeth Maybalian Represented By Raymond H. Aver
Movant(s):
COMPASS BANK, its successors Represented By
Nichole Glowin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 62
Petition Date: 08/14/2013 Service: Proper. Opposition filed.
Property: 19846 Mayall St, Chatsworth, CA 91311 Property Value: $ 631,934.00 (per debtor’s schedules) Amount Owed: $ 521,172.05
Equity Cushion: 10.0% Equity: $3,137.84.
Post-Petition Delinquency: $25,342.91 (10 payments of $2,628.11; $0.00 in post- petition advances; $1,031 in attorneys’ fees; less $1,969.19 in suspense account or partial paid balance)
Debtors file an opposition to the motion, arguing that Nationstar should have brought this relief from stay motion before Debtors were 10 months late on payments. This plan expires in August 2018. Debtors request an adequate protection order for the
$25,342.91 payments to be made over twelve months. Debtor's proposed APO seems reasonable, especially in light of the equity cushion.
Movants requests relief under 11 U.S.C. 362(d)(1). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
APPEARANCE REQUIRED
Debtor(s):
Graham Peter Henderson Represented By Jeffrey J Hagen
Joint Debtor(s):
Louise Henderson Represented By
11:00 AM
Movant(s):
Jeffrey J Hagen
Nationstar Mortgage LLC as Represented By Nancy L Lee
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 34
Petition Date: 06/16/2015
Service: Proper. No opposition filed.
Property: 7611 Ben Ave, North Hollywood, CA 91605 Property Value: $ 450,000.00 (per debtor’s schedules) Amount Owed: $ 317,503.01
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $4,926.90 (3 payments of $1,041.67; 1 payment of
$1,998.17; $0.00 in post-petition advances; $0.00 in attorneys’ fees; less $196.28 in suspense account or partial paid balance)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code § 2923.5).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jean M. Yi Represented By
Jaenam J Coe
Movant(s):
Nationstar Mortgage LLC Represented By
Kristin A Zilberstein Jonathan Williams Shanita L Washington
11:00 AM
Trustee(s):
Angie M Marth
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
Docket 34
- NONE LISTED -
Debtor(s):
Samuel Araos Pasag Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Nellie Garingan Pasag Represented By
Hasmik Jasmine Papian
Movant(s):
Deutsche Bank National Trust Co., Represented By
Alexander G Meissner S Renee Sawyer Blume
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
ROSAMOND COMMUNITY SERVICES DISTRICT
fr. 4/25/18
Docket 97
This hearing was continued to allow for further briefing and to allow Debtor to file an objection to the Movant’s claim. No claim objection has been filed. The Court requested further briefing on the effect of the language in the plan that Debtor would make regular payments directly to the Kern County Tax collector, Los Angeles County Tax Collector, Rosamond Community Services District, and the San Bernadino County Treasurer. However, no amounts are indicated under the "monthly payments" to be made to those creditors.
Nothing in Debtor’s brief addresses this issue. Debtor apparently believes that this provision of the plan should be ignored entirely, and that failure to comply with the provision should not be considered cause for relief from the automatic stay. The Court disagrees.
APPEARANCE REQUIRED
4/25/18 Tentative
APPEARANCE REQUIRED
The plan provided for direct payments to the Rosamond Comm. Services District, so there is no improper amendment to the plan. The claim was timely filed. There is no automatic stay in place. To the extent there is any confusion, an order can be entered confirming such.
11:00 AM
Debtor(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
TOYOTA MOTOR CREDIT CORPORATION
Docket 14
Petition Date: 04/30/2018
Service: Proper. No opposition filed. Property: 2016 Toyota Prius Property Value: N/A – Leased Amount Owed: $ 24,305.36
Equity Cushion: N/A – Leased Equity: N/A – Leased Delinquency: $ 1,807.92
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jose Antonio Nanola Paredes Represented By Navid Kohan
Joint Debtor(s):
Rowena Cruz Paredes Represented By Navid Kohan
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
11:00 AM
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 7
Petition Date: 05/08/2018
Service: Proper. No opposition filed. Property: 2012 Mercedes-Benz C Class
Property Value: $11,000.00 (per debtor’s schedules) Amount Owed: $ 22,264.66
Equity Cushion: 0.0% Equity: $0.00 Delinquency: $ 433.76
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jonathan E. Shoucair Represented By Stephen Parry
Joint Debtor(s):
Christine L. Shoucair Represented By Stephen Parry
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
MACERICH BUENAVENTURA LIMITED PARTNERSHIP
Docket 8
Petition Date: 5/17/18 Ch: 7
Service: Proper on shortened time (see doc. 12). No opposition filed. Movant: Macerich Buenaventura Ltd.
Property Address: 3301 E. Main St. #2101, Ventura, CA 93003 Type of Property: non-residential
Occupancy: holdover after lease in default Foreclosure Sale: n/a
UD case filed: 4/6/18 (trial cont'd to 6/18/18) UD Judgment: n/a
Movant alleges cause for extraordinary relief because Debtor and non-debtor James Lee filed Prejudgment Claims of Right to Possession of the Property. Debtor and non-debtor James Lee filed the Claims, each asserting a right to occupy the property, even though the property is a retail space in an indoor mall and Debtor and non-debtor are not parties to the lease.
Disposition: GRANT under 11 U.S.C. 362(d)(1); (d)(2). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)(3) stay). GRANT relief as to paragraph 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law); and 9 (binding and effective against any debtor for 180-days from the date of this hearing).
APPEARANCE REQUIRED DUE TO SHORTENED TIME RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Grace K Lee Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
a Stay or Continuing the Automatic Stay as the Court Deems.
Docket 11
On May 23, 2018, Debtor filed this Chapter 13 case. Debtor has one previous bankruptcy case that was dismissed a short time ago. The dismissed Chapter 13 case, 1:16-bk-11375-VK, was filed on May 5, 2016 and dismissed on April 26, 2018 for failure to make plan payments.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case. Debtor contends the previous case was dismissed because she had unanticipated expenses and did not have sufficient income to cure delinquent payments. Debtor was previously unable to make all required payments because, in part, she was contributing to pay for her adult daughter’s tuition and living expenses. Debtor states that she now has sufficient disposable income to make the monthly plan payments because she is contributing less to her daughter’s living expenses and tuition.
APPEARANCE REQUIRED.
Debtor(s):
Mary Culp Represented By
Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 15
On May 18, 2018, Debtor filed this Chapter 13 case. Debtor has one previous bankruptcy case that was dismissed a short time ago. The first dismissed Chapter 13 case, 16-13051-VK, was filed on October 26, 2016 and dismissed on March 7, 2018 because failure to make payments.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case. Debtor contends the previous case was dismissed because she did not have sufficient income for Chapter 13 plan payments after losing her job and having surgery. Debtor contends boyfriend and mother will be providing contribution income. Debtor was able to compromise and pay off a large percentage of her unsecured debt leaving only her student loans and mortgage arrears. Debtor claims that the presumption of bad faith is overcome as to all creditors per Section 362(c)(3)(C)(i) because Debtor has the ability to catch up on the payments because of contribution from her boyfriend and mother. Further, Debtor claims that the presumption of bad faith is overcome as to all creditors per Section 362(c)(3)(C)(ii) because Debtor has the ability to make payments on the mortgage.
No opposition has been filed. MOTION GRANTED. APPEARANCE REQUIRED DUE TO SHORTENED NOTICE.
Debtor(s):
Neli Maria Negrea Represented By Stella A Havkin
Movant(s):
Neli Maria Negrea Represented By Stella A Havkin
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01026 Navy Federal Credit Union v. Holowchak
fr. 5/23/18
Docket 1
The parties should advise whether any objection to a September 14 discovery cut off and a pretrial of October 24 at 11 am. Please also submit a mediation order
Debtor(s):
Alycia Anne Holowchak Represented By
James Geoffrey Beirne
Defendant(s):
Alycia Anne Holowchak Pro Se
Plaintiff(s):
Navy Federal Credit Union Represented By Robert S Lampl
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:16-01135 Courtney Smith, individually and as Trustee of the v. SMITH
fr. 11/30/16; 1/25/17, 7/12/17; 12/6/17
Docket 1
6/13/18 Tentative
No status report has been filed. What is the status of the ongoing state court litigation?
APPEARANCE REQUIRED
12/6/17 Tentative
Plaintiff’s unilateral status report indicates that the state court litigation is ongoing. The status conference will be continued to June 13. No appearance will be required on December 6.
07/12/17 Tentative
Based on the status report, this status conference will be continued until December 6 at 11 am to see if state court litigation has been completed. No appearance required on July 12.
Debtor(s):
Paul Allen Smith Represented By John F Nicholson
Defendant(s):
Paul Allen SMITH Pro Se
Plaintiff(s):
Courtney Smith, individually and as Represented By
11:00 AM
Trustee(s):
William Harold Brownstein
David Seror (TR) Pro Se
11:00 AM
Adv#: 1:16-01024 Poteet et al v. Levy
fr. 5/4/16; 11/16/16; 3/29/17, 8/2/17; 10/18/17, 4/25/18
Docket 1
- NONE LISTED -
Debtor(s):
David Brown Levy Pro Se
Defendant(s):
David Brown Levy Pro Se
Plaintiff(s):
The Workshop LLC Represented By Bernard J Kornberg
Gene Salkind Represented By
Bernard J Kornberg
Michael Clofine Represented By Bernard J Kornberg
Victor Poteet Represented By
Bernard J Kornberg
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
11:00 AM
US Trustee(s):
United States Trustee (SV) Pro Se
11:00 AM
Docket 36
- NONE LISTED -
Debtor(s):
Rodney Dean Sellard Represented By Jason Wallach
Movant(s):
Rodney Dean Sellard Represented By Jason Wallach Jason Wallach Jason Wallach
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 25
If Debtor seeks to argue further that In re Meyer, 373 B.R. 84, 87 (B.A.P. 9th Cir. 2007), does not require that § 522(f) motions be brought against the most junior judicial lien encumbering a piece of exempted property before such motions may be brought against a more senior judicial lien, he may provide authority to that effect.
Specifically, Debtor would have to address In re Hanger, 217 B.R. 592, 595 (B.A.P. 9th Cir. 1997), aff'd, 196 F.3d 1292 (9th Cir. 1999) and its progeny. Unless and until a compelling argument is presented otherwise, the Court will continue requiring judicial liens to be avoided in order of reverse priority. Please note that the Court is not overly rigid in its application of this rule; Debtors may file multiple § 522(f) motions on the docket in any order they please, the Court will simply address them in order of reverse priority. Therefore, it is not necessary for Debtor to refile the § 522(f) motions that have already been filed. Debtor must, however, avoid junior judicial liens before the Court will consider any motions to avoid more senior judicial liens.
Similarly, if a motion to avoid a judicial lien was denied for any reason, for example, for improper service, the court would not grant any pending motions to avoid more senior judicial liens until the service issue was resolved.
APPEARANCE REQUIRED
Debtor(s):
Craig Huxley Represented By
Julie J Villalobos
Movant(s):
Craig Huxley Represented By
Julie J Villalobos
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
11:00 AM
Docket 30
Debtor(s):
Craig Huxley Represented By
Julie J Villalobos
Movant(s):
Craig Huxley Represented By
Julie J Villalobos
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
against bankruptcy petition preparer Eva Arakelyan
Docket 10
No opposition was filed. The Motion is GRANTED. NO APPEARANCE REQUIRED
Debtor(s):
Rouzanna E Tokatlian Pro Se
Movant(s):
United States Trustee (SV) Represented By
S Margaux Ross
Trustee(s):
David Seror (TR) Pro Se
1:00 PM
Adv#: 1:17-01085 Lui v. NAVIENT SOLUTIONS,INC
Determination that Student Loan Debt is Dischargeable Pursuant to 11 USC Sec. 523(a)(8)
fr. 11/8/17
Docket 1
- NONE LISTED -
Debtor(s):
Kenneth Paul Lui Represented By Christine A Kingston
Defendant(s):
NAVIENT SOLUTIONS,INC Pro Se
Plaintiff(s):
Kenneth Paul Lui Represented By Christine A Kingston
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
Docket 65
- NONE LISTED -
Petition date: 9/20/17 (converted to 7 on 3/5/18)
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2017 Honda Civic
Debtor’s valuation of property (Sch. B): $15,449 Amount to be reaffirmed: $5,845.28
APR: 0% (fixed)
Contract terms: $208.76 per month for 28 months Monthly Income (Schedule I): $5,272
Monthly expenses: (Schedule J): $5,175 Disposable income: $96.93
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor lists this payment on Am. Sch. J. In Am. Sch. J, Debtor states that her son gives her money for a car payment and insurance. It is unclear whether this vehicle is Debtor's son's car.
Debtor has a right to rescind agreement anytime prior to discharge, or until July 30, 2018,
8:30 AM
whichever is later.
RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
Fary Talei Represented By
Daniel King
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
fr. 5/15/18
Docket 19
This matter was continued at the request of debtor (see doc. #22) - jc
Petition date: 2/1/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2017 Ford Escape
Debtor’s valuation of property (Sch. B): $16,886 Amount to be reaffirmed: $22,998
APR: 0% (fixed)
Contract terms: $499.95 per month for 46 months Monthly Income (Schedule I): $3,056
Monthly expenses: (Schedule J): $3,071.63 Disposable income: <$15.21>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor explained that this payment is listed in Sch. J, and that he will reduce any other expenses necessary to afford this payment.
8:30 AM
Debtor has a right to rescind agreement anytime prior to discharge, or until June 3, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
Cel Z Silva Pro Se
Joint Debtor(s):
Virgille Babayson Silva Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
fr. 5/15/18
Docket 12
- NONE LISTED -
This hearing was continued so that Debtor had an opportunity to discuss lower payments with the creditor. What is the status of this reaffirmation agreement?
APPEARANCE REQUIRED
5/15/18 TENTATIVE BELOW
Petition date: 2/26/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2016 Mercedes Benz C300W
Debtor’s valuation of property (Sch. B): $0 (Creditor's valuation is $27,100)
Amount to be reaffirmed: $37,324 APR: 2.99% (fixed)
Contract terms: $725.72 per month for 54 months Monthly Income (Schedule I): $3,621
Monthly expenses: (Schedule J): $3,610 Disposable income: $11.00
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption
8:30 AM
of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor did not explain how she will pay this reaffirmed debt. The payment for the vehicle is listed in Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until July 2, 2018, whichever is later.
Debtor(s):
Velma J Sharp Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
Docket 19
- NONE LISTED -
Petition date: 3/1/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No Property: 2015 Scion XB
Debtor’s valuation of property (Sch. B): $12,853 Amount to be reaffirmed: $13,254
APR: 2.79% (fixed)
Contract terms: $355.75 per month for 39 months Monthly Income (Schedule I): $3,650
Monthly expenses: (Schedule J): $3,686 Disposable income: <$36.00>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor explains that this vehicle belongs to her niece, who makes all of the payments
Debtor has a right to rescind agreement anytime prior to discharge, or until August 4, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Irma Deleon Soufer Represented By Hector Vega
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
and ACAR Leasing LTD dba GM Financial Leasing
Docket 9
- NONE LISTED -
Petition date: 3/9/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2017 Chevrolet Cruze (LEASE) Debtor’s valuation of property (Sch. B): $9,425 Amount to be reaffirmed: $1,260
APR: 0%
Contract terms: $126.02 per month for 7 months Monthly Income (Schedule I): $2,975
Monthly expenses: (Schedule J): $2,971 Disposable income: $3.99
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor does not explain how she will make this payment. This payment is listed on Sch. J
Debtor has a right to rescind agreement anytime prior to discharge, or until July 14, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Marlena Marie Tyler Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
Docket 8
- NONE LISTED -
Petition date: 4/2/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No Property: 2013 Audi A4
Debtor’s valuation of property (Sch. B): $15,626 Amount to be reaffirmed: $20,756
APR: 4.64% (fixed)
Contract terms: $322.65 per month for 74 months Monthly Income (Schedule I): $1,790
Monthly expenses: (Schedule J): $1,987 Disposable income: <$197.00>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor did not explain how she will afford these payments. This payment is listed in Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until Aug. 1, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Makayla Kunz Represented By Daniel King
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
fr. 3/28/17, 5/23/17;l 7/25/17, 9/26/17, 11/28/17, 1/23/18; 3/27/18; 4/24/18
Docket 89
- NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/25/17, 9/26/17, 11/28/17, 1/23/18; 3/27/18; 4/24/18
Docket 100
- NONE LISTED -
APPEARANCE REQUIRED
4/24/18 Tentative
At the March 27 hearing, the parties indicated that this matter was settled, but they needed two weeks to close the deal. What is the status of the settlement?
APPEARANCE REQUIRED
3/27/18 Tentative
Nothing new has been filed in this case since the 1/23/18 hearing. This case expired over a year ago. Are parties cooperating to resolve this dispute, or is an evidentiary hearing needed?
APPEARANCE REQUIRED
1/23/18 Tentative
This matter has now been continued for six months. What progress has been made toward resolving this claim?
APPEARANCE REQUIRED
11/29/17 Tentative
At 9/26 hearing, parties requested a continuance in order to allow time to work toward a deal. What is the status of this motion?
11:00 AM
APPEARANCE REQUIRED
9/26/17 Tentative
At 7/25/17 hearing, debtor and Selene Finance indicated that they were working toward a deal. Nothing new has been filed. What is the status of this motion?
APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Movant(s):
Victoria Ruiz Represented By
Siamak E Nehoray Siamak E Nehoray Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17, 1/23/18; 2/27/18; 4/24/18, 5/22/18
Docket 100
- NONE LISTED -
APPEARANCE REQUIRED
5/22/18 Tentative
At the April 24 hearing, the parties indicated that the sale went through on April 20, and the only issues remaining were a $600 payoff plus the amount approved on the fee applications.
APPEARANCE REQUIRED
4/24/18 Tentative
The Court granted Debtor’s Motion for Authority to Sell Real Property. A motion for relief from stay regarding the subject real property was filed on April 13. What is the status of the sale?
APPEARANCE REQUIRED
2/27/18 Tentative
It appears that Debtors are making progress toward selling the property.
1/23/18 Tentative
Nothing new has been filed. What is the status of Debtor’s attempt to sell property?
11:00 AM
APPEARANCE REQUIRED
11/28/17 Tentative
Trustee moves to dismiss due to expiration of the plan and failure to pay remaining balance of $14,100. Debtor opposes the motion on the grounds that debtor is prepared to make the final payment with funds from the proceeds from the sale of her house. The house was listed in the past week, and debtor will file a motion to sell once a buyer is found. See Doc. No. 101.
Debtor(s):
Christine Grimes Shore Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/22/18
Docket 84
NONE LISTED -
NONE LISTED -
Debtor(s):
Charlene Decoff Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18; 4/24/18
Docket 99
NONE LISTED -
NONE LISTED -
Debtor(s):
Nedra Sneed Represented By
Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 29
NONE LISTED -
NONE LISTED -
Debtor(s):
Raul Mendoza Jr. Represented By Rebecca Tomilowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 80
NONE LISTED -
NONE LISTED -
Debtor(s):
Robert Thomas Bell Represented By Desiree V Causey
Joint Debtor(s):
Kerry Aileen Bell Represented By Desiree V Causey
Movant(s):
Robert Thomas Bell Represented By Desiree V Causey
Kerry Aileen Bell Represented By Desiree V Causey
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18, 5/22/18
Docket 64
NONE LISTED -
NONE LISTED -
Debtor(s):
Seth Eric Simon Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 59
NONE LISTED -
NONE LISTED -
Debtor(s):
Farshid Tebyani Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18; 4/24/18, 5/22/18
Docket 50
NONE LISTED -
NONE LISTED -
Debtor(s):
Alicia Butterfield Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 4/24/18
Docket 22
NONE LISTED -
NONE LISTED -
Debtor(s):
Vladimir Fernado Macapagal Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Myla Rutaquio Macapagal Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 4/24/18, 5/22/18
Docket 73
NONE LISTED -
NONE LISTED -
Debtor(s):
Leonor Cecilia Garcia Represented By Andrew Moher
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 4/24/18
Docket 42
NONE LISTED -
NONE LISTED -
Debtor(s):
Mario Alberto Cerritos Represented By Luis G Torres
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18; 4/24/18
Docket 31
NONE LISTED -
NONE LISTED -
Debtor(s):
Yoddy Milton Muguertegui Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 4/24/18
Docket 60
NONE LISTED -
NONE LISTED -
Debtor(s):
Levia Blane Arbuckle Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 39
NONE LISTED -
NONE LISTED -
Debtor(s):
Reynaldo Jesus Sosa Represented By Tawni Takagi
Movant(s):
Reynaldo Jesus Sosa Represented By Tawni Takagi Tawni Takagi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 24
NONE LISTED -
Debtors have twice amended their Schedule C since this objection was filed. The motion is therefore DENIED as moot.
Debtor(s):
John Edward Wilds Represented By Randall V Sutter
Joint Debtor(s):
Lisa Irene Wilds Represented By Randall V Sutter
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 19
NONE LISTED -
Service: Proper. No Opposition. Property: 2007 Mercedez-Benz C-230
Fair market value (per KBB and declaration): $6,000 Amount owed: $15,212.47
Secured Amount: $6,000 Unsecured Amount: $9,212.47
APPEARANCE IS WAIVED. If written or oral opposition is presented at the hearing, the motion may be continued to the next Chapter 13 calendar.
Disposition: GRANTED.
Debtor(s):
Jose Barreto Represented By
Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 30
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Peter A. Holliday Represented By Stephen Parry
Movant(s):
Peter A. Holliday Represented By Stephen Parry Stephen Parry Stephen Parry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Pursuant to 11 U.S.C. § 329
Docket 14
NONE LISTED -
NONE LISTED -
Debtor(s):
Mary Jo Howe Represented By
D Justin Harelik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 12
NONE LISTED -
Service: Proper. No Opposition Filed.
Property Address: 13927 Carol Lane, Sylmar, CA 91342 First trust deed: $ $650,684.33 (Bank of America)
Second trust deed (to be avoided): $ 74,347.22 (Bank of America) Fair market value per appraisal: $ 630,000
APPEARANCE IS WAIVED. If written or oral opposition is presented at the hearing, the motion may be continued to the next Chapter 13 calendar.
Disposition: GRANTED.
PREVAILING PARTY SHOULD SUBMIT THE FORM ORDER, A BLANK COPY OF WHICH MAY BE DOWNLOADED FROM THE JUDGE’S FORMS SECTION ON THE COURT’S WEBSITE.
Debtor(s):
Jason R. Corralejo Represented By Gregory M Shanfeld
Joint Debtor(s):
Claudine P. Corralejo Represented By Gregory M Shanfeld
11:00 AM
Movant(s):
Jason R. Corralejo Represented By Gregory M Shanfeld Gregory M Shanfeld
Claudine P. Corralejo Represented By Gregory M Shanfeld Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Henry W Hardison Jr Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
US BANK NATIONAL ASSOCIATION
fr. 4/25/18, 5/23/18
Docket 28
NONE LISTED -
NONE LISTED -
Debtor(s):
Jose R. Fernandez Represented By Donald E Iwuchuku
Joint Debtor(s):
Esther Fernandez Represented By Donald E Iwuchuku
Movant(s):
U.S. Bank National Association, not Represented By
Kelsey X Luu
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 18
NONE LISTED -
Petition Date: April 23, 2018
Chapter: 11
Service: Proper. No opposition filed.
Property: 5077 Nestle Ave., Los Angeles, CA 91356 Property Value: $ 250,000 (per debtor’s schedules) Amount Owed: $ 1,569,250.99 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: N/A
Debtor is not the original borrower on the property. The motion describes repeated fractional transfers of a 5% interest in the property and subsequent bankruptcies filed by the transferees. The Motion describes at least six such transfers and bankruptcies over the past four years. Attached to the Motion are copies of deeds of trust granting the transferees a 5% interest in the property. The Court finds that these transfers and bankruptcy filings were part of a scheme to hinder, delay, or defraud creditor within the meaning of § 362(d)(4).
Disposition: GRANT under 11 U.S.C. 362(d)(1), (d)(2), and (d)(4). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (waiver of the 4001(a)(3) stay); 9 (order binding and effective in any other bankruptcy case purporting to affect the property within 2 years of the Court’s order); and 10 (Order binding and effective against any debtor for 180 days).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
9:30 AM
Debtor(s):
Fatemah Dowlatinow Represented By Dana M Douglas
Movant(s):
PennyMac Corp. Represented By Robert P Zahradka
9:30 AM
Docket 20
NONE LISTED -
NONE LISTED -
Debtor(s):
Fatemah Dowlatinow Represented By Dana M Douglas
9:30 AM
fr. 4/25/18, 5/2/18
Docket 63
NONE LISTED -
At the previous hearing, the court instructed Debtor to make $4,000 payments for the months of May and June. The Court furthermore set a deadline of June 11 for Debtor to file a plan. No plan has yet been filed and nothing has been filed to indicate whether Debtor has made the two $4,000 payments.
APPEARANCE REQUIRED
Debtor(s):
Vladimir Vekic Represented By Stephen L Burton
9:30 AM
Docket 70
NONE LISTED -
On May 22, Debtor filed monthly operating reports for February and March, 2018. What is the status of Debtor’s compliance efforts?
APPEARANCE REQUIRED
Debtor(s):
Vladimir Vekic Represented By Stephen L Burton
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
9:30 AM
Docket 1
NONE LISTED -
No status report has been filed. Trustee withdrew its Motion to dismiss or convert on December 11, 2017. What progress has Debtor made toward proposing a plan?
APPEARANCE REQUIRED
Debtor(s):
Vladimir Vekic Represented By Stephen L Burton
9:30 AM
Docket 0
- NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
01 BH Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 0
- NONE LISTED -
Debtor should submit a claims bar date order.
APPEARANCE REQUIRED
Debtor(s):
S.B.R.S., Inc. Represented By
Michael Jay Berger
9:30 AM
fr. 10/6/16; 3/2/17, 3/8/17; 4/12/17, 7/12/17; 1/10/18; 5/28/18, 5/23/18
Docket 1
- NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Martha Alicia Ybanez Represented By Matthew D Resnik Matthew D Resnik
9:30 AM
Docket 382
NONE LISTED -
Menco Pacific ("Reorganized Debtor") is a "signatory employer" to a collective bargaining agreement ("CBA"), requiring it to pay certain contributions to Union Roofers Trust Funds ("Movant") for benefits for its member roofers ("Union Roofer Employees") under the Employee Retirement Income Security Act ("ERISA"). Movant seeks an order allowing an administrative expense for delinquent union roofer benefit contribution payments of $16,459.84 and audit fees of $2,801.96, for the months between October 2016 and July 2017 (the "Contributions"). Movant contends that labor provided post-petition by the Union Roofer Employees to Reorganized Debtor was an "actual and necessary" cost of preserving the bankruptcy estate for the benefit of creditors, and thus the amount owed to it for the Contributions should be allowed as an administrative expense under § 503(b)(1)(A) (i).
Claims Allowed as an Administrative Expense under § 503(b)(1)(A)(i)
Compensation for post-bankruptcy claims is generally entitled to priority over pre-bankruptcy claimants. Administrative expenses allowed under § 503(b) are entitled to first priority in payment under § 507(a)(1). Priority is given to administrative expenses and costs incurred to encourage general creditors to provide goods and services to the debtor that are necessary to the orderly administration of the estate. In re Palau, 139 B.R. 942, 944 (9th Cir. BAP 1992). For this reason, the terms "actual" and "necessary" are construed narrowly, and claims for administrative priority must preserve the estate for the benefit of creditors. In re Dant & Russell, 853 F.2d 700, 706 (9th Cir.1988).
When determining whether an expense was a benefit to the estate, the B.A.P. explained:
9:30 AM
[A court] must look not only to the benefit to the estate, but also to the consideration due the creditor for providing such benefit. Such consideration must encompass the entire bargain between the parties, including performance due upon foreseen and bargained for contingencies…. Where the performance for which such compensation is due accrues post-petition, the payment owing by the estate must be afforded administrative priority.
Teamsters Indus. Sec. Fund v. World Sales, Inc. (In re World Sales), 183 B.R. 872, 877 (B.A.P. 9th Cir. 1995).
In opposition, Reorganized Debtor argues that Movant has not presented any evidence that the Contributions are costs that were "actual" and "necessary." Reorganized Debtor also argues that collective bargaining agreements are subject to rejection "like any other executory contract," and that it rejected all executory contracts pursuant to is Third Amended Chapter 11 Plan, confirmed in an order entered October 12, 2017.
Movant explains in reply that Reorganized Debtor, a signatory to the CBA, utilized Union Roofer Employees whom provided labor for the debtor-in-possession in the ordinary course of its construction business. Movant also correctly argues that the language in Debtor’s confirmed plan providing for rejection of executory contracts is not valid as pertains to the CBA.
In the Order Confirming Debtor’s Third Amended Chapter 11 Plan (the "Confirmation Order"), Debtor included the following language in paragraph 8, "Any and all executory contracts not previously rejected are hereby rejected." ECF No.
325, October 12, 2017. Reorganized Debtor relies on this language and cites to Bildisco for support of the broad proposition that "collective bargaining agreements, like any other executory contract, are subject to rejection by a debtor in possession." Opposition, 3:1-3, citing Bildisco v. Bildisco, 465 U.S. 513 (1984). This position ignores § 1113, which provides the mechanism for rejecting a collective bargaining agreement.
Section 1113 applies to collective bargaining agreements in chapter 11 cases, other than railroad reorganization cases. Section 1113 provides the exclusive standards and procedures for rejecting a collective bargaining agreement in a chapter 11 case. 11 U.S.C. § 1113(a). A plan of reorganization that provides for
9:30 AM
rejection of a collective bargaining agreement cannot be confirmed unless the trustee has satisfied the requirements of section 1113. See § 1129(a); United Food & Commercial Workers Union v. Family Snacks, Inc. (In re Family Snacks, Inc.), 257
B.R. 884, 898 (B.A.P. 8th Cir. 2001); In re Journal Register Co., 488 B.R. 835, 840 (Bankr. S.D.N.Y. 2013)
The provisions of a collective bargaining agreement may continue subsequent to confirmation if the agreement is not rejected in accordance with section 1113. Section 1113(f) of the Code preserves post-bankruptcy claims arising under an unrejected CBA. This treatment is different than for claims arising from rejection of executory contracts under § 365. See 11 U.S.C. § 365(g) (deeming rejection to constitute a breach of the contract as of the day before filing, thus allowing damages for the breach to be assigned general unsecured status). Section 1113 makes clear that collective bargaining agreements cannot be rejected through
§ 365. Chicago Dist. Council of Carpenters Pension Fund v. Cotter, 914 F. Supp. 237, 242 (N.D. Ill. 1996) (citing In re Alabama Symphony Assoc., 155 Bankr. 556, 571 (Bankr. N.D. Ala. 1993) ("[Section 1113] has been interpreted to mean that no other provision of the Code may be used to allow a debtor to bypass the requirements of Section 1113. In other words, a CBA cannot be rejected under Section 365."). Menco admits it did not move to reject the CBA under § 1113.
Opposition, fn. 1.
As stated above, Section 1113(f) of the Code preserves post-bankruptcy claims arising under an unrejected CBA. Here, the labor was accepted by and benefitted the bankruptcy estate by generating income for the reorganized business. Movant points out that without the labor provided by the Union Roofer Employees, Menco would not have been able to obtain construction projects that generate the necessary income for the Reorganized Debtor to operate. The work done was actual and necessary under § 503(b)(1)(A)(i). See In re Tucson Yellow Cab Co., 789 F.2d 701, 704-05 (9th Cir. 1986) (finding that post-petition work done by cab drivers under a subsequently rejected CBA was a benefit to the estate, such that the severance pay due to the drivers was an allowed administrative expense, entitled to priority). According to the unmodified and unrejected CBA, the actual and necessary cost for the labor that preserved the estate for the benefit of creditors by generating income for the reorganized Debtor includes the Contributions and fees owed in the amount of $16,459.84, and $2,801.96 in audit fees, for a total allowed administrative expense claim of $19,261.80. See In re World Sales, 183 B.R. at 878 (fees provided for in the CBA that were incurred post-petition are included in the administrative expense claim).
Motion granted.
9:30 AM
Debtor(s):
Menco Pacific, Inc. Represented By Jeffrey S Shinbrot
Movant(s):
Union Roofers Trust Fund Represented By Casey M Jensen
9:30 AM
Docket 49
NONE LISTED -
NONE LISTED -
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
Movant(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
9:30 AM
Docket 79
NONE LISTED -
Service IMPROPER. Motion is DENIED. Debtor must serve creditors at proper address under FRBP 7004. Resources for proper service can be found at the California Secretary of State Business Search webpage, the FDIC BankFind database, and, for certain governmental entities, in the Court Manual located on the Court’s website.
NO APPEARANCE REQUIRED
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 81
NONE LISTED -
Service IMPROPER. Motion is DENIED. Debtor must serve creditors at proper address under FRBP 7004. Resources for proper service can be found at the California Secretary of State Business Search webpage, the FDIC BankFind database, and, for certain governmental entities, in the Court Manual located on the Court’s website.
NO APPEARANCE REQUIRED
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 83
NONE LISTED -
Service proper, no opposition filed. The motion is GRANTED. NO APPEARANCE REQUIRED.
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 85
NONE LISTED -
Service IMPROPER. Motion is DENIED. Debtor must serve creditors at proper address under FRBP 7004. Resources for proper service can be found at the California Secretary of State Business Search webpage, the FDIC BankFind database, and, for certain governmental entities, in the Court Manual located on the Court’s website.
NO APPEARANCE REQUIRED
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 87
NONE LISTED -
Service IMPROPER. Motion is DENIED. Debtor must serve creditors at proper address under FRBP 7004. Resources for proper service can be found at the California Secretary of State Business Search webpage, the FDIC BankFind database, and, for certain governmental entities, in the Court Manual located on the Court’s website.
NO APPEARANCE REQUIRED
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 89
NONE LISTED -
Service IMPROPER. Motion is DENIED. Debtor must serve creditors at proper address under FRBP 7004. Resources for proper service can be found at the California Secretary of State Business Search webpage, the FDIC BankFind database, and, for certain governmental entities, in the Court Manual located on the Court’s website.
NO APPEARANCE REQUIRED
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
Mark E Goodfriend
11:00 AM
fr. 5/23/18
Docket 46
NONE LISTED -
NONE LISTED -
Debtor(s):
Shinka Mohaghegh Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 4/18/18, 5/23/18
Docket 85
NONE LISTED -
Nothing new has been filed. Has the payment discrepancy been resolved?
5/23/18 Tentative
This hearing was continued from April 18, 2018, to allow the parties to discuss a resolution to Debtor's asserted payment discrepancy. What is the status of this Motion?
APPEARANCE REQUIRED
4/18/18 Tentative
Petition Date: 01/18/2016 Chapter: 13
Service: Proper. Opposition filed on 4/4/18. Property: 13338 Friar Street, Los Angeles, CA 91401 Property Value: $560,000 (per debtor’s schedules) Amount Owed: $582,644.22 (per RFS motion)
Equity Cushion: N/A Equity: $0.
Post-Petition Delinquency: $13,203.19 (5 payments of $2,686.87, $88 in postpetition advances or other charges, $0.46 in attorneys’ fees and costs, less $319.62)
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities);and 7 (waiver of the 4001(a)(3) stay).
11:00 AM
Debtor opposes the motion, arguing that more payments have been made to Movant than the Motion accounts for, attaching canceled checks as Exhibit A. Additionally, Debtor argues that the Property is necessary for an effective reorganization because the Property is Debtor’s primary residence. Debtor also requests to enter into a repayment agreement with Movant, by curing remaining delinquencies through an Adequate Protection Order.
APPEARANCE REQURIED.
Debtor(s):
Anaida Prazyan-Vartanyan Represented By Kevin T Simon
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/16/18
Docket 31
NONE LISTED -
Nothing new has been filed. Have the parties made progress on an APO?
APPEARANCE REQUIRED
Debtor(s):
Lynne Suzanne Boyarsky Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
WILMINGTON SAVINGS FUND SOCIETY FSB
Docket 33
NONE LISTED -
Petition Date: 09/28/2017 Service: Proper. Opposition filed.
Property: 4991 Medina Drive, Woodland Hills, California 91364 Property Value: $ 1,287,000.00 (per debtor’s schedules) Amount Owed: $ 1,217,708.52
Equity Cushion: 0% Equity: $117,098.00
Post-Petition Delinquency: $28,049.04 (8 payments of $3,506.13; $0.00 in post- petition advances; $0.00 in attorneys’ fees; less $0.00 in suspense account or partial paid balance)
Debtor's response states that he is seeking an APO to cure any post-petition delinquency.
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 13 (If relief from stay is not granted, adequate protection shall be ordered).
APPEARANCE REQUIRED
Debtor(s):
Norman Everett Ross Jr. Represented By Barry E Borowitz
11:00 AM
Joint Debtor(s):
Edna Henderson Ross Represented By Barry E Borowitz
Movant(s):
Wilmington Savings Fund Society, Represented By
Kelsey X Luu
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 6/6/18
Docket 35
NONE LISTED -
This matter was continued so Debtor could work with the bank. What is the status of this motion?
APPEARANCE REQUIRED
Debtor(s):
Cynthia Deniese Sanders Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 7
NONE LISTED -
On May 21, 2018, Debtor filed this Chapter 13 case. Debtor has one previous bankruptcy case that was dismissed a short time ago. The dismissed Chapter 13 case, 1:18-bk-11007, was filed on April 23, 2018 and dismissed on April 30, 2018 for failure to file required documents.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case. Debtor contends the previous case was dismissed because her attorney in the previous case failed to file all required documents within 72 hours of filing the case. Debtor argues that she is able to make regular monthly payments and has a full time job. Importantly, Debtor appears to have filed all required documents in this case.
No opposition has been filed. The motion is GRANTED. NO APPEARANCE REQUIRED.
Debtor(s):
Mary Jo Howe Represented By
D Justin Harelik
Movant(s):
Mary Jo Howe Represented By
D Justin Harelik
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
Docket 7
NONE LISTED -
Petition Date: 5/14/18 Chapter: 7
Service: Proper; co-debtor obligor served. Opposition filed. Property: 4868 Adele Court, Los Angeles, CA 91364 Property Value: $1,136,000 (per debtor’s schedules) Amount Owed: $1,297,368
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $180,015.90 (approx. 24 payments of $9,320.10)
Movant requests relief under 11 U.S.C. 362(d)(1); (d)(2); and (d)(4), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 6 (relief from the co-debtor stay); 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)(4)); and 10 (relief binding & effective for 180 days against any debtor).
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfers of the subject property. Movant alleges that on February 21, 2018, an unauthorized grant deed was executed and subsequently recorded on March 6, 2018, whereby Sousan Hashemikhiabani purported to transfer interest in the subject property, as a gift, to this entity debtor. "Sousan Khiabani" signed the petition as "owner."
Debtor opposes the Motion, arguing that this case was not filed in bad faith, and that the transfer "is of little consequence" as Ms. Khiabani has not filed
11:00 AM
any previous bankruptcies. Debtor does not address the sizeable mortgage delinquency.
APPEARANCE REQUIRED
Debtor(s):
4868 Adele LLC Represented By Alan D Irwin
Movant(s):
U.S. BANK NATIONAL Represented By Kelsey X Luu
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Adv#: 1:18-01043 COUNTY OF VENTURA v. Fishback et al
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Barton Wayne Fishback Represented By Matthew Abbasi
Defendant(s):
Barton Wayne Fishback Pro Se
Carol Fishback Pro Se
Joint Debtor(s):
Carol Fishback Represented By Matthew Abbasi
Plaintiff(s):
COUNTY OF VENTURA Represented By David J Cook
11:00 AM
Adv#: 1:18-01046 First National Bank Of Omaha v. Mosqueda
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Shannon Nicole Mosqueda Represented By Allan S Williams
Defendant(s):
Shannon Nicole Mosqueda Pro Se
Plaintiff(s):
First National Bank Of Omaha Represented By Cory Rooney Cory J Rooney
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Adv#: 1:17-01083 Vargas et al v. Gitnick et al
fr. 12/13/17
Docket 1
NONE LISTED -
NO PRETRIAL STIPULATION HAS BEEN FILED
Exchange of exhibit lists:
Parties to file and serve Notice of Cross-Examination of Witness:
Hard copies of exhibit books exchanged (if not already done):
Parties to file and serve trial briefs:
TRIAL TO BE HELD ON:
PLAINTIFF TO LODGE SCHEDULING ORDER WITHIN 7 DAYS.
Debtor(s):
Neil D Gitnick Represented By James R Selth
11:00 AM
Defendant(s):
Neil D Gitnick Pro Se
Anita Marton Pro Se
Joint Debtor(s):
Anita Marton Represented By
James R Selth
Plaintiff(s):
Patricia Vargas Represented By Jay W Smith
Ana Contreras Represented By Jay W Smith
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:13-01231 People of the State Of California, ex rel et al v. Amidon
fr. 12/18/13, 1/15/14, 1/29/14, 12/3/14; 10/14/15, 3/15/17; 1018/17, 2/7/18
Docket 1
NONE LISTED -
Having reviewed the status reports and for good cause appearing, this status conference is continued to September 26, 2018, at 11:00 a.m.. Debtor to give notice of continued status conference.
APPEARANCES WAIVED on June 20, 2018.
Defendant(s):
Robert B Amidon Represented By Michael Goch
Robert B Amidon Represented By Michael Goch
Movant(s):
People of the State Of California, ex Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange and Mid Represented By
11:00 AM
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange Represented By Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Mid Century Insurance Company Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Plaintiff(s):
Mid Century Insurance Company Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Mid Century Insurance Company Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange Represented By Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange Represented By Dennis Kass Kirsten A Worley
11:00 AM
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange and Mid Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
People of the State Of California, ex Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
People of the State Of California, ex Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange and Mid Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Trustee(s):
Diane Weil (TR) Pro Se
Diane Weil (TR) Pro Se
US Trustee(s):
United States Trustee (SV) Pro Se
United States Trustee (SV) Pro Se
11:00 AM
Adv#: 1:16-01133 Kutasi et al v. Allen et al
from Discharge pursuant to 11 U.S.C. section 523(a)(2)(A) 523(a)(4) and 523(a)(6
fr. 12/7/16; 3/1/17, 3/22/17, 6/13/17, 1/24/18; 2/14/18; 3/7/18, 5/23/18
Docket 1
H.D. for Settled
At the previous status conference on May 23, 2018, the parties represented to the Court that there was a settlement-in-principal of this matter. The status conference was continued to this date so that the parties could document the settlement.
Nothing filed since the last status conference. What is the status of the settlement documentation?
APPEARANCE REQUIRED
Debtor(s):
Joshua Ross Allen Represented By
Glenn Ward Calsada
Defendant(s):
Joshua Ross Allen Pro Se
Amy Jill Allen Pro Se
Joint Debtor(s):
Amy Jill Allen Represented By
Glenn Ward Calsada
11:00 AM
Plaintiff(s):
John Kutasi Represented By
Jeffrey F Gersh
West Valley Collection Services, Represented By
Jeffrey F Gersh
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Adv#: 1:16-01134 Kutasi et al v. Allen
fr. 12/7/16; 3/1/17, 3/22/17, 6/13/17, 1/24/18; 2/14/18 3/7/18, 5/23/18
Docket 1
NONE LISTED -
See tentative for cal. #28. APPEARANCE REQUIRED
Debtor(s):
David B. Allen Represented By
Glenn Ward Calsada
Defendant(s):
David B. Allen Pro Se
Plaintiff(s):
John Kutasi Represented By
Jeffrey F Gersh
West Valley Collection Services, Represented By
Jeffrey F Gersh
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01032 The GERSH LAW FIRM INC a CA corporation et al v. Elady et al
Gersh Derby, LLP; Paul B Derby A Professional Corporation, a California corporation, and dba Gersh Derby LLP; The GERSH LAW FIRM INC a California corporation
Docket 5
NONE LISTED -
NONE LISTED -
Debtor(s):
Yehuda Elady Represented By Richard Grossman
Defendant(s):
Yehuda Elady Pro Se
Plaintiff(s):
The GERSH LAW FIRM INC a CA Represented By
Jeffrey F Gersh
Gersh Derby, LLP Represented By Jeffrey F Gersh
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
11:00 AM
Docket 276
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Double S Development LLP Represented By
David R Silberstein
Trustee(s):
David Seror (TR) Represented By Benjamin Seigel Austin K Barron David Seror (TR) Angella D Yates
11:00 AM
Docket 47
NONE LISTED -
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested. APPEARANCES WAIVED on June 20, 2018.
Debtor(s):
LA Kitchen City Inc. Represented By Steven L. Kimmel
Trustee(s):
Amy L Goldman (TR) Pro Se
11:30 AM
Adv#: 1:18-01029 Seror v. Abalkhad et al
fr. 5/23/18, 5/30/18
Docket 12
NONE LISTED -
NONE LISTED -
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
OPEN BANK Represented By
John H Choi
MBNM FINANCIAL, INC Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
ROMANO'S JEWELERS Represented By Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
11:30 AM
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
MELINA ABALKHAD Represented By Daniel J McCarthy
Randy Abalkhad Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
11:30 AM
Docket 0
- NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Bradley N Berman Represented By Daniel J Winfree
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
Docket 0
NONE LISTED -
NONE LISTED -
Debtor(s):
Bradley N Berman Represented By Daniel J Winfree
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
Adv#: 1:18-01029 Seror v. Abalkhad et al
fr. 5/23/18, 5/30/18
Docket 12
- NONE LISTED -
Introduction
The Complaint alleges two causes of action against defendants Wells Fargo Bank, N.A. ("Wells Fargo") and Open Bank fka First Standard Bank ("Open Bank") (collectively, the "Banks"): 1) aiding and abetting breach of fiduciary duty, and 2) unjust enrichment/restitution. The conduct at issue concerns the cashing of 46 checks written by Debtor’s principal, Randy Abalkhad, made payable to "cash" for amounts just under $10,000 during a two-month period from July to August of 2014. Because the issues raised with regard to the Banks are essentially identical, the Court will address both motions to dismiss (the "Motions") filed by the Banks together. The Banks argue that David Seror, the chapter 7 trustee in this case ("Trustee"), has failed to state a claim upon which relief may be granted and that the claims alleged are time-barred. Trustee’s opposition cites the doctrine of equitable tolling to defeat the Banks’ statute of limitations arguments.
Standard
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the allegations set forth in the complaint. "A Rule 12(b)(6) dismissal may be based on either a ‘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).
1:00 PM
In resolving a Civil Rule 12(b)(6) motion to dismiss, the court must
construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. Johnson, 534 F.3d at 1122; Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001). On the other hand, the court is not bound by conclusory statements, statements of law, or unwarranted inferences cast as factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555-57 (2007); Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55
(9th Cir. 1994).
Analysis
The threshold question is whether the claims are time-barred. The Banks assert that a three-year statute of limitation applies to both claims under Cal. Civ. Proc. Code. § 338. The alleged wrongful conduct occurred in July and August of 2014 which would mean that statute of limitations expired in July or August 2017, i.e. before the filing of this action on March 14, 2018.
Trustee agrees that the applicable statute of limitations is three years, but argues that, under the doctrine of equitable tolling, the three years did not begin to run until either July 14, 2015, when Trustee was appointed upon conversion of the underlying bankruptcy case, or November 2015, when Trustee learned of the alleged improper conduct during the § 341 meeting of creditors.1
a) Equitable Tolling
Trustee relies upon In re Hosseinpour-Esfahani, 198 B.R. 574 (B.A.P. 9th Cir. 1996), and In re Milby, 545 B.R. 613 (B.A.P. 9th Cir. 2016), aff'd, 875 F.3d 1229 (9th Cir. 2017). Hosseinpour and Milby both discuss the application of the federal doctrine of equitable tolling in the context of the trustee’s avoidance powers, which are subject to a two-year statute of limitation under
§ 546(a)(1). The Banks correctly argue that these cases are inapplicable in the context of the state law causes of action currently before the Court, and point out that, if Trustee is bringing this action pursuant to his avoidance powers, the two-year statute of limitations under § 546(a)(1) has run. Trustee stands in Debtor’s shoes for purposes of this action, so Trustee must show that equitable tolling would apply had Debtor brought the suit itself. As explained below, the Court agrees with the Banks.
1:00 PM
Trustees are empowered to commence actions on behalf of the estate
under 11 U.S.C. § 323. Colliers provides some clarity on this subject:
Such actions will fall within two categories: (1) those brought by the trustee as successor to the debtor’s interest in the estate under section 541 or those assigned to the trustee against third parties for the benefit of the estate; and (2) those brought under one or more of the trustee’s avoidance powers. With respect to the former, the trustee stands in the shoes of the debtor and can assert only those causes of action possessed by the debtor. The trustee is, of course, subject to the same defenses as could have been asserted by the defendant had the action been instituted by the debtor.
3 Collier on Bankruptcy ¶ 323.03[2] (16th ed.). Section 541 determines what property the estate is comprised of, including "all legal or equitable interests of the debtor in property as of the commencement of the case." § 541(a)(1).
Although paragraph (1) [of § 541(a)] includes choses in action and claims by the debtor against others, it is not intended to expand the debtor’s rights against others beyond what rights existed at the commencement of the case. For example, if a debtor’s claim is barred by the statute of limitations at the commencement of the case, the trustee too will be barred. The trustee can assert no greater rights than the debtor had on the date the case was commenced. But see 11 U.S.C. § 108, which permits an extension of time for filing certain actions when the time had not expired before the filing of the bankruptcy petition.
5 Collier on Bankruptcy ¶ 541.03 (16th ed.).
The underlying question is whether, under the applicable standard, Trustee steps into Debtor’s shoes and has Debtor’s knowledge imputed to him for equitable tolling purposes, or whether Trustee is not imputed with Debtor’s knowledge. A similar question was considered in Nasr v. De Leon, 18 F. App'x 601, 605 (9th Cir. 2001). In Nasr, the issue was whether equitable tolling applied to state law actions brought by a chapter 7 trustee. The Court drew a distinction between when a trustee asserts a claim "for the benefit of
1:00 PM
debtors’ creditors," such as avoidance actions, and when a trustee brings "state law claims on behalf of the Debtor Corporations," pursuant to §§ 323(a) (stating trustee is the representative of the bankruptcy estate) and 541(a)(1) (stating that legal claims of the debtor are property of the bankruptcy estate). In the latter situation:
The Trustee steps into the shoes of the debtor of the Debtor Corporations in bringing the claims. Thus, it matters not only
when the Trustee discovered the claims, but also when the Debtor Corporations discovered them. And since Reeder was in sole control of the Debtor Corporations until the conversion of the bankruptcy cases, his knowledge of the fraud is imputable to the Debtor Corporations and, in turn, to the Trustee.
Nasr v. De Leon, 18 F. App'x at 604-05.
Trustee does not provide any support that the equitable tolling doctrine, which is read into every federal statute of limitations, In re United Ins. Mgmt., Inc., 14 F.3d 1380, 1384 (9th Cir. 1994), also applies to California common law claims. The two cases cited by Trustee in his oppositions to the Motions both involve equitable tolling of the two-year statute of limitations under § 546(a). If Trustee is asserting this action as Debtor’s successor in interest to the claims, Trustee has not shown that equitable tolling is available for these state law claims. If Trustee is asserting an action subject to the shorter § 546 statute of limitations, the case is time-barred. Furthermore, Trustee has not addressed the Banks’ argument that Trustee is imputed with the Debtor’s knowledge for purposes of a statute of limitations defense. See In re Stotz Fredenhagen Indus., Inc., 554 B.R. 777, 781 (Bankr. D.S.C. 2016) (Trustee stands in Debtor’s shoes and must be imputed with its knowledge for purposes of equitable tolling).
Conclusion
For the reasons set forth above, the Motions are granted with prejudice due to the actions being time-barred by the applicable statute of limitations.
1:00 PM
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
OPEN BANK Represented By
John H Choi
MBNM FINANCIAL, INC Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
ROMANO'S JEWELERS Represented By Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
MELINA ABALKHAD Represented By Daniel J McCarthy
Randy Abalkhad Represented By Daniel J McCarthy
1:00 PM
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
1:00 PM
Adv#: 1:17-01012 David K. Gottlieb, solely in his capacity as chapt v. D'Arco et al
Docket 32
NONE LISTED -
NONE LISTED -
Debtor(s):
Thomas R D'Arco Represented By Chris Gautschi
Defendant(s):
Carol V D'Arco Represented By Chris Gautschi
Does 1-100 Pro Se
Movant(s):
Carol V D'Arco Represented By Chris Gautschi
Plaintiff(s):
David K. Gottlieb, solely in his Represented By Fahim Farivar Michael T Delaney Ashley M McDow
Trustee(s):
David Keith Gottlieb (TR) Represented By
1:00 PM
Ashley M McDow Michael T Delaney Fahim Farivar
1:00 PM
Adv#: 1:17-01012 David K. Gottlieb, solely in his capacity as chapt v. D'Arco et al
fr. 4/26/17, 5/24/17, 7/26/17; 1/31/18, 4/25/18
Docket 1
NONE LISTED -
This matter will be continued to June 20 to be heard with the Motion for Summary Judgment. Plaintiff to provide notice of continued hearing.
APPEARANCES WAIVED on April 25.
Debtor(s):
Thomas R D'Arco Represented By Chris Gautschi
Defendant(s):
Carol V D'Arco Pro Se
Does 1-100 Pro Se
Plaintiff(s):
David K. Gottlieb, solely in his Represented By Fahim Farivar
Trustee(s):
David Keith Gottlieb (TR) Represented By Ashley M McDow
1:00 PM
Michael T Delaney Fahim Farivar
10:00 AM
fr. 9/9/15, 2/24/16, 5/25/16, 7/27/16, 9/28/16, 12/14/16, 2/8/17, 4/26/17, 7/11/17, 9/5/17, 11/1/17; 11/30/17, 1/9/18,
5/1/18
Docket 465
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Movant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
10:00 AM
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 4/24/14, 6/5/14, 11/6/14, 3/19/15,
6/4/15, 7/22/15, 8/12/15, 9/9/15, 2/24/16,
5/25/16, 7/27/16, 9/28/16, 12/14/16; 2/8/17,
4/26/17,7/11/17; 9/6/17, 11/1/17, 11/30/17,
1/9/18; 5/1/18
Docket 1
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz
Defendant(s):
Process America, Inc. Pro Se
Kimberly S Ricketts Pro Se
Craig Rickard Pro Se
KEITH PHILLIPS Pro Se
Gwendolyn Phillips Pro Se
C2K Group, LLC Pro Se
Applied Funding, Inc. Pro Se
KBS Dreams, Inc. Pro Se
10:00 AM
Like Zebra, LLC Pro Se
Stripe Entertainment Group, Inc. Pro Se
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
US Trustee(s):
United States Trustee (SV) Pro Se
10:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Grant Summary Judgment Sua Sponte Pursuant To Fed.R.Civ.P. 56(F) fr.7/11/17, 9/6/17, 11/1/17; 11/30/17, 1/9/18; 5/1/18
Docket 77
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
10:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Disallowance of Claim [ 11 U.S.C. section 502}
Offset and Recoupment [11 U.S.C. section 553]
Accounting
Disallowance of Intrest of Claim [11U.S.C.502]
Voiding validity and extent of lien [11U.S.C. section503,F.R.B.P.7002(2)] 6)Turnover of property of the estate (Reserve Account)[11U.S.C. section 542]
Turnover of property of the estate (Residuals) [11 U.S.C. section 542]
Subordination of claim and lien [11 U.S.C. section 510]; and
Declaratory relief
fr. 11/5/14, 12/10/14; 12/18/14; 3/18/15, 5/27/15, 5/1/18 722/15, 9/9/15; 2/24/16, 5/25/16, 7/27/16, 9/28/16;
12/14/16, 2/8/17, 4/26/17, 7/11/17, 9/6/17, 11/1/17; 11/30/17,
1/9/18
Docket 76
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
10:00 AM
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
1:00 PM
fr. 1/17/13, 2/21/13, 5/30/13, 10/10/13, 3/27/14, 10/2/14, 4/23/15, 4/23/15; 12/3/15, 2/4/16, 4/7/16;
6/9/16, 8/4/16, 11/10/16; 1/26/17, 3/1/17; 3/22/17,
4/26/17, 6/14/17, 6/20/17; 7/6/17; 8/1/17; 8/16/17,
8/17/17, 9/13/17; 10/11/17, 12/14/17, 2/7/18; 3/7/18,
5/1/18
Docket 210
NONE LISTED -
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L James Lindsey L Smith
Movant(s):
JPMorgan Chase Bank, National Represented By
Christopher M McDermott
1:00 PM
fr. 9/29/10, 2/10/11, 5/26/11, 11/10/11, 3/15/12, 3/29/12, 11/28/12, 2/7/13,
2/21/13, 5/30/13, 10/10/13,
3/27/14, 10/2/14, 4/9/15; 4/23/15; 12/3/15
4/7/16, 4/7/16, 6/9/16, 8/4/16, 11/10/16; 1/26/17,
3/1/17; 3/22/17, 4/26/17, 6/14/17; 7/6/17; 8/1/17; 8/16/17,
8/17/17, 9/13/17; 10/11/17, 12/13/17, 2/7/18; 3/7/18,
5/1/18
Docket 1
NONE LISTED -
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L Rodriguez
3:30 PM
of Writ of Execution Pursuant to 11 U.S.C. Sections 542 and 543.
Docket 6
Debtor(s):
Happy Jump, Inc. Represented By Mark T Young
1:00 PM
Docket 100
APPEARANCE REQUIRED
Debtor(s):
Mainstream Advertising, a Represented By Michael Jay Berger
Movant(s):
Amy L Goldman (TR) Represented By David B Golubchik Peter J Mastan
Trustee(s):
Amy L Goldman (TR) Represented By David B Golubchik Peter J Mastan
1:00 PM
Docket 140
APPEARANCE REQUIRED
Debtor(s):
Anzhey Barantsevich Represented By Stephen L Burton
8:30 AM
Debtor and San Diego County Credit Union
Docket 10
Petition date: 5/11/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2018 Ford F150
Debtor’s valuation of property (Sch. B): $39,000 Amount to be reaffirmed: $38,271.18
APR: 4.29% (fixed)
Contract terms: $595.88 per month for 73 months Monthly Income (Schedule I): $3,884
Monthly expenses: (Schedule J): $3,976 Disposable income: <$92.00>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor does not explain how she will afford these payments. The monthly payment for this vehicle is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until8/16/18, whichever is later.
Disposition: reaffirmation agreement is . RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Virginia D. Navarro Represented By Jennifer Ann Aragon
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
Debtor and Ford Motor Credit Company LLC
Docket 13
Petition date: 5/8/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2013 Ford Edge
Debtor’s valuation of property (Sch. B): $10,373 Amount to be reaffirmed: $14,740
APR: 3.9% (fixed)
Contract terms: $438.87 per month for 34 months Monthly Income (Schedule I): $4,058
Monthly expenses: (Schedule J): $5,486 Disposable income: <$1,428>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtors state that "joint debtor" brother-in-law uses the vehicle and pays this payment. This payment is not listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until 8/25/18, whichever is later.
Disposition: reaffirmation agreement is . RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Oscar Sotelo Meza Represented By
Carlos A Delgado Ibarcena
Joint Debtor(s):
Maria Silvia Segura Cardenas Represented By
Carlos A Delgado Ibarcena
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
of Writ of Execution Pursuant to 11 U.S.C. Sections 542 and 543.
fr. 6/27/18
Docket 6
APPEARANCE REQUIRED
Debtor(s):
Happy Jump, Inc. Represented By Mark T Young
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
George Mortensen Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Loreta Acosta Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Everton Davis Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 8
- NONE LISTED -
Debtor(s):
Laura S Gomez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 87
Petition Date: 11/20/17 Chapter: 11 Dismissed: 6/28/18
Service: Proper. No opposition filed.
Property: 8951 Appian Way, Los Angeles, CA 90049
Property Value: $250,000 (per debtor’s schedules, only 25% interest of
$800,000)
Amount Owed: $2,746,951 Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $1,70,177 (approx. 143 payments of $11,474, foreclosure sale currently set for 8/14/18)
Movant alleges cause for relief under § 362(d)(4) because of multiple unauthorized transfers of the subject property and multiple bankruptcy cases affecting the subject property. Movant recount the extensive unauthorized transfers and the bankruptcies in its declaration ISO the RFS motion.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); 9 (relief under § 362(d)(4)).
APPEARANCE REQUIRED. RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
Benzeen Inc. Represented By
Robert Reganyan
9:30 AM
Michael R Sment
9:30 AM
Docket 78
- NONE LISTED -
Debtor(s):
Benzeen Inc. Represented By
Robert Reganyan Michael R Sment
9:30 AM
Docket 83
- NONE LISTED -
Debtor(s):
Benzeen Inc. Represented By
Robert Reganyan Michael R Sment
9:30 AM
Docket 53
In the Declaration of Income and Expenses filed along with Debtor’s Disclosure statement, Debtor indicates unspecified "deductions" in the amount of $778, which apparently do not fall under the more specific categories of Payroll taxes and social security, Insurance, or Union dues. What are these unspecified deductions? Debtor also lists an expense under the "other" category of "Misc." in the amount of $100 per month. What is this unspecified expense for?
The IRS claim was subject to an objection, which was withdrawn after the IRS amended its claim, before a hearing was held . Nevertheless, the Plan filed on the docket as Doc. #54 does not contain any provision for the unsecured priority claims exceeding $70,000. The Disclosure statement itself, in a footnote, states that the IRS will have an unsecured priority claim of $69,635.42 and the FTB will have an unsecured priority claim of $5,806.93.
APPEARANCE REQUIRED
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
9:30 AM
fr. 4/4/18
Docket 36
- NONE LISTED -
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
9:30 AM
request for valuation of security, payment of fully secured claims, and modification of undersecured claims
Docket 107
- NONE LISTED -
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
with request for valuation of security, payment of fully secured claims, and modification of undersecured claims
Docket 108
Debtor's objection to claim is, in part, based on the fact that Eric and Deborah Chen (the "Chens," former owners of the Venture Drive property), are liable for the underlying tax debt and not Debtor. Service was proper on Claimant, however, the Chens were not served with the Objection.
The term "party in interest" is not defined in the Bankruptcy Code, and must be determined on an ad hoc basis, with reference to the interest asserted and how that interest is affected by the bankrutcy. See generally In re Kronemyer, 405 B.R. 915, 919 (B.A.P. 9th Cir. 2009) (citing In re Woodberry, 383 B.R.
373, 378 (Bankr. D.S.C. 2008)). Here, the Chens are necessarily implicated in this Objection, and service of this objection on them is required.
The hearing on this objection will be continued to August 15, 2018, at 9:30
a.m. Proof of service of the Objection on the Chens shall be filed with the Court on or before July 25, 2018.
APPEARANCES WAIVED FOR THIS MATTER on July 18, 2018.
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
Docket 109
Debtor's objection to claim is, in part, based on the fact that 14520 Hesby, LLC ("Hesby," former holder of title to the Venture Drive property) is liable for the underlying debt and not Debtor. Service was proper on Claimant, however, Hesby were not served with the Objection.
The term "party in interest" is not defined in the Bankruptcy Code, and must be determined on an ad hoc basis, with reference to the interest asserted and how that interest is affected by the bankrutcy. See generally In re Kronemyer, 405 B.R. 915, 919 (B.A.P. 9th Cir. 2009) (citing In re Woodberry, 383 B.R.
373, 378 (Bankr. D.S.C. 2008)). Here, Hesby is necessarily implicated in this Objection, and service of this objection on it is required.
The hearing on this objection will be continued to August 15, 2018, at 9:30
a.m. Proof of service of the Objection on Hesby shall be filed with the Court on or before July 25, 2018.
APPEARANCES WAIVED FOR THIS MATTER on July 18, 2018.
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
Docket 77
This confirmation cannot be heard until the objections to the claims of the Franchise Tax Board and A & RI Investments are resolved (see cal. no. 11 & 12).
The hearing on this confirmation will be continued to August 15, 2018, at 9:30 a.m. Debtor to give notice of continued hearing on confirmation.
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
fr. 11/1/17, 10/25/17, 1/17/18, 2/28/18, 5/2/18, 5/30/18
Docket 1
- NONE LISTED -
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
Docket 84
- NONE LISTED -
Debtor(s):
Vladimir Vekic Represented By Stephen L Burton
Movant(s):
Vladimir Vekic Represented By Stephen L Burton
9:30 AM
fr. 3/28/18, 5/2/18, 5/23/18
Docket 106
- NONE LISTED -
Debtor(s):
Anzhey Barantsevich Represented By Stephen L Burton
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
9:30 AM
fr. 7/16/18
Docket 140
APPEARANCE REQUIRED
Debtor(s):
Anzhey Barantsevich Represented By Stephen L Burton
9:30 AM
fr. 9/8/16; 1/19/17; 1/26/17, 7/12/17; 9/27/17, 11/29/17, 2/28/18, 5/2/18, 5/23/18
Docket 1
- NONE LISTED -
Debtor(s):
Anzhey Barantsevich Represented By Michael Jay Berger
9:30 AM
Docket 208
UST moves to dismiss, arguing that there is cause under 11 U.S.C. § 1112(b) to dismiss or convert this case. First, Debtor, an individual, has had almost four years to obtain approval of a disclosure statement and plan. Despite this significant amount of time, Debtor has been unable to obtain approval of a disclosure statement delaying creditors’ rights to receive any payment on their claims. In addition, the Court has advised Debtor that he needs to wrap up the case and was to notice a hearing on his amended disclosure statement and plan for July 18, 2018, which would have required Debtor to file the amended disclosure statement and plan by June 6, 2018. Regardless of this warning and the July 18, 2018 deadline, Debtor has not filed or noticed an amended disclosure statement for a July 18, 2018 hearing.
Lastly, UST contends that Debtor is delinquent in filing the May MOR and providing proof of current insurance for the Honda Accord.
On June 23, 2018, Debtor filed his opposition to the Motion, contending that he has filed proof of his current insurance and the May MOR. Debtor also represents that he has received the accounting from the lender Ditech Financial. In the Opposition, filed a mere 25 days on what is usually a 42-day notice period under LBR 3017-1(a), Debtor states that he will be filing his disclosure statement. An amended disclosure statement was filed on July 11, 2018 - one week before it was set to be heard.
The Court is inclined to grant this Motion. APPEARANCE REQUIRED
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
fr. 1/8/15; 7/30/15, 10/15/15; 1/20/16; 3/31/16, 6/2/16, 7/28/16, 11/3/16, 7/28/17; 10/18/17; 12/6/17,
2/7/18; 3/7/18; 4/4/18, 5/23/18,
Docket 1
- NONE LISTED -
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
Movant(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
Docket 156
After having reviewed the Motion for Final Decree, the Confirmed Plan, and Reorganized Debtor's declaration in support, the Court finds that the case has been fully administered and all requirements for entry of final decree have been met.
Motion GRANTED. Movant to lodge order within 7 days. NO APPEARANCE REQUIRED.
Debtor(s):
Jack Piandaryan Represented By Vahe Khojayan Jeffrey I Golden
9:30 AM
of Debtor's Chapter 11 Plan of Reorganization
Docket 180
Two objections have been filed to the adequacy of this disclosure statement. The United States Trustee objects on the grounds that the discharge standard in the disclosure statement is incorrect. The discharge provision provides:
Upon completion of all payments to Class 4, Debtor may, after notice and a hearing, request the Court grant a discharge of all pre-confirmation debts, whether or not a creditor filed a proof of claim or accepted the Plan. Such discharge will not discharge Debtor from any debts that are non-dischargeable under section 523 or the obligations created by this Plan.
Disclosure Statement 21:16-20. As Trustee point out, in an individual chapter 11 case, the debtor does not receive a discharge until the debtor completes all payments under the plan, not only the members of a particular class. 11 U.S.C.
§ 1141(d)(5). Debtor should amend the disclosure statement to make the discharge provision mirror the requirements of § 1141.
Another objection was filed by creditor U.S. Bank, N.A. U.S. Bank first objects on the grounds that the disclosure statement only provides for a secured claim in its favor in the amount of $625,000, which the Court has determined is the value of the property located at 3037 W. 12th St., Los Angeles, CA 90006 (the "Property"). U.S. Bank argues that Debtor has failed to account for its security interest in the post-petition, pre-confirmation rents generated by the Property. Those rents constitute cash collateral due to an assignment of rents provision in the deed of trust against the Property. Debtor’s disclosure statement fails to add any and all net cash collateral that has accrued in Debtor’s DIP account for purposes of determining U.S. Bank’s secured claim.
Furthermore, U.S. Bank argues that by providing for only 4% of its total $312,351.29 unsecured claim, Debtor’s Chapter 11 plan is not fair and equitable because it violates the absolute priority rule of § 1129(b)(2)(B)(ii) and is therefore patently
9:30 AM
unconfirmable. U.S. Bank relies on Zachary v. California Bank & Trust, 811 F.3d 1191, 1194 (9th Cir. 2016). This Court agrees that, absent any new value contribution, the absolute priority rule as set forth in § 1129(b)(2)((B)(ii), applicable in individual chapter 11 cases per Zachary, precludes confirmation of this plan.
All objections to the disclosure statement are SUSTAINED and approval of the disclosure statement is DENIED.
APPEARANCE REQUIRED
Debtor(s):
Farideh Warda Pro Se
9:30 AM
Docket 0
NONE LISTED -
Debtor(s):
Farideh Warda Pro Se
9:30 AM
fr. 9/1/16, 2/9/17, 3/22/17, 4/26/17, 7/5/17, 8/16/17; 9/27/17, 11/29/17, 2/14/18, 4/25/18,
6/13/18
Docket 1
Having considered Debtor's explanation of the status of the case in the chapter 11 status report, and for good cause appearing, the status conference will be continued to September 12, 2018 at 9:30 a.m.
APPEARANCE WAIVED on July 18, 2018. Debtor to give notice of continued hearing.
Debtor(s):
Samuel James Esworthy Represented By
M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes
9:30 AM
fr. 9/8/16, 11/17/16; 1/19/17; 1/26/17, 3/22/17; 4/12/17 11/15/17; 2/7/18; 3/28/18, 5/23/18
Docket 1
NONE LISTED -
Debtor(s):
Muntaser A. Ammari Represented By Mark S Horoupian Mark S Horoupian Mark S Horoupian Jason Balitzer Jason Balitzer Jason Balitzer
10:00 AM
Docket 121
APPEARANCE REQUIRED
The conditions seem reasonable, and the sale should be fine with such conditions. All appearances may be telephonic, if needed.
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
Movant(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
10:00 AM
fr. 1/17/13, 2/21/13, 5/30/13, 10/10/13, 3/27/14, 10/2/14, 4/23/15, 4/23/15; 12/3/15, 2/4/16, 4/7/16;
6/9/16, 8/4/16, 11/10/16; 1/26/17, 3/1/17; 3/22/17,
4/26/17, 6/14/17, 6/20/17; 7/6/17; 8/1/17; 8/16/17,
8/17/17, 9/13/17; 10/11/17, 12/14/17, 2/7/18; 3/7/18,
5/1/18, 6/21/18
Docket 210
NONE LISTED -
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L James Lindsey L Smith
Movant(s):
JPMorgan Chase Bank, National Represented By
Christopher M McDermott
10:00 AM
fr. 9/29/10, 2/10/11, 5/26/11, 11/10/11, 3/15/12, 3/29/12, 11/28/12, 2/7/13,
2/21/13, 5/30/13, 10/10/13,
3/27/14, 10/2/14, 4/9/15; 4/23/15; 12/3/15
4/7/16, 4/7/16, 6/9/16, 8/4/16, 11/10/16; 1/26/17,
3/1/17; 3/22/17, 4/26/17, 6/14/17; 7/6/17; 8/1/17; 8/16/17,
8/17/17, 9/13/17; 10/11/17, 12/13/17, 2/7/18; 3/7/18,
5/1/18, 6/21/18
Docket 1
NONE LISTED -
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L Rodriguez
11:00 AM
US BANK NATIONAL ASSOCIATION
Docket 63
Petition Date: 10/29/2014
Service: Proper. No opposition filed. Property: 2012 Audi A7-V6
Property Value: $39,957.00 (per debtor’s schedules) Amount Owed: $ 18,124.87
Equity Cushion: 47.0% Equity: $21,832.13
Delinquency: $4,922.26 (1 payment of $885.64, 4 payments of 1,005.58, $15 in postpetition advances or other charges)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Guy Pierre Hector Represented By Leon D Bayer
Joint Debtor(s):
Brenda Buell Hector Represented By Leon D Bayer
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
HSBC BANK USA NATIONAL ASSOCIATION
Docket 86
Petition Date: 03/02/2015 Service: Proper. Opposition filed.
Property: 17453 Elkwood Street, Los Angeles, California 91325 Property Value: $ 432,000.00 (per debtor’s schedules)
Amount Owed: $ 519,735.58 Equity Cushion: 0%
Equity: $0.00
Post-Petition Delinquency: $11,090.30 (6 payments of $1,935.95; $0.00 in post- petition advances; $0.00 in attorneys’ fees; less $525.40 in suspense account or partial paid balance)
Debtor opposes the Motion, arguing that more payments have been made to Movant than the Motion accounts for. Debtor attaches copies of canceled checks as evidence that the payments that have been made. If there is any delinquency remaining the Debtor would like to enter into a repayment agreement or APO with Movant. Debtor also asserts all postpetition arrearages will be cured by the hearing date on this motion.
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 13 (If relief from stay is not granted, adequate protection shall be ordered).
APPEARANCE REQUIRED
Debtor(s):
Elvira Catimbang Arandia Represented By Kevin T Simon
11:00 AM
Movant(s):
HSBC Bank USA National Represented By Keith Labell Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
Docket 35
NONE LISTED -
Debtor(s):
Romeo J Pettinelli Represented By Eliza Ghanooni
Joint Debtor(s):
Gloria J Pettinelli Represented By Eliza Ghanooni
Movant(s):
U.S. BANK NATIONAL Represented By Kelsey X Luu
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 6/6/18
Docket 34
At the previous hearing, there was an accounting dispute between the parties. This matter was continued to allow the parties to work on resolving the accounting dispute and paying any remaining arrearage. Debtor filed a supplemental opposition on June 27, indicating that Debtor has made progress toward reducing the arrearage on the loan. Debtor argues that, even accepting Movant’s accounting, the post-petition arrearage as of June 27 is only $143.60, and the Motion should therefore be denied.
If Debtor could reduce her mortgage arrearage by $2,314.81 in two months, she can likely finish paying off the additional $143 arrearage. If the parties still disagree over the amount owed, the remedy is not to deny the Motion, as Debtor requests, but to continue this matter to allow the parties more time to work together to resolve the accounting issues.
APPEARANCE REQUIRED
6/6/18 Tentative
Petition Date: 8/21/15
Chapter 13 plan confirmed: 12/8/18 Service: Proper. Opposition filed.
Property:14164 Paddock St., Sylmar, CA 91342 Property Value: $271,000 (per debtor’s schedules) Amount Owed: $181,772
Equity Cushion: 32.9% Equity: $89,228
Postconfirmation Delinquency: $2,458.41 (two payments of $1,239.82), last payment received April 2018.
11:00 AM
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that there is a sufficient equity cushion to protect Movant's claim and that, on that basis alone, relief should be denied. Debtor does not, however, address that the language of 362(d)(1) contemplates other grounds as cause for relief. See In re Ellis, 60 B.R. 432, 435 (B.A.P. 9th Cir. 1985) (failure to make post-confirmation payments can constitute cause for lifting the stay).
APPEARANCE REQUIRED
Debtor(s):
Jean'e Milika Blair Represented By Arsen Pogosov
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 4/18/18, 5/23/18, 6/20/18
Docket 85
At the previous hearing, parties requested a hearing to allow creditor time to work out the numbers. Nothing new has been filed. What is the status of this motion?
APPEARANCE REQUIRED
Debtor(s):
Anaida Prazyan-Vartanyan Represented By Kevin T Simon
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 47
SERVICE IMPROPER. Lienholder Wells Fargo was not served at address listed on proofs of claims or at FDIC insured address per Rule 7004(h). Movant may re-notice the motion for August 15, 2018.
NO APPEARANCE REQUIRED
Debtor(s):
John A, Gillett Represented By Julie J Villalobos
Joint Debtor(s):
Pearlene Gillett Represented By Julie J Villalobos
Movant(s):
Nationstar Mortgage LLC Represented By Merdaud Jafarnia Nancy L Lee
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/16/18
Docket 55
At the previous hearing, the parties indicated that they were working on an adequate protection agreement. Since the hearing, Debtor filed an opposition to the motion, arguing that more payments have been made to Movant than the Motion accounts for. Debtor seeks to cure through APO to make up post-petition payments over a 12 month.
What is the status of the APO efforts?
Debtor(s):
Arturo Juarez Represented By Shirlee L Bliss
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/16/18, 6/20/18
Docket 31
At the previous hearing, the parties requested a hearing to work out the terms of an APO. What is the status of parties’ efforts?
APPEARANCE REQUIRED
Debtor(s):
Lynne Suzanne Boyarsky Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
WILMINGTON SAVINGS FUND SOCIETY FSB
fr. 6/20/18
Docket 33
At the previous hearing, the parties requested a continuance to pursue an APO. What is the status of those efforts?
APPEARANCE REQUIRED
Debtor(s):
Norman Everett Ross Jr. Represented By Barry E Borowitz
Joint Debtor(s):
Edna Henderson Ross Represented By Barry E Borowitz
Movant(s):
Wilmington Savings Fund Society, Represented By
Kelsey X Luu
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
LA CITY INVESTMENTS LLC
Docket 25
Petition Date: 11/29/2017 Service: Proper. Opposition filed.
Movant: LA City Investments (Owner of the Property)
Property Address: 5243 Yarmouth Ave. # 21 Encino, CA 91316 Type of Property: Residential
Occupancy: Defaulted lease Foreclosure Sale: N/A
UD case filed: 3/20/18 UD Judgment: None
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2)). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (confirmation that no stay in effect); 4 (annulment of stay); 6 (waiver of 4001(a)(3) stay); 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law); 8 (relief under §362(d)(4)); 10 (binding and effective for 2 years); and 11 (binding and effective against Debtor for 180 days such that no stay arises) because no grounds alleged for such relief (no repeat filings, no fractional interest transfers).
This chapter 13 case was filed on November 29, 2017. On March 19, 2018, Debtor was in default on the lease in the amount of $4,152. An unlawful detainer action was filed on March 20, 2018. Movant claims that it had no knowledge of the instant bankruptcy until May 14th, after it had filed the unlawful detainer action in State Court.
Debtor filed a limited opposition to motion, requesting that no lock out, foreclosure or repossession take place before 08/30/2018. Debtor alleges that Movant willfully violated the automatic stay by obtaining a default judgment in state court despite Movant’s attorney being notified of the bankruptcy by text message on May 3, 2018. No evidence of a default judgment in the unlawful detainer action has been provided
11:00 AM
to the Court. The opposition is confusing and based upon illegible pictures sent in text message to an unknown recipient. The declaration of Debtor’s attorney in the unlawful detainer action, Richard Jacobs, states that the recipient was Wayne Abb, Movant’s attorney in the unlawful detainer action. Mr. Jacobs’ declaration seems to indicate that service in the unlawful detainer action was improper, which led to the entry of a default judgment and a Sheriff’s notice to quit being posted on June 26, 2018. Debtor argues that annulment should not be granted due to Mr. Abb’s alleged knowledge of this bankruptcy proceeding.
In appropriate circumstances, the court may annul the automatic stay retroactively to validate an act that was committed in violation of the stay and would otherwise be void. See In re Siciliano, 13 F.3d 748, 751 (3rd Cir. 1994); see also Schwartz v.
United States (In re Schartz), 954 F.2d 569, 573 (9th Cir. 1992). Generally, the bankruptcy court has wide latitude to determine whether annulment of the automatic stay is appropriate and makes a case-by-case determination by balancing the equities. In re Fjeldsted, 293 B.R. 12, 26 (9th Cir. B.A.P. 2003).
Although no one factor is dispositive, courts typically focus on two factors, including:
(1) whether the creditor was aware of the bankruptcy petition; and (2) whether the debtor engaged in unreasonable or inequitable conduct, or prejudice would result to the creditor. Other factors courts consider include: (1) the number of filings; (2) whether, in a repeat filing case, the circumstances indicate an intention to delay and hinder creditors; (3) a weighing of the extent of prejudice to creditors or third parties if the stay relief is not made retroactive, including whether harm exists to a bona fide purchaser; (4) the debtor's overall good faith (based upon the totality of the circumstances); (5) whether creditors knew of the stay, but nonetheless took action, thus compounding the problem; (6) whether the debtor has complied, and is otherwise complying, with the Bankruptcy Code and Rules; (7) the relative ease of restoring parties to the status quo ante; (8) the costs of annulment to debtors and creditors; (9) how quickly creditors moved for annulment, or how quickly debtors moved to set aside the sale or violative conduct; (10) whether, after learning of the bankruptcy, creditors proceeded to take steps in continued violation of the stay, or whether they moved expeditiously to gain relief; (11) whether annulment of the stay will cause irreparable injury to the debtor; and (12) whether stay relief will promote judicial economy or other efficiencies. Id. at 25.
Here, the landlord had sufficient notice of the bankruptcy to cease the unlawful detainer proceedings and file a motion in this court before any sheriff’s notice was issued. Movant has not attached a writ of possession to the Motion, so it is unclear when that issued. It may be that a motion could also have been filed before that
11:00 AM
point. As such, the movant has not met its burden of proof. The stay will not be retroactively annulled. The debtor’s agreement to move by August 30 is sufficient.
APPEARANCE REQUIRED
Debtor(s):
Isaac Nessim Azoulay Represented By Steven L Bryson
Movant(s):
LA City Investments, LLC. Represented By
Lane M Nussbaum
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
MERCEDES-BENZ FINANCIAL SERVICES USA LLC
Docket 15
NONE LISTED -
Debtor(s):
Velma J Sharp Pro Se
Movant(s):
Mercedes-Benz Financial Services Represented By
Sheryl K Ith
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
Docket 11
Petition Date: 03/12/2018 Chapter: 7
Service: Proper. No opposition filed.
Property: 2279 W Falmouth Ave, Anaheim, California 92801 Property Value: $513,000
Amount Owed: $ 650,252.43 (per RFS motion) Equity Cushion: 0.0% (assuming 8% cost of sale) Equity: $0.00
Post-Petition Delinquency: $256,814.93 (93 payments of $2,674.59)
This property was not listed in Debtor’s schedules, and borrowers according to the note attached to the Motion are Daniel and Elisa Martinez.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Carla Fabiola Leon Pro Se
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
11:00 AM
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 26
Petition Date: 03/13/2018 Service: Proper. Opposition filed.
Property: 10176 Morehart Avenue, Pacoima, California 91331 Property Value: $ 109,318.00 (per debtor’s schedules) Amount Owed: $ 297,875.39
Equity Cushion: 0% Equity: $0.00
Post-Petition Delinquency: $7,718.04 (3 payments of $2,478.84; 3 late charges of
$281.51; $0.00 in post-petition advances; $0.00 in attorneys’ fees; less $0.00 in suspense account or partial paid balance)
Debtor opposes the Motion, disputing allegations/evidence contained in the motion and stating that she intends to cure the delinquency in an APO.
Movants requests relief under 11 U.S.C. 362(d)(1). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (Co-debtor stay annulled); and 7 (waiver of the 4001(a)
(3) stay).
APPEARANCE REQUIRED
Debtor(s):
Lisandra Fuerte Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
NOUSHIN LAALY AND KOUROSH LAALY
Docket 22
Petition Date: 04/11/2018 Service: Proper. Opposition filed.
Movant: Noushin Laaly and Kourosh Laaly
Relief Sought to: Pursue Pending Litigation _X Case Name: Laaly v DAF Construction Inc., et al.
Court/Agency: Los Angeles Superior Court, West District, Santa Monica Courthouse
Date Filed: 01/06/2017 Judgment Entered: None Trial Start Date: 05/07/2018
Movants request relief from the stay to pursue an action against Debtors and other non-debtor defendants in state court relating to a construction project on Movants’ home. Movants have also filed an adversary action alleging a nondischargeable debt. Movants would like to liquidate the claim in state court.
Debtors opposes the Motion, arguing that this dispute should be resolved in the bankruptcy court in the related adversary case filed by Movants. Debtors argue that Movants have not established cause for relief from the automatic stay under 11
U.S.C. § 362(d)(1). Debtors argue that Debtor are not a necessary party to the state court litigation because "the only issue against the Debtors are [sic] whether the Debtors’ conduct, if any, was nondischargeable in accordance with bankruptcy law." It appears that the purpose of proceeding in state court is not to determine dischargeability but to determine Debtors’ liability to Movants. Debtors argue that proceeding in state court would be of limited value because any state court judgment would not be res judicata as to a dischargeability action. "That is, even if. . . the state court makes a determination against the debtors, this Court would have an opportunity to consider additional evidence to determine whether the judgment is nondischargeable." Therefore, Debtor argues that granting relief from stay will allow,
11:00 AM
at best, a partial resolution of the issues and will result in additional legal expenses.
The bankruptcy court is required to give full faith and credit to state court judgments. In re Nourbakhsh, 67 F.3d 798, 801 (9th Cir. 1995). Debtor’s argument that any state court judgment would not be res judicata in the dischargeability action ignores the expansive body of precedent applying collateral estoppel principles in dischargeability proceedings. Grogan v. Garner, 498 U.S. 279, 284 (1991); In re
Harmon, 250 F.3d 1240, 1245 (9th Cir. 2001).
While the parties dispute whether Debtor Farkhondeh was a consultant or a contractor, that issue is not properly decided in this Motion for Relief from Stay. Any determination on the merits of Movant’s claim should be reserved for the proper proceeding.
Each side presents authority providing a list of factors used in determining cause:
Whether the relief will result in a partial or complete resolution of the issues.
The lack of any connection with or interference with the bankruptcy case.
Whether the non-bankruptcy proceeding involves the debtor as a fiduciary.
Whether a specialized tribunal has been established to hear the particular cause of action and that tribunal has the expertise to hear such cases.
Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation.
Whether the action primarily involves third parties.
Whether litigation in another forum would prejudice the interests of other creditors, the creditors' committee or other interested parties.
Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c).
Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f).
The interest of judicial economy and the expeditious and economical determination of litigation for the parties.
Whether the non-bankruptcy proceedings have progressed to the point where the parties are prepared for trial.
The impact of the stay on the parties and the "balance of hurt." In re Chan, 355 B.R. 494, 499 (Bankr. E.D. Pa. 2006).
In balancing these factors, the motion will be denied. There would be unnecessary litigation in the state court that would not be necessary for the dischargeability action.
11:00 AM
Any ruling in state court is unlikely to provide sufficient findings to determine the discharge action, resulting in duplicative litigation.
APPEARANCE REQUIRED
Debtor(s):
Hamid Farkhondeh Pro Se
Joint Debtor(s):
Mary Dadyan Pro Se
Movant(s):
Noushin Laaly and Kourosh Laaly Represented By
Stella Rafiei
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
FINANCIAL SERVICES VEHICLE TRUST
Docket 11
NONE LISTED -
Debtor(s):
George Kazanjian Represented By Karine Karadjian
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
SELECT PORTFOLIO SERVICING INC.
Docket 13
Petition Date: 04/20/2018 Service: Proper. Opposition filed.
Property: 303 Wood Loop Street, Houston, TX 77015 Property Value: $162,000.00 (per debtor’s schedules) Amount Owed: $ 143,782.28
Equity Cushion: 3% (assuming 8% cost of sale) Equity: $18,271.72
Post-Petition Delinquency: $13,944.46 (8 payments of $1,743.05)
Debtor opposes the Motion, arguing that a sufficient equity cushion exists to provide Movant with adequate protection. Debtor also intends to cure the arrearage in an APO or to enter into a loan modification with movant.
Movants requests relief under 11 U.S.C. 362(d)(1). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
APPEARANCE REQUIRED
Debtor(s):
Steven Devan Represented By Larry D Simons
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 9
Petition Date: 05/02/2018
Service: Proper. No opposition filed. Property: 2016 Mitsubishi Lancer
Property Value: $17,000.00 (per debtor’s schedules) Amount Owed: $ 21,121.02
Equity Cushion: 0.0% Equity: $0.00
Delinquency: $918.10 (2 payments of $449.31)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jorge Alberto Sanchez Guzman Represented By Jasmine Firooz
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
WFG NATIONAL TITLE INSURANCE CO
Docket 23
NONE LISTED -
Debtor(s):
Tamara Tammy Dadyan Represented By Raymond H. Aver
Joint Debtor(s):
Arthur Ayvazyan Represented By Raymond H. Aver
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 12
Petition Date: 05/25/2018
Service: Proper. No opposition filed. Property: 2016 HONDA PILOT
Property Value: $9,472 (per debtor’s schedules) Amount Owed: $ 29,045.27
Equity Cushion: N/A - Leased Equity: N/A - Leased
Delinquency: $752.02 (2 payments @ 451.06)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Sam Aliano Represented By
Harout G Bouldoukian
Joint Debtor(s):
Nancy Marija Aliano Represented By
Harout G Bouldoukian
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
11:00 AM
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 8
Petition Date: 05/25/2018
Service: Proper. No opposition filed. Property: 2011 BMW 328IS
Property Value: $12,000.00 (per debtor’s schedules) Amount Owed: $ 15,214.68
Equity Cushion: 0% Equity: $0.00
Delinquency: $2,171.27 (5 payments @ 417.55)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); and 6 (waiver of 4001(a)(3) stay).
Debtor(s):
Sam Aliano Represented By
Harout G Bouldoukian
Joint Debtor(s):
Nancy Marija Aliano Represented By
Harout G Bouldoukian
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 8
Petition Date: 06/18/2018 Service: Proper. Opposition filed.
Movant: Yaya Group I, LLC (legal owner of Property)
Property Address: 7651 Laurel Canyon Blvd., #211, North Hollywood, CA 91605 Type of Property: Residential
Occupancy: a lease that is in default Foreclosure Sale: N/A
UD case filed: 05/14/2018 UD Judgment: None
Debtor opposes the Motion, arguing Debtor may have ground to successfully oppose the pending motion in state court. Debtor does not wish to be locked out prior to having her day in state court so that she can plead her side of the case. Debtor alleges that she is currently still employed by Yaya Group in the capacity of a resident manager, and her supervisor, is still giving her orders and telling her to work and to continue to manage the property. Debtor is both an employee and a tenant, and believes that she received inadequate notice of termination of her employment, which is linked with her rights as a tenant. There is also a question of whether the property is properly registered with the City of Los Angeles under the Rent Control Stabilization Ordinance.
The motion indicates that trial was continued to August 6, 2018.
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2)). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 6 (waiver of 4001(a)
stay); and 12 (if relief from stay not granted, establishment of a deadline for assumption or rejection of the lease).
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Elva De la Torre Represented By Jennifer Ann Aragon
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 7
Petition Date: July 6, 2018
Chapter: 7
Service: Proper. No opposition filed. Movant: GP Management
Property Address: 9947 De Soto Ave. Unit 5, Chatsworth, CA 91311 Type of Property: Residential
Occupancy: Lease in default
Foreclosure Sale:
UD case filed: April 16, 2018
UD Judgment: N/A. Trial cont'd to 8/15/18
Movant requests a finding that the automatic stay is not in effect. Debtor has a number of previous bankruptcy cases. Debtor filed this case on July 6, 2018. Debtor filed a previous case, 1:17-bk-11154-MB, on May 1, 2017; that case was dismissed on July 24. The next most previous case, 1:17-bk-10900-MB, was filed on April 6, 2017 and dismissed on April 7, 2017. Section 362(c)(3) provides that if a debtor had a previous case pending within the past year that was dismissed, the stay shall terminate after 30 days. Section 362(c)(4) provides that, if the debtor instead had two prior cases pending and dismissed within the previous year, "the stay under subsection (a) shall not go into effect upon the filing of the later case." The one year period is counted from the date of the petition. Here, debtor had only one other case pending and dismissed within the one year period, as measured from the petition date of July 6 in this case. Therefore, the stay arose in this case, but will terminate 30 days after the filing of this case absent further action of the Debtor.
Disposition: GRANT under 11 U.S.C. 362(d)(1); (d)(2)). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law); . GRANT relief as to paragraph 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law); 9 (order binding and effective in any bankruptcy for 180 days); and 11 (order binding and effective in any bankruptcy, no stay shall arise as to property).
11:00 AM
DENY relief requested under paragraph 3 (confirmation that no stay is in effect). APPEARANCE REQUIRED
Debtor(s):
Latifa Williams Pro Se
Movant(s):
GP Management Represented By David Roschko
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 6
On June 27, 2018, Debtor filed this Chapter 7 case. Debtor has one previous Chapter 13 bankruptcy case that was dismissed a short time ago. The first dismissed Chapter 13 case, 17-12521-MB, was filed on September 20, 2017 and dismissed on June 8, 2018 because failure to make payments.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case. Debtor contends the previous case was dismissed because arrears were too high for income. Debtor claims that the presumption of bad faith is overcome as to all creditors per Section 362(c)(3)(C)(i) because Debtor has other creditors it is dealing with in this bankruptcy. Further, Debtor claims property is of consequential benefit to the estate because it is necessary to a reorganization since Debtor is in the process of moving and needs to remove personal property from home prior to foreclosure. Debtor was participating in a loan modification through the Pilot Program and therefore the debtor had hoped to manage the arears on the property so they could continue making affordable mortgage payments.
No opposition has been filed. MOTION GRANTED. NO APPEARANCE REQUIRED.
Debtor(s):
Lizette Milian-Fiedler Represented By
R Grace Rodriguez
Movant(s):
Lizette Milian-Fiedler Represented By
R Grace Rodriguez
11:00 AM
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 2098
Petition Date: 01/09/2012 Chapter: 7
Service: Proper. No opposition filed.
Property: 29095 Madrid Place, Castaic, CA 91384 Property Value: $358,644
Amount Owed: $ 1,307,736.36 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00
Post-Petition Delinquency: $407,376.97 (130 payments @ $6,516.83)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 5 (the stay is annulled); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under §362(d)(4));
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
11:00 AM
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Docket 2101
Trustee moves ("Motion") the Court for an order abandoning the estate’s interest in the real property located at 3729 Westfall Drive, Encino, California (the "Subject Property") nunc pro tunc to May 21, 2018, under § 554(a). Trustee argues that under paragraph 4 of the Settlement Agreement, approve by the Court on June 30, 2017 (ECF doc. 1937), Bank of America ("BofA") received in rem relief from stay to pursue state law remedies as to certain parcels of real property, including the Subject Property. BofA exercised its state law rights and foreclosed on the Subject Property on May 22, 2018. Thus, the Subject Property was no longer property of the Estate as of that date and so Trustee seeks an order approving his abandonment of the Subject Property nunc pro tunc to May 21, 2018.
Service proper. No response filed.
Motion GRANTED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS. NO APPEARANCE REQUIRED ON 7/18/18
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
11:00 AM
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Adv#: 1:16-01119 Moussighi et al v. Talasazan
for NonDischargeability of Debt Pursuant to 11 U.S.C. Sec. 523 and 727.
11/5/16, 11/30/16; 3/29/17, 7/5/17, 1/31/18, 2/14/18,
5/30/18, 6/6/18
Docket 1
Pretrial conference:
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
Debtor(s):
Yoram Talasazan Represented By Raymond H. Aver
Defendant(s):
Yoram Talasazan Pro Se
Plaintiff(s):
Moeir Moussighi Represented By Donna R Dishbak
Hanrit Moussighi Represented By Donna R Dishbak Donna R Dishbak
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:18-01043 COUNTY OF VENTURA v. Fishback et al
Docket 18
NONE LISTED -
Debtor(s):
Barton Wayne Fishback Represented By Matthew Abbasi
Defendant(s):
Barton Wayne Fishback Pro Se
Carol Fishback Pro Se
Joint Debtor(s):
Carol Fishback Represented By Matthew Abbasi
Plaintiff(s):
COUNTY OF VENTURA Represented By David J Cook
11:00 AM
Adv#: 1:18-01058 Salazar v. Ocwen Loan Servicing
Docket 1
NONE LISTED -
Debtor(s):
Edna Salazar Pro Se
Defendant(s):
Ocwen Loan Servicing Pro Se
Plaintiff(s):
Edna Salazar Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Adv#: 1:18-01052 Hernandez et al v. Choe
Docket 1
The parties should respond if any objectio to following: Discovery to be completed by 11/30/18
Pretrial conference to be set for 12/19/18
It is unclear what the basis is for the defendants not consenting to jurisdiction here for a 727 action. If defendants do not consent to the bankruptcy court's authority to enter final judgment, a briefing schedule will be set to determine that issue as well.
Debtor(s):
Harold H Choe Represented By Young K Chang
Defendant(s):
Harold H Choe Pro Se
Plaintiff(s):
Jose Hernandez Represented By Timothy L Joens
Viviana R Valle Represented By Timothy L Joens
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Adv#: 1:18-01032 The GERSH LAW FIRM INC a CA corporation et al v. Elady
Docket 1
NONE LISTED -
Debtor(s):
Yehuda Elady Represented By Richard Grossman
Defendant(s):
Yehuda Elady Pro Se
Plaintiff(s):
The GERSH LAW FIRM INC a CA Represented By
Jeffrey F Gersh
Gersh Derby, LLP Represented By Jeffrey F Gersh
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:18-01032 The GERSH LAW FIRM INC a CA corporation et al v. Elady et al
Gersh Derby LLP a California corporation; Gersh Derby, LLP; Paul B Derby A Professional Corporation a California corporation and dba Gersh Derby LLP; The GERSH
LAW FIRM INC a CA corporation
Docket 5
NONE LISTED -
Debtor(s):
Yehuda Elady Represented By Richard Grossman
Defendant(s):
Yehuda Elady Pro Se
Plaintiff(s):
The GERSH LAW FIRM INC a CA Represented By
Jeffrey F Gersh
Gersh Derby, LLP Represented By Jeffrey F Gersh
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:18-01055 United States Trustee (SV) v. Aslanyan et al
Docket 1
Based on the status report, the court sua sponte continues this matter to
9/26/18 at 11 am so that a motion for default judgment can be filed and reviewed before that date. NO Appearance required on 7/18/18.
Debtor(s):
Karine Aslanyan Pro Se
Defendant(s):
Karine Aslanyan Pro Se
Hakob Gasparyan Pro Se
Joint Debtor(s):
Hakob Gasparyan Pro Se
Plaintiff(s):
United States Trustee (SV) Represented By Katherine Bunker
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Adv#: 1:18-01010 Seyedan v. Njeim
Docket 1
The parties should indicate whether any objection to the following: Discovery completed by 10/19/18
Pretrial conference 11/14/18 at 11 am
Debtor(s):
Juliana Njeim Represented By
Richard Mark Garber
Defendant(s):
Juliana Njeim Pro Se
Plaintiff(s):
Maryam Seyedan Represented By James R Selth
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:17-01032 Swift Capital Corporation dba Swift Capital v. Fuscaldo et al
Docket 1
Based on the status report and tentative settlement, this matter will be
continued to September 12, 2018 at 11 am to allow and settlement to be effectuated.
NO Appearance required on 7/18/18
Debtor(s):
Matthew Fuscaldo Represented By Jeffrey J Hagen
Defendant(s):
Matthew Fuscaldo Pro Se
Melissa Lynn Golde-Fuscaldo Pro Se
Joint Debtor(s):
Melissa Lynn Golde-Fuscaldo Represented By Jeffrey J Hagen
Plaintiff(s):
Swift Capital Corporation dba Swift Represented By
Daren M Schlecter
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:18-01056 GOTTLIEB v. Law Offices of Maro Burunsuzyan, A Prof. Corp. et
Docket 1
NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Defendant(s):
Law Offices of Maro Burunsuzyan, Pro Se Maro Burunsuzyan Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Peter A Davidson
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
Adv#: 1:18-01047 SP22, Inc., a California corporation et al v. Yurdumyan, an individual
Docket 1
NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Defendant(s):
Karmile Yurdumyan, an individual Pro Se
Plaintiff(s):
SP22, Inc., a California corporation Represented By
Allan Herzlich
Scott Parrish, an individual Represented By Allan Herzlich
Saeideh Parrish, an individual Represented By Allan Herzlich
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
Docket 107
NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
Docket 26
Debtor is a stuntman/videographer who receives residual income ("Residuals") for his work for various studios and/or production companies. Chapter 7 Trustee David Gottlieb moves for an order compelling Debtor to deliver all Residuals received to date for work done prepetition, which is property of the estate., with an accounting. If Debtor fails to turn over the Residuals voluntarily, Trustee moves for an order under § 543 requiring SAG-AFTRA to turnover prepetition residual streams that are currently being paid to debtor.
Service proper. No opposition filed. Having reviewed the Motion and finding good cause, the Motion is GRANTED.
TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Dieter Rauter Represented By
Andrew S Mansfield
Trustee(s):
David Keith Gottlieb (TR) Represented By Carmela Pagay
11:00 AM
Docket 209
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON JULY 18, 2018.
Debtor(s):
Michael's Valley Plumbing Inc. Represented By Stephen L Burton
Trustee(s):
David Seror (TR) Represented By Travis M Daniels Richard Burstein Talin Keshishian Nina Z Javan Steven T Gubner
11:00 AM
Docket 29
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON JULY 18, 2018.
Debtor(s):
Maria Del Carmen Garcia Represented By Sydell B Connor
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 28
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON JULY 18, 2018.
Debtor(s):
William Todd Walker Represented By Anil Bhartia
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
Adv#: 1:18-01056 GOTTLIEB v. Law Offices of Maro Burunsuzyan, A Prof. Corp. et
Docket 6
Introduction
The complaint in this adversary action seeks to invalidate a lien created by a deed of trust in favor of defendants, Maro Burunsuzyan and Law offices of Maro Burunsuzyan, a Professional Corporation ("Defendants"), or a DBA of Defendants. According to the allegations in the complaint, which are assumed to be true for purposes of this Motion to Dismiss Plaintiff’s Complaint (the "Motion"), the facts are as follows.
Karmile Yurdumyan, the debtor in the lead bankruptcy case ("Debtor"), owns property located at 3634 Buena Park Drive, Studio City, CA 91604 (the "Property"). Trustee alleges that Debtor and her husband at the time, Neshan Moskovyan ("Neshan"), purchased the property in 2001 as joint tenants. In 2004, Neshan and other persons were sued in Los Angeles Superior Court Case No. LC067829, SP 22 Inc. et al. v. Avag Yurdumyan, et al. (the "SP 22 Lawsuit"). When the lawsuit was filed, the only lien was a deed of trust in favor or the original lender in the amount of $320,000. After the case commenced, Debtor and Neshan opened a revolving line of credit for up to
$140,000 secured by a second position deed of trust on the property ("Line of Credit"). Defendant Maro Burunsuzyan, Debtor’s ex-sister-in-law, is the attorney who represented Neshan in the SP 22 Lawsuit.
The court in the SP 22 Lawsuit ruled in favor of the plaintiffs and against Neshan on May 5, 2005. A statement of decision was requested, and was subsequently issued along with an interim judgment on June 28, 2005.
On the same day the statement of decision was issued, a deed of trust was filed with the Los Angeles County Recorder’s Office for $180,000 in favor of "Maro Burunsuzyan, a Professional Law Corporation, a California Corporation" (the "Maro Deed of Trust"). Trustee alleges that, while the Maro
1:00 PM
Deed of Trust purports to secure a "promissory note in the principal sum of
$180,000," no such promissory note exists.
On July 7, 2005, another deed of trust was recorded in favor of Karen Gemilyan dba Advance Construction (the "Karen Deed of Trust"). The Karen Deed of Trust allegedly secures a promissory note dated September 19, 2001 in the principal sum of $273,500. While the deed of trust was signed by Debtor and Neshan in September 2001, their signatures were not notarized until March 5, 2005, just prior to the start of the trial in the SP 22 Lawsuit.
After the trial commenced, Debtor borrowed $60,000 on the Line of Credit. Debtor allegedly loaned that $60,000 to Armeda Financial ("Armeda"). Armeda repaid the loan at the rate of $1,000 per month. Armeda is in the business of making auto loans and is owned and operated by defendant Maro Burunsuzyan.
Standard
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the allegations set forth in the complaint. "A Rule 12(b)(6) dismissal may be based on either a ‘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).
In resolving a Civil Rule 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. Johnson, 534 F.3d at 1122; Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001). On the other hand, the court is not bound by conclusory statements, statements of law, or unwarranted inferences cast as factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555-57 (2007); Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55
(9th Cir. 1994).
Analysis
Claim One: Determination of Validity of Lien
1:00 PM
Trustee’s first claim argues that the Maro Deed of Trust is invalid because Defendants failed to comply with California Rule of Professional Conduct 3-300, which states:
A member shall not enter into a business transaction with a client; or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied:
The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and
The client is advised in writing that the client may seek the advice of an independent lawyer of the client's choice and is given a reasonable opportunity to seek that advice; and
The client thereafter consents in writing to the terms of the transaction or the terms of the acquisition.
CA ST RPC Rule 3-300. The Motion argues that § 544 does not allow the Trustee to avoid a perfected lien. Trustee retorts that the purpose of this action is the challenge the validity of the lien—in other words, whether the lien is in fact perfected is precisely the issue. This claim therefore turns on whether Trustee’s theory for challenging the lien for violation of RPC 3-300 is cognizable under California state law.
Defendants argue that the case should be dismissed because Trustee lacks standing to regulate a lawyer’s conduct under the Rules of Professional Conduct. Trustee responds that this is not an action to discipline Defendant Maro Burunsuzyan; Trustee is instead acting as a representative of the Debtor’s bankruptcy estate exercising his strongarm powers pursuant to
§ 544 to avoid what he claims is an unperfected security interest.
1:00 PM
Trustee cites several cases in support of his claim. In Fletcher v. Davis, the Supreme Court of California found that an attorney who secured payment of their fees by acquiring a "charging lien" (a security interest in the proceeds of the litigation), must comply with the requirements of RPC 3-300. 33 Cal.
4th 61, 71 (2004). Failure to comply with the rule prevented the attorney in Fletcher from enforcing the charging lien. Id. at 71-72.
More on point, the Trustee cites In re Segovia and its subsequent appellate decisions. In re Segovia, 387 B.R. 773 (Bankr. N.D. Cal.
2008), aff'd, No. ADV. 06-03180, 2008 WL 8462967 (B.A.P. 9th Cir. Oct. 22,
2008), aff'd, 346 F. App'x 156 (9th Cir. 2009); In re Segovia, No. ADV.
06-03180, 2008 WL 8462967 (B.A.P. 9th Cir. Oct. 22, 2008), aff'd, 346 F.
App'x 156 (9th Cir. 2009). In re Segovia involved a debtor, Maria Segovia, who retained her brother Victor as her attorney to help resolve a dispute with a contractor, Bach Construction, Inc. ("BCI"). BCI had performed construction work on a piece of real property owned by Maria and two family members. At the outset of the representation, Maria and the co-owners signed a fee agreement with Victor. The fee agreement contained language granting Victor "a lien on all their claims and causes of action that are the subject of the representation of clients under this agreement, on all proceeds of any recovery obtained . . . and on all real property for attorney’s fees and costs advanced." In re Segovia, 387 B.R. at 783.
While BCI originally claimed it was due less than $50,000, and was willing to accept as little as $21,425, after extensive litigation BCI received a judgment for $526,625 against the defendants, including Maria. In re Segovia, 387 B.R. at 780. Judgment was entered on November 22, 2005. On December 16, 2005, the state court determined that BCI was entitled to
$610,731 in attorney’s fees and costs. Id. at 778. That same day, Maria and the other defendants signed a form entitled California Voluntary Attorney’s Lien in Victor’s favor, specifying the amount to be secured as $726,000. Id. The lien form was recorded the same day. Id.
Maria Segovia filed for chapter 7 relief in May 2006. The chapter 7 trustee brought an action to avoid the liens of BCI and Victor as preferences, but the Segovia decision does not center around the trustee’s claims. BCI filed a cross-complaint against Victor, arguing that his claim should be disallowed or subordinated. Id. at 778. In resolving BCI’s claim objection, the
1:00 PM
court determined that 1) the reasonable amount of fees for the work provided was $50,000, Id. at 782, and 2) Victor’s lien was unenforceable due to Victor’s failure to comply with Rule 3-300 of the California Rules of Professional Conduct. Id. at 784. The court relied upon Fletcher in reaching its decision, noting that "[a]lthough Rule 3–300 does not specify the remedy to be applied upon breach, the California Supreme Court has held that an attorney lien that does not comply with Rule 3–300 is invalid." Id. (citing Fletcher). The court ultimately determined that Victor was entitled to a
$50,000 unsecured claim in the bankruptcy, and "[t]he California Voluntary Attorney’s Lien recorded on December 16, 2005 shall have no force or effect." Id.
The bankruptcy court’s decision in Segovia was affirmed on appeal. In an unpublished decision, the BAP found that the bankruptcy court "properly considered the validity of the lien. BCI objected to the allowance of Segovia’s claim in its entirety. Such an objection necessarily encompassed a challenge to the lien." In re Segovia, No. ADV. 06-03180, 2008 WL 8462967 at *10. The panel also addressed, in a footnote, the nature of the lien at issue, making it clear that the avoided lien was not a charging lien, such as the lien at issue in Fletcher. Id. at FN 24. This indicates that the avoidance of liens for failure to comply with RPC 3-300 is not limited to charging liens under California law, and extends to other asserted interests. The panel’s decision was appealed to the Ninth Circuit and affirmed in an unpublished decision. In re Segovia, 346 F. App'x at 157.
In another case cited by Trustee, the BAP in an unpublished decision affirmed a court’s grant of a chapter 7 trustee’s motion for summary judgment invalidating an attorney charging lien for failure to comply with RPC 3-300. In re Alter, No. ADV. SV-05-01534-GM, 2006 WL 6810925, at *8 (B.A.P. 9th Cir.
Aug. 15, 2006). The Alter court stated that Fletcher was the first California Supreme Court decision to invalidate the terms of an attorney’s contract with its client in a civil case. Id. at *5.
Nor is the holding in Fletcher limited in any material fashion to the facts in that case. The court's holding contained no restrictive language; its reasoning was applied in the context of a civil action wherein an attorney sought to enforce an oral contract. Fairly read, Fletcher's construction of the California
1:00 PM
Id.
statutes concerning attorney fee contracts requires that a lawyer comply with Rule 3–300 in any case where the attorney seeks to enforce a charging lien under an hourly fee agreement.
While the underlined language above could be read to mean that
avoidance of a lien under Fletcher applies only to charging liens, the Fletcher rule also clearly includes deeds of trust. The Supreme Court of California has ruled that obtaining a deed of trust to secure attorney’s fees constitutes an "interest adverse to a client" within the meaning of the predecessor statute to RPC 3-300. Hawk v. State Bar, 45 Cal. 3d 589, 598 (1988), modified (June 29, 1988) (Attorney who secures payment of fees by acquiring note secured by deed of trust in client's property has acquired interest adverse to client, thereby requiring him to comply with safeguards enumerated in disciplinary rule). Indeed, Fletcher discussed Hawk at length and characterized a charging lien as "somewhere between the[] extremes" of an unsecured promissory note and a deed of trust, with the deed of trust being more extreme because it "can be used to summarily extinguish the client’s interest in the property." Fletcher v. Davis, 33 Cal. 4th at 68.
The substantive relief sought by the Trustee’s first cause of action is available. Trustee is exercising his authority to stand in the shoes of a hypothetical judicial lienholder under § 544, similar to BCI in the Segovia case and the chapter 7 trustee in Alter. The trustee therefore has standing to pursue this claim. In light of the discussion above, the Court also rejects Defendants’ argument that the only remedy for a violation of an RPC is a malpractice action. Lastly, the Court rejects Defendants’ argument that deeds of trust, once recorded, cannot be avoided pursuant to Trustee’s strongarm powers.
Trustee has stated a plausible claim for relief. The Motion is therefore DENIED as to the first claim for relief.
Claim Two: Determination of Validity and Extent of Lien and Reasonable Value of Services
In addition to the grounds set forth in the first claim, Trustee requests that the Court determine the validity and extent of the lien created by the
1:00 PM
Maro Deed of Trust and the reasonable value of Defendants’ services in connection with the SP 22 Lawsuit.
Trustee alleges that the Maro Deed of Trust is invalid because the named beneficiary under that deed, "Maro Burunsuzyan, A Professional Law Corporation, a California Corporation" does not and has never existed. The correct name of the law firm is allegedly "Law Offices of Maro Burunsuzyanm, A Professional Law Corporation." Additionally, Trustee claims that the "promissory note" referred to in the Maro Deed of Trust, which it purports to secure, does not and never has existed. This claim for relief further requests that, if the Court Determines that the lien is valid, the court determine the reasonable value of Defendants’ services pursuant to § 502(b)(4), which provides:
(b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that— . . . .
if such claim is for services of an insider or attorney of the debtor, such claim exceeds the reasonable value of such services
11 U.S.C.A. § 502.
Defendants have not raised any arguments in opposition to this claim that have not been addressed above. The Motion is therefore DENIED as to the second claim for relief.
Claim Three: Avoid Transfer under Uniform Fraudulent Transfers Act ("UFTA")
Trustee’s third claim for relief seeks to avoid fraudulent transfers pursuant to his strongarm powers under § 5441 and California’s UFTA, specifically Cal. Civ. Code § 3439.04(a)(1). The Motion argues that this action is time-barred by Cal. Civ. Code. § 3439.09, which provides as follows:
1:00 PM
A cause of action with respect to a transfer or obligation under this chapter is extinguished unless action is brought pursuant to subdivision (a) of Section 3439.07 or levy made as provided in subdivision (b) or (c) of Section 3439.07:
Under paragraph (1) of subdivision (a) of Section 3439.04, not later than four years after the transfer was made or the obligation was incurred or, if later, not later than one year after the transfer or obligation was or could reasonably have been discovered by the claimant.
Under paragraph (2) of subdivision (a) of Section 3439.04 or Section 3439.05, not later than four years after the transfer was made or the obligation was incurred.
Notwithstanding any other provision of law, a cause of action under this chapter with respect to a transfer or obligation is extinguished if no action is brought or levy made within seven years after the transfer was made or the obligation was incurred.
Cal. Civ. Code § 3439.09. The relevant deed of trust was signed in 2005— roughly thirteen years before this adversary was filed. Trustee only briefly addresses the UFTA limitations periods specifically.
To the extent Trustee argues that the limitations period in Cal. Civ.
Code § 3439.09 should be tolled by California’s discovery rule, such tolling is not allowed under subsection (c). The limitation contained in Cal. Civ. Code.
§ 3439(c) is not merely a statute of limitations, in contrast to subsections (a) and (b), but is instead a statute of repose. PGA W. Residential Ass'n, Inc. v. Hulven Int'l, Inc., 14 Cal. App. 5th 156, 179 (Ct. App. 2017), as modified (Aug. 23, 2017), review denied (Nov. 15, 2017).
While a statute of limitations normally sets the time within which proceedings must be commenced once a cause of action accrues, a statute of repose limits the time within which an action may be brought and is not related to accrual. Indeed, the injury need not have occurred, much less have been
1:00 PM
discovered.
Id. at 177. Statutes of repose are generally not subject to statutory or equitable tolling. Id. at 178; but see In re EPD Inv. Co., LLC, 523 B.R. 680, 682 (B.A.P. 9th Cir. 2015) (addressing federal preemption of state statutes of repose).
statute of limitations creates an affirmative defense if a party fails to initiate an action within a specific time period, whereas a statute of repose extinguishes a party's claim after a fixed period of time, usually measured from one of the defendant's acts. The former involves a party's diligence; the latter promotes a defendant's peace from litigation. A statute of repose is thus harsher than a statute of limitations in that it cuts off a right of action after a specified period of time, irrespective of accrual or even notice that a legal right has been invaded.
Id. at 687.
The court in EPD Inv. Co. considered whether the statute of repose in Cal. Civ. Code. § 3439.09(c) is preempted by 11 U.S.C. § 546(a). Section 546(a) provides:
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.
11 U.S.C. § 546(a). The EPD Inv. Co. court found that § 546(a) of the bankruptcy code preempts state law statutes of limitations, and specifically
1:00 PM
the statute of repose of Cal. Civ. Code § 3439.09(c), but only if the action existed on the date of the petition and had not expired.
Simply put, so long as the state-law fraudulent transfer claim exists on the petition date (or the order for relief date), the state statutes of limitations cease to have any continued effect, and the only applicable statute of limitations for bringing the claim thereafter is within § 546(a).
Id. at 686. Here, the UFTA action is governed by the seven-year statute of repose in Cal. Civ. Code § 3439.09(c). The allegedly fraudulent transfer occurred in June 2005, over twelve years before this case was filed on August 31, 2017.
Trustee argues that whether the statute of limitations on the UFTA claim has expired is a question of fact which should not be determined at this time. Trustee’s basis for this argument is that the beneficiary under the Deed of Trust, "Maro Burunsuzyan A Professional Law Corporation, a California corporation," allegedly does not exist. Trustee essentially argues that the statute of limitations does not apply because the property was never in fact transferred due to a typographical error. Even if Trustee is correct that the beneficiary under the deed of trust "is not either of the Defendants," the UFTA claim should nevertheless be dismissed. If the Trustee is correct that a "transfer of real property does not take place until" the deed is accepted, and that acceptance is impossible where the transferee does not exist, then it is unclear whether this action falls under the purview of the UFTA. Trustee has not plead any facts which would entitle him to relief under the UFTA because he has not alleged when a "transfer" occurred within the meaning of Cal. Civ. Code § 3439.01(m) that would fall within the seven-year statute of repose.
Because the fraudulent transfer claim did not exist on the petition date due to the expiration of the statute of repose, Trustee cannot pursue this action pursuant to his strongarm powers. The Motion is GRANTED on the third claim for relief as to both Defendants.
Claim Four: Avoid Transfer under California Common Law Defendants argue that the fourth claim for relief, a common law claim
for avoidance of a fraudulent transfer, is also barred by § 548 and the
1:00 PM
"California statute of limitations" (the Court assumes that the Defendants are once again referring to Cal. Civ. Code § 3439.09). Trustee correctly points out that § 548 is not applicable to actions brought pursuant to § 544.
Trustee relies upon Macedo v. Bosio to support his position that the statute of limitations under the California UFTA does not bar actions to recover fraudulent transfers under common law. 86 Cal. App. 4th 1044, 1051 (2001).
[T]he UFTA is not the exclusive remedy by which fraudulent conveyances and transfers may be attacked. They may also be attacked by, as it were, a common law action. If and as such an action is brought, the applicable statute of limitations is section 338(d) and, more importantly, the cause of action accrues not when the fraudulent transfer occurs but when the judgment against the debtor is secured (or maybe even later, depending upon the belated discovery issue).
Id. Trustee misreads Macedo and totally ignores other applicable law. Footnote four of Macedo directly addresses Trustee’s theory, and is worth quoting in full:
Appellant also cites Civil Code section 3439.09, subdivision (c) as supportive of this conclusion. That subdivision provides: "Notwithstanding any other provision of law, a cause of action with respect to a fraudulent transfer or obligation is extinguished if no action is brought or levy made within seven years after the transfer was made or the obligation was incurred." Although, as discussed below, we agree with appellant's basic premise
that section 3439.09, subdivision (a) is not the exclusive statute of limitations applicable to actions to set aside fraudulent transfers, we disagree that section 3439.09, subdivision (c) supports that conclusion. We think its meaning is far more limited, to wit, that even if belated discovery can be pleaded and proven as suggested in section 3439.09, subdivision (a), in any event the maximum elapsed time for a suit under either the UFTA or otherwise is seven years after the transfer.
(See Monastra v. Konica Business Machines, U.S.A.,
1:00 PM
Inc. (1996) 43 Cal.App.4th 1628, 1645)
We emphasize the words we have in the foregoing sentence because, at oral argument, respondents' counsel suggested that, if section 338(d) was an entirely "cumulative" statute of limitations, a common law action to set aside a fraudulent transfer could theoretically be brought scores of years after the transfer (assuming of course, that it took that long to bring the underlying action and obtain a judgment). We disagree; we think that, by its use of the term "[n]otwithstanding any other provision of law," the Legislature clearly meant to provide an overarching, all-embracing maximum time period to attack a fraudulent transfer, no matter whether brought under the UFTA or otherwise.
Id. at FN 4. While the footnote quoted above was merely dicta at the time Macedo was decided, it has subsequently been cited favorably and adopted by numerous courts. PGA W. Residential Ass'n, Inc. v. Hulven Int'l, Inc., 14 Cal. App. 5th at 171 ("we agree with two lower federal courts applying the UFTA that it is ‘well-considered dicta’"); Roach v. Lee, 369 F. Supp. 2d 1194, 1199 (C.D. Cal. 2005) ("it would be inordinate to bar CUFTA fraudulent transfer claims after seven years while allowing common law fraudulent transfer claims to be brought ‘scores of years after the transfer’"); In re JMC Telecom LLC, 416 B.R. 738, 743 (C.D. Cal. 2009) ("Appellant is correct that he can re-frame his allegations as a common law claim and that § 338(d) can then supplant the four-year or one-year-post-discovery statute of limitations in
§ 3439.09(a). Macedo v. Bosio, 86 Cal.App.4th 1044, 1051–52, 104 Cal.Rptr.2d 1 (2001). However, § 338(d) would still be unable to extend the statute of limitations beyond the seven years prescribed by § 3439.09(c).").
The Court will follow the well-reasoned and settled rule set forth in Macedo, PGA, JMC Telecom, and Roach. Regardless of Trustee’s attempt to recast this fraudulent transfer claim as a common law claim rather than a statutory claim, the seven-year statute of repose in Cal. Civ. Code
§ 3439.09(c) bars the claim because it applies "[n]otwithstanding any other
1:00 PM
provision of law," including the discovery rule. See In re Am. Hous. Found., 543 B.R. 245, 260 (Bankr. N.D. Tex. 2015) (The essential function of all statutes of repose is to abrogate the discovery rule. More to the point, a
statute of repose serves no purpose unless it has this effect"); In re EPD Inv. Co., LLC, 523 B.R. 680, 687 (B.A.P. 9th Cir. 2015) ("Although statutes of limitations are subject to equitable tolling, equitable tolling is inconsistent with statutes of repose. Several federal courts in California have held that Cal.
Civ. Code § 3439.09(c) is not subject to tolling [citing JMC Telecom, Roach, and Donell v. Keppers, 835 F. Supp. 2d 871, 878 (S.D. Cal. 2011)]).
The Motion is GRANTED as to the fourth claim for relief for the reasons stated above as well as the reasons explained for dismissing the third claim for relief because California law does not recognize a distinction between common law and statutory claims for fraudulent transfer after the statute of repose has expired.
IV. Conclusion
For the reasons stated above, the Motion is DENIED as to the first and second claims for relief. The motion is GRANTED as to the third and fourth claims for relief.
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Defendant(s):
Law Offices of Maro Burunsuzyan, Represented By
Cris A Klingerman
Maro Burunsuzyan Represented By
Cris A Klingerman
1:00 PM
Plaintiff(s):
DAVID K GOTTLIEB Represented By Peter A Davidson
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
1:00 PM
Adv#: 1:18-01056 GOTTLIEB v. Law Offices of Maro Burunsuzyan, A Prof. Corp. et
Docket 1
NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Defendant(s):
Law Offices of Maro Burunsuzyan, Pro Se Maro Burunsuzyan Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Peter A Davidson
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
1:00 PM
Docket 107
While the response of claimant Law Offices of Maro Burunsuzyan was untimely filed, the Court agrees that this dispute should be resolved in the related adversary action. This objection to claim will trail that action.
APPEARANCE REQUIRED
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
1:00 PM
Adv#: 1:18-01047 SP22, Inc., a California corporation et al v. Yurdumyan, an individual
Docket 1
NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Defendant(s):
Karmile Yurdumyan, an individual Pro Se
Plaintiff(s):
SP22, Inc., a California corporation Represented By
Allan Herzlich
Scott Parrish, an individual Represented By Allan Herzlich
Saeideh Parrish, an individual Represented By Allan Herzlich
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
Docket 28
Service: Proper. No opposition filed.
Property Address: 15050 Sherman Way, Unit 116, Van Nuys, CA 91405 First trust deed: $388,781.51 (U.S. Bank N.A.)
Second position lien: $90,000 (Wells Fargo Bank, N.A.) Third position lien: $24,235.41 (Parkwood Van Nuys HOA) Fair market value per appraisal: $295,000
APPEARANCE IS WAIVED. If written or oral opposition is presented at the hearing, the motion may be continued to the next Chapter 13 calendar.
Disposition: GRANTED.
PREVAILING PARTY SHOULD SUBMIT THE FORM ORDER, A BLANK COPY OF WHICH MAY BE DOWNLOADED FROM THE JUDGE’S FORMS SECTION ON THE COURT’S WEBSITE.
Debtor(s):
Anna Gevorkian Represented By Robert T Chen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 27
Service: Proper. No opposition filed.
Property Address: 15050 Sherman Way, Unit 116, Van Nuys, CA 91405 First trust deed: $388,781.51 (U.S. Bank N.A.)
Second position lien: $90,000 (Wells Fargo Bank, N.A.) Third position lien: $24,235.41 (Parkwood Van Nuys HOA) Fair market value per appraisal: $295,000
APPEARANCE IS WAIVED. If written or oral opposition is presented at the hearing, the motion may be continued to the next Chapter 13 calendar.
Disposition: GRANTED.
PREVAILING PARTY SHOULD SUBMIT THE FORM ORDER, A BLANK COPY OF WHICH MAY BE DOWNLOADED FROM THE JUDGE’S FORMS SECTION ON THE COURT’S WEBSITE.
Debtor(s):
Anna Gevorkian Represented By Robert T Chen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 23
Service: Proper. Opposition Filed.
Property Address: 13536 Beaver Street, Sylmar, CA 91342 First trust deed: $641,450.71 (JP Morgan Chase Bank, NA)
Second trust deed (to be avoided): $88,829.00 (Trinity Financial Services, LLC) Fair market value per Debtor’s appraisal: $480,000
Fair market value per Trinity’s appraisal: $675,000
Parties should advise whether they want an evidentiary hearing or to submit briefs and have this decided based on the written appraisals.
Debtor(s):
Angela Flores Toledo Represented By Nima S Vokshori Luke Jackson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 50
Service proper. No objection filed. Having reviewed Trustee's Application for Payment, and finding that the fees and costs are reasonable and necessary, approval is GRANTED. NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Movant(s):
Levene Neale, Bender, Yoo & Brill Represented By
Monica Y Kim
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Period: 2/14/2018 to 6/21/2018 Fees: $8087.50 Expenses: $0.00
Docket 49
Service proper. No objection filed. Having reviewed the Application for Payment filed by Levene, Neale, Bender, Yoo & Brill L.L.P., and finding that the fees and costs are reasonable and necessary, approval is GRANTED. NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Movant(s):
David Keith Gottlieb (TR) Represented By Monica Y Kim
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 2/27/18; 4/24/18, 5/22/18
Docket 26
Lender's request for an evidentiary hearing to determine whether this is debtor's residence is granted. This should occur before the expense is incurred bringing in appraisers and contractor. A date will be set at the hearing.
APPEARANCE REQUIRED
Debtor(s):
Norman Fathi Represented By Dana M Douglas
Movant(s):
Norman Fathi Represented By Dana M Douglas
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 114
APPEARANCE REQUIRED
Debtor(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Movant(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Rebeca Berolis Benitez Represented By Frank J Alvarado
Lauro Nick Pacheco Jr.
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/25/17, 9/26/17, 11/28/17, 1/23/18; 3/27/18; 4/24/18, 6/19/18
Docket 100
At the last hearing, it was indicated that Debtor had not in fact applied for a loan modification, and there was an issue regarding an agreement previously reached by the parties. Nothing new has been filed. What is the status of the settlement?
APPEARANCE REQUIRED
6/19/18 Tentative
APPEARANCE REQUIRED
4/24/18 Tentative
At the March 27 hearing, the parties indicated that this matter was settled, but they needed two weeks to close the deal. What is the status of the settlement?
APPEARANCE REQUIRED
3/27/18 Tentative
Nothing new has been filed in this case since the 1/23/18 hearing. This case expired over a year ago. Are parties cooperating to resolve this dispute, or is an evidentiary hearing needed?
APPEARANCE REQUIRED
1/23/18 Tentative
This matter has now been continued for six months. What progress has been made toward resolving this claim?
11:00 AM
APPEARANCE REQUIRED
11/29/17 Tentative
At 9/26 hearing, parties requested a continuance in order to allow time to work toward a deal. What is the status of this motion?
APPEARANCE REQUIRED
9/26/17 Tentative
At 7/25/17 hearing, debtor and Selene Finance indicated that they were working toward a deal. Nothing new has been filed. What is the status of this motion?
APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Movant(s):
Victoria Ruiz Represented By
Siamak E Nehoray Siamak E Nehoray Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/28/17, 5/23/17;l 7/25/17, 9/26/17, 11/28/17, 1/23/18; 3/27/18; 4/24/18, 6/19/18
Docket 89
APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 81
Nothing new has been filed. What is the status of the delinquency?
Trustee brings this motion to dismiss for expiration on the grounds that $2,525 remains to be paid. Debtor requests time to cure the delinquency.
APPEARANCE REQUIRED
Debtor(s):
Henry Gonzalez Silva Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17, 1/23/18; 2/27/18; 4/24/18, 5/22/18, 6/19/18
Docket 100
APPEARANCE REQUIRED
5/22/18 Tentative
At the April 24 hearing, the parties indicated that the sale went through on April 20, and the only issues remaining were a $600 payoff plus the amount approved on the fee applications.
APPEARANCE REQUIRED
4/24/18 Tentative
The Court granted Debtor’s Motion for Authority to Sell Real Property. A motion for relief from stay regarding the subject real property was filed on April 13. What is the status of the sale?
APPEARANCE REQUIRED
2/27/18 Tentative
It appears that Debtors are making progress toward selling the property.
1/23/18 Tentative
Nothing new has been filed. What is the status of Debtor’s attempt to sell property? APPEARANCE REQUIRED
11/28/17 Tentative
11:00 AM
Trustee moves to dismiss due to expiration of the plan and failure to pay remaining balance of $14,100. Debtor opposes the motion on the grounds that debtor is prepared to make the final payment with funds from the proceeds from the sale of her house. The house was listed in the past week, and debtor will file a motion to sell once a buyer is found. See Doc. No. 101.
Debtor(s):
Christine Grimes Shore Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/22/18, 6/19/18
Docket 84
NONE LISTED -
Debtor(s):
Charlene Decoff Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 76
NONE LISTED -
Debtor(s):
Robert Richard Loski Represented By Gregory M Shanfeld
Joint Debtor(s):
Sheila Faith Loski Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18; 4/24/18, 6/19/18
Docket 99
NONE LISTED -
Debtor(s):
Nedra Sneed Represented By
Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 29
NONE LISTED -
Debtor(s):
Raul Mendoza Jr. Represented By Rebecca Tomilowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 111
NONE LISTED -
Debtor(s):
Humberto Delgadillo Garcia Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 70
NONE LISTED -
Debtor(s):
Christa Franck Bretz Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 58
NONE LISTED -
Debtor(s):
Jared Garcia Canchola Represented By
L. Tegan Rodkey
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 68
NONE LISTED -
Debtor(s):
Jacqueline Desiree Landaeta Alvarez Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 59
NONE LISTED -
Debtor(s):
Farshid Tebyani Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 44
NONE LISTED -
Debtor(s):
Edgar Rufino Hernandez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 48
NONE LISTED -
Debtor(s):
William Michael Desmuke Sr Represented By Claudia L Phillips
Joint Debtor(s):
Priscilla Ann Desmuke Represented By Claudia L Phillips
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 23
NONE LISTED -
Debtor(s):
Anthony Mitchell Mangum Represented By Barry E Borowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18; 4/24/18, 5/22/18, 6/19/18
Docket 50
NONE LISTED -
Debtor(s):
Alicia Butterfield Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 63
NONE LISTED -
Debtor(s):
Georg Bruno Ehlert Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 4/24/18, 6/19/18
Docket 22
NONE LISTED -
Debtor(s):
Vladimir Fernado Macapagal Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Myla Rutaquio Macapagal Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 24
NONE LISTED -
Debtor(s):
Jessica Reyes Gaeta Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 4/24/18, 6/19/18
Docket 42
NONE LISTED -
Debtor(s):
Mario Alberto Cerritos Represented By Luis G Torres
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/27/18; 4/24/18, 6/19/18
Docket 31
NONE LISTED -
Debtor(s):
Yoddy Milton Muguertegui Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 82
NONE LISTED -
Debtor(s):
Irma Villalpando Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 105
NONE LISTED -
Debtor(s):
Allen Charles Mixon III Represented By Stella A Havkin
Joint Debtor(s):
Gladys Stennis Mixon Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 61
NONE LISTED -
Debtor(s):
Makedon Makarian Represented By
Rabin J Pournazarian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 24
NONE LISTED -
Debtor(s):
Uditha Neomal Fernando Represented By Jeffrey N Wishman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Blanca Michel Araceli Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Armenak Abraham Dilanian Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Adam Alvarado Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 125
Petition Date: December 18, 2015
Chapter: 11
Service: Proper. No opposition filed.
Property: 11232 & 11232 ½ Van Buren Ave., Los Angeles, CA 90044 Property Value: $ NA
Amount Owed: $ NA Equity Cushion: NA Equity: NA
Post-Petition Delinquency: NA
Debtor is not the borrower on the deed of trust held by Movant and has no interest in the property. Debtor has filed a nonopposition to the Motion. The Motion details a history of unauthorized transfers and five previous bankruptcy filings related to this property.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 4 (confirmation that no stay is in effect as to this property); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under
§ 362(d)(4)).
DENY under 11 U.S.C. § 362(d)(3) (regarding single asset real estate cases) and paragraph 8 (designated law enforcement officer may evict the Debtor).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Ignacio Ramirez Represented By
Anthony Obehi Egbase
9:30 AM
Movant(s):
Crystle Jane Lindsey Clarissa D Cu Robert Rosvall
W. Sloan Youkstetter
Wells Fargo Bank, N.A., as Trustee, Represented By
Kelly M Raftery
9:30 AM
fr. 2/4/16; 6/16/16, 7/28/16, 9/29/16, 11/17/16, 1/12/17, 4/26/17, 7/26/17; 10/18/17, 1/24/18,
2/14/18, 5/2/18
Docket 1
- NONE LISTED -
Debtor(s):
Ignacio Ramirez Represented By
Anthony Obehi Egbase
9:30 AM
Docket 184
Debtor's declaration states that all required payments have been made according with the plan. This is supported by the attached accounting.
No opposition filed.
Motion GRANTED. NO APPEARANCE REQUIRED.
Debtor(s):
Alfonso Fabian Gonzalez Represented By
M Jonathan Hayes
Joint Debtor(s):
Clara Gonzalez Represented By
M Jonathan Hayes
Movant(s):
Alfonso Fabian Gonzalez Represented By
M Jonathan Hayes M Jonathan Hayes
Clara Gonzalez Represented By
M Jonathan Hayes
9:30 AM
Docket 69
Service: Proper.
Property Address: 5106 Pacific Avenue, Marina Del Rey, CA 90292 First trust deed: $ 3,694,276.59
Second trust deed (to be avoided): $ 350,000 Fair market value per appraisal: $3,587,000
Disposition: GRANTED.
PREVAILING PARTY SHOULD SUBMIT THE FORM ORDER, A BLANK COPY OF WHICH MAY BE DOWNLOADED FROM THE JUDGE’S FORMS SECTION ON THE COURT’S WEBSITE.
Debtor(s):
Tours Incorporated, Inc. Represented By Mark E Brenner
Movant(s):
Tours Incorporated, Inc. Represented By Mark E Brenner
9:30 AM
fr. 10/27/11, 11/1/12, 5/23/13, 12/5/13,
4/24/14, 9/4/14, 2/26/15, 5/7/15, 11/5/15; 5/5/16,
11/16/16, 11/17/16, 4/6/17; 4/12/17, 12/13/17
Docket 1
APPEARANCE REQUIRED
Debtor(s):
David Schwartzman Represented By Victor A Sahn Mark S Horoupian Steven Werth
Movant(s):
David Schwartzman Represented By Victor A Sahn Mark S Horoupian Steven Werth
9:30 AM
Docket 0
APPEARANCE REQUIRED
Debtor(s):
Tatonka Acquisitions, Inc. Represented By Dana M Douglas
9:30 AM
fr. 7/3/14, 10/23/14, 1/22/15, 2/12/15, 4/2/15, 5/28/15; 7/30/15; 10/22/15; 3/31/16;
6/16/16, 10/6/16, 7/27/17, 1/24/18
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Freedom Films, LLC Represented By
M Jonathan Hayes
Movant(s):
Freedom Films, LLC Represented By
M Jonathan Hayes
11:00 AM
Docket 2107
Petition Date: 1/9/12 Converted to Ch. 7: 3/14/12
Service: Proper. No opposition filed.
Property: 44335 57th St., Lancaster, CA 93536 Property Value: not provided
Amount Owed: not provided Equity Cushion: unk.
Equity: unk.
Delinquency: not provided
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfer of the subject property to Debtor in 2009, and no payment received subsequent to the transfer.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); 8 (law enforcement may evict); 9 (relief under 362(d)(4)); and 10 (relief binding & effective for 180 days against any debtor).
DENY relief requested in paragraph 11, as such relief requires the filing of an adversary complaint under FRBP 7001.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
MOVANT IS ORDERED TO SERVE A COPY OF THE ENTERED ORDER
11:00 AM
ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
Debtor(s):
Owner Management Service, LLC Pro Se
Movant(s):
Wells Fargo Bank, NA Represented By Joseph C Delmotte Nancy L Lee
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Docket 45
Petition Date: 6/21/18
Chapter 13 plan confirmed: 11/9/17 Service: Proper. No opposition filed.
Property: 23700 Nadir St., Canoga Park, CA 91304 Property Value: $740,000 (per debtor’s schedules) Amount Owed: $136,623.68
Equity Cushion: 50.61% Equity: $119,516
Post-Petition Delinquency: $2,485.89 (1 payment of $495.77, 4 payments
$497.53)
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay). While Debtor is post-petition delinquent, there is sufficient equity to protect Movant's interest. Has the option of an APO been explored?
APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
John A, Gillett Represented By Julie J Villalobos
Joint Debtor(s):
Pearlene Gillett Represented By Julie J Villalobos
11:00 AM
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
ACAR LEASING LTD
DBA GM FINANCIAL LEASING
Docket 57
Petition Date: 06/23/2017 Chapter: 7
Service: Proper. No opposition filed. Property: 2017 GMC Acadia Property Value: N/A – Leased Amount Owed: $ 15,764.22
Equity Cushion: N/A – Leased Equity: N/A – Leased Delinquency: $ 990.33
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Inception Media Group, LLC Represented By Ian Landsberg
Movant(s):
ACAR Leasing LTD dba GM Represented By Sheryl K Ith
Trustee(s):
Diane C Weil (TR) Represented By
11:00 AM
Sonia Singh John N Tedford
11:00 AM
Docket 19
This will be granted with the qualifications detailed in the trustee's limited opposition.
A late opposition was filed on July 30 by the Bremer Whyte Brown firm. They state that they represent Cho, but do not state in what capacity. They have not made an appearance in this court. The basis for their opposition is unclear. The trustee should appear to respond to anything raised at the hearing.
Debtor(s):
Harold H Choe Represented By Young K Chang
Movant(s):
Jose Hernandez Represented By Timothy L Joens
Viviana R Valle Represented By Timothy L Joens
Trustee(s):
Diane C Weil (TR) Represented By Anthony A Friedman
11:00 AM
Docket 28
Petition Date: 02/15/2018
Chapter 13 plan confirmed: 7/23/18
Service: Proper; co-debtor served. No opposition filed. Property: 2010 Lexus LS460
Property Value: $15,000.00 Amount Owed: $ 21,694.13 Equity Cushion: 0%
Equity: $0.00
Delinquency: $ 3,022.80 (4 payments of 755.70)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 5 (relief from co- debtor stay); and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Rhonda Denise Hawkins Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
Docket 24
- NONE LISTED -
Debtor(s):
Anna Gevorkian Represented By Robert T Chen
Movant(s):
U.S. Bank National Association, as Represented By
Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 10
Case dismissed on June 19, 2018. Movant re-filed the Motion for Relief from Stay in Debtor's most recent case, filed jointly with his spouse Jane Silber
18-11545-MT, which is set for hearing on 8/29/18.
Motion is DENIED as moot. Movant to lodge order within 7 days. APPEARANCES WAIVED ON 8/1/18
Debtor(s):
Ian Ellis Silber Represented By Henry Glowa
Movant(s):
Kurt and Irene Silber Represented By Timothy R Hanigan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
NISSAN MOTOR ACCEPTANCE CORPORATION
Docket 13
Petition Date: 05/11/2018 Chapter: 7
Service: Proper. No opposition filed. Property: 2017 Nissan Rogue Property Value: $ 16,000.00
Amount Owed: $ 30,426.69 Equity Cushion: 0%
Equity: $0.00 Delinquency: $ 2,326.30
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Virginia D. Navarro Represented By Jennifer Ann Aragon
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 9
Petition Date: 05/17/2018 Chapter: 7
Service: Proper. No opposition filed. Property: 2012 Honda Odyssey Property Value: $ 13,540.00
Amount Owed: $ 17,890.43 Equity Cushion: 0%
Equity: $0.00 Delinquency: $ 928.97
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Luis Napoleon Perez Represented By Daniel F Jimenez
Movant(s):
Fifth Third Bank Represented By Austin P Nagel
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
Docket 12
Petition Date: 06/27/2018 Chapter: 7
Service: Proper. Opposition filed.
Property: 14942 Gault Street, Los Angeles, CA 91405 Property Value: $ 819,000.00 (per debtor’s schedules) Amount Owed: $ 811,924.20
Equity Cushion: 0% Equity: $0.00
Post-Petition Delinquency: $ 56,704.89 (18 payments of $ 3,128.46)
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code.
2923.5).
Debtor filed a limited opposition to the Motion, requesting that no lock out, foreclosure or repossession take place before 10/03/2018. Debtor asserts movant accepted the Debtor into a short sale process and the foreclosure date will take place on 10/03/2018.
Is Movant amenable to having relief granted, but to not hold a foreclosure sale prior to October 3, 2018?
APPEARANCE REQUIRED
Debtor(s):
Lizette Milian-Fiedler Represented By
R Grace Rodriguez
11:00 AM
Movant(s):
U.S. BANK NATIONAL Represented By Darlene C Vigil
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
fr. 7/18/18
Docket 26
- NONE LISTED -
Debtor(s):
Lisandra Fuerte Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
WILMINGTON SAVINGS FUND SOCIETY FSB
fr. 6/20/18, 7/18/18
Docket 33
At the previous hearing, the parties requested a continuance to pursue an APO.
What is the status of those efforts? APPEARANCE REQUIRED
6/20/18 Tentative
Petition Date: 09/28/2017 Service: Proper. Opposition filed.
Property: 4991 Medina Drive, Woodland Hills, California 91364 Property Value: $ 1,287,000.00 (per debtor’s schedules) Amount Owed: $ 1,217,708.52
Equity Cushion: 0% Equity: $117,098.00
Post-Petition Delinquency: $28,049.04 (8 payments of $3,506.13; $0.00 in post- petition advances; $0.00 in attorneys’ fees; less $0.00 in suspense account or partial paid balance)
Debtor's response states that he is seeking an APO to cure any post-petition delinquency.
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 13 (If relief from stay is not granted, adequate protection shall be ordered).
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Norman Everett Ross Jr. Represented By Barry E Borowitz
Joint Debtor(s):
Edna Henderson Ross Represented By Barry E Borowitz
Movant(s):
Wilmington Savings Fund Society, Represented By
Kelsey X Luu
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 4/18/18, 5/23/18, 6/20/18, 7/18/18
Docket 85
At the previous hearing, parties requested a hearing to allow creditor time to work out the numbers. Nothing new has been filed. What is the status of this motion?
APPEARANCE REQUIRED
6/20/18 Tentative
Nothing new has been filed. Has the payment discrepancy been resolved?
5/23/18 Tentative
This hearing was continued from April 18, 2018, to allow the parties to discuss a resolution to Debtor's asserted payment discrepancy. What is the status of this Motion?
APPEARANCE REQUIRED
4/18/18 Tentative
Petition Date: 01/18/2016 Chapter: 13
Service: Proper. Opposition filed on 4/4/18. Property: 13338 Friar Street, Los Angeles, CA 91401 Property Value: $560,000 (per debtor’s schedules) Amount Owed: $582,644.22 (per RFS motion)
Equity Cushion: N/A Equity: $0.
Post-Petition Delinquency: $13,203.19 (5 payments of $2,686.87, $88 in postpetition advances or other charges, $0.46 in attorneys’ fees and costs, less $319.62)
11:00 AM
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the motion, arguing that more payments have been made to Movant than the Motion accounts for, attaching canceled checks as Exhibit A. Additionally, Debtor argues that the Property is necessary for an effective reorganization because the Property is Debtor’s primary residence. Debtor also requests to enter into a repayment agreement with Movant, by curing remaining delinquencies through an Adequate Protection Order.
APPEARANCE REQUIRED.
Debtor(s):
Anaida Prazyan-Vartanyan Represented By Kevin T Simon
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01095 Nazaryan v. Bag Fund, LLC et al
fr. 1/24/18, 2/14/18
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Hermine Nazaryan Represented By Lloyd D Dix
Defendant(s):
Bag Fund, LLC Pro Se
Leo Fasen Pro Se
Vincent J Quigg Pro Se
Michael Waldren Pro Se
Plaintiff(s):
Hermine Nazaryan Represented By Lloyd D Dix
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Adv#: 1:18-01065 People of the State of California, by and through v. Fishback
Docket 1
- NONE LISTED -
Debtor(s):
Barton Wayne Fishback Represented By Matthew Abbasi
Defendant(s):
Barton Wayne Fishback Pro Se
Joint Debtor(s):
Carol Fishback Represented By Matthew Abbasi
Plaintiff(s):
People of the State of California, by Represented By
Jacquelyn H Choi
11:00 AM
Docket 63
- NONE LISTED -
Debtor(s):
Georg Bruno Ehlert Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 37
Service proper. No objection filed. Having reviewed Trustee's final report, and finding that the fees and costs are reasonable and necessary, approval is GRANTED. NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Notis Enterprises, Inc. Represented By Marc Weitz
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 0
Service proper. No objection filed. Having reviewed Trustee's final report, and finding that the fees and costs are reasonable and necessary, approval is GRANTED. NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Juliana Njeim Represented By Kevin T Simon
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 0
Service proper. No objection filed. Having reviewed Trustee's final report, and finding that the fees and costs are reasonable and necessary, approval is GRANTED. NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Ricardo Mendez Represented By David H Chung
Trustee(s):
Nancy J Zamora (TR) Represented By
Michelle A Marchisotto
11:00 AM
Docket 0
The court vacates its order to show cause. While this case was not handled properly, the court has now noted that it was done pro bono and there are no fees to be disgorged. Counsel is commended for doing the case pro bono and is encouraged to attend one of the pro bono training seminars periodically given by Public Counsel so that his assistance can be more effective. The court notes that the debtor still must file her financial management course certificate or she will not receive a discharge of debts.
Debtor(s):
Misty Ann Cicero Represented By Kevin Liu
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
for order authorizing sale of real property at 3655 Elm Ave Long Beach, Ca 90808: A) Outside the ordinary course
of business B) Free and clear of specified lines, Encumbrances and Intrest; C) Subject to overbids;
D) For a determination of good faith purchasers pursuant to section 363 (m) E) Authorizing disbursement of proceeds; and F) Waiving the 14-day stay imposed by FRBP 6004
Docket 132
- NONE LISTED -
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
9:00 AM
Docket 7
- NONE LISTED -
Debtor(s):
Vanessa Parada Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 7
- NONE LISTED -
Debtor(s):
Min Ho Song Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 10
- NONE LISTED -
Debtor(s):
Richard C Barrett Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 343
11 U.S.C. § 1129(a)(1)
Section 1129(a)(1) requires that a plan may only be confirmed if it complies with Sections 1122 and 1123. See Cane v. Johns-Manville Corp., 843 F.2d 636, 648-49 (2nd. Cir. 1988). The plan complies with Section 1129(a)(1) as follows:
Classification. 11 U.S.C. § 1122(a) provides that "a plan may place a claim or interest in a particular class only if such claim or interest is substantially similar to the other claims or interests of such class." Section 1122(a) also provides for the creation of an administrative convenience class.
OK. Class 4C is an unsecured claim held by Debtor’s Principal, Mr. Moser (a statutory insider under § 101(31)(B)(i) or (ii). Moser paid certain unsecured claims which he had previously guaranteed, and the creditors then assigned their claim against Debtor to Moser.
"To determine whether claims are ‘substantially similar’ to other claims in the same class, as required by bankruptcy statute governing classification of claims in proposed Chapter 11 plan, bankruptcy judges must evaluate the nature of each claim, i.e., the kind, species, or character of each category of claims." In re Rexford Properties LLC, 558 B.R. 352, 361 (Bankr. C.D. Cal. 2016).
Moser’s claim is properly classified and there has been no objection thereto.
Same treatment for members of a class: 11 U.S.C. §1123
§ 1123(a) –OK. The plan appears to satisfy all the requirements of
§ 1123(a):
§ 1123(a)(1) – OK. Plan designates classes of claims and interests, other than administrative or tax claims. The plan leaves unclassified administrative claims, estimated at $150,000;
9:30 AM
§ 1123(a)(2) – OK. Plan specifies any class of claims or interests
that are not impaired under the Plan. The class 2 secured creditor is being paid pursuant to the approved settlement and the cash collateral order (Doc. 126). There is no class 1 or 3. Class 4A and 4B are unimpaired.
§ 1123(a)(3) – OK. Plan specifies the treatment of all claims/interests impaired under the plan. Only Class 4C is impaired, and the claim held by Mr. Moser will not be paid until after all other unsecured claims.
§ 1123(a)(4) – OK. Each class provides for the same treatment of each claim classified in that particular class, "unless the holder of a particular claim or interest agrees to a less favorable treatment of such particular claim or interest." Class 4C is receiving less favorable treatment than the other class 4 creditors, but Mr. Moser is presumably agreeing to such treatment.
§ 1123(a)(5) – This section requires that the plan provides adequate means for its implementation. According to the disclosure statement, it anticipated having no less than $200,000 by the effective date to fund the payments required on the effective date. The Plan, Exhibit A, estimates $150,000 in administrative expenses: $125,000 to Carolyn Dye and estimated $25,000 to LEA Accountancy, LLP (both to be paid upon Court approval). The monthly operating reports indicate that these payments may be delayed beyond the effective date. Have the professionals agreed to work with the Debtor on this issue so that feasibility is not an issue?
§ 1123(a)(6) – OK. This section requires that a plan for a corporate debtor provide for the inclusion in the debtor’s charter of a provision prohibiting the issuance of non-voting equity securities and, as to the several classes of securities possessing voting power, an appropriate distribution of such power among such classes. The required amendment is attached to the Plan as Exhibit C, but the exhibit is unsigned and should be signed.
§ 1123(a)(7) – OK. This provision requires that the plan contain only provisions that are consistent with the interests of creditors and equity security holders and with public policy with respect to
9:30 AM
the manner of selection of any officer, director, or trustee under the plan and any successor to such officer, director, or trustee.
Management is not changing under this plan.
§ 1123(a)(8) – N/A This section requires that in cases where debtors are individuals, that the plan provide for payment to creditors under the plan of all or such portion of earnings from personal services performed by the debtor after the commencement of the case or other future income of the debtor as is necessary for the execution of the plan. Debtor is not an individual.
§ 1123(b) – OK. It appears that the plan includes some of the permissive provisions of § 1123(b) as follows:
§ 1123(b)(1) – OK. Debtor’s plan classifies some classes as impaired, as discussed above.
§ 1123(b)(2) – MAYBE. This section provides for the assumption, rejection, or assignment of executory contracts. The plan provides for Debtor to assume four leases, as indicated in exhibit B to the Plan. The plan indicates that all arrearages on the lease will be paid on or before May 15, 2017; however, a footnote to two of the leases indicates that the arrearages on two of the leases are included in the Class 4B total. The disclosure statement claims that all arrearages on leases will be paid as of the effective date—is that still correct? Please advise at confirmation the status of arrearages on the leases, and whether Debtor is capable of paying any remaining arrearages on the effective date (see Plan, 6:15-24).
§ 1123(b)(3) – OK. This section provides for the (1) settlement or adjustment of any claim or interest belonging to the debtor or estate; or (2) the retention and enforcement by the debtor, by the trustee, or by a representative of the estate appointed for such purpose, of any claim or interest. Debtors’ plan does not indicate any actions owned by the Debtor.
§ 1123(b)(4) – OK. This section specifies that a plan may provide for the sale of all or substantially all of the property of the estate, and the distribution of the proceeds of such sale among holders of claims or interests. The plan indicates two separate paths: either a liquidation of substantially all Debtor’s assets would occur, and all creditors would be paid off within a specified period of time, or
9:30 AM
else Debtor will continue operating and Debtor would make quarterly payments accruing at $10,000 per month to classes 4A and 4B.
§ 1123(b)(5) – OK. This Section allows a plan to modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims. Secured creditor has stipulated to treatment. Other alleges secured creditors, Conmercium, Inc. and Matthew Talbert, have been fully satisfied and are not treated by the plan.
§ 1123(b)(6) – OK. The plan is consistent with the Code unless otherwise indicated in this memo.
§ 1123(c) – N/A. This section discusses cases concerning individuals where a plan is proposed by an entity other than the individual. Debtor is not an individual.
§ 1123(d)—OK. If it is proposed in a plan to cure a default the amount necessary to cure the default shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law.
11 U.S.C. § 1129(a)(1)-(2) - Section 1129(a)(1) - (2) requires that a plan may only be confirmed if the plan, and the plan proponent, comply with Sections 1121, 1125 and 1127. See In re Texaco, Inc., 84 B.R. 893, 906-07 (Bankr. S.D.N.Y. 1988); In re
Downtown Inv. Club III, 89 B.R. 59, 65 (9th Cir. B.A.P. 1988). The plan complies with Section 1129(a)(2) as follows:
OK. It appears that Debtor has complied with Sections 1121, 1125, and 1127.
11 U.S.C. § 1121 – OK. Plan complies with section 1121 (regarding exclusivity of filing a plan) because the Debtor is the plan proponent.
11 U.S.C. § 1125 – OK. On April 12, 2018, the Court held a hearing where it approved the Debtor’s Disclosure Statement (Doc. 353) as containing adequate information. Debtor solicited votes on the plan after the disclosure statement was approved, and in soliciting acceptances transmitted an approved disclosure statement.
9:30 AM
11 U.S.C. § 1127 –OK. This is Debtor’s only chapter 11 plan and if the Court finds that it complies with Sections 1122 and 1123, then debtors’ pre-confirmation modifications comply with § 1127.
11 U.S.C. § 1129(a)(3) - Plan proposed in good faith and not by forbidden means
OK. "If no objection is timely filed, the court may determine that the plan has been proposed in good faith and not by any means forbidden by law without receiving evidence of such issues." F.R.B.P. 3020(b)(2). No objection to plan confirmation has been timely filed.
11 U.S.C. § 1129(a)(4) - Approval of reasonable fees for services performed
OK. Here, the Plan requires Court approval of costs and expenses according to exhibit A-1 to the Plan.
11 U.S.C. § 1129(a)(5) - Disclosure of post-confirmation management/affiliates
OK. This section requires that a Plan must disclose the identity and affiliations of any individual proposed to serve, after confirmation, as director, officer or voting trustee of reorganized debtor. Debtor disclosed that the 98% shareholder, Ted Moser, will continue to serve as CEO. The plan details how Mr. Moser will be compensated in detail (see page 10 of the Plan).
11 U.S.C. § 1129(a)(6) - Approval by governmental regulatory commission
N/A. This section is not applicable because the debtor is not subject to the jurisdiction of any regulatory commission regarding "rates."
11 U.S.C. § 1129(a)(7) - Comparison to chapter 7 liquidation;
OK. This Section requires that with respect to each impaired class of claims or interest, each holder of a claim or interest in such class has either (1) accepted the plan, or (2) will receive/retain on account of such claim or interest property of a value, as, of the effective date of the plan, that is not less than the amount that such holder would receive or retain if the debtor were liquidated under chapter 7 of the title on such date. Each holder of a claim has either accepted the plan or will
9:30 AM
receive 100% under the plan.
Class 1. N/A
Class 2. This is a secured claim—a credit line—of Bank of the West. The parties signed an agreement, which was subsequently
approved by the Court. This class is unimpaired, as the Plan leaves unaltered the creditor’s legal, equitable, and contractual rights.
§ 1124(1). No ballot was received.
Class 3. While the Plan language itself seems to state that there are no priority claims (Plan, Page 3), Exhibit A, which shows the treatment of each individual creditor, specifies treatment for priority claims held by Harridge Lease ($24,787 claim) and Los Angeles County ($13,847 claim). Both of these priority claimants will be paid in full under the plan.
Class 4. This is the Unsecured Creditor class, and it is in turn divided into three sub-classes:
Class 4A: Two disputed creditors’ claims held by Robert Hartwig and Philip Fiori. This class will receive 100% under the plan.
Class 4B: All other general unsecured claims other than those held by Ted Moser. This Class will receive 100%
Class 4C: Ted Moser, the Principal. This class is possibly not receiving 100%, but has (presumably) accepted the plan.
11 U.S.C. § 1129(a)(8) - Each class has accepted or is not impaired
OK. This section requires that with respect to each claim or interest, the class has either accepted the Plan, or the class is not impaired under the Plan. See the descriptions of the classes above; all have accepted the plan or are receiving 100%.
11 U.S.C. § 1129(a)(9) - Timely payment of priority claims
UNKNOWN. The plan must provide for timely payment of priority claims on the effective date unless such claimants have agreed to a different treatment. Administrative claims of estate professionals will allegedly be paid on the effective date, but that is likely infeasible. Have the professionals agreed to a different treatment of their claims?
11 U.S.C. § 1129(a)(10) - Acceptance by at least one impaired class.
9:30 AM
1) OK. The only impair class is 4C, an unsecured claim held by Debtor’s principal. Class 4C has been voluntarily "deferred."
11 U.S.C. § 1129(a)(11) – Plan Feasible & Not likely to be followed by liquidation/reorganization
OK. Once again, Debtor will likely not have as much cash on hand as anticipated on the effective date, and the debtors are receiving less income than they anticipate in their monthly projections, but it appears they have the flexibility to make this work over time.
K) 11 U.S.C. § 1129(a)(12) - Payment of 28 U.S.C. §1930 fees
OK. This Section requires that all fees payable pursuant to 28 USC 1930, as determined by the Court at a hearing on confirmation of a plan, have been paid or the plan provides for the payment of all such fees on the effective date of the plan. The Plan states that all such payments will be made in accordance with that statute.
11 U.S.C. § 1129(a)(13) - Continuation of retiree benefits
It is unclear whether this section is applicable (there are no apparent retiree benefits, but the plan does not explicitly address it). Please address this issue at the confirmation hearing.
11 U.S.C. § 1129(a)(14) - Domestic support obligation
N/A. Debtor has no domestic support obligations.
11 U.S.C. § 1129(a)(15) – N/A. Debtor is not an individual, so the best efforts and commitment period requirements do not apply.
11 U.S.C. § 1129(a)(16) - Transfers of property of nonprofit entity in accordance with law
N/A. This section does not apply to Debtor because Debtor is not a nonprofit. 7 Collier on Bankruptcy ¶ 1129.02[16].
11 U.S.C. § 1129(b)(1) provides "Notwithstanding section 510(a) of this title, if all of the applicable requirements of subsection (a) of this section other than paragraph (8) are met with respect to a plan, the court, on request of the proponent of the plan, shall confirm the plan notwithstanding the requirements of
9:30 AM
such paragraph if the plan does not discriminate unfairly, and is fair and
equitable, with respect to each class of claims or interests that is impaired under, and has not accepted, the plan." –OK.
All classes have accepted or are not impaired.
Q) 11 U.S.C. § 1129(b)(2) provides
For the purpose of this subsection, the condition that a plan be fair and equitable with respect to a class includes the following requirements:
With respect to a class of secured claims, the plan provides--
(I) that the holders of such claims retain the liens securing such claims, whether the property subject to such liens is retained by the debtor or transferred to another entity, to the extent of the allowed amount of such claims; and
(II) that each holder of a claim of such class receive on account of such claim deferred cash payments totaling at least the allowed amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder's interest in the estate's interest in such property;
for the sale, subject to section 363(k) of this title, of any property that is subject to the liens securing such claims, free and clear of such liens, with such liens to attach to the proceeds of such sale, and the treatment of such liens on proceeds under clause (i) or (iii) of this subparagraph; or
for the realization by such holders of the indubitable equivalent of such claims.
With respect to a class of unsecured claims--
the plan provides that each holder of a claim of such class receive or retain on account of such claim property of a value, as of the effective date of the plan, equal to the allowed amount of such claim; or
the holder of any claim or interest that is junior to the claims of such class will not receive or retain under the plan on account of such junior claim or interest any property, except that in a case in which the debtor is an individual, the debtor may retain property included in the estate under section 1115, subject to the requirements of subsection (a)(14) of this section.
9:30 AM
With respect to a class of interests--
the plan provides that each holder of an interest of such class receive or retain on account of such interest property of a value, as of the effective date of the plan, equal to the greatest of the allowed amount of any fixed liquidation preference to which such holder is
entitled, any fixed redemption price to which such holder is entitled, or the value of such interest; or
the holder of any interest that is junior to the interests of such class will not receive or retain under the plan on account of such junior interest any property.
Secured claims – OK. If the plan impairs the claim of the secured class, then the treatment of the claim must be fair and equitable in accordance with 11
U.S.C. § 1129(b)(2) to be crammed down on an impaired class that rejects the plan. All secured creditors have accepted the plan or are unimpaired (I’m technically not sure whether the agreement by Bank of the West constitutes acceptance of the plan, but I suspect that their rights under that Agreement are the only contractual rights they have, which I believe makes them unimpaired as long as they are treated in accordance with the agreement.
Unsecured claims – OK. Unsecured creditors have voted in favor of the plan or are unimpaired. While Class 4C technically did not vote, Mr. Moser clearly accepts the plan.
Other than the feasibility issues highlighted above—specifically regarding the ability to pay administrative fees and lease deficiencies on the petition date—the plan may be confirmed. It is also unclear what the status is of any arrearage on Debtor’s real property lease, which is supposed to be paid on the effective date (Plan 5:1; 6:15-24). There are also two trucks being leased from Ryder, on which the pre-petition deficiencies were to be paid on the petition date. Plan 6:15-24.
Debtor(s):
Picture Car Warehouse Inc Represented By Carolyn A Dye
9:30 AM
fr. 6/16/16, 2/9/17; 4/12/17, 7/12/17; 9/27/17, 12/13/17; 3/28/18, 5/23/18
Docket 1
- NONE LISTED -
Debtor(s):
Picture Car Warehouse Inc Represented By Carolyn A Dye
11:00 AM
fr. 3/21/18, 5/16/18, 6/13/18
Docket 78
This matter has been continued twice since the first hearing on March 21, 2018. At the last hearing on June 13, 2018, the parties represented that Debtor has secured refinancing. On July 23, 2018, Debtor filed a Motion for Authority to Refinance Real Property (ECF doc. 95). What is the status of this Motion?
APPEARANCE REQUIRED.
3/21/18 Tentative Petition Date: 08/13/2012 Chapter: 13
Service: Proper. Opposition filed.
Property: 20637 Wells Drive, Woodland Hills, CA 91364 Property Value: $714,000 (per debtor’s schedules) Amount Owed: $772,540.69 (per RFS motion)
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency: $308,087.21 (10 payments of $4,410.38; 5 payments of
$8,350.33; 16 payments of $8,483.22; 8 payments of $8,644.15; $17,761.90 in post- petition advances; $1,031 in attorneys’ fees; less $1,445.86 in suspense account or partial paid balance)
Movant requests relief under 11 U.S.C. 362(d)(1). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5).
Debtor filed a late opposition. APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Elizabeth Maybalian Represented By Raymond H. Aver
Movant(s):
COMPASS BANK, its successors Represented By
Nichole Glowin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 67
Petition Date: 7/23/13
Chapter 13 plan confirmed: 12/2/13 Service: Proper. No opposition filed.
Property: 6329 Blucher Ave., Van Nuys, CA 91411
Property Value: $230,000 (per Order on Motion to Avoid Lien, ECF doc. 21) Amount Owed: $220,676
Equity Cushion: 4.1% Equity: $0.00.
Post-confirmation Delinquency: $5,551.73 (three payments of $1,522.26, attorney's fees of $1,031, less suspense account balance of $46.05).
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
stay). Movant alleges in the Motion that the last payment received was on or about April 16, 2018. Given that there is some equity here, have the parties discussed an APO?
APPEARANCE REQUIRED
Debtor(s):
Kevin Pike Represented By
Todd J Roberts
Movant(s):
Nationstar Mortgage, LLC. Represented By Jarred Ruggles
11:00 AM
Trustee(s):
Nancy L Lee
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 37
Petition Date: 7/5/17 Chapter 13 plan confirmed:
Service: Proper; co-debtor served. Opposition filed 8/1/18. Property: 3700 & 3700 1/2 Arlington Ave., Los Angeles, CA 90018 Property Value: $612,761 (per debtor’s schedules)
Amount Owed: $484,253 Equity Cushion: 21.1% Equity: $128,508
Post-confirmation Delinquency: $8,335.24 (2 payments of $2,788.62; one payment of $3,045.01; less suspense account balance of $287.01)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment receivced for this debt was on or about June 20, 2018.
Debtor opposes the Motion, arguing that she has made more payments than are accounted for in the Motion. Because this is an income-producing property, Debtor argues that it is necessary for an effective reorganization, and would like to cure any remaining deficiency in an APO.
Is Movant amenable to Debtor's request for an APO, if necessary? APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Thelma L. Gatlin-Wilson Represented By Kevin T Simon
Movant(s):
U.S. Bank Trust, N.A., as Trustee for Represented By
Merdaud Jafarnia Madison C Wilson Ashlee Fogle Nancy L Lee
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/16/18, 6/20/18, 7/18/18
Docket 31
At the previous hearing, the parties requested a hearing to work out the terms of an APO. What is the status of parties’ efforts?
APPEARANCE REQUIRED
6/20/18 Tentative
Nothing new has been filed. Have the parties made progress on an APO? APPEARANCE REQUIRED
5/16/18 Tentative Petition Date: 9/27/17 Chapter: 13
Service: Proper. Opposition filed.
Property: 3750 Sunswept Dr., Studio City, CA 91604 Property Value: $600,000 (per debtor’s schedules) Amount Owed: $355,558.19 (per RFS motion) Equity Cushion: 33%
Equity: $56,886
Post-Petition Delinquency: $7,629.31
Debtor filed an opposition to the motion on the grounds that more payments have been made which are not accounted for in the motion. Debtor would like to cure any remaining delinquency through an APO.
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 6 (waiver of the 4001(a)(3) stay).
11:00 AM
APPEARANCE REQUIRED
Debtor(s):
Lynne Suzanne Boyarsky Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
NISSAN MOTOR ACCEPTANCE CORPORATION
Docket 35
- NONE LISTED -
Debtor(s):
Francisco Guerrero Represented By Kevin T Simon
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
FORD MOTOR CREDIT COMPANY LLC
Docket 30
- NONE LISTED -
Debtor(s):
Marcela Navarrete Melendrez Represented By Raymond Perez
Movant(s):
Ford Motor Credit Company LLC Represented By
Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Heather Lynn Brezny Represented By
Richard A Brownstein
Movant(s):
AIMCO Malibu Canyon, LLC Represented By
Linda T Hollenbeck
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 5
On July 16, 2018, Debtor filed this chapter 13 case. Debtor has one previous bankruptcy case that was dismissed a short time ago. The dismissed case,
17-13163-VK, was a pro se chapter 13 filed on November 28, 2017 and dismissed on December 18, 2017 for failure to file case commencement documents.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case. Debtor contends the previous case was filed and allowed to be dismissed at the advice of her real estate broker, William Marquez, who was allegedly attempting to negotiate a loan modification. Debtor now apparently seeks to pursue loan modification through the Court’s Loan Modification Program. Debtor has filed schedules and a plan in this case. Debtor therefore claims that any presumption of bad faith is overcome as to all creditors.
No opposition has been filed. The Motion is GRANTED. NO APPEARANCE REQUIRED.
Debtor(s):
Claudia Victoria Gonzalez Represented By Giovanni Orantes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 8
On July 24, 2018, Debtor filed this chapter 13 case. Debtor has one previous bankruptcy case that was dismissed a short time ago. The dismissed case,
13-17348-VK, was a chapter 13 filed on November 28, 2017 and dismissed on April 11, 2018 after Debtor lost her job and was unable to continue making payments in the 50th month of the plan.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case. Debtor intends to obtain family support toward making the mortgage payments on her home. It appears that Debtor is unemployed. While no schedule I was attached to the petition, Debtor’s means test lists $2,750 per month in oncome from "rental or other real property" as well as $725 per month from unemployment compensation
No opposition has been filed. The Motion is GRANTED.
APPEARANCE REQUIRED DUE TO SHORTENED TIME. RULING MAY BE MODIFIED AT HEARING
Debtor(s):
Grace Daniels Cervantes Represented By
R Grace Rodriguez
Movant(s):
Grace Daniels Cervantes Represented By
R Grace Rodriguez
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01004 Ballout v. Sarieddine
Docket 19
Having reviewed the dockets for both the adversary and bankruptcy cases, and finding that this matter has settled, this pretrial conference will be continued to August 29, 2018 at 11 a.m., to allow time for the Motion to Approve Compromise under Rule 9019 to be resolved.
APPEARANCES WAIVED ON 8/8/18.
Debtor(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
Defendant(s):
Mike Sarieddine Represented By Daniel J King Daniel J King
Plaintiff(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01067 Laaly et al v. Farkhondeh et al
to 523 and 727 of the Bankruptcy Code
Docket 1
- NONE LISTED -
Debtor(s):
Hamid Farkhondeh Pro Se
Defendant(s):
Hamid Farkhondeh Pro Se
Mary Dadyan Pro Se
Joint Debtor(s):
Mary Dadyan Pro Se
Plaintiff(s):
Noushin Laaly Represented By Stella Rafiei
Kourosh Laaly Represented By Stella Rafiei
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01068 Gregorio v. PHEAA-Pennsylvania Higher Education et al
Docket 1
Discovery cut-off (all discovery to be completed*):
Expert witness designation deadline (if necessary):
Case dispositive motion filing deadline (MSJ; 12(c)):
Pretrial conference:
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil Procedure.
Meet and Confer
Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
Discovery Motion Practice:
All discovery motions must be filed within 30 days of the service of an objection, answer, or response which becomes the subject of dispute or the passing of a discovery due date without response or production, and only after counsel have met
11:00 AM
and conferred and have reached an impasse with regard to the particular issue.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
Jerald Angelo Gregorio Pro Se
Defendant(s):
PHEAA-Pennsylvania Higher Pro Se
Windham Professionals Pro Se
ECMC Educational Credit Pro Se
Plaintiff(s):
Jerald Angelo Gregorio Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Fees: $47404.31 Expenses: $0.00
Docket 136
The Court approves Counsel’s final fee application in the amount of $28,000, the amount agreed to by Counsel and chapter 7 trustee Nancy Zamora in the Stipulation re Allowance and Payment of Fees and/or Expenses (ECF doc. 140) and approved by the Court (ECF doc. 142).
APPEARANCES WAIVED ON 8/8/18.
MOVANT TO LODGE ORDER IN ACCORDANCE WITH THIS RULING WITHIN 7 DAYS.
Debtor(s):
Koroush Eissakharian Represented By Stephen L Burton
Movant(s):
Law Offices of Nico N. Tabibi, APC Represented By
Nico N Tabibi
Trustee(s):
Nancy J Zamora (TR) Represented By Lindsey L Smith
Levene Neale Bender Rankin & Brill LLP Edward M Wolkowitz
Jeffrey S Kwong Nico N Tabibi
11:00 AM
Docket 133
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested. APPEARANCES WAIVED ON 8/8/18.
Debtor(s):
Koroush Eissakharian Represented By Stephen L Burton
Trustee(s):
Nancy J Zamora (TR) Represented By Lindsey L Smith
Levene Neale Bender Rankin & Brill LLP Edward M Wolkowitz
Jeffrey S Kwong Nico N Tabibi
11:00 AM
Docket 44
Chapter 7 Trustee Amy Goldman ("Trustee") moves to sell property of the estate free and clear under § 363(f). The property, 8100 Amersham Dr., Las Vegas, NV 89129 (the "Property"), is encumbered by the following liens: [1] County Assessor’s Office (general state, county, and/or city real property taxes); [2] County Assessor’s Office (supplemental real property taxes – TBD); [3] any delinquent outstanding municipal liens for contract services – TBD); [4] Wells Fargo Bank (deed of trust securing indebtedness of $152,708); [5] Northshore Owners Assoc. (HOA lien for
$847.58); [6] Internal Revenue Service (tax lien securing indebtedness of $891,730);
[7] City of Las Vegas Sewer Services (municipal lien securing indebtedness of
$215.58.
Trustee proposes to sell the Property free and clear of the HOA lien, the IRS lien, and the LV Sewer liens under § 363(f). As to the HOA and Las Vegas Sewer liens, Trustee argues that they are void as they were recorded post-petition and thus satisfy § 363(f)(4). The IRS, for its part, has consented to the sale per the Stipulation (ECF doc. 42), satisfying § 363(f)(2). The Stipulation with the IRS and the California Franchise Tax Board was approved by the Court on 7/19/18 (ECF doc. 48).
Service proper. No opposition filed.
Motion granted. Trustee to lodge order within 7 days.
APPEARANCES WAIVED ON 8/8/18.
Debtor(s):
Scott Ray Ramage Represented By John D Faucher
Movant(s):
Amy L Goldman (TR) Represented By
11:00 AM
Trustee(s):
Todd A Frealy Carmela Pagay
Amy L Goldman (TR) Represented By Todd A Frealy Carmela Pagay
1:00 PM
fr. 7/31/18
Docket 114
A proof of claim is deemed allowed unless a party in interest objects under § 502(a) and constitutes "prima facie evidence of the validity and amount of the claim" pursuant to Bankruptcy Rule 3001(f). See also Fed. R. Bankr.P. 3007. The filing of an objection to a proof of claim "creates a dispute which is a contested matter" within the meaning of Bankruptcy Rule 9014 and must be resolved after notice and opportunity for hearing upon a motion for relief. See Adv. Comm. Notes to Fed. R. Bankr.P. 9014.
Upon objection, the proof of claim provides "some evidence as to its validity and amount" and is "strong enough to carry over a mere formal objection without more." Wright v. Holm ( In re Holm ), 931 F.2d 620, 623 (9th Cir.1991) (quoting 3 Collier on Bankruptcy § 502.02, at 502-22 (15th ed.1991)); see also Ashford v.
Consolidated Pioneer Mort. ( In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff'd, 91 F.3d 151, 1996 WL 393533 (9th Cir.1996). To defeat the claim, the objector must come forward with 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." In re Holm, 931 F.2d at 623.
"If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence." In re Consol. Pioneer, 178
B.R. at 226 (quoting In re Allegheny Int'l, Inc., 954 F.2d 167, 173-74 (3d Cir.1992)). The ultimate burden of persuasion remains at all times upon the claimant. See In re Holm, 931 F.2d at 623.
Based on what has been filed, Khatibi has rebutted the validity of the amount on the amended proof of claim. A careful review of the documents and declarations submitted indicate that Khatibi does owe a certain amount to Rosamond, but the exact amount requires an evidentiary hearing to determine. Rosamond will
1:00 PM
commence the presentation of evidence and must show by a preponderance how much Khatibi owes. The debtor’s arguments as to owing nothing are not persuasive. The following summary highlights the questions that need to be resolved at an evidentiary hearing.
Nature of the Bonds
It appears the nature of the bond tenders is an offset, but this must be explained as the two parties seem to be confusing both which Special Assessment District bonds are being paid or offset and whether the "tender" value is controlling or some other value.
Chronology of Parcel 375-072-20 ("Subject Property")
Reviewing the jumbled stack of documents the parties have submitted, the following chronology and questions emerge:
5/26/04: Khatibi buys $150,000 of Rosamond Community Services District 91-3 8% bonds, due 9/2/08 from David Wheeler. DEC OF KOSLA, EXHIBIT 1, P. 24.
5/26/04: Payoff Quote for 91-3 bond from NBS Government Finance Group (Rosamond) for $178,776.66 for the Property. This document is almost illegible—in particular, the dates. It’s unclear what this payoff quote represents, because Khatibi acknowledges the payoff quote of $178,776.66 in the Notice of Intention, below, but then paid $212,834 toward the "total" of $630,228. DEC OF KOSLA, EXHIBIT 1, P.
29. This must be explained further.
5/28/04: Notice of intention from Khatibi to tender 91-3 bonds with face value of
$245,000, tender value of $350,667.29. Large amount of that went to other parcels.
$212,834, per Khatibi’s math, went toward the total $630,228.11 owed on the Subject Property. Check for $6,136 also paid for administrative fees. DEC OF KOSLA, EXHIBIT 1, P. 20
5/28/04: Receipt for $245,000 "face value bonds" from Khatibi, and $6,136 from Khatibi for "bond tender fee." No indication of whose receipts these are without authentication. DEC OF KOSLA, EXHIBIT 1, P. 25. Khatibi argues that the "redemption amount was actually approximately $350,000." DEC OF KHATIBI IN SUPPORT OF OBJECTION TO CLAIM, P. 6. What does that mean?
12/14/04: Notice of Intention from Khatibi, indicating he will tender 90-2 bonds for the
1:00 PM
Property with tender value $91,640.21. He indicates his belief that the payoff quote for the 90-2 lien was $95,979.55, leaving $4,339.34 "to be paid in cash." There is also an indication that he was tendering 91-3 bonds toward the property with face value of $10,000 and a [blank] tender value. DEC OF KOSLA, EXHIBIT 1-4, P. 88. This is totally confusing.
1/25/05: Receipts for $20,000 90-2 bond received from Richard Khatibi. DEC OF KOSLA, EXHIBIT 1-5, P. 90.
2/7/05: "Paid in full" letter, stating "the above mentioned parcel is now paid in full." This letter also indicates that Khatibi tendered a $25,000 bond, but there is no other record of that bond tender that I can find. OBJ. TO CLAIM EX. 6
7-13-05: Contract assigning Rosamond bonds, but no indication as to the parties to this contract. DEC OF KOSLA, EXHIBIT 1, P. 34.
9/6/05: Khatibi buys $70,000 of Rosamond Community Services District 91-3 bonds from David Wheeler. DEC OF KOSLA, EXHIBIT 1, P. 35.
1/19/06: Khatibi buys $105,000 of Rosamond Community Services District 91-3 8% bonds, due 9/2/08 from David Wheeler. DEC OF KOSLA, EXHIBIT 1, P. 26-28.
1/23/06: Email, checks and other documents indicating that Derek Tabone and Patrick Mcwhorter sold 91-3 bonds to Khatibi. DEC OF KOSLA, EXHIBIT 1, P. 37-40.
3/28/08: Notice of intent to remove delinquent assessment installments from tax roll. REQ. FOR JUDICIAL NOTICE EXHIBIT A, P. 6.
6/20/12: Notice of intent to remove delinquent assessment installments from tax roll. REQ. FOR JUDICIAL NOTICE EXHIBIT B, P. 14.
4/23/13: Complaint in Judicial Foreclosure, Rosamond v. Khatibi. REQ. FOR JUDICIAL NOTICE EXHIBIT D, P. 38.
10/29/13: Letter from Kwasigroch to Rosemond’s foreclosure counsel re: accounting
1:00 PM
2/24/14: Settlement agreement prepared by Ms. Fogelman (for Rosamond), indicating that Khatibi acknowledges delinquent assessments on the Property amounting to $283,031.90, not including penalties, interest, and costs. Khatibi agrees to pay $298402.93 through 60 monthly payents ending February 15, 2019. Khatibi’s signature block is unsigned. DEC OF KOSLA, EXHIBIT 2, P. 92-98.
Rosamond allegedly waives $514,872 in interest and $28,293.20 in penalties for this agreement, which would be a total of $836,197.10 due absent this agreement. DEC OF KOSLA, P. 4. Unless Khatibi signed this document, it will not be admitted as it appears to be a settlement offer. All other items objected to appear to be admissible if properly authenticated.
1/6/17: Notice of intent to remove delinquent assessment installments from tax roll. REQ. FOR JUDICIAL NOTICE EXHIBIT C, P. 34.
2/1/18: Rosamond files proof of claim for $1,455,491.60. Proof of Claim No. 10-1.
3/19/18: Rosamond attorney "discovered some of the 2004 bond tender documents that Mr. Kwasigroch had emailed in 2013 to Ms. Fogelman.
Issues:
What amount was due as of 5/28/04?
The payoff quote from 5/26/04 indicates that $178,776.66 was due. However, there seems to be a distinction between the "NBS payoff quote" and the other amounts due. In Khatibi’s May 28, 2004 Notice of Intention calculations, the NBS Payoff quote is added to the delinquency, penalties, and interest for a total of
$630,228.11. In his calculation, the NBS payoff quote looks like a debt collection fee or something similar.
The evidence from Rosamond regarding the amount owed on May 28, 2004, is unclear. Attached to the first proof of claim is an accounting from Rosamond without any of the credits applied for what Khatibi paid or the bonds he tendered.
The amount provided is $1,455,491.60. The principal amounts of these assessments seem to be assessed until Tax Year 2011-2012. How long did the yearly assessments on this 1991 bond last? These numbers seem to indicate 20 years, but that seems like a long time.
Attached to Rosamond’s amended proof of claim is a similar accounting in support of the amended claim of $749,752. This amended spreadsheet omits all deficiencies from 1996-2004, which were included on the previous accounting.
1:00 PM
Notably, what is missing from BOTH accountings is a history of the credits from payments made by Khatibi and the bonds he tendered. Rosamond seems to be starting with the assumption that Khatibi paid nothing, then amending their proof of claim as Khatibi provides proof that he made certain payments. This is backwards, as Rosamond has the burden of establishing its claim.
What were the yearly amounts due, the interest rates, and penalties?
Khatibi contests Rosamond’s accounting, which states that the yearly principal due is around $34,000-$36,000—not including penalties and interest. Khatibi says that the yearly taxes for this property were under $200. This argument is murky, and ignores other taxes being due on the property in addition to the assessments. There clearly seems to be a disagreement about the principal amount of the taxes that were due, even if Khatibi had paid them timely. I need to know this amount before I can begin to calculate the interest rate. What specifically were the allowed penalties?
What was the tender amount of the 5/28/04 bonds?
By Khatibi’s math, the 5/28 bonds had a tender value of $350,667.29. The receipt from Rosamond says that bonds with $245,000 face value were received. How did Rosamond apply those funds, or what it believed was owed on 5/28/04? The only indication we have is the NBS payoff quote, which is potentially inadequate as discussed above.
No information about Bond Tenders between 5/28/04 and the 2/7/05 Paid in full Letter
The 2/7/05 paid in full letter indicates that Khatibi had tendered a $25,000 bond. I don’t see any other record of that bond (no receipt, for example), which makes me question whether there were any other bonds tendered in that period which are not accounted for. The record is further obscured by Khatibi’s continued payments after the Paid in Full Letter.
Bring your calendars so a date for an evidentiary hearing can be set. The parties should identify what witnesses will be presented, file an exhibit list beforehand and be prepared to explain these issues and any others at the evidentiary hearing.
1:00 PM
Debtor(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Movant(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
Adv#: 1:18-01067 Laaly et al v. Farkhondeh et al
and Federal Rules of Bankruptcy Procedure Rule 7012
Docket 4
Hamid Farkhondeh ("Farkhondeh") and Mary Dadyan ("Dadyan") (jointly, "Defendants" or "Debtors"), filed for relief under Chapter 13 of Title 11 of the United States Code on April 11, 2018 (Case No.: 1:18-bk-10891-MT) in United States Court for the Central District of California. On June 5, 2015, Noushin Laaly and Kourosh Laaly (jointly, "Plaintiffs") filed a complaint (the "Complaint") in this adversary proceeding (Case No.: 1:18-ap-01067-MT) against Debtor requesting denial of discharge under 11 U.S.C. § 727(a)(1), 727(a)(2)(A), 727(a)(3), 727(a)(4)(A), 727(a)(5) as well as seeking determination as to the dischargeability of debt owed by Debtor to Plaintiffs pursuant to 11 U.S.C. § 523(a)(2)(A) and 11 U.S.C. § 523(a)(6).
Plaintiffs are currently involved in pending state court action in Los Angeles Superior Court, Case Number SC126905 (the "State Action"), against Debtors and their corporation DAF Construction. The State Action is for (1) Return of Payments, per Business & Professions Code § 7031 (b); (2) Breach of Contract; and (3) Fraud. In the Complaint, Plaintiffs allege that fraudulent action in the State Action allows for an objection to discharge under § 523(a). To bring about objections under § 727(a) and § 523(a), Plaintiffs further allege misconduct under Chapter 13 provisions. Plaintiffs cite specific facts to support their allegations of fraud in Debtor’s failure to disclose a sale and transfer of a property, located at 4950 Alonzo Avenue, Encino, California 91316 ("the Alonzo Property"), that occurred the year prior to filing date. The Complaint alleges Debtor fraudulently, with intent to hinder, delay, or defraud their creditors, transferred, concealed or hide the proceeds from the sale of the Alonzo Property. Plaintiffs also object to discharge under
§ 727(a)(1), arguing that Debtor is not an individual because Debtor’s operations and actions as a business.
1:00 PM
Debtor filed a Motion to Dismiss (the "Motion") under Federal Rules of Civil Procedure ("FRCP") 12 (b)(6) on July 6, 2018. Debtor only disputed § 727(a) actions and not those under § 523(a). Further, Debtor did not dispute the facts alleged under the Complaint but whether § 727(a) applies to a Chapter 13 proceeding. Debtor states such claims are not appropriate in Chapter 13, therefore claims asserted under § 727 should be dismissed.
Plaintiffs filed an opposition to Debtor’s Motion on July 25, 2018 (the "Response"). Plaintiffs request the Court refrain from ruling on the Motion pending the outcome of State Action presumably because fraudulent action asserted there would relate to claims brought under § 727(a) and § 523(a). Further, that if Plaintiffs obtain a judgment in the State Action, Debtor may have to bring a motion to convert the bankruptcy to Chapter 7. Then, the causes of action under § 727(a) will become relevant and pertinent. Whether Plaintiff can assert a cause of action under § 727(a) is the primary issue before the Court.
Plaintiffs seek a judgment for nondischargeability under § 727 (a)(1), 727(a)(2)(A), 727(a)(3), 727(a)(4)(A), 727(a)(5). Debtor does not dispute the facts alleged but whether § 727 is appropriate under Chapter 13 cases.
A. 11 U.S.C. § 103
Section103 (b), states which subchapters of the Bankruptcy Code apply to which bankruptcy case Chapters. This section states that subchapter I and II, which includes § 727, applies only to Chapter 7:
(b) Subchapters I and II of Chapter 7 of this title [11 USCS § § 701 et seq. and 721 et seq.] apply only in a case under such Chapter [11 USCS § § 701 et seq.].
The Complaint arises from a Chapter 13 filing. Plaintiffs filed the Complaint in this adversary proceeding against the Debtor requesting nondischargeability under § 727(a); however, § 103 (b) provides that § 727(a) is inapplicable to Chapter 13 cases. Woods Law Offices, LLC v. Chang, 539
B.R. 733, 735 (Bankr. M.D. Pa. 2015) (finding § 727, as indicated by § 103,
1:00 PM
only applies to cases filed under Chapter 7 of the Bankruptcy code and so plaintiff could not object to the discharge of a Chapter 13 debtor in an adversary proceeding under § 727); In re Bonder, 3 B.R. 623, 623 (Bankr.
E.D.N.Y. 1980). That is, § 727 applies only to Chapter 7 debtors. DeNoce v. Neff, 505 B.R. 255, 258 (B.A.P. 9th Cir. 2014); A & H Ins., Inc v. Huff, 2014 Bankr. LEXIS 919, at *1 (B.A.P. 9th Cir. Mar. 10, 2014); Wahrman v. Bajas, 443 B.R. 768, 770 (Bankr. E.D. Mich. 2011).
Debtors filed a motion to dismiss pursuant to FRCP 12 (b)(6) which allows for a dismissal based on either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’ Johnson, 534 F.3 at 1121. The court in Chang held that because the alleged violation of § 727 against the Chapter 13 debtor cannot apply, the complaint failed to allege a plausible claim upon which relief can be granted. Chang, 539 B.R. at 735 (finding that "no applicable statutory or case authority has been offered to support the Plaintiff’s objection to the Debtor’s Chapter 13 discharge"). Here, Plaintiff did state specific factual allegations that would support a cognizable legal theory under § 727. But a § 727 claim cannot be asserted in a Chapter 13 case. As such, this motion will be granted as to the cause of action under § 727.
B. 11 U.S.C. § 1328
Section 1328 governs discharges of Chapter 13 proceedings. Holmers Lumber & Bldg. Ctr., Inc v. Miller, 2010 Bankr. LEXIS 2760 (Bankr. N.D. Ohio September 2, 2010). For example, in Miller, the court dismissed plaintiff’s claim under § 727 against a Chapter 13 debtor sua sponte because "[d] ischarges in Chapter 13 are governed by 11 U.S.C. § 1328." Id. Section 1328 contains the discharge provisions and exceptions relating to Chapter 13. Id. Further, § 1328 includes those exceptions provided by § 523 (a), which were asserted by Plaintiff and not disputed by Debtors. The discharge exceptions under Chapter 13 proceedings can only be brought forth under § 523 (a) as it is applicable in Chapter 13 cases. Great Lakes Higher Educ.
Corp. v. Pardee, 218 B.R. 916, 921 (B.A.P. 9th Cir. 1998); Educational Credit Mgmt. Corp. v. Coleman, 2008 U.S. App. LEXIS 16424, *3 (9th Cir. Cal.
August 1, 2008) (finding § 523 is made applicable to Chapter 13 proceedings pursuant to Federal Rule of the Bankruptcy Code ("FRBP") 4007). Provisions
1:00 PM
regarding discharges and objections to discharges differ from Chapter 13 to Chapter 7 because "Congress created the Chapter 13 mechanism to permit eligible debtors, who are capable of diligently meeting their obligations under plans, to reorganize their financial affairs and pay a greater amount on debts than they would have otherwise done under a Chapter 7 liquidation." HSBC Bank USA, N.A. v. Blendheim, 803 F.3d 477, 480 (9th Cir. 2015).
C. FRBP 1019
FRBP 1019, states upon the conversion of a case from Chapter 13 to Chapter 7, new time periods are instituted for filing claims, dischargeability complaints and objections to discharge, although claims actually filed in the Chapter 13 case are deemed filed in the Chapter 7 case. Rule 1019, in pertinent part, explains the filing periods for an objection to discharge where a case has been converted to a Chapter 7 case.
New filing periods.
A new time period for filing a motion under § 707(b) or (c), a claim, a complaint objecting to discharge, or a complaint to obtain a determination of dischargeability of any debt shall commence under Rules 1017, 3002, 4004, or 4007.
Fed. R. Bank. P. 1019(2)(a).
Plaintiff’s Response to Debtor’s Motion requested that the Court refrain from ruling on the Motion, pending the outcome of the State Action because obtaining judgment in the state action, may result in a motion to convert Debtor’s bankruptcy from Chapter 13 to Chapter 7, thus making the cause of action under § 727 relevant and pertinent.
Plaintiffs appear to be unduly concerned about whether deadlines affecting objections to discharge will bar the causes of action under § 727. If the case is converted, they will have an opportunity to amend their complaint to include
§ 727. Objections to discharge are governed by FRBP 4004 (a), under which objections to discharge are to be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a). See e.g., Balt. Cty. Sav. Bank,
1:00 PM
FSB v. Quillen, 2008 Bankr. LEXIS 4150, at *5 (Bankr. D. Md. July 11, 2008); Gasunas v. Yotis, 521 B.R. 625, 640 (Bankr. N.D. Ill. 2014); Kerzner v.
Hirsch, 2000 U.S. Dist. LEXIS 167, at *8 (S.D.N.Y. Jan. 3, 2000) (holding FRBP 1019 is unequivocal in new periods of objecting to dischargeability applying upon the conversion of a case from Chapter 11 or Chapter 13, to Chapter 7. Further, a new period would apply since the conversion requires a new meeting of creditors upon conversion). Similarly, in Gasunas, the court held the § 727(a) cause of action brought by the plaintiff was inapplicable to debtor unless the case is converted and discharge is sought under Chapter 7. Gasunas, 521 B.R. at 640 (holding that a § 727 action is not ripe until the case is converted to a Chapter 7, and thus a § 727 claim must be dismissed in a chapter 13 case).
Debtor(s):
Hamid Farkhondeh Represented By Stella A Havkin
Defendant(s):
Hamid Farkhondeh Represented By Stella A Havkin
Mary Dadyan Represented By Stella A Havkin
Joint Debtor(s):
Mary Dadyan Represented By Stella A Havkin
Movant(s):
Hamid Farkhondeh Represented By Stella A Havkin
Mary Dadyan Represented By Stella A Havkin
1:00 PM
Plaintiff(s):
Noushin Laaly Represented By Stella Rafiei
Kourosh Laaly Represented By Stella Rafiei
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
Adv#: 1:18-01067 Laaly et al v. Farkhondeh et al
to 523 and 727 of the Bankruptcy Code
Docket 1
- NONE LISTED -
Debtor(s):
Hamid Farkhondeh Pro Se
Defendant(s):
Hamid Farkhondeh Pro Se
Mary Dadyan Pro Se
Joint Debtor(s):
Mary Dadyan Pro Se
Plaintiff(s):
Noushin Laaly Represented By Stella Rafiei
Kourosh Laaly Represented By Stella Rafiei
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marianna Scalise Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Re: 13458 Vose Street, Valley Glen, Ca 91405
Docket 34
Service: Proper.
Property Address: 5106 Pacific Avenue, Marina Del Rey, CA 90292 First trust deed: $ 3,694,276.59
Second trust deed (to be avoided): $ 350,000 Fair market value per appraisal: $3,587,000
Disposition: GRANTED.
PREVAILING PARTY SHOULD SUBMIT THE FORM ORDER, A BLANK COPY OF WHICH MAY BE DOWNLOADED FROM THE JUDGE’S FORMS SECTION ON THE COURT’S WEBSITE.
Debtor(s):
Godwin Osaigbovo Iserhien Represented By Onyinye N Anyama
Movant(s):
Godwin Osaigbovo Iserhien Represented By Onyinye N Anyama
9:30 AM
fr. 6/20/18
Docket 49
- NONE LISTED -
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
Movant(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
9:30 AM
fr. 7/18/18
Docket 109
Service proper. No opposition filed. The motion is GRANTED.
APPEARANCES WAIVED
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
with request for valuation of security, payment of fully secured claims, and modification of undersecured claims
fr. 7/18/18
Docket 108
Service proper. No opposition filed. The motion is GRANTED.
APPEARANCES WAIVED
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
fr. 3/28/18, 5/2/18, 5/23/18, 7/18/18
Docket 106
- NONE LISTED -
Debtor(s):
Anzhey Barantsevich Represented By Stephen L Burton
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
9:30 AM
Docket 43
- NONE LISTED -
Debtor(s):
Henrik Andreas Ingvarsson Represented By Matthew D Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D Resnik
Roksana D. Moradi-Brovia
9:30 AM
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Tours Incorporated, Inc. Represented By Mark E Brenner
9:30 AM
Docket 340
Having reviewed all relevant documents, there being no objections to plan confirmation, and all requirements having been met, the plan will be confirmed. Debtor to include all necessary findings in the plan confirmation order.
NO APPEARANCE REQUIRED
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
9:30 AM
fr. 11/3/16, 11/10/16; 1/26/17; 2/1/17; 3/29/17, 5/24/17, 6/14/17, 7/12/17, 10/18/17; 11/29/17, 2/7/18, 5/2/18,
6/6/18
Docket 1
- NONE LISTED -
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
11:00 AM
LA HABRA KNOLLS HOMEOWNERS ASSOCIATION
Docket 2113
Petition Date: 1/9/12 Converted to ch. 7: 3/14/12
Service: Proper. No opposition filed. Movant: La Habra Knolls HOA
Relief Sought to: Pursue Pending Litigation XX Pursue Insurance Litigation Information
Commence Litigation Other
Case Name: not yet filed Court/Agency: unk.
Date Filed: not yet filed Judgment Entered:
Trial Start Date:
Action Description: account stated; open book account (not yet filed) Grounds
Bad Faith Claim is Insured Claim Against 3rd Parties
Nondischargeable XX
Mandatory Abstention Non-BK Claims Best Resolved in Non-BK Forum XX
Other:
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate); and 6 (binding and effective against any debtor for 180 days.)
11:00 AM
NO APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Owner Management Service, LLC Pro Se
Movant(s):
La Habra Knolls Homeowners Represented By Debora M Zumwalt
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
US BANK NATIONAL ASSOCIATION
fr. 7/18/18
Docket 63
- NONE LISTED -
Debtor(s):
Guy Pierre Hector Represented By Leon D Bayer
Joint Debtor(s):
Brenda Buell Hector Represented By Leon D Bayer
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 44
Petition Date: 3/22/16
Chapter 13 plan confirmed: 6/15/16 Service: Proper. Opposition filed.
Property: 7239 Balboa Bl. #A, Van Nuys, CA 91406 Property Value: $490,000 (per debtor’s schedules) Amount Owed: $244,969
Equity Cushion: 50.0% Equity: $114,663.74
Post-confirmation Delinquency: $20,178.37 (4 payments of $929.47; 5 payments of $940.65; 12 payments of $941.60; 1 payment of $690.69; post- petition advances of $400; less suspense account balance of $902.65).
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment received on this debt was on or about March 22, 2017.
Debtor opposes the Motion, arguing that there is sufficient equity in the Property to adequately protect Movant's claim. Debtor, who lives at the Property, requests an APO to catch up on the delinquent payments.
Is Movant amenable to Debtor's request of an APO? APPEARANCE REQUIRED.
11:00 AM
Debtor(s):
Dawn Elizabeth Thomas Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
GATEWAY ONE LENDING & FINANCE
Docket 27
Petition Date: 3/22/17
Chapter 13 plan confirmed: 8/3/17 Service: Proper. Opposition filed. Property: 2003 Hummer H2
Property Value: $11,815 (per debtor’s schedules) Amount Owed: $7,707.09
Equity Cushion: 35.1% Equity: $4,107.91
Post-Petition Delinquency: $3,393.16 (6 payments of $460.36, and attorney's fees of $631)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
Debtor requests to cure the delinquent payments in an APO. Is Movant amenable to this request?
APPEARANCE REQUIRED
Debtor(s):
Jacobo Lopes Tunchez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
11:00 AM
fr. 7/18/18
Docket 47
- NONE LISTED -
Debtor(s):
John A, Gillett Represented By Julie J Villalobos
Joint Debtor(s):
Pearlene Gillett Represented By Julie J Villalobos
Movant(s):
Nationstar Mortgage LLC Represented By Merdaud Jafarnia Nancy L Lee
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 8/1/18
Docket 45
This hearing was continued from 8/1/18 so that the parties could discuss an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED. 8/1/18 TENTATIVE BELOW
Petition Date: 6/21/18
Chapter 13 plan confirmed: 11/9/17 Service: Proper. No opposition filed.
Property: 23700 Nadir St., Canoga Park, CA 91304 Property Value: $740,000 (per debtor’s schedules) Amount Owed: $136,623.68
Equity Cushion: 50.61% Equity: $119,516
Post-Petition Delinquency: $2,485.89 (1 payment of $495.77, 4 payments
$497.53)
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay). While Debtor is post-petition delinquent, there is sufficient equity to protect Movant's interest. Has the option of an APO been explored?
APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
11:00 AM
Debtor(s):
John A, Gillett Represented By Julie J Villalobos
Joint Debtor(s):
Pearlene Gillett Represented By Julie J Villalobos
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/16/18, 7/18/18
Docket 55
This hearing was continued from 8/1/18 so that the parties could discuss an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED.
7/18/18 TENTATIVE BELOW
At the previous hearing, the parties indicated that they were working on an adequate protection agreement. Since the hearing, Debtor filed an opposition to the motion, arguing that more payments have been made to Movant than the Motion accounts for. Debtor seeks to cure through APO to make up post-petition payments over a 12 month.
What is the status of the APO efforts?
5/16/18 Tentative
Petition Date: 7/8/17 Chapter: 13
Service: Proper. No opposition filed.
Property: 9100 Omelveny Ave., Sun Valley, CA 91352 Property Value: $460,156 (per debtor’s schedules) Amount Owed: $ 437,275.90 (per RFS motion)
Equity Cushion: 0.0% (assuming 8% cost of sale) Equity: $22,880.10
Post-Petition Delinquency: $7,909.34
11:00 AM
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (co-debtor stay terminated); and 7 (waiver of the 4001(a)
stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Arturo Juarez Represented By Shirlee L Bliss
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
fr. 6/13/18
Docket 34
This hearing was continued from June 13, 2018, to allow the Debtor to apply for a loan modification. What is the status of this Motion?
APPEARANCE REQUIRED
6/13/18 TENTATIVE BELOW
Petition Date: 08/2/2017
Service: Proper. Opposition filed.
Property: 21051 Schoenborn St., Canoga Park, California 91304 Property Value: $ 560,000.00 (per debtor’s schedules)
Amount Owed: $ 687,555.73 Equity Cushion: 0.0% Equity: $0.00
Post-Petition Delinquency: $11,056.62 (4 payments of $10,251.16; $0.00 in post- petition advances; $1,031 in attorneys’ fees; less $225.54 in suspense account or partial paid balance)
Debtor opposes the Motion, arguing that there is an application for a loan modification still under review, and requests a continuance of this hearing to allow for a determination of the loan modification application. See Opposition, Ex. A.
Movant requests relief under 11 U.S.C. 362(d)(1). Movant requests specific relief in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 5 (11 U.S.C. §1201 (a) or §1301(a) co-debtor stay terminated, modified, or annulled); and 6 (waiver of the 4001(a)(3) stay).
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Samuel Araos Pasag Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Nellie Garingan Pasag Represented By
Hasmik Jasmine Papian
Movant(s):
Deutsche Bank National Trust Co., Represented By
Alexander G Meissner S Renee Sawyer Blume
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELLON
Docket 37
Petition Date: 12/12/17
Chapter 13 plan confirmed: 5/2/18 Service: Proper. No opposition filed.
Property: 13105 Portola Way, Sylmar (Los Angeles), CA 91342 Property Value: $458,701 (per debtor’s schedules)
Amount Owed: $453,538 Equity Cushion: 1.1% Equity: $0.00.
Post-Petition Delinquency: $9,011.06 (3 payments of $3,003.81, less suspense account balance of $0.37)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
(3) stay). Movant alleges that the last payment received on this claim was 5/8/2018.
Debtor opposes the Motion, contending that she had some family emergencies which caused her to fall behind on payments. Debtor requests to cure any arrears by entering into an APO. Is Movant amenable to Debtor's request?
APPEARANCE REQUIRED
Debtor(s):
Melissa D Kurtz Represented By
11:00 AM
Movant(s):
Kevin T Simon
THE BANK OF NEW YORK Represented By Kelsey X Luu Jenelle C Arnold Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 10
Petition Date: 6/14/18 Chapter: 7
Service: Proper. No opposition filed. Property: 2017 Ford Fusion
Property Value: $0 (LEASED, per debtor’s schedules) Amount Owed: $
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $890.90
Debtor intends to reject the lease, according to her filed Statement of Intention. Movant states that it regained possession of the vehicle on 7/6/18.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Nahid Saffari Represented By
Navid Kohan
Movant(s):
Cab West LLC Represented By
11:00 AM
Trustee(s):
Sheryl K Ith
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 7
Petition Date: 7/13/18 Chapter: 7
Service: Proper. Oppositions filed.
Property: 22703 Burton Street, Canoga Park, CA 91304 Property Value: $535,000 (per debtor’s schedules) Amount Owed: $316,924
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $44,685.82 (11 payments of $4,038.66)
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay). Movant alleges that there is no equity in the Property because there are approx. $379,000 of tax liens secured in part by the Property, in addition to his secured claim.
Trustee opposes the Motion, arguing that Movant's debt is only $316,924 and is the only consensual lien on the Property. Even using Movant's value of
$445,000, Trustee estimates that there would still be $229,000 in equity or 58% cushion, which more than adequately protects Movant's claim. Trustee notes that the tax liens may be cross-collateralized with other property, including two parcels of real property, one of which has approx. $130,000 in equity, and thus may not constitute an encumbrance on the Property. Under Bankruptcy Code §724, the procedure and distribution of funds from sale of property encumbered by tax liens is that after payment of voluntary liens (as in the case of Movant) and costs of administration, proceeds are then distributed to the tax Iien claimants. Thus, upon liquidation by the Trustee, the
11:00 AM
tax lien claimants will receive a distribution on their respective claims. In the event the Property is foreclosed upon, it is not certain whether the tax liens will survive the foreclosure and whether or to what extent tax lien claimants will be paid. Trustee maintains that it is in the best interest of the creditors of this Estate for the Trustee to liquidate the property.
Debtor opposed the Motion as well, arguing that Movant has not met his burden of proof to establish that there is insufficient equity in the Property. The appraisal submitted with the Motion is not supported by a declaration of the appraiser, and is outdated as having been obtained on or around October 2014. Lastly, Debtor contends that Movant's calculation of its claim with respect to the interest and late charge portion. Debtor argues that this motion should be denied without prejudice, or continued for approx. 60 days, to allow Trustee to fully market and sell the Property for fair market value, instead of allowing Lender to conduct a foreclosure sale at which buyers typically pay far less than in a negotiated market sale. Realizing the full fair market value of the Property is critical to Debtor, as he contends he has significant non- dischargeable tax liabilities to entities such as the IRS.
Here, Movant has not sustained his burden to show that there are grounds for relief from stay under 362(d)(1) or (d)(2) at this time. Parties should appear prepared to discuss a timeline for resolution of the issues presented in this Motion.
APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
Paul T Formanek Represented By Taylor F Williams
Movant(s):
Yosemite Capital, LLC Represented By Edward T Weber
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
11:00 AM
Adv#: 1:17-01095 Nazaryan v. Bag Fund, LLC et al
fr. 1/24/18, 2/14/18, 8/1/18
Docket 1
APPEARANCE REQUIRED
Parties should indicate at s/c whether any objection to following deadlines: Discovery should be completed by 12/7/18.
Any dispositive motions must be filed by 12/19/18 and noticed for 1 pm on 2/6/19
The MSJ schedule will be lengthened slightly due to the holidays: Moving brief filed by 12/19/18
Response due 1/16/19 Reply due 1/23/19 Hearing 2/6/19 at 1pm
If no MSJ is filed, the pretrial stip will be due by 1/23 for the 2/6 hearing.
Debtor(s):
Hermine Nazaryan Represented By Lloyd D Dix
Defendant(s):
Bag Fund, LLC Pro Se
Leo Fasen Pro Se
Vincent J Quigg Pro Se
11:00 AM
Michael Waldren Pro Se
Plaintiff(s):
Hermine Nazaryan Represented By Lloyd D Dix
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Adv#: 1:16-01024 Poteet et al v. Levy
fr. 5/4/16; 11/16/16; 3/29/17, 8/2/17; 10/18/17, 4/25/18
Docket 1
Have state court proceedings concluded?
Debtor(s):
David Brown Levy Pro Se
Defendant(s):
David Brown Levy Pro Se
Plaintiff(s):
Victor Poteet Represented By
Bernard J Kornberg
Michael Clofine Represented By Bernard J Kornberg
Gene Salkind Represented By
Bernard J Kornberg
The Workshop LLC Represented By Bernard J Kornberg
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
11:00 AM
US Trustee(s):
United States Trustee (SV) Pro Se
11:00 AM
Adv#: 1:17-01066 American Contractors Indemnity Company v. Ragsdale
Determine Dischargeability of debt fr. 9/27/17, 12/13/17; 2/14/18
Docket 1
- NONE LISTED -
Debtor(s):
Claudia Maria Ragsdale Pro Se
Defendant(s):
Claudia Maria Ragsdale Pro Se
Plaintiff(s):
American Contractors Indemnity Represented By
R Gibson Pagter Jr.
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Adv#: 1:17-01085 Lui v. NAVIENT SOLUTIONS,INC
523(a)(8)(B)
fr. 11/8/17, 6/13/18
Docket 1
Parties should start preparing pretrial stipulation. It will be due by 10/3 for a 10/17 pretrial conference at 11 am. Trial will be 10/30 at 9:30 am
Debtor(s):
Kenneth Paul Lui Represented By Christine A Kingston
Defendant(s):
NAVIENT SOLUTIONS,INC Pro Se
Plaintiff(s):
Kenneth Paul Lui Represented By Christine A Kingston
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 119
Appearance required or parties may stipulate to continue a month or two until adversary proceedings are further along.
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Movant(s):
Karmile Yurdumyan Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
Docket 42
On October 24, 2015, Agavni Adzhiyan ("Debtor") filed a voluntary chapter 7 petition. On February 2, 2016, the case was closed after discharge was entered. Since February 26, 2016, Debtor has, in one way or another, attempted to avoid judicial liens under § 522(f), but Debtor either withdrew the Motion to Avoid (see ECF doc.
20) or failed to pay the reopen case fee (see ECF doc. 28; 30; 31; and 34). On May 4, 2018, Debtor again moved pro se to reopen her chapter 7 case. On May 8, 2018, creditor Core Properties, LLC ("Core Properties") filed an Opposition to the motion to reopen. On May 25, 2018, the Court entered an Order Granting Motion to Reopen under § 350.
On June 19, 2018, Debtor filed two Motions to Avoid Liens under § 522(f), one as to creditor Sidney Djanogly (ECF doc. 41) and the other as to Core Properties (ECF doc. 42).
On July 6, creditor Core Properties filed an opposition. The opposition argues that Debtor’s valuation of $280,000, supported by an appraisal from Jennifer Bosco, is not an accurate estimate of the Property’s value. Core Properties submits an opposing appraisal by Sangbum Kim for $380,000.
Core Properties further argues that Debtor is not entitled to a $75,000 exemption on the real property located at 165 Apache, Topanga, CA (the "Property") because Debtor did not reside at the Property at the time the bankruptcy was filed. The property was, Core Properties alleges, used for rental purposes. In support of its allegation, Core Properties attaches a "Statement of Tenancy" dated March 14, 2016 and signed by Cori Ann Ketchum. The Statement of Tenancy indicates that Ms.
Ketchum has been the sole occupant of the property since June, 2015 and that her landlord is the Debtor, Susan Adzhiyan.
Core Properties correctly points out that Debtor cannot obtain an exemption for
$75,000 under C.C.P. § 703.140(b)(1), as indicated on page two of the Motion; however, Debtor’s schedule C, attached to the Motion as, indicates that the
11:00 AM
homestead exemption is being claimed under C.C.P. § 704.730. The Court agrees that Debtor’s Motion is incorrect as to the section citation, but that mistake alone is not fatal. Core Properties is also correct that, as set forth In re Thomas, a creditor’s refusal to voluntarily withdraw a judgment lien is not a violation of the discharge injunction. 102 B.R. 199 (Bankr. E.D. Cal (1989). Absent a showing of additional facts, the Court will not entertain a discharge injunction violation argument, particularly where the only motion before the Court seeks lien avoidance under § 522 (f).
Debtor raises an evidentiary objection to Core Properties’ evidence as hearsay, lacking authentication, and irrelevant. Since an evidentiary hearing will be held and Core Properties may authenticate these items there, a ruling will be postponed until that hearing.
It appears that an evidentiary hearing will be required to determine factual issues, including 1) Debtor’s entitlement to a homestead exemption, and 2) the value of the property. The parties should be prepared to suggest hearing dates.
APPEARANCE REQUIRED
Debtor(s):
Agavni Adzhiyan Represented By Elena Steers
Movant(s):
Agavni Adzhiyan Represented By Elena Steers Elena Steers Elena Steers Elena Steers Elena Steers
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
fr. 6/20/18
Docket 26
APPEARANCE REQUIRED
Debtor(s):
Bradley N Berman Represented By Daniel J Winfree
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 21
Marcos de Souza ("Debtor"), had health complications in April 2017 which led to financial distress. Debtor was referred by a friend to bankruptcy petition preparer German de la Cruz in Spring of 2017.
Debtor's declaration in support of Trustee's Motion for Sanctions & Disgorgement alleges several actions by Mr. De La Cruz that violate § 110. Trustee therefore seeks disgorgement of $1,035 in fees paid by Debtor to Mr. De La Cruz, statutory damages to be awarded to Debtor in the amount of $2,000 under § 110(i)(1), and the assessment of a fine against Mr. De La Cruz in the amount of $2,000.
Disgorgement pursuant to § 110(h)(3)
Under § 110(h)(3)(A), the Bankruptcy Court shall disallow any fee in excess of the value of any services rendered during the twelve months before the date the petition was filed, and shall order the immediate turnover of those fees. In any case in which the preparer fails to comply with §§ 110(b)-(h), the court has the authority to order the petition preparer to forfeit all fees charged.
Mr. De La Cruz charged Debtor $700 for preparation of Debtor's schedules and an additional $335 for the filing fee. De La Cruz gave Debtor legal advice by explaining the differences between bankruptcy chapters, recommending the Debtor file a chapter 7, selecting Debtor's exemptions, and indicating the character of Debtor's debts. Mr. De La Cruz violated § 110(f) by indicating that he provides "legal services" and that he holds a "JD." De La Cruz also violated § 110(h)(1) when he failed to notify the Debtor of the maximum amount he could charge for preparing the bankruptcy. The $1,035 in fees collected by Mr. De La Cruz is subject to the forfeiture of all fees under §§ 110(h)(3)(A) and (B).
Statutory damages pursuant to § 110(i)(1)
Section 110(i)(1) provides that if a petition preparer violates § 110 or "commits any
11:00 AM
act that the court finds to be fraudulent, unfair, or deceptive," the court "shall order" the petition preparer to pay to the debtor A) the debtor's actual damages; B) the greater of $2,000 or twice the amount of the preparer’s fee; and C) reasonable attorneys' fees and costs in moving for damages under this subsection.
Trustee argues that De La Cruz engaged in deceptive and fraudulent conduct when he initially told the Debtor that he had filed his case with the bankruptcy court, when in fact he had not done so, and spent the monies the Debtor had paid him for court filing fee for the case. Trustee argues he engaged in further deceptive conduct when he charged the Debtor $500 more than the amount permitted for typical chapter 7 documents in this District, without giving the Debtor a copy of the BPP Guidelines. If the Debtor had been provided a copy of the BPP Guidelines, which Mr. De La Cruz was required to have supplied, the Debtor would have known that Mr. De La Cruz typically would be allowed to charge only $200 for his services.
Without making a finding as to whether failure to provide Debtor a copy of the BPP Guidelines while charging in excess of those guidelines constitutes "fraudulent unfair, or deceptive" within the meaning of § 110(i)(1), the Court finds that De La Cruz's misrepresentation to Debtor that he had filed his bankruptcy case in September 2017, in combination with De La Cruz's conduct in keeping for his own use $1,035, a portion of which was supposed to be the "filing fee" for Debtor's case, constitutes fraudulent, unfair or deceptive conduct within the meaning of § 110(i)(1). Mr. De La Cruz is ordered to pay $2,000 in statutory damages to the Debtor.
Fines pursuant to § 110(l)(1)
Section 110(l)(1) provides that a BPP may be fined in an amount up to $500 for each violation of subsections (b) through (h). Under § 110(l)(4), the fines imposed under this section shall be paid to the U.S. Trustee, who shall deposit that amount into a special account of the U.S. Trustee System Fund described in 28 U.S.C. § 586(e)(2).
Trustee argues Mr. De La Cruz has violated the following requirements of § 110 and should be fined for each violation in the amount indicated below:
§ 110(e)(2): $500 fine (for offering legal advice);
§ 110(f): $500 fine (for using the word "legal" in an advertisement);
§ 110(g): $500 fine (for collecting the filing fee); and
§ 110(h)(1): $500 fine (for failing to notify the Debtor of the maximum amount he could charge).
The Court agrees with the Trustee as to the four violations indicated above. De La
11:00 AM
Cruz will therefore be fined in the amount of $2,000
APPEARANCE REQUIRED
Debtor(s):
Marcos De Souza Pro Se
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 107
APPEARANCE REQUIRED
Debtor(s):
Mainstream Advertising, a Represented By Michael Jay Berger
Trustee(s):
Amy L Goldman (TR) Represented By David B Golubchik Peter J Mastan
11:00 AM
Docket 31
- NONE LISTED -
Debtor(s):
Julio C Molica Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
Adv#: 1:18-01030 Gottlieb (TR) v. Gemilyan
Docket 9
A memo will issue after the hearing. I am interested in the following clarifications:
The exact theories of the first and second claims for relief are somewhat confusing as articulated in the complaint. The difference between the first and second claims for relief is not clear. It appears the citation in the caption of the second claim for relief to § 502(b)(4) is a typographical error, and § 502(b)(1) is intended. But there is nothing in the complaint objecting to the claim. Is the trustee simply objecting to the lien?
How does § 544 interplay with Cal. Bus. & Prof. Code § 7031? The complaint does not explain this.
In whose shoes does the trustee stand for this action? A creditor under 544 or the debtor's?
The trustee seeks judicial notice of a number of documents that appear to be uncontroverted, so that is taken. Evidentiary objections were also made, but don't they relate to factual matters that are legally irrelevant?
Defendant did not specifically object to the trustee’s statement of undisputed facts, but only added additional facts. The additional facts submitted by defendant seem to be either legal issues, irrelevant, or are facts which are not material to the conclusions reached here. Shouldn't the trustee’s statement of undisputed facts be adopted?
The plain language of § 7031(a) prohibits a suit for "performance of any act or contract where a license is required" unless the individual was "a
1:00 PM
duly licensed contractor at all times during the performance of that act or contract." On its face, the strict licensing requirement applies to the performance of a contract if the contract involves any work requiring a license. Isn't defendant's point about what work he did through December irrelevant? Defendant should address WSS Indus. Constr., Inc. v. Great W. Contractors, Inc., 162 Cal. App. 4th 581, 591–92 (2008), as modified (Apr. 28, 2008)(contractor cannot segregate "acts" performed in furtherance of the contract.)
Defendant argues that the Trustee’s action is subject to a four-year statute of limitations under C.C.P. § 337. Because the Gemilyan Deed was signed sixteen years prior to this action, Defendant argues that Trustee’s action is time-barred. Defendant may still raise this issue under Magana v. Com. of the N. Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 1997), as amended (May 1, 1997). In Magana, the Ninth Circuit reversed the district court’s grant of summary judgment, concluding that there was no prejudice to the opposing party because the defendant raised the statute of limitations defense only three months after filing their answer.
That said, given that the nature of § 7031(a) is a defensive shield against actions by a contractor, it’s not clear that any statute of limitations would apply. It is only the unusual context presented by this case, where a trustee in bankruptcy is seeking to use the unenforceability of a claim under
§ 502(b)(1) as a basis to avoid a lien under § 506(d), that the shield of § 7031
(a) becomes an offensive weapon. In a suit by Defendant against Debtor outside of bankruptcy to collect upon Defendant’s claim, wouldn't Debtor have the benefit of a defense under § 7031(a)?
Even if there is no statute of limitations as a defense to the lien, why would there not be a statute of limitations for affirmatively going after defendant 16 years later for the $1,000 payment? The California courts appear to have avoided the issue, but the affirmative use of 7031(b) would appear to be different.
Additionally, how is this actually plead in the complaint? It appears not to be a cause of action and just tossed in at paragraph 77 at the end of the claim to determine the validity of the lien.
How has trustee actually objected to the claim itself rather than just the
1:00 PM
validity of the lien? Does it matter?
APPEARANCE REQUIRED
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Defendant(s):
Karen Galust Gemilyan Represented By David Brian Lally
Movant(s):
David K. Gottlieb (TR) Represented By Peter A Davidson
Plaintiff(s):
David K. Gottlieb (TR) Represented By Peter A Davidson
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
8:30 AM
Docket 8
Petition date: 4/30/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2017 Honda Civic
Debtor’s valuation of property (Sch. B): not listed on Sch. B (LEASE)
Amount to be reaffirmed: $9,567.30 APR: N/A
Contract terms: $318.91 per month for 30 months Monthly Income (Schedule I): $3,407.76
Monthly expenses: (Schedule J): $3,368.91 Disposable income: $38.85
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor did not explain how she will make the payments on this lease. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until September 25, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING
8:30 AM
Debtor(s):
Lori K Dumont Represented By
R Grace Rodriguez
Trustee(s):
Nancy J Zamora (TR) Pro Se
8:30 AM
Docket 10
Petition date: 5/4/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2013 Ford Fusion
Debtor’s valuation of property (Sch. B): $7,562 Amount to be reaffirmed: $10,826.81
APR: 3.9%
Contract terms: $681.34 per month for approx. 15 months (one payment of $714.89) Monthly Income (Schedule I): $4,686.30
Monthly expenses: (Schedule J): $5,235.06 Disposable income: <$548.76>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor explains that she got a new job with slightly higher pay, as well as cut some of her expenses. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until September 10, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Marybell Estrada Represented By Mark J Markus
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
Docket 11
Petition date: 5/18/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: Gold Rolex Cosmograph watch
Debtor’s valuation of property (Sch. B): not listed on Sch. B; creditor lists value as $17,410 Amount to be reaffirmed: $6,322.32
APR: 12% (19.80% prior to bankruptcy) Contract terms: $225 per month for 33 months Monthly Income (Schedule I): $3,569.05 Monthly expenses: (Schedule J): $3,537.98 Disposable income: $58.07
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor states that she got a raise at her job. A $225 payment is listed on Sch. J, but it is under the category of "transportation."
Debtor has a right to rescind agreement anytime prior to discharge, or until October 2, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Silvia L Sandoval Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
Docket 14
Petition date: 5/23/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2006 Hummer H2
Debtor’s valuation of property (Sch. B): $15,000 Amount to be reaffirmed: $6,443.58
APR: 7.25%
Contract terms: $517.61 per month for 13 months Monthly Income (Schedule I): $7,060
Monthly expenses: (Schedule J): $10,143 Disposable income: <$3,083>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtors explain that Mr. Goldin has had medical issues but is trying to increase his income. The payment for this vehicle is not listed on Sch. J, but the payments for two other vehicles are listed (a Ford F-150 and a leased Lexus).
Debtor has a right to rescind agreement anytime prior to discharge, or until September 3, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Dalia Goldin Represented By
David S Hagen
Joint Debtor(s):
Asher Goldin Represented By
David S Hagen
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
Docket 18
Petition date: 5/23/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2015 Ford F-150
Debtor’s valuation of property (Sch. B): $23,000 Amount to be reaffirmed: $32,410
APR: 2.9%
Contract terms: $849.45 per month for 40 months Monthly Income (Schedule I): $7,060
Monthly expenses: (Schedule J): $10,143 Disposable income: <$3,083>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor explains that the payments for this vehicle are current and that Debtor needs the vehicle for work. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until September 3, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Dalia Goldin Represented By
David S Hagen
Joint Debtor(s):
Asher Goldin Represented By
David S Hagen
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
Docket 11
Petition date: 6/14/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2013 BMW 328i
Debtor’s valuation of property (Sch. B): $15,238 Amount to be reaffirmed: $19,114.89
APR: 1.9%
Contract terms: $356.41 per month for 55 months Monthly Income (Schedule I): $5,365.77
Monthly expenses: (Schedule J): $5,347.20 Disposable income: $18,57
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtors state that they are attempting to find employment and "monetize" their podcast.
Debtor has a right to rescind agreement anytime prior to discharge, or until September 25, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Louis Mancini Represented By Daniel King
Joint Debtor(s):
Judith Mancini Represented By Daniel King
Trustee(s):
Amy L Goldman (TR) Pro Se
9:00 AM
Docket 20
- NONE LISTED -
Debtor(s):
Sousan Najafi Represented By Dana M Douglas
Movant(s):
Sousan Najafi Represented By Dana M Douglas Dana M Douglas
9:00 AM
Docket 41
- NONE LISTED -
Debtor(s):
Jim K. Nikolopoulos Represented By Scott D Olsen
Joint Debtor(s):
Ayarpi Nikolopoulos Represented By Scott D Olsen
Movant(s):
Jim K. Nikolopoulos Represented By Scott D Olsen
Ayarpi Nikolopoulos Represented By Scott D Olsen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
Motion to Avoid Lien Under 11 USC section 522(f) with Core Properties, LLC
fr. 8/15/18
Docket 42
On October 24, 2015, Agavni Adzhiyan ("Debtor") filed a voluntary chapter 7 petition. On February 2, 2016, the case was closed after discharge was entered. Since February 26, 2016, Debtor has, in one way or another, attempted to avoid judicial liens under § 522(f), but Debtor either withdrew the Motion to Avoid (see ECF doc.
20) or failed to pay the reopen case fee (see ECF doc. 28; 30; 31; and 34). On May 4, 2018, Debtor again moved pro se to reopen her chapter 7 case. On May 8, 2018, creditor Core Properties, LLC ("Core Properties") filed an Opposition to the motion to reopen. On May 25, 2018, the Court entered an Order Granting Motion to Reopen under § 350.
On June 19, 2018, Debtor filed two Motions to Avoid Liens under § 522(f), one as to creditor Sidney Djanogly (ECF doc. 41) and the other as to Core Properties (ECF doc. 42).
On July 6, creditor Core Properties filed an opposition. The opposition argues that Debtor’s valuation of $280,000, supported by an appraisal from Jennifer Bosco, is not an accurate estimate of the Property’s value. Core Properties submits an opposing appraisal by Sangbum Kim for $380,000.
Core Properties further argues that Debtor is not entitled to a $75,000 exemption on the real property located at 165 Apache, Topanga, CA (the "Property") because Debtor did not reside at the Property at the time the bankruptcy was filed. The property was, Core Properties alleges, used for rental purposes. In support of its allegation, Core Properties attaches a "Statement of Tenancy" dated March 14, 2016 and signed by Cori Ann Ketchum. The Statement of Tenancy indicates that Ms.
Ketchum has been the sole occupant of the property since June, 2015 and that her landlord is the Debtor, Susan Adzhiyan.
10:00 AM
Core Properties correctly points out that Debtor cannot obtain an exemption for
$75,000 under C.C.P. § 703.140(b)(1), as indicated on page two of the Motion; however, Debtor’s schedule C, attached to the Motion as, indicates that the homestead exemption is being claimed under C.C.P. § 704.730. The Court agrees that Debtor’s Motion is incorrect as to the section citation, but that mistake alone is not fatal. Core Properties is also correct that, as set forth In re Thomas, a creditor’s refusal to voluntarily withdraw a judgment lien is not a violation of the discharge injunction. 102 B.R. 199 (Bankr. E.D. Cal (1989). Absent a showing of additional facts, the Court will not entertain a discharge injunction violation argument, particularly where the only motion before the Court seeks lien avoidance under
§ 522(f).
Debtor raises an evidentiary objection to Core Properties’ evidence as hearsay, lacking authentication, and irrelevant. Since an evidentiary hearing will be held and Core Properties may authenticate these items there, a ruling will be postponed until that hearing.
It appears that an evidentiary hearing will be required to determine factual issues, including 1) Debtor’s entitlement to a homestead exemption, and 2) the value of the property. The parties should be prepared to suggest hearing dates.
APPEARANCE REQUIRED
Debtor(s):
Agavni Adzhiyan Represented By Elena Steers
Movant(s):
Agavni Adzhiyan Represented By Elena Steers Elena Steers Elena Steers Elena Steers Elena Steers
Trustee(s):
David Keith Gottlieb (TR) Pro Se
9:00 AM
Docket 0
APPEARANCE REQUIRED
Debtor(s):
Auckland Senior Care LLC Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Damian S Forbes Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Roman Mendoza Diaz Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Dimitry Voronokov Pro Se
Movant(s):
Dimitry Voronokov Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Georgianne Mary Leong Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 152
The motion indicates that debtor has completed payments to unsecured creditors in the amount of $69,000, estimated to pay 10% of unsecured claims, pursuant to the plan confirmed on August 30, 2013. Section 1141(d)(5) provides for the discharge of debts in an individual chapter 11 case before all payments under the plan are complete only if certain conditions are met. As detailed in the motion and supporting declaration, Debtor has met the requirements under that subsection. The Court finds that there is no reasonable cause to believe that § 522(q)(1) is applicable or that there is a pending proceeding which may make § 522(q)(1) applicable to Debtor. The motion is GRANTED.
NO APPEARANCE REQUIRED.
Debtor(s):
Manoochehr Mike Namdar Represented By
M. Jonathan Hayes Roksana D. Moradi-Brovia
9:30 AM
Docket 217
The disclosure statement to which this hearing relates is the amended disclosure statement filed on July 11, 2018 (Doc. 217). On August 16, 2018, Debtor filed another Amended Disclosure Statement (Doc. 229) also noticed for hearing on August 29. After a brief review of the two amended disclosure statements, the Court notes that there are differences between the two documents, including the attachment of an exhibit relating to stipulated treatment for the secured creditor, Bank of New York Mellon. No party has filed an objection to the Amended Disclosure Statement. Debtor has not complied with the notice requirements with respect to the August 16 Amended Disclosure Statement, but disclosure otherwise seems adequate. Because Debtor has not provided the full notice, the Court will accept objections relating to disclosure at the time of plan confirmation.
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
To Dismiss Or Convert Case fr. 7/18/18
Docket 208
While debtor was in compliance at the last hearing, this matter was continued to August 29 to trail the disclosure statement hearing Trustee indicated that she would withdraw the Motion if the disclosure statement was approved.
7/18/18 Tentative
UST moves to dismiss, arguing that there is cause under 11 U.S.C. § 1112(b) to dismiss or convert this case. First, Debtor, an individual, has had almost four years to obtain approval of a disclosure statement and plan. Despite this significant amount of time, Debtor has been unable to obtain approval of a disclosure statement delaying creditors’ rights to receive any payment on their claims. In addition, the Court has advised Debtor that he needs to wrap up the case and was to notice a hearing on his amended disclosure statement and plan for July 18, 2018, which would have required Debtor to file the amended disclosure statement and plan by June 6, 2018. Regardless of this warning and the July 18, 2018 deadline, Debtor has not filed or noticed an amended disclosure statement for a July 18, 2018 hearing. Lastly, UST contends that Debtor is delinquent in filing the May MOR and providing proof of current insurance for the Honda Accord.
On June 23, 2018, Debtor filed his opposition to the Motion, contending that he has filed proof of his current insurance and the May MOR. Debtor also represents that he has received the accounting from the lender Ditech Financial. In the Opposition, filed a mere 25 days on what is usually a 42-day notice period under LBR 3017-1(a), Debtor states that he will be filing his disclosure statement. An amended disclosure statement was filed on July 11, 2018 - one week before it was set to be heard.
The Court is inclined to grant this Motion. APPEARANCE REQUIRED
9:30 AM
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
fr. 1/8/15; 7/30/15, 10/15/15; 1/20/16; 3/31/16, 6/2/16, 7/28/16, 11/3/16, 7/28/17; 10/18/17; 12/6/17,
2/7/18; 3/7/18; 4/4/18, 5/23/18, 7/18/18
Docket 1
- NONE LISTED -
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
Movant(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
Docket 183
Petition Date: 8/29/16 Chapter: 11
Service: Proper. Opposition filed. Property: 2016 Audi A6
Property Value: $ N/A, Lease Amount Owed: $ 35,958.90
Post-Petition Delinquency: $664.90
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2). Specific relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
Debtor filed a limited opposition, indicating that the lease terminated in June, 2018 and that Debtor has since turned the vehicle in to the dealer. The vehicle has allegedly had a number of mechanical issues which the dealer was unable to repair. While Debtor states that it has no objection to paying the $664.90 arrearage, Debtor objects to any request by Movant for relief from stay to enforce its state law rights against Debtor or anyone else in connection with this lease. Debtor has no objection to Movant liquidating the vehicle and receiving payments as an unsecured creditor through the plan.
Movant’s claim is treated in the Chapter 11 Plan. What is the relief that Movant is seeking?
APPEARANCE REQUIRED
Debtor(s):
Ireland Needlecraft, Inc. Represented By
9:30 AM
Steven R Fox
9:30 AM
fr/ 7/18/18
Docket 77
No objections to the amended plan have been filed. It appears that all of the requirements for plan confirmation have been met. The only ballot received was from Bank of New York Mellon, which constitutes an impaired consenting class under the plan. Debtor should include the required findings in the confirmation order.
Debtor never submitted orders on the claims objections which were granted on 8/15. Debtor should submit those orders as soon as possible.
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
fr. 11/1/17, 10/25/17, 1/17/18, 2/28/18, 5/2/18, 5/30/18, 7/18/18
Docket 1
- NONE LISTED -
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
Docket 65
- NONE LISTED -
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 1
This matter will be continued to 11/7 to trail the disclosure statement.
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
(1) Authorizing Employment of Donahoe & Young LLP
as Chapter 11 Consel; and (2) Authorizing Donahoe & Young LLP to Receive and Draw Down on Future Payments
Docket 27
D&Y indicates in its reply that any payment of fees would be subject to Court approval, but the language of the agreement states that this "evergreen retainer… is designed so that at the beginning of each billing cycle (typically calendar months but perhaps another period) D&Y is paid current and holds $10,000 as a deposit toward future work. D&Y may apply these funds (or withdraw these funds from Trust) as and when permitted to do so pursuant to the Order approving D&Y’s employment or a subsequent Order authorizing such payment." Trustee’s reading that D&Y is seeking to pay itself without court approval is a reasonable reading of the above quoted language. This should be clarified in the employment order.
Trustee’s concern about how these ongoing $10,000 retainer payments will affect Debtor’s cash flow are responded to in the reply brief. Does this adequately address the UST’s concern?
APPEARANCE REQUIRED
Debtor(s):
Happy Jump, Inc. Represented By Mark T Young
9:30 AM
Docket 1
No status report has been filed. The order on the motion to value was entered on August 6. Debtor failed to appear at the August 15, 2018 hearing, and the U.S. Trustee indicated that Debtor was not in compliance with monthly operating report requirements.
When will Debtor be filing its Second Amended Disclosure Statement?
APPEARANCE REQUIRED
Debtor(s):
Tours Incorporated, Inc. Represented By Mark E Brenner
11:00 AM
CAH 2014-2 BORROWER LLC
Docket 51
Petition Date: 6/2/16
Ch 13 plan confirmed: 12/5/16
Service: Proper; tenant served. Opposition filed. Movant: CAH 2014-2 Borrower, LLC
Property Address: 22419 Victory Bl., Canoga Park, CA 91307 Type of Property: Residential
Occupancy: lease in default Foreclosure Sale: n/a
UD case filed: 5/23/18 UD Judgment: 6/16/18
Movant alleges cause for relief under 11 U.S.C. 362(d)(1); (d)(2), with the specific relief as requested in paragraphs 2 (proceed under non-bankruptcy law), 4 (annulment of stay); 5 relief from the co-debtor stay; and 6 (waiver of 4001(a)
(3) stay). Movant alleges that Debtor has not tendered the monthly rent of $3,295 since May 1, 2018. Movant requests annulment of the stay, as it alleges that it filed and proceeded with the unlawful detainer complaint without notice or knowledge of the bankruptcy.
Debtor opposes the Motion, explaining that he had an emergency that caused him to fall behind on his rent. Debtor states that he requests Movant to vacate the default UD judgment and allow him to promptly cure the default. Debtor also opposes the request to annul the stay, arguing that his intentions were not to delay, hinder or defraud Movant. Debtor does not address whether Movant had notice or knowledge of the bankruptcy when it proceeded with the UD action.
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Edgar Rufino Hernandez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
CAH 2014-2 BORROWER LLC
Docket 39
Petition Date: 9/15/16
Ch 13 plan confirmed: 4/11/17
Service: Proper; tenant served. Opposition filed. Movant: CAH 2014-2 Borrower, LLC
Property Address: 22419 Victory Bl., Canoga Park, CA 91307 Type of Property: Residential
Occupancy: lease in default Foreclosure Sale: n/a
UD case filed: 5/23/18 UD Judgment: 6/16/18
Movant alleges cause for relief under 11 U.S.C. 362(d)(1); (d)(2), with the specific relief as requested in paragraphs 2 (proceed under non-bankruptcy law), 4 (annulment of stay); 5 relief from the co-debtor stay; and 6 (waiver of 4001(a)
(3) stay). Movant alleges that Debtor has not tendered the monthly rent of $3,295 since May 1, 2018. Movant requests annulment of the stay, as it alleges that it filed and proceeded with the unlawful detainer complaint without notice or knowledge of the bankruptcy.
Debtor opposes the Motion, explaining that she intends to cure the default. Debtor requests Movant to vacate the default UD judgment and allow her to promptly cure the default and finish the remainder of the lease. Debtor also opposes the request to annul the stay, arguing that her intentions were not to delay, hinder or defraud Movant. Debtor does not address whether Movant had notice or knowledge of the bankruptcy when it proceeded with the UD action.
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Aleyda Arias Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
FREEDOM MORTGAGE CORPORATION
Docket 35
- NONE LISTED -
Debtor(s):
Jeannie Claire Acdan Represented By Scott Kosner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 8/8/18
Docket 37
- NONE LISTED -
Debtor(s):
Thelma L. Gatlin-Wilson Represented By Kevin T Simon
Movant(s):
U.S. Bank Trust, N.A., as Trustee for Represented By
Merdaud Jafarnia Madison C Wilson Ashlee Fogle Nancy L Lee
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/16/18, 6/20/18, 7/18/18, 8/8/18
Docket 31
- NONE LISTED -
Debtor(s):
Lynne Suzanne Boyarsky Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 34
This case was dismissed on August 8, 2018, for the reasons stated at the hearing on confirmation. As such, this motion is DENIED as moot.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Robyn Jennifer Robinson Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 23
Petition Date: 4/13/18 Chapter: 13
Service: Proper; co-debtor served. Non-opposition filed by Debtor. Property: 7432 Oak Park Ave., Van Nuys, CA 91406
Property Value: $230,000 (per debtor’s schedules; title held jointly with Debtor's brother)
Amount Owed: $233,182 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $5,299.64 (4 payments of $1,050.91; three late charges of $15.00; attorney's fees of $1,081)
On August 16, 2018, Debtor filed a non-opposition to the Motion.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Edward Alberto Diaz Represented By Elena Steers
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
BMW BANK OF NORTH AMERICA
Docket 21
Petition Date:
Chapter 7 discharge entered: 8/20/18 Service: Proper. No opposition filed.
Property: 2013 Mercedes Benz GLK Class Utility vehicle Property Value: $18,300 (per Movant's evidence - NADA Guide) Amount Owed: $22,380
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $2,167.88 (4 payments of $541.97)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jose Antonio Nanola Paredes Represented By Navid Kohan
Joint Debtor(s):
Rowena Cruz Paredes Represented By Navid Kohan
11:00 AM
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 39
Petition Date: 6/19/18 Chapter: 13
Service: Proper. No opposition filed.
Property: two civil appeal bonds securing payment of a civil judgment against Debtors in the amount of $452,376
Property Value: not listed on Debtor's schedules Amount Owed: $452,376
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $452,376
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 6 (waiver of 4001(a)(3) stay). Relief granted as requested in paragraphs 7 (binding and effective for two years from the date of the entry of order); and 9 (binding and effective against any debtor for 180 days so that no stay shall arise as to this Property), due to multiple filings affecting Movants' rights to the subject property (see 1:18-bk-11178-MT; 1:18-bk-11065-VK).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Ian Ellis Silber Represented By Henry Glowa
11:00 AM
Joint Debtor(s):
Jane Ellen Silber Represented By Henry Glowa
Movant(s):
Kurt and Irene Silber Represented By Timothy R Hanigan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
BROKER SOLUTIONS INC DBA NEW AMERICAN FUNDING
Docket 15
Petition Date: 6/21/18 Chapter: 13
Service: Proper. Opposition filed.
Property: 1412 W. 89th St., Los Angeles, CA 90047 Property Value: $585,000 (per debtor’s schedules) Amount Owed: $352,282
Equity Cushion: 39.8% Equity: $232,718
Post-Petition Delinquency: unk.
Movant requests relief under 11 U.S.C. 362(d)(1) , with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (relief from co-debtor stay); 7 (waiver of the 4001(a)(3) stay); and 9 (in rem relief under 362(d)(4)). Movant alleges cause for in rem relief because of an unauthorized transfer and multiple bankruptcies affecting the subject property.
On October 10, 2017, Debtor's sister, Desiree Edwards, filed a chapter 13 petition, 2:17-bk-22427-SK (the "LA Case"). On February 21, 2018, Movant filed a motion for relief from the automatic stay, relating to this property. On March 20, 2018, an Order for Adequate Protection was entered. Ms. Edward's plan was confirmed on June 14, 2018, which provided for payment of arrears on Movant's claim.
On June 19, 2018, Movant filed a Declaration of Default Under Adequate Protection Order, alleging that Debtor had failed to make the APO payments due on May 1 and June 1, respectively. The Order Granting RFS was entered in the
11:00 AM
LA Case on June 20, 2018. Movant alleges that, on June 21, 2018, Ms. Edwards executed an unauthorized transfer of the subject property to her brother, Debtor. That same day, Debtor filed this chapter 13 case, with the same attorney as was employed by Ms. Edwards in the LA Case. Movant alleges that the unauthorized transfer and immediate bankruptcy filing by Debtor was done with the intent to delay, hinder, and defraud Movant.
Debtor opposes the Motion, arguing that the notice of default provisions of the LA case APO were not properly complied with and that the notices of default that were mailed to Ms. Edwards were sent to the wrong address. Debtor alleges that Movant's actions in the LA Case made it so that Ms. Edwards was unable to comply with the terms because Movant would not allow any extra time for payment. Debtor states that the Property is fully provided for in his proposed chapter 13 plan, and that all post-petition payments are current. Debtor provides evidentiary support for his position and appears to be able to cure all arrearages.
Given the large equity cushion protecting this claim, is Movant amenable to this property being reorganized in this bankruptcy?
APPEARANCE REQUIRED
Debtor(s):
Roderick Bill Norseweather Represented By
James Geoffrey Beirne
Movant(s):
Broker Solutions, Inc. dba New Represented By Mark S Krause
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 23
- NONE LISTED -
Debtor(s):
Kourosh Izadpanahi Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
VENTURA COUNTY CREDIT UNION
Docket 7
Petition Date: 6/25/18 Chapter: 7
Service: Proper. No opposition filed. Property: 2014 Nissan Rogue
Property Value: $15,383 (per Debtor's schedules) Amount Owed: $20,829
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $871.98 (approx. two payments of $435.99)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
William Alfano Represented By David R Hagen
Movant(s):
Ventura County Credit Union Represented By Ann G. Lee
11:00 AM
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
AMERICAN CONTRACTORS INDEMNITY COMPANY
Docket 8
Petition Date: 7/10/18 Chapter: 7
Service: Proper. No opposition filed. Movant: American Contractors Indemnity Co.
Relief Sought to: Pursue Pending Litigation XX Commence Litigation
Litigation Information
Pursue Insurance
Other
Case Name: Conservatorship of Rosita V. Andres, LP-013-825 Court/Agency: Los Angeles Superior Court
Date Filed: 9/25/08
Judgment Entered: 6/5/18 (LASC approved Stipulation for Surcharge) Trial Start Date: n/a
Action Description: stipulated surcharge of Debtor Grounds
Bad Faith Claim is Insured Claim Against 3rd Parties
Nondischargeable XX Mandatory Abstention Non-BK Claims Best Resolved in Non-BK Forum XX Other:
On 9/28/08, Debtor was appointed as temporary conservator for the Estate of Rosita V. Andres, on the condition that Debtor post a Probate and Fiduciary Bond in the amount of $220,000. Decl. of Tracy Stevenson, para. 2. Movant then issued and posted the Bond.
11:00 AM
On 4/4/16, Debtor was removed as conservator and a Public Guardian ("PG") was appointed. On 2/28/18, Debtor's stipulation with the Public Guardian and Movant that Debtor would be surcharged $130,000 for knowing breaches of her fiduciary duty. On 6/5/18, a Joint Judgment was issued against Debtor and Movant. Movant had intended, after the Joint Judgment became final in December 2018, to pay the PG to satisfy the Joint Judgment. Then, under California law, Movant would have filed a Motion in the State Court Action for a direct judgment against Debtor for the $130,000 and other costs. Because of the bankruptcy filing, Movant seeks relief from the automatic stay to conclude the State Court Action. Movant would then seek to use the resulting state court judgment for preclusion in the pending nondischargeability action against Debtor, 18-ap-01090-MT.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate); and 5 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Susan Fines Caldera Represented By Scott Kosner
Movant(s):
American Contractors Indemnity Represented By
R Gibson Pagter Jr.
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 7
Petition Date: 7/17/18 Chapter: 7
Service: Proper. No opposition filed. Property: 2016 Jeep Wrangler
Property Value: $15,000(per debtor’s schedules) Amount Owed: $48,496
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $4,080.70
Debtor surrendered the vehicle to Movant on or about 7/15/18.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Krystle Morrow Represented By Lindsey B Green
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
TRINITY FINANCIAL SERVICES, LLC
Docket 14
Petition Date: 7/24/18 Ch: 13
Service: Proper. Opposition filed. Movant: Trinity Fin. Services, LLC
Property Address: 17646 Raymer St., Northridge, CA 91325 Type of Property: residential
Occupancy: holdover after foreclosure Foreclosure Sale: 1/19/18
UD case filed: 6/21/18
Movant requests relief under 11 U.S.C. 362(d)(1); (d)(2), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)(3) stay). GRANT relief as to paragraph 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law); 9 (binding & effective against any debtor for 180- days); and 11 (binding & effective against this Debtor for 180-days). Movant allege that it foreclosed on the subject property in January and seeks to go forward with a pending unlawful detainer action to regain possession of the property. Movant seeks binding and effective relief because Debtor is a repeat filer.
Debtor opposes the Motion, arguing that Movant's foreclosure sale was invalid because, for various reasons, Movant did not have an interest in the subject property when it purportedly foreclosed in January 2018. On August 24, 2018, Debtor filed an adversary complaint seeking a declaratory judgment as to the various interest(s) in the property, and fraud against the former holder of the first
11:00 AM
position lien. See 1:18-ap-01099-MT. Debtor contends that this case was not filed in bad faith, as his previous case 17-bk-12195-VK was dismissed on his voluntary request because it had been hi-jacked. Furthermore, Debtor asserts that there is sufficient equity in the property to protect Movant's claim, even though it is Debtor's position that Movant's lien is wholly unsecured.
APPEARANCE REQUIRED
Debtor(s):
Daniel Mark Stipkovich Represented By Brandon J Anand
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
SOOK PARK AND DAE KEUN PARK REVOCABLE TRUST
Docket 9
This case was dismissed on August 10, 2018, for the reasons stated at the chapter 13 status conference. As such, this motion is DENIED as moot.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Min Ho Song Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/16/18, 7/18/18, 8/15/18
Docket 55
- NONE LISTED -
Debtor(s):
Arturo Juarez Represented By Shirlee L Bliss
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 9
On 7/23/18, Debtor filed this chapter 7 case. Debtor had one previous bankruptcy case that was dismissed within the previous year. The First Filing, 18-bk-11402-MT, was a chapter 7 that was filed on 6/1/18 and dismissed on 7/5/18 for failure to file all required case commencement documents.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor argues that the present case was filed in good faith notwithstanding the dismissal of the previous case for failure to file documents because injuries from a car accident that occurred approx. 8 days post-petition. Debtor states that since the First Filing was dismissed, she is under the care of several doctors to treat her various illnesses and ailments. Debtor states in the Motion that the property of the estate included in the request for relief is described in the attached Declaration, but the Declaration does not describe the property.
Service proper. No opposition filed.
MOTION GRANTED. RULING MAY BE MODIFIED AT HEARING. NO APPEARANCE REQUIRED.
Debtor(s):
Leslie Richards Pro Se
Movant(s):
Leslie Richards Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
11:00 AM
Adv#: 1:17-01004 Ballout v. Sarieddine
Docket 19
This matter was continued from August 8th to allow time for the settlement to be approved. What is the status of the settlement?
APPEARANCE REQUIRED
8/8/18 Tentative
Having reviewed the dockets for both the adversary and bankruptcy cases, and finding that this matter has settled, this pretrial conference will be continued to August 29, 2018 at 11 a.m., to allow time for the Motion to Approve Compromise under Rule 9019 to be resolved.
APPEARANCES WAIVED ON 8/8/18.
Debtor(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
Defendant(s):
Mike Sarieddine Represented By Daniel J King Daniel J King
Plaintiff(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01076 Seror v. Aslanjan et al
Docket 5
This hearing will be continued to October 3rd at 11:00. An order will issue
shortly.
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
Defendant(s):
Does 1-10, Inclusive Pro Se
AMERICAN FUNDERS CORP. Pro Se
Eva Askar Pro Se
Robert Askar Pro Se
Arthur Nagapetyan Pro Se
Anjana S. Sura Pro Se
Puja J. Savla Pro Se
Neelam J. Savla Pro Se
Greg Mkrchyan Pro Se
Mkrtchyan Investments, LP Pro Se
Natalia Usmanova Pro Se
Alexander Usmanov Pro Se
Sonia Kellzi Pro Se
11:00 AM
Zaven Kellzi Pro Se
Kellzi Family Trust Pro Se
Allen Melikian Pro Se
Helen Minassian Pro Se
Hamlet Betsarghez Pro Se
Razmik Aslanjan Pro Se
Plaintiff(s):
David Seror Represented By
Reagan E Boyce
Trustee(s):
David Seror (TR) Represented By Reagan E Boyce Richard Burstein
11:00 AM
Adv#: 1:18-01075 Levin, M.D. v. Jones
Docket 1
Discovery cut-off (all discovery to be completed): November 30, 2018 Expert witness designation deadline: Are any contemplated? Please advise Case dispositive motion filing deadline (MSJ; 12(c)): December 28, 2018 Pretrial conference: February 20, 2019 at 1 pm
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference): Feb. 6, 2019
PLAINTIFF TO LODGE SCHEDULING ORDER WITHIN 7 DAYS.
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Gordon Jones Pro Se
Plaintiff(s):
John Levin, M.D. Represented By Michael Jay Berger
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
Staying Foreclosure Sale Pending Adjudication of Issues under Complaint
fr. 5/23/18
Docket 6
The parties indicated they had reached a resolution, but it has not been filed.
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards
Selene Finance LP Represented By
Sonia Plesset Edwards
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
11:00 AM
Located at 5544 Fallbrook Avenue, Woodland Hills, California 91367 (APN 2040-012-021) Abandoned Nunc Pro Tunc to July 26, 2018
Docket 2124
GRANTED. NO APPEARANCE REQUIRED.
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Docket 2127
GRANTED. NO APPEARANCE REQUIRED.
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
17031 Halsey Street, Granada Hills, California 91344
(APN 2607-014-019) Abandoned Nunc Pro Tunc to June 19, 2018
Docket 2119
GRANTED. NO APPEARANCE REQUIRED.
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Docket 52
Property: 24301 Sylvan Glen Rd., Calabasas, CA 91302 Offer: $935,000
Purchaser: The Jennifer Farrell Trust
A conditional non-opposition was filed by secured creditor Specialized Loan Servicing, LLC ("SLS"). As a first position lienholder, SLS requests payoff in full. Trustee does not oppose this request. However, SLS also requests that the sale order include language stating that relief from the automatic stay will be granted if the property is not sold within 90 days of the order granting the motion to sell. Trustee opposes the inclusion of language regarding relief from the automatic stay.
The Court will not approve the language requiring automatic relief from the automatic stay. SLS can bring a motion for relief from the automatic stay at any time, and the court will evaluate relief from stay on the merits.
APPEARANCE REQUIRED
Debtor(s):
Scott Ray Ramage Represented By John D Faucher
Movant(s):
Amy L Goldman (TR) Represented By Todd A Frealy Carmela Pagay
11:00 AM
Trustee(s):
Amy L Goldman (TR) Represented By Todd A Frealy Carmela Pagay
1:00 PM
Adv#: 1:18-01029 Seror v. Abalkhad et al
Docket 51
- NONE LISTED -
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
OPEN BANK Represented By
John H Choi Tony K Kim
MBNM FINANCIAL, INC Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
ROMANO'S JEWELERS Represented By Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
1:00 PM
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
MELINA ABALKHAD Represented By Daniel J McCarthy
Randy Abalkhad Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
1:00 PM
Adv#: 1:18-01029 Seror v. Abalkhad et al
Definite Statement
Docket 53
- NONE LISTED -
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
OPEN BANK Represented By
John H Choi Tony K Kim
MBNM FINANCIAL, INC Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
ROMANO'S JEWELERS Represented By Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
1:00 PM
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
MELINA ABALKHAD Represented By Daniel J McCarthy
Randy Abalkhad Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
1:00 PM
Adv#: 1:18-01029 Seror v. Abalkhad et al
Status Conference re: Complaint to Recover Damages for:
1) Breach of Contract ; 2) Breach of Fiduciary Duties;
3) Aiding & Absetting; 4) Substantive Consolidation;
Impose Liability under Alter Ego Theory;
Unjust Enrichment /Restitutiion;
To avoid and Recover Post-Petition Transfer pursuant to 11 u.s.c. section 549
To recover Avoided Transfer pursuant to 11 u.s.c. 550, and
Automatic Preservation of Avoided Transfers pursuant to 11 u.s.c. section 551 fr. 5/23/18, 5/30/18
Docket 47
Discovery cut-off (all discovery to be completed*):
Expert witness designation deadline (if necessary):
Case dispositive motion filing deadline (MSJ; 12(c)):
Pretrial conference:
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil Procedure.
Meet and Confer
1:00 PM
Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
Discovery Motion Practice:
All discovery motions must be filed within 30 days of the service of an objection, answer, or response which becomes the subject of dispute or the passing of a discovery due date without response or production, and only after counsel have met and conferred and have reached an impasse with regard to the particular issue.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
OPEN BANK Represented By
John H Choi Tony K Kim
MBNM FINANCIAL, INC Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
ROMANO'S JEWELERS Represented By Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
1:00 PM
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
MELINA ABALKHAD Represented By Daniel J McCarthy
Randy Abalkhad Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
1:00 PM
Adv#: 1:18-01029 Seror v. Abalkhad et al
Docket 48
- NONE LISTED -
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
OPEN BANK Represented By
John H Choi Tony K Kim
MBNM FINANCIAL, INC Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
ROMANO'S JEWELERS Represented By Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
1:00 PM
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
MELINA ABALKHAD Represented By Daniel J McCarthy
Randy Abalkhad Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
Movant(s):
OPEN BANK Represented By
John H Choi John H Choi Tony K Kim Tony K Kim
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
10:00 AM
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 4/24/14, 6/5/14, 11/6/14, 3/19/15,
6/4/15, 7/22/15, 8/12/15, 9/9/15, 2/24/16,
5/25/16, 7/27/16, 9/28/16, 12/14/16; 2/8/17,
4/26/17,7/11/17; 9/6/17, 11/1/17, 11/30/17,
1/9/18; 5/1/18, 6/21/18
Docket 1
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz
Defendant(s):
Stripe Entertainment Group, Inc. Pro Se
Like Zebra, LLC Pro Se
KBS Dreams, Inc. Pro Se
Applied Funding, Inc. Pro Se
C2K Group, LLC Pro Se
Gwendolyn Phillips Pro Se
KEITH PHILLIPS Pro Se
Craig Rickard Pro Se
Kimberly S Ricketts Pro Se
10:00 AM
Process America, Inc. Pro Se
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
US Trustee(s):
United States Trustee (SV) Pro Se
10:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Disallowance of Claim [ 11 U.S.C. section 502}
Offset and Recoupment [11 U.S.C. section 553]
Accounting
Disallowance of Intrest of Claim [11U.S.C.502]
Voiding validity and extent of lien [11U.S.C. section503,F.R.B.P.7002(2)] 6)Turnover of property of the estate (Reserve Account)[11U.S.C. section 542]
Turnover of property of the estate (Residuals) [11 U.S.C. section 542]
Subordination of claim and lien [11 U.S.C. section 510]; and
Declaratory relief
fr. 11/5/14, 12/10/14; 12/18/14; 3/18/15, 5/27/15, 5/1/18 722/15, 9/9/15; 2/24/16, 5/25/16, 7/27/16, 9/28/16;
12/14/16, 2/8/17, 4/26/17, 7/11/17, 9/6/17, 11/1/17; 11/30/17,
1/9/18, 6/21/18
Docket 76
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
10:00 AM
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
10:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Docket 141
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
10:00 AM
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 3/13/14, 4/24/14, 6/5/14, 11/6/14, 3/19/15;
6/4/15, 7/22/15, 9/9/15, 2/24/16, 5/25/16, 7/27/16
9/28/16, 12/14/16, 6/21/18
Docket 1
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz Beth Ann R Young
Movant(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz Beth Ann R Young
11:00 AM
fr. 7/25/17, 9/26/17, 11/28/17, 1/23/18; 3/27/18; 4/24/18, 6/19/18; 7/31/18
Docket 100
- NONE LISTED -
An application for entry of discharge has been filed. However, according to statements made at the last hearing, the parties require an order specifying 1) that discharge will not be granted as to Selene Finance, 2) the amount still owed on that obligation, and 3) the distribution of funds by the trustee. The Court also indicated at the last hearing that if the Debtor was not able to work this out the case would be dismissed. Nothing has been filed and no order has been lodged. Unless Debtor has taken action on this by the September 11 hearing date, this case will be dismissed.
APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Movant(s):
Victoria Ruiz Represented By
Siamak E Nehoray Siamak E Nehoray Siamak E Nehoray
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/28/17, 5/23/17;l 7/25/17, 9/26/17, 11/28/17, 1/23/18; 3/27/18; 4/24/18, 6/19/18; 7/31/18
Docket 89
- NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 49
- NONE LISTED -
Patricia Blume ("Debtor") filed this objection to claim (the "Objection") of her mortgage lender Deutsche Bank Trust Company Americas ("Deutsche"), serviced by Nationstar Mortgage, LLC, which is now known as Mr. Cooper ("Nationstar"). Proof of claim 1-1 was filed by Nationstar in the amount of $716,065.20 on August 23, 2013 (before the claims bar date). The claim was amended on July 11, 2018 to claim
$981,863. This mortgage has a somewhat complicated history, as described in the Objection. Debtor alleges that Nationstar is attempting to include a $265,589.73 ballon payment amount in its accounting that was "written off" in a loan modification agreement before this case was filed. A loan modification agreement with the interlineations by Debtor and her husband striking out the portions referring to the
$265,798.73 non-interest-bearing balloon payment, and initials of a bank officer, is attached to the Objection as Exhibit 2; however, a separate copy of the loan modification agreement, without the relevant interlineations and with seemingly different signatures is attached to Nationstar’s opposition.
In its opposition to the Objection, Nationstar states that it amended its claim because it inadvertently failed to include in its initial proof of claim the non-interest bearing deferred/balloon payment amount of $265,798.73. Nationstar also invokes the anti- modification clause of § 1322(b)(2) to argue that Debtor may not modify its claim, or otherwise "should be apprised of its right to litigate this this issue in state court or through an adversary proceeding." The Court finds § 1322(b)(2) to be completely irrelevant to this inherently contractual issue. The Court declines Nationstar’s invitation to leave this matter for a state court, as this is simply an issue of whether
11:00 AM
the proof of claim was properly amended. This matter will require an evidentiary hearing.
As Debtor has rebutted the presumption of validity of the claim, and raised potential estoppel concerns, the burden of proof is on Nationstar to prove its amended claim.
APPEARANCE REQUIRED
Debtor(s):
Patricia Maria Blume Represented By Jeffrey J Hagen
Movant(s):
Patricia Maria Blume Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/31/18
Docket 76
NONE LISTED -
NONE LISTED -
Debtor(s):
Robert Richard Loski Represented By Gregory M Shanfeld
Joint Debtor(s):
Sheila Faith Loski Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/22/18, 6/19/18; 7/31/18
Docket 84
NONE LISTED -
NONE LISTED -
Debtor(s):
Charlene Decoff Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 66
NONE LISTED -
NONE LISTED -
Debtor(s):
Henry Guzman Represented By Ali R Nader
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 43
NONE LISTED -
NONE LISTED -
Debtor(s):
Fernando Becerril Represented By Ali R Nader
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/31/18
Docket 111
NONE LISTED -
NONE LISTED -
Debtor(s):
Humberto Delgadillo Garcia Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 47
NONE LISTED -
NONE LISTED -
Debtor(s):
Dawn Elizabeth Thomas Represented By Ali R Nader
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/31/18
Docket 68
NONE LISTED -
NONE LISTED -
Debtor(s):
Jacqueline Desiree Landaeta Alvarez Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 52
NONE LISTED -
NONE LISTED -
Debtor(s):
Dolores Margaret Lomeli Represented By Steven A Alpert
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 48
NONE LISTED -
NONE LISTED -
Debtor(s):
William Michael Desmuke Sr Represented By Claudia L Phillips
Joint Debtor(s):
Priscilla Ann Desmuke Represented By Claudia L Phillips
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 43
NONE LISTED -
NONE LISTED -
Debtor(s):
Damian M Wilson Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 34
NONE LISTED -
NONE LISTED -
Debtor(s):
Milton T Appel Represented By Stephen S Smyth William J Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 4/24/18, 6/19/18; 7/31/18
Docket 42
NONE LISTED -
NONE LISTED -
Debtor(s):
Mario Alberto Cerritos Represented By Luis G Torres
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/31/18
Docket 82
NONE LISTED -
NONE LISTED -
Debtor(s):
Irma Villalpando Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/31/18
Docket 105
NONE LISTED -
NONE LISTED -
Debtor(s):
Allen Charles Mixon III Represented By Stella A Havkin
Joint Debtor(s):
Gladys Stennis Mixon Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/31/18
Docket 61
NONE LISTED -
NONE LISTED -
Debtor(s):
Makedon Makarian Represented By
Rabin J Pournazarian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 42
NONE LISTED -
Debtor’s plan was confirmed 8/16/18. The Court previously sustained a separate objection to exemptions. Does Trustee wish to pursue this objection? No objection nor amended schedule C has been filed.
Debtor(s):
Cynthia Deniese Sanders Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 6/19/18
Docket 30
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Peter A. Holliday Represented By Stephen Parry
Movant(s):
Peter A. Holliday Represented By Stephen Parry Stephen Parry Stephen Parry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 22
NONE LISTED -
NONE LISTED -
Debtor(s):
Nazaret Kechejian Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 24
NONE LISTED -
NONE LISTED -
Debtor(s):
Hamid Farkhondeh Pro Se
Joint Debtor(s):
Mary Dadyan Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 23
NONE LISTED -
NONE LISTED -
Debtor(s):
Joshua M Smith Represented By David T Egli
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 19
NONE LISTED -
NONE LISTED -
Debtor(s):
Vincent Sunga Mallari Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Loyola Lalic Mallari Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 30
NONE LISTED -
NONE LISTED -
Debtor(s):
Francisco Cuevas Arias Represented By Shai S Oved
Joint Debtor(s):
Rosana L Arias Represented By Shai S Oved
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 21
NONE LISTED -
NONE LISTED -
Debtor(s):
Ian Ellis Silber Represented By Henry Glowa
Movant(s):
United States Trustee (SV) Represented By
S Margaux Ross
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 18
NONE LISTED -
NONE LISTED -
Debtor(s):
Barjinder Singh Represented By
D Justin Harelik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 20
NONE LISTED -
NONE LISTED -
Debtor(s):
Thomas Vy Nguyen Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 32
NONE LISTED -
There is an interesting issue of whether Mirzai applies or not to the res judicata analysis. Neither party discusses whether the rule in Bohbot,2014 Bankr. LEXIS 2680 might apply. In any case, this appears to be a complicated factual inquiry that may be better left to the judge who originally ruled on the issue.
The issue of the house and the boat can be discussed at the confirmation hearing in that this is a matter the Chapter 13 Trustee may want to evaluate before the next confirmation hearing.
Debtor(s):
Neli Maria Negrea Represented By Stella A Havkin
Movant(s):
Neli Maria Negrea Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 24
NONE LISTED -
NONE LISTED -
Debtor(s):
Peter Saucedo Represented By Matthew D. Resnik
Movant(s):
Peter Saucedo Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 81
NONE LISTED -
Nothing new has been filed. What is the status of the delinquency?
Trustee brings this motion to dismiss for expiration on the grounds that $2,525 remains to be paid. Debtor requests time to cure the delinquency.
APPEARANCE REQUIRED
Debtor(s):
Henry Gonzalez Silva Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 47
NONE LISTED -
NONE LISTED -
Debtor(s):
Jose R. Fernandez Represented By Donald E Iwuchuku
Joint Debtor(s):
Esther Fernandez Represented By Donald E Iwuchuku
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 56
NONE LISTED -
NONE LISTED -
Debtor(s):
Kathy Sophia Brening-Ray Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 40
NONE LISTED -
NONE LISTED -
Debtor(s):
Gabriel M. Aranda Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 1
APPEARANCE REQUIRED.
Debtor(s):
Joyce Ann Williams Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Jay Scott Cohen Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Fred S Hong Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 1
NONE LISTED -
Debtor(s):
Jocelyn A Soliven Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Armine Yeghiazarian Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 1
NONE LISTED -
Debtor(s):
Roger E Kendall Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
fr. 12/14/09, 1/11/10, 3/29/10, 6/30/10, 8/30/10, 8/31/10, 9/29/10, 11/10/10, 11/17/10, 1/31/11, 2/4/11, 2/10/11,
3/1/11, 3/29/11, 11/3/11, 11/17/11, 5/10/12, 8/30/12,
11/15/12, 3/7/13, 5/23/13, 6/27/13, 8/1/13, 9/12/13,
12/12/13, 11/13/14, 11/5/15, 6/2/16; 4/27/17, 4/26/17
Docket 1
Based on the 8/30/18 status report, it appears that payments are continuing as planned. Unless any party has anything else to raise at the status conference, this should be continued another year to see if the remaining cases resolve and pay out. Please advise whether a continued date of October 23, 2019 presents any conflicts.
Debtor(s):
Law Offices of Masry & Vititoe Represented By Leslie A Cohen
9:30 AM
fr. 7/18/18
Docket 197
Since the previous hearing, Debtor has filed an amended disclosure statement offering $15,000 as new value. The amended plan also changes treatment of secured creditors, including objecting creditor US Bank. This disclosure hearing is being heard on 21 days’ notice with the Court’s permission, and no new objections have been filed. Does the new plan satisfy the previous objections of US Bank and the Trustee?
APPEARANCE REQUIRED
7/18/18 Tentative
Two objections have been filed to the adequacy of this disclosure statement. The United States Trustee objects on the grounds that the discharge standard in the disclosure statement is incorrect. The discharge provision provides:
Upon completion of all payments to Class 4, Debtor may, after notice and a hearing, request the Court grant a discharge of all pre-confirmation debts, whether or not a creditor filed a proof of claim or accepted the Plan. Such discharge will not discharge Debtor from any debts that are non-dischargeable under section 523 or the obligations created by this Plan.
Disclosure Statement 21:16-20. As Trustee point out, in an individual chapter 11 case, the debtor does not receive a discharge until the debtor completes all payments under the plan, not only the members of a particular class. 11 U.S.C.
§ 1141(d)(5). Debtor should amend the disclosure statement to make the discharge provision mirror the requirements of § 1141.
Another objection was filed by creditor U.S. Bank, N.A. U.S. Bank first objects on the
9:30 AM
grounds that the disclosure statement only provides for a secured claim in its favor in the amount of $625,000, which the Court has determined is the value of the property located at 3037 W. 12th St., Los Angeles, CA 90006 (the "Property"). U.S. Bank argues that Debtor has failed to account for its security interest in the post-petition, pre-confirmation rents generated by the Property. Those rents constitute cash collateral due to an assignment of rents provision in the deed of trust against the Property. Debtor’s disclosure statement fails to add any and all net cash collateral that has accrued in Debtor’s DIP account for purposes of determining U.S. Bank’s secured claim.
Furthermore, U.S. Bank argues that by providing for only 4% of its total $312,351.29 unsecured claim, Debtor’s Chapter 11 plan is not fair and equitable because it violates the absolute priority rule of § 1129(b)(2)(B)(ii) and is therefore patently unconfirmable. U.S. Bank relies on Zachary v. California Bank & Trust, 811 F.3d 1191, 1194 (9th Cir. 2016). This Court agrees that, absent any new value contribution, the absolute priority rule as set forth in § 1129(b)(2)((B)(ii), applicable in individual chapter 11 cases per Zachary, precludes confirmation of this plan.
All objections to the disclosure statement are SUSTAINED and approval of the disclosure statement is DENIED.
APPEARANCE REQUIRED
Debtor(s):
Farideh Warda Represented By Todd L Turoci
9:30 AM
Docket 0
The First amended Disclosure Statement, Chapter 11 Plan of Reorganization (the "Plan"), and a ballot conforming to Official Form 14, shall be mailed, along with notice of all relevant dates, to creditors, the Office of the United States Trustee and other parties in interest, pursuant to Bankruptcy Rule 2002, no later than October 5, 2018
Ballots to be returned/objections to confirmation filed no later than October 31, 2018
Confirmation Brief stating why the Plan should be confirmed and admissible evidence supporting all applicable elements of 11 U.S.C. §1129, a ballot summary, and Debtor’s response to any objections to be filed no later than November 21, 2018
Confirmation hearing to be held on December 12, 2018 at 9:30 am
DEBTOR TO LODGE CONFIRMATION SCHEDULING ORDER WITH THE DATES SET BY THE COURT WITHIN 7 DAYS.
FAILURE TO LODGE THE CONFIRMATION SCHEDULING ORDER MAY RESULT IN DISMISSAL OR CONVERSION.
Debtor(s):
Farideh Warda Represented By Todd L Turoci
9:30 AM
Period: 7/8/2016 to 7/16/2018
Fees $55,230.00 Expenses: $338.00
Docket 253
No objections filed. Fees and expenses appear reasonable and necessary. GRANTED. No appearance required.
Debtor(s):
Samuel James Esworthy Represented By
M. Jonathan Hayes
Movant(s):
Samuel James Esworthy Represented By
M. Jonathan Hayes
M. Jonathan Hayes
M. Jonathan Hayes
M. Jonathan Hayes
M. Jonathan Hayes
9:30 AM
Docket 248
The United States Trustee ("Trustee") objects to this disclosure statement as containing inadequate information. Trustee points to discrepancies in rental income from Debtor’s several properties between Debtor’s disclosure statement (totaling
$6,500) and the projections to support the Plan’s feasibility (totaling $9,500 by the Court’s math, though Trustee states the sum is $9,025). The recent monthly operating reports match the higher rental income described in the projections.
Having reviewed the disclosure statements, there are a number of inconsistencies regarding the current rental status and income of the various properties in the body of the disclosure statement. Debtor’s reply acknowledges the deficiencies, and will amend the body of the disclosure statement prior to sending it to creditors. This appears to be a good solution
U.S. Bank N.A. objects on the grounds that the plan has not been filed in good faith on the grounds that it fails to provide for adequate protection payments to U.S. Bank pending confirmation. Debtor’s reply states that he is willing to make adequate protection payments to U.S. Bank beginning in September 2018 in the amount provided in the plan: $1,523. This seems reasonable, is the bank amenable to this arrangement?
APPEARANCE REQUIRED
Debtor(s):
Samuel James Esworthy Represented By
M. Jonathan Hayes
9:30 AM
fr. 9/1/16, 2/9/17, 3/22/17, 4/26/17, 7/5/17, 8/16/17; 9/27/17, 11/29/17, 2/14/18, 4/25/18,
6/13/18, 7/18/18
Docket 1
The Disclosure Statement (with changes discussed to rental income), Chapter 11 Plan of Reorganization (the "Plan"), and a ballot conforming to Official Form 14, shall be mailed, along with notice of all relevant dates, to creditors, equity security holders, the Office of the United States Trustee and other parties in interest, pursuant to Bankruptcy Rule 2002, no later than September 28, 2018
Ballots to be returned/objections to confirmation to be filed no later than Oct. 31, 2018
Confirmation Brief stating why the Plan should be confirmed and admissible evidence supporting all applicable elements of 11 U.S.C. §1129, a ballot summary, and Debtor’s response to any objections to be filed no later than November 28, 2018
Confirmation hearing to be held on December 12, 2018 at 9:30 am
DEBTOR TO LODGE CONFIRMATION SCHEDULING ORDER WITH THE DATES SET BY THE COURT WITHIN 7 DAYS.
FAILURE TO LODGE THE CONFIRMATION SCHEDULING ORDER MAY RESULT IN DISMISSAL OR CONVERSION.
Debtor(s):
Samuel James Esworthy Represented By
M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes
9:30 AM
M Jonathan Hayes
9:30 AM
Docket 160
The second amended plan and disclosure statement have a couple of inconsistencies. The disclosure statement provides for a 2.5% dividend to general unsecured creditors, while the plan provides for .0168%. Article V of the plan states that the plan will be funded with net proceeds upon sale of Debtor’s residence, but the residence has already been sold.
Debtor(s):
Anzhey Barantsevich Represented By Stephen L Burton
9:30 AM
fr. 9/8/16; 1/19/17; 1/26/17, 7/12/17; 9/27/17, 11/29/17, 2/28/18, 5/2/18, 5/23/18, 7/18/18
Docket 1
The Disclosure Statement (with changes discussed at hearing), Chapter 11 Plan of Reorganization (the "Plan"), and a ballot conforming to Official Form 14, shall be mailed, along with notice of all relevant dates, to creditors, equity security holders, the Office of the United States Trustee and other parties in interest, pursuant to Bankruptcy Rule 2002, no later than September 28, 2018
Ballots to be returned/objections to confirmation to be filed no later than Oct. 31, 2018
Confirmation Brief stating why the Plan should be confirmed and admissible evidence supporting all applicable elements of 11 U.S.C. §1129, a ballot summary, and Debtor’s response to any objections to be filed no later than November 28, 2018
Confirmation hearing to be held on December 12, 2018 at 9:30 am
DEBTOR TO LODGE CONFIRMATION SCHEDULING ORDER WITH THE DATES SET BY THE COURT WITHIN 7 DAYS.
FAILURE TO LODGE THE CONFIRMATION SCHEDULING ORDER MAY RESULT IN DISMISSAL OR CONVERSION.
Debtor(s):
Anzhey Barantsevich Represented By Stephen L Burton
9:30 AM
fr. 11/3/16; 3/30/17; 3/29/17, 6/21/17; 8/23/17,
5/2/18
Docket 1
No status report has been filed. APPEARANCE REQUIRED
5/2/18 Tentative
This will be continued to September 12, 2018 at 9:30 am. Based on the detailed status report, there is no need to incur addtional cost bringing debtor in on May 2. The payments to unsecured creditors have been as planned and remaining payments are primarily to secured creditors, so debtor may feel free to bring a motion for final decree as soon as all unsecured debts are paid.
Debtor(s):
Ireland Needlecraft, Inc. Represented By Steven R Fox Steven R Fox
9:30 AM
Docket 85
This Motion was originally continued due to improper service. The Court indicated in its tentative that service was improper and suggested using the FDIC address. The Debtor served Bank of New York Mellon ("BONYM") BONYM at the FDIC insured address and BONYM subsequently filed a response.
Under section 502, a proof of claim is deemed allowed, unless a party of interest objects. FRBP 3001(f) states that a Proof of Claim filed and executed in accordance with the rules shall constitute prima facie evidence of the validity and amount of the claim. FRBP 3001-3007.
Debtor argues that the claim was made in bad faith, given the lack of adequate documentation. Bad faith is not one of the enumerated reasons a claim may be disallowed under § 502(b). BONYM has attached an "allonge" which indicates that the loan should be paid to the order of BONYM. BONYM further attaches an accounting of the loan. Under In re Heath, 331 B.R. 424 (B.A.P. 9th Cir. 2005), it is not a sufficient objection to rely solely on an alleged lack of prima facie validity of the proof of claim and its documentation.
Because Debtor has not presented evidence that rebuts the presumed validity of the claim, Debtor’s Motion is DENIED.
APPEARANCE REQUIRED
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
9:30 AM
Mark E Goodfriend
9:30 AM
Docket 89
Chase bank, alleged holder of a secured claim against the Valleyheart Property, did not file a proof of claim in this case. Nor did it file opposition to this Motion. Debtor objects to the claim on the grounds that 1) the claim lacks supporting documentation,
2) the claim is made in bad faith, and 3) no prejudice to claimant. The Court previously continued this matter due to Debtor’s improper service upon Chase. The proof of service indicates that Chase bank was served by first class mail, rather than certified mail, which again does not satisfy FRBP 7004. Nor has Debtor identified a valid grounds for disallowance of the claim under § 502(b). In fact, the Court cannot identify any claim filed by Chase or any amount scheduled to be owed to Chase. Furthermore, see Calendar number 13.
Motion DENIED
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 79
The deed of trust upon which this claim rests is the same 1994 Deed of Trust executed by the Benjamin Kolodaro and Nily Kolodaro and the U.S. Small Business Administration. The USSBA has responded to the objection to their claim. This matter is therefore addressed in calendar number 13.
Motion DENIED
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 81
The response filed the U.S. Small Business Administration (the "SBA") indicates that the loan was sold in March 2002 to Bayview Financial Trading Group. The SBA further rightly rejects Debtor’s absurd argument that the proof of claim was filed in "bad faith," noting that the SBA did not file a proof of claim in this case. Debtor filed a "claim" by listing debtor in its schedule D. The SBA argues that the objection should be overruled on the basis that the SBA is not a creditor and has no interest in the property or the Debtor’s estate. The SBA also argues that the objection was not properly served, because the Objection to Claim constitutes a contested matter which must be served in the manner provided by Rule 7004.
The Court notes that this is the second objection to claim where a "creditor" filed a response only after the Court initially rejected the objection for improper service.
Furthermore, the SBA raises a serious issue regarding whether the current holder of the loan, Bayview, has been properly served. Debtor is attempting to avoid a consensual deed of trust without regard for the rights of the secured lender. Debtor’s game plan of scheduling debts, then objecting to the "claims" of those creditors is disturbing. Debtor is free to amend schedules at any time to remove those "claims," but Debtor continues to seek orders from the court disallowing these claims.
Service issues have been a constant theme in this case. In the relief from stay motion for the Valleyheart property, the movant alleged this bankruptcy filing was in bad faith as evidenced by the "transfers and other indicia of bad faith, such as listing Movant (a known creditor) on the Schedules with the wrong address." Notice of Tentative Ruling, Doc. 60 2:13-15. The Court made a finding on that motion that the Debtor was involved in a scheme to hinder, delay, or defraud creditors. The modus operandi employed as to the Valleyheart property appears to be the same here. The Court will not approve any objections to claim by this Debtor unless Debtor appears and produces evidence: 1) that the creditor to whose claim is objected to in fact has a claim against Debtor or property of the Debtor’s estate under § 102(2); 2) of how Debtor determined that the that this particular creditor has a claim, including relevant history; and 3) of what efforts the Debtor has made to determine the correct service
9:30 AM
address of that creditor.
Motion DENIED. SBA may set up as a straw man so that some argument can later be made against Bayview, who was never served. It is not clear what debtor is trying to do, but these claims objections are being done improperly.
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 87
Unifund, alleged holder of a secured claim against the Castillo Property, did not file a proof of claim in this case. Nor did it file opposition to this Motion. Debtor objects to the claim on the grounds that 1) the claim lacks supporting documentation and is unenforceable against the Debtor or the Property, 2) no prejudice to claimant; and 3) the claim is made in bad faith. The Court previously continued this matter due to Debtor’s improper service upon Chase. The proof of service indicates that Chase bank was served by first class mail, rather than certified mail, which again does not satisfy FRBP 7004. Nor has Debtor identified a valid grounds for disallowance of the claim under § 502(b). Debtor states that the claim "is unenforceable against the Debtor or the property," but specifies no factual or legal grounds for the assertion that this purported lien may not be enforced against the property to which it is attached. Furthermore, see Calendar number 13.
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 34
CHAMBERS COPIES MUST BE SUBMITTED WITH ONE PAGE PRINTED PER PAGE. THE 4 PAGES PER SHEET IS SIMPLY TOO HARD TO READ. MOTIONS WILL BE REJECTED IN THE FUTURE WITH SUCH COPIES.
The United States Trustee ("Trustee") objects to the disclosure statement in this single asset real estate case. Debtor’s only source of funds to implement the plan is contributions from Debtor’s principals. Trustee objects on the grounds that no proof is provided regarding the partners’ willingness or ability to pay the $100,000 required by the plan and the additional funds to ensure that Debtor has $10,000 on hands at all times.
As a reply to the Trustee’s objection, Debtor filed Declarations by Ubaldo Morales Escamilla and Maria Arce Morales. Ms. Morales and her husband are each 50% partners of the Debtor. The declaration states that the partners are willing to contribute the funds necessary to implement the debtor’s plan. The funds include over $35,000 from Mr. Escamilla’s personal account and over $55,000 from "the business account of U & M Waterproofing, of which I am a 50% partner, which currently has over $110,000 in its account."
With respect to the funds from U & M Waterproofing, the Court has been presented with no proof that Mr. Escamilla has the authority to bind the entity to such a large transfer which may be outside the ordinary course of a "waterproofing" business.
Who is the other 50% owner of U & M? How will the $300,000 required for renovation be funded? The feasibility of this plan is not explained.
There is also a reference to being defrauded out of the property and regaining it. More information should be provided about whose name the property is in, and in whose name the loans on the property are in. All declarants must testify under oath at the confirmation hearing. Who is the other 50% owner? Why did the debtor list Ubaldo Morales Escamilla and Maria Arce Morales as principles in paragraph B but not name the other 50% partner referred to in paragraph A of the Background section?
9:30 AM
APPEARANCE REQUIRED
Debtor(s):
MEJD PARTNERSHIP Represented By
Mark E Goodfriend Mark E Goodfriend
9:30 AM
Docket 1
5/23/18 Tentative
As this is a SAR, debtor should file a disclosure statement and plan by July
18. A notice and order of claims bar date should be submitted within a week for a July 13 bar date.
Unless other issues are raised at the hearing, the status conference will be continued to September 12 at 9:30 to be heard with the deisclosure statement. any motion to value should be self calendared before that date.
Debtor(s):
MEJD PARTNERSHIP Represented By
Mark E Goodfriend
11:00 AM
BROKER SOLUTIONS INC DBA NEW AMERICAN FUNDING
fr. 8/29/18
Docket 15
This hearing was continued so that the parties' counsel had an opportunity to discuss a consensual resolution. Nothing has been filed since the last hearing. What is the status of this motion?
APPEARANCE REQUIRED
8-29-18 TENTATIVE BELOW
Petition Date: 6/21/18 Chapter: 13
Service: Proper. Opposition filed.
Property: 1412 W. 89th St., Los Angeles, CA 90047 Property Value: $585,000 (per debtor’s schedules) Amount Owed: $352,282
Equity Cushion: 39.8% Equity: $232,718
Post-Petition Delinquency: unk.
Movant requests relief under 11 U.S.C. 362(d)(1) , with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (relief from co-debtor stay); 7 (waiver of the 4001(a)(3) stay); and 9 (in rem relief under 362(d)(4)).
Movant alleges cause for in rem relief because of an unauthorized transfer and multiple bankruptcies affecting the subject property.
On October 10, 2017, Debtor's sister, Desiree Edwards, filed a chapter 13 petition, 2:17-bk-22427-SK (the "LA Case"). On February 21, 2018, Movant filed a motion for relief from the automatic stay, relating to this property. On
11:00 AM
March 20, 2018, an Order for Adequate Protection was entered. Ms. Edward's plan was confirmed on June 14, 2018, which provided for payment of arrears on Movant's claim.
On June 19, 2018, Movant filed a Declaration of Default Under Adequate Protection Order, alleging that Debtor had failed to make the APO payments due on May 1 and June 1, respectively. The Order Granting RFS was entered in the LA Case on June 20, 2018. Movant alleges that, on June 21, 2018, Ms. Edwards executed an unauthorized transfer of the subject property to her brother, Debtor. That same day, Debtor filed this chapter 13 case, with the same attorney as was employed by Ms. Edwards in the LA Case. Movant alleges that the unauthorized transfer and immediate bankruptcy filing by Debtor was done with the intent to delay, hinder, and defraud Movant.
Debtor opposes the Motion, arguing that the notice of default provisions of the LA case APO were not properly complied with and that the notices of default that were mailed to Ms. Edwards were sent to the wrong address. Debtor alleges that Movant's actions in the LA Case made it so that Ms. Edwards was unable to comply with the terms because Movant would not allow any extra time for payment. Debtor states that the Property is fully provided for in his proposed chapter 13 plan, and that all post-petition payments are current. Debtor provides evidentiary support for his position and appears to be able to cure all arrearages.
Given the large equity cushion protecting this claim, is Movant amenable to this property being reorganized in this bankruptcy?
APPEARANCE REQUIRED
Debtor(s):
Roderick Bill Norseweather Represented By
James Geoffrey Beirne
Movant(s):
Broker Solutions, Inc. dba New Represented By
11:00 AM
Trustee(s):
Mark S Krause
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 6
APPEARANCE REQUIRED
Debtor(s):
Silvia Veronica Venegas Represented By Matthew D. Resnik
Movant(s):
Silvia Veronica Venegas Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 651
Petition Date: 5/20/11 Chapter: 7
Service: Proper. No opposition filed.
Property: 621-623 W. 62nd St., Los Angeles, CA 90044 Property Value: not provided
Amount Owed: unk Equity Cushion: unk. Equity: unk.
Post-Petition Delinquency: unk.
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfers of, and multiple bankruptcies affecting, the subject property.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); 8 (law enforcement may evict); and 9 (relief under 362(d)(4)).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
L.D.T. Investments Inc. Pro Se
Movant(s):
HSBC Bank USA, National Represented By
11:00 AM
Trustee(s):
Mark T. Domeyer Daniel K Fujimoto Caren J Castle
David Seror (TR) Represented By David Seror David Seror (TR) Steven T Gubner Corey R Weber Michael W Davis Richard Burstein Elissa Miller Aram Ordubegian Andy Kong
Jessica L Bagdanov Ronald P Abrams Talin Keshishian
11:00 AM
fr. 3/21/18, 5/16/18, 6/13/18, 8/8/818
Docket 78
This matter has been continued several times since the first hearing on March 21, 2018. At the hearing on June 13, 2018, the parties represented that Debtor has secured refinancing. On July 23, 2018, Debtor filed a Motion for Authority to Refinance Real Property (ECF doc. 95). On August 1, 2018, chapter 13 trustee Rojas filed a response to the Refinance Motion, recommending the Court deny the Refinance Motion (ECF doc. 97). What is the status of this Motion?
APPEARANCE REQUIRED.
3/21/18 Tentative Petition Date: 08/13/2012 Chapter: 13
Service: Proper. Opposition filed.
Property: 20637 Wells Drive, Woodland Hills, CA 91364 Property Value: $714,000 (per debtor’s schedules) Amount Owed: $772,540.69 (per RFS motion)
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency: $308,087.21 (10 payments of $4,410.38; 5 payments of
$8,350.33; 16 payments of $8,483.22; 8 payments of $8,644.15; $17,761.90 in post- petition advances; $1,031 in attorneys’ fees; less $1,445.86 in suspense account or partial paid balance)
Movant requests relief under 11 U.S.C. 362(d)(1). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5).
11:00 AM
Debtor filed a late opposition.
APPEARANCE REQUIRED
Debtor(s):
Elizabeth Maybalian Represented By Raymond H. Aver
Movant(s):
COMPASS BANK, its successors Represented By
Nichole Glowin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 8/15/18
Docket 44
This hearing was continued from 8/15/18 so that the parties could discuss resolving this matter with an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED.
8-15-18 TENTATIVE BELOW
Petition Date: 3/22/16
Chapter 13 plan confirmed: 6/15/16 Service: Proper. Opposition filed.
Property: 7239 Balboa Bl. #A, Van Nuys, CA 91406 Property Value: $490,000 (per debtor’s schedules) Amount Owed: $244,969
Equity Cushion: 50.0% Equity: $114,663.74
Post-confirmation Delinquency: $20,178.37 (4 payments of $929.47; 5 payments of $940.65; 12 payments of $941.60; 1 payment of $690.69; post- petition advances of $400; less suspense account balance of $902.65).
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment received on this debt was on or about March 22, 2017.
Debtor opposes the Motion, arguing that there is sufficient equity in the Property to adequately protect Movant's claim. Debtor, who lives at the
11:00 AM
Property, requests an APO to catch up on the delinquent payments. Is Movant amenable to Debtor's request of an APO?
APPEARANCE REQUIRED.
Debtor(s):
Dawn Elizabeth Thomas Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 73
Petition Date: 3/28/16
Chapter 13 plan confirmed: 3/9/17
Service: Proper; co-debtor served. No opposition filed. Property: 10580 Horse Creek Ave., Shadow Hills, CA 91040
Property Value: $975,000 (per Order Granting Motion to Avoid Lien, doc. 41) Amount Owed: $1,185,447 (1st DoT)
Equity Cushion: 0.0% Equity: $0.00.
Post-confirmation Delinquency: $64,849.66 (approx. 6 payments of $4,034; 10 payments of $4,064)
Movant alleges that the last payment received was on or about May 2017.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jacqueline Desiree Landaeta Alvarez Represented By
Matthew D Resnik
11:00 AM
Movant(s):
Bayview Loan Servicing, LLC as Represented By
Christina J O
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
GATEWAY ONE LENDING & FINANCE
fr. 8/15/18
Docket 27
This hearing was continued from 8/15/18 so that the parties could discuss resolving this matter with an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED.
8-15-18 TENTATIVE BELOW
Petition Date: 3/22/17
Chapter 13 plan confirmed: 8/3/17 Service: Proper. Opposition filed. Property: 2003 Hummer H2
Property Value: $11,815 (per debtor’s schedules) Amount Owed: $7,707.09
Equity Cushion: 35.1% Equity: $4,107.91
Post-Petition Delinquency: $3,393.16 (6 payments of $460.36, and attorney's fees of $631)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
Debtor requests to cure the delinquent payments in an APO. Is Movant amenable to this request?
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Jacobo Lopes Tunchez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
Docket 25
Petition Date: 8/28/17
Chapter 13 plan confirmed: 12/18/17 Service: Proper. No opposition filed.
Property: 20850 Martha St., Woodland Hills (Los Angeles), CA 1 Property Value: $690,000 (per debtor’s schedules)
Amount Owed: $657,876 Equity Cushion: 4.7% Equity: $32,124
Post-confirmation Delinquency: $18,610.66 (7 payments of $2,953.57; post- petition advances of $750; less suspense account balance of $2,814.33)
Movant alleges that the last payment received was on or about June 2018.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Seyed A Amid Represented By Devin Sawdayi
11:00 AM
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELLON
fr. 8/15/18
Docket 37
- NONE LISTED -
Debtor(s):
Melissa D Kurtz Represented By Kevin T Simon
Movant(s):
THE BANK OF NEW YORK Represented By Kelsey X Luu Jenelle C Arnold Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 42
Petition Date: 1/23/17 Chapter: 13
Service: Proper; co-debtor served. Opposition filed. Property: 8662 Norris Ave., Sun Valley, CA 91352
Property Value: $425,000 (per debtor’s schedules, she is a 50% owner with daughter)
Amount Owed: $175,660 Equity Cushion: 57% Equity: $249,340.
Post-Petition Delinquency: $13,288.58 (approx. 6 payments of $2,042.93, plus attorney's fees of $1,031)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 5 (relief from the co-debtor stay) and 6 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that she and the mortgage company have been in loan modification discussions and that she was assured by the mortgage company that they would help her with the modification. Debtor believes that the mortgage company and Movant (the mortgage servicer) were not communicating, and thus the mortgage servicer filed this Motion.
Debtor requests that the Court sua sponte transfer this case to Judge Barash so that Debtor can participate in the loan modification program.
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Gloria Rodriguez Represented By Stella A Havkin
Movant(s):
Lakeview Loan Servicing, LLC Represented By
S Renee Sawyer Blume Bonni S Mantovani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 17
Petition Date: 4/30/18
Chapter 7 discharge entered: 8/20/18 Service: Proper. No opposition filed. Property: 2014 Ford Fusion
Property Value: $14,024 (per Movant's evidence - KBB) Amount Owed: $19,559.35
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $2,088 (approx. 4 payments of $522)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Kendra Renee Settle Pro Se
Movant(s):
First City Credit Union Represented By Karel G Rocha
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
11:00 AM
Docket 19
Petition Date: 5/30/18 Converted to Chapter 7: 6/13/18
Service: Proper. Opposition & Reply filed.
Property: 1513 Twin Tides Place, Oxnard, CA 93035 Property Value: $1,100,000 (per debtor’s schedules) Amount Owed: $2,213,334 (1st DoT)
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $365,768 (approx. 84 payments of $8,298.18)
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that he has been working with Movant to arrange a short sale. Debtor requests time to complete the short sale process. Movant notes in Reply that short sale discussions are not grounds for denial of relief from stay.
Is Movant amenable to setting a date by which no foreclosure can be held, so that Debtor can complete the short sale process?
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Leonid Shneyder Represented By Stella A Havkin
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 15
Petition Date: 7/26/18 Chapter: 7
Service: Proper. No opposition filed. Property: 2017 Mercedes Benz GLE 350W Property Value: not provided - LEASE Amount Owed: $47,146
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $2,140 (approx. 3.2 payments of $679.44)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Diana Ivanova Kolev Represented By Eileen Keusseyan
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 8
On 8-19-18, Debtor filed this chapter 13 case. Debtor had one previous bankruptcy case that was dismissed within the previous year. The First Filing, 17-12057-MT, was a chapter 13 that was filed on 8/2/17 and dismissed on 6/22/18 for failure to make plan payments and to tender necessary documents.
Debtor now moves for an order continuing/imposing the automatic stay as to all creditors. Debtor argues that the present case was filed in good faith notwithstanding the dismissal of the previous case for failure to tender payments and documents because she was unable to comply with the requirements of her case, as a family emergency in the Philippines required her to spend money to travel there and bring her ill mother to the U.S. Debtor claims there has been a substantial change in her financial affairs. Debtor states that since the First Filing was dismissed, she is in negotiations to sell her real property, which will greatly reduce her expenses and enable her to make all required payments.
Service proper. No opposition filed.
MOTION GRANTED. RULING MAY BE MODIFIED AT HEARING. NO APPEARANCE REQUIRED.
Debtor(s):
Raquel Rosales-Yapo Represented By Kevin T Simon
Movant(s):
Raquel Rosales-Yapo Represented By
11:00 AM
Trustee(s):
Kevin T Simon
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 10
Petition Date: 8/28/18 Ch: 13
Service: Proper. No opposition filed. Movant: Grant C. Keary
Property Address: 18132 Cohasset St., Reseda, CA 91335 Type of Property: residential
Occupancy: holdover after eviction for default month-to-month tenancy Foreclosure Sale: n/a
UD case filed: unk.
UD Judgment: 6/20/18 (prepetition)
Writ of Possession issued: 6/30/18 (prepetition)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)
(3) stay). GRANT relief as to paragraph 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law) and 9 (binding & effective relief against any debtor for 180-days)
APPEARANCE REQUIRED DUE TO SHORTENED TIME RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Roger E Kendall Pro Se
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 8
Section 362(l)(1)(B) required that Debtor certify on his petition that he had deposited with the Clerk any rent that would become due during the 30–day period after the filing of the petition. Objecting Creditor Grant Keary established that Debtor's Certification under § 362(l)(1)(B) was patently false, where he deposited only $12 of the rent due under the defaulted month-to-month tenancy. Because the requirements of both § 362(l)(1)(A) and (B) must be met, as evidenced by use of the conjunction "and" between them, Debtor's failure to tender the required deposit to the bankruptcy court with his Petition is fatal to any claim that the eviction proceedings were stayed under § 362(l). In re Wilson, 2016 WL 3209533 (Bankr.C.D. Cal. May 31, 2016).
Creditor's objection is SUSTAINED.
Debtor(s):
Roger E Kendall Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01032 Swift Capital Corporation dba Swift Capital v. Fuscaldo et al
fr. 6/14/17; 11/15/17, 3/7/18, 5/2/18, 7/18/18
Docket 1
Based on the status report and tentative settlement, this matter will be
continued to September 12, 2018 at 11 am to allow and settlement to be effectuated.
NO Appearance required on 7/18/18
Debtor(s):
Matthew Fuscaldo Represented By Jeffrey J Hagen
Defendant(s):
Melissa Lynn Golde-Fuscaldo Pro Se
Matthew Fuscaldo Pro Se
Joint Debtor(s):
Melissa Lynn Golde-Fuscaldo Represented By Jeffrey J Hagen
Plaintiff(s):
Swift Capital Corporation dba Swift Represented By
Daren M Schlecter
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:17-01110 Weil, Chapter 7 Trustee v. Espitia et al
fr. 2/28/18, 3/7/18
Docket 1
- NONE LISTED -
Debtor(s):
Ovidio A Flores Represented By David H Chung
Defendant(s):
Elsa Espitia Pro Se
Oscar Espitia Pro Se
Joint Debtor(s):
Silene M Flores Espitia Represented By David H Chung
Plaintiff(s):
Diane C. Weil, Chapter 7 Trustee Represented By
Sonia Singh
Trustee(s):
Diane C Weil (TR) Represented By John N Tedford Sonia Singh
11:00 AM
11:00 AM
Adv#: 1:18-01024 Personal Energy Finance, Inc. v. Lavy
Docket 18
- NONE LISTED -
Debtor(s):
Nataly Lavy Represented By
Shai S Oved
Defendant(s):
Nataly Lavy Represented By
Shai S Oved
Plaintiff(s):
Personal Energy Finance, Inc. Represented By Donald T Dunning
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:18-01032 The GERSH LAW FIRM INC a CA corporation et al v. Elady
Docket 1
Having reviewed the docket for this adversary proceeding and finding that a
Motion to Dismiss the Crossclaim is set for hearing on Sept. 26, 2018, the Court finds cause to continue this status conference to September 26, 2018, at 1:00 p.m., to be heard at the same time as the Motion to Dismiss.
Plaintiff to give notice of continuance. APPEARANCES WAIVED ON 9/12/18
Debtor(s):
Yehuda Elady Represented By Richard Grossman
Defendant(s):
Yehuda Elady Pro Se
Plaintiff(s):
Gersh Derby, LLP Represented By Jeffrey F Gersh
The GERSH LAW FIRM INC a CA Represented By
Jeffrey F Gersh
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:18-01032 The GERSH LAW FIRM INC a CA corporation et al v. Elady et al
Gersh Derby LLP a California corporation; Gersh Derby, LLP; Paul B Derby A Professional Corporation a California corporation and dba Gersh Derby LLP; The GERSH
LAW FIRM INC a CA corporation fr. 7/18/18
Docket 5
Having reviewed the docket for this adversary proceeding and finding that a
Motion to Dismiss the Crossclaim is set for hearing on Sept. 26, 2018, the Court finds cause to continue this status conference to September 26, 2018, at 1:00 p.m., to be heard at the same time as the Motion to Dismiss.
Plaintiff to give notice of continuance. APPEARANCES WAIVED ON 9/12/18
Debtor(s):
Yehuda Elady Represented By Richard Grossman
Defendant(s):
Yehuda Elady Pro Se
Plaintiff(s):
Gersh Derby, LLP Represented By Jeffrey F Gersh
The GERSH LAW FIRM INC a CA Represented By
Jeffrey F Gersh
11:00 AM
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 13
Service of this motion was improper under Fed. R. Bankr. P. 7004(h), which requires service by Certified U.S. Mail on a named officer of the FDIC insured institution like Bank of America.
APPEARANCE REQUIRED.
Debtor(s):
Kourosh Izadpanahi Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 14
APPEARANCE REQUIRED.
Debtor(s):
Kourosh Izadpanahi Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 15
Motion is DENIED, as section 522(f) is inapplicable to consensual deeds of trust.
APPEARANCE REQUIRED.
Debtor(s):
Kourosh Izadpanahi Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 16
Service of this motion was improper under Fed. R. Bankr. P. 7004(h), which requires service by Certified U.S. Mail on a named officer of the FDIC insured institution like Capital One.
APPEARANCE REQUIRED.
Debtor(s):
Kourosh Izadpanahi Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
Adv#: 1:18-01029 Seror v. Abalkhad et al
fr. 8/29/18
Docket 51
Background
Multiple defendants in this action have filed Motions to Dismiss the First Amended Complaint under Fed. R. Civ. P. 12(b)(6) (collectively, the "Motions"), including defendants Open Bank, A California Corporation ("Open Bank") and Wells Fargo Bank, N.A. ("Wells Fargo") (the "Banks"). The Court previously granted the Banks’ motions to dismiss the original complaint on statute of limitations grounds, but allowed plaintiff to amend the complaint to include facts to support a new argument for tolling of the statute of limitations. Plaintiff in this action is David Seror ("Trustee"), acting as chapter 7 trustee for corporate debtor R.J. Financial, Inc. ("Debtor"). Trustee has brought actions against the Banks for aiding and abetting a breach (or breaches) of fiduciary duty by Debtor’s CEO and primary shareholder, Randy Abalkhad aka Ramil Abalkhad ("Randy").
The primary breach of fiduciary duty to which the aiding and abetting allegations relate are post-petition (but pre-conversion to chapter 7) checks written to "cash" by Randy as Debtor’s principal.1 The 46 checks at issue were written during a two-month period from July to August of 2014 and total approximately $399,249. FAC, 23:25-24:5. The checks were typically for amounts just under $10,000. Id. The checks were issued from Debtor’s account at Open Bank and were negotiated or cashed at the same Wells Fargo branch. Id. Trustee has alleged that Open Bank knew that Randy, by
1:00 PM
issuing the checks to cash, was "improperly and fraudulently" taking the funds for his own personal benefit. FAC, 28:22-27. Trustee alleges that Open Bank "presumably" had Randy provide documentation as to his corporate authority to act on behalf of the Debtor. FAC, 28:17-21.
Trustee has also alleged that Wells Fargo knew that Randy was improperly and fraudulently taking funds from the Debtor by cashing the checks at the Wells Fargo branch. FAC, 29:9-15. Trustee alleges that both banks have a policy for reporting suspicious activity, such as the 46 checks for amounts just under $10,000, and that neither bank adhered to its own policy and did not report this "questionable activity" to the Debtor or to proper authorities. FAC, 29:1-27.
Standard
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the allegations set forth in the complaint. A Rule 12(b)(6) dismissal "may be based on either a lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory." Kwan v. SanMedica Int'l, 854 F.3d 1088, 1093 (9th Cir. 2017).
In resolving a Civil Rule 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. Id. at 1096. On the other hand, the court is not bound by conclusory statements, statements of law, or unwarranted inferences cast as factual allegations. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007); Clegg v. Cult Awareness Network, 18
F.3d 752, 754-55 (9th Cir. 1994).
Discussion
The Banks raise several affirmative defenses in support of their Motions and, additionally, argue that Debtor has failed to state a plausible claim for relief.
Statute of Limitations
1:00 PM
The Banks renew their arguments that this action was untimely filed.
The applicable statute of limitations for a claim for aiding abetting a breach of fiduciary duty is the same as the statutes of limitations for the primary offense. Am. Master Lease LLC v. Idanta Partners, Ltd., 225 Cal. App. 4th 1451, 1479 (2014), as modified (May 27, 2014). There is no dispute that the applicable statute of limitations is three years under Cal. Civ. Proc. Code §
338. Because the transfers at issue allegedly occurred in July and August 2014, the statute would typically bye time-barred as of July or August 2017. This adversary proceeding was filed on March 14, 2018, nearly four years after the relevant transfers.
A Trustee bringing claims on behalf of a debtor corporation steps into the debtor’s shoes and Debtor’s knowledge is imputed to the trustee. In re Mediators, Inc., 105 F.3d 822. 825-26 (2d Cir. 1997); Nasr v. De Leon, 18 F. App'x 601, 605 (9th Cir. 2001). Therefore, the discovery rule is not available to toll the statute of limitations. Trustee argues that the doctrine of equitable tolling and the doctrine of adverse domination apply to toll the statute of limitations until either Trustee was appointed on July 14, 2015 or November 2015, when the Trustee learned of the alleged improper conduct at a continued meeting of creditors. Using either of these dates, Trustee’s action would be timely.
As discussed in the Court’s adopted tentative on the Banks’ Motions to dismiss the original complaint, "Trustee does not provide any support that the equitable tolling doctrine, which is read into every federal statute of limitations, In re United Ins. Mgmt., Inc., 14 F.3d 1380, 1384 (9th Cir. 1994), also applies to California common law claims." Trustee’s opposition to the Motions primarily relies upon the adverse domination doctrine.
Adverse Domination
Under the adverse domination doctrine, "[a] statute of limitations tolls when a claim arises from a director's or employee's defalcation and the wrongdoers' control makes discovery impossible." Smith v. Superior Court,
1:00 PM
217 Cal. App. 3d 950, 954 (Ct. App. 1990). Tolling the statute of limitations under the adverse domination theory "may be appropriate in situations where there is such domination and control as to preclude non-wrongdoing employees from ‘discovery.’" California Union Ins. Co. v. Am. Diversified Sav. Bank, 948 F.2d 556, 565 (9th Cir. 1991). As one court cogently exlpained:
[T]he adverse domination doctrine is merely a corollary of ... the discovery rule. . . giving credence to the basic principle that knowledge of a cause of action is meaningless unless it is coupled with an ability to act.
In re Fair Fin. Co., 834 F.3d 651, 681 (6th Cir. 2016), reh'g denied (Sept. 23,
2016).
In an unpublished decision, the Ninth Circuit rejected the application of the adverse domination doctrine under California law where "the alleged dominating agent and the alleged wrongdoer are not the same." Nasr, 18 F. App'x at 605 n. 4. Trustee argues that, unlike the Nasr case, the "alleged dominating agent and the alleged wrongdoer" are the same in this case.
Trustee cites the Court to non-binding authority for the proposition that "under California law, the adverse domination doctrine is not limited to actions against corporate insiders who allegedly dominated the corporation. Damian v. A-Mark Precious Metals, Inc., No. CV 16-7198 FMO (SSX), 2017 WL 6940515, at *4 (C.D. Cal. Aug. 28, 2017). After reviewing the two decisions, the Court finds the reasoning of Damian compelling, and the Nasr decision simply is both not on point and not appropriate to rely on as an unpublished decision. The "alleged wrongdoer" referred to in Nasr is not a stand-in for "defendant." In Nasr, the self-dealing (or "wrongdoing") agent was Geary, while Reeder was the dominating agent. Damian persuasively explains California law permitting application of the adverse domination doctrine in this situation. As spelled out by Damian, the adverse domination doctrine may be employed to toll the statute of limitations against third-party defendants.
1:00 PM
Open Bank argues that the adverse domination doctrine does not
apply because Trustee "has alleged a controlling party other than [Randy] Abalkhad." Open Bank argues that Randy’s wife Melina Abalkhad ("Melina") was also a person in control of the Debtor’s operations. While Trustee primarily focuses on Randy’s domination over the Debtor, Melina is also alleged to have aided and abetted the relevant breaches of fiduciary duty. To the extent Melina had the authority to act on behalf of Debtor, the allegations are clear that she was complicit in Randy’s actions. FAC, 30:12-17.
Furthermore, Trustee also alleges that "Randy (and Melina) adversely dominated the Debtor’s operations until the July 14, 2015 Chapter 7 conversion." FAC 14:6-8 (emphasis added). These allegations are sufficient to overcome Open Bank’s argument regarding Melina’s power to control the Debtor.
Open Bank also argues that adverse domination does not apply because Debtor was a debtor-in-possession at the time of Randy’s alleged breaches, and therefore could not have "complete dominion" over the Debtor because certain of Debtor’s actions were subject to approval of the bankruptcy court. A bankruptcy court does not exercise the type of control over a chapter 11 debtor, particularly post-confirmation, contemplated by the adverse domination doctrine. In fact, the very concept of a debtor-in- possession contemplates a debtor in control of the corporation operating just as trustee would. See 11 U.S.C. 1101(1).
The facts alleged in the FAC fall squarely within the purview of the adverse domination doctrine. Debtor’s claims allegedly arose as a result of Randy’s defalcation, assisted by Melina, and Randy and Melina’s control of Debtor made discovery and prosecution of those claims impossible. Smith, 217 Cal. App. 3d 954. Because the adverse domination doctrine applies, the three-year statute of limitations was tolled during the period of the bankruptcy where Randy remained in control of the Debtor, until at least July 14, 2015.
The action is therefore timely.
1:00 PM
Aiding and Abetting Breach of Fiduciary Duty
California has adopted the common law rule for subjecting a defendant to liability for aiding and abetting an intentional tort. A person may be liable for aiding and abetting a breach of fiduciary duty in two circumstances. Am.
Master Lease LLC v. Idanta Partners, Ltd., 225 Cal. App. 4th 1451, 1477 (2014), as modified (May 27, 2014). The first requires that the aider and abettor owe an independent fiduciary duty to the victim and "requires only that the aider and abettor provide substantial assistance to the person breaching his or her fiduciary duty." Id. The second theory arises when the aider and abettor commits an independent tort, making "a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act." Id. Two elements must be pled before liability may be imposed under this independent tort: (1) the defendant must have actual knowledge of the primary wrong; and (2) the defendant must give substantial assistance or encouragement to the principal wrongdoer. Casey v. U.S. Bank Nat. Assn., 127 Cal. App. 4th 1138, 1145 (2005); Am. Master Lease LLC, 225 Cal. App. 4th at 1475 ("[L]iability for aiding and abetting depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially assisted.").
The alleged transfers at issue constituted a breach of Randy's fiduciary duty of loyalty to Debtor because, by writing checks from Debtor's account to cash allegedly for his own use and benefit, Randy failed to act in Debtor's best interest and instead acted in his own. It is undisputed that the Banks did not owe Debtor an independent fiduciary duty. In order to state a claim for aiding and abetting that breach of fiduciary duty, Trustee must allege that the Banks had actual knowledge that Randy's actions constituted a breach of fiduciary duty and that the Banks actions substantially assisted Randy in that breach.
In its reply, Wells Fargo raises the argument that no facts are alleged that would indicate that Wells Fargo knew that there was a fiduciary
1:00 PM
relationship between Randy and Debtor. FAC, 7:1-2. Debtor is not alleged to have maintained an account with Wells Fargo. Trustee alleges for the first time in his opposition to the Motion that "presumably, Wells Fargo had Randy, as the Debtor’s president, provide some form of documentation and/or proof as to Randy’s corporate authority to act on behalf of Debtor in cashing checks at Wells Fargo." Opposition, 11:11-15.
Trustee has alleged that Open Bank "knew that Randy was improperly and fraudulently taking funds from the Debtor by issuing forty-six (46) checks in July and August 2014." FAC, 28:12-16. Trustee further alleges that, "presumably," Open Bank required Randy, as Debtor’s president, to provide documentation as proof of his authority to act on behalf of Debtor. FAC, 28:17-21. Trustee further alleges that Open Bank knew that the transfers were for Randy’s own benefit. FAC, 28:22-27. These allegations go beyond a claim that Open Bank knew that "something fishy" was going on, as it argues in its motion.
Allegations regarding state of mind under the pleading standard of Fed. R. Civ. P. 8(a) must meet the "plausibility" standard of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). "To survive a motion to dismiss for failure to state a claim upon which relief can be granted, factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact." Id. at 555.
The cashing of the checks at each of the Banks is insufficient to show that the Banks aided and abetted the violations of fiduciary duty. There is no allegation that the Banks knew what Randy Abalkhad was actually doing with the funds. It is too great a leap to infer aiding and abetting a breach of fiduciary duty based on the use of cash alone. The Banks’ duty is to report suspicious activity for numerous checks under $10,000 is a duty owed to relevant governmental authorities and not to creditors. These allegations do not rise to the level described in Casey. Simply cashing checks for an
1:00 PM
authorized signatory, without more, is insufficient under Twombly.
Conclusion
Because of the failure to plead aiding and abetting adequately, there is no need to reach the in pari delicto issue. The Banks’ motions to dismiss are GRANTED.
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
MELINA ABALKHAD Represented By Daniel J McCarthy
Randy Abalkhad Represented By Daniel J McCarthy
OPEN BANK Represented By
John H Choi Tony K Kim
MBNM FINANCIAL, INC Represented By
1:00 PM
Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
ROMANO'S JEWELERS Represented By Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
WELLS FARGO BANK Represented By Bernard J Kornberg
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
1:00 PM
Adv#: 1:18-01029 Seror v. Abalkhad et al
Definite Statement fr. 8/29/18
Docket 53
Background
The lead bankruptcy case, assigned number 1:10-bk-10209-MT, was filed by R.J. Financial, Inc. dba Romano’s Jewelers ("Debtor"), as a chapter 11 on January 7, 2010. Debtor operated eight retail jewelry stores throughout southern California and had approximately 60 employees at the time the case was filed. Debtor’s primary shareholder is Randy (Ramil) Abalkhad ("Randy"), who ran day-to-day operations for the business. Debtor confirmed a chapter 11 plan of reorganization on April 11, 2013 (the "Plan"). In July 2015, after mounting allegations that Randy was engaged in questionable activity including transferring the Debtor’s assets to newly formed entities, the Court ordered that the case be converted to chapter 7.
Following conversion, David Seror was appointed as chapter 7 trustee ("Trustee"). In this adversary, filed on March 14, 2018, Trustee alleges a number of causes of action against Randy, his wife Melina Abalkhad ("Melina"), various entities allegedly owned by the couple, and banks that served the various defendants. The various entities allegedly owned by Randy and Melina are Diamond Trading Company of Glendale Galaria – Romano Jewelers, LLC ("DTC Glendale"); Diamond Trading Company of Main Place – Romano’s Jewelers, LLC ("DTC Main Place"); Diamond Trading Company of Plaza Bonita – Romano’s Jewelers, LLC ("DTC Plaza Bonita"); Diamond Trading Company of Temecula Mall – Romano’s Jewelers, LLC ("DTC Temecula Mall"); Diamond Trading Company of Cerritos – Romano’s Jewelers, LLC ("DTC Cerritos"); Diamond Trading Company of Downey –
1:00 PM
Romano’s Jewelers, LLC ("DTC Downey"); California Diamonds Trading Company – Lakewood, LLC ("DTC Lakewood"); Romano’s Jeweler’s Services, Inc. aka Romano’s Jeweler’s, Inc. ("Romano’s Jeweler’s Services"); Branden & Company, Inc. fka RJ Brandon, Inc. ("Branden"); and MBNB Financial, Inc. ("MBNB"). Collectively, the Court will refer to the parties listed in the previous sentence, all of which are represented by the same counsel, as the "Abalkhad Defendants."
The Court previously granted in part and denied in part the Abalkhad Defendants’ motion to dismiss and for a more definite statement. The only cause of action that was deemed to be sufficiently pled, and therefore not at issue in this motion, is the first cause of action for breach of contract against Randy. Trustee then filed a First Amended Complaint ("FAC"). This Motion to Dismiss Second to Seventh Causes of Action in First Amended Complaint and for a More Definite Statement (the "Motion") was subsequently filed by the Abalkhad Defendants.
Standard
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the allegations set forth in the complaint. A Rule 12(b)(6) dismissal "may be based on either a lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory." Kwan v. SanMedica Int'l, 854 F.3d 1088, 1093 (9th Cir. 2017).
In resolving a Civil Rule 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. Id. at 1096. On the other hand, the court is not bound by conclusory statements, statements of law, or unwarranted inferences cast as factual allegations. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007); Clegg v. Cult Awareness Network, 18
F.3d 752, 754-55 (9th Cir. 1994).
A motion for a more definite statement under Rule 12(e) may be granted if a pleading to which the moving party may respond "is so vague or ambiguous that the party cannot reasonably prepare a response."
Discussion
1:00 PM
The Motion attacks the sufficiency of the pleading of the second
through seventh causes of action. The Court will address each separately.
Breach of Fiduciary Duties by Randy
The elements of an action for breach of fiduciary duty under California law are 1) a fiduciary relationship, 2) a breach thereof, and 3) damages proximately caused by the breach. Second Measure, Inc. v. Kim, 143 F. Supp. 3d 961, 979 (N.D. Cal. 2015). Directors and officers of a corporation hold a fiduciary relationship in relation to the corporation. Bancroft-Whitney Co. v. Glen, 64 Cal. 2d 327, 345 (1966).
A public policy, existing through the years, derived from a profound knowledge of human characteristics and motives, has established a rule that demands of a corporate officer or director, peremptorily and inexorably, the most scrupulous observance of his duty, not only affirmatively to protect the interests of the corporation committed to his charge, but also to refrain from doing anything that would work injury to the corporation, or to deprive it of profit or advantage which his skill and ability might properly bring to it, or to enable it to make in the reasonable and lawful exercise of its powers.’
Id. Where a fiduciary relationship exists, the fiduciary has a "duty to act with the utmost good faith for the benefit of the other party." Persson v. Smart Inventions, Inc., 125 Cal. App. 4th 1141, 1160 (2005). "A failure to act in good faith may be shown, for instance, where the fiduciary intentionally acts with a purpose other than that of advancing the best interests of the corporation, where the fiduciary acts with the intent to violate applicable positive law, or where the fiduciary intentionally fails to act in the face of a known duty to act, demonstrating a conscious disregard for his duties." Leyte-Vidal v. Semel, 220 Cal. App. 4th 1001, 1014 (2013). Under California law, inherent in each fiduciary relationship "is the duty of undivided loyalty the fiduciary owes to its beneficiary." Gilman v. Dalby, 176 Cal. App. 4th 606, 614 (2009).
1:00 PM
The Motion argues that Trustee has failed to cure the defects of the
original complaint. The FAC and opposition argue that Randy had a duty of loyalty, a duty to act in Debtor’s best interest, not to conduct business for his own benefit and not to unduly risk corporate assets that might otherwise be used to pay creditors. FAC, 21:26-22:4. Trustee specifies eight actions taken by Randy which constituted breaches of his fiduciary duties:
his failure and refusal to collect and make "new value" contribution required under the Debtor's plan;
"floating funds" and making significant cash withdrawals and/or transfers from Debtor's accounts without any accounting or justification. (The Motion divides floating funds and cash withdrawals into two separate items. While the Court agrees that "floating funds" still has not been defined by Trustee, the Court can treat this as a single item, as alleged in the complaint as funds that may not have been used for proper purposes.)
failing to maintain accurate books and records for the Debtor;
commingling the Debtor's books and records with other entities owned and controlled by Randy and Melina;
using Debtor's assets to fund other businesses owned by Randy or Melina;
allowing Debtor's assets to be transferred for no consideration to entities owned and controlled by Randy "(i.e. leasehold interest, jewelry)";
continuing to do business with MBNB after the expiration of the Court's 2010 order regarding transactions with MBNB had expired; and
conducting business with Branden and paying inflated prices after the expiration of the Court's 2010 order regarding transaction with Branden
FAC, 22:17-23:18.
The Motion argues that the above do not adequately allege damages, or "even why they were wrongful." It also discusses each allegation on its own and ignores the overall picture they describe. While Trustee fails to explain why some of the allegations matter, for the most part the combined effect
1:00 PM
must be considered.
"For example," the Motion argues, "just because there was bad record- keeping or that MBNB and Branden helped keep the Debtor alive by factoring its sales and selling jewelry to Debtor at wholesale prices does not mean that such conduct damaged the Debtor or its creditors." Abalkhad Defendants’ Motion, 4:1-6. While Randy’s failure to maintain accurate books and records for the Debtor and "commingling" the books with those of other entities might not be a violation of fiduciary duty in and of itself, those allegations must be read in the context of the other allegations that he took large sums of cash out of the Debtor and funded other companies with the Debtor’s assets. The lack of record keeping would make it easier to carry out the other actions.
With respect to the Abalkhad Defendants’ argument MBNB and Branden "helped keep the debtor alive by factoring its sales and selling jewelry at wholesale prices," this is not the appropriate time for defendants to allege disputed facts. This may indeed be a defense to the allegations, but the sufficiency of the Trustee’s allegations are all that can be considered at this stage. The FAC alleges that Debtor paid inflated prices to Branden, which is a sufficient allegation of harm for the pleading stage. The complaint does not contain any allegations of harm resulting from the "sell[ing] accounts receivable to MBNB after the expiration" of the Court order. FAC, 23:8-12.
The preface to that allegation refers to the duty of loyalty and self-dealing, so the allegation may stand since it is within that context.
The Abalkhad Defendants also argue that Trustee’s allegations that Randy made the 2011-2014 cash transactions for his own personal benefit are conclusory and potentially violate F.R.B.P. 9011. The 9011 footnote is not relevant at this point, and will not be discussed. The allegations in the FAC, as written, seem to indicate that all of the cash transactions from 2011 to 2014, totaling in excess of $2.1 million were used for Randy’s personal benefit and depriving Debtor and Debtor’s creditors of those funds for Debtor to pay its debts. FAC, 23:19-24, 24:12-16. The question is whether it is plausible that checks written out to cash in suspicious amounts from a corporate debtor’s bank account and cashed at a different bank might constitute a scheme by the principal to loot the Debtor corporation. Such allegations are plausible and supported by sufficient factual allegations that the Court does not find the allegations to be conclusory. Twombly, 550 U.S.
1:00 PM
at 555-57. The allegations provide a roadmap of operating a large business using cash transactions where Randy was the last person to be in possession of the funds, as far as Debtor’s records are alleged to show. A conclusion that Randy retained those funds after he acquired them follows where creditors were not paid as required and is not conclusory for purposes of the pleading standard under Rule 8.
The Abalkhad Defendants also misconstrue theory 6 above, arguing that there was nothing wrongful about closing of Debtor’s Glendale location and allowing it to reopen as the entity DTC Glendale. The crux of theory 6 is that Randy used Debtor’s assets to supply inventory and/or pay for the lease of DTC Glendale. FAC, 18:12-13 ("A non-Debtor store, DTC Glendale, was operated on premises leased by the Debtor."). Damages are adequately pled. The Court agrees that the details surrounding the Glendale store could have been much clearer, specifically whether Trustee alleges that Debtor’s jewelry assets provided the inventory for DTC Glendale. See FAC, 19:5-16. Under Rule 8’s pleading standard, the details of the operation of DTC Glendale may be supplied later.
The Abalkhad Defendants lastly argue that theory 1 above does not constitute a breach of fiduciary duty. Trustee argues that Randy breached his fiduciary duties by failing to pay the Debtor, or collect from himself on the Debtor's behalf, $200,000 pursuant to the New Value Contribution required by the plan. While failure to make a new value contribution would likely not violate the fiduciary duties Randy owed to the Debtor by itself, it may be considered as part of the overall scheme to operate Debtor for his own gain and not in the interests of paying creditors. As set forth in the Court's ruling on the previous Motion to Dismiss, Trustee has stated a claim for breach of contract against Randy for his failure to make the required new value contribution. The failure to make a capital contribution may additionally be considered as part of the series of actions constituting a breach of fiduciary duty.
The reply reiterates the argument that Trustee has not adequately alleged damage to Debtor. The Abalkhad Defendants point to the statement in the FAC "transactions and transfers between [Randy’s] companies to the Debtor’s detriment" as the only example of damage being alleged against the Debtor or creditors. There is no talismanic approach to alleging damages
1:00 PM
required by Rule 8(a). As set forth above, looting assets and overpaying for jewelry are additional allegations of damage to the Debtor.
The Motion is denied as to breach of fiduciary duty.
Aiding and Abetting Breach of Fiduciary Duty by Melina
California has adopted the common law rule for subjecting a defendant to liability for aiding and abetting an intentional tort. A person may be liable for aiding and abetting a breach of fiduciary duty in two circumstances. Am.
Master Lease LLC v. Idanta Partners, Ltd., 225 Cal. App. 4th 1451, 1477 (2014), as modified (May 27, 2014). The first requires that the aider and abettor owe an independent fiduciary duty to the victim and "requires only that the aider and abettor provide substantial assistance to the person breaching his or her fiduciary duty." Id. The second theory arises when the aider and abettor commits an independent tort, making "a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act." Id. Two elements must be pled before liability may be imposed under this independent tort: (1) the defendant must have actual knowledge of the primary wrong; and (2) the defendant must give substantial assistance or encouragement to the principal wrongdoer. Casey v. U.S. Bank Nat. Assn., 127 Cal. App. 4th 1138, 1145 (2005); Am. Master Lease LLC, 225 Cal. App. 4th at 1475 ("[L]iability for aiding and abetting depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially assisted.").
The FAC alleges generally that Melina knew of Randy’s breaches of fiduciary duty, described above. FAC, 8-11. Trustee alleges that Melina knew that Randy was using Debtor’s funds for personal gain and benefit, including the cash transactions discussed above. FAC, 27:22-26. The totality of the allegations makes it clear that Melina was closely involved with the various jewelry businesses owned by Randy and herself. FAC, 3:10-15 ("Melina is Randy’s spouse"), 3:21-20-22 ("Melina is identified as the chief executive officer and sole member of DTC Glendale"), 4:6-7 ("Melina is identified as the chief executive officer and sole member of DTC Main Place"), 27:8-11 ("Melina. . . was also an officer, director, manager, and/or person in control of the Debtor"), 14:2 ("Randy (and Melina) operated, managed and controlled the Debtor’s operations"), 17:1-6 ("[The Abalkhad Defendants] had entangled
1:00 PM
business dealings with the Debtor").
The Motion argues that the FAC "fails to inform Melina what she supposedly did in acting ‘with complicity and knowledge’ . . . and in rendering ‘substantial assistance.’" Motion, 5:20-21. The FAC adequately alleges facts indicating that Melina knew of the improper activity alleged. As Randy’s alleged spouse, business partner, as an agent for Debtor, and as the alleged principal of entities to which assets were allegedly wrongfully transferred, Melina is alleged to have sufficient knowledge and involvement of each of the breaches of fiduciary duty alleged against Randy. The Court agrees that the allegations lack specific detail but the complaint must be construed in the light most favorable to the Trustee at this point. The Motion is denied as to the third cause of action as against Melina.
§ 549(a) Avoidance of Post-petition Transfers
The Fourth cause of action alleges violations of § 549(a). Section 549(a) provides as follows:
Except as provided in subsection (b) or (c) of this section, the trustee may avoid a transfer of property of the estate--
that occurs after the commencement of the case; and
(2)(A) that is authorized only under section 303(f) or 542(c) of this title; or
(B) that is not authorized under this title or by the court.
The purposes of section 549 "is to provide a just resolution when the debtor himself initiates an unauthorized postpetition transfer. The general rule in such situations is that the trustee is authorized to avoid the transfer in order to protect the creditors." 40235 Washington St. Corp. v. Lusardi, 329 F.3d 1076, 1081 (9th Cir. 2003).
The Abalkhad Defendants move to dismiss the §§ 549, 550, and 551
1:00 PM
causes of action based on the lack of specificity in what allegedly was improperly transferred. The complaint does not say what parts of the transfers were improper—only that to the extent to which they were improper they should be avoided. This formulation is too theoretical and vague such that the defendants cannot adequately defend the allegations. To the extent that Debtor set up these transactions to benefit the other defendant entities to the harm of Debtor’s creditors, that evidence may be introduced as part of the action for violation of fiduciary duties. The lack of specific tracing and explanation of what parts of the transfer are improper makes these causes of action too vague, even by Rule 8 standards.
Even if the Trustee had alleged specific transactions and how they were improperly structured, they would still only show a breach of fiduciary duty, and not a violation of § 549. Neither side has adequately addressed the requirement of § 549 that "property of the estate" be transferred.
Upon the commencement of a case, a bankruptcy estate is created under § 541(a). Upon confirmation of a chapter 11 plan, except as otherwise provided in the plan or in the order confirming the plan, all property of the estate vests in the debtor. § 1149(b). Debtor’s plan of reorganization, confirmed on April 11, 2013 (the "Plan"), states:
Post-Confirmation Operations and Management.
The Reorganized Debtor has the right to continue to manage its property and business after the Effective Date.
All property of the estate, including, without limitation, cash collateral, will revest on the Effective Date in the Reorganized Debtor, free and clear of all claims, liens, interests and encumbrances, except for the lien of WSB.
On or prior to the effective Date, the Reorganized Debtor will be managed by Randy Abalkhad.
1:00 PM
Plan, Doc. 331-1 p. 37 (emphasis added). Again, on page 50, the plan states:
C. Vesting Of Property In Reorganized Debtor
The Confirmation of the Plan vests all of the property of the Estate in the Reorganized Debtor free and clear of all claims, liens, interests and encumbrances, except as expressly provided in the Plan.
The Order on Confirmation of Chapter 11 Plan (Doc. No. 396) also provides that all of the property of the estate shall vest in the Debtor:
25. Except as otherwise provided in the Plan, this Order, or the Exhibits to the Plan, on the Effective Date all property of the Estate shall vest in the Reorganized Debtor free and clear of all Claims, liens, encumbrances, and Interests. From and after the Effective Date, the Reorganized Debtor may operate its business and use, acquire and dispose of property and settle and compromise liabilities without supervision by the Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules, other than those restrictions expressly imposed by the Plan and this Order.
Confirmation Order 7:21-27.
Trustee’s action seeks to utilize § 549(a), which allows avoidance of transfers of property of the estate, to avoid transfers which occurred after all of the estate’s property had revested in debtor due to plan confirmation.
Courts have generally concluded that this is an impermissible use of § 549. Matter of Ford, 61 B.R. 913, 917 (Bankr. W.D. Wis. 1986) ("The property of the estate revested in the debtor subject only to outstanding liens. Section 549(a) expressly applies only to property of the estate. Since all of the debtor's property revested it is clear that the trustee may not avoid any transfers which occurred after confirmation of the debtor's plan."); In re Chattanooga Wholesale Antiques, Inc., 930 F.2d 458, 462 (6th Cir. 1991)
1:00 PM
("Under § 1141(b), however, ‘the confirmation of a plan vests all of the property of the estate in the debtor.’ Thus, at the time the monthly payments were made to the bank the property of the estate had been revested in the debtor, as debtor in possession, and was no longer ‘property of the estate.’"); In re Oakhurst Lodge, Inc., 582 B.R. 784, 792 (Bankr. E.D. Cal. 2018) (citing In re Chattanooga Wholesale Antiques favorably); In re Hiller, 143 B.R. 263, 266 (Bankr. D. Colo. 1992) ("a chapter 7 trustee cannot use Section 549 to recover property which had revested in the debtor and was transferred post- confirmation and pre-conversion"). The only exception to this clear reading of "property of the estate" appears to be where the plan itself provides otherwise.
The Court agrees with the reasoning of these cases. Trustee cannot avoid transfers which occurred post-confirmation but pre-conversion because those transfers did not involve property of the estate. The Motion is GRANTED as to the fourth cause of action. Because the fifth, sixth, and seventh causes of action are all dependent upon the success of the fourth, the motion is GRANTED as to those causes of action as well.
Conclusion
The Motion is further DENIED as to cause of action number two. The Motion is DENIED as to cause of action three. The Motion is GRANTED as to causes of action four through seven. Trustee shall prepare an order in accordance with the ruling.
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
OPEN BANK Represented By
John H Choi Tony K Kim
1:00 PM
MBNM FINANCIAL, INC Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
ROMANO'S JEWELERS Represented By Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
MELINA ABALKHAD Represented By Daniel J McCarthy
Randy Abalkhad Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By
1:00 PM
Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
1:00 PM
Adv#: 1:18-01029 Seror v. Abalkhad et al
fr. 8/29/18
Docket 48
See Calendar Number 38.
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
OPEN BANK Represented By
John H Choi Tony K Kim
MBNM FINANCIAL, INC Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
ROMANO'S JEWELERS Represented By Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
1:00 PM
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
MELINA ABALKHAD Represented By Daniel J McCarthy
Randy Abalkhad Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
Movant(s):
OPEN BANK Represented By
John H Choi John H Choi Tony K Kim Tony K Kim
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
1:00 PM
Adv#: 1:18-01029 Seror v. Abalkhad et al
Status Conference re: First Amended Complaint to Recover Damages for:
1) Breach of Contract ; 2) Breach of Fiduciary Duties;
3) Aiding & Absetting; 4) Substantive Consolidation;
Impose Liability under Alter Ego Theory;
Unjust Enrichment /Restitutiion;
To avoid and Recover Post-Petition Transfer pursuant to 11 u.s.c. section 549
To recover Avoided Transfer pursuant to 11 u.s.c. 550, and
Automatic Preservation of Avoided Transfers pursuant to 11 u.s.c. section 551
fr. 5/23/18, 5/30/18; 8/29/18
Docket 47
Discovery cut-off (all discovery to be completed*):
Expert witness designation deadline (if necessary):
Case dispositive motion filing deadline (MSJ; 12(c)):
Pretrial conference:
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil
1:00 PM
Procedure. Meet and Confer
Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
Discovery Motion Practice:
All discovery motions must be filed within 30 days of the service of an objection, answer, or response which becomes the subject of dispute or the passing of a discovery due date without response or production, and only after counsel have met and conferred and have reached an impasse with regard to the particular issue.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
OPEN BANK Represented By
John H Choi Tony K Kim
MBNM FINANCIAL, INC Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
1:00 PM
ROMANO'S JEWELERS Represented By Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
MELINA ABALKHAD Represented By Daniel J McCarthy
Randy Abalkhad Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
8:30 AM
Docket 8
GRANT
DENY
No appearance by Debtor
withdrawn by Debtor
undue hardship
not in best interest of Debtor
agreement is incomplete
agreement is not on the mandatory form
other
Petition date: 7/18/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2017 Dodge Ram 1500
Debtor’s valuation of property (Sch. B): $20,000 Amount to be reaffirmed: $21,447.25
APR: 9.99% (fixed)
Contract terms: $165 for one month, then $485 for 55 months Monthly Income (Schedule I): $1,768
Monthly expenses: (Schedule J): $2,815
8:30 AM
Disposable income: <$1,047>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor states that his income increased because he now has regular employment.
Debtor has a right to rescind agreement anytime prior to discharge, or until October 30, 2018, whichever is later.
Debtor(s):
Jeremy Jack Represented By
David S Hagen
Movant(s):
Ally Financial Represented By Brenda Groschen
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
Docket 17
GRANT
DENY
No appearance by Debtor
withdrawn by Debtor
undue hardship
not in best interest of Debtor
agreement is incomplete
agreement is not on the mandatory form
other
Petition date: 5/25/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2013 Chevrolet Equinox
Debtor’s valuation of property (Sch. B): $13,500 Amount to be reaffirmed: $17,304.92
APR: 12.84% (fixed)
Contract terms: $555.80 per month for 36 months Monthly Income (Schedule I): $4,095.24
Monthly expenses: (Schedule J): $3,423.38
8:30 AM
Disposable income: $671.86
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor states that she is employed full-time. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until October 6, 2018, whichever is later.
Debtor(s):
Corynne Antonia Kendall Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
Motion to Avoid Lien Junior Lien with Trinity Financial Services, LLC
fr. 7/31/18
Docket 23
- NONE LISTED -
7/31/18 Tentative
Service: Proper. Opposition Filed.
Property Address: 13536 Beaver Street, Sylmar, CA 91342 First trust deed: $641,450.71 (JP Morgan Chase Bank, NA)
Second trust deed (to be avoided): $88,829.00 (Trinity Financial Services, LLC) Fair market value per Debtor’s appraisal: $480,000
Fair market value per Trinity’s appraisal: $675,000
Parties should advise whether they want an evidentiary hearing or to submit briefs and have this decided based on the written appraisals.
Debtor(s):
Angela Flores Toledo Represented By Nima S Vokshori Luke Jackson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Docket 141
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
9:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Disallowance of Claim [ 11 U.S.C. section 502}
Offset and Recoupment [11 U.S.C. section 553]
Accounting
Disallowance of Intrest of Claim [11U.S.C.502]
Voiding validity and extent of lien [11U.S.C. section503,F.R.B.P.7002(2)] 6)Turnover of property of the estate (Reserve Account)[11U.S.C. section 542]
Turnover of property of the estate (Residuals) [11 U.S.C. section 542]
Subordination of claim and lien [11 U.S.C. section 510]; and
Declaratory relief
fr. 11/5/14, 12/10/14; 12/18/14; 3/18/15, 5/27/15, 5/1/18 722/15, 9/9/15; 2/24/16, 5/25/16, 7/27/16, 9/28/16;
12/14/16, 2/8/17, 4/26/17, 7/11/17, 9/6/17, 11/1/17; 11/30/17,
1/9/18, 6/21/18, 8/30/18
Docket 76
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Plaintiff(s):
Process America, Inc., a Nevada Represented By
9:00 AM
Beth Ann R Young John-Patrick M Fritz
9:00 AM
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 4/24/14, 6/5/14, 11/6/14, 3/19/15,
6/4/15, 7/22/15, 8/12/15, 9/9/15, 2/24/16,
5/25/16, 7/27/16, 9/28/16, 12/14/16; 2/8/17,
4/26/17,7/11/17; 9/6/17, 11/1/17, 11/30/17,
1/9/18; 5/1/18, 6/21/18, 8/30/18
Docket 1
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz
Defendant(s):
Process America, Inc. Pro Se
Kimberly S Ricketts Pro Se
Craig Rickard Pro Se
KEITH PHILLIPS Pro Se
Gwendolyn Phillips Pro Se
C2K Group, LLC Pro Se
Applied Funding, Inc. Pro Se
KBS Dreams, Inc. Pro Se
Like Zebra, LLC Pro Se
Stripe Entertainment Group, Inc. Pro Se
9:00 AM
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
US Trustee(s):
United States Trustee (SV) Pro Se
9:00 AM
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 3/13/14, 4/24/14, 6/5/14, 11/6/14, 3/19/15;
6/4/15, 7/22/15, 9/9/15, 2/24/16, 5/25/16, 7/27/16
9/28/16, 12/14/16, 6/21/18, 8/30/18
Docket 1
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz Beth Ann R Young
Movant(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz Beth Ann R Young
9:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Docket 159
NONE LISTED -
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Lei Lei Wang Ekvall Kyra E Andrassy
Movant(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
Process America, Inc., a Nevada Pro Se
Process America, Inc., a Nevada Pro Se
9:00 AM
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
9:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Docket 141
NONE LISTED -
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
9:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Disallowance of Claim [ 11 U.S.C. section 502}
Offset and Recoupment [11 U.S.C. section 553]
Accounting
Disallowance of Intrest of Claim [11U.S.C.502]
Voiding validity and extent of lien [11U.S.C. section503,F.R.B.P.7002(2)] 6)Turnover of property of the estate (Reserve Account)[11U.S.C. section 542]
Turnover of property of the estate (Residuals) [11 U.S.C. section 542]
Subordination of claim and lien [11 U.S.C. section 510]; and
Declaratory relief
fr. 11/5/14, 12/10/14; 12/18/14; 3/18/15, 5/27/15, 5/1/18 722/15, 9/9/15; 2/24/16, 5/25/16, 7/27/16, 9/28/16;
12/14/16, 2/8/17, 4/26/17, 7/11/17, 9/6/17, 11/1/17; 11/30/17,
1/9/18, 6/21/18, 8/30/18; 9/20/18
Docket 76
Answer and counterclaim filed 7/13/18. Status conference
set for 9/26/18 at 11:00 a.m. -jc
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
9:00 AM
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
9:00 AM
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 4/24/14, 6/5/14, 11/6/14, 3/19/15,
6/4/15, 7/22/15, 8/12/15, 9/9/15, 2/24/16,
5/25/16, 7/27/16, 9/28/16, 12/14/16; 2/8/17,
4/26/17,7/11/17; 9/6/17, 11/1/17, 11/30/17,
1/9/18; 5/1/18, 6/21/18, 8/30/18; 9/20/18
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz
Defendant(s):
Process America, Inc. Pro Se
Kimberly S Ricketts Pro Se
Craig Rickard Pro Se
KEITH PHILLIPS Pro Se
Gwendolyn Phillips Pro Se
C2K Group, LLC Pro Se
9:00 AM
Applied Funding, Inc. Pro Se
KBS Dreams, Inc. Pro Se
Like Zebra, LLC Pro Se
Stripe Entertainment Group, Inc. Pro Se
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
US Trustee(s):
United States Trustee (SV) Pro Se
9:00 AM
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 3/13/14, 4/24/14, 6/5/14, 11/6/14, 3/19/15;
6/4/15, 7/22/15, 9/9/15, 2/24/16, 5/25/16, 7/27/16
9/28/16, 12/14/16, 6/21/18, 8/30/18; 9/20/18
Docket 1
NONE LISTED -
Having considered the status report filed by Debtor regarding the status of the 2nd Cir. appeal and finding good cause, this status conference is continued to February 8, 2017 at 1:00 p.m.
Debtor to give notice of the continued status conference. NO APPEARANCE REQUIRED ON 12/14/16.
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz Beth Ann R Young
Movant(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz Beth Ann R Young
10:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Disallowance of Claim [ 11 U.S.C. section 502}
Offset and Recoupment [11 U.S.C. section 553]
Accounting
Disallowance of Intrest of Claim [11U.S.C.502]
Voiding validity and extent of lien [11U.S.C. section503,F.R.B.P.7002(2)] 6)Turnover of property of the estate (Reserve Account)[11U.S.C. section 542]
Turnover of property of the estate (Residuals) [11 U.S.C. section 542]
Subordination of claim and lien [11 U.S.C. section 510]; and
Declaratory relief
fr. 11/5/14, 12/10/14; 12/18/14; 3/18/15, 5/27/15, 5/1/18 722/15, 9/9/15; 2/24/16, 5/25/16, 7/27/16, 9/28/16;
12/14/16, 2/8/17, 4/26/17, 7/11/17, 9/6/17, 11/1/17; 11/30/17,
1/9/18, 6/21/18, 8/30/18; 9/20/18
Docket 76
Answer and counterclaim filed 7/13/18. Status conference set for 9/26/18 at 11:00 a.m. -jc
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
10:00 AM
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
10:00 AM
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 3/13/14, 4/24/14, 6/5/14, 11/6/14, 3/19/15;
6/4/15, 7/22/15, 9/9/15, 2/24/16, 5/25/16, 7/27/16
9/28/16, 12/14/16, 6/21/18, 8/30/18; 9/20/18
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz Beth Ann R Young
Movant(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz Beth Ann R Young
10:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Docket 141
NONE LISTED -
While this argument will not be continued, there will be an opportunity for a brief response to the late filed documents, with a reply, and the court will not rule on the issues related to the documents until reading both additional briefs.
Cynergy may submit a brief responding solely to the additional supplemental brief by September 28. Process america may reply by October 5. The court will not issue a ruling before October 5, and will take the matter under advisement following receipt of the last brief that day.
There are plenty of other issues to discuss in the motion so that there is no need to delay everything. There is also no need to spend any time discussing the sealing issues. All requested matter has been sealed and removed from public view.
Each side will be given 45 minutes, commencing with movant, as to all issues on calendar.
As to future dates, the status conferences currently noticed for 9/26 and 10/3 are vacated. They will be continued and trail to the next substantive hearing. as the 10/11 motion hearing date appears to present a problem, a new date will be selected. Counsel should advise which of the following dates are preferred to continue the motion to dismiss and all status conferences to: 10 am on either 10/12, 15 or 16.
10:00 AM
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
10:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Docket 159
NONE LISTED -
Plaintiff seeks to compel production of its document request numbers 7 and
8. Cynergy opposes on the basis of relevance and burden. They also claim they have provided other info which allows debtor to figure out the accounting.
The court disagrees with Cynergy and grants the motion to compel. Cynergy relies on a South Dakota Chapter 7 case to argue that anything post-petition is irrelevant. This is a chapter 11 case, not chapter 7. Any assets belonging to or due to the debtor post-petition are highly relevant.
The information provided thus far is insufficient to determine the issue. The request is not unduly burdensome. Cynergy's position is basically that we should just take its word for it. That is not how this works. Produce the requested documents. The ledger should also be unredacted to be useful. Under Rule 37(a)(5), Cynergy is to pay Process America's fees and expenses for bringing this discovery motion. The request for terminating sanctions is denied at this time.
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
10:00 AM
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Lei Lei Wang Ekvall Kyra E Andrassy
Movant(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
Process America, Inc., a Nevada Pro Se
Process America, Inc., a Nevada Pro Se
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
10:00 AM
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 4/24/14, 6/5/14, 11/6/14, 3/19/15,
6/4/15, 7/22/15, 8/12/15, 9/9/15, 2/24/16,
5/25/16, 7/27/16, 9/28/16, 12/14/16; 2/8/17,
4/26/17,7/11/17; 9/6/17, 11/1/17, 11/30/17,
1/9/18; 5/1/18, 6/21/18, 8/30/18; 9/20/18
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz
Defendant(s):
Process America, Inc. Pro Se
Kimberly S Ricketts Pro Se
Craig Rickard Pro Se
KEITH PHILLIPS Pro Se
Gwendolyn Phillips Pro Se
C2K Group, LLC Pro Se
10:00 AM
Applied Funding, Inc. Pro Se
KBS Dreams, Inc. Pro Se
Like Zebra, LLC Pro Se
Stripe Entertainment Group, Inc. Pro Se
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
US Trustee(s):
United States Trustee (SV) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Meyer Tubul Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Caramela C Bautista Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
fr. 2/21/12, 3/1/12, 4/10/12, 6/7/12, 6/12/12, 8/22/12, 9/27/12, 11/8/12, 1/17/13, 2/28/13, 4/4/13, 7/18/13,
1/9/14, 5/15/14, 6/11/14, 12/11/14, 2/18/15, 5/13/15,
12/9/15, 2/10/16; 2/17/16, 6/2/16, 12/8/16, 4/6/17;
4/12/17, 8/23/17, 12/13/17, 6/13/18
Docket 1
Having reviewed the docket of the District Court case, this matter will be continued to February 6, 2019. Plaintiff to lodge order.
NO APPEARANCE REQUIRED
Debtor(s):
C.M. Meiers Company, Inc. Pro Se
Trustee(s):
Bradley D. Sharp (TR) Represented By David Gould
9:30 AM
Adv#: 1:14-01042 Sharp v. Essex Insurance Company
Breach of COntract;
Breach of the Implied Covenant of Good Faith and Fair Dealing
fr. 5/7/14, 10/29/14, 11/12/14, 12/3/14, 2/18/15, 5/13/15; 12/9/15, 2/10/16; 2/17/16, 2/24/16, 4/11/16,
4/12/16, 9/13/16, 10/18/16, 11/8/16; 11/16/16,4/6/17,
4/12/17, 8/23/17, 12/13/17, 6/13/18
Docket 1
Having reviewed the docket of the District Court case, this matter will be continued to February 6, 2019 at 9:30 a.m. Plaintiff to lodge order.
NO APPEARANCE REQUIRED
Debtor(s):
C.M. Meiers Company, Inc. Pro Se
Defendant(s):
Essex Insurance Company Pro Se
Plaintiff(s):
Bradley D Sharp Represented By Larry W Gabriel
Trustee(s):
Bradley D. Sharp (TR) Represented By David Gould Stanley H Shure
9:30 AM
Larry W Gabriel
US Trustee(s):
United States Trustee (SV) Pro Se
9:30 AM
fr. 12/18/14, 3/26/15; 6/4/15, 8/27/15, 10/29/15 2/4/16, 4/7/16, 5/23/16, 1/19/17, 2/9/17, 8/16/17
1/110/18, 6/6/18
Docket 1
Having considered the status report, for good cause appearing, the status conference is continued to February 6, 2019 at 9:30 a.m.
Debtor to give notice of continued status conference. APPEARANCE WAIVED on September 26.
Debtor(s):
Tony Servera Company, Inc. Represented By Steven R Fox
Movant(s):
Tony Servera Company, Inc. Represented By Steven R Fox
9:30 AM
Docket 187
Debtor files this motion to voluntarily dismiss the case on the grounds that Debtor has satisfied the claim of his largest creditor and that there is no longer any reason to remain in bankruptcy court. The Office of the U.S. Trustee filed an opposition, stating that while it does not oppose dismissal of the case, it does oppose debtor’s request to include language in the dismissal order awarding Debtor’s counsel SulmeyerKupetz APC ("KP") $108,500 on a final basis. Trustee argues that KP should comply with the Bankruptcy Code applicable rules if it wants its fees to be approved under § 330.
In its reply to the Trustee’s opposition, KP submits copies of its billing statements pursuant to Trustee’s request. KP has discounted its fees by more than half, from
$239,448 to $108,500. Has the Trustee had an opportunity to review the billing statements? Because KP only disclosed its fees nine days before the hearing, the Court will allow objections to those fees to be raised at the hearing.
APPEARANCE REQUIRED
Debtor(s):
Muntaser A. Ammari Represented By Mark S Horoupian Jason Balitzer
9:30 AM
fr. 9/8/16, 11/17/16; 1/19/17; 1/26/17, 3/22/17; 4/12/17 11/15/17; 2/7/18; 3/28/18, 5/23/18, 7/18/18
Docket 1
- NONE LISTED -
Debtor(s):
Muntaser A. Ammari Represented By Mark S Horoupian Mark S Horoupian Mark S Horoupian Jason Balitzer Jason Balitzer Jason Balitzer
9:30 AM
Fee: $50,452.50
Expenses: $2,787.78 for
Period April 26, 2017 through April 28, 2018
Docket 131
Having reviewed the fee application filed by Jeffrey Shinbrot, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON 9/26/18.
Debtor(s):
FAMOSO PORTERVILLE, LLC Represented By
Jeffrey S Shinbrot
9:30 AM
Docket 74
- NONE LISTED -
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
9:30 AM
fr. 4/4/18, 7/18/18
Docket 36
- NONE LISTED -
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
9:30 AM
of Time to Assume or Reject Real Property Lease with Proof of Service.
Docket 42
Debtor seeks a 90 day extension of the time allowed to assume or reject real property leases under § 365(d)(4)(B)(i). Section 365(d) provides:
the date that is 120 days after the date of the order for relief; or
the date of the entry of an order confirming a plan.
(B)(i) The court may extend the period determined under subparagraph (A), prior to the expiration of the 120-day period, for 90 days on the motion of the trustee or lessor for cause.
11 U.S.C.A. § 365(d)(4). This case was filed on June 1, 2018, and the 120 day period for assuming or rejecting leases under § 365(d)(4)(A) will expire on September 29, 2018. The lease at issue is a primary operating asset of Debtor, comprising office space which Debtor re-leases to professional psychologists for a profit. Payments on the lease are current both pre and post-petition. Debtor’s principal believes that "[t]he requested extension will preserve the lease pending development and proposal of Debtor’s chapter 11 plan and avoid any tenant disruption." No party filed an opposition. The Court finds that there is cause to extend the time to assume or reject the lease of the property located at 2730 Wilshire Blvd., Suites 600, 620, 630, 650, and 660. Debtor should lodge an order promptly.
NO APPEARANCE REQUIRED
9:30 AM
Debtor(s):
Schaffel Development Company, Represented By
Lewis R Landau
9:30 AM
Docket 22
- NONE LISTED -
Debtor(s):
Zarui Sarah Adjian Represented By Leo Fasen
Movant(s):
Zarui Sarah Adjian Represented By Leo Fasen Leo Fasen Leo Fasen
9:30 AM
a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 6
On August 29, 2018, Debtor filed this Chapter 11 case. Debtor has one previous bankruptcy case that was dismissed a short time ago. The dismissed case, a chapter 13 given case number 2:17-bk-16074-VZ, was filed on May 17 2017 and dismissed on July 24, 2018 for failure to meet a number of filing requirements and to make required payments. Debtor indicated in an opposition to the motion to dismiss that Debtor was attempting to sell the real property and dismiss the case. However, Debtor withdrew that opposition and allowed the case to be dismissed.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case. Debtor contends the previous case was dismissed because she did not have the income to make monthly payments. However, Debtor states that she has increased her income by obtaining tenants for her real property.
Debtor’s home has a significant amount of equity and filed this chapter 11 to avoid foreclosure and re-organize her debts. Having considered the motion and no opposition being filed, the motion is GRANTED.
NO APPEARANCE REQUIRED.
Debtor(s):
Ofelia Margarita Macias Represented By Lionel E Giron
Movant(s):
Ofelia Margarita Macias Represented By Lionel E Giron Lionel E Giron
9:30 AM
11:00 AM
Docket 173
Petition Date: 10/22/13
Chapter 13 plan confirmed: 5/7/14 Discharge entered: 3/20/18
Service: Proper; co-debtor served. No opposition filed. Property: 7210 Darnoch Way, West Hills, CA 91307
Property Value: $425,000 (per Order Granting Mtn. to Avoid Lien, doc. 33) Amount Owed: $558,957
Equity Cushion: 0.0% Equity: $0.00.
Post-confirmation Delinquency: $27,979.52 (7 payments of $2,538.06; 5 payments of $2,549.27; less suspense account balance of $2,533.25)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 4 (relief from co- debtor stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Peter Clayton Purcell Represented By Kevin T Simon
Movant(s):
Wells Fargo Mortgage Represented By
11:00 AM
Trustee(s):
Deborah L Rothschild Mya Cross
Angela M Fowler Corey Phuse Erin Holliday Teosa L Peterson Rebecca Samuell Senique Moore Kenya C Jones
Dane W Exnowski
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
fr. 7/18/18
Docket 35
Petition Date: 3/27/15
Chapter 13 plan confirmed: 6/12/15 Service: Proper. Opposition filed.
Property: 23648 Del Cerro Circle, Canoga Park, CA 91304 Property Value: $694,000 (per debtor’s schedules) Amount Owed: $890,388.42
Equity Cushion: 0.0% Equity: $0.00.
Post-confirmation Delinquency: $33,488.81 (6 payments of $2,404.61; 10 payments of $2,061.67; less suspense account balance of $1,555.55)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
(3) stay).
Debtor opposes the Motion, arguing that they've made more payments than have been accounted for in the Motion. Debtors state that in August 2017, they received a letter from Nationstar that informed them that their account was "paid ahead" and that the next payment would be due on January 1, 2018. See Ex. A. Nationstar, Debtors allege, communicated directly with them (instead of their attorney) and assured them that their account was in good standing and that their funds were being held in a special account. Debtors claim that this Motion was the first time that they heard their account was delinquent.
11:00 AM
Debtors' counsel stated in her declaration that after communicating with Movant about the Motion and requesting a full accounting, Movant sent to chapter 13 trustee a check for $50,020.99, without documentation as to why the money was sent. Counsel contends that Nationstar misapplied Debtor's payments.
Has Movant provided to Debtors' counsel the accounting requested in June? APPEARANCE REQUIRED
Debtor(s):
Romeo J Pettinelli Represented By Eliza Ghanooni
Joint Debtor(s):
Gloria J Pettinelli Represented By Eliza Ghanooni
Movant(s):
U.S. BANK NATIONAL Represented By Kelsey X Luu
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELON AS TRUSTEE FOR CWABS INC
Docket 76
Petition Date: 6/20/16
Chapter 13 plan confirmed: 10/7/16 Service: Proper. Opposition filed.
Property: 6402 Bertrand Ave., Reseda, CA 91335 Property Value: $527,068 (per debtor’s schedules) Amount Owed: $509,074
Equity Cushion: 3.4% Equity: $17,994.
Pre-confirmation Delinquency: $7,148.88 (four payments of $1,787.22) Post-confirmation Delinquency: $39,523.70 (fifteen payments $1,787.22; 5 payments of $2,543.08)
TOTAL Delinquency: $46,672.58
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
(3) stay).
Debtors oppose the Motion, arguing that the property is necessary for a reorganization, and offer to enter in to an adequate protection order. Is Movant amenable to discussing an adequate protection order?
APPEARANCE REQUIRED
Debtor(s):
William Michael Desmuke Sr Pro Se
11:00 AM
Joint Debtor(s):
Priscilla Ann Desmuke Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 68
Petition Date: 12/21/16
Chapter 13 plan confirmed: 5/9/17
Service: NOT proper - secured judgment lien creditors not served.
Opposition filed.
Property: 12001 Martha St., North Hollywood, CA 91607
Property Value: $740,000 (per Appraisal ISO Debtor's Opposition) Amount Owed: $137,602
Equity Cushion: 81.4% Equity: $602,398
Post-confirmation Delinquency: $8,172.90 (10 payments of $817.29)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
(3) stay). Movant alleges that the last payment received on this debt was on or about 11/6/17.
Debtors oppose the Motion, arguing that there is considerable equity in the property and that they have been conditionally approved for a reverse mortgage in the amount of $280,015.80. Once approved by the Court, the reverse mortgage will enable them to pay off all of the encumbrances against the Property, including Movant's claim, with $28,000 left over to pay off most of the unsecured creditors in class 5.
Given that Movant's claim is protected by sufficient equity, the Court finds grounds to continue this hearing to October 31, 2018, at 11:00 a.m., to allow time for (1) Movant to serve other creditors with a secured interest in the Property; and (2) Debtors to have all of the Motions related to approving the
11:00 AM
refinance and the motion to modify plan resolved. APPEARANCES WAIVED ON 9/26/18
Debtor(s):
Bruce Jeffrey Starin Represented By John D Monte
Joint Debtor(s):
Geraldine Papel Starin Represented By John D Monte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 109
Petition Date: 5/17/17
Chapter 13 plan confirmed: 3/14/17 Service: Proper. Opposition filed.
Property: 4242 Stansbury Ave. #305, Sherman Oaks, CA 91423 Property Value: $550,000 (per debtor’s schedules)
Amount Owed: $442,077 Equity Cushion: 19.6% Equity: $107,923.
Post-Petition Delinquency: $26,180 (14 payments of $1,744.07; 1 payment of
$1,763.40)
Movant requests relief under 11 U.S.C. 362(d)(1), with the relief specific as to paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that they have made more payments than are accounted for in the Motion, and that they wish to participate in the Court's loan modification program.
APPEARANCE REQUIRED
Debtor(s):
Allen Charles Mixon III Represented By Stella A Havkin
11:00 AM
Joint Debtor(s):
Gladys Stennis Mixon Represented By Stella A Havkin
Movant(s):
JPMORGAN CHASE BANK, Represented By Christina J O Lee Gates
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 60
Petition Date: 6/21/18
Chapter 13 plan confirmed: 11/9/17 Service: Proper. No opposition filed.
Property: 23700 Nadir St., Canoga Park, CA 91304 Property Value: $740,000 (per debtor’s schedules) Amount Owed: $291,673.98 (3rd Deed of Trust) Equity Cushion: 11.2%
Equity: $82,856
Post-confirmation Delinquency: $12,918.73 (1 payment of $1,571.94; 7 payments $1,620.97)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
John A, Gillett Represented By Julie J Villalobos
Joint Debtor(s):
Pearlene Gillett Represented By
11:00 AM
Movant(s):
Julie J Villalobos
Wells Fargo Bank, N.A. Represented By Austin P Nagel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELON
Docket 36
- NONE LISTED -
Debtor(s):
Arman Tombakian Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 46
Petition Date: 9/3/17
Chapter 13 plan confirmed: 4/13/18 Service: Proper. Opposition filed.
Property: 5107 Coldwater Canyon Ave. #10, Sherman Oaks, CA 91423 Property Value: $450,000 (per debtor’s schedules)
Amount Owed: $423,176 Equity Cushion: 6.0% Equity: $26,824
Post-Petition Delinquency: $10,023.58 (4 payments of $2,413.29; post- petition advances of $1,565; attorney's fees of $1,031; less suspense account balance of $2,225.58)
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that she has made more payments than have been accounted for in the Motion and requests time to retrieve her online payment records to determine which payments have been credited and which were noted as late.
Is Movant amenable to continuing this hearing to give Debtor time to check her records?
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Janice Marie Semien Represented By Vernon R Yancy
Movant(s):
Statebridge Company, LLC Represented By Alexander G Meissner S Renee Sawyer Blume
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/16/18, 6/20/18, 7/18/18, 8/8/18; 8/29/18
Docket 31
NONE LISTED -
Debtor(s):
Lynne Suzanne Boyarsky Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 44
Petition Date: 2/22/18
Chapter 13 plan confirmed: 8/16/18 Service: Proper. No opposition filed.
Property: 7750 Ben Ave., North Hollywood, CA 91605 Property Value: $540,820 (per debtor’s schedules) Amount Owed: $397,411
Equity Cushion: 26.5% Equity: $143,409
Post-Petition Delinquency: $10,901.70 (6 payments of $1,816.95)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under 362(d)(4)). Movant alleges that post-petition mortgage payments are delinquent, with the last payment having been received on 1/18/18.
Movant has not alleged facts to support an allegation of a scheme to delay, hinder or defraud creditors, and thus any request for relief under 362(d)(4) will be denied.
Given that there is sufficient equity to protect Movant's claim and that a chapter 13 plan was just confirmed, have the parties discussed an APO?
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Lavinia Lilian Ortiz Represented By Grace White
Joint Debtor(s):
Jorge Osvaldo Ortiz Represented By Grace White
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 10
Petition Date: 7/31/18 Chapter: 7
Service: Proper. No opposition filed. Property: 2016 Honda Accord
Property Value: $13,775 (per Movant's evidence - NADA Guide) Amount Owed: $19,671.10
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $1,404.75
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Cesar Reyes Represented By
Kenumi T Maatafale
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
11:00 AM
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 10
Petition Date: 8/2/18 Chapter: 7
Service: Proper. No opposition filed. Property: 2012 Volkswagon Passat
Property Value: $9,100 (per Movant's evidence - NADA Guide) Amount Owed: $15,221.96
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $4,490.48
Movant regained possession on 7/10/18.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Damaris E Hernandez Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
S.B. Krasnoff, Inc., a California Corp.
Docket 11
NONE LISTED -
Debtor(s):
Alpha-Omega Enterprises, Inc. Represented By Henrik Mosesi
Movant(s):
S.b. krasnoff Inc., a California Represented By Richard P Petersen
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 8
Petition Date: 8/20/18 Chapter: 7
Service: Proper. No opposition filed. Property: 2013 Kenworth T700
Property Value: $30,250 (per Movant's evidence - NADA Guide) Amount Owed: $35,826.20
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $0
Debtor indicated in her schedules that she will surrender the property.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Lida Platt Represented By
David A Tilem
Movant(s):
PACCAR Financial Corp. Represented By Glen Dresser
11:00 AM
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Adv#: 1:18-01079 Seror v. Gregorian et al
Docket 1
Having considered the status report, the status conference is continued to December 5, 2018 at 11:00 a.m. to allow Trustee an opportunity to file a motion for default judgment.
Plaintiff to give notice of continued status conference. APPEARANCE WAIVED on September 26.
Debtor(s):
Owner Management Service, LLC Pro Se
Defendant(s):
Alfred Gregorian Pro Se
La Vista Properties Pro Se
Plaintiff(s):
David Seror Represented By
Richard Burstein Michael W Davis
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror
11:00 AM
David Seror (TR) Steven T Gubner Reagan E Boyce Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Docket 131
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
11:00 AM
Adv#: 1:13-01231 People of the State Of California, ex rel et al v. Amidon
fr. 12/18/13, 1/15/14, 1/29/14, 12/3/14; 10/14/15, 3/15/17; 1018/17, 2/7/18, 6/20/18
Docket 1
NONE LISTED -
Defendant(s):
Robert B Amidon Represented By Michael Goch
Robert B Amidon Represented By Michael Goch
Movant(s):
People of the State Of California, ex Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange and Mid Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange Represented By Dennis Kass
11:00 AM
Kirsten A Worley Scott Wm. Davenport Michael Goch
Mid Century Insurance Company Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Plaintiff(s):
Mid Century Insurance Company Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Mid Century Insurance Company Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange Represented By Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange Represented By Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange and Mid Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport
11:00 AM
Michael Goch
People of the State Of California, ex Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
People of the State Of California, ex Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Fire Insurance Exchange and Mid Represented By
Dennis Kass Kirsten A Worley
Scott Wm. Davenport Michael Goch
Trustee(s):
Diane Weil (TR) Pro Se
Diane Weil (TR) Pro Se
US Trustee(s):
United States Trustee (SV) Pro Se
United States Trustee (SV) Pro Se
11:00 AM
Adv#: 1:18-01055 United States Trustee (SV) v. Aslanyan et al
Docket 1
NONE LISTED -
Debtor(s):
Karine Aslanyan Pro Se
Defendant(s):
Karine Aslanyan Pro Se
Hakob Gasparyan Pro Se
Joint Debtor(s):
Hakob Gasparyan Pro Se
Plaintiff(s):
United States Trustee (SV) Represented By Katherine Bunker
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Adv#: 1:18-01068 Gregorio v. PHEAA-Pennsylvania Higher Education et al
fr. 8/8/18
Docket 1
A status conference was held on August 8, 2018, at which the self- represented Debtor/Plaintiff did not appear. The status conference was continued, with the warning that if Plaintiff failed to appear, the Court may issue an OSC re: dismissal for lack of prosecution.
Discharge was entered in the bankruptcy on August 13, 2018. What is the status of this adversary proceeding?
APPEARANCE REQUIRED
8/8/18 tentative
Discovery cut-off (all discovery to be completed*):
Expert witness designation deadline (if necessary):
Case dispositive motion filing deadline (MSJ; 12(c)):
Pretrial conference:
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil Procedure.
11:00 AM
Meet and Confer
Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
Discovery Motion Practice:
All discovery motions must be filed within 30 days of the service of an objection, answer, or response which becomes the subject of dispute or the passing of a discovery due date without response or production, and only after counsel have met and conferred and have reached an impasse with regard to the particular issue.
A failure to comply in this regard will result in a waiver of a party's discovery issue. Absent an order of the Court, no stipulation continuing or altering this requirement will be recognized by the Court.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
Jerald Angelo Gregorio Pro Se
Defendant(s):
PHEAA-Pennsylvania Higher Pro Se
Windham Professionals Pro Se
ECMC Educational Credit Pro Se
Plaintiff(s):
Jerald Angelo Gregorio Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 16
Having reviewed the Motion and the proposed bidding procedures, and no opposition having been filed, the Motion is GRANTED on the terms set forth in the Motion.
TRUSTEE TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 9/26/18.
Debtor(s):
Church of Merch, LLC Represented By Stuart R Simone
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 136
NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson Howard Camhi
11:00 AM
Docket 16
Having reviewed the Motion and the proposed bidding procedures, and no opposition having been filed, the Motion is GRANTED, on the terms set forth in the Motion.
TRUSTEE TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 9/26/18.
Debtor(s):
Studio Facilities Management Represented By Mark E Brenner
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
Adv#: 1:17-01012 David K. Gottlieb, solely in his capacity as chapt v. D'Arco et al
Docket 32
NONE LISTED -
Debtor(s):
Thomas R D'Arco Represented By Chris Gautschi
Defendant(s):
Carol V D'Arco Represented By Chris Gautschi
Does 1-100 Pro Se
Movant(s):
Carol V D'Arco Represented By Chris Gautschi
Plaintiff(s):
David K. Gottlieb, solely in his Represented By Fahim Farivar Michael T Delaney Ashley M McDow
Trustee(s):
David Keith Gottlieb (TR) Represented By Ashley M McDow Michael T Delaney
1:00 PM
Fahim Farivar
1:00 PM
Adv#: 1:17-01012 David K. Gottlieb, solely in his capacity as chapt v. D'Arco et al
fr. 4/26/17, 5/24/17, 7/26/17; 1/31/18, 4/25/18, 6/20/18
Docket 1
NONE LISTED -
Debtor(s):
Thomas R D'Arco Represented By Chris Gautschi
Defendant(s):
Carol V D'Arco Pro Se
Does 1-100 Pro Se
Plaintiff(s):
David K. Gottlieb, solely in his Represented By Fahim Farivar
Trustee(s):
David Keith Gottlieb (TR) Represented By Ashley M McDow Michael T Delaney Fahim Farivar
1:00 PM
Adv#: 1:18-01032 The GERSH LAW FIRM INC a CA corporation et al v. Elady et al
Docket 20
No opposition was filed to the Motion to Dismiss the Cross-Complaint. While the claims asserted by Yehuda Elady ("Debtor") are purportedly asserted as cross- claims, they are in fact counter-claims as they are asserted against the plaintiffs, not another defendant. The Court will refer to Debtor’s claims as counterclaims. The counter-claims at issue relate to legal representation of Debtor by The Gersh Law Firm, Inc. ("Gersh Firm") and Gersh Derby, LLP ("Gersh Derby Firm"). The "Cross- Complaint" (hereafter referred to as the "Counter-complaint," Doc. No. 5) alleges that counter-defendants (hereafter referred to as the "Attorneys") represented Debtor in legal matters between February 2012 and June 2016.
The Attorneys argue that each cause of action is time barred by the relevant statute of limitations. The Attorneys argue that Cal. Civ. Proc. Code § 340.6 governs the limitation of the Debtor’s claims:
(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.
Cal. Civ. Proc. Code § 340.6 (exceptions not listed). Courts have explained further: [S]ection 340.6(a)'s time bar applies to claims whose
merits necessarily depend on proof that an attorney
violated a professional obligation in the course of providing professional services. [A] professional
obligation is an obligation that an attorney has by virtue of being an attorney such as fiduciary obligations, the obligation to perform competently, the obligation to
1:00 PM
perform services contemplated in a legal service contract into which an attorney has entered, and the obligations embodied in the. . . Rules of Professional Conduct. By contrast, as the Court of Appeal observed, section 340.6(a) does not bar a claim for wrongdoing—for example, garden-variety theft—that does not require proof that the attorney has violated a professional obligation, even if the theft occurs while the attorney and the victim are discussing the victim's legal affairs.
See Lee v. Hanley, 61 Cal. 4th 1225, 1236–37 (2015).
Debtor’s counter-complaint alleges that he discovered the wrongful nature of the Attorneys’ conduct in June 2016, though it is clear from the Counter-Complaint that Debtor had relevant knowledge well before that time. This action was filed on March 19, 2018 and the counter-complaint was filed on April 18, 2018.
Breach of contract.
The first cause of action concerns alleged wrongful actions with respect to a "refundable $30,000 costs account deposit" which was to be deposited in the client trust account in early 2012 before the Attorneys’ work began on the First Legal Matter. The First Legal Matter was resolved in December 2012. While the counter- complaint does not clearly state when Debtor learned of the facts surrounding the
$30,000 deposit, it appears that Debtor became aware in or before June 2016. In fact, it appears that Debtor had knowledge of all of the operative facts in December 2012. The Attorneys have produced unrebutted authority that this breach of contract action is subject to the one-year statute of limitations of C.C.P. § 340.6. By the allegations of the counter-complaint, Debtor discovered "the facts constituting the wrongful act or omission" more than one year before this action was filed. The Motion is therefore GRANTED as to this cause of action.
Breach of implied covenant of good faith and fair dealing
As described above, this claim is barred by C.C.P. § 340.6. Further, as argued by the Attorneys’ Motion, this action appears to be duplicative of the breach of contract action. The Motion is GRANTED as to this cause of action.
Fraud
Movant argues that the causes of action for fraud and conversion are time- barred under C.C.P. § 340.6. While claims for "actual fraud" are explicitly excluded from § 340.6, the attorneys argue that the gravamen of the claim is in fact a fee dispute, which is subject to § 340.6. The claims alleged center around the disposition of $30,000 allegedly given to the Attorneys to be held in their trust account. It appears that the operative facts are essentially indistinguishable from the other causes of action. This action is similarly barred by the statute of limitations under
§ 340.6. The Court also agrees with the Attorneys that, even if the § 340.6 statute of
1:00 PM
limitations did not apply, the action is barred by the three-year statute of limitations of
C.C.P. § 338. While § 338(d) states that the cause of action "is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake," Debtor has not articulated the relevance of the June 2016 discovery that Startz was a former client of the Attorneys and that they allegedly forgave debt in exchange for referring Debtor to them. It appears that Debtor had all the knowledge relevant to the $30,000 "deposit" back in 2012.The motion is GRANTED.
Conversion
For the same reasons stated above as to the fraud cause of action, with the exception that the relevant subsection of § 338 is (c)(1), the motion is GRANTED.
Breach of fiduciary duty
The breaches of fiduciary duty alleged are generally the duties imposed on an attorney by the Rules of Professional Conduct. The one-year of C.C.P. § 340.6 therefore applies. By the terms of the counter-complaint, Debtor discovered "the facts constituting the wrongful act or omission" more than one year before this action was filed. The Motion is therefore GRANTED as to this cause of action.
Debtor(s):
Yehuda Elady Represented By Richard Grossman
Defendant(s):
Yehuda Elady Pro Se
Plaintiff(s):
The GERSH LAW FIRM INC a CA Represented By
Jeffrey F Gersh
Gersh Derby, LLP Represented By Jeffrey F Gersh
Trustee(s):
Amy L Goldman (TR) Pro Se
1:00 PM
Adv#: 1:18-01032 The GERSH LAW FIRM INC a CA corporation et al v. Elady
Docket 1
Having reviewed the docket for this adversary proceeding and finding that a Motion to Dismiss the Crossclaim is set for hearing on Sept. 26, 2018, the Court finds cause to continue this status conference to September 26, 2018, at 1:00 p.m., to be heard at the same time as the Motion to Dismiss.
Plaintiff to give notice of continuance. APPEARANCES WAIVED ON 9/12/18
Debtor(s):
Yehuda Elady Represented By Richard Grossman
Defendant(s):
Yehuda Elady Pro Se
Plaintiff(s):
The GERSH LAW FIRM INC a CA Represented By
Jeffrey F Gersh
Gersh Derby, LLP Represented By Jeffrey F Gersh
Trustee(s):
Amy L Goldman (TR) Pro Se
1:00 PM
Adv#: 1:18-01032 The GERSH LAW FIRM INC a CA corporation et al v. Elady et al
Gersh Derby LLP a California corporation; Gersh Derby, LLP; Paul B Derby A Professional Corporation a California corporation and dba Gersh Derby LLP; The GERSH
LAW FIRM INC a CA corporation fr. 7/18/18, 9/12/18
Docket 5
Having reviewed the docket for this adversary proceeding and finding that a Motion to Dismiss the Crossclaim is set for hearing on Sept. 26, 2018, the Court finds cause to continue this status conference to September 26, 2018, at 1:00 p.m., to be heard at the same time as the Motion to Dismiss.
Plaintiff to give notice of continuance. APPEARANCES WAIVED ON 9/12/18
Debtor(s):
Yehuda Elady Represented By Richard Grossman
Defendant(s):
Yehuda Elady Pro Se
Plaintiff(s):
The GERSH LAW FIRM INC a CA Represented By
Jeffrey F Gersh
Gersh Derby, LLP Represented By Jeffrey F Gersh
1:00 PM
Trustee(s):
Amy L Goldman (TR) Pro Se
9:00 AM
Docket 0
Debtor(s):
David Luis Gonzalez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Period: 1/11/2016 to 9/12/2018 Fee: $285,244.50
Expenses: $5,997.76
Docket 374
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
9:30 AM
Docket 259
Debtor(s):
Samuel James Esworthy Represented By
M. Jonathan Hayes
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
9:30 AM
Docket 142
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu Crystle Jane Lindsey
Joint Debtor(s):
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Clarissa D Cu Crystle Jane Lindsey
9:30 AM
Docket 145
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
9:30 AM
Docket 37
Debtor(s):
Fatemah Dowlatinow Represented By Dana M Douglas
9:30 AM
Docket 12
Debtor(s):
Bagrat Ogannes Represented By
Crystle Jane Lindsey
9:30 AM
Docket 12
Debtor(s):
Ofelia Margarita Macias Represented By Lionel E Giron
Movant(s):
Ally Financial Inc. Represented By Adam N Barasch
11:00 AM
fr. 9/23/18
Docket 73
Debtor(s):
Jacqueline Desiree Landaeta Alvarez Represented By
Matthew D Resnik
Movant(s):
Bayview Loan Servicing, LLC as Represented By
Christina J O
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 44
Debtor(s):
Elnor Andal Represented By
Vahe Khojayan
Joint Debtor(s):
Eulinda Andal Represented By Vahe Khojayan
Movant(s):
Cab West, LLC Represented By Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
BROKER SOLUTIONS INC DBA NEW AMERICAN FUNDING
fr. 8/29/18, 9/12/18
Docket 15
Debtor(s):
Roderick Bill Norseweather Represented By
James Geoffrey Beirne
Movant(s):
Broker Solutions, Inc. dba New Represented By Mark S Krause
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 10
Debtor(s):
Justin Carney-Norwood Represented By Sevan Gorginian
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
AMERICAN HONDA FINANCE CORPORATION
Docket 8
Debtor(s):
Alberto Fabian Represented By Gregory M Shanfeld
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 10
Debtor(s):
Joyce Ann Williams Pro Se
Movant(s):
Avalon Carson LLC Represented By Agop G Arakelian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
Docket 13
Debtor(s):
Jay Scott Cohen Pro Se
Movant(s):
U.S. BANK NATIONAL Represented By Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Docket 157
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Lei Lei Wang Ekvall Kyra E Andrassy
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
11:00 AM
Adv#: 1:18-01076 Seror v. Aslanjan et al
Docket 16
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
Defendant(s):
Does 1-10, Inclusive Pro Se
AMERICAN FUNDERS CORP. Pro Se
Eva Askar Pro Se
Robert Askar Pro Se
Arthur Nagapetyan Pro Se
Anjana S. Sura Pro Se
Puja J. Savla Pro Se
Neelam J. Savla Pro Se
Greg Mkrchyan Pro Se
Mkrtchyan Investments, LP Pro Se
Natalia Usmanova Represented By Eamon Jafari
Alexander Usmanov Represented By Eamon Jafari
Sonia Kellzi Pro Se
11:00 AM
Zaven Kellzi Pro Se
Kellzi Family Trust Pro Se
Allen Melikian Pro Se
Helen Minassian Pro Se
Hamlet Betsarghez Pro Se
Razmik Aslanjan Represented By
Raffy M Boulgourjian
Plaintiff(s):
David Seror Represented By
Reagan E Boyce Richard Burstein
Trustee(s):
David Seror (TR) Represented By Reagan E Boyce Richard Burstein
11:00 AM
Adv#: 1:18-01007 Karish Kapital LLC v. Aleksaudrovic et al
Docket 9
Debtor(s):
Yakov Aleksaudrovich Represented By Elena Steers
Defendant(s):
Yakov Aleksaudrovic Represented By Stella A Havkin
Natalia Koutina Represented By Stella A Havkin
Yanna Aleksaudrovich Represented By Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Law Offices of Steers & Assoc. Pro Se
RWB Consulting Services & Sales, Represented By
Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Joint Debtor(s):
Natalia Koutina Represented By Elena Steers
11:00 AM
Plaintiff(s):
Karish Kapital LLC Represented By Timothy McFarlin
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
Staying Foreclosure Sale Pending Adjudication of Issues under Complaint
fr. 5/23/18, 8/29/18
Docket 6
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards
Selene Finance LP Represented By
Sonia Plesset Edwards
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
11:00 AM
Docket 2143
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Docket 21
Debtor(s):
Jose Perez Chavarin Represented By Bahram Madaen
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
Adv#: 1:18-01099 Stipkovich v. Trinity Financial Services, LLC et al
Docket 4
Debtor(s):
Daniel Mark Stipkovich Represented By Brandon J Anand
Defendant(s):
Trinity Financial Services, LLC Represented By Carol G Unruh
Patrick Joseph Soria Pro Se
West H&A, LLC Pro Se
Movant(s):
Trinity Financial Services, LLC Represented By Carol G Unruh
Plaintiff(s):
Daniel Mark Stipkovich Represented By Brandon J Anand
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
fr. 10/3/18
Docket 0
NONE LISTED -
Debtor(s):
David Luis Gonzalez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Aarica Gardner Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Pan Lea Kim Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Period: 1/11/2016 to 9/12/2018 Fee: $285,244.50
Expenses: $5,997.76 fr. 10/3/18
Docket 374
The Law offices of Raymond H. Aver ("Aver") submit this final fee application requesting $285,244.50 in legal fees and $5,997.76 in expenses. The United States Trustee ("Trustee") filed an objection to certain fees and expenses. On September 26, Aver and the Trustee entered into a stipulation whereby Aver will be allowed
$284,071.06 in fees and $5,979.56 in expenses. This stipulation also required that by October 1 Aver submit a declaration signed by Debtor’s authorized corporate representative indicating that they approved of the fee application. On October 1, Aver filed a declaration indicating that Debtor’s principal, Shalem Shem-Tov, was not available due to the holidays. Aver attached an email chain indicating that Mr. Shem- Tov would be available on Wednesday, October 3.
As of October 4, this declaration has not yet been filed. If Debtor's principal agrees to fees before the hearing, this can be approved without appearance. If not, appearance is required.
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
9:30 AM
fr. 7/18/18, 9/12/18
Docket 197
A second amended disclosure statement was filed within the deadlines set by the Court at the 9/12 hearing. No opposition has been filed to the Second Amended Disclosure Statement and Plan.
U.S. Bank (as serviced by Mr. Cooper) has made an election under § 1111(b)(2) to have their claim treated as entirely secured over the course of the plan. The Second Amended Plan proposes to address U.S. Bank’s remaining $867,351.29 claim against property with a present value of "$555,000" with monthly payments of $2,700 over thirty years, for a total of $972,000. While Debtor purportedly uses $555,000 as the present value, the proposed payments and total payoff amount seem to be based upon the full value of $625,000. See Cal. V. Weinstein (In re Weinstein), 227
B.R. 284, 294 (B.A.P. 9th Cir. 1998). This changes the interest rate from 3.191% (using $625,000 present value) to 4.157% (using $555,000 value). By comparison, the terms of the first amended disclosure statement proposed a thirty-year term at a 5.50% interest rate and payments of $3,548.68 per month.
U.S. Bank is entitled to "a stream of payments equal to the present value of the collateral . . . but the sum of the payments must be in an amount equal [to] at least the creditor’s total claim." In re Weinstein, 227 B.R. at 294. The total dollar amount paid ($972,000) exceeds the $937,351.29 claim, which satisfies one requirement of
§1111(b). Whether the stream of payments provided ($555,000 at a 4.157% interest rate over 30 years at $2,700 per month) satisfies the present value requirement of
§ 1111(b) is a question for confirmation. Disclosure can be approved and the exact amounts due to U.S. Bank will be determined at the confirmation hearing if a stipulation cannot be reached.
The discharge language has been modified somewhat to address Trustee’s objection to the previous disclosure statement. The discharge language now only discusses the requirements for an early discharge. Does the Trustee still have an
9:30 AM
objection to this language?
Lastly, the Second Amended Disclosure Statement, the attached Declaration of Farideh Warda, and the Second Amended Plan are not signed by the Debtor.
APPEARANCE REQUIRED
9/12/18 tentative
Since the previous hearing, Debtor has filed an amended disclosure statement offering $15,000 as new value. The amended plan also changes treatment of secured creditors, including objecting creditor US Bank. This disclosure hearing is being heard on 21 days’ notice with the Court’s permission, and no new objections have been filed. Does the new plan satisfy the previous objections of US Bank and the Trustee?
APPEARANCE REQUIRED
7/18/18 Tentative
Two objections have been filed to the adequacy of this disclosure statement. The United States Trustee objects on the grounds that the discharge standard in the disclosure statement is incorrect. The discharge provision provides:
Upon completion of all payments to Class 4, Debtor may, after notice and a hearing, request the Court grant a discharge of all pre-confirmation debts, whether or not a creditor filed a proof of claim or accepted the Plan. Such discharge will not discharge Debtor from any debts that are non-dischargeable under section 523 or the obligations created by this Plan.
Disclosure Statement 21:16-20. As Trustee point out, in an individual chapter 11 case, the debtor does not receive a discharge until the debtor completes all payments under the plan, not only the members of a particular class. 11 U.S.C.
§ 1141(d)(5). Debtor should amend the disclosure statement to make the discharge provision mirror the requirements of § 1141.
Another objection was filed by creditor U.S. Bank, N.A. U.S. Bank first objects on the grounds that the disclosure statement only provides for a secured claim in its favor in the amount of $625,000, which the Court has determined is the value of the property
9:30 AM
located at 3037 W. 12th St., Los Angeles, CA 90006 (the "Property"). U.S. Bank argues that Debtor has failed to account for its security interest in the post-petition, pre-confirmation rents generated by the Property. Those rents constitute cash collateral due to an assignment of rents provision in the deed of trust against the Property. Debtor’s disclosure statement fails to add any and all net cash collateral that has accrued in Debtor’s DIP account for purposes of determining U.S. Bank’s secured claim.
Furthermore, U.S. Bank argues that by providing for only 4% of its total $312,351.29 unsecured claim, Debtor’s Chapter 11 plan is not fair and equitable because it violates the absolute priority rule of § 1129(b)(2)(B)(ii) and is therefore patently unconfirmable. U.S. Bank relies on Zachary v. California Bank & Trust, 811 F.3d 1191, 1194 (9th Cir. 2016). This Court agrees that, absent any new value contribution, the absolute priority rule as set forth in § 1129(b)(2)((B)(ii), applicable in individual chapter 11 cases per Zachary, precludes confirmation of this plan.
All objections to the disclosure statement are SUSTAINED and approval of the disclosure statement is DENIED.
APPEARANCE REQUIRED
Debtor(s):
Farideh Warda Represented By Todd L Turoci
9:30 AM
Docket 0
Debtor filed a statement regarding the status of the case, comprised mostly of a recounting of the history of this property and other issues that do not affect disclosure.
The Disclosure Statement, Chapter 11 Plan of Reorganization (the "Plan"), and a ballot conforming to Official Form 14, shall be mailed, along with notice of all relevant dates, to creditors, equity security holders, the Office of the United States Trustee and other parties in interest, pursuant to Bankruptcy Rule 2002, no later than: 10/19/18
Ballots to be returned and objections to confirmation to be filed no later than:
Confirmation Brief stating why the Plan should be confirmed and admissible evidence supporting all applicable elements of 11 U.S.C. §1129, a ballot summary, and Debtor’s response to any objections to be filed no later than: 11/30/18
Confirmation hearing still to be held on: 12/12/18
DEBTOR TO LODGE CONFIRMATION SCHEDULING ORDER WITH THE DATES SET BY THE COURT WITHIN 7 DAYS.
FAILURE TO LODGE THE CONFIRMATION SCHEDULING ORDER MAY RESULT IN DISMISSAL OR CONVERSION.
Debtor(s):
Farideh Warda Represented By Todd L Turoci
9:30 AM
fr. 10/3/18
Docket 259
Petition Date: 7/7/16 Chapter: 11
Service: Improper. Opposition filed.
Property: 1620 Maclaren St., La Puenta, CA 91744 Property Value: $ 225,000 (per schedules)
Amount Owed: $ 343,565.30 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: Unknown
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2). Specific relief is requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is borrower for purposes of C.C.C. § 2920.5(c)(2) (C)).
The accounting attached to the Motion as Exhibit 5 indicates that no payments have been made on this mortgage since July 24, 2017. The accounting also indicates that the amount in the suspense account has dropped to only $469.61.
In his opposition to the Motion, Debtor indicates that the parties were previously working on the terms of a plan treatment stipulation and, apparently, adequate protection payments. Debtor had previously been making adequate protection payments of $937 each month, but Movant was not cashing the checks. Debtor argues that Movant has not shown that it is not adequately protection such that cause for relief exists under § 362(d)(1) because Debtor is willing to pay adequate protection payments of "$1,349.99 as agreed upon, at least orally, between Debtor and Movant." Opposition, 3:23-24. Furthermore, Debtor argues that Movant provides no grounds for cause under (d)(1) other than lack of adequate protection and does
9:30 AM
not explain how it is not adequately protected.
Debtor does not dispute that the property lacks equity for purposes of relief from stay under § 362(d)(2); however, Debtor argues that the property is necessary for an effective reorganization. Debtor has the burden of proof on the issue of whether the property is necessary for an effective reorganization. § 362(g)(2). In order to establish whether the property is necessary to an effective reorganization, the Debtor must show that there is "a reasonable possibility of a successful reorganization within a reasonable time." United Sav. Ass'n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 376 (1988).
Debtor correctly argues that Movant did not serve the Motion on the 20 largest unsecured creditors as required by the Local Rules. Debtor does not cite which Local Bankruptcy Rule requires service of a relief from stay motion upon the 20 largest unsecured creditors. LBR 4001-1(c)(1)(C) states that relief from stay motions that are not for unlawful detainer or for (d)(4) must be served upon: i) Debtor and Debtor’s attorney; ii) the trustee, iii) any codebtor, iv) the holder of any lien or encumbrance against the property, and v) any other party entitled to notice under FRBP 4001. FRBP 4001(a)(1) requires that a relief from stay motion in a chapter 11 case where no creditors committee has been appointed must be served upon the list of 20 largest unsecured creditors described in FRBP 1007(d).
Because the motion has been improperly served, the Court will not grant the Motion until all required parties have properly received notice under the rules. Debtor’s Second Amended Disclosure Statement was conditionally approved by the Court at the hearing on September 12, though the Court notes that no order was lodged in connection with that disclosure statement. Debtor also states that a hearing on confirmation of the Plan is scheduled for December 12, but because the disclosure statement order was never lodged and never entered, the Plan Confirmation hearing date was never set. Debtor should remedy these issues immediately.
The Court is inclined to continue this hearing to December 12, 2018 at 9:30 a.m. That will allow time for Movant to re-notice the Motion in accordance with the rules. More importantly, whether Debtor can confirm a plan on December 12 will indicate whether there is a "reasonable possibility of a successful reorganization within a reasonable time." This case has been pending for more than two years, and relief from stay will likely be granted under § 362(d)(2) if Debtor is unable to confirm the second amended plan.
APPEARANCE REQUIRED
9:30 AM
Debtor(s):
Samuel James Esworthy Represented By
M. Jonathan Hayes
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
9:30 AM
Docket 145
The United States Trustee ("Trustee") filed this Motion to Dismiss or Convert Debtor’s case on the grounds that Debtor has failed to file a monthly operating report for July and August 2018 and has failed to pay quarterly fees for the second quarter of 2018. Most importantly, Debtor’s sole asset, the real property located at 3655 Elm Ave., Long Beach, CA 90807 was foreclosed on August 23, 2018.
Debtor filed a non-opposition to the Motion. The Motion is GRANTED, and due to the lack of distributable assets, the case will be dismissed.
NO APPEARANCE REQUIRED
Debtor(s):
Senior Community Housing Long Represented By
Michael R Totaro Brian T Harvey
9:30 AM
Period: 9/10/2017 to 9/18/2018, Fee: $26,510,
Expenses: $201.40.
Docket 151
The Law Offices of Mark Goodfriend ("Goodfriend") entered into a stipulation with the U.S. Trustee to reduce the requested fees to $25,010 and allow expenses of
$204.10. No objections were filed. The Motion is GRANTED.
NO APPEARANCE REQUIRED
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
Docket 156
Fee application for Northstar Appraisal Services and John Grichine in the amount of
$495 is approved.
NO APPEARANCE REQUIRED
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
U.S.C. § 1112(b) fr. 10/3/18
Docket 12
The United States Trustee ("Trustee") filed this motion to dismiss or convert case for failure to comply with Trustee’s requirements, including providing information relating to pre-petition bank accounts, a debtor-in-possession account, monthly operating reports for August, among other things.
Debtor has not filed any opposition to this motion. What is the status of Debtor’s compliance efforts?
APPEARANCE REQUIRED
Debtor(s):
Bagrat Ogannes Represented By
Crystle Jane Lindsey
9:30 AM
fr. 10/3/18
Docket 12
NONE LISTED -
Debtor(s):
Ofelia Margarita Macias Represented By Lionel E Giron
Movant(s):
Ally Financial Inc. Represented By Adam N Barasch
11:00 AM
fr. 9/23/18, 10/3/18
Docket 73
Petition Date: 3/28/16
Chapter 13 plan confirmed: 3/9/17
Service: Proper; co-debtor served. No opposition filed. Property: 10580 Horse Creek Ave., Shadow Hills, CA 91040
Property Value: $975,000 (per Order Granting Motion to Avoid Lien, doc. 41) Amount Owed: $1,185,447 (1st DoT)
Equity Cushion: 0.0% Equity: $0.00.
Post-confirmation Delinquency: $64,849.66 (approx. 6 payments of $4,034; 10 payments of $4,064)
Movant alleges that the last payment received was on or about May 2017.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jacqueline Desiree Landaeta Alvarez Represented By
11:00 AM
Movant(s):
Matthew D Resnik
Bayview Loan Servicing, LLC as Represented By
Christina J O
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELON AS TRUSTEE FOR CWABS INC
fr. 9/26/18
Docket 76
This hearing was continued so that Debtor's had an opportunity to explore a
loan modification. Nothing further filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
9/26/18 Tentative Ruling
Petition Date: 6/20/16
Chapter 13 plan confirmed: 10/7/16 Service: Proper. Opposition filed.
Property: 6402 Bertrand Ave., Reseda, CA 91335 Property Value: $527,068 (per debtor’s schedules) Amount Owed: $509,074
Equity Cushion: 3.4% Equity: $17,994.
Pre-confirmation Delinquency: $7,148.88 (four payments of $1,787.22) Post-confirmation Delinquency: $39,523.70 (fifteen payments $1,787.22; 5 payments of $2,543.08)
TOTAL Delinquency: $46,672.58
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
(3) stay).
Debtors oppose the Motion, arguing that the property is necessary for a
11:00 AM
reorganization, and offer to enter in to an adequate protection order. Is Movant amenable to discussing an adequate protection order?
APPEARANCE REQUIRED
Debtor(s):
William Michael Desmuke Sr Pro Se
Joint Debtor(s):
Priscilla Ann Desmuke Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
GATEWAY ONE LENDING & FINANCE
fr. 8/15/18, 9/12/18
Docket 27
This hearing was continued from 9/12/18 so that the parties could discuss resolving this matter with an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED. 9-12-18 TENTATIVE BELOW
This hearing was continued from 8/15/18 so that the parties could discuss resolving this matter with an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED.
8-15-18 TENTATIVE BELOW
Petition Date: 3/22/17
Chapter 13 plan confirmed: 8/3/17 Service: Proper. Opposition filed. Property: 2003 Hummer H2
Property Value: $11,815 (per debtor’s schedules) Amount Owed: $7,707.09
Equity Cushion: 35.1% Equity: $4,107.91
Post-Petition Delinquency: $3,393.16 (6 payments of $460.36, and attorney's fees of $631)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief
11:00 AM
requested in paragraph 2 (proceed under applicable non-bankruptcy law) and
6 (waiver of 4001(a)(3) stay).
Debtor requests to cure the delinquent payments in an APO. Is Movant amenable to this request?
APPEARANCE REQUIRED
Debtor(s):
Jacobo Lopes Tunchez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/3/18
Docket 44
Petition Date: 09/06/18 Chapter: 13
Service: Proper. No opposition filed. Property: Vehicle (2015 Ford Edge) Property Value: N/A (Leased)
Post-Petition Delinquency: Unknown
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 4 (lease has been matured) and 6 (movant regained possession of property post-petition).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Elnor Andal Represented By
Vahe Khojayan
Joint Debtor(s):
Eulinda Andal Represented By Vahe Khojayan
Movant(s):
Cab West, LLC Represented By
11:00 AM
Trustee(s):
Jennifer H Wang
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/26/18
Docket 44
This hearing was continued from 9/26/18 so that the parties could discuss resolving this matter with an APO. On the record, Movant withdrew its request for relief under 362(d)(4). Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED.
9-26-18 TENATIVE BELOW
Petition Date: 2/22/18
Chapter 13 plan confirmed: 8/16/18 Service: Proper. No opposition filed.
Property: 7750 Ben Ave., North Hollywood, CA 91605 Property Value: $540,820 (per debtor’s schedules) Amount Owed: $397,411
Equity Cushion: 26.5% Equity: $143,409
Post-Petition Delinquency: $10,901.70 (6 payments of $1,816.95)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under 362(d)(4)). Movant alleges that post-petition mortgage payments are delinquent, with the last payment having been received on 1/18/18.
11:00 AM
Movant has not alleged facts to support an allegation of a scheme to delay, hinder or defraud creditors, and thus any request for relief under 362(d)(4) will be denied.
Given that there is sufficient equity to protect Movant's claim and that a chapter 13 plan was just confirmed, have the parties discussed an APO?
APPEARANCE REQUIRED
Debtor(s):
Lavinia Lilian Ortiz Represented By Grace White
Joint Debtor(s):
Jorge Osvaldo Ortiz Represented By Grace White
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
AMERICREDIT FINANCIAL SERVICES INC
Docket 22
Petition Date: 09/13/18 Chapter:13
Service: Proper. No opposition filed. Property: Vehicle (2016 Chevrolet Cruze)
Property Value: $ 10,892 (per debtor’s schedules) Amount Owed: $17,665.53
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $932.37 (3 payment of $310.79)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Roberto Carlos Lopez Represented By David H Chung
Joint Debtor(s):
Diane Lopez Represented By
David H Chung
11:00 AM
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
GLEN BLUNDEN AND PAMELA BLUNDEN
Docket 26
Petition Date: 09/17/18 Chapter:13
Service: Proper. No opposition filed.
Property: 7647 Quimby Avenue, West Hills, CA 91304 Property Value: $ 754,745 (per debtor’s schedules) Amount Owed: $ 108,816.86 (per RFS motion)
Equity Cushion: 78%
Equity: $ 645,928.14.
Post-Petition Delinquency: 4,257.99 (4 payments of $762.09; 3 payments of
$76.21; and attorney fee of $981)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
Deny 5 (co-debtor stay is waived) because the co-debtor, the other joint tenant was not served.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Loi Tan Nguyen Represented By Khachik Akhkashian
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
BROKER SOLUTIONS INC DBA NEW AMERICAN FUNDING
fr. 8/29/18, 9/12/18, 10/3/18
Docket 15
This hearing was continued so that the parties' counsel had an opportunity to discuss a consensual resolution. Nothing has been filed since the last hearing. What is the status of this motion?
APPEARANCE REQUIRED
9-12-18 TENTATIVE BELOW
This hearing was continued so that the parties' counsel had an opportunity to discuss a consensual resolution. Nothing has been filed since the last hearing. What is the status of this motion?
APPEARANCE REQUIRED
8-29-18 TENTATIVE BELOW
Petition Date: 6/21/18 Chapter: 13
Service: Proper. Opposition filed.
Property: 1412 W. 89th St., Los Angeles, CA 90047 Property Value: $585,000 (per debtor’s schedules) Amount Owed: $352,282
Equity Cushion: 39.8% Equity: $232,718
Post-Petition Delinquency: unk.
Movant requests relief under 11 U.S.C. 362(d)(1) , with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (relief from co-debtor stay); 7 (waiver of the 4001(a)(3) stay); and 9 (in rem relief under 362(d)(4)).
11:00 AM
Movant alleges cause for in rem relief because of an unauthorized transfer and multiple bankruptcies affecting the subject property.
On October 10, 2017, Debtor's sister, Desiree Edwards, filed a chapter 13 petition, 2:17-bk-22427-SK (the "LA Case"). On February 21, 2018, Movant filed a motion for relief from the automatic stay, relating to this property. On March 20, 2018, an Order for Adequate Protection was entered. Ms.
Edward's plan was confirmed on June 14, 2018, which provided for payment of arrears on Movant's claim.
On June 19, 2018, Movant filed a Declaration of Default Under Adequate Protection Order, alleging that Debtor had failed to make the APO payments due on May 1 and June 1, respectively. The Order Granting RFS was entered in the LA Case on June 20, 2018. Movant alleges that, on June 21, 2018, Ms. Edwards executed an unauthorized transfer of the subject property to her brother, Debtor. That same day, Debtor filed this chapter 13 case, with the same attorney as was employed by Ms. Edwards in the LA Case. Movant alleges that the unauthorized transfer and immediate bankruptcy filing by Debtor was done with the intent to delay, hinder, and defraud Movant.
Debtor opposes the Motion, arguing that the notice of default provisions of the LA case APO were not properly complied with and that the notices of default that were mailed to Ms. Edwards were sent to the wrong address. Debtor alleges that Movant's actions in the LA Case made it so that Ms. Edwards was unable to comply with the terms because Movant would not allow any extra time for payment. Debtor states that the Property is fully provided for in his proposed chapter 13 plan, and that all post-petition payments are current. Debtor provides evidentiary support for his position and appears to be able to cure all arrearages.
Given the large equity cushion protecting this claim, is Movant amenable to this property being reorganized in this bankruptcy?
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Roderick Bill Norseweather Represented By
James Geoffrey Beirne
Movant(s):
Broker Solutions, Inc. dba New Represented By Mark S Krause
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
YAMAHA MOTOR FINANCE CORP
fr. 10/3/18
Docket 10
Petition Date: 09/12/18 Chapter: 7
Service: Proper. No opposition filed. Property: Vehicle 2017 Yamaha YZFR3HB Property Value: $3,925 (per Motion) Amount Owed: $ 9,043.19
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: Unknown
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Justin Carney-Norwood Represented By Sevan Gorginian
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 13
Petition Date: 09/18/18 Chapter:7
Service: Proper. No opposition filed.
Property: 2038 Malcolm Avenue, Los Angeles, CA 90025 Property Value: $ N/A (per debtor’s schedules)
Amount Owed: $ N/A (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: N/A
Movant argues that this case was filed in bad faith because multiple bankruptcies affecting, the subject property, done with the intent to delay, hinder, or defraud creditors.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(4). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law), 3 (Movant permitted to engage in loss mitigation activities), 7 (waiver of 4001(a)
(3) stay), 8 (Designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law), 9 (relief under 362(d)(4)), 10 (relief binding and effective for 180 days against any debtor), and 11 (The order is binding and effective in any future bankruptcy case).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Zepuer Jeghelian Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
AMERICAN HONDA FINANCE CORPORATION
fr. 10/3/18
Docket 8
Petition Date: 09/11/18 Chapter: 7
Service: Proper. No opposition filed. Property: Vehicle 2016 HONDA HR-V
Property Value: $ 17,000 (per debtor’s schedule) Amount Owed: $ 18,568.08
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: Unknown
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Alberto Fabian Represented By Gregory M Shanfeld
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
11:00 AM
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
TRINITY FINANCIAL SERVICES LLC
Docket 13
Petition Date: 09/07/18 Chapter:7
Service: Proper. No opposition filed.
Property: 10864 Sharp Avenue, Mission Hills, CA 91345 Property Value: $ 701,129 (per debtor’s schedules)
No portion owned by debtor per debtor’s schedules Amount Owed: $ 209,185.06 (per RFS motion) Equity Cushion: Unknown
Equity: $0.00.
Post-Petition Delinquency: Unknown
Movant argues that this case was filed in bad faith because movant is the one of few creditors listed in the Debtor’s case commencement document and multiple bankruptcies affecting, the subject property, done with the intent to delay, hinder, or defraud creditors.
Disposition: GRANT under 11 U.S.C. 362(d)(1), (d)(2) and (d)(4). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law), 7 (waiver of 4001(a)(3) stay), and 9 (relief under 362(d)(4)).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Rene Pastor Alvarez Pro Se
11:00 AM
Movant(s):
Trinity Financial Services, LLC Represented By
Rafael R Garcia-Salgado Richard J Reynolds
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
S.B. KRASNOFF, Inc., a CALIFORNIA CORP. fr. 9/26/18
Docket 11
NONE LISTED -
Debtor(s):
Alpha-Omega Enterprises, Inc. Represented By Henrik Mosesi
Movant(s):
S.b. krasnoff Inc., a California Represented By Richard P Petersen
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
TOYOTA MOTOR CREDIT CORPORATION
Docket 9
Petition Date: 09/10/18 Chapter: 7
Service: Proper. No opposition filed. Property: Vehicle 2016 TOYOTA COROLLA
Property Value: $ 21,323.30 (per debtor’s motion) Amount Owed: $ 21,323.30
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: Unknown
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Martin Leon Serrato Represented By
Juan Castillo-Onofre
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
11:00 AM
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
fr. 10/3/18
Docket 10
Petition Date: 09/06/18 Chapter: 13
Service: Proper. No opposition filed. Movant: Avalon Carson LLC.
Property Address: 21800 S. Avalon Boulevard #204, Carson, CA 90745 Type of Property: Residential
Occupancy: Tenant
UD case filed: 7/24/18 UD Judgment: N/A
Debtor was dismissed with a bar on 9/13/18.
Disposition: GRANT under 11 U.S.C. 362(d)(1); (d)(2)). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)(3) stay); 7 (designated law enforcement officer may evict any occupant without further notice); 8 (order binding in any other case within two years);
DENY relief as to 9 (relief under 362(d)(4)),as Movant is not a secured creditor.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Joyce Ann Williams Pro Se
Movant(s):
Avalon Carson LLC Represented By Agop G Arakelian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
fr. 10/3/18
Docket 13
Petition Date: 08/29/18 Chapter: 13
Service: Proper. Opposition filed.
Property: 13065 Dickens Street, Studio City, CA 91604 50% interest
Property Value: $ 1,400,000 (per debtor’s schedules) Amount Owed: $ 1,484,121.61 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: $714, 893.95 (contractual delinquency)
Movant requested relief under 11 U.S.C. 362(d)(1), (d)(2) and (d)(4), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 6 (co-debtor stay is waived); 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)(4), order binding in any other case for 2 years, and transfer of property without movant’s consent and multiple bankruptcies affecting the property); and 10 (order binding and effective for 180 days against any debtor). Movant alleges that this case was filed in bad faith due to multiple bankruptcy filings and unauthorized transfers of the Property shortly before foreclosure. Movant further alleges that the mortgage is 130 months in arrears. Movant’s request for the relief in paragraph 11 (order binding and effective in any future bankruptcy cases) is DENIED as such relief requires the filing of an adversary proceeding under FRBP 7001.
Debtor opposes the Motion, arguing that the motion did not served to an affected secured creditor; no documents are appended to the declaration to
11:00 AM
obtain RFS; movant is adequately protected by the plan that debtor offered; there is a fundamental dispute against the real property; the real property is necessary for an effective reorganization.
APPEARANCE REQUIRED
Debtor(s):
Jay Scott Cohen Pro Se
Movant(s):
U.S. BANK NATIONAL Represented By Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01076 Seror v. Aslanjan et al
Docket 16
NONE LISTED -
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
Defendant(s):
Does 1-10, Inclusive Pro Se
AMERICAN FUNDERS CORP. Pro Se
Eva Askar Pro Se
Robert Askar Pro Se
Arthur Nagapetyan Pro Se
Anjana S. Sura Pro Se
Puja J. Savla Pro Se
Neelam J. Savla Pro Se
Greg Mkrchyan Pro Se
Mkrtchyan Investments, LP Pro Se
Natalia Usmanova Represented By Eamon Jafari
Alexander Usmanov Represented By
11:00 AM
Eamon Jafari
Sonia Kellzi Pro Se
Zaven Kellzi Pro Se
Kellzi Family Trust Pro Se
Allen Melikian Pro Se
Helen Minassian Pro Se
Hamlet Betsarghez Pro Se
Razmik Aslanjan Represented By
Raffy M Boulgourjian
Plaintiff(s):
David Seror Represented By
Reagan E Boyce Richard Burstein
Trustee(s):
David Seror (TR) Represented By Reagan E Boyce Richard Burstein
11:00 AM
Adv#: 1:18-01007 Karish Kapital LLC v. Aleksaudrovic et al
Docket 9
APPEARANCE REQUIRED
Debtor(s):
Yakov Aleksaudrovich Represented By Elena Steers
Defendant(s):
Yakov Aleksaudrovic Represented By Stella A Havkin
Natalia Koutina Represented By Stella A Havkin
Yanna Aleksaudrovich Represented By Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Law Offices of Steers & Assoc. Pro Se
RWB Consulting Services & Sales, Represented By
Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
11:00 AM
Joint Debtor(s):
Natalia Koutina Represented By Elena Steers
Plaintiff(s):
Karish Kapital LLC Represented By Timothy McFarlin
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:18-01019 Karish Kapital LLC v. Aleksandrovich
Docket 1
Discovery cut off (to be completed) - September 12 Pretrial conference on October 10 at 11 am
Debtor(s):
Yanna Aleksandrovich Represented By Elena Steers
Defendant(s):
Yanna Aleksandrovich Represented By Stella A Havkin
Plaintiff(s):
Karish Kapital LLC Represented By Timothy McFarlin
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Adv#: 1:18-01090 American Contractors Indemnity Company v. Caldera
Docket 1
NONE LISTED -
Debtor(s):
Susan Fines Caldera Represented By Scott Kosner
Defendant(s):
Susan Fines Caldera Pro Se
Plaintiff(s):
American Contractors Indemnity Represented By
R Gibson Pagter Jr.
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
Staying Foreclosure Sale Pending Adjudication of Issues under Complaint
fr. 5/23/18, 8/29/18, 10/3/18
Docket 6
Having considered that the Mediation is continued to November 27, 2018, see "Mediator's Certificate Regarding Completion of Mediation Conference" (ECF doc. 13), the Court finds cause to continue this matter to March 6, 2019 at 11:00 a.m., to be heard in conjunction with the continued status conference.
APPEARANCES WAIVED ON 10/10/18
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards
Selene Finance LP Represented By
Sonia Plesset Edwards
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
11:00 AM
fr. 10/3/18
Docket 2143
On Aug. 28, 2018, Trustee David Seror filed a "Notice of Proposed Abandonment" of real property at 1065 Park Circle Dr. #114, Torrance, CA 90502 (the "Property"). Opposition was filed by Joyce Kim ("Kim"), who did not disagree with Trustee’s contention that the Property is burdensome and of inconsequential value but opposed the terms on which Trustee proposes to abandon the Property. Kim argues that the criminal circumstances surrounding the original property transfer support her request for an order compelling Trustee abandon the Property to her and to compel Trustee to execute a grant deed transferring title of the Property to Kim.
Trustee responds that Kim is asking for relief that is outside of the scope of his authority when deciding whether abandonment of the property. Trustee’s decision to abandon the Property was made, upon other things, on the grounds that the Property is the subject of a pending foreclosing proceeding – the related Notice of Default and Election to Sell Under Deed of Trust dated August 1, 2018 ("NOD") was recorded on or about August 6, 2018. The party who issued the NOD, Bayview Loan Servicing LLC ("Bayview") sought and obtained relief from the automatic stay to proceed under applicable nonbankruptcy law to enforce its remedies to foreclose upon and obtain possession of the Property. Relief was granted on January 2, 2018. ECF doc. 2049.
On March 3, 2017 (post-petition and post- substantive consolidation), Ms. Kim initiated a Los Angeles Superior Court ("LASC") lawsuit against certain of the Consolidated Debtors, among others, for quiet title, fraud, constructive trust, and injunctive relief claims regarding alleged wrongdoing by the Consolidated
11:00 AM
Debtors (among others) with respect to the Property (the "Kim LASC Action," Case No. BC 652659).
The parties then filed a Stipulation Between Chapter 7 Trustee and Joyce I. Kim Denying Motion For Relief From Stay and Related Relief; For an Order Allowing The Filing Of a Late Filed Claim, Without Prejudice To Asserting Other Objections Thereto (the "Kim Stipulation") ECF doc. 1921, which was approved by Court Order entered on June 21, 2017. The Kim Stipulation effected a resolution of both the motions filed by Kim (for relief from stay as to the Kim LASC Action, and for authority to file a late claim, together the "Kim Motions"). Among other things, the Kim Stipulation provided that (1) Kim would file a claim as a late-filed claim, without prejudice to any objections the Trustee may have thereto other than as to lateness; (2) The Kim Motions may be removed from calendar; and, (3) that Kim would dismiss the Kim LASC Action in its entirety and with prejudice. Kim subsequently filed Proof of Claim No. 44 on June 21, 2017 asserting an unsecured claim against the Consolidated Debtor’s Estate in the amount of $550,000.00.
If property of the estate is abandoned, the result is not a transfer of title to any person and/or entity. Rather, abandonment results in title to the Property reverting to back to the bankrupt (here, the Consolidated Debtors vis-à-vis the Park Circle Trust). See, e.g., In re Folks, 211 B.R. 378, 388 (9th Cir. BAP 1997). Kim has no offered no authority to support her proposition that a trustee through abandonment may effect a transfer of title of real property to a third-party such as Kim.
Kim’s request that she be quitclaimed title to the Property is relief not appropriately sought in connection with abandonment. See FRBP 7001. Trustee notes that this affirmative relief is what Kim sought through the Kim LASC Action, which action she agreed to dismiss with prejudice in connection with the Kim Stipulation. It is Trustee’s position that Kim has by agreement limited herself to a $550,000 unsecured claim in this case, not a claim in rem against the Property.
Kim is simply not entitled to the relief she seeks through her Objection, nor could the Trustee’s Notice of Abandonment ever be an appropriate mechanism through which the relief requested could ever be granted.
11:00 AM
Kim’s Objection to the Proposed Abandonment is OVERRULED. Trustee to lodge order within 7 days.
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Docket 21
Debtor’s case has been dismissed twice: once, on 4/30/18, for failure to file initial petition documents within 72 hours, which was later vacated on Debtor’s motion. This dismissal was because Debtor hadn’t filed his Statement of Social Security Form 121. Debtor’s counsel’s declaration accompanying the Motion. Statement was filed on the same date as this motion.
Motion GRANTED.
NO APPEARANCE REQUIRED. MOVANT TO LODGE ORDER WITHIN 7 DAYS
Debtor(s):
Jose Perez Chavarin Represented By Bahram Madaen
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 14
UST moves to dismiss with a one-year bar to refiling. UST argues that grounds exist for a bar because of Debtor’s pattern of filing and dismissal, misrepresentations and omissions in the schedules he did file, and the timing of his filings that seem to indicate Debtor’s sole objective was to defeat his secured creditor’s efforts to foreclose on its collateral, real property at 16200 Community Ct., North Hills, CA 91343 (the "Property").
In Debtor’s six prior filings, undisclosed on his Statement of Related Cases, he received a chapter 7 discharge in 1999. All other cases were dismissed for failure to file case commencement documents or failure to appear at the
§ 341(a) meeting. Debtor also failed to properly disclose his expenses and unsecured debts. UST contends that the evidence presented in support of its motion shows that Debtor has no intention of accessing bankruptcy protection for any legitimate purposes and that, absent a bar, Debtor will refile as soon as this case is dismissed.
Debtor opposed the Motion, arguing that he has had health ailments these past couple of months that have prevented him from "keeping his appointments." Debtor states that his schedules are incomplete because "there is a lot of information and some items got overlooked by accident." Debtor does not address his filing history.
UST argues in reply that Debtor presents no evidence to support his claim that his health conditions prevented him from attending § 341(a) meetings on 7/13/18; 8/17/18 and 9/21/18. Furthermore, although UST’s Motion (filed September 11, 2018) is specific in calling out where Debtor’s schedules are incomplete and require amendments, Debtor has yet to amend his schedules. In its motion for relief from the automatic stay, secured creditor US Bank
11:00 AM
stated that a prepetition notice of default had been served and a notice of sale had been recorded, and that a foreclosure sale had been noticed as to the Property. The relief from stay motion is set for hearing on Oct. 24, 2018. UST argues that because the schedules list no other secured, priority, or general unsecured debt, it appears that Debtor filed this case to stop U.S. Bank from foreclosing on the Property.
APPEARANCE REQUIRED
Debtor(s):
Russ Gene Robinson Pro Se
Movant(s):
United States Trustee (SV) Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Adv#: 1:17-01095 Nazaryan v. Bag Fund, LLC et al
Docket 19
Attorney Michael Raichelson moves to withdraw as attorney of record for defendants Bag Fund, LLC (principal Ron Hacker) and Leo Fasen (the "Remaining Defendants"). Defendants Vincent Quigg and Michael Waldren executed substitutions of attorney when requested. Raichelson states that communication with the Remaining Defendants has broken down, and that the last communications he had with Hacker were curt, insulting and non- responsive texts. Hacker has refused to take his calls. The Remaining Defendants’ non-responsiveness and unproductive communique have led to an irreparable breakdown in the attorney-client relationship and that both of the Remaining Defendants’ positions could be undermined by this breakdown.
Service proper on shortened time. No response filed.
Motion GRANTED. APPEARANCE REQUIRED DUE TO SHORTNED TIME.
Debtor(s):
Hermine Nazaryan Represented By Lloyd D Dix
Defendant(s):
Bag Fund, LLC Represented By
Michael H Raichelson
Leo Fasen Represented By
Michael H Raichelson
Vincent J Quigg Pro Se
Michael Waldren Pro Se
11:00 AM
Movant(s):
Bag Fund, LLC Represented By
Michael H Raichelson
Leo Fasen Represented By
Michael H Raichelson
Plaintiff(s):
Hermine Nazaryan Represented By Lloyd D Dix
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
fr. 9/18/18
Docket 98
Previous Tentative
This adversary proceeding has been transfered to Judge Tighe. The hearing will be on October 10, 2018 at 1:00 p.m. in courtroom 302.
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Soda Partners, LLC Represented By Ronald N Richards
Quality Loan Service Pro Se
Chase Manhattan Mortgage Co. Pro Se
Howard Abselet Represented By Henry S David
1:00 PM
Israel Abselet Represented By Henry S David
Citivest financial Services, Inc. Pro Se
State Street Bank and Trust Co. Pro Se DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
QUALITY LOAN SERVICE Pro Se
Movant(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
DAVID K GOTTLIEB Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
1:00 PM
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
fr. 9/18/18
Docket 102
NONE LISTED -
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Soda Partners, LLC Represented By Ronald N Richards
Quality Loan Service Pro Se
Chase Manhattan Mortgage Co. Pro Se
Howard Abselet Represented By Henry S David
Israel Abselet Represented By Henry S David
Citivest financial Services, Inc. Pro Se
1:00 PM
State Street Bank and Trust Co. Pro Se
DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
QUALITY LOAN SERVICE Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
1:00 PM
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
Docket 139
NONE LISTED -
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
QUALITY LOAN SERVICE Pro Se
State Street Bank and Trust Co. Pro Se
Citivest financial Services, Inc. Pro Se
Israel Abselet Represented By Henry S David
Howard Abselet Represented By Henry S David
DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
Quality Loan Service Pro Se
Soda Partners, LLC Represented By Ronald N Richards
Fieldbrook, Inc. Represented By Daniel J McCarthy
Elkwood Associates, LLC Represented By
1:00 PM
Daniel J McCarthy
Chase Manhattan Mortgage Co. Pro Se
Movant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Reliable Properties Represented By Daniel J McCarthy
Jack NOURAFSHAN Represented By Daniel J McCarthy
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
1:00 PM
Adv#: 1:18-01099 Stipkovich v. Trinity Financial Services, LLC et al
fr/ 10/3/18
Docket 4
This action was brought by Daniel Stipkovich ("Debtor") in connection with alleged fraud and issues concerning the foreclosure of real property located at 17464 Raymer St., Northridge, CA 91325 (the "Property"). With respect to defendants West H&A LLC ("West"), Does 1-5, and Patrick Soria, Debtor alleges that they were hired to assist with mortgage modification. However, Debtor alleges that those defendants committed fraud by convincing him that West was in first position as a secured lender against the Property and could remove the junior lien of Trinity Financial Services, Inc. ("Trinity") by foreclosing on the property. West purportedly held the foreclosure sale, but Trinity alleges that the sale was improper and void. Subsequently, Trinity foreclosed on its junior lien against the Property. The claim against Trinity is for "declaratory relief" that the foreclosure sale performed by Trinity was invalid due to the previous foreclosure sale by West. The complaint therefore alleges seemingly conflicting facts: 1) Trinity’s lien was wiped out by a valid foreclosure by West, and 2) West falsely represented that it held a valid foreclosure sale extinguishing Trinity’s lien, then "duped" Debtor into paying West in order to transfer title back to Debtor. These facts are not alleged in the alternative, so it appears that Debtor is both alleging that Trinity’s foreclosure was valid and that it was invalid.
Trinity filed this Motion to Dismiss Complaint for Failure to State a Claim (the "Motion"). In its Motion, Trinity lays sets forth a separate narrative, supported by various documents for which Trinity requests be judicially noticed under Fed. R. Evid.
201. Debtor responds that the documents attached to the Motion are inadmissible hearsay. Generally courts may not consider materials outside of the pleadings when
1:00 PM
assessing the sufficiency of a complaint under Fed. R. Civ. P. 12(b)(6). Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). The two exceptions to this general rule are the incorporation by reference doctrine and judicial notice under Fed. R. Evid. 201. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018).
The documents attached to Trinity’s motion are not hearsay as they fall within a hearsay exception under Fed. R. Evid. 803(14), but they still should not be considered for a motion to dismiss. Courts must be cautious about taking judicial notice of the truth of facts contained in documents subject to judicial notice at the motion to dismiss stage. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). Trinity’s Motion to Dismiss is more properly decided based on the complaint itself and any documents attached to the complaint. The liberal pleading standard of Fed. R. Civ. P. 8 does not require a detailed rebuttal of the contents of each judicially noticeable document that might be relevant to the case—such a requirement would "undermin[e] the usual pleading burdens" which "is not the purpose of the judicial notice" doctrine. Id. Rule 8 is instead intended to ensure that the complaint is sufficiently clear to put defendant on notice of the alleged facts constituting a claim for relief.
This motion would be more proper as a motion for summary judgment as Trinity seeks a resolution on the merits supported by extensive factual claims. For instance, Trinity argues that the documents show, on their face, that West H&A "did not acquire a beneficial interest in the Senior Deed of Trust." Similarly, Trinity alleges that, while BAC recorded a notice of Trustee’s sale, "[t]here is no evidence that the June 8 sale ever took place." Motion 4:20-21. Trinity acknowledges that certain recorded documents do not have the legal effect they claim to (for instance, the Trustee’s deed upon sale from the West foreclosure), but Trinity itself relies heavily on recorded documents to tell an alternative narrative about the saga of this chain of title. As the Orexigen Court noted, "when parties pile volumes of exhibits to their motion to dismiss," the motions become "needlessly unwieldy." Simply reviewing these submissions "demands precious time." Id. at 1006. A motion to dismiss is not the proper procedure for an in-depth analysis which necessarily will require weighing factual allegations.
Although Trinity’s motion should more properly be brought as a motion for summary judgment, even without considering the documents attached to its motion,
1:00 PM
the motion raises significant issues with the complaint that cause it to be dismissed. First of all, it is not clear exactly what plaintiff’s theory is about why the Trinity foreclosure is invalid. Was there already a valid foreclosure or not? The allegations are confusing and conclusory. Trinity points out the problems with the documents Plaintiff himself attaches to the complaint. The "Trustee’s Deed Upon Sale" recorded by West fails to indicate the date of the alleged sale. There really is no clear indication that there was a prior sale – an element critical to plaintiff’s theory that Trinity no longer had any security interest. There are also no allegations of how West obtained title and how title passed from BAC to West. Trinity is correct that only the true owner or beneficial holder of a deed of trust can bring to completion a nonjudicial foreclosure under California law. Barrionueva v. Chase, 885 F. Supp.2d 964, 972 (N.D.Cal. 2012).
Lastly, the trustee’s deed of sale Debtor attaches as Exhibit 3 shows that the property was sold at foreclosure to Trinity. Trinity took title by this trustee’s deed. If a trustee’s deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure sale were satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly. Moeller v. Lien, 25 Cal. App. 4th 822, 831 (2d Dist.1994). Plaintiff has alleged no facts disputing this presumption. The complaint basically asks the court to rule on whether the foreclosure was valid, while attaching a Trustee’s Deed Upon Sale with a rebuttable presumption of validity, and provides no detail as to why exactly the sale was not valid. In addition, an alternative theory is plead stating that the other defendants tricked plaintiff by holding a sham foreclosure in order to extort money from him,
Debtor will be given one opportunity to amend, although he should seriously consider the documents provided by Trinity before doing so. While it appears that no claim can be plead that would survive a motion for summary judgment, the court will not engage in a detailed factual analysis at this stage without a proper motion for summary judgment. It may also be that US Bank is a necessary party, so Debtor may be better off finishing the litigation in Superior Court if he wants to resolve the title issue.
Motion GRANTED with leave to amend.
1:00 PM
Debtor(s):
Daniel Mark Stipkovich Represented By Brandon J Anand
Defendant(s):
Trinity Financial Services, LLC Represented By Carol G Unruh
Patrick Joseph Soria Pro Se
West H&A, LLC Pro Se
Movant(s):
Trinity Financial Services, LLC Represented By Carol G Unruh
Plaintiff(s):
Daniel Mark Stipkovich Represented By Brandon J Anand
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
8:30 AM
fr. 9/18/18
Docket 17
This hearing was continued from 9/18/18 because Debtor was not current on the payments. What is the status of this reaffirmation agreement?
9-18-18 TENTATIVE BELOW
Petition date: 5/25/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2013 Chevrolet Equinox
Debtor’s valuation of property (Sch. B): $13,500 Amount to be reaffirmed: $17,304.92
APR: 12.84% (fixed)
Contract terms: $555.80 per month for 36 months Monthly Income (Schedule I): $4,095.24
Monthly expenses: (Schedule J): $3,423.38 Disposable income: $671.86
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor states that she is employed full-time. This payment is listed on Sch. J.
8:30 AM
Debtor has a right to rescind agreement anytime prior to discharge, or until October 6, 2018, whichever is later.
Debtor(s):
Corynne Antonia Kendall Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
Docket 10
Petition date: 7/16/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2017 Hyundai Elantra
Debtor’s valuation of property (Sch. B): NOT listed on Sch. B Amount to be reaffirmed: $21,027
APR: 3.49% (fixed)
Contract terms: $356.63 per month for 65 months Monthly Income (Schedule I): $3,634.31
Monthly expenses: (Schedule J): $3,972 Disposable income: <$337.69>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor explains that he will reduce his expenses and, if necessary, his family will help. Debtor states that the payment for this vehicle is listed on Sch. J. A $350 payment is listed on Sch. J, but Sch. B reflects that the vehicle is a 1998 Toyota RAV 4, so it is unclear if the payment listed on Sch. J is for this Hyundai payment or the payment is for a Toyota RAC 4.
Debtor has a right to rescind agreement anytime prior to discharge, or until November 10, 2018, whichever is later.
8:30 AM
Debtor(s):
Donald G. Clackler Represented By Stephen S Smyth
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
Docket 12
Petition date: 7/18/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2016 Honda Civic
Debtor’s valuation of property (Sch. B): $14,422 Amount to be reaffirmed: $16,790.19
APR: 4.95% (fixed)
Contract terms: $464.17 per month for 39 months Monthly Income (Schedule I): $2,540.62
Monthly expenses: (Schedule J): $3,052 Disposable income: <$511.38>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor Juan states that he is requesting a raise, and is working overtime and Saturdays to earn enough to make the payment.
Debtor has a right to rescind agreement anytime prior to discharge, or until November 28, 2018, whichever is later.
8:30 AM
Debtor(s):
Juan Francisco Mejia Ortiz Represented By Lauren M Foley
Joint Debtor(s):
Johanna A Ayala Hernandez Represented By Lauren M Foley
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
Docket 14
Petition date: 7/18/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2015 Toyota Tundra
Debtor’s valuation of property (Sch. B): $28,470 Amount to be reaffirmed: $21,493.37
APR: 1.9% (fixed)
Contract terms: $629.83 per month for 35 months Monthly Income (Schedule I): $2,540.62
Monthly expenses: (Schedule J): $3,052 Disposable income: <$511.38>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor Juan states that he is requesting a raise, and is working overtime and Saturdays to earn enough to make the payment.
Debtor has a right to rescind agreement anytime prior to discharge, or until November 29, 2018, whichever is later.
8:30 AM
Debtor(s):
Juan Francisco Mejia Ortiz Represented By Lauren M Foley
Joint Debtor(s):
Johanna A Ayala Hernandez Represented By Lauren M Foley
Trustee(s):
David Seror (TR) Pro Se
9:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Raul Jimenez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
To Dismiss Or Convert Case fr. 7/18/18, 8/29/18
Docket 208
8/29/18 Tentative
While debtor was in compliance at the last hearing, this matter was continued to August 29 to trail the disclosure statement hearing Trustee indicated that she would withdraw the Motion if the disclosure statement was approved.
7/18/18 Tentative
UST moves to dismiss, arguing that there is cause under 11 U.S.C. § 1112(b) to dismiss or convert this case. First, Debtor, an individual, has had almost four years to obtain approval of a disclosure statement and plan. Despite this significant amount of time, Debtor has been unable to obtain approval of a disclosure statement delaying creditors’ rights to receive any payment on their claims. In addition, the Court has advised Debtor that he needs to wrap up the case and was to notice a hearing on his amended disclosure statement and plan for July 18, 2018, which would have required Debtor to file the amended disclosure statement and plan by June 6, 2018. Regardless of this warning and the July 18, 2018 deadline, Debtor has not filed or noticed an amended disclosure statement for a July 18, 2018 hearing.
Lastly, UST contends that Debtor is delinquent in filing the May MOR and providing proof of current insurance for the Honda Accord.
On June 23, 2018, Debtor filed his opposition to the Motion, contending that he has filed proof of his current insurance and the May MOR. Debtor also represents that he has received the accounting from the lender Ditech Financial. In the Opposition, filed a mere 25 days on what is usually a 42-day notice period under LBR 3017-1(a), Debtor states that he will be filing his disclosure statement. An amended disclosure statement was filed on July 11, 2018 - one week before it was set to be heard.
The Court is inclined to grant this Motion. APPEARANCE REQUIRED
9:30 AM
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
Docket 216
Service
After a disclosure statement is approved, unless otherwise ordered, the plan proponent must serve the plan or court-approved summary of the plan, the court- approved disclosure statement, notice of the time within which acceptances and rejections of the plan may be filed, and any other information required by the court. Fed. R. Bankr. P. 3017(d)(1)-(4). At least 28 days’ notice of the motion for confirmation of the plan must be provided. Fed. R. Bankr. P. 2002(b). Objections to the confirmation of the plan, if any, must be made in accordance with Fed. R. Bankr. P. 3020(b).
General
To approve a reorganization plan, the Court must find that the proposed plan is "fair and equitable," meaning that the payment priorities of the Code are met.
United States of America v. Technical Knockout Graphics Inc., (In re Technical Knockout Graphics, Inc.), 833 F.2d 797, 803 (9th Cir. 1987).
Ballot Analysis – 11 U.S.C. §1126
Pursuant to 11 U.S.C. §§1126(c) & (d), at least two-thirds in dollar amount and more than one-half in number of those class members who voted (not total numbers in class) vote to accept the plan. In re M. Long Arabian, 103 B.R. 211, 215 (B.A.P. 9th Cir. 1989). Failure to vote does not constitute acceptance of the plan. A class must affirmatively vote to accept the plan. In re Townco Realty Inc., 81 B.R.
707, 708 (Bankr. S.D. Fla. 1987). There is no such thing as acceptance by waiver or default.
Class 2(c) and class 6(b), the general unsecured creditors, are the only
9:30 AM
classes impaired under the plan. The only ballots received were from Ditech financial, who hold a claim secured by the property located at 18132 Sunburst St., Northridge, CA 91325. Ditech’s claim is divided between class 2(a), the secured portion of its claim, and class 2(c), representing the arrears on the Sunburst property.
Plan Compliance – 11 U.S.C. §1129
The court will only confirm a plan if it satisfies the requirements identified in § 1129(a)(1)-(16), unless §1129(b)(1) applies. 11 U.S.C. §1129(a); Id. at (b)(1). An important concern is the proper classification pursuant to 11 U.S.C. §1122. In re Boston Post Road Limited Partnership, 21 F.3d 477, 481 (2nd Cir. 1994). The plan proponent cannot classify similar claims in separate classes in order to gerrymander acceptance of the plan. See, e.g., In re Johnston, 140 B.R. 526, 529 (B.A.P. 9th Cir. 1992).
The plan proponent has the burden of proving compliance with all of the elements of 11 U.S.C. 1129(a). In re Sullivan, 26 B.R. 677 (Bankr. W.D. N.Y. 1982); In re Prudential Energy Company, 58 B.R. 857 (Bankr. S.D. N.Y. 1986).
11 U.S.C. §1129(a)(1)
The court will only confirm a plan if it "complies with the applicable provisions of this title." 11 U.S.C. §1129(a)(1). A plan complies with the applicable provisions of chapter 11 when it properly classifies the claims or interests and contains all mandatory provisions. See 11 U.S.C. §§1122, 1123; See also, Acequia, Inc., v.
Clinton, (In re Acequia, Inc.), 787 F.2d 1352 (9th Cir. 1986); Technical Knockout, 833 F.2d 797, 803 (9th Cir. 1987).
Accordingly, the first question is whether the plan properly classifies claims and interests as provided in §1122. The plan satisfies this requirement.
Assuming the plan properly classifies claims and interests, the second question is whether the plan contains all mandatory provisions of §1123. Section 1123 designates the required contents of the plan, as well as other provisions which are not required but may be included in the plan.
Section 1123(a)(1) requires the plan to classify claims other than administrative priority claims and priority tax claims. The plan satisfies this
9:30 AM
requirement.
Section 1123(a)(2) requires the plan to specify any class of claims or interests that is unimpaired under the plan. The plan satisfies this requirement.
Section 1123(a)(3) requires the plan to specify the treatment of any class of claims or interests that is impaired under the plan. The plan provides that class 2(c) will receive monthly cure payments of $2,321.16 over five years and that class 6(b) will receive 10% of their claims in equal monthly payments; however, the plan does not specify the number of years over which payments to class 6(b) general unsecured creditors will be made. Debtor should clarify this omission at the hearing.
Section 1123(a)(4) requires that the plan provide the same treatment for each claim or interest in a particular class, except where a member of a particular class agrees to less favorable treatment. The plan satisfies this requirement.
Section 1123(a)(5) requires that the plan provide "adequate means for the plan’s implementation . . . ." 11 U.S.C. §1123(a)(5). The plan provides that it will be funded with $51,816.97 available on the effective date. The plan does not clearly indicate the amount in professional fees due upon confirmation, and whether this amount will be sufficient.
Section 1123(a)(6) requires that where the debtor is a corporation, the plan provide that the charter contain a provision prohibiting the issuance of nonvoting equity securities and provide appropriate voting power among several classes of securities where applicable. This requirement is not applicable.
Section 1123(a)(7) requires that with respect to the selection of officers or directors, the plan contains only provisions consistent with the interests of creditors, equity security holders, and public policy. This requirement is not applicable.
Section 1123(a)(8) applies only where the debtor is an individual. In such cases, the plan must provide for the payment to creditors under the plan of all or such portion of earnings from personal services performed by the debtor after the commencement of the case or other future income of the debtor as necessary to perform under the plan. 11 U.S.C. §1123(a)(8). The plan satisfies this requirement.
11 U.S.C. §1129(a)(2)
The court will only confirm a plan if the "proponent of the plan complies with
9:30 AM
the applicable provisions of this title." 11 U.S.C. §1129(a)(2). This requirement is designed to ensure that the plan proponent has made the appropriate disclosures and complied with the solicitation requirements set forth in §1125. Andrew v.
Coppersmith (In re Downtown Inv. Club III), 89 B.R. 59, 65 (B.A.P. 9th Cir. 1988). As the Court entered an order on September 10, 2018 approving the disclosure statement, this requirement is satisfied.
11 U.S.C. §1129(a)(3)
The plan must be proposed in good faith and not by any means forbidden by law. 11 U.S.C. §1129(a)(3); see In re Stolrow's Inc., 84 B.R. 167 (Bankr. 9th Cir.
1988). There is a presumption that a plan was filed in good faith if no objections are filed. Fed. R. Bankr. P. 3020(b). If the presumption in Rule 3020(b) arises, then the court need not receive evidence on the issue of good faith. Id. There have been no allegations of bad faith. The plan satisfies this requirement.
11 U.S.C. §1129(a)(4)
Any payment to be made by a plan proponent, debtor, or person issuing securities or acquiring property under the plan, for services or costs in connection with the case or in connection with the plan and incident to the case, must be approved by the court as reasonable. 11 U.S.C. §1129(a)(4). This requirement is not applicable.
11 U.S.C. §1129(a)(5)
The plan must disclose the identity and affiliations of any individual proposed to serve as a director, officer, or voting trustee of the debtor . . . ." 11 U.S.C. § 1129(a)(5)(A)(i). The appointment or continuation in occupation of such a person must be consistent with the interests of creditors and equity security holders and with public policy. Id. at §1129(a)(5)(A)(ii). If an insider will be employed by the reorganized debtor, the plan proponent must disclose that fact. Id. at §1129(a)(5) (B). This requirement is not applicable.
11 U.S.C. §1129(a)(6)
If any governmental regulatory commission has jurisdiction over the reorganized debtor, that regulatory body must approve any rate change provided for in the plan. 11 U.S.C. §1129(a)(6). This requirement is not applicable.
11 U.S.C. §1129(a)(7)
The plan proponent must demonstrate that either each member of impaired class has either accepted plan or will receive as much if debtor liquidated in a chapter 7. 11 U.S.C. §1129(a)(7). This is known as the "best interests" of the
9:30 AM
creditors test. The liquidation analysis noted on page five of the disclosure statement indicates that there would be $0 available to general unsecured creditors in a hypothetical chapter 7. The plan proposes to pay 10% on such claims. Therefore, this requirement is satisfied.
11 U.S.C. §1129(a)(8)
The plan proponent must show that each class has either accepted the plan or is unimpaired. 11 U.S.C. 1129(a)(8). Otherwise, the plan proponent must "Cram Down" the rejecting class. 11 U.S.C. §1129(b); see In re M. Long Arabians, 103
B.R. 211, 215 (B.A.P. 9th Cir. 1989). Failure to vote does not constitute acceptance of the plan. A class must affirmatively vote to accept the plan. In re Townco Realty Inc., 81 B.R. 707, 708 (Bankr. S.D.Fla. 1987). A class of claims has accepted a plan if it has been accepted by creditors that hold at least two-thirds in amount and more than one-half in number of the allowed claims of such class. 11 U.S.C. §1126(c). Class 6(b) is impaired and has not submitted any ballots; therefore it is presumed to have rejected the plan. However, Class 2(c) is impaired and has submitted a ballot accepting the plan.
11 U.S.C. §1129(a)(9)
The plan can only be confirmed if administrative claimants are paid in full on the effective date unless otherwise agreed. 11 U.S.C. §1129(a)(9)(A). The plan may make deferred cash payments to accepting holders of non-priority tax claims, while rejecting holders of such claims must be paid the amount of their allowed claim on the effective date. Id. at §1129(a)(9)(B)(i)-(ii). However, the plan may make deferred cash payments to holders of allowed priority tax claims so long as the claimants will receive an amount equal to the allowed amount of the claim as of the effective date, over a period of not more than five years from the petition date. Id. at
§1129(a)(9)(C). As noted above, the amount of professional fees due on the effective date is unclear from the plan. Will the $51,816.97 available on the effective date cover the administrative claims?
11 U.S.C. §1129(a)(10)
At least one class of claims that is impaired under the plan must accept the plan, exclusive of any acceptance by a plan insider. 11 U.S.C. §1129(a)(10). Class 6(b) is impaired and has not submitted any ballots; therefore it is presumed to have rejected the plan. However, Class 2(c) is impaired and has submitted a ballot accepting the plan.
11 U.S.C. §1129(a)(11)
The court may only confirm a plan if it is feasible, meaning that confirmation
9:30 AM
is not likely to be followed by the liquidation, or need for further financial reorganization, of the debtor . . . ." 11 U.S.C. §1129(a)(11); Pizza of Hawaii, Inc. v. Shakey's, Inc, (In re Pizza of Hawaii, Inc.), 761 F.2d 1374 (9th Cir. 1985). Feasibility is demonstrated where the plan has a "reasonable probability of success." In re Acequia, Inc., 787 F.2d at 1364. A review of the MORs for August and July indicate that Debtor has $42,372 cash available plus $10,777 in Debtor’s cash collateral account. This plan appears to be feasible.
11 U.S.C. §1129(a)(12)
Section 1129(a)(12) requires that all fees payable under 28 U.S.C. §1930 are paid or will be paid on effective date. It appears that this requirement has been or will be met by the effective date.
11 U.S.C. §1129(a)(13)
The plan must provide for "the continuation after its effective date of payment of all retiree benefits, as that term is defined in [11 U.S.C. §1114] at the level established pursuant to subsection (e)(1)(B) or (g) of [section 1114], at any time prior to confirmation of the plan, for the duration of the period the debtor has obligated itself to provide such benefits." 11 U.S.C. §1129(a)(13). This requirement is not applicable.
11 U.S.C. §1129(a)(14)
Section 1129(a)(14) requires the debtor to be current on any domestic support obligation as required by judicial or administrative order. This requirement is not applicable.
11 U.S.C. §1129(a)(15)
Where the debtor is an individual and a holder of an unsecured claim objects to confirmation, section 1129(a)(15) requires that "the value, as of the effective date of the plan, of the property to be distributed under the plan on account of such claim is not less than the amount of such claim," or "the value of the property to be distributed under the plan is not less than the projected disposable income of the debtor (as defined in section 1325(b)(2)) to be received during the 5-year period beginning on the date that the first payment is due under the plan, or during the period for which the plan provides payments, whichever is longer." 11 U.S.C. § 1129(a)(15). This requirement is not applicable.
11 U.S.C. §1129(a)(16)
The final requirement of §1129(a) is that "[a]ll transfers of property of the plan
9:30 AM
shall be made in accordance with any applicable provisions of nonbankruptcy law that govern the transfer of property by a corporation or trust that is not a moneyed, business, or commercial corporation or trust." 11 U.S.C. §1129(a)(16). This requirement is not applicable.
Cram Down – 11 U.S.C. §1129(b)
If all the other requirements for confirmation are met, except acceptances as provided in section 1129(a)(8), the court shall confirm the plan if the plan does not discriminate unfairly and is fair and equitable with respect to each class of claims and interests that is impaired under and has not accepted the plan. 11 U.S.C. § 1129(b).
With respect to a secured class, "fair and equitable means that the secured class retains lien and receives an amount in deferred cash payments totaling at least the allowed amount of such claim, of a value, of at least the value of such holder's interest in the estate's interest in the property. 11 U.S.C. §1129(b)(2)(A) Alternatively the plan may provide for the sale of the encumbered property, or the class may receive the "indubitable equivalent of its claim(s).
With respect to an unsecured class, "fair and equitable" means that each claimant receives or retains property of value equal to allowed claim, or the holder of a junior claim neither receives nor retains property on account of such claim. 11
U.S.C. §1129(b)(2)(B). The plan treats them fairly because they are receiving more than they would in a Chapter 7 and all creditors in the class are treated equally. Therefore, for the reasons set forth in In re Friedman, 2012 WL 911545 (B.A.P. 9th Cir. 2012), the absolute priority rule is inapplicable in individual Chapter 11 cases.
With respect to a class of interests, fair and equitable means that the claimant receives or retains property of value equal to the greater of allowed amount of fixed liquidation preference, any fixed redemption price, the value of such interest, or the holder of a junior interest neither receives nor retains any property on account of such junior interest. 11 U.S.C. §1129(b)(2)(C)
The terms "does not discriminate unfairly" and "fair and equitable" connote definite
meanings within reorganization cases [t]his provision requires that a plan
"allocate […] value to the class in a manner consistent with the treatment afforded to other classes with similar legal claims against the debtor (citations omitted). Acequia, supra, 787 F.2d at 1364. The plan proponent must show that the plan does not "unfairly discriminate" and is "fair and equitable" by a clear and convincing burden of
9:30 AM
proof. In re Stoffel, 41 B.R. 390 (Bankr. D. Minn. 1984); In re Sloan, 57 B.R. 91 (Bankr. D. S.C. 1985); In re Agawam Creative Marketing Associates Inc., 63 B.R. 612 (Bankr. D. Mass. 1986).
Objections
No objections to the plan have been filed. The U.S. Trustee has a pending Motion to Dismiss or Convert the case trailing plan confirmation, but the Trustee has not filed an objection.
Disposition
Assuming implementation and feasibility are appropriately evidenced at the hearing, and Debtor files a declaration approving of the plan, the plan will be CONFIRMED.
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
fr. 1/8/15; 7/30/15, 10/15/15; 1/20/16; 3/31/16, 6/2/16, 7/28/16, 11/3/16, 7/28/17; 10/18/17; 12/6/17,
2/7/18; 3/7/18; 4/4/18, 5/23/18, 7/18/18, 8/29/18
Docket 1
NONE LISTED -
Debtor(s):
Joseph Youseffia Represented By
William H Brownstein
Movant(s):
Joseph Youseffia Represented By
William H Brownstein
9:30 AM
Docket 0
At the previous hearing, the Court set a deadline of August 31 for Debtor to file a Disclosure Statement and Plan. No disclosure statement and plan were filed. On October 3, Debtor filed a Motion to Voluntarily Dismiss the case. That hearing is set for November 8, 2018. This appears to potentially be a surplus estate based upon the schedules. Therefore, the Court will need to determine at the November 8 hearing whether conversion or dismissal is more appropriate.
NO APPEARANCE REQUIRED ON OCTOBER 17
Debtor(s):
Tatonka Acquisitions, Inc. Represented By Dana M Douglas
9:30 AM
Docket 74
The United States Trustee ("Trustee") has filed an objection to confirmation of this Plan on the grounds that the plan is not feasible under § 1129(a)(11). As Debtor had an unsuccessful case dismissed shortly before this case was filed, feasibility has been the primary concern in this case. However, because any infeasibility of the plan will primarily harm the secured creditor U.S. Bank, and the Bank voted to accept the plan, the Court is willing to overlook the unsteady income demonstrated by the Monthly Operating Reports. The plan appears to otherwise be confirmable.
APPEARANCE REQUIRED
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
9:30 AM
fr. 4/4/18, 7/18/18, 9/26/18
Docket 36
NONE LISTED -
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
11:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
fr. 6/13/18, 8/15/18
Docket 34
At the previous hearing, the parties indicated that there was no confirmation whether Debtor was able to obtain a loan modification. If the loan modification did not go through, the parties indicated that they would seek an adequate protection order.
Nothing new has been filed on the docket. What is the status of either a loan modification or an adequate protection order?
8/15/18 Tentative
This hearing was continued from June 13, 2018, to allow the Debtor to apply for a loan modification. What is the status of this Motion?
APPEARANCE REQUIRED
6/13/18 TENTATIVE BELOW
Petition Date: 08/2/2017
Service: Proper. Opposition filed.
Property: 21051 Schoenborn St., Canoga Park, California 91304 Property Value: $ 560,000.00 (per debtor’s schedules)
Amount Owed: $ 687,555.73 Equity Cushion: 0.0% Equity: $0.00
Post-Petition Delinquency: $11,056.62 (4 payments of $10,251.16; $0.00 in post- petition advances; $1,031 in attorneys’ fees; less $225.54 in suspense account or partial paid balance)
Debtor opposes the Motion, arguing that there is an application for a loan modification still under review, and requests a continuance of this hearing to allow for a determination of the loan modification application. See Opposition, Ex. A.
11:00 AM
Movant requests relief under 11 U.S.C. 362(d)(1). Movant requests specific relief in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 5 (11 U.S.C. §1201 (a) or §1301(a) co-debtor stay terminated, modified, or annulled); and 6 (waiver of the 4001(a)(3) stay).
APPEARANCE REQUIRED
Debtor(s):
Samuel Araos Pasag Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Nellie Garingan Pasag Represented By
Hasmik Jasmine Papian
Movant(s):
Deutsche Bank National Trust Co., Represented By
Alexander G Meissner S Renee Sawyer Blume
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Capital Access Group Inc
Docket 10
Petition Date: September 18, 2018 Chapter:13
Service: Proper. Opposition filed.
Property: 1177 Beecher St, San Leandro, CA 94577
Debtor filed an opposition to clarify that he has no interest in to connection to this property. It appears that the property was dumped into this case without the knowledge of the Debtor. The Motion is not dated, on the incorrect form, and the extent of the relief asked for is therefore unclear.
The declaration attached to the Motion states that the property has been improperly transferred twice by unrecorded quitclaim deeds and those transferees have both filed bankruptcy. However, the declaration is not signed or dated. A separate declaration regarding the transfers, along with an appraisal of the property, was filed as Doc. No. 11. It appears that this is a typical real property (d)(4) relief from stay motion, not a motion for relief from stay and from turnover by a prepetition receiver or other custodian under § 543, as the form would indicate. Given Debtor’s statement in his non-opposition, and the separately filed declaration, the Court will grant relief from the stay under 362(d)(1), (d)(2), (d)(4), and will grant the requested waiver of the 4001(a)(3) stay.
NO APPEARANCE REQUIRED
Debtor(s):
David Luis Gonzalez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01085 Lui v. NAVIENT SOLUTIONS,INC
523(a)(8)(B)
fr. 11/8/17, 6/13/18, 8/15/18
Docket 1
NONE LISTED -
Debtor(s):
Kenneth Paul Lui Represented By Christine A Kingston
Defendant(s):
NAVIENT SOLUTIONS,INC Pro Se
Plaintiff(s):
Kenneth Paul Lui Represented By Christine A Kingston
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Adv#: 1:18-01097 First National Bank Of Omaha v. Navarro
Docket 1
NONE LISTED -
Debtor(s):
Virginia D. Navarro Represented By Jennifer Ann Aragon
Defendant(s):
Virginia D. Navarro Pro Se
Plaintiff(s):
First National Bank Of Omaha Represented By Cory Rooney Cory J Rooney
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
fr. 7/25/17, 9/26/17, 11/28/17, 1/23/18; 3/27/18; 4/24/18, 6/19/18; 7/31/18, 9/11/18
Docket 100
NONE LISTED -
At the previous hearing, the parties indicated that they had reached a stipulation regarding this objection, but certain changes had to be made before the stipulation could be finalized. Nothing new has been filed in this case since June. When will this stipulation be filed?
Mr. Nehoray must appear personally at all future hearings on this case. APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Movant(s):
Victoria Ruiz Represented By
Siamak E Nehoray Siamak E Nehoray Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
11:00 AM
fr. 3/28/17, 5/23/17;l 7/25/17, 9/26/17, 11/28/17, 1/23/18; 3/27/18; 4/24/18, 6/19/18; 7/31/18, 9/11/18
Docket 89
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 5/22/18, 6/19/18; 7/31/18, 9/11/18
Docket 84
NONE LISTED -
No motion for hardship discharge has been filed, and it appears that the $2,500 has not been paid to the Trustee.
APPEARANCE REQUIRED
Debtor(s):
Charlene Decoff Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 104
NONE LISTED -
NONE LISTED -
Debtor(s):
VANESSA PAOLA OJINAGA Represented By Veralin N Nnaoji
Trustee(s):
Elizabeth (SV) F Rojas (TR) Represented By Veralin N Nnaoji
11:00 AM
Docket 65
NONE LISTED -
NONE LISTED -
Debtor(s):
Olga M Zavala-Edwards Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 56
NONE LISTED -
NONE LISTED -
Debtor(s):
Israel Deleon Represented By
Elena Steers
Joint Debtor(s):
Yvonne Deleon Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/11/18
Docket 66
NONE LISTED -
NONE LISTED -
Debtor(s):
Henry Guzman Represented By Ali R Nader
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/11/18
Docket 43
NONE LISTED -
NONE LISTED -
Debtor(s):
Fernando Becerril Represented By Ali R Nader
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 65
NONE LISTED -
NONE LISTED -
Debtor(s):
Erick Chicas Represented By
Eric Bensamochan
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 132
NONE LISTED -
NONE LISTED -
Debtor(s):
Emma L Gutierrez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 34
NONE LISTED -
NONE LISTED -
Debtor(s):
Elissa Ann Wilson Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 57
NONE LISTED -
NONE LISTED -
Debtor(s):
Ben Diep Represented By
Kevin T Simon
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 47
NONE LISTED -
NONE LISTED -
Debtor(s):
Art Summroell Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17; 2/27/18; 3/27/18, 5/22/18; 7/31/18, 9/11/18
Docket 48
NONE LISTED -
According to the Trustee’s website, Debtors are now $16,415 behind on plan payments. Do Debtors have a realistic chance of modifying this plan?
APPEARANCE REQUIRED
Debtor(s):
William Michael Desmuke Sr Represented By Claudia L Phillips
Joint Debtor(s):
Priscilla Ann Desmuke Represented By Claudia L Phillips
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 58
NONE LISTED -
NONE LISTED -
Debtor(s):
Diona Renee Bell Represented By Gregory M Shanfeld
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 66
NONE LISTED -
NONE LISTED -
Debtor(s):
Waqas Memon Represented By William R Ramsey
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 80
NONE LISTED -
NONE LISTED -
Debtor(s):
Nafees Memon Represented By William R Ramsey
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 67
NONE LISTED -
NONE LISTED -
Debtor(s):
Arsen Melikyan Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 44
NONE LISTED -
NONE LISTED -
Debtor(s):
Fakhrudin Noorbhai Represented By Jeffrey N Wishman
Joint Debtor(s):
Asma Fakhrudin Noorbhai Represented By Jeffrey N Wishman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/11/18
Docket 56
NONE LISTED -
NONE LISTED -
Debtor(s):
Kathy Sophia Brening-Ray Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 73
NONE LISTED -
NONE LISTED -
Debtor(s):
Bruce Jeffrey Starin Represented By John D Monte
Joint Debtor(s):
Geraldine Papel Starin Represented By John D Monte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 46
NONE LISTED -
NONE LISTED -
Debtor(s):
Lisa Marie Payne Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/11/18
Docket 34
NONE LISTED -
NONE LISTED -
Debtor(s):
Milton T Appel Represented By Stephen S Smyth William J Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 85
NONE LISTED -
NONE LISTED -
Debtor(s):
Gregory A Harris Represented By Brad Weil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 87
NONE LISTED -
An order was entered granting the Motion to Modify on October 12. Does Trustee wish to pursue this Motion to Dismiss?
Debtor(s):
Leonor Cecilia Garcia Represented By Andrew Moher
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 76
NONE LISTED -
NONE LISTED -
Debtor(s):
Levia Blane Arbuckle Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/31/18, 9/11/18
Docket 82
NONE LISTED -
NONE LISTED -
Debtor(s):
Irma Villalpando Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/31/18, 9/11/18
Docket 105
NONE LISTED -
NONE LISTED -
Debtor(s):
Allen Charles Mixon III Represented By Stella A Havkin
Joint Debtor(s):
Gladys Stennis Mixon Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 111
NONE LISTED -
NONE LISTED -
Debtor(s):
Allen Charles Mixon III Represented By Stella A Havkin
Joint Debtor(s):
Gladys Stennis Mixon Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 35
NONE LISTED -
NONE LISTED -
Debtor(s):
Isidro Gonzalez Rodriguez Represented By Kevin T Simon
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 60
NONE LISTED -
NONE LISTED -
Debtor(s):
Anthony Antoniello Represented By Kevin T Simon
Joint Debtor(s):
Tamara Marie Antoniello Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 40
NONE LISTED -
NONE LISTED -
Debtor(s):
Eduardo N Trillo Jr. Represented By Elena Steers
Joint Debtor(s):
Maritess Biglangawa Trillo Represented By Elena Steers
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 29
NONE LISTED -
NONE LISTED -
Debtor(s):
Alejandra Castellanos Represented By Julie J Villalobos
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 125
NONE LISTED -
NONE LISTED -
Debtor(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/11/18
Docket 47
NONE LISTED -
NONE LISTED -
Debtor(s):
Jose R. Fernandez Represented By Donald E Iwuchuku
Joint Debtor(s):
Esther Fernandez Represented By Donald E Iwuchuku
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 38
NONE LISTED -
It makes no sense to deal with this claim before the adversary is resolved. The trustee will not pay on a claim that is objected to, so this can be continued to whenever the adversary status conference is so that they can be heard together.
Debtor(s):
Nazaret Kechejian Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/11/18
Docket 22
NONE LISTED -
Denied as moot, unless Trustee believes it is still an issue. NO Appearance required.
Debtor(s):
Nazaret Kechejian Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 49
NONE LISTED -
An evidentiary hearing is required so that debtors can be cross examined about matters in the declarations. This cannot be ruled on based on bald assertions in the papers.
Debtor(s):
Hamid Farkhondeh Represented By Stella A Havkin
Joint Debtor(s):
Mary Dadyan Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 54
NONE LISTED -
There is no need to rule on this claim until the state court litigation is completed. Thi can be continued a few months to see what the Superior Court rules
Debtor(s):
Hamid Farkhondeh Represented By Stella A Havkin
Joint Debtor(s):
Mary Dadyan Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
9/11/18
Docket 32
NONE LISTED -
There is an interesting issue of whether Mirzai applies or not to the res judicata analysis. Neither party discusses whether the rule in Bohbot,2014 Bankr. LEXIS 2680 might apply. In any case, this appears to be a complicated factual inquiry that may be better left to the judge who originally ruled on the issue.
The issue of the house and the boat can be discussed at the confirmation hearing in that this is a matter the Chapter 13 Trustee may want to evaluate before the next confirmation hearing.
Debtor(s):
Neli Maria Negrea Represented By Stella A Havkin
Movant(s):
Neli Maria Negrea Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 21
NONE LISTED -
No opposition filed. GRANTED. No appearance required
Debtor(s):
Loi Tan Nguyen Represented By Khachik Akhkashian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 17
NONE LISTED -
It appears schedules were amended to address trustee's objection and plan was confirmed. Should this be withdrawn?
Debtor(s):
Mercedes R. Morales Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 43
NONE LISTED -
No opposition filed. Service proper. Motion GRANTED. No appearance required.
Debtor(s):
Blanca Araceli Michel Represented By Sanaz S Bereliani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 17
NONE LISTED -
No opposition filed. GRANTED. No appearance required
Debtor(s):
Jose DeJesus Hernandez Represented By Nicholas M Wajda
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 14
NONE LISTED -
No opposition filed. Motion GRANTED. No appearance required
Debtor(s):
Maria Pilar Mashhoud Represented By Michael V Jehdian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 22
NONE LISTED -
No opposition filed. The statute of limitations has run, so the claim is disallowed. Objection GRANTED. No appearance required.
Debtor(s):
Sara Hinojosa Represented By
R Grace Rodriguez
Joint Debtor(s):
Jesus Hinojosa Represented By
R Grace Rodriguez
Movant(s):
Sara Hinojosa Represented By
R Grace Rodriguez
Jesus Hinojosa Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Counsel needs to move quickly to resolve any issues so that trustee can commence paying claims. What time frame is counsel promising?
Debtor(s):
Sam Shem Tov Dan Represented By Shai S Oved
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
APPEARANCE REQUIRED.
Debtor(s):
Josephine E Williams Represented By Carlo Reyes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
12:00 PM
fr. 6/19/18, 9/11/18
Docket 30
Yes, time (12:00 noon) is correct! jc
APPEARANCE REQUIRED
Debtor(s):
Peter A. Holliday Represented By Stephen Parry
Movant(s):
Peter A. Holliday Represented By Stephen Parry Stephen Parry Stephen Parry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
fr. 6/18/15; 6/11/15; 9/10/15; 12/10/15; 3/3/16, 5/5/16, 7/28/16, 9/15/16, 10/20/16; 3/30/17; 3/29/17
7/12/17, 11/8/17, 12/13/17, 3/21/18
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Mark Handel Represented By
David L. Neale
John-Patrick M Fritz
9:30 AM
Docket 189
NONE LISTED -
Debtor(s):
Ireland Needlecraft, Inc. Represented By Steven R Fox
Movant(s):
Ireland Needlecraft, Inc. Represented By Steven R Fox Steven R Fox
9:30 AM
Docket 0
Claims bar date has been set already at 3/8/18 Objections to claims deadline: July 13, 2018 Disclosure statement filing deadline: August 31, 2018
Proposed disclosure statement hearing: October 24. 2018, 9 :30 am
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Debtor(s):
Henrik Andreas Ingvarsson Represented By Matthew D Resnik
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D Resnik
9:30 AM
Docket 74
NONE LISTED -
Debtor(s):
Henrik Andreas Ingvarsson Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
9:30 AM
Docket 56
NONE LISTED -
Debtor(s):
Happy Jump, Inc. Represented By Mark T Young
9:30 AM
Docket 19
NONE LISTED -
Debtor(s):
Smart Solar Energy Sales, Inc Represented By Stephen L Burton
11:00 AM
Docket 7
NONE LISTED -
Debtor(s):
Willian Gil Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 2149
NONE LISTED -
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
US BANK NATIONAL ASSOCIATION
fr. 7/18/18; 9/26/18
Docket 35
This hearing was continued twice per stipulation. What is the status of this Motion?
APPEARANCE REQUIRED
7-18-18 TENTATIVE BELOW
Petition Date: 3/27/15
Chapter 13 plan confirmed: 6/12/15 Service: Proper. Opposition filed.
Property: 23648 Del Cerro Circle, Canoga Park, CA 91304 Property Value: $694,000 (per debtor’s schedules) Amount Owed: $890,388.42
Equity Cushion: 0.0% Equity: $0.00.
Post-confirmation Delinquency: $33,488.81 (6 payments of $2,404.61; 10 payments of $2,061.67; less suspense account balance of $1,555.55)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
(3) stay).
Debtor opposes the Motion, arguing that they've made more payments than have been accounted for in the Motion. Debtors state that in August 2017, they received a letter from Nationstar that informed them that their account was "paid ahead" and that the next payment would be due on January 1, 2018. See Ex. A. Nationstar, Debtors allege, communicated directly with them
11:00 AM
(instead of their attorney) and assured them that their account was in good standing and that their funds were being held in a special account. Debtors claim that this Motion was the first time that they heard their account was delinquent.
Debtors' counsel stated in her declaration that after communicating with Movant about the Motion and requesting a full accounting, Movant sent to chapter 13 trustee a check for $50,020.99, without documentation as to why the money was sent. Counsel contends that Nationstar misapplied Debtor's payments.
Has Movant provided to Debtors' counsel the accounting requested in June? APPEARANCE REQUIRED
Debtor(s):
Romeo J Pettinelli Represented By Eliza Ghanooni
Joint Debtor(s):
Gloria J Pettinelli Represented By Eliza Ghanooni
Movant(s):
U.S. BANK NATIONAL Represented By Kelsey X Luu
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELLON
Docket 64
Petition Date: 01/21/2016
Chapter 13 plan confirmed: 10/7/16 Service: Proper. No opposition filed.
Property: 8242 Ventura Canyon Avenue, Panorama City, CA 91402-5425 Property Value: $484,184.00 (per debtor’s schedules)
Amount Owed: $494,363.48 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-confirmation Delinquency: $22,717.53 (6 payments of $2,009.36; 6 payments of $1,902.54; less suspense account or partial paid balance of
$753.87)
Movant alleges that the last payment tendered was on or about 2/12/18.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Heliodoro Navarro Represented By Daniel F Jimenez
11:00 AM
Movant(s):
The Bank of New York Mellon as Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/26/18
Docket 68
This hearing was continued from 9-26-18 so that Debtors had an opportunity to have motions related to modifying their plan and refinancing real property resolved. The Court also continued the hearing so that Movant could properly serve other creditors with a secured interest in the subject property.
The Court has granted the Motion to Refinance Real Property (ECF doc. 89) and the Motion to Modify Plan (ECF doc. 87). On 9-26-18, Movant filed a Proof of Service of the Motion, showing proper service on Unifund CCR, LLC. Service on Los Angeles County Treasurer & Tax Collector was not proper, however, per the address listed for the creditor in Appendix D of the Court Manual and the address listed by the creditor on the Proof of Claim no. 6.
APPEARANCE REQUIRED. 9-26-18 TENTATIVE BELOW
Petition Date: 12/21/16
Chapter 13 plan confirmed: 5/9/17
Service: NOT proper - secured judgment lien creditors not served.
Opposition filed.
Property: 12001 Martha St., North Hollywood, CA 91607
Property Value: $740,000 (per Appraisal ISO Debtor's Opposition) Amount Owed: $137,602
Equity Cushion: 81.4% Equity: $602,398
Post-confirmation Delinquency: $8,172.90 (10 payments of $817.29)
11:00 AM
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
(3) stay). Movant alleges that the last payment received on this debt was on or about 11/6/17.
Debtors oppose the Motion, arguing that there is considerable equity in the property and that they have been conditionally approved for a reverse mortgage in the amount of $280,015.80. Once approved by the Court, the reverse mortgage will enable them to pay off all of the encumbrances against the Property, including Movant's claim, with $28,000 left over to pay off most of the unsecured creditors in class 5.
Given that Movant's claim is protected by sufficient equity, the Court finds grounds to continue this hearing to October 24, 2018, at 11:00 a.m., to allow time for (1) Movant to serve other creditors with a secured interest in the Property; and (2) Debtors to have all of the Motions related to approving the refinance and the motion to modify plan resolved.
APPEARANCES WAIVED ON 9/26/18
Debtor(s):
Bruce Jeffrey Starin Represented By John D Monte
Joint Debtor(s):
Geraldine Papel Starin Represented By John D Monte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 63
Petition Date: 03/13/2017
Chapter 13 plan confirmed: 8/31/17 Service: Proper. No opposition filed.
Property: 18319 Collins St, # 8, Tarzana, CA 91356 Property Value: $398,000.00 (per debtor’s schedules) Amount Owed: $208,364.16 (per RFS motion)
Equity Cushion: 40.0%. Equity: $189,635.84.
Post-confirmation Delinquency: $4,564.45 (4 payments of $1,258.74; less suspense account or partial paid balance of $470.51)
Movant alleges cause for relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor's plan has only recently been confirmed and there is a sizeable equity cushion to protect Movant's claim. Have the parties discussed whether an APO is a feasible solution?
APPEARANCE REQUIRED
Debtor(s):
Liliya F Kargina Represented By Alla Tenina
11:00 AM
Movant(s):
SETERUS, INC., AS THE Represented By James F Lewin Renee M Parker
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/26/18
Docket 109
NONE LISTED -
Debtor(s):
Allen Charles Mixon III Represented By Stella A Havkin
Joint Debtor(s):
Gladys Stennis Mixon Represented By Stella A Havkin
Movant(s):
JPMORGAN CHASE BANK, Represented By Christina J O Lee Gates
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 41
Petition Date: 09/28/2017
Chapter 13 plan confirmed: 4/13/18 Service: Proper. Opposition filed.
Property: 4991 Medina Drive, Woodland Hills, CA 91364 Property Value: $1,287,000.00 (per debtor’s schedules) Amount Owed: $ 1,187,285.35 (per RFS motion)
Equity Cushion: 0.0% Equity: $99,714.65
Post-confirmation Delinquency: $7,486.86 (2 payments of $3,743.43)
Movant alleges case for relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay) and 14 (post-petition payment added to the outstanding balance of the subject as non-bankruptcy law). Movant alleges that the last payment tendered was on or about 8/27/18.
Debtors oppose the Motion, arguing that their chapter 13 plan has been confirmed and Debtors propose to enter into an APO with Movant. Debtors stated that they would mail a payment to bring Movant current through Oct. 2018. Lastly, Debtors request a payment history, as none was provided with the Motion.
APPEARANCE REQUIRED
Debtor(s):
Norman Everett Ross Jr. Represented By
11:00 AM
Barry E Borowitz
Joint Debtor(s):
Edna Henderson Ross Represented By Barry E Borowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 24
Petition Date: 01/10/2018 Chapter: 13
Service: Proper. Opposition filed. Property: 2016 Toyota Prius
Property Value: $16,373.00 (per debtor’s schedules) Amount Owed: $23,894.90 (per RFS motion)
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $1,408.86 (1 payment of $434.90; 2 payments of
$486.98)
Movant alleges cause for relief under 11 U.S.C. 362(d)(1) and (d)(2), with the specific relief requested in paragraph 2 (proceed under applicable non- bankruptcy law); 5 (termination of co-debtor stay-as to debtor’s step son) and 6 (waiver of 4001(a)(3) stay).
Debtor opposes the Motion, arguing that Debtor’s stepson, Shahbaz Jaweedan, drives the Vehicle and that he cured the entire delinquency. Debtor states that his stepson's payment brought the loan current on all post- petition payments one day prior to the Movant's filing of this motion.
If the delinquency has been cured, is Movant amenable to withdrawal of this Motion?
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Abdul K. Patel Represented By
David Samuel Shevitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
U.S. BANK NATIONAL ASSOCIATION
Docket 37
Petition Date: 02/12/2018 Chapter: 13
Service: Proper; co-debtor served. No opposition filed. Property: 6767 Pheasant Lane, Oak Park, CA 91377 Property Value: $ 632,040.00 (per debtor’s schedules) Amount Owed: $512,777.53 (per RFS motion)
Equity Cushion: 11% Equity: $119,262.47.
Post-Petition Delinquency: $6,470.94 (3 payments of $3,210.30 and less suspense account or partial paid balance of $3,159.96)
Movant alleges cause for relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (termination of co- debtor stay); and 7 (waiver of the 4001(a)(3) stay).
There appears to be a sizeable equity cushion to protect Movant's claim. Have the parties discussed whether an APO is a feasible solution?
APPEARANCE REQUIRED
Debtor(s):
John Edward Wilds Represented By Randall V Sutter
Joint Debtor(s):
Lisa Irene Wilds Represented By
11:00 AM
Trustee(s):
Randall V Sutter
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 42
Petition Date: 03/07/2018
Chapter 13 plan confirmed: 8/14/18 Service: Proper. No opposition filed.
Property: 6449 Elmer Avenue, Los Angeles, CA 91606 Property Value: $567,576.00 (per debtor’s schedules) Amount Owed: $286,094.34 (per RFS motion)
Equity Cushion: 42.0% Equity: $281,481.66.
Post-Petition Delinquency: $7,254.96 (3 payments of $2,198.16; cost added for administration of bankruptcy claim of $665; less suspense account or partial paid balance of 4.52)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 6 (waiver of the 4001(a)
(3) stay). Movant alleges that the last payment tendered was on or about 6/8/18.
Debtor's plan has only recently been confirmed and there is a sizeable equity cushion to protect Movant's claim. Have the parties discussed whether an APO is a feasible solution?
APPEARANCE REQUIRED
Debtor(s):
Marcela Navarrete Melendrez Represented By Raymond Perez
11:00 AM
Movant(s):
Bank of America, N.A. Represented By Asya Landa
Diana Torres-Brito
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 37
Petition Date: 06/04/2018 Chapter:13
Service: Proper. Opposition filed.
Property: 21649 Arapahoe Trail, Chatsworth, CA 91311 Property Value: $580,000.00 (per debtor’s schedules) Amount Owed: $197,888.56 (per RFS motion)
Equity Cushion: 14.0% (the first mortgage holder: SPS Select Portfolio Servicing; amount of claim: $255,985.00)
Equity: $156,126.44
Post-Petition Delinquency: $4,586.87 (3 payments of $1,128.85; postpetition advances or other charges due but unpaid $169.32; attorney’s fees and costs of $1,031)
Movant alleges cause for relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 6 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that the property is necessary for an effective reorganization because the loss of his home would result in significant cost to the estate in moving expenses leaving less money available to the creditors. Debtor argues that Movant is adequately protected by an equity cushion of 23.4%, that the property is fully provided for in the chapter 13 plan and all post-petition arrearages will be cured by the hearing date on the motion.
APPEARANCE REQUIRED.
11:00 AM
Debtor(s):
Henry W Hardison Jr Represented By
James Geoffrey Beirne
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION
Docket 18
On October 12, 2018, Debtor's case was dismissed with a 180-day bar to refiling. Because no request for in rem relief or annulment was made in the Motion, it is DENIED as moot.
NO APPEARANCE REQUIRED. MOVANT TO LODGE ORDER WITHIN 7 DAYS. RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
Russ Gene Robinson Pro Se
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 16
Petition Date: 09/07/18 Chapter:7
Service: Proper. No opposition filed.
Property: 10864 Sharp Avenue, Mission Hills, CA 91345 Property Value: $ 701,129 (per debtor’s schedules)
No portion owned by debtor per debtor’s schedules Amount Owed: $ 788,090.76 (per RFS motion) Equity Cushion: Unknown
Equity: $0.00.
Post-Petition Delinquency: Unknown
Movant argues that this case was filed in bad faith because movant is the one of few creditors listed in the Debtor’s case commencement document and multiple bankruptcies affecting, the subject property, done with the intent to delay, hinder, or defraud creditors.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of 4001(a)
(3) stay); 8 (Designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law); 9 (Relief under 362(d)(4))); and 10 (relief binding and effective for 180 days against any debtor)
DENY relief under paragraph 11 (relief binding and effective in any future bankruptcy case), as such relief requires the filing of an adversary proceeding under FRBP 7001.
11:00 AM
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Rene Pastor Alvarez Pro Se
Movant(s):
U.S. Bank NA, as successor trustee Represented By
Nancy L Lee
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 11
On October 5, 2018, Debtor's case was dismissed for failure to file required case commencement documents. Because no request for in rem relief or annulment was made in the Motion, it is DENIED as moot.
NO APPEARANCE REQUIRED. MOVANT TO LODGE ORDER WITHIN 7 DAYS. RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
Andrea Yvonne Kelley Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
GLEN BLUNDEN AND PAMELA BLUNDEN
fr. 10/10/2018
Docket 26
This hearing was continued at the last hearing at the request of the parties. What is the status of this Motion?
APPEARANCE REQUIRED
10-10-18 TENTATIVE BELOW
Petition Date: 09/17/18 Chapter:13
Service: Proper. No opposition filed.
Property: 7647 Quimby Avenue, West Hills, CA 91304 Property Value: $ 754,745 (per debtor’s schedules) Amount Owed: $ 108,816.86 (per RFS motion)
Equity Cushion: 78%
Equity: $ 645,928.14.
Post-Petition Delinquency: 4,257.99 (4 payments of $762.09; 3 payments of
$76.21; and attorney fee of $981)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
Deny 5 (co-debtor stay is waived) because the co-debtor, the other joint tenant was not served.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Loi Tan Nguyen Represented By Khachik Akhkashian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01030 Gottlieb (TR) v. Gemilyan
Docket 1
NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Defendant(s):
Karen Galust Gemilyan Pro Se
Plaintiff(s):
David K. Gottlieb (TR) Represented By Peter A Davidson
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
Adv#: 1:18-01056 GOTTLIEB v. Law Offices of Maro Burunsuzyan, A Prof. Corp. et
fr. 7/18/18
Docket 1
NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Defendant(s):
Maro Burunsuzyan Pro Se Law Offices of Maro Burunsuzyan, Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Peter A Davidson
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
Adv#: 1:18-01099 Stipkovich v. Trinity Financial Services, LLC et al
1 - Declaratory Relief to Determine the Validity of Lien 2 - Fraud
Docket 1
- NONE LISTED -
Debtor(s):
Daniel Mark Stipkovich Represented By Brandon J Anand
Defendant(s):
West H&A, LLC Pro Se
Patrick Joseph Soria Pro Se
Trinity Financial Services, LLC Pro Se
Plaintiff(s):
Daniel Mark Stipkovich Represented By Brandon J Anand
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01066 American Contractors Indemnity Company v. Ragsdale
Docket 35
No opposition. GRANTED. NO Appearance required.
Debtor(s):
Claudia Maria Ragsdale Pro Se
Defendant(s):
Claudia Maria Ragsdale Represented By William J Smyth
Plaintiff(s):
American Contractors Indemnity Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
fr. 6/18/15; 6/11/15; 9/10/15; 12/10/15; 3/3/16, 5/5/16, 7/28/16, 9/15/16, 10/20/16; 3/30/17; 3/29/17
7/12/17, 11/8/17, 12/13/17, 3/21/18
Docket 1
APPEARANCE REQUIRED
It appears payments are on track, and the court will await the motion to close the case when the debtor's payments have shown that the plan is substantially consummated. Hearing kept on in case any creditor appears.
Debtor(s):
Mark Handel Represented By
David L. Neale
John-Patrick M Fritz
11:00 AM
Docket 74
There appears to be adequate dosclosure. Tax returns should be filed before any confirmation hearing. Debtors should examine MORs more closely to see if more can be paid through the plan. There are significant entertainment and eating out expenses that will need to be explained at confirmation.
Counsel should propose a solicitation/confirmation schedule in line with when tax returns are likely to be filed.
Potential confirmation hearing dates at 10 am are January 9, 16 or 23 or February 6
Debtor(s):
Henrik Andreas Ingvarsson Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
11:00 AM
Docket 0
The Disclosure Statement, Chapter 11 Plan of Reorganization (the"Plan"), and a ballot conforming to Official Form 14, shall be mailed, along with notice of all relevant dates, to creditors, equity security holders, the Office of the United States Trustee and other parties in interest, pursuant to Bankruptcy Rule 2002, no later than :
Ballots to be returned and
objections to confirmation to be filed no later than:
Confirmation Brief stating why the Plan should be confirmed and admissible evidence supporting all applicable elements of 11 U.S.C. §1129, a ballot summary, and Debtor’s response to any objections to be filed no later than:
Confirmation hearing to be held on:
DEBTOR TO LODGE CONFIRMATION SCHEDULING ORDER WITH THE DATES SET BY THE COURT WITHIN 7 DAYS.
FAILURE TO LODGE THE CONFIRMATION SCHEDULING ORDER MAY RESULT IN DISMISSAL OR CONVERSION.
Debtor(s):
Henrik Andreas Ingvarsson Represented By Matthew D Resnik
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D Resnik
11:00 AM
11:00 AM
Docket 2155
Service proper. No opposition filed. Having reviewed the Trustee's Motion to Abandon Nunc Pro Tunc to Sept. 24, 2018, the Court finds that the subject property is burdensome and/or of inconsequential value and benefit to the Estate.
Motion GRANTED.
APPEARANCES WAIVED ON 10/24/18.
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
fr. 9/26/2018
Docket 136
- NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson Howard Camhi
11:00 AM
fr. 7/31/18, 8/8/18
Docket 114
8-8-18 TENTATIVE RULING BELOW
A proof of claim is deemed allowed unless a party in interest objects under § 502(a) and constitutes "prima facie evidence of the validity and amount of the claim" pursuant to Bankruptcy Rule 3001(f). See also Fed. R. Bankr.P. 3007. The filing of an objection to a proof of claim "creates a dispute which is a contested matter" within the meaning of Bankruptcy Rule 9014 and must be resolved after notice and opportunity for hearing upon a motion for relief. See Adv. Comm. Notes to Fed. R. Bankr.P. 9014.
Upon objection, the proof of claim provides "some evidence as to its validity and amount" and is "strong enough to carry over a mere formal objection without more." Wright v. Holm ( In re Holm ), 931 F.2d 620, 623 (9th Cir.1991) (quoting 3 Collier on Bankruptcy § 502.02, at 502-22 (15th ed.1991)); see also Ashford v.
Consolidated Pioneer Mort. ( In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff'd, 91 F.3d 151, 1996 WL 393533 (9th Cir.1996). To defeat the claim, the objector must come forward with 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." In re Holm, 931 F.2d at 623.
"If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence." In re Consol. Pioneer, 178
B.R. at 226 (quoting In re Allegheny Int'l, Inc., 954 F.2d 167, 173-74 (3d Cir.1992)). The ultimate burden of persuasion remains at all times upon the claimant. See In re Holm, 931 F.2d at 623.
Based on what has been filed, Khatibi has rebutted the validity of the amount
11:00 AM
on the amended proof of claim. A careful review of the documents and declarations submitted indicate that Khatibi does owe a certain amount to Rosamond, but the exact amount requires an evidentiary hearing to determine. Rosamond will commence the presentation of evidence and must show by a preponderance how much Khatibi owes. The debtor’s arguments as to owing nothing are not persuasive. The following summary highlights the questions that need to be resolved at an evidentiary hearing.
Nature of the Bonds
It appears the nature of the bond tenders is an offset, but this must be explained as the two parties seem to be confusing both which Special Assessment District bonds are being paid or offset and whether the "tender" value is controlling or some other value.
Chronology of Parcel 375-072-20 ("Subject Property")
Reviewing the jumbled stack of documents the parties have submitted, the following chronology and questions emerge:
5/26/04: Khatibi buys $150,000 of Rosamond Community Services District 91-3 8% bonds, due 9/2/08 from David Wheeler. DEC OF KOSLA, EXHIBIT 1, P. 24.
5/26/04: Payoff Quote for 91-3 bond from NBS Government Finance Group (Rosamond) for $178,776.66 for the Property. This document is almost illegible—in particular, the dates. It’s unclear what this payoff quote represents, because Khatibi acknowledges the payoff quote of $178,776.66 in the Notice of Intention, below, but then paid $212,834 toward the "total" of $630,228. DEC OF KOSLA, EXHIBIT 1, P.
29. This must be explained further.
5/28/04: Notice of intention from Khatibi to tender 91-3 bonds with face value of
$245,000, tender value of $350,667.29. Large amount of that went to other parcels.
$212,834, per Khatibi’s math, went toward the total $630,228.11 owed on the Subject Property. Check for $6,136 also paid for administrative fees. DEC OF KOSLA, EXHIBIT 1, P. 20
5/28/04: Receipt for $245,000 "face value bonds" from Khatibi, and $6,136 from Khatibi for "bond tender fee." No indication of whose receipts these are without authentication. DEC OF KOSLA, EXHIBIT 1, P. 25. Khatibi argues that the "redemption amount was actually approximately $350,000." DEC OF KHATIBI IN
11:00 AM
SUPPORT OF OBJECTION TO CLAIM, P. 6. What does that mean?
12/14/04: Notice of Intention from Khatibi, indicating he will tender 90-2 bonds for the Property with tender value $91,640.21. He indicates his belief that the payoff quote for the 90-2 lien was $95,979.55, leaving $4,339.34 "to be paid in cash." There is also an indication that he was tendering 91-3 bonds toward the property with face value of $10,000 and a [blank] tender value. DEC OF KOSLA, EXHIBIT 1-4, P. 88.
This is totally confusing.
1/25/05: Receipts for $20,000 90-2 bond received from Richard Khatibi. DEC OF KOSLA, EXHIBIT 1-5, P. 90.
2/7/05: "Paid in full" letter, stating "the above mentioned parcel is now paid in full." This letter also indicates that Khatibi tendered a $25,000 bond, but there is no other record of that bond tender that I can find. OBJ. TO CLAIM EX. 6
7-13-05: Contract assigning Rosamond bonds, but no indication as to the parties to this contract. DEC OF KOSLA, EXHIBIT 1, P. 34.
9/6/05: Khatibi buys $70,000 of Rosamond Community Services District 91-3 bonds from David Wheeler. DEC OF KOSLA, EXHIBIT 1, P. 35.
1/19/06: Khatibi buys $105,000 of Rosamond Community Services District 91-3 8% bonds, due 9/2/08 from David Wheeler. DEC OF KOSLA, EXHIBIT 1, P. 26-28.
1/23/06: Email, checks and other documents indicating that Derek Tabone and Patrick Mcwhorter sold 91-3 bonds to Khatibi. DEC OF KOSLA, EXHIBIT 1, P. 37-40.
3/28/08: Notice of intent to remove delinquent assessment installments from tax roll. REQ. FOR JUDICIAL NOTICE EXHIBIT A, P. 6.
6/20/12: Notice of intent to remove delinquent assessment installments from tax roll. REQ. FOR JUDICIAL NOTICE EXHIBIT B, P. 14.
4/23/13: Complaint in Judicial Foreclosure, Rosamond v. Khatibi. REQ. FOR JUDICIAL NOTICE EXHIBIT D, P. 38.
11:00 AM
10/29/13: Letter from Kwasigroch to Rosemond’s foreclosure counsel re: accounting
2/24/14: Settlement agreement prepared by Ms. Fogelman (for Rosamond), indicating that Khatibi acknowledges delinquent assessments on the Property amounting to $283,031.90, not including penalties, interest, and costs. Khatibi agrees to pay $298402.93 through 60 monthly payents ending February 15, 2019. Khatibi’s signature block is unsigned. DEC OF KOSLA, EXHIBIT 2, P. 92-98.
Rosamond allegedly waives $514,872 in interest and $28,293.20 in penalties for this agreement, which would be a total of $836,197.10 due absent this agreement. DEC OF KOSLA, P. 4. Unless Khatibi signed this document, it will not be admitted as it appears to be a settlement offer. All other items objected to appear to be admissible if properly authenticated.
1/6/17: Notice of intent to remove delinquent assessment installments from tax roll. REQ. FOR JUDICIAL NOTICE EXHIBIT C, P. 34.
2/1/18: Rosamond files proof of claim for $1,455,491.60. Proof of Claim No. 10-1.
3/19/18: Rosamond attorney "discovered some of the 2004 bond tender documents that Mr. Kwasigroch had emailed in 2013 to Ms. Fogelman.
Issues:
What amount was due as of 5/28/04?
The payoff quote from 5/26/04 indicates that $178,776.66 was due. However, there seems to be a distinction between the "NBS payoff quote" and the other amounts due. In Khatibi’s May 28, 2004 Notice of Intention calculations, the NBS Payoff quote is added to the delinquency, penalties, and interest for a total of
$630,228.11. In his calculation, the NBS payoff quote looks like a debt collection fee or something similar.
The evidence from Rosamond regarding the amount owed on May 28, 2004, is unclear. Attached to the first proof of claim is an accounting from Rosamond without any of the credits applied for what Khatibi paid or the bonds he tendered.
The amount provided is $1,455,491.60. The principal amounts of these assessments seem to be assessed until Tax Year 2011-2012. How long did the yearly assessments on this 1991 bond last? These numbers seem to indicate 20 years, but that seems like a long time.
11:00 AM
Attached to Rosamond’s amended proof of claim is a similar accounting in
support of the amended claim of $749,752. This amended spreadsheet omits all deficiencies from 1996-2004, which were included on the previous accounting. Notably, what is missing from BOTH accountings is a history of the credits from payments made by Khatibi and the bonds he tendered. Rosamond seems to be starting with the assumption that Khatibi paid nothing, then amending their proof of claim as Khatibi provides proof that he made certain payments. This is backwards, as Rosamond has the burden of establishing its claim.
What were the yearly amounts due, the interest rates, and penalties?
Khatibi contests Rosamond’s accounting, which states that the yearly principal due is around $34,000-$36,000—not including penalties and interest. Khatibi says that the yearly taxes for this property were under $200. This argument is murky, and ignores other taxes being due on the property in addition to the assessments. There clearly seems to be a disagreement about the principal amount of the taxes that were due, even if Khatibi had paid them timely. I need to know this amount before I can begin to calculate the interest rate. What specifically were the allowed penalties?
What was the tender amount of the 5/28/04 bonds?
By Khatibi’s math, the 5/28 bonds had a tender value of $350,667.29. The receipt from Rosamond says that bonds with $245,000 face value were received. How did Rosamond apply those funds, or what it believed was owed on 5/28/04? The only indication we have is the NBS payoff quote, which is potentially inadequate as discussed above.
No information about Bond Tenders between 5/28/04 and the 2/7/05 Paid in full Letter
The 2/7/05 paid in full letter indicates that Khatibi had tendered a $25,000 bond. I don’t see any other record of that bond (no receipt, for example), which makes me question whether there were any other bonds tendered in that period which are not accounted for. The record is further obscured by Khatibi’s continued payments after the Paid in Full Letter.
Bring your calendars so a date for an evidentiary hearing can be set. The parties should identify what witnesses will be presented, file an exhibit list beforehand and be prepared to explain these issues and any others at the
11:00 AM
evidentiary hearing.
Debtor(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Movant(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 189
Service proper. No objections filed. Having reviewed the Motion for Final Decree & Order Closing Case, the Court finds that all requirements for entry of final decree have been met, and the case may be closed.
Motion GRANTED. MOVANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 10/24/18.
Debtor(s):
Ireland Needlecraft, Inc. Represented By Steven R Fox
Movant(s):
Ireland Needlecraft, Inc. Represented By Steven R Fox Steven R Fox
11:00 AM
Special Counsel, Period: 7/12/2018 to 9/28/2018, Fee: $6237, Expenses: $1045.
Docket 61
Service proper. No opposition filed. Having reviewed the First Interim Application, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON 10/24/18.
Debtor(s):
Schaffel Development Company, Represented By
Lewis R Landau
11:00 AM
Docket 62
Service proper. No opposition filed. Having reviewed the First Interim Application, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON 10/24/18.
Debtor(s):
Schaffel Development Company, Represented By
Lewis R Landau
11:00 AM
Docket 13
Service of this motion was improper under Fed. R. Bankr. P. 7004(h), as the service by Certified U.S. Mail on Bank of America was sent to the address for Capital One.Debtor also did not state the amount of the exemption he is claiming, making it impossible to calculate the amount of the lien that may be unsecured under section 522. There have been numerous countinuances and attempts to do this properly, but it is still not proper. Debtor has the burden of proof and has not met it. Motion is DENIED.
Debtor(s):
Kourosh Izadpanahi Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 16
Service of this motion was improper under Fed. R. Bankr. P. 7004(h), as the service by Certified U.S. Mail on Capital One was sent to the address for Bank of America.Debtor also did not state the amount of the exemption he is claiming, making it impossible to calculate the amount of the lien that may be unsecured under section 522. There have been numerous countinuances and attempts to do this properly, but it is still not proper. Debtor has the burden of proof and has not met it. Motion is DENIED.
Debtor(s):
Kourosh Izadpanahi Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 56
The payment of prepetition wages and professional fees without court authority is quite disturbing. Debtor needs to clarify and file appropriate motions ASAP.
Debtor(s):
Happy Jump, Inc. Represented By Mark T Young
11:00 AM
Docket 19
- NONE LISTED -
Debtor(s):
Smart Solar Energy Sales, Inc Represented By Stephen L Burton
11:00 AM
Docket 130
This motion does not make clear - has creditor filed a judgment lien on this property? Debtor should pay creditors out of proceeds, but the creditor also should have followed up any judgment with a lien, or he cannot stop the sale he complains of.
APPEARANCE REQUIRED
Debtor(s):
Andrew Reder Represented By
Anthony Obehi Egbase
A.O.E. Law & Associates
11:00 AM
Docket 0
Motion to be GRANTED.
APPEARANCE REQUIRED due to shortened time
Debtor(s):
Andrew Reder Represented By
Anthony Obehi Egbase
A.O.E. Law & Associates
11:00 AM
Docket 21
APPEARANCE REQUIRED
Debtor(s):
Shelia Deloris Graham Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
1:00 PM
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
Docket 146
To be withdrawn based on amended counterclaim being filed
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
State Street Bank and Trust Co. Pro Se
Citivest financial Services, Inc. Pro Se
Israel Abselet Represented By Henry S David
Howard Abselet Represented By Henry S David
QUALITY LOAN SERVICE Pro Se
Quality Loan Service Pro Se
Soda Partners, LLC Represented By Ronald N Richards
Fieldbrook, Inc. Represented By Daniel J McCarthy
Elkwood Associates, LLC Represented By
1:00 PM
Daniel J McCarthy
Chase Manhattan Mortgage Co. Pro Se
Movant(s):
Jack NOURAFSHAN Represented By Daniel J McCarthy
Reliable Properties Represented By Daniel J McCarthy
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Elkwood Associates, LLC Represented By Daniel J McCarthy
Elkwood Associates, LLC Represented By Daniel J McCarthy
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
1:00 PM
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
1:00 PM
Adv#: 1:17-01066 American Contractors Indemnity Company v. Ragsdale
Determine Dischargeability of debt
fr. 9/27/17, 12/13/17; 2/14/18, 8/15/18
Docket 1
- NONE LISTED -
Debtor(s):
Claudia Maria Ragsdale Pro Se
Defendant(s):
Claudia Maria Ragsdale Pro Se
Plaintiff(s):
American Contractors Indemnity Represented By
R Gibson Pagter Jr.
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
Re Motion RE: Objection to Claim Number 1 by Claimant Deutsche Bank Trust Company Americas As Trustee For Residential Accredit Loans Inc. Pass Through Certificates 2006-QO10
fr. 9/11/18
Docket 49
Patricia Blume ("Debtor") filed this objection to claim (the "Objection") of her mortgage lender Deutsche Bank Trust Company Americas ("Deutsche"), serviced by Nationstar Mortgage, LLC, which is now known as Mr. Cooper ("Nationstar"). Proof of claim 1-1 was filed by Nationstar in the amount of $716,065.20 on August 23, 2013 (before the claims bar date). The claim was amended on July 11, 2018 to claim
$981,863. This mortgage has a somewhat complicated history, as described in the Objection. Debtor alleges that Nationstar is attempting to include a $265,589.73 ballon payment amount in its accounting that was "written off" in a loan modification agreement before this case was filed. A loan modification agreement with the interlineations by Debtor and her husband striking out the portions referring to the
$265,798.73 non-interest-bearing balloon payment, and initials of a bank officer, is attached to the Objection as Exhibit 2; however, a separate copy of the loan modification agreement, without the relevant interlineations and with seemingly different signatures is attached to Nationstar’s opposition.
In its opposition to the Objection, Nationstar states that it amended its claim because it inadvertently failed to include in its initial proof of claim the non-interest bearing deferred/balloon payment amount of $265,798.73. Nationstar also invokes the anti- modification clause of § 1322(b)(2) to argue that Debtor may not modify its claim, or otherwise "should be apprised of its right to litigate this this issue in state court or through an adversary proceeding." The Court finds § 1322(b)(2) to be completely irrelevant to this inherently contractual issue. The Court declines Nationstar’s invitation to leave this matter for a state court, as this is simply an issue of whether
10:00 AM
the proof of claim was properly amended. This matter will require an evidentiary hearing.
As Debtor has rebutted the presumption of validity of the claim, and raised potential estoppel concerns, the burden of proof is on Nationstar to prove its amended claim.
APPEARANCE REQUIRED
Debtor(s):
Patricia Maria Blume Represented By Jeffrey J Hagen
Movant(s):
Patricia Maria Blume Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 4/24/14, 6/5/14, 11/6/14, 3/19/15,
6/4/15, 7/22/15, 8/12/15, 9/9/15, 2/24/16,
5/25/16, 7/27/16, 9/28/16, 12/14/16; 2/8/17,
4/26/17,7/11/17; 9/6/17, 11/1/17, 11/30/17,
1/9/18; 5/1/18, 6/21/18, 8/30/18; 9/20/18, 9/21/18
Docket 1
This will be continued as a holding date to the next Ch 11 s/c so that the parties can execute required documents pursuant to the settlement agreement
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz
Defendant(s):
Process America, Inc. Pro Se
Kimberly S Ricketts Pro Se
Craig Rickard Pro Se
KEITH PHILLIPS Pro Se
Gwendolyn Phillips Pro Se
C2K Group, LLC Pro Se
10:00 AM
Applied Funding, Inc. Pro Se
KBS Dreams, Inc. Pro Se
Like Zebra, LLC Pro Se
Stripe Entertainment Group, Inc. Pro Se
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
US Trustee(s):
United States Trustee (SV) Pro Se
10:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Disallowance of Claim [ 11 U.S.C. section 502}
Offset and Recoupment [11 U.S.C. section 553]
Accounting
Disallowance of Intrest of Claim [11U.S.C.502]
Voiding validity and extent of lien [11U.S.C. section503,F.R.B.P.7002(2)] 6)Turnover of property of the estate (Reserve Account)[11U.S.C. section 542]
Turnover of property of the estate (Residuals) [11 U.S.C. section 542]
Subordination of claim and lien [11 U.S.C. section 510]; and
Declaratory relief
fr. 11/5/14, 12/10/14; 12/18/14; 3/18/15, 5/27/15, 5/1/18 722/15, 9/9/15; 2/24/16, 5/25/16, 7/27/16, 9/28/16;
12/14/16, 2/8/17, 4/26/17, 7/11/17, 9/6/17, 11/1/17; 11/30/17,
1/9/18, 6/21/18, 8/30/18; 9/20/18, 9/21/18
Docket 76
This will be continued as a holding date to the next Ch 11 s/c so that the parties can execute required documents pursuant to the settlement agreement
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By
10:00 AM
Robert S Marticello
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
10:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Docket 157
This will be continued as a holding date to the next Ch 11 s/c so that the parties can execute required documents pursuant to the settlement agreement
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Lei Lei Wang Ekvall Kyra E Andrassy
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
10:00 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
fr. 10/11/18
Docket 171
To be withdrawn once settlement approved
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Lei Lei Wang Ekvall Kyra E Andrassy
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
10:00 AM
Docket 553
The settlement was negotiated in good faith, is in the best interest of the estate, and is reasonable, fair and equitable. Given the uncertainties and costs of continued litigation, the complexities of these matters and the deference required to the reasonable views of the parties, the court approves the settlement. The motion is GRANTED in full.
As there was no opposition filed, appearances are not required, but debtor's counsel will be present for the Chapter 11 status conference to advise as to future actions to wrap up the case.
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
10:00 AM
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 3/13/14, 4/24/14, 6/5/14, 11/6/14, 3/19/15;
6/4/15, 7/22/15, 9/9/15, 2/24/16, 5/25/16, 7/27/16
9/28/16, 12/14/16, 6/21/18, 8/30/18; 9/20/18, 9/21/18
Docket 1
The following dates are available for a diclosure hearing; January 9, 16 or 23 at 10:00 am.
As the issues have been fairly thoroughly vetted through previous litigation and the parties interested in this matter have had extensive discovery, does the debtor wish to pursue a joint disclosure and plan confirmation hearing? In order to save costs, the debtor could solict votes with a joint disclosure statement and plan, and the court will hear objections to both at the same time.
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz Beth Ann R Young
Movant(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz Beth Ann R Young
10:00 AM
Motion to Dismiss Chapter 13 Bankruptcy Petition for Bad Faith
fr. 10/23/18
Docket 49
APPEARANCE REQUIRED
Debtor(s):
Hamid Farkhondeh Represented By Stella A Havkin
Joint Debtor(s):
Mary Dadyan Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Adv#: 1:17-01085 Lui v. NAVIENT SOLUTIONS,INC
Re: Amended Complaint for Determination that Student Loan Debt is Dischargeable Pursuant to 11 USC Sec.
523(a)(8)(B)
fr. 11/8/17, 6/13/18, 8/15/18
Docket 1
Debtor(s):
Kenneth Paul Lui Represented By Christine A Kingston
Defendant(s):
NAVIENT SOLUTIONS,INC Pro Se
Plaintiff(s):
Kenneth Paul Lui Represented By Christine A Kingston
Trustee(s):
Diane C Weil (TR) Pro Se
9:00 AM
Docket 1
- NONE LISTED -
Debtor(s):
Susana Padre Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 1
- NONE LISTED -
Debtor(s):
Delmy Lucia Orozco Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 1
- NONE LISTED -
Debtor(s):
Taylor Demel Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
fr. 2/4/16; 6/16/16, 7/28/16, 9/29/16, 11/17/16, 1/12/17, 4/26/17, 7/26/17; 10/18/17, 1/24/18,
2/14/18, 5/2/18, 8/1/18
Docket 1
Vacated. case has closed
Debtor(s):
Ignacio Ramirez Represented By
Anthony Obehi Egbase
9:30 AM
fr. 10/25/17, 12/13/17, 3/21/18; 3/28/18, 6/6/18
Docket 0
- NONE LISTED -
Debtor(s):
Menco Pacific, Inc. Represented By Jeffrey S Shinbrot
9:30 AM
Docket 87
As the disclosure and plan were not filed in time, and the debtor seeks dismissal, teh case will be dismissed , with any outstandingf UST fees to be paid. Debtor should submit an order.
NO APPEARANCE REQUIRED
Debtor(s):
Tatonka Acquisitions, Inc. Represented By Dana M Douglas
9:30 AM
Docket 0
At the previous hearing, the Court set a deadline of August 31 for Debtor to file a Disclosure Statement and Plan. No disclosure statement and plan were filed. On October 3, Debtor filed a Motion to Voluntarily Dismiss the case. That hearing is set for November 8, 2018. This appears to potentially be a surplus estate based upon the schedules. Therefore, the Court will need to determine at the November 8 hearing whether conversion or dismissal is more appropriate.
NO APPEARANCE REQUIRED ON OCTOBER 17
Debtor(s):
Tatonka Acquisitions, Inc. Represented By Dana M Douglas
9:30 AM
Docket 65
Appearance required
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 151
- NONE LISTED -
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 1
This matter will be continued to 11/7 to trail the disclosure statement.
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 41
- NONE LISTED -
Debtor(s):
Godwin Osaigbovo Iserhien Represented By Onyinye N Anyama
9:30 AM
Docket 51
- NONE LISTED -
Debtor(s):
Godwin Osaigbovo Iserhien Represented By Onyinye N Anyama
Movant(s):
Wilmington Savings Fund Society, Represented By
Erin M McCartney
9:30 AM
Docket 1
Unless there is an objection, debtor should submit a claims bar date order
within a week for a August 3 claims bar date. A disclosure statement and plan should be filed by September 12.
The status conference will be continued to November 7 at 9:30 am when the dosclosure should be noticed.
Debtor(s):
Godwin Osaigbovo Iserhien Represented By Onyinye N Anyama
9:30 AM
13200 MOORPARK HOMEOWNERS ASSO.
Docket 74
No opposition. GRANTED. be sure the RFS order specifies that relief is granted to pursue insurance and third parties, as detailed in the motion, and not to pursue the debtor.
No appearance required
Debtor(s):
Schaffel Development Company, Represented By
Lewis R Landau
Movant(s):
13200 Moorpark Homeowners Represented By Daniel R Ryan
9:30 AM
14242 BURBANK HOMEOWNERS ASSO.
Docket 76
No opposition. GRANTED. be sure the RFS order specifies that relief is granted to pursue insurance and third parties, as detailed in the motion, and not to pursue the debtor.
No appearance required
Debtor(s):
Schaffel Development Company, Represented By
Lewis R Landau
Movant(s):
14242 Burbank Homeowners Represented By Daniel R Ryan
9:30 AM
Docket 58
The debtor, as explained in the motion and reply, has justified the assignment and assumption of the lease. The lease would have expired on its own terms, and the result is revenue neutral to the debtor.
GRANTED
NO APPEARANCE as opposition was late. Although it was considered by the court, it provided no analysis, no evidence and was not persuasive. It is an unnecessary expenditure of all parties' resources to appear on such a motion.
Debtor(s):
Schaffel Development Company, Represented By
Lewis R Landau
9:30 AM
Docket 31
Appearance required
Debtor(s):
Zarui Sarah Adjian Represented By Leo Fasen
Movant(s):
United States Trustee (SV) Represented By Katherine Bunker
9:30 AM
Docket 29
Debtor has brought this motion too late. The stay expired by operation of law 30 days after filing the case. There is no legal basis on which to continue or reimpose the stay.
Even if there were a legal basis, the debtor has failed to rebut the presumption of abuse. There is a history of incomplete bankruptcies, transfers of interests in the property and a failure to reorganize despite plenty of opportunity to do so for many years.
Motion DENIED
Debtor(s):
Bagrat Ogannes Represented By
Crystle Jane Lindsey
Movant(s):
Bagrat Ogannes Represented By
Crystle Jane Lindsey
11:00 AM
Docket 2166
- NONE LISTED -
Debtor(s):
Owner Management Service, LLC Pro Se
Movant(s):
JPMorgan Chase Bank, National Represented By
Gagan G Vaideeswaran Kelsey X Luu
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
TUNC to September 25, 2018
Docket 2168
Service proper. No opposition filed. Having reviewed the Trustee's Motion to Abandon Nunc Pro Tunc to Sept. 25, 2018, the Court finds that the subject property is burdensome and/or of inconsequential value and benefit to the Estate.
Motion GRANTED.
APPEARANCES WAIVED ON 11/7/18.
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Docket 67
Petition Date: 11/30/2012 Chapter: 13
Service: Proper. Co-debtor was served. No opposition filed. Property: 20339 Ingomar Street, Winnetka, CA 91306 Property Value: $ 390,000 (per debtor’s schedules) Amount Owed: $431,045.71 (per RFS motion)
Equity Cushion: 0.0%
The first mortgage holder is Ocwen Loan Servicing, LLC; amount of claim: $413,112 (per amended schedule D)
Post-Petition Delinquency: $73,091.43 (41 payments of $1,794.76; less suspense account or partial paid balance $493.73)
Movant alleges that the last payment tendered was 01/20/2017 Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in
paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Michael Gary Vickery Represented By Scott D Olsen
Joint Debtor(s):
Elise Rose Vickery Represented By Scott D Olsen
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 46
Petition Date: 04/09/2014 Chapter: 13
Service: Proper. Co-debtor was served. No opposition filed.
Property: 7020 Lubao Avenue, Los Angeles (Canoga Park Area), CA 91306 Property Value: $425,000 (per debtor’s schedules)
Amount Owed: $422,855 (per RFS motion) Equity Cushion: 0.0%
The second mortgage holder is City Nat’l Bank/ Ocwen Loan Service; amount of claim: $106,969 (per schedule D)
Post-Petition Delinquency: $13,690.06 (5 payments of $3,026.84; Postpetition advances or other charges due but unpaid $11; less suspense account or partial paid balance $1,455.14)
Last payment was tendered on 09/11/2018
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Claudia C. Trinidad Represented By Kevin T Simon
Movant(s):
Bayview Loan Servicing, LLC, Represented By Edward G Schloss
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 52
Petition Date: 07/09/2015
Chapter 13 plan confirmed: 12/08/2015 Service: Proper. Opposition filed.
Property: 7354 Woodvale Ct, West Hills, CA 91307 Property Value: $630,000 (per debtor’s schedules) Amount Owed: $ 349,186.26 (per RFS motion) Equity Cushion: 0.0%
Brock Homes Springfield #218 c/o Westcom Property Services; $7,740.00; Mory Ejabat; $240,000.00
Post-Confirmation Delinquency: $8,171.84 (4 payments of $2,405.47; less suspense account of partial paid balance: $1,450.04)
Movant alleges the last payment was tendered on 08/13/2018.
Movant alleges case for relief under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion and hopes to be current with all mortgage payments by the hearing date or to work out a stay current Adequate Protection Order with the Creditor.
APPEARANCE REQUIRED.
Debtor(s):
Marjan Bahman Represented By Ali R Nader
11:00 AM
Movant(s):
WELLS FARGO BANK, N.A. Represented By Mark D Estle Shainna Surles Rosemary Allen Dane W Exnowski
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 73
The hearing was continued at the last hearing at the request of the parties What is the status of this Motion?
APPEARANCE REQUIRED
prior tentative:
Petition Date: 3/28/16
Chapter 13 plan confirmed: 3/9/17
Service: Proper; co-debtor served. No opposition filed. Property: 10580 Horse Creek Ave., Shadow Hills, CA 91040
Property Value: $975,000 (per Order Granting Motion to Avoid Lien, doc. 41) Amount Owed: $1,185,447 (1st DoT)
Equity Cushion: 0.0% Equity: $0.00.
Post-confirmation Delinquency: $64,849.66 (approx. 6 payments of $4,034; 10 payments of $4,064)
Movant alleges that the last payment received was on or about May 2017.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Jacqueline Desiree Landaeta Alvarez Represented By
Matthew D Resnik
Movant(s):
Bayview Loan Servicing, LLC as Represented By
Christina J O
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
fr. 9/12/18
Docket 25
The hearing was continued at the last hearing at the request of the parties What is the status of this Motion?
APPEARANCE REQUIRED
Petition Date: 8/28/17
Chapter 13 plan confirmed: 12/18/17 Service: Proper. No opposition filed.
Property: 20850 Martha St., Woodland Hills (Los Angeles), CA 1 Property Value: $690,000 (per debtor’s schedules)
Amount Owed: $657,876 Equity Cushion: 4.7% Equity: $32,124
Post-confirmation Delinquency: $18,610.66 (7 payments of $2,953.57; post- petition advances of $750; less suspense account balance of $2,814.33)
Movant alleges that the last payment received was on or about June 2018.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Seyed A Amid Represented By Devin Sawdayi
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr.10/24/18
Docket 41
APO FILED
Petition Date: 09/28/2017
Chapter 13 plan confirmed: 4/13/18 Service: Proper. Opposition filed.
Property: 4991 Medina Drive, Woodland Hills, CA 91364 Property Value: $1,287,000.00 (per debtor’s schedules) Amount Owed: $ 1,187,285.35 (per RFS motion)
Equity Cushion: 0.0% Equity: $99,714.65
Post-confirmation Delinquency: $7,486.86 (2 payments of $3,743.43)
Movant alleges case for relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay) and 14 (post-petition payment added to the outstanding balance of the subject as non-bankruptcy law). Movant alleges that the last payment tendered was on or about 8/27/18.
Debtors oppose the Motion, arguing that their chapter 13 plan has been confirmed and Debtors propose to enter into an APO with Movant. Debtors stated that they would mail a payment to bring Movant current through Oct. 2018. Lastly, Debtors request a payment history, as none was provided with the Motion.
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Norman Everett Ross Jr. Represented By Barry E Borowitz
Joint Debtor(s):
Edna Henderson Ross Represented By Barry E Borowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/26/18, 10/10/18
Docket 44
This hearing was continued from 9/26/18 so that the parties could discuss
resolving this matter with an APO. On the record, Movant withdrew its request for relief under 362(d)(4). Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED.
9-26-18 TENATIVE BELOW
Petition Date: 2/22/18
Chapter 13 plan confirmed: 8/16/18 Service: Proper. No opposition filed.
Property: 7750 Ben Ave., North Hollywood, CA 91605 Property Value: $540,820 (per debtor’s schedules) Amount Owed: $397,411
Equity Cushion: 26.5% Equity: $143,409
Post-Petition Delinquency: $10,901.70 (6 payments of $1,816.95)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under 362(d)(4)). Movant alleges that post-petition mortgage payments are delinquent, with the last payment having been received on 1/18/18.
Movant has not alleged facts to support an allegation of a scheme to delay, hinder or defraud creditors, and thus any request for relief under 362(d)(4) will
11:00 AM
be denied.
Given that there is sufficient equity to protect Movant's claim and that a chapter 13 plan was just confirmed, have the parties discussed an APO?
APPEARANCE REQUIRED
Debtor(s):
Lavinia Lilian Ortiz Represented By Grace White
Joint Debtor(s):
Jorge Osvaldo Ortiz Represented By Grace White
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
WELLS FARGO BANK NA
Docket 22
Petition Date: 05/21/2018 Chapter: 13
Service: Proper. No opposition filed.
Property: 23244 Bigler St, Woodland Hills, CA 91364-2709 Property Value: $580,000 (per debtor’s schedules) Amount Owed: $920,153.20 (per RFS motion)
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $13,492.11(3 payments of $4,497.37)
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Sandra Blair Represented By
Allan S Williams
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
AMERICAN HONDA FINANCE CORPORATION
Docket 21
- NONE LISTED -
Debtor(s):
Ian Jacoby Represented By
Andrew Goodman
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 22
Petition Date: 08/14/2018 Chapter: 7
Service: Proper. No opposition filed.
Property: All inventory, equipment and supplies described in Sched. B and personal property of Debtor located at its business pursuant to Movant's Judgment Lien on Personal Property and ORAP lien.
Property Value: $451,355 (per motion)
The total value of inventory listed in Schedule B is $442,355.00 Amount Owed: $459,230.02 (per motion)
Equity Cushion: 0.0% Delinquency: N/A
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Alpha-Omega Enterprises, Inc. Represented By Henrik Mosesi
Movant(s):
Pacific Western Bank Represented By Scott H Noskin
11:00 AM
Trustee(s):
Diane C Weil (TR) Represented By Jeffrey S Kwong
11:00 AM
Docket 8
Petition Date: 09/11/2018 Chapter: 7
Service: Proper. No opposition filed. Property: Vehicle (2015 AUDI A8 L)
Property Value: $28,363 (per debtor’s schedules) Amount Owed: $33,015.33 (per motion)
Equity Cushion: 0.0%
Delinquency: 3,083.30 (last payment was received on 4/30/2018)
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Gagik Soghomonyan Represented By Silva Berejian
Movant(s):
NATIONWIDE BANK Represented By Timothy J Silverman
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 11
Petition Date: 09/26/2018 Chapter: 13
Service: Proper. Co-debtor was served. No opposition filed. Property: 340 Alahmar Terrace, San Gabriel, CA 91775 Property Value: N/A
Amount Owed: $601,493.94 (per RFS motion) Equity Cushion: N/A
Post-Petition Delinquency: $3,441.78
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(4). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 6 (co-debtor stay is terminated); 7 (waiver of the 4001(a)(3) stay) and 9 (relief under 362 (d)(4) for bad faith-multiple bankruptcy cases affecting the property).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Pan Lea Kim Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 8
Appearance required
Debtor(s):
Teresa Rivera Ramirez Represented By Sydell B Connor
Movant(s):
Hazeltine & Wyandotte, LP Represented By Joseph Trenk
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:18-01026 Navy Federal Credit Union v. Holowchak
fr. 5/23/18, 6/13/18
Docket 1
Having considered the Notice of Settlement filed in this adversary on October
24, 2018 (doc. 11), the Court finds cause to continue this status conference to January 9, 2019, at 10:00 a.m., to allow the parties time to reduce the settlement to a stipulated judgment.
NO APPEARANCE REQUIRED ON 11/7/18
Debtor(s):
Alycia Anne Holowchak Represented By
James Geoffrey Beirne
Defendant(s):
Alycia Anne Holowchak Pro Se
Plaintiff(s):
Navy Federal Credit Union Represented By Robert S Lampl
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:18-01101 Kechejian v. Mkrchyan et al
Violation of California High Cost Mortgage Law;
Violation of TILA;
Violation of HOEPA;
Violation of California Civil Code Sec. 1632;
Unconscionability (Civil code Sec. 1688 e. seq);
Intentional Misrepresentation;
Fraud;
Unfair Business Practices (BPC Sec. 17200)
Declaratory Relief
Docket 1
Please advise if any objection to following:
Discovery cut off - June 21, 2019
Please advise what plaintiff plans are as to the defendants who have not answered
Pretrial conference - July 31 at 10 am
The trial date will be selected at the pretrial, depending of length needed
The parties should submit a mediation order
Debtor(s):
Nazaret Kechejian Represented By Stella A Havkin
Defendant(s):
Kirill Kizyuk Pro Se
Greg Mkrchyan Pro Se
Prime Capital Group, Inc., a Pro Se
11:00 AM
Mkrtchyan Investments, LP, a Pro Se
Arthur Aristakesyan Pro Se Phantom Properties, LLC, a Nevada Pro Se Dimitri Lioudkovski Pro Se
LDI Ventures, LLC, a California Pro Se
Plaintiff(s):
Nazaret Kechejian Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 185
Sale to be approved, subject to overbids Appearance required
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
11:00 AM
Non-Debtors John and Tamar Akhoian.
Docket 74
No opposition. Settlement is fair and reasonable and in the best interest of creditors and the estate. Motion to approve GRANTED.
No opposition. NO Appearance required on 11/7/18
Debtor(s):
Akhoian Enterprises, Inc. Represented By David S Hagen
Trustee(s):
David Seror (TR) Represented By Steven T Gubner Richard Burstein Talin Keshishian
11:00 AM
Lien and for Extension of Time to Amend Debtor's Schedule F.
Docket 12
Motion to Reopen Case to Avoid Lien is GRANTED. The case shall be reopened for sixty (60) days to allow for Debtor's Motion to Avoid Lien to be filed and resolved. Debtor to lodge order within 7 days.
NO APPEARANCE REQUIRED ON 11/7/18.
Debtor(s):
Ada Ruth Linares Represented By Kenumi T Maatafale
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
fr. 9/26/2018, 10/24/18
Docket 136
It would be more appropriate to resolve this objection to claim in the related adversary action. This claims objection will be continued to December 12, 2018 at 11:00 to trail the status conference in the adversary. Document 149, a notice of lodgment, indicates that an order approving a global settlement was lodged. The Court received no such order, nor is a settlement agreement filed on the docket. The Court will assume this was filed in error, and that no settlement is prepared at this time. If that is not correct, the parties should appear and explain the issue with the settlement agreement. Otherwise, no appearance required on November 7.
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson Howard Camhi
1:00 PM
Docket 104
- NONE LISTED -
Debtor(s):
Neil D Gitnick Represented By James R Selth
Joint Debtor(s):
Anita Marton Represented By
James R Selth
Trustee(s):
Amy L Goldman (TR) Pro Se
9:30 AM
Docket 0
Debtor(s):
Tatonka Acquisitions, Inc. Represented By Dana M Douglas
9:30 AM
fr. 7/3/14, 10/23/14, 1/22/15, 2/12/15, 4/2/15, 5/28/15; 7/30/15; 10/22/15; 3/31/16;
6/16/16, 10/6/16, 7/27/17, 1/24/18, 8/1/18
Docket 1
NONE LISTED -
APPEARANCE REQUIRED
If there are no issues raised at the status conference, the next status conference can be continued to May or June to allow time to wrap things up as proposed in the status report
Debtor(s):
Freedom Films, LLC Represented By
M Jonathan Hayes
Movant(s):
Freedom Films, LLC Represented By
M Jonathan Hayes
9:30 AM
Docket 383
NONE LISTED -
Sara Boodaie ("Ms. Boodaie"), as Trustee for the Yehuda Boodaie Revocable Living Trust Dated July 6, 2007 (the "Trust") brings separate objections to the claims (Doc. 383) and the interests (Doc. 386) of Kourosh Vosoghi and 26 Moorpark, LLC (the "Equity Holders") on the grounds that the ownership of the stock of Osher and Osher, Inc. should be resolved by the probate division of the Los Angeles Superior Court. Ms. Boodaie brings another Motion to Enforce Plan and Confirmation Order (Doc. 389). The action in the probate court is currently underway. These motions are "merely seeking to prevent the automatic allowance of the interests by operation of law pending the outcome of the Probate court proceedings." Ms. Boodaie requests that the hearing on this objection to claim be held as a status conference regarding the state court proceedings.
Ms. Boodaie argues that the Equity Holders’ claims "are based on a lien allegedly created in funds in Joseph Boodaie’s bank account," but that the relevant bank account was located in Israel, outside of the jurisdiction of any ORAP lien created by California law. An attachment to proofs of claim 2-1 and 3-1 indicates that:
Mr. [Joseph] Boodaie was in possession of approximately $1 million in cash in a bank account
9:30 AM
in Israel as of February 22, 2011. Therefore, Creditor’s ORAP Lien extends to such funds. These funds were ultimately transferred to debtor herein, Osher and Osher, Inc. Therefore,
Creditor asserts that it is a secured creditor of OOI, as all of OOI’s assets were Mr. Joseph’s personal assets subject to the ORAP Lien.
Proof of Claim 3-1, P. 4. Additionally, Ms. Boodaie argues that the true owner of the Debtor is the Trust for which she is trustee.
The Equity Holders, in their opposition, point to the language of the Findings and Order of the Los Angeles County Superior Court ("Superior Court") dated March 17, 2016:
THE COURT FINDS, DECREES, AND
ADJUDICATES that Joseph Boodaie, in his personal, individual capacity, is the owner of Osher and Osher. It is further determined that the Judgment Creditors have the legal right to levy upon Osher and Osher, Inc.’s stock certificates as the personal property of Joseph Boodaie, subject to further proceedings in Bankruptcy Court.
Equity Holder’s Opp. To Motion to Disallow Claims, Ex. A. Ms. Boodaie argues that the determination of ownership by the Superior Court is subject to litigation in the probate court. Ms. Boodaie relies on language from the minutes the Superior Court dated March 1, 2016:
Having considered the evidence and testimony presented by both sides, the transactions cited by the judgment creditor do not appear to have been executed on behalf of a trust. The Court is not saying that there is no trust entity involved, but the
9:30 AM
documentary evidence does not bear that out. The Court finds that, as of today, Osher and Osher Inc. is owned by judgment debtor. Joseph Boodaie.
The Court's finding is without prejudice to the Probate Court and any findings or disposition made by that Court.
Request for Judicial Notice ISO Debtor’s Opposition, Ex. H (emphasis added). Ms. Boodaie focuses on the emphasized language above, characterizing the document as a "minute order." No party has briefed the significance of these minute orders, or what should happen if they contradict a separately entered order.
Mr. Shem-Tov, on behalf of the Equity Holders, opposes the motions to disallow on the grounds that the motion is effectively seeking to modify the plan post-confirmation, which may only be done by a plan proponent or the reorganized debtor under § 1127(b). The Equity Holders also argue that Ms. Boodaie’s arguments are untimely, and contradict the Superior Court’s findings, which were sustained on appeal.
Mr. Aver, on behalf of the Debtor, argues that res judicata applies to preclude a party from raising an issue that could have been raised at confirmation. Ms. Boodaie objected to Debtor’s disclosure statement, and that objection was overruled by the Court. Ms. Boodaie filed no objection to the confirmation of the chapter 11 plan in this case. The order confirming the plan states as follows:
5. Binding Effect and Validity. The provisions of the Plan and this Order shall bind OOI, the OOI Continuing Estate and all holders of claims against and interests in OOI, including their successors and assigns, whether or not the claims or interests of the holders are impaired under the Plan, whether or not the holders have voted to accept or
9:30 AM
reject the Plan, and whether or not the holders have filed proofs of claim or proofs of interest. Each Plan term and provision, as it may be interpreted in accordance with the Plan, is valid and enforceable under its terms.
Order Confirming Plan, P. 12. "The provisions of a confirmed plan bind the Debtor. . . any creditor, equity security holder, or general partner in the debtor, whether or not the claim or interest of such [party] is impaired under the plan and whether or not such [party] has accepted the plan." § 1141(a). See also In re Heritage Hotel P'ship I, 160 B.R. 374 (B.A.P. 9th Cir.
1993), aff'd, 59 F.3d 175 (9th Cir. 1995) (Chapter 11 plan confirmation order was res judicata on all lender liability claims that debtor had against creditor that arose out of parties' prepetition acts.).
Ms. Boodaie’s motions appear to be an inappropriate collateral attack on the findings and order entered by the Superior Court on March 17, 2016. The appropriate place to raise any argument about the reach of the ORAP lien, and presumably the validity of the subsequent levy, is not an objection to interest filed after a chapter 11 plan has been confirmed. This argument should have been made in the Superior Court years ago. This Court must give full faith and credit to the Superior Court’s decision. Furthermore, the Court already disallowed Ms. Boodaie’s claim based upon largely the same grounds presented here.
With respect to Ms. Boodaie’s Motion to Disallow Claims (Doc. No.
383), the motion is DENIED. The plan does not seek to pay the Equity Holders as creditors; those proofs of claim were filed before Equity Holders levied on Debtor’s stock.
With respect to Ms. Boodaie’s Motion to Disallow Interests (Doc. No. 386), the Motion is DENIED. Ms. Boodaie is bound by the confirmation of the plan under § 1141(a) and is barred by res judicata from raising issues that could have been raised pertaining to the plan. In re Heritage Hotel P'ship I,
9:30 AM
160 B.R. at 377. The plan states that there will be no change in management of the Debtor. The order confirming the plan binds all holders of claims and interests in the Debtor.
Ms. Boodaie’s Motion to Enforce Plan and Confirmation Order was brought on the theory that the Plan and Confirmation Order do not authorize a distribution to creditors or interest holders whose claims or interests are disputed. Because the Court denies both of Ms. Boodaie’s motions to disallow the claims and interests of the Equity Holders, there are no grounds on which to grant the motion to enforce plan and confirmation order. The Motion to Enforce Plan and Confirmation Order is therefore DENIED.
APPEARANCE REQUIRED
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
Movant(s):
Sara Boodaie, as Trustee of the Represented By Dana M Douglas
Christopher E Prince
9:30 AM
Docket 386
NONE LISTED -
See calendar #2 above.
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
Movant(s):
Sara Boodaie, as Trustee of the Represented By Dana M Douglas
Christopher E Prince
9:30 AM
Docket 389
NONE LISTED -
See calendar #2 above.
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
9:30 AM
fr. 11/3/16, 11/10/16; 1/26/17; 2/1/17; 3/29/17, 5/24/17, 6/14/17, 7/12/17, 10/18/17; 11/29/17, 2/7/18, 5/2/18,
6/6/18, 8/15/18
Docket 1
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Osher And Osher, Inc. Represented By Raymond H. Aver
9:30 AM
Docket 1
NONE LISTED -
case has been closed
Debtor(s):
Emeterio Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
Joint Debtor(s):
Leticia Rodriguez Represented By
Anthony Obehi Egbase Edith Walters
9:30 AM
Docket 34
NONE LISTED -
There has been no motion to employ an appraiser filed, as indicated by the October 31 status report, nor a stipulation regarding the treatment of U.S. Bank. What is the status of the discussions with the lender?
APPEARANCE REQUIRED
APPEARANCE REQUIRED
Debtor(s):
MEJD PARTNERSHIP Represented By
Mark E Goodfriend Mark E Goodfriend
9:30 AM
Docket 1
NONE LISTED -
5/23/18 Tentative
As this is a SAR, debtor should file a disclosure statement and plan by July
18. A notice and order of claims bar date should be submitted within a week for a July 13 bar date.
Unless other issues are raised at the hearing, the status conference will be continued to September 12 at 9:30 to be heard with the deisclosure statement. any motion to value should be self calendared before that date.
Debtor(s):
MEJD PARTNERSHIP Represented By
Mark E Goodfriend
9:30 AM
Docket 1
NONE LISTED -
Case has been converted to Chapter 7
Debtor(s):
Fatemah Dowlatinow Represented By Dana M Douglas
9:30 AM
SCHAFFEL DEVELPMENT COMPANY INC.
Docket 78
NONE LISTED -
Petition Date: 6/1/18 Chapter: 11
Service: Proper.
Opposition filed by State Court plaintiff/ creditor Element436, LLC .
Movant:
Relief Sought to: Pursue Pending Litigation (appeal) XX
Commence Litigation
Other Litigation Information
Pursue Insurance
Case Name: Element436, LLC v. Schaffel Develop. Co., Inc. (Debtor) Court/Agency: Los Angeles Superior Court
Date Filed: 12/7/16 Judgment Entered: 4/17/18 Trial Start Date: n/a
Action Description: this is a post-judgment case in which Debtor requires relief from stay to appeal under Ingersoll Rand Fin. Corp. v. Miller Mining, Co., 817 F.2d 1424, 1426 (9th Cir.1987).
Grounds
Bad Faith Claim is Insured Claim Against 3rd Parties
Nondischargeable
Mandatory Abstention Non-BK Claims Best Resolved in Non-BK Forum XX
9:30 AM
Other:
State court plaintiff/ judgment creditor Element436, LLC filed an opposition, complaining that Debtor is "delaying implementation of the judgment unnecesarily" by first having filed this chapter 11 case, filing and then defaulting on the appeal.
Creditor's opposition does not speak to the relief requested in the motion. While Creditor concedes that a debtor "is entitled to relief from stay to appeal awards," it argues that the procedural history of the litigation should preclude such relief . The issues with Creditor raises as to Debtor's actions (or lack thereof) in the state court and whether Debtor's attempt to "reinstate the appeal" is in good faith are best argued before the appropriate forum.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate); and 5 (waiver of the 4001(a)(3) stay).
DENY relief requested in paragraph 7 (relief binding & effective in any future bankruptcy case, no matter who the debtor may be, without further notice), as such relief requires the filing of an adversary proceeding under FRBP 7001.
APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
Schaffel Development Company, Represented By
Lewis R Landau
9:30 AM
U.S.C. § 1112(b)
fr. 10/3/18; 10/10/18
Docket 12
NONE LISTED -
The United States Trustee ("Trustee") filed this motion to dismiss or convert case for failure to comply with Trustee’s requirements, including providing information relating to pre-petition bank accounts, a debtor-in-possession account, monthly operating reports for August, among other things.
Debtor has not filed any opposition to this motion. What is the status of Debtor’s compliance efforts?
APPEARANCE REQUIRED
Debtor(s):
Bagrat Ogannes Represented By
Crystle Jane Lindsey
11:00 AM
fr. 3/21/18, 5/16/18, 6/13/18, 8/8/818, 9/12/18
Docket 78
NONE LISTED -
The Court has received a voicemail from the parties regarding a continuance. The order continuing will be entered shortly.
NO APPEARANCE REQUIRED
9-12-18 TENTATIVE BELOW
This matter has been continued several times since the first hearing on March 21, 2018. At the hearing on June 13, 2018, the parties represented that Debtor has secured refinancing. On July 23, 2018, Debtor filed a Motion for Authority to Refinance Real Property (ECF doc. 95). On August 1, 2018, chapter 13 trustee Rojas filed a response to the Refinance Motion, recommending the Court deny the Refinance Motion (ECF doc. 97). What is the status of this Motion?
APPEARANCE REQUIRED.
3/21/18 Tentative Petition Date: 08/13/2012 Chapter: 13
Service: Proper. Opposition filed.
Property: 20637 Wells Drive, Woodland Hills, CA 91364 Property Value: $714,000 (per debtor’s schedules) Amount Owed: $772,540.69 (per RFS motion)
Equity Cushion: N/A Equity: $0.00.
Post-Petition Delinquency: $308,087.21 (10 payments of $4,410.38; 5 payments of
11:00 AM
$8,350.33; 16 payments of $8,483.22; 8 payments of $8,644.15; $17,761.90 in post- petition advances; $1,031 in attorneys’ fees; less $1,445.86 in suspense account or partial paid balance)
Movant requests relief under 11 U.S.C. 362(d)(1). Specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is a borrower for purposes of Cal. Civ. Code 2923.5).
Debtor filed a late opposition.
APPEARANCE REQUIRED
Debtor(s):
Elizabeth Maybalian Represented By Raymond H. Aver
Movant(s):
COMPASS BANK, its successors Represented By
Nichole Glowin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
US BANK NATIONAL ASSOCIATION fr. 7/18/18; 9/26/18; 10/24/18
Docket 35
NONE LISTED -
NONE LISTED -
Debtor(s):
Romeo J Pettinelli Represented By Eliza Ghanooni
Joint Debtor(s):
Gloria J Pettinelli Represented By Eliza Ghanooni
Movant(s):
U.S. BANK NATIONAL Represented By Kelsey X Luu
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/26/18; 10/24/18
Docket 68
NONE LISTED -
This hearing was continued from 10-24-18 because the parties stated that escrow was about to close. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
10-24-18 TENTATIVE BELOW
This hearing was continued from 9-26-18 so that Debtors had an opportunity to have motions related to modifying their plan and refinancing real property resolved. The Court also continued the hearing so that Movant could properly serve other creditors with a secured interest in the subject property.
The Court has granted the Motion to Refinance Real Property (ECF doc. 89) and the Motion to Modify Plan (ECF doc. 87). On 9-26-18, Movant filed a Proof of Service of the Motion, showing proper service on Unifund CCR, LLC. Service on Los Angeles County Treasurer & Tax Collector was not proper, however, per the address listed for the creditor in Appendix D of the Court Manual and the address listed by the creditor on the Proof of Claim no. 6.
APPEARANCE REQUIRED. 9-26-18 TENTATIVE BELOW
Petition Date: 12/21/16
11:00 AM
Chapter 13 plan confirmed: 5/9/17
Service: NOT proper - secured judgment lien creditors not served.
Opposition filed.
Property: 12001 Martha St., North Hollywood, CA 91607
Property Value: $740,000 (per Appraisal ISO Debtor's Opposition) Amount Owed: $137,602
Equity Cushion: 81.4% Equity: $602,398
Post-confirmation Delinquency: $8,172.90 (10 payments of $817.29)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
(3) stay). Movant alleges that the last payment received on this debt was on or about 11/6/17.
Debtors oppose the Motion, arguing that there is considerable equity in the property and that they have been conditionally approved for a reverse mortgage in the amount of $280,015.80. Once approved by the Court, the reverse mortgage will enable them to pay off all of the encumbrances against the Property, including Movant's claim, with $28,000 left over to pay off most of the unsecured creditors in class 5.
Given that Movant's claim is protected by sufficient equity, the Court finds grounds to continue this hearing to October 24, 2018, at 11:00 a.m., to allow time for (1) Movant to serve other creditors with a secured interest in the Property; and (2) Debtors to have all of the Motions related to approving the refinance and the motion to modify plan resolved.
APPEARANCES WAIVED ON 9/26/18
Debtor(s):
Bruce Jeffrey Starin Represented By John D Monte
11:00 AM
Joint Debtor(s):
Geraldine Papel Starin Represented By John D Monte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/24/18
Docket 63
NONE LISTED -
This hearing was continued from 10-24-18 at the request of the parties because they were discussing an APO.
What is the status of this Motion? APPEARANCE REQUIRED
10-24-18 TENTATIVE BELOW
Petition Date: 03/13/2017
Chapter 13 plan confirmed: 8/31/17 Service: Proper. No opposition filed.
Property: 18319 Collins St, # 8, Tarzana, CA 91356 Property Value: $398,000.00 (per debtor’s schedules) Amount Owed: $208,364.16 (per RFS motion)
Equity Cushion: 40.0%. Equity: $189,635.84.
Post-confirmation Delinquency: $4,564.45 (4 payments of $1,258.74; less suspense account or partial paid balance of $470.51)
Movant alleges cause for relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor's plan has only recently been confirmed and there is a sizeable equity
11:00 AM
cushion to protect Movant's claim. Have the parties discussed whether an APO is a feasible solution?
APPEARANCE REQUIRED
Debtor(s):
Liliya F Kargina Represented By Alla Tenina
Movant(s):
SETERUS, INC., AS THE Represented By James F Lewin Renee M Parker
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/26/18
Docket 46
NONE LISTED -
Petition Date: 9/3/17
Chapter 13 plan confirmed: 4/13/18 Service: Proper. Opposition filed.
Property: 5107 Coldwater Canyon Ave. #10, Sherman Oaks, CA 91423 Property Value: $450,000 (per debtor’s schedules)
Amount Owed: $423,176 Equity Cushion: 6.0% Equity: $26,824
Post-Petition Delinquency: $10,023.58 (4 payments of $2,413.29; post- petition advances of $1,565; attorney's fees of $1,031; less suspense account balance of $2,225.58)
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that she has made more payments than have been accounted for in the Motion and requests time to retrieve her online payment records to determine which payments have been credited and which were noted as late.
Is Movant amenable to continuing this hearing to give Debtor time to check
11:00 AM
her records? APPEARANCE REQUIRED
Debtor(s):
Janice Marie Semien Represented By Vernon R Yancy
Movant(s):
Statebridge Company, LLC Represented By Alexander G Meissner S Renee Sawyer Blume
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 28
NONE LISTED -
Petition Date:10/27/2017 Chapter: 7
Service: Proper. Conditional opposition filed.
Movant: Sigrid Daoudi Relief Sought to:
Pursue Pending Litigation Commence Litigation Pursue Insurance _x
Other
Litigation Information
Case Name: CLAUDIA GRACE WELLS AN INDIVIDUAL DBA ARMANI WELLS
Court/Agency: Worker's Compensation Appeals Board - Van Nuys Division Date Filed: 11/18/16
Judgment Entered: N/A Trial Start Date: N/A
Action Description: Worker’s Compensation Claim Grounds:
Bad Faith Claim is Insured Non-dischargeable Mandatory Abstention
Claim Against 3rd Parties _X
Non-BK Claims Best Resolved in Non-BK Forum
Other:
11:00 AM
Debtor filed a conditional opposition, stating that she will not oppose the motion if movant seeks judgment solely from insurance.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate); and 5 (waiver of the 4001(a)(3) stay).
APPEARANCE REQUIRED
Debtor(s):
Claudia Grace Wells Represented By Anthony A Friedman Martin J Brill
Movant(s):
Sigrid Daoudi Represented By
Edmond Richard McGuire
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
Docket 29
NONE LISTED -
Petition Date:10/27/2017 Chapter: 7
Service: Proper. Conditional opposition filed.
Movant: Sigrid Daoudi Relief Sought to:
Pursue Pending Litigation Commence Litigation Pursue Insurance _x
Other
Litigation Information
Case Name: CLAUDIA GRACE WELLS AN INDIVIDUAL DBA ARMANI WELLS
Court/Agency: Worker's Compensation Appeals Board - Van Nuys Division Date Filed: 11/18/16
Judgment Entered: N/A Trial Start Date: N/A
Action Description: Worker’s Compensation Claim Grounds:
Bad Faith Claim is Insured Non-dischargeable Mandatory Abstention
Claim Against 3rd Parties _X
Non-BK Claims Best Resolved in Non-BK Forum
Other:
11:00 AM
Debtor filed a conditional opposition, stating that she will not oppose the motion if movant seeks judgment solely from insurance.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law to judgment, with stay against enforcement against property of the estate); and 5 (waiver of the 4001(a)(3) stay).
APPEARANCE REQUIRED
Debtor(s):
Claudia Grace Wells Represented By Anthony A Friedman Martin J Brill
Movant(s):
Sigrid Daoudi Represented By
Edmond Richard McGuire
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
fr. 9/12/18
Docket 42
NONE LISTED -
NONE LISTED -
Debtor(s):
Gloria Rodriguez Represented By Stella A Havkin
Movant(s):
Lakeview Loan Servicing, LLC Represented By
S Renee Sawyer Blume Bonni S Mantovani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
U.S. BANK NATIONAL ASSOCIATION
Docket 32
NONE LISTED -
Petition Date: 05/10/18
Chapter 13 plan confirmed: 08/14/18
Service: Proper. Co-debtor served. No opposition filed. Property: 7711 Calle Maria, Winnetka, CA 91306 Property Value: $750,000 (per debtor’s schedules) Amount Owed: $537,818.45 (per RFS motion)
Equity Cushion: 20.0% Equity: $212,181.55.
Post-Petition Delinquency: $9,090.34 (2 pre-confirmation payments of $6,043.56; 1 posy-confirmation payment of $3,021.78; post-petition advances or other charge due but unpaid: $25)
Movant alleges cause for relief under 11 U.S.C. 362(d)(1). Relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (co-debtor stay is terminated) and 7 (waiver of the 4001(a)(3) stay).
Given the size of the equity cushion here, have the parties discussed whether this can be resolved by an APO?
APPEARANCE REQUIRED
Debtor(s):
Thomas Vy Nguyen Represented By Joshua L Sternberg
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
AMERICAN HONDA FINANCIAL CORPORATION
Docket 11
NONE LISTED -
Petition Date: 08/02/18 Chapter: 7
Service: Proper. No opposition filed. Property: 2016 Honda Accord
Property Value: $ 17,019 (per debtor’s schedules) Amount Owed: $ 14,761.46 (per RFS motion) Equity Cushion: 5%
Equity: $ 2,257.54. Delinquency: $992.54
Last payment was received on 08/28/18
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
Debtor(s):
Jose Luis Hernandez Represented By Luis G Torres
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
FINANCIAL SERVICES VEHICLE TRUST
Docket 23
NONE LISTED -
Petition Date: 08/18/18 Chapter: 7
Service: Proper. No opposition filed.
Property: Vehicle (2016 BMW 5 Series Sedan 4D 528I) Property Value: $26,000 (per debtor’s schedules) Amount Owed: $ 47,034.63 (per RFS motion)
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $ 7,507.83
Last payment was received on 04/26/2018
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Parviz Paul Mehdizadeh Represented By
Glenn Ward Calsada
Movant(s):
Financial Services Vehicle Trust Represented By
Cheryl A Skigin
11:00 AM
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 9
NONE LISTED -
Petition Date: 08/31/2018 Chapter: 7
Service: Proper. No opposition filed. Movant: MY MANAGEMENT CO
Property Address: 5325 Cartwright Ave. #203, North Hollywood, CA 91601 Type of Property: Residential
Occupancy: Expired tenancy
Foreclosure Sale: N/A
UD case filed: 08/31/2018 UD Judgment: N/A
Movant argues that the case was filed in bad faith, as Movant was one of the few creditors listed in case commencement documents.
Disposition: GRANT under 11 U.S.C.(d)(1). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), 3 (Confirmation that there is no stay in effect), 6 (waiver of 4001(a)(3) stay), 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law), 9 (relief binding and effective for 180 days against any debtor), 10 (binding and effective in any case for 2 years), and 11 (binding and effective against Debtor for 180 days)
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Bennie Akil Taylor Represented By David H Chung
Movant(s):
My Management Co. Represented By Benjamin Taylor
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 23
NONE LISTED -
Petition Date: 09/18/2018 Chapter: 13
Service: Proper. Co-debtor was served. No opposition filed. Property: 6729 Amigo Ave, Reseda, CA 91335-5310 Property Value: $ 733,533.40 (per debtor’s schedules) Amount Owed: $ 734,212.81 (per RFS motion)
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $2,791.60
Disposition: GRANT under 11 U.S.C. 362(d)(1), (d)(2) and (d)(4). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 6 (Co-debtor stay is terminated); 7 (waiver of the 4001(a)(3) stay) and 9 (Relief under 362(d)(4) for bad faith- multiple bankruptcies affecting the subject property).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
David Luis Gonzalez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 12
NONE LISTED -
Petition Date: 10/05/2018 Chapter: 13
Service: Proper. Co-debtor was served. No opposition filed. Property: 749 Vernon Avenue, Venice, CA 90291
Property Value: N/A
Amount Owed: $ 812,566.88 (per RFS motion) Equity Cushion: N/A
Equity: N/A.
Post-Petition Delinquency: N/A
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(4). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 4 (confirmation that there is no stay in effect); 7 (waiver of the 4001(a)(3) stay); 8 (Designated law enforcement officer may evict any occupant without further notice); 9 (Relief under 362(d)(4) for bad faith- multiple unauthorized transfers and bankruptcies affecting the subject property); and 10 (relief binding and effective for 180 days against any debtor).
Ellie Chappel was served as borrower, but there is no relief requested as to the termination of co-debtor stay.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Raul Jimenez Pro Se
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 10
NONE LISTED -
On 10-17-18, Debtor filed this chapter 13 case. Debtor had one previous bankruptcy case that was dismissed within the previous year. The First Filing, 17-12523-MT, was a chapter 13 that was filed on 9/20/17 and dismissed on 8/14/18 for failure to make required payments. Relief from stay was granted to Wells Fargo Bank on 8/14/18, after Debtor defaulted under the terms of an APO (17-12523-MT, doc. 41).
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor argues that the present case was filed in good faith notwithstanding the dismissal of the previous case for failure to make required payments because her rental income is less erratic. Debtor claims that there has been a substantial change in her financial affairs. Debtor states that since the First Filing was dismissed, the students she now rents to are more stable, so that she can make timely plan payments. Debtor claims that the property is necessary for a successful reorganization because this is her primary residence, and a source of income.
Wells Fargo Bank opposes this motion, arguing that Debtor has not rebutted the presumption of bad faith as to by clear and convincing evidence merely by stating that she has secured stable tenancy. In the alternative, Wells Fargo requests that the Court condition any extension of the stay on Debtor’s timely payment of the post- petition payments on account of its secured claim.
APPEARANCE REQUIRED DUE TO SHORTENED TIME.
Debtor(s):
Jacqueline B Urenda Represented By
11:00 AM
Movant(s):
James Geoffrey Beirne
Jacqueline B Urenda Represented By
James Geoffrey Beirne James Geoffrey Beirne James Geoffrey Beirne James Geoffrey Beirne
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:16-01119 Moussighi et al v. Talasazan
for NonDischargeability of Debt Pursuant to 11 U.S.C. Sec. 523 and 727.
11/5/16, 11/30/16; 3/29/17, 7/5/17, 1/31/18, 2/14/18,
5/30/18, 6/6/18, 7/18/18,
Docket 1
NONE LISTED -
Having received the Debtor's unilateral status report dated November 12, 2018, and in recognition of the parties' agreement to proceed to mediation on December 20, 2018, this matter will be continued to January 23, 2019.
NO APPEARANCE REQUIRED ON 11/12/18
Debtor(s):
Yoram Talasazan Represented By Raymond H. Aver
Defendant(s):
Yoram Talasazan Pro Se
Plaintiff(s):
Moeir Moussighi Represented By Donna R Dishbak
Hanrit Moussighi Represented By Donna R Dishbak Donna R Dishbak
11:00 AM
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:18-01104 Silber et al v. Silber et al
Complaint by Creditors Kurt and Irene Silber to Determine Non-Dischargeability of Debts
owed by Debtors, Ian Ellis Silber and Jane Silber.
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Ian Ellis Silber Represented By Henry Glowa
Defendant(s):
Ian Ellis Silber Pro Se
Jane Ellen Silber Pro Se
DOES 1 through 50 Pro Se
Joint Debtor(s):
Jane Ellen Silber Represented By Henry Glowa
Plaintiff(s):
Kurt Silber Represented By
Timothy R Hanigan
Irene Silber Represented By
11:00 AM
Trustee(s):
Timothy R Hanigan
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
by Israel Abselet, Howard L. Abselet against DAVID K GOTTLIEB,
Fieldbrook, Inc.,
Elkwood Associates, LLC,
CITIVEST FINANCIAL SERVICES, INC.,
Reliable Properties, Jack NOURAFSHAN,
Fereydoun Dayani,
DMARC 2007-CD5 Garden Street, LLC, Soda Partners, LLC
Docket 136
NONE LISTED -
This status conference is continued to 11/15/18 at 9:30 a.m., to be heard with the summary judgment argument.
NO APPEARANCE REQUIRED ON 11/14/18
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
11:00 AM
Soda Partners, LLC Represented By Ronald N Richards
Quality Loan Service Pro Se
Chase Manhattan Mortgage Co. Pro Se
Howard Abselet Represented By Henry S David
Israel Abselet Represented By Henry S David
Citivest financial Services, Inc. Pro Se
State Street Bank and Trust Co. Pro Se DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
QUALITY LOAN SERVICE Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
11:00 AM
Adv#: 1:18-01007 Karish Kapital LLC v. Aleksaudrovic et al
Docket 9
NONE LISTED -
APPEARANCE REQUIRED
Debtor(s):
Yakov Aleksaudrovich Represented By Elena Steers
Defendant(s):
Yakov Aleksaudrovic Represented By Stella A Havkin
Natalia Koutina Represented By Stella A Havkin
Yanna Aleksaudrovich Represented By Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Law Offices of Steers & Assoc. Pro Se
RWB Consulting Services & Sales, Represented By
Stella A Havkin RWB Consulting Services & Sales, Represented By
11:00 AM
Stella A Havkin
Joint Debtor(s):
Natalia Koutina Represented By Elena Steers
Plaintiff(s):
Karish Kapital LLC Represented By Timothy McFarlin
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:18-01007 Karish Kapital LLC v. Koutina et al
Complaint Seeking Damages in Core Adversary Proceedings
Docket 1
NONE LISTED -
Discovery cut-off (all discovery to be completed*):
Expert witness designation deadline (if necessary):
Case dispositive motion filing deadline (MSJ; 12(c)):
Pretrial conference:
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil Procedure.
Meet and Confer
Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
Discovery Motion Practice:
11:00 AM
All discovery motions must be filed within 30 days of the service of an objection, answer, or response which becomes the subject of dispute or the passing of a discovery due date without response or production, and only after counsel have met and conferred and have reached an impasse with regard to the particular issue.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
Yakov Aleksaudrovich Represented By Elena Steers
Defendant(s):
Natalia Koutina Represented By Stella A Havkin
Yanna Aleksaudrovich Represented By Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Law Offices of Steers & Assoc. Pro Se
RWB Consulting Services & Sales, Represented By
Stella A Havkin
RWB Consulting Services & Sales, Represented By
Stella A Havkin
Joint Debtor(s):
Natalia Koutina Represented By Elena Steers
11:00 AM
Plaintiff(s):
Karish Kapital LLC Represented By Timothy McFarlin Jarrod Y Nakano
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:18-01068 Gregorio v. PHEAA-Pennsylvania Higher Education et al
Docket 7
NONE LISTED -
Discovery cut-off (all discovery to be completed*):_Feb. 28, 2019
Expert witness designation deadline (if necessary):to be determined at next hearing Case dispositive motion filing deadline (MSJ; 12(c)):_to be determined at next hearing
Status conference to be set for April 2019
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil Procedure.
Meet and Confer
Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
Discovery Motion Practice:
All discovery motions must be filed within 30 days of the service of an objection, answer, or response which becomes the subject of dispute or the passing of a
11:00 AM
discovery due date without response or production, and only after counsel have met and conferred and have reached an impasse with regard to the particular issue.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
Jerald Angelo Gregorio Pro Se
Defendant(s):
PHEAA-Pennsylvania Higher Pro Se
Windham Professionals Pro Se
ECMC Educational Credit Represented By Scott A Schiff
United States Department of Pro Se
Plaintiff(s):
Jerald Angelo Gregorio Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Adv#: 1:18-01010 Seyedan v. Njeim
Docket 1
NONE LISTED -
NONE LISTED -
Debtor(s):
Juliana Njeim Represented By
Richard Mark Garber
Defendant(s):
Juliana Njeim Pro Se
Plaintiff(s):
Maryam Seyedan Represented By James R Selth
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Adv#: 1:18-01019 Karish Kapital LLC v. Aleksandrovich
Docket 1
NONE LISTED -
Discovery cut off (to be completed) - September 12 Pretrial conference on October 10 at 11 am
Debtor(s):
Yanna Aleksandrovich Represented By Elena Steers
Defendant(s):
Yanna Aleksandrovich Represented By Stella A Havkin
Plaintiff(s):
Karish Kapital LLC Represented By Timothy McFarlin
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 50
NONE LISTED -
NONE LISTED -
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 2190
NONE LISTED -
Opposition to the proposed abandonment was filed by Michael Jaso, a tenant residing at the Desert Way property. Mr. Jaso states that he has been residing at Desert Way under a lease agreement since January 2010. Mr. Jaso explains that the agreement was that he maintain the Property at his own expense and that he would have an opportunity to purchase the property. Mr. Jaso, by his opposition, requested to have the Trustee’s sale, set for 10/29/18, to be postponed and to have the opportunity to work with Trustee Seror & the mortgage holder to complete a short sale to him, if possible.
Trustee Seror responded that Mr. Jaso’s requests cannot be granted here because
(1) the relief sought by Mr. Jaso is not relief that could be granted by the Court – HSBC has already been granted relief from the automatic stay to proceed with its foreclosure; (2) the relief sought by Mr. Jaso is likely moot because the foreclosure was scheduled for a date that has already passed, and thus it is likely that the foreclosure has already been completed; (3) Trustee has already determined that administration of the Property is not in the further interests of the Estate so there are no grounds for him to seek a stay of the foreclose proceedings even could he do so at this point; and, (4) Mr. Jaso does not through his Response oppose abandonment, rather, he requests the opportunity to purchase the Property through a short sale, which respectfully, is not relief that has any relation to the administration of this bankruptcy estate.
Having reviewed the Trustee's Motion to Abandon Nunc Pro Tunc to Oct. 23, 2018, the Court finds that the subject property is burdensome and/or of inconsequential value and benefit to the Estate. Mr. Jaso’s objection is overruled.
Motion GRANTED. APPEARANCE REQUIRED.
11:00 AM
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
1:00 PM
Adv#: 1:17-01012 David K. Gottlieb, solely in his capacity as chapt v. D'Arco et al
fr. 4/26/17, 5/24/17, 7/26/17; 1/31/18; 4/25/18
Docket 1
NONE LISTED -
This matter will be continued to June 20 to be heard with the Motion for Summary Judgment. Plaintiff to provide notice of continued hearing.
APPEARANCES WAIVED on April 25.
Debtor(s):
Thomas R D'Arco Represented By Chris Gautschi
Defendant(s):
Carol V D'Arco Pro Se
Does 1-100 Pro Se
Plaintiff(s):
David K. Gottlieb, solely in his Represented By Fahim Farivar
Trustee(s):
David Keith Gottlieb (TR) Represented By Ashley M McDow Michael T Delaney Fahim Farivar
1:00 PM
1:00 PM
Adv#: 1:16-01119 Moussighi et al v. Talasazan
for NonDischargeability of Debt Pursuant to 11 U.S.C. Sec. 523 and 727.
11/5/16, 11/30/16; 3/29/17, 7/5/17, 1/31/18, 2/14/18,
5/30/18, 6/6/18, 7/18/18
Docket 1
NONE LISTED -
This status conference was continued to 11/14 to allow time for the parties to bring a dispositive motion on the remaining issues. No such motion has been filed. In fact, nothing new has been filed in this case since mid-July. What is the status of this action? Do Plaintiffs intend to continue prosecuting this adversary?
APPEARANCE REQUIRED
Debtor(s):
Yoram Talasazan Represented By Raymond H. Aver
Defendant(s):
Yoram Talasazan Pro Se
Plaintiff(s):
Moeir Moussighi Represented By Donna R Dishbak
Hanrit Moussighi Represented By
1:00 PM
Trustee(s):
Donna R Dishbak Donna R Dishbak
Nancy J Zamora (TR) Pro Se
9:30 AM
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
Docket 165
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Soda Partners, LLC Represented By Ronald N Richards
Quality Loan Service Pro Se
Chase Manhattan Mortgage Co. Pro Se
Howard Abselet Represented By Henry S David
Israel Abselet Represented By Henry S David
Citivest financial Services, Inc. Pro Se
State Street Bank and Trust Co. Pro Se DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
QUALITY LOAN SERVICE Pro Se
9:30 AM
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
9:30 AM
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
Chapter 11 Trustee, for Summary Judgment on First Claim for Relief (Quiet Title) Against Defendants Elkwood Associates, LLC and Fieldbrook, Inc.
fr. 9/18/18; 10/10/2018
Docket 98
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Soda Partners, LLC Represented By Ronald N Richards
Quality Loan Service Pro Se
Chase Manhattan Mortgage Co. Pro Se
Howard Abselet Represented By Henry S David
Israel Abselet Represented By Henry S David
Citivest financial Services, Inc. Pro Se
State Street Bank and Trust Co. Pro Se
9:30 AM
DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
QUALITY LOAN SERVICE Pro Se
Movant(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
DAVID K GOTTLIEB Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
9:30 AM
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
Relief (Quiet Title)
fr. 9/18/18; 10/10/2018
Docket 102
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Soda Partners, LLC Represented By Ronald N Richards
Quality Loan Service Pro Se
Chase Manhattan Mortgage Co. Pro Se
Howard Abselet Represented By Henry S David
Israel Abselet Represented By Henry S David
Citivest financial Services, Inc. Pro Se
State Street Bank and Trust Co. Pro Se
9:30 AM
DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
QUALITY LOAN SERVICE Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
11:00 AM
fr. 9/26/2018, 10/24/18; 11/7/18
Docket 136
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson Howard Camhi
8:30 AM
Docket 14
Petition date: 8/23/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2015 Cadillac ATS
Debtor’s valuation of property (Sch. B): $10,000 Amount to be reaffirmed: $26,901
APR: 13.990%
Contract terms: $557.90 per month for 70 months Monthly Income (Schedule I): $4,680
Monthly expenses: (Schedule J): $4,507 Disposable income: $173
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
No explanation provided.
Debtor has a right to rescind agreement anytime prior to discharge, or until December 29, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Florence Hamilton Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
Docket 9
Petition date: 8/24/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2013 Toyota Corolla
Debtor’s valuation of property (Sch. B): $5,000 Amount to be reaffirmed: $7,728.35
APR: 3.25% (fixed)
Contract terms: $274.84 for 30 Months Monthly Income (Schedule I): $2,721.58
Monthly expenses: (Schedule J): $2,715 (includes car payment) Disposable income: $6.58
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Disposible income is sufficient to afford payments; expenses in schedule J include car payment, and net to $6.58
Debtor has a right to rescind agreement anytime prior to discharge, or until December 17, 2018 , whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Laura V. Cowart Represented By Elena Steers
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
Docket 7
Petition date: 9/10/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2015 Toyota Tundra
Debtor’s valuation of property (Sch. B): $13,000 Amount to be reaffirmed: $13,987.97
APR: 0% (Fixed) Does not appear to be a lease. Contract terms: $538.01 for 25 Months
Monthly Income (Schedule I): $2,104.33 Monthly expenses: (Schedule J): $3,238 Disposable income: <$1,194.67>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor states that relatives will assist with the payment.
Debtor has a right to rescind agreement anytime prior to discharge, or until December 23, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Arben Nebo Represented By
Gregory Grigoryants
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
Docket 9
Petition date: 10/10/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2011 Ford Edge
Debtor’s valuation of property (Sch. D): $3,455 (not listed in schedules A/B or G) Amount to be reaffirmed: $16,869.12
APR: 9.45% (fixed)
Contract terms: $398.41 per month for 49 months Monthly Income (Schedule I): $2,166.67
Monthly expenses: (Schedule J): $2,324 Disposable income: <$157.33>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor says they will get a second job.
Debtor has a right to rescind agreement anytime prior to discharge, or until December 9, 2018, whichever is later.
RULING MAY BE MODIFIED AT HEARING.
8:30 AM
Debtor(s):
Blanca Suazo Represented By Monica M Robles
Trustee(s):
Amy L Goldman (TR) Pro Se
9:30 AM
Directing compliance with applicable law
Requiring debtor(s) to explain why this case should not be converted or dismissed
with 180-day bar to refiling
Docket 1
NONE LISTED -
Debtor(s):
George Mortensen Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 9
NONE LISTED -
Debtor(s):
Orlando Huete Represented By Jaime A Cuevas Jr.
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 3/28/17, 5/23/17;l 7/25/17, 9/26/17, 11/28/17, 1/23/18; 3/27/18; 4/24/18, 6/19/18; 7/31/18, 9/11/18,
10/23/18
Docket 89
APPEARANCE REQUIRED
Debtor(s):
Victoria Ruiz Represented By
Siamak E Nehoray
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 48
NONE LISTED -
Debtor(s):
Sigalit Marmorstein Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 59
NONE LISTED -
Debtor(s):
Israel Deleon Represented By
Elena Steers
Joint Debtor(s):
Yvonne Deleon Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/11/18, 10/23/18
Docket 66
NONE LISTED -
Debtor(s):
Henry Guzman Represented By Ali R Nader
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/11/18, 10/23/18
Docket 43
NONE LISTED -
Debtor(s):
Fernando Becerril Represented By Ali R Nader
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/23/18
Docket 47
NONE LISTED -
Debtor(s):
Art Summroell Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 58
NONE LISTED -
Debtor(s):
Edgar Rufino Hernandez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/28/17; 2/27/18; 3/27/18, 5/22/18; 7/31/18, 9/11/18, 10/23/18
Docket 48
According to the Trustee’s website, Debtors are now $16,415 behind on plan payments. Do Debtors have a realistic chance of modifying this plan?
APPEARANCE REQUIRED
Debtor(s):
William Michael Desmuke Sr Represented By Claudia L Phillips
Joint Debtor(s):
Priscilla Ann Desmuke Represented By Claudia L Phillips
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/23/18
Docket 80
NONE LISTED -
Debtor(s):
Nafees Memon Represented By William R Ramsey
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/23/18
Docket 44
NONE LISTED -
Debtor(s):
Fakhrudin Noorbhai Represented By Jeffrey N Wishman
Joint Debtor(s):
Asma Fakhrudin Noorbhai Represented By Jeffrey N Wishman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 49
NONE LISTED -
Debtor(s):
Yinka Brandy Nunoo Represented By Devin Sawdayi
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/23/18
Docket 46
NONE LISTED -
Debtor(s):
Lisa Marie Payne Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/23/18
Docket 85
NONE LISTED -
Debtor(s):
Gregory A Harris Represented By Brad Weil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/31/18, 9/11/18, 10/23/18
Docket 82
NONE LISTED -
Debtor(s):
Irma Villalpando Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 7/31/18, 9/11/18, 10/23/18
Docket 105
NONE LISTED -
Debtor(s):
Allen Charles Mixon III Represented By Stella A Havkin
Joint Debtor(s):
Gladys Stennis Mixon Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/23/18
Docket 111
NONE LISTED -
Debtor(s):
Allen Charles Mixon III Represented By Stella A Havkin
Joint Debtor(s):
Gladys Stennis Mixon Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr, 10/23/18
Docket 40
NONE LISTED -
Debtor(s):
Eduardo N Trillo Jr. Represented By Elena Steers
Joint Debtor(s):
Maritess Biglangawa Trillo Represented By Elena Steers
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/23/18
Docket 125
NONE LISTED -
Debtor(s):
Richard Khatibi Represented By
Michael D Kwasigroch
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 49
NONE LISTED -
Debtor(s):
Melissa D Kurtz Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/23/18
Docket 0
Counsel needs to move quickly to resolve any issues so that trustee can commence paying claims. What time frame is counsel promising?
Debtor(s):
Sam Shem Tov Dan Represented By Shai S Oved
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/23/18
Docket 43
No opposition filed. Service proper. Motion GRANTED. No appearance required.
Debtor(s):
Blanca Araceli Michel Represented By Sanaz S Bereliani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 17
NONE LISTED -
Debtor(s):
Manouchehr Kouchakali Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Debtor's Attorney, Period: 3/2/2018 to 10/24/2018, Fee: $9000, Expenses: $100.
Docket 49
NONE LISTED -
Debtor(s):
Sam Shem Tov Dan Represented By Shai S Oved
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 46
Debtor(s):
JOSE E IRIAS Represented By Allan J Sarkin
Trustee(s):
Diane C Weil (TR) Represented By Diane C Weil
11:00 AM
Adv#: 1:18-01079 Seror v. Gregorian et al
fr. 9/26/18
Docket 1
Debtor(s):
Owner Management Service, LLC Pro Se
Defendant(s):
La Vista Properties Pro Se
Alfred Gregorian Pro Se
Plaintiff(s):
David Seror Represented By
Richard Burstein Michael W Davis
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
KERN COUNTY TREASURER AND TAX COLLECTOR
fr.11/8/17, 2/7/18, 3/21/18
Docket 12
Debtor(s):
Richard Khatibi Represented By Kevin T Simon
Movant(s):
Kern County Treasurer and Tax Represented By Nicole M Misner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 32
Debtor(s):
Nelda Fuentes Represented By Rebecca Tomilowitz
Joint Debtor(s):
Jose Fuentes Represented By
Rebecca Tomilowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 50
Debtor(s):
Anna Gevorkian Represented By Robert T Chen
Movant(s):
Parkwood Van Nuys HOA Represented By Neil B Katz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01104 Silber et al v. Silber et al
Kurt and Irene Silber to determine non-dischargeability
of debts owed by debtors, Ian Ellis Silber and Jane Silber
Docket 5
Debtor(s):
Ian Ellis Silber Represented By Henry Glowa
Defendant(s):
Ian Ellis Silber Pro Se
Jane Ellen Silber Pro Se
DOES 1 through 50 Pro Se
Joint Debtor(s):
Jane Ellen Silber Represented By Henry Glowa
Plaintiff(s):
Kurt Silber Represented By
Timothy R Hanigan Arthur Carvalho Jr
Irene Silber Represented By
Timothy R Hanigan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
fr. 11/15/18
Docket 165
First Counterclaim: Declaratory Relief
The allegations in the first claim for relief mirror those in the Trustee’s first claim, which survived a separate motion to dismiss and, tentatively, a summary judgment motion by the Elkwood Defendants. The Elkwood Defendants argue, however, that this action for declaratory judgment is essentially an action for quiet title, and that, furthermore, the Abselets lack standing.
The Court agrees with the Abselets that an action for declaratory judgment is appropriate here. It appears that the only concern with a quiet title action is whether the Abselets, as junior lienholders, may quiet title in the Trustee. If that concern is founded, then the Abselets are seeking a remedy that could not be granted in a quiet title action. Regardless of what the action is called, it is clear what the Abselets are seeking.
The Elkwood defendants also argue that declaratory relief is not an independent claim, but rather a remedy. This argument is belied by their later arguments that declaratory relief is only allowed as a separate claim for relief under certain circumstances, such as when it seeks relief not available in a quiet title action.
The first claim for relief is sufficient to state a claim for the declaratory relief sought by the Abselets. As to standing, the Court agrees with the Abselets. Yvanova did not address the standing of junior lienholders who were prejudiced by an allegedly void foreclosure.
However, because the rights of the Abselets were unquestionably prejudiced if the allegations are true, they have suffered sufficient injury for standing.
Irregularities
It is unclear what relief the Elkwood Defendants seek with respect to section II B 3 of the motion regarding alleged irregularities. Because there is, by the Elkwood Defendants’ own acknowledgment, no cause of action attached to these allegations, the motion is
9:30 AM
denied. The allegations may stand as part of the context of the other causes of action.
Second Counterclaim
The second counterclaim is "based on the counterfactual contention of the Nourafshan entities that Elkwood assigned only the New Solyman Obligation and the PWB Chalette DOT to Fieldbrook." The Court has considered the theory that the note was bifurcated and has rejected it, tentatively, in its ruling on the cross-motions for summary judgment. However, because that ruling is subject to the Elkwood Defendants’ action for reformation, this issue may yet become relevant.
The Abselets seek a declaration that the Rexford foreclosure sale was void on two grounds. First, the complaint states that the bifurcated "New Massoud Obligation" was unsecured or otherwise that the Elkwood Defendants did not properly record a notice of default or Notice of Sale with respect to the New Massoud Obligation. Second, the complaint avers that any partial assignment was invalid because such assignment would have required the consent of the Debtors and the junior lienholders.
The Abselets’ argument for how the debt was unsecured does not state a plausible claim. According to the opposition, the definition sections of the relevant loan documents do not create a security interest in the "New Massoud Obligation."
The PWB Rexford DOT defines "INDEBTEDNESS" as "all principal, interest, and other amounts, costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced by Lender to discharge Trustor’s obligations or expenses Incurred by Trustee or Lender to enforce Trustor's obligations under this Deed of Trust, together with Interest on such amounts as provided in this Deed of Trust. . . .
The New Massoud Obligation is not the "INDEBTEDNESS" secured by the Rexford DOT because it is not "all" of the amounts due under the PWB Note or "Related Documents." It was a mere 11.89% of the INDEBTEDNESS.
Opposition, 12:15-13-3. This labored reading of the loan document has no merit for the reasons stated in the Elkwood Defendants’ reply.
9:30 AM
The second theory for the second counterclaim does not state a plausible claim for relief. The bifurcation of the note, if one occurred, would have been very prejudicial to junior lienholders, including the Abselets. However, the Abselets have not provided any legal authority to support their contention that a "material split" requiring the consent of junior lienholders. The authority relied upon by the Abselets does not support the remedy sought. In Gluskin v. Atl. Sav. & Loan Assn., the court held that a lender and a borrower may not bilaterally make a material modification in the loan to which the seller has subordinated without the knowledge and consent of the seller to that modification if the modification materially affects the seller’s rights. 32 Cal. App. 3d 307 (Ct. App. 1973). Gluskin arose in the context of a subordination agreement which was essentially three-way transaction. The Gluskin court recognized "the vulnerable position in which a seller who agrees to subordinate his purchase money deed of trust may find himself." Id. at 313. The court stated that there were "strong public policy reasons to protect the seller in subordination situations." Id. This Court is not willing to stretch this principle from a 45-year-old case to the current situation.
The other authority cited by the Abselets similarly focuses on subordination of the senior lien, particularly in the context of subordination agreements in construction loans. In fact, the treatise cited by the Abselets seems to refute their own theory. After discussing subordination in the context of construction loans, the treatise says the following:
Alternate view that consensual junior lienor is inherently at risk of modification of the senior lienor. The possible argument from these earlier cases, that all junior lienors, not solely subordinating sellers, should be able to gain priority over modifications to the senior lien made without their consent, has been rejected. The most recent case emphasizes that accepting a junior lien position necessarily exposes the junior lienor to the risk of modifications of the senior lien. If the junior lienor is reluctant to incur this risk, the junior lienor can either decline to extend credit in a junior position or else, prior to extending credit or accepting a junior lien position, the junior lienor can negotiate specific terms of a subordination or intercreditor agreement to provide contractual protection against such modifications. The senior lienor owes "no express or implied contractual duties" to a person who extends credit in a junior position without its consent. To the contrary, establishing a rule that protects junior creditors from any material change in a
9:30 AM
senior loan would upset the California "first in time, first in right" system of lien priorities, and give undue protection to a junior creditor who "takes a calculated investment risk" by accepting a junior position
Miller & Starr, California Real Estate, 4 Cal. Real Est. § 10:102 (4th ed. August 2018 Update). Notably, none of the cases cited by the Abselets provided any plaintiff with the relief sought by the Abselets: a declaration that the foreclosure was void. All of the cases cited similarly involve subordination agreements, which place the subordinating lienholder "in an especially vulnerable position." Friery v. Sutter Buttes Sav. Bank, 61 Cal. App. 4th 869, 876 (1998).
The second cause of action does not state a plausible claim for relief due to the lack of supporting legal authority. The motion is GRANTED as to the second claim for relief.
Third counterclaim: intentional fraudulent transfer, Rexford Home. Defendant does not seek dismissal.
Fourth and Fifth counterclaims - Conversion of Chalette proceeds and Money had and received for Chalette Proceeds. Motion denied as Abselets have alleged sufficient facts to support the claims under Lee v. Hanley, 61 Cal. 4th 1225, 1240 (2015) and Baldwin v. Marina City Properties, 79 Cal. App. 3d 393, 403 (1978).
Sixth Counterclaim: Unjust Enrichment
Some states recognize an independent claim for "unjust enrichment" or "restitution." See, e.g., Larisa's Home Care, LLC v. Nichols-Shields, 362 Or. 115 (2017). In California, the majority of courts do not recognize a cause of action for unjust enrichment. Forcellati v. Hyland's, Inc., 876 F. Supp. 2d 1155, 1166 (C.D. Cal. 2012) ("we agree with Defendants that the majority of state and federal district courts in California do not recognize unjust enrichment as a freestanding claim."); Mckell v. Wash. Mut., Inc., 142 Cal.App. 4th 1457, 1490 (2006). Unjust enrichment is instead a remedy under California law. Swain v. CACH, LLC, 699 F. Supp. 2d 1109, 1115 (N.D. Cal. 2009). Because there is no independent cause of action for unjust enrichment under California law, the Motion is GRANTED as to the sixth counterclaim
9:30 AM
Seventh Counterclaim: Actual fraudulent transfer: Chalette Proceeds, stands for now as well
Eighth Counterclaim: Conspiracy to Chill bidding. The court agrees that Abselets are not required to tender since they seek damages here, not a reversal of foreclosure. The cases cited by the Abselets generally support this theory as alleged in the complaint.
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Soda Partners, LLC Represented By Ronald N Richards
Quality Loan Service Pro Se
Chase Manhattan Mortgage Co. Pro Se
Howard Abselet Represented By Henry S David
Israel Abselet Represented By Henry S David
Citivest financial Services, Inc. Pro Se
State Street Bank and Trust Co. Pro Se DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
QUALITY LOAN SERVICE Pro Se
9:30 AM
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
Chapter 11 Trustee, for Summary Judgment on First Claim for Relief (Quiet Title) Against Defendants Elkwood Associates, LLC and Fieldbrook, Inc.
fr. 9/18/18; 10/10/2018; 11/15/18
Docket 98
The cross motions for summary judgment address mostly the same issues, so the following tentative ruling addresses both motions together and will be revised in a written ruling following argument:
Trustee’s Motion only seeks summary judgment on the first claim for relief: quiet title as to the Rexford Property. Quiet Title claims are actionable under Cal. Civ. Pro. Code § 760.020. Trustee argues that the foreclosure of the Rexford home was void because Elkwood assigned the entire PWB Note to Fieldbrook before the foreclosure
sale. Trustee argues further that the PWB note could not be split and assigned in part without the written consent of the borrowers, and that Trustee’s rights as a bona fide purchaser of the Rexford Property bars reformation of the
9:30 AM
contract.
Bifurcation of the PWB Note
The success or failure of Trustee’s Motion turns on whether the rights to foreclose under the Rexford DOT were transferred from Elkwood to Fieldbrook in the February 18, 2015 Fieldbrook Assignment.
There seems to be no dispute that when Elkwood obtained the PWB Note from Pacific Western Bank, it remained a single note secured by both the Rexford DOT and the Chalette DOT. Similarly, there is no contention that the PWB Note was in any way altered before Elkwood executed the Fieldbrook Assignment. The Fieldbrook Assignment, therefore, is the contract under which any "bifurcation," "splitting," "partial assignment," or assignment of a "participating interest," as the transaction has been variously described,1 must have occurred.
Under California law, "[a] contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." Cal. Civ. Code § 1636. However, "it is not the parties’ subjective intent that matters, but rather their objective intent, as evidenced by the words of the contract." Block v. eBay, Inc., 747 F.3d 1135, 1138 (9th Cir. 2014) (internal quotations omitted).
"California recognizes the objective theory of contracts, under which it is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation. The parties' undisclosed intent or understanding is irrelevant to contract interpretation." Reilly v. Inquest Tech., Inc., 218 Cal.
App. 4th 536, 554 (2013). The Court must examine the wording of the Fieldbrook Assignment to determine the objective intent of the contracting parties.
The operative language of the Fieldbrook Assignment in its entirety is as follows:
For Value Received, the undersigned ELKWOOD ASSOCIATES, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY hereby grants, assigns, transfers and conveys to FIELDBROOK, INC., A CALIFORNIA CORPORATION all of its right, title and beneficial Interest In and to that certain Deed of Trust dated MARCH 20, 2009 executed by SOLYMAN YASHOUAFAR, AS TRUSTEE OF THE SOLYMAN AND SOHEILA YASHOUAFAR 2004 TRUST DATED MARCH 8, 2004 as Trustor, to
PACIFIC WESTERN BANK, as Trustee, for the benefit of PACIFIC WESTERN BANK as beneficiary and recorded as Instrument No. 20090425658, on March 25, 2009, In Book , Page of Official Records in the Office of the County Recorder of Los Angeles County, California, describing land in said county as,
Lot 34 in Tract No. 24484, in the city of Beverly Hills, County of Los Angeles, State of California, as per map recorded in book 657, pages 99 and 100 of maps, in the office of the county recorder of said county.
A.P.N. 4391-009-002 AKA: 580 CHALETTE DRIVE, BEVERLY HILLS, CA 90210 Together with the Secured Promissory Note or Notes therein described or referred to,
9:30 AM
the money due and to become due thereon with interest, and all rights accrued or to accrue under said Deed of Trust, any liens, security interest, and remedies arising thereunder. This Assignment is made without recourse, representations or warranties of any kind except as may be set forth in any Loan Sale Agreement that may be between assignor and assignee.
Fieldbrook Assignment, RJN ISO T’ee MSJ at Ex. D. By its terms, the assignment purports to assign the Chalette
DOT and the PWB Note from Elkwood to Fieldbrook. Conspicuously absent from the Fieldbrook Assignment is any reference to the Rexford DoT, which also secured the PWB Note. Defendants argue that the Fieldbrook assignment contains a latent ambiguity requiring the admission of extrinsic evidence.
Extrinsic Evidence
A latent ambiguity exists when a document, while unambiguous on its face, may be reasonably susceptible to more than one possible meaning upon production of extrinsic evidence. Dore v. Arnold Worldwide,
Inc., 39 Cal. 4th 384, 391 (2006). "The test of admissibility of extrinsic evidence to explain the meaning of a written
instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the
offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible." Id. (quoting Pac. Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co., 69 Cal. 2d 33, 37 (1968)).2 The Pacific
Gas Court reasoned that, under California law, "the intention of the parties as expressed in the contract is the source
of contractual rights and duties." Pacific Gas, 69 Cal. 2d at 38. Extrinsic evidence is not admissible to add to, detract
from, or vary the terms of a written contract. Id. at 33.
The Fieldbrook assignment is not reasonably susceptible to a reading that the PWB Note would be bifurcated and $5.8 million of the note secured by only the Chalette DOT would be transferred to Fieldbrook while the remainder of the PWB Note and the Rexford DOT would remain with Elkwood. No amount of extrinsic evidence would allow such a wholesale re-imagining of the terms of the Fieldbrook Assignment. The phrase "[t]ogether with the Secured Promissory Note or Notes therein described or referred to" clearly indicates that all notes secured by the Chalette DOT were transferred in the Fieldbrook Assignment, without any qualification or limitation. While Defendants attach evidence that indicates an intent to assign only a portion of the PWB Note, that evidence does not indicate an ambiguity in the language of the Fieldbrook Assignment—instead, that extrinsic evidence "flatly contradicts" the language quoted above. Consolidated World Investments, Inc. v. Lido Preferred Ltd., 9 Cal. App. 4th
373, 379 (Cal. Ct. App. 1992). The phrase "[t]ogether with the Secured Promissory Note or Notes therein described" is not reasonably susceptible to the reading "[t]ogether with $5.8 million of the Secured Promissory Note or Notes
9:30 AM
therein described. " Trustee’s Reply, 2:21-3:1. See Gerdlund v. Elec. Dispensers Int’l, 235 Cal. Rptr. 279, 284
(Cal. Ct. App. 1987) (refusing to admit parol evidence where contract language stating that "[n]otice of termination may be given at any time and for any reason" was not reasonably susceptible to the proposed reading that such notice could only be given "for any good reason.").
Furthermore, the evidence produced by Defendants to support the bifurcation of the PWB Note does not prove a clear intent to have the note bifurcated where all material inferences must be made against the non-moving party. While most facts are not in dispute on these cross motions, the Trustee and the Abselets dispute the significant assertions of fact concerning the bifurcation as self-serving. These statements have not been cross examined at trial and must be evaluated in light of all the evidence. While there were certainly negotiations with Pacific Western Bank regarding some sort of bifurcation of the PWB Note, those negotiations were carried out by an entity which is not party to this litigation, Kensington. While the emails to Mr. Garcia at Pacific Western Bank may demonstrate Kensington’s intent to bifurcate the PWB Note, those emails do not provide evidence of the intent of separate legal entities, Elkwood and Fieldbrook. Defendants ask the Court to simply ignore the corporate form—as Jack Nourafshan appears to have—and assume that all three entities acted with one will. In doing so, Defendants are asking for the benefits of the corporate form without any of the responsibilities. This would be particularly inequitable in light of the underlying allegations of fraud which have not been fully litigated.
The Guerrero Memo, which was apparently executed on behalf of Fieldbrook, indicates that the portion of the PWB Note that was transferred to Fieldbrook was $5.8 million. The fact that the Guerrero Memo states that "we" have assigned the Chalette DoT to Fieldbrook, on Fieldbrook’s own letterhead, is a further example of Nourafshan’s lack of regard for distinct corporate entities. The Guerrero Memo was written the day before Fieldbrook obtained an interest in the Property.
The material undisputed facts are simply that the Fieldbrook Assignment, as recorded at the Los Angeles County Recorder’s Office, does not in any way bifurcate the PWB Note, it merely assigns the PWB Note and Chalette DOT to Fieldbrook. Nor has any other document been provided by the Elkwood Defendants purporting to bifurcate the PWB Note.3
Disposition of the Rexford DOT
The Court’s determination that extrinsic evidence is not appropriate to support a bifurcation of the PWB Note does not resolve the disposition of the Rexford DOT. Because the Fieldbrook Assignment did not mention the
9:30 AM
Rexford DOT, but assigned the entire PWB Note, the question remains as to whether Elkwood had the right to foreclose under the Rexford DOT. Defendants argue that the failure to mention the Rexford DOT constitutes a patent ambiguity in the Fieldbrook Assignment. Regardless of whether the ambiguity is patent or latent, the Fieldbrook Assignment is susceptible to the reading suggested by the Elkwood Defendants’ extrinsic evidence: the Fieldbrook Assignment was not intended to transfer the Rexford DOT. However, because the Rexford DOT was assigned to Fieldbrook as a matter of law, the extrinsic evidence is of no consequence.
A plain reading of the document is that no ambiguity exists regarding the bifurcation of the amount due, but an ambiguity does exist regarding the disposition of the Rexford DOT. If the Court were to admit extrinsic evidence to determine the intent of the parties with regard to the Rexford DOT, the Court could not use that same
evidence to bifurcate the PWB Note as requested by the Elkwood Defendants.4 Cross-Motion, 13:17-21. Extrinsic
evidence cannot be used to show that only $5.8 million of the PWB Note was transferred in the Fieldbrook Assignment because the language of the Fieldbrook Assignment is not reasonably susceptible to that reading. The Elkwood Defendants misapply the rule from Pacific Gas by implying that admission of extrinsic evidence to interpret
an ambiguity is separate from the "reasonably susceptible" test of Pacific Gas. Cross-Motion, 25:3-5.
One exception to the parol evidence rule is that extrinsic evidence may be introduced to explain the meaning of ambiguous contractual language. The test of whether parol evidence is admissible to construe an ambiguity is not whether the language appears to the court unambiguous, but whether the evidence presented is relevant to prove a meaning to which the language is 'reasonably susceptible.'
Consol. World Investments, Inc. v. Lido Preferred Ltd., 9 Cal. App. 4th 373, 379 (1992).
The Trustee is correct that the entire PWB Note was transferred to Fieldbrook days before the Rexford foreclosure, so the issue is whether, as Trustee argues, the Rexford DOT was also necessarily transferred to Fieldbrook. Trustee’s Motion, 18:1-20. First, there has been no authority presented that a deed of trust can be
separated from the note it secures and remain valid, nor do the Elkwood Defendants make that argument. The Elkwood Defendants instead focus their argument on enforcing their stated intention of assigning only a portion of the PWB Note—an argument which the law does not support.
The transfer of the entire PWB Note to Fieldbrook carried with it the Rexford DOT. "The assignment of a debt secured by mortgage carries with it the security." Cal. Civ. Code § 2936.
The assignment of a secured debt carries with it the security, since the security is a mere incident of the debt. [Civ. Code, §§ 1084, 2936] The endorsement and delivery of the promissory note secured by a deed of trust
9:30 AM
or mortgage accomplishes the transfer of the security without the necessity of a formal assignment of the trust deed or mortgage itself. The trust deed or mortgage, in fact, need not even be mentioned in the
assignment. [Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal 2d 284, 267 P2d 16] On the other hand, an assignment of the trust deed or mortgage without a transfer of the note, that is, of the security without the debt, is completely ineffective. The assignee has nothing except the possibility of an action against the assignor to compel the assignor to transfer the note as well as the security, if that was the agreement. [Kelley v. Upshaw (1952) 39 Cal 2d 179, 246 P2d 23] When one assignee takes the note and another takes the trust deed or mortgage, the holder of the note prevails regardless of the time of transfer. [Adler v. Sargent (1895) 109 Cal 42, 41 P 799]
Cal. Civ. Prac. Real Property Litigation § 4:28, Rights of assignee; see also In re Macklin, 495 B.R. 8, 13 (Bankr.
E.D. Cal. 2013) ("The note and the mortgage are inseparable; the former as essential, the later as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity."); Yvanova v.
New Century Mortg. Corp., 62 Cal. 4th 919, 927 (2016) ("The deed of trust, moreover, is inseparable from the note it
secures, and follows it even without a separate assignment.").
The next issue is whether the Trustee’s Deed Upon Sale is void. The Court determines that it is. As described above, the Fieldbrook Assignment transferred the entire PWB Note and, consequently, the Rexford DOT. When Elkwood foreclosed, it had neither the right to foreclose nor the right to credit bid. Therefore, the recorded Trustee’s Deed Upon Sale was void, and must be treated as a "blank piece of paper." Los Angeles v. Morgan, 105
Cal. App. 2d at 733; See also Taormina Theosophical Community, Inc. v. Silver, 140 Cal. App.3d. 964, 971 (Cal.
App. 2d Dist. 1983) ("[T]he act of recording the November 9 CCRs did not make them enforceable. The purpose of recording is to protect innocent purchasers and encumbrancers of property by giving notice of potential limitations on title. . . Recording itself grants no interest in the property, and a void document ‘derives no validity from the mere fact that it is recorded.’" (citations omitted)). No action was taken to correct the defective Trustee’s Deed Upon Sale before the bankruptcy was filed. This, however, does not resolve the first claim for relief because of the other issues raised.
Tender
As explained in the earlier motions to dismiss, because the foreclosure is void, the Trustee is not required to tender the loan proceeds to proceed with this action.
Participation
The Elkwood Defendants have argued that the Court could consider the transaction between Elkwood and
9:30 AM
Fieldbrook to be a participation agreement, which is authorized under the Business Loan Agreement that was related to the PWB Note. See Nourafshan Declaration, Ex. G, P. 5. Participations "are contractual arrangements between a
lender and a third party, in which the third party, or participant, provides funds to the lender. The lender, in turn, uses the funds from the participant to make loans to the borrower." In re ACRO Bus. Fin. Corp., 357 B.R. 785, 787
(Bankr. D. Minn. 2006). To determine whether a transaction is a participation agreement, courts have considered the following factors: "a) money is advanced by participant to a lead lender; b) a participant's right to repayment only arises when a lead lender is paid; c) only the lead lender can seek legal recourse against the borrower; and, d) the document is evidence of the parties true intentions." In re Coronet Capital Co., 142 B.R. 78, 82 (Bankr. S.D.N.Y.
1992).
While Trustee cites out-of-circuit cases to describe the nature of such agreements, the law appears consistent among jurisdictions and the Elkwood Defendants provide no law in support of their assertion that Participation in the PWB Note is legally equivalent to a partial assignment. Cross-Motion, 23:13-15. A participation is
not merely a partial assignment, but a specific and technical agreement.
Mortgage lenders frequently wish to assign partial interests in a loan or a group of loans to one or more investors. Such transactions occur in two common contexts. The first is the case of a very large loan which may be beyond the financial resources of the originating or "lead" lender. The creation of "participation" interests by way of partial assignments that can be sold to one or more other financial institutions allows the lead lender to reduce its investment in the underlying loan, and at the same time spreads the risk of a possible loan default. . . .
Generally at least two documents are involved in the sale
of participation interests of the latter type: a participation agreement and
a participation certificate (PC). The first will set forth the parties' rights and duties in general, while the second will state the particular share or percentage that the investor is receiving, and may also identify the loans included in the package. In the first type of participation, involving a single large loan, all of this information will usually be contained in a
single agreement.
Whatever the format, the documents should be drafted to state the parties' agreement on a number of important issues, including the following. As among the participants, and as against the lead lender, who will have priority in the loan and foreclosure proceeds? In most cases
the participants have equal priority; whether the lead lender will share their priority or be subordinate to them as to any retained interest in the loans is a matter for negotiation. Other financial benefits of the loan, such as default interest, prepayment fees, and extension or assumption fees, should also be allocated. . . .
[T]he participants cannot be holders of the notes, and hence probably cannot enforce them directly.
9:30 AM
1 Real Estate Finance Law § 5:35 Partial assignments and participations (6th ed.). No money was advanced by the
alleged "participant," Fieldbrook, to the "lender," Elkwood. Also relevant is the fact that Fieldbrook itself pursued foreclosure against the Chalette Property under the PWB Note, which is not consistent with a participant’s rights as described above. Furthermore, the language of the Fieldbrook Assignment indicates that the Elkwood Defendants intended an assignment, not a participation agreement. There is insufficient evidence and no legal support for considering the Fieldbrook assignment to be a participation agreement, under which no notice was required.
Prejudice
The Elkwood Defendants further argue that, because Debtors were not prejudiced by a partial assignment of the PWB Note and the Chalette DOT, Trustee may not object. Elkwood Defendants’ Motion, 27:13-14. The issue
of prejudice arises in the case law in two contexts: first, as a requirement for standing, and second as an element of a wrongful foreclosure claim.
Prejudice as Required for Standing
The Elkwood Defendants’ primary contention is that Trustee lacks standing:
Plaintiff neither alleges nor proves any prejudice beyond the mere foreclosure, which means that he lacks standing, as defined under California case law for purposes of a borrower’s claim that a foreclosures sale is void.
Elkwood Defendants’ Reply to Elkwood Motion, 6:21-23. This issue was also raised and argued at the February 27,
2018 hearing on the Elkwood Defendants’ motion to dismiss the second amended complaint. The Elkwood Defendants are incorrect.
The California Supreme Court in Yvanova v. New Century Mortg. Corp. is the lead case on this area of
law. 62 Cal. 4th 919 (2016). In Yvanova, a homeowner challenged the foreclosure of her home by an entity who
allegedly did not own the note and deed of trust because the assignment in which the entity received its interest was allegedly void. The court held that, if an assignment necessary to the chain of title is void, the entity seeking a trustee’s sale had no legal authority to do so and the "unauthorized sale constitutes a wrongful foreclosure." Id. at
935. The court saw its ruling as narrow in scope, ruling that a homeowner in default and who was not a party to the assignment would have standing to challenge an assignment of the note and deed of trust if the homeowner claimed that the assignment was void, not merely voidable. Id. at 924.
9:30 AM
The Yvanova court did not "address any of the substantive elements of the wrongful foreclosure tort or the factual showing necessary to meet those elements," Id. at 924, leaving other courts to resolve those questions.5
Instead, prejudice was discussed in terms of an injury for purposes of the constitutional requirement of standing. "[W]e are concerned only with prejudice in the sense of an injury sufficiently concrete and personal to provide
standing, not with prejudice as a possible element of the wrongful foreclosure tort." Id. at 937 (emphasis added)
(citing Culhane v. Aurora Loan Servs. of Nebraska, 708 F.3d 282 (1st Cir. 2013) ("For purposes of standing doctrine,
an injury is defined as an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical. The foreclosure of the plaintiff's home is unquestionably a concrete and particularized injury to her.")). In order to have standing, a plaintiff "must be able to allege injury—that is, some invasion of the plaintiff's legally protected interests." Angelucci v. Century Supper Club, 41 Cal. 4th 160,
175, 158 P.3d 718, 726–27 (2007)
As it relates to standing, we disagree with defendants' analysis of prejudice from an illegal foreclosure. A foreclosed-upon borrower clearly meets the general standard for standing to sue by showing an invasion of his or her legally protected interests—the borrower has lost ownership to the home in an allegedly illegal trustee's sale.
Id. at 937 (citation omitted). In the underlined portions above, the Yvanova court clearly distinguishes between
prejudice as a standing issue and prejudice as an element to the tort of wrongful foreclosure. It is equally clear from the language above that a homeowner whose home was foreclosed upon by one with no right to do so had standing to challenge that foreclosure. It is irrelevant for purposes of standing whether the homeowner seeks relief in a
wrongful foreclosure action or a quiet title action.
Yvanova is not distinguishable and inapplicable, as Defendants argue, because it involved an attack on an
assignment, where here Trustee argues that the assignment is valid, and that the foreclosure is therefore void. While Yvanova and the other related cases involve a void assignment rather than only an allegedly void foreclosure, the
ultimate result is clearly to allow challenges to void foreclosures, not merely void assignments. See Glaski v. Bank of
Am., 218 Cal. App. 4th 1079, 1101 (2013) ("[W]here a plaintiff alleges that the entity lacked authority to foreclose on
the property, the foreclosure sale would be void."). There are many passages of Yvanova which make this clear:
In itself, the principle that only the entity currently entitled to enforce a debt may foreclose on the mortgage or deed of trust securing that debt is not, or
9:30 AM
at least should not be, controversial. It is a straightforward application of well-established commercial and real-property law: a party cannot foreclose on a mortgage unless it is the mortgagee (or its agent).
Yvanova, 62 Cal.4th at 928. "A foreclosure initiated by one with no authority to do so is wrongful for purposes of
such an action." Id. at 929. Clearly, Yvanova is not so absurdly narrow as to only allow standing to challenge void
assignments; it also grants the wronged party standing to challenge a void foreclosure.6
Prejudice as an Element of Wrongful Foreclosure
Trustee argued at the motion to dismiss stage and continues to argue that the first claim for relief seeks quiet title, not to set aside foreclosure7, and that prejudice is not a requirement of quiet title. Trustee’s Opposition to
Cross-Motion, 24:13-28. Quiet title actions are controlled by Cal. Civ. Proc. § 761.020. To state a claim for quiet title,
a complaint must include (1) the subject property's description, including both its legal description and its street address or common designation; (2) plaintiff's alleged title to the property; (3) the adverse claims against which a determination is sought; (4) the date as of which the determination is sought; and (5) a prayer for the determination of the title against the adverse claims. Metcalf v. Drexel Lending Grp., No. 08-CV-00731 W POR, 2008 WL 4748134,
at *5 (S.D. Cal. Oct. 29, 2008).
The Elkwood Defendants argue that, in effect, a quiet title claim based upon a void foreclosure must
necessarily be accompanied by a wrongful foreclosure action. Two legal issues are raised with that argument: 1) can
a quiet title action attacking an allegedly void foreclosure of real property succeed without an accompanying successful wrongful foreclosure tort, and 2) in the context of such a quiet title action, is prejudice beyond the fact of foreclosure required as a substantive requirement of the claim?
The court in Sciarratta v. U.S. Bank Nat'l Assn., relying in part on Yvanova, held that when a homeowner
is foreclosed on by one with no right to do so, that homeowner is sufficiently prejudiced to challenge the allegedly void assignment in a wrongful foreclosure action. 247 Cal. App. 4th 552, 565-66 (2016). The Elkwood Defendants cite Cardenas v. Caliber Home Loans, Inc., which explicitly rejects the Sciaratta court’s approach, finding that the
failure to allege any prejudice beyond the fact of foreclosure is fatal to an action to set aside a foreclosure based upon a void assignment. 281 F. Supp. 3d 862, 873 (N.D. Cal. 2017).8
To the extent the Elkwood Defendants argue that a quiet title action under these circumstances must be accompanied by a wrongful foreclosure action, the Court disagrees. First, the Elkwood Defendants’ have provided
9:30 AM
no authority to that effect. Second, this argument was never raised at the motion to dismiss stage, at which the court dismissed the action for wrongful foreclosure in part because it was duplicative of the quiet title action. The wrongful foreclosure action was dismissed on the belief that the prejudice issue would become irrelevant, as prejudice is not an element of quiet title. Third and most importantly, prejudice is not an element of a quiet title action.
The Abselets, in their opposition to the Cross Motion, argue that Massoud, in whose shoes Trustee stands,9 was prejudiced by 1) losing the opportunity to find funds to pay $782,000 for the "New Massoud Obligation" (the amount Massoud would owe if the Note were bifurcated, as the Elkwood Defendants’ seek); 2) if Massoud could not produce those funds, "the Abselets would have stepped in" to pay that amount in order to protect their interest, "relieving Massoud of substantial obligations," Abselet Opp. To Elkwood Motion, 19:7-20; and 3) Massoud could
have "paid off the Original Obligation through bidding at the foreclosure on the Chalette Home, and freed his home from the subject loan altogether," Id. at 22:20-23:4. These theories offered to satisfy the prejudice requirement, while
possibly reasonable in a vacuum, are confusing in light of the allegations of fraud and collusion advanced by both the Abselets and the Trustee.
Reformation of Contract
Reformation is raised as part of the Defendants cross motion for summary judgment and as a defense to the Trustee’s first cause of action. Reformation of contract under California law is governed by Cal. Civ. Code.
§ 3399:
When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.
Trustee argues that the equitable remedy of reformation cannot be used to defeat the rights of a trustee in a bankruptcy case because of the Trustee’s rights as a bona fide purchaser of real property pursuant to § 544(a)(3). The final clause of Cal. Civ. Code § 3399, "so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value," indicates that reformation is not available where the rights of a bona fide purchaser would be prejudiced.
Trustee’s Rights as Bona Fide Purchaser
9:30 AM
Trustee has argued that his standing as a hypothetical bona fide purchaser of real property
under the strong-arm powers of § 544(a)(3) precludes any action for reformation of contract by the Elkwood Defendants. Trustee Motion 19:16-24:4. The Elkwood Defendants respond that reformation is available despite
Trustee’s powers under § 544(a)(3) because Elkwood recorded a Trustee’s Deed upon Sale following the foreclosure of the Rexford Property. The purpose of § 544(a)(3) is to encourage perfection of interests in real property, such as mortgages. The question for the Court is whether a purchaser would have been on notice of Elkwood’s interest in the Rexford Property. A reformation action will be allowed only if a hypothetical bona fide purchaser would have had notice of Elkwood’s interest. See, e.g., In re Weisman, 5 F.3d 417, 420 (9th Cir. 1993); In re Probasco, 839 F.2d
1352, 1354 (9th Cir. 1988).
The rights of a bona fide purchaser under § 544(a)(3) are defined by state law. In re Tleel, 876 F.2d 769,
772 (9th Cir. 1989). In California, a purchaser of real estate for value without actual or constructive notice of a prior interest is given status as a bona fide purchaser. Id. Because § 544(a) specifies that a trustee has its strong-arm
powers "without respect to any knowledge," "actual notice cannot overcome the Trustee’s bona fide purchaser
status." Id. However, constructive or inquiry notice can preclude a Trustee’s status as a bona fide purchaser under
§ 544(a)(3). In re Harvey, 222 B.R. 888, 893 (B.A.P. 9th Cir. 1998). Constructive notice in the context of real estate
is provided by recordation of interests against the property. Cal. Civ. Code §§ 19, 1214.
Trustee acknowledges that a hypothetical purchaser viewing the real estate records for the Rexford Property on the petition date would have seen the Trustee’s Deed Upon Sale filed by Elkwood recorded March 6, 2015. Trustee RJN, Ex. G.10 Typically, this recorded document would provide constructive notice to any potential
purchaser of an adverse interest in the property. However, Trustee argues that the Trustee’s Deed Upon Sale is void. A recorded document, if void, should be treated "as a blank sheet of paper" and therefore does not provide constructive notice. City of Los Angeles v. Morgan, 105 Cal. App. 2d 726, 733 (1951) ("[I]t is obvious that invalid
documents are not entitled to be recorded, but if they are recorded, they do not give constructive notice."); See also
5 Collier on Bankruptcy ¶ 544.02 (16th 2018) ("Where the holder of a security interest has not taken the essential
steps to perfect that security interest, or where the recording is defective, the trustee does not have constructive notice.").
Rights under § 544(a)(3) may be cut off where any bona fide purchaser would have inquiry notice of a
9:30 AM
superior interest in the property. Courts have applied the standard of whether a "prudent purchaser," in light of reasonably available information, would have made an inquiry about the alleged interest. In re Weisman, 5 F.3d 417,
420 (9th Cir. 1993).
A "prudent purchaser" describes someone who is shrewd in the management of practical affairs and whose conduct is marked by wisdom, judiciousness, or circumspection. See Probasco, 839 F.2d at 1356. Such a purchaser will be charged with knowledge of 1) the nature of the property; 2) its current use; 3) the identities of the persons occupying it; 4) the relationship among them; and, 5) the relationship between those in possession and the person whose purported interest in the property the purchaser intended to acquire. Id. Clear and open possession of
real property by someone other than the party on title constitutes constructive notice to subsequent purchasers, requiring such purchasers to inquire into the possessor’s interest. In re Probasco, 839 F.2d 1352, 1354 (9th Cir.
1988). By the same token, "there is no duty to inquire upon a subsequent purchaser regarding any unknown claims or interest by a person in possession of real property where the occupant’s possession is consistent with the record title." Weisman, 5 F.3d at 421.
The court in Probasco decided that is was "almost inconceivable" that a reasonably prudent
person, "knowing that Parcels 2 and 3 were jointly owned, and seeing a perimeter fence around all three parcels, no fence between the parcels, the staking of all three parcels, and roads traversing the entire property, would not inquire whether a one-half owner of Parcels 2 and 3 had an interest in Parcel 1." Probasco, 839 F.2d at 1356.
Therefore, the court held that the debtor-in-possession, as a hypothetical bona fide purchaser under § 544(a)(3), had inquiry notice of a superior interest in the real property, Id. at 1357, and the court further required that the deed be
reformed to include all three properties, Id. at 1356. Notably, the success of the reformation action depended upon
the trustee having constructive or inquiry notice of the allegedly unperfected interest. Similarly, the court in Weisman
held that a reasonably prudent purchaser would have inquired whether debtor had executed an unrecorded deed conveying her interest in property currently occupied by her ex-husband and his new wife. Weisman, 5 F.3d at 422.
The court determined that, realistically, people are not willing to allow their ex-husband and his new wife to reside in property still jointly owned by the divorced couple. The Weisman court therefore found that the bankruptcy trustee
did not have a superior interest to the unrecorded deed as a under § 544(a)(3) because the trustee was on inquiry notice due to the observable facts surrounding the occupancy of the home. See also In re Sale Guar. Corp., 220
B.R. 660, 666 (B.A.P. 9th Cir. 1998), aff'd, 199 F.3d 1375 (9th Cir. 2000) (Trustee’s rights as BFP cut off by
9:30 AM
constructive knowledge that property was possessed by parties other than Debtor because a "prudent purchaser" is charged with the knowledge of: (1) the nature of the property; (2) the current use of the property; (3) the identity of the person in possession of the property; and (4) the relationship between the person in possession and the person whose interest the purchaser intends to acquire. (citing In re Weisman,)).
Here, reasonable inspection of the Rexford home would not have put a hypothetical bona fide
purchaser on inquiry notice of changed ownership of the property due to the highly unusual circumstance of
Elkwood, following an alleged foreclosure, allowing Massoud to continue residing at the property. An individual purchasing the home from Massoud on the date of the petition, upon reviewing title, would see that Massoud owned the property subject to certain liens.
Lastly, while a hypothetical bona fide purchaser would realistically see the Trustee’s Deed Upon Sale in the property records, if that document is void, it would not provide inquiry notice of Elkwood’s interest.11
Cal. Civ. Code § 1640
Defendants argue that, if the Fieldbrook Assignment is interpreted as assigning the entire PWB Note, any language that suggests that the entire PWB Note was assigned must be disregarded under Cal. Civ. Code
§ 1640 and the contract should be reformed to reflect Defendants’ intent. Defendants’ Opp., 17:2-21:15. The
language of the statute is as follows:
When, through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disregarded. Cal. Civ. Code § 1640. This provision is one of several rules for the construction of contractual language in California’s civil code. Payne v.
Commercial Nat. Bank of Los Angeles, 177 Cal. 68, 72 (1917). In the case of mutual mistake, the contract may be
reformed to conform to the intent of the parties. Thrifty Payless, Inc. v. The Americana at Brand, LLC, 218 Cal. App.
4th 1230, 1243 (2013). Parol evidence may be considered in making a determination of the true intentions of the contracting parties. Id. "Only gross negligence or ‘preposterous or irrational’ conduct will bar mutual mistake. . .
Mistake must be pleaded with some particularity so that there is ‘a clear recitation of facts showing how, when and why the mistake occurred.’" Id., citing George v. Auto. Club of S. California, 201 Cal. App. 4th 1112, 1132 (2011).
The intent of the Elkwood Defendants at the time of the Fieldbrook Assignment is disputed, and therefore summary judgment cannot be entered in their favor under this theory. The Court agrees with the Elkwood Defendants that the remedy for mutual mistake is reformation of the agreement under Cal. Civ. Code § 3399, and
9:30 AM
that relief in a reformation action may go beyond merely disregarding certain phrases. Trustee raises legitimate concerns that the Elkwood Defendants have not met the requirement articulated in Thrifty and George of clearly
reciting facts showing how, when, and why the mistake occurred. Because summary judgment cannot be granted on the reformation action, the Court reserves these issues for resolution at a later time.
Because there is a disputed issue of material fact as to the intent of the parties to the contract, the Court cannot grant summary judgment in favor of either party on the issue of reformation. The Court does not need to reach the issue of whether the Trustee is a bona fide purchaser until the reformation issue is resolved at a subsequent trial.
Partial summary judgment is granted in Trustee’s favor that the Fieldbrook Assignment is not reasonably susceptible to a reading that the note was bifurcated. The Fieldbrook Assignment must be read as providing that the entire PWB Note was transferred along with the Chalette DoT. The Rexford DoT was then also transferred as a matter of law. With regards to the reformation action, a genuine dispute of material fact exists as to the intention of the parties to the Fieldbrook assignment. Further, the factual issues of the alleged fraud may inform whether the equitable remedy of reformation is appropriate under these circumstances. The Trustee may stand in the shoes of a bona fide purchaser, but that issue is not reached unless the requirements for reformation are proven. While the Court holds that the foreclosure appears to be void, that determination is still subject to the affirmative defense of the reformation action. The Court rejects the Elkwood Defendants’ standing argument and finds that Yvanova confers
standing to the Trustee to bring this action. The Trustee’s Motion and the Elkwood Defendants’ Motion are otherwise denied, except as detailed above.
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By
9:30 AM
Daniel J McCarthy
Soda Partners, LLC Represented By Ronald N Richards
Quality Loan Service Pro Se
Chase Manhattan Mortgage Co. Pro Se
Howard Abselet Represented By Henry S David
Israel Abselet Represented By Henry S David
Citivest financial Services, Inc. Pro Se
State Street Bank and Trust Co. Pro Se DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
QUALITY LOAN SERVICE Pro Se
Movant(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
DAVID K GOTTLIEB Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
9:30 AM
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
Relief (Quiet Title)
fr. 9/18/18; 10/10/2018; 11/15/18
Docket 102
NONE LISTED -
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Soda Partners, LLC Represented By Ronald N Richards
Quality Loan Service Pro Se
Chase Manhattan Mortgage Co. Pro Se
Howard Abselet Represented By Henry S David
Israel Abselet Represented By Henry S David
Citivest financial Services, Inc. Pro Se
9:30 AM
State Street Bank and Trust Co. Pro Se
DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
QUALITY LOAN SERVICE Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
declaratory relief (two counts)
avoid foreclosure sales (two counts)
conversion
money had and received
unjust enrichment
conspiracy to chill bidding fr. 12/12/18
Docket 151
NONE LISTED -
9:30 AM
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Soda Partners, LLC Represented By Ronald N Richards
Quality Loan Service Pro Se
Chase Manhattan Mortgage Co. Pro Se
Howard Abselet Represented By Henry S David
Israel Abselet Represented By Henry S David
Citivest financial Services, Inc. Pro Se
State Street Bank and Trust Co. Pro Se DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
QUALITY LOAN SERVICE Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards
9:30 AM
John W Lucas
9:30 AM
Docket 567
Service proper. No opposition filed. Having reviewed the Third Interim Application, the Court finds that the fees and costs are reasonable, necessary and are approved as requested.
APPEARANCES WAIVED ON 12/12/18.
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong Lindsey L Smith
9:30 AM
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
fr. 1/31/13, 3/21/13, 5/23/13, 8/29/13, 11/7/13, 12/5/13, 4/24/14, 6/5/14, 11/6/14, 3/19/15,
6/4/15, 7/22/15, 8/12/15, 9/9/15, 2/24/16,
5/25/16, 7/27/16, 9/28/16, 12/14/16; 2/8/17,
4/26/17,7/11/17; 9/6/17, 11/1/17, 11/30/17,
1/9/18; 5/1/18, 6/21/18, 8/30/18; 9/20/18,
9/21/18, 10/31/18
Docket 1
Do the parties wish to continue this to the 1/23 Chapter 11 status conference so that all remaining issues can be discussed together?
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz
Defendant(s):
Process America, Inc. Pro Se
Kimberly S Ricketts Pro Se
Craig Rickard Pro Se
KEITH PHILLIPS Pro Se
Gwendolyn Phillips Pro Se
C2K Group, LLC Pro Se
9:30 AM
Applied Funding, Inc. Pro Se
KBS Dreams, Inc. Pro Se
Like Zebra, LLC Pro Se
Stripe Entertainment Group, Inc. Pro Se
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
US Trustee(s):
United States Trustee (SV) Pro Se
9:30 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
fr. 10/11/18, 10/31/18
Docket 171
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Lei Lei Wang Ekvall Kyra E Andrassy
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
9:30 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Docket 157
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
Lei Lei Wang Ekvall Kyra E Andrassy
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
9:30 AM
Adv#: 1:14-01154 Process America, Inc., a Nevada corporation v. Cynergy Holdings, LLC
Disallowance of Claim [ 11 U.S.C. section 502}
Offset and Recoupment [11 U.S.C. section 553]
Accounting
Disallowance of Intrest of Claim [11U.S.C.502]
Voiding validity and extent of lien [11U.S.C. section503,F.R.B.P.7002(2)] 6)Turnover of property of the estate (Reserve Account)[11U.S.C. section 542]
Turnover of property of the estate (Residuals) [11 U.S.C. section 542]
Subordination of claim and lien [11 U.S.C. section 510]; and
Declaratory relief
fr. 11/5/14, 12/10/14; 12/18/14; 3/18/15, 5/27/15, 5/1/18 722/15, 9/9/15; 2/24/16, 5/25/16, 7/27/16, 9/28/16;
12/14/16, 2/8/17, 4/26/17, 7/11/17, 9/6/17, 11/1/17; 11/30/17,
1/9/18, 6/21/18, 8/30/18; 9/20/18, 9/21/18, 10/31/18
Docket 76
NONE LISTED -
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-Patrick M Fritz Beth Ann R Young Jeffrey S Kwong
Defendant(s):
Cynergy Holdings, LLC Represented By Robert S Marticello
9:30 AM
Plaintiff(s):
Process America, Inc., a Nevada Represented By
Beth Ann R Young John-Patrick M Fritz
9:30 AM
Period: 10/20/2015 to 6/30/2018, Fee: $216,902.00,
Expenses: $8,497.12.
Docket 378
Service proper. No opposition filed. Having reviewed the First Interim Application for Fees and Expenses (doc. 378) and the Stipulation Between US Trustee and the Law Office of Carolyn Dye to a Reduction in Fees Requested in the First Interim Application (the "Stipulation," doc. 386), the Court finds that the fees and costs provided for in the Stipulation are reasonable and are approved.
APPEARANCES WAIVED ON DECEMBER 12, 2018.
Debtor(s):
Picture Car Warehouse Inc Represented By Carolyn A Dye
9:30 AM
Docket 212
The Court approved Debtor’s Second Amended Disclosure Statement following a hearing on October 10, 2018. As noted in the tentative ruling for that hearing, U.S. Bank has elected to be treated as fully secured under § 1111(b)(2) with respect to its claim against the property located at 3037 W 12th St., Los Angeles, CA 90006 (the "12th St. Property"). U.S. Bank and Wells Fargo Bank, N.A. filed objections to the confirmation of the plan.
U.S. Bank’s 1111(b) election
Where a creditor makes an § 1111(b) election, "the present value of the electing creditor's stream of payments need only equal the present value of the collateral, which is the same amount that must be received by the nonelecting creditor, but the sum of the payments must be in an amount equal at least the creditor's total claim." Cal. V. Weinstein (In re Weinstein), 227 B.R. 284, 294 (B.A.P. 9th Cir. 1998).
There is no dispute that the second part of the test, deferred payments in at least the amount of the claim, is satisfied by Debtor’s plan. The total amount deferred payments proposed by the plan is $972,000 (360*$2,700). This exceeds both the claim amount ($937,351.29 per amended claim #4-2) and the current amount stated in U.S. Bank’s opposition to confirmation ($899,106.36).
The primary dispute is whether the Debtor’s plan satisfies that "present value" requirement. In clarifying the "present value" requirement, the Weinstein court said "[a] stream of payments which will pay an obligation with an appropriate rate of interest over time is equivalent to the present value of that obligation." Id. The Court previously valued the 12th St. Property at $625,000. Debtor contends that the present value of U.S. Bank’s claim is $555,000, while creditor asserts that the present value is $625,000, or perhaps
9:30 AM
higher. The dispute arises from the effect of post-petition, pre-confirmation rents in the amount of approximately $70,000 under relevant Ninth Circuit authority. Compare In re Weinstein, 227 B.R. at 294 (reducing "present value" by amount of post-petition, pre- confirmation payments) with In re Ambanc La Mesa Ltd. Partnership, 115 F.3d 650, 654 (9th Cir. 1997), cert. denied, 522 U.S. 1110, 118 S.Ct. 1039 (1998) (finding that the bankruptcy Court erred in failing to add to present value the unpaid post-petition payments). This issue was addressed by the court in In re Grogan, No. BR 11-65409-FRA11, 2013 WL 4854313, at * 3 (Bankr. D. Or. Sept. 10, 2013). The Grogan court explained that the difference between the Weinstein and Ambanc cases was that Weinstein involved cash that was unencumbered—that is, it was neither rent or other cash collateral. In re Grogan, 2013 WL 4854313, at *3-4. The rule explained by Grogan is that the present value of a claim is not reduced when the claimant receives payments in funds that would otherwise be cash collateral, but is reduced by the payment of funds that are not otherwise collateral of the claimant. U.S. Bank therefore correctly argues that payments made from cash collateral funds are essentially "a wash." Id. In re Arden Properties, Inc., 248 B.R. 164, 170 (Bankr. D. Ariz. 2000).
Here, the more than $70,000 paid to U.S. Bank was cash collateral. Therefore, post- petition pre-confirmation payments of those funds does not reduce the present value of
U.S. Bank’s claim. The present value is the property’s fair market value, previously determined to be $625,000 by the Court.
U.S. Bank is inconsistent in what it asserts is the proper treatment of its claim. U.S. Bank argues that under Till v. SCS Credit Corp., 541 U.S. 465 (2004), the appropriate rate of interest would be 6.5%. It then asserts that the present value of its claim requires payments of $3,950.43 per month over 30 years for a total claim payout of $1,422,154.80. However, it then goes on to conclude that the payments should be $3,962.48 over 30 years with an interest rate of 3.35%. This final analysis is odd, as it improperly values the full amount of the claim ($899,106.36) as the fair market value of the property. The Till rate is not the appropriate interest rate to use under § 1111(b), but it may serve as a useful guide.
The Debtor’s Second Amended Plan proposes to make monthly payments of $2,700 to U.S. Bank for 30 years, which, at the appropriate present value of $625,000, results in an
9:30 AM
interest rate of 3.191% and a total payout of $972,000. The Court finds that the proposed treatment in the Debtor’s Second Amended Plan is not fair and equitable with respect to
U.S. Bank’s claim. An interest rate of 4.500% would be fair and equitable under these circumstances. The Court recognizes the default risk presented by Debtor, the history of defaults, and the fact that this is an investment property; however, weighing in favor of a lower interest rate is the fact that U.S. Bank previously made errors with respect to Debtor’s loan which has taken some time to address, as well as the nature of the protections provided by § 1111(b). The basic compromise of a § 1111(b) election is that the creditor risks a lesser interest rate in favor of being treated as fully secured for purposes of the plan, 7 Collier on Bankruptcy 16th ed. ¶ 1111.03[5][b] ("The solution lies in. . . a note bearing a below-market rate of interest"), thereby protecting the creditor from a "quick sale of its collateral" if it believes the property is undervalued or that the market may soon change. Weinstein, 227 B.R. at n. 11-12. A 4.500% interest rate with a fair market value of $625,000 over 30 years results in equal monthly payments of approximately $3,166.78 for a total payout of $1,140,040.80 under the plan. The Court notes that these payments represent only principal and interest, and do not include property taxes or insurance. The plan may go forward if this amount is included, assuming feasibility is found.
Feasibility
To confirm Debtor’s plan, the Court must find that "confirmation is not likely to be followed by liquidation or the need for further financial reorganization of the debtor." 11
U.S.C. § 1129(a)(11). U.S. Bank objects, arguing that the plan is not feasible as proposed. First, U.S. Bank points out that the plan calls for $10,650 in administrative claims to be paid on the confirmation date, but that Debtor only has a total of $473.42 in her DIP accounts according the September Monthly Operating Report. U.S. Bank also argues that Debtor’s projected expenses are not substantiated, including the proposed $2,700 payment to U.S Bank for the mortgage on the 12th St. Property. U.S. Bank points out that Debtor’s average monthly expenses for the past 6 months have been almost $3,000 higher than the projected expenses under the plan; however, that seems to include ongoing payments to Mr. Cooper (mortgage servicer for U.S. Bank) and to Wells Fargo, which would be reduced under the plan.
9:30 AM
U.S. Bank also argues that, while the plan asserts that the 12th St. Property is generating
$5,790 in rents, recent Monthly Operating Reports reveal the following rental income:
April: $5,870 May: $4,500 June: $4,640 July: $4,895 August: $4,500
September: $4,800
Lastly, U.S. Bank argues that if the Court determines a more fair and equitable payment than the $2,700 payment proposed by the plan, the plan will become infeasible. Because the Court has determined that a 4.5% interest rate with monthly payments of approximately $3,166.78 would be fair and equitable, the Court will need to see whether the new payments, including taxes and insurance, are feasible. The plan currently projects
$11,390 in gross monthly income, compared with $10,400 in expenses, so there may be room for Debtor to make the plan work.
Debtor will need to explain at the confirmation hearing why the rental income at the 12th St. Property has been lower than expected, and whether that is likely to increase in the future. Debtor will also need to explain how it will make the higher payments on the 12th St. Property. Lastly, Debtor will need to explain what funds will be available at confirmation to pay administrative fees or if something has been worked out.
Rate of Interest (Wells Fargo Claim)
Wells Fargo, which holds a secured interest in Debtor’s property located at 2339 Quail Glen Dr., Chino Hills, CA 91709 (the "Chino Hills Property"), filed an objection to Debtor’s Second Amended Plan. Wells Fargo argues that Debtor has not properly calculated the interest rate under Till. The current prime rate is 5.25%, and the proposed rate under the plan is 5.75%. Wells Fargo argues that this rate is too low and does not properly take into account the Debtor’s default risk. Wells Fargo argues that, due to Debtor’s history of defaults, expenses, and the fact that the Chino Hills Property is a rental property, the Court should increase the interest rate 1%-2% above prime. The Court agrees that 5.75% is an
9:30 AM
insufficient adjustment for the default risk presented by the Debtor. The Court finds that 1% is an appropriate adjustment in this case, for an interest rate of 6.25% on the Chino Hills Property.
Wells Fargo also objects on the grounds that Debtor’s plan fails to address the payment of certain escrow deficiencies on the Chino Hills Property. Wells Fargo states that it is currently in the process of obtaining the amount of the escrow deficiencies and will provide the Court with that information at the confirmation hearing. Debtor will need to address these escrow deficiencies at the time of confirmation.
APPEARANCE REQUIRED
Debtor(s):
Farideh Warda Represented By Todd L Turoci
9:30 AM
Docket 1
NONE LISTED -
Debtor(s):
Farideh Warda Represented By Todd L Turoci
9:30 AM
fr. 10/3/18; 10/10/18
Docket 259
Previous Tentative Petition Date: 7/7/16 Chapter: 11
Service: Improper. Opposition filed.
Property: 1620 Maclaren St., La Puente, CA 91744 Property Value: $ 225,000 (per schedules)
Amount Owed: $ 343,565.30 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: Unknown
Movant requests relief under 11 U.S.C. 362(d)(1) and (d)(2). Specific relief is requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); and 12 (Debtor is borrower for purposes of C.C.C. § 2920.5(c)(2) (C)).
The accounting attached to the Motion as Exhibit 5 indicates that no payments have been made on this mortgage since July 24, 2017. The accounting also indicates that the amount in the suspense account has dropped to only $469.61.
In his opposition to the Motion, Debtor indicates that the parties were previously working on the terms of a plan treatment stipulation and, apparently, adequate protection payments. Debtor had previously been making adequate protection payments of $937 each month, but Movant was not cashing the checks. Debtor argues that Movant has not shown that it is not adequately protection such that cause for relief exists under § 362(d)(1) because Debtor is willing to pay adequate protection payments of "$1,349.99 as agreed upon, at least orally, between Debtor
9:30 AM
and Movant." Opposition, 3:23-24. Furthermore, Debtor argues that Movant provides no grounds for cause under (d)(1) other than lack of adequate protection and does not explain how it is not adequately protected.
Debtor does not dispute that the property lacks equity for purposes of relief from stay under § 362(d)(2); however, Debtor argues that the property is necessary for an effective reorganization. Debtor has the burden of proof on the issue of whether the property is necessary for an effective reorganization. § 362(g)(2). In order to establish whether the property is necessary to an effective reorganization, the Debtor must show that there is "a reasonable possibility of a successful reorganization within a reasonable time." United Sav. Ass'n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 376 (1988).
Debtor correctly argues that Movant did not serve the Motion on the 20 largest unsecured creditors as required by the Local Rules. Debtor does not cite which Local Bankruptcy Rule requires service of a relief from stay motion upon the 20 largest unsecured creditors. LBR 4001-1(c)(1)(C) states that relief from stay motions that are not for unlawful detainer or for (d)(4) must be served upon: i) Debtor and Debtor’s attorney; ii) the trustee, iii) any codebtor, iv) the holder of any lien or encumbrance against the property, and v) any other party entitled to notice under FRBP 4001. FRBP 4001(a)(1) requires that a relief from stay motion in a chapter 11 case where no creditors committee has been appointed must be served upon the list of 20 largest unsecured creditors described in FRBP 1007(d).
Because the motion has been improperly served, the Court will not grant the Motion until all required parties have properly received notice under the rules. Debtor’s Second Amended Disclosure Statement was conditionally approved by the Court at the hearing on September 12, though the Court notes that no order was lodged in connection with that disclosure statement. Debtor also states that a hearing on confirmation of the Plan is scheduled for December 12, but because the disclosure statement order was never lodged and never entered, the Plan Confirmation hearing date was never set. Debtor should remedy these issues immediately.
The Court is inclined to continue this hearing to December 12, 2018 at 9:30 a.m. That will allow time for Movant to re-notice the Motion in accordance with the rules. More importantly, whether Debtor can confirm a plan on December 12 will indicate whether there is a "reasonable possibility of a successful reorganization within a reasonable time." This case has been pending for more than two years, and relief from stay will likely be granted under § 362(d)(2) if Debtor is unable to confirm the second amended plan.
APPEARANCE REQUIRED
9:30 AM
Debtor(s):
Samuel James Esworthy Represented By
M. Jonathan Hayes
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
9:30 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
Docket 294
APPEARANCE REQUIRED
Debtor(s):
Samuel James Esworthy Represented By
M. Jonathan Hayes
9:30 AM
Docket 267
APPEARANCE REQUIRED
Class 5 US Bank (holder of DoT on Ben Ave. Property) objects:
Proof of Claim #5 filed 9/21/16: $302,035.95, with $38,630.35 in arrears
Impaired claim treated under Class 5: paid in full over 30 years at 5.25%
Monthly payment of $1,621
Objection: No provision for maintenance of hazard insurance or for ongoing timely payment of property taxes. DEBTOR’S RESPONSE IS ADEQUATE AND THIS WILL BE COVERED. DEBTOR IS IN DEFAULT UNDER THE PLAN IF THESE MATTERS ARE NOT PROVIDED FOR
Objection: Monthly payment provided is incorrect; correct payment under the terms proposed should be $1,667.85 - DEBTOR SHOULD CORRECT UNLESS DISAGREES
Objection: Default provision provided for in the Class 5 treatment of this claim and the default provision in Section F.4 of the Plan contradict:
Class 5 in the Plan provides: If there should be a default, Nationstar shall give the Debtor notice of the default in writing with an email copy to counsel and allow ten (10) days for the Debtor to cure the default. If the default is not cured, Nationstar shall have relief from the automatic stay without any further court proceeding required and may proceed with its rights under the agreements and state law.
Section F.4 of the Plan provides: As those claimants whose claims are not agreed upon by the parties (i.e., memorialized in a plan treatment stipulation), if Debtor fails to make any payment required under the Plan, or to perform any other obligation required under the Plan for more than twenty-one (21) days after the time specified in the Plan, the affected creditor may serve upon Debtor and Debtor’s attorney (if any) a written notice of default. Debtor is in material default under the Plan if he fails within twenty-one (21) days of the service of such notice of default, plus
9:30 AM
three (3) additional days if served by mail, either; (i) to cure the default or
(ii) to obtain from the Court an extension of time to cure the default or a determination that no default occurred.
* Creditor requests that any order confirming the plan specify that the default remedies provided under Class 5 control over the default remedies contained in Section F.4 of the Plan. DEFAULT PROVISIONS OF SECTION F.4 OF PLAN CONTROLS AND SHOULD BE SPECIFIED IN CONFIRMATION ORDER TO CONTROL
Class 4 US Bank (holder of DoT on Millbury Ave. Property) objects:
Proof of Claim #7 filed 9/23/16: $283,669.05, with $44,038.54 in arrears
Impaired claim treated under Class 4: paid in full over 30 years at 5%
Monthly payment of $1,523
Objection: Lack of good faith in proposing the Plan because Debtor made only two adequate protection payments on account of this secured claim since the date of filing on July 20, 2016. While the Debtor proposes to pay the full amount of the claim as provided for in the Proof of Claim, because of the lack of adequate protection payments during the pendency of this case, the claim has increased since then. Creditor argues that it is "patently unfair" to allow Debtor to continue to use the Millbury Property and collect rent, without making any payments to the secured creditor and to ask it to carry the risk of no payments during the two years before confirmation is unreasonable. WHY HAS NO MOTION BEEN BROUGHT EARLIER?
Objection: No provision for maintenance of hazard insurance or for ongoing timely payment of property taxes. DEBTOR’S RESPONSE IS ADEQUATE AND THIS WILL BE COVERED. DEBTOR IS IN DEFAULT UNDER THE PLAN IF THESE MATTERS ARE NOT PROVIDED FOR
Objection: Plan not fair and equitable because Debtor does not offer Secured Creditor the "indubitable equivalent" as the Plan proposes to pay Secured Creditor less than the full current payoff of the amount due and fails to make interim payments on the ongoing and prepetition arrears.
In order to determine whether Secured Creditor is receiving the "indubitable equivalent" of its claim on plan confirmation, US Bank argues that the Property must be valued at the time of confirmation. While Debtor states in his plan that the property is valued at $308,000, US
9:30 AM
Bank's valuation as of May 2018 is $420,000.
US Bank contends that the Plan must be denied as a matter of law because it cannot provide for payment of less than full debt, nor can it
Debtor(s):
state the value of the Property is $308,000.00 based on an appraisal that is almost two years old.
Section 1129 (b)(2)(A)(iii) offers the debtor the ability to show that the plan is fair and equitable by showing that the secured creditor will realize the indubitable equivalent of its secured claims. A debtor wishing to use the secured creditor's cash collateral post-confirmation and who seeks to cramdown the plan must show that the creditor is receiving the indubitable equivalent. The Ninth Circuit requires two showings when a debtor wishes to cramdown a plan against secured creditors by invoking § 1129(b)(2)(A)(iii): that the plan "compensate for present value" and "insure the safety of the principal." Crocker Nat'l Bank v. Am. Mariner Indus., Inc. (In re Am. Mariner Indus., Inc.), 734 F.2d 426, 433 (9th Cir.1984), abrogated on other grounds by United Sav. Assn v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 376 (1988). Where the plan changes a secured creditor's rights in the collateral, providing the indubitable equivalent requires that the plan provide substitute collateral or other assurances that the creditor's risk is not increased. Arnold & Baker Farms v. United States (In re Arnold & Baker Farms), 85 F.3d 1415, 1422 (9th Cir.1996). This principle has been well recognized in the context of using cash collateral post-confirmation to fund a Chapter 11 reorganization. See e.g., In re Griswold Bldg., LLC, 420 B.R. 666, 705–06 (Bankr.E.D.Mich.2009) ( ..."Debtors propose to use the Lender's cash collateral to pay claims that have a lower priority under the Bankruptcy Code than the claims of the Lender, without providing any replacement collateral for the Lender. It is hard to see how that is fair and equitable."). DEBTOR HAS NOT ADEQUATELY RESPONDED TO THIS
Objection: There is no provision for default provided for in the Class 4 treatment of this claim and the default provision in Section F.4 of the Plan is unclear.
DEFAULT PROVISIONS OF SECTION F.4 OF PLAN CONTROL AND SHOULD BE SPECIFIED IN CONFIRMATION ORDER TO CONTROL
Samuel James Esworthy Represented By
9:30 AM
M. Jonathan Hayes
9:30 AM
fr. 9/1/16, 2/9/17, 3/22/17, 4/26/17, 7/5/17, 8/16/17; 9/27/17, 11/29/17, 2/14/18, 4/25/18,
6/13/18, 7/18/18, 9/12/18
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Samuel James Esworthy Represented By
M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes
9:30 AM
Docket 154
On September 12, 2018, the Court conditionally approved Debtor's Second Amended Disclosure Statement, which had been filed two days before the hearing. At the hearing, the condition that was set on approval of the disclosure was that Debtor had to file an amended Plan that reflected the changes that had been made to the 2nd amended disclosure statement: (1) the distribution to unsecured creditors is to be 0.0131%; and (2) that Debtor is obligated to pay U.S. Trustee quarterly fees post-confirmation and to submit post-confirmation quarterly reports.
To date, no amended Plan has been filed and Debtor also did not file the required confirmation brief. The required Confirmation Scheduling Order was not lodged (see S/C page, #9), and there is no evidence that the solicitation package was served.
Debtor(s):
Anzhey Barantsevich Represented By Stephen L Burton
9:30 AM
fr. 9/8/16; 1/19/17; 1/26/17, 7/12/17; 9/27/17, 11/29/17, 2/28/18, 5/2/18, 5/23/18, 7/18/18,
9/12/18
Docket 1
- NONE LISTED -
Debtor(s):
Anzhey Barantsevich Represented By Stephen L Burton
9:30 AM
fr. 11/3/16; 3/30/17; 3/29/17, 6/21/17; 8/23/17, 5/2/18, 9/12/18
Docket 1
- NONE LISTED -
Debtor(s):
Ireland Needlecraft, Inc. Represented By Steven R Fox Steven R Fox
9:30 AM
fr. 3/22/17, 9/13/17; 12/6/17, 3/21/18, 8/15/18, 8/29/18
Docket 1
APPEARANCE REQUIRED
Debtor(s):
Tours Incorporated, Inc. Represented By Mark E Brenner
9:30 AM
fr. 11/1/17, 10/25/17, 1/17/18, 2/28/18, 5/2/18, 5/30/18, 7/18/18, 8/29/18
Docket 1
APPEARANCE REQUIRED
Debtor(s):
M.N.E. Funding, Inc. Represented By
Mark E Goodfriend
9:30 AM
Docket 89
Service proper. No opposition filed. Having reviewed the First and Final Application for Compensation, the Court finds that the fees and costs are reasonable, necessary and are approved as requested.
APPEARANCES WAIVED ON 12/12/18.
Debtor(s):
Eduardo Antonio Canas Represented By Onyinye N Anyama
9:30 AM
Docket 1
APPEARANCE REQUIRED
Debtor should provide a specific date by which amended disclosure statement and plan can be filed so new hearing date can be set. The debtor needs to move this case and be ready to actually have approval on a specific plan by the next hearing
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
9:30 AM
Docket 1
- NONE LISTED -
Debtor(s):
Barton Wayne Fishback Represented By Matthew Abbasi
Joint Debtor(s):
Carol Fishback Represented By Matthew Abbasi
9:30 AM
fr. 10/24/18
Docket 56
APPEARANCE REQUIRED
Debtor(s):
Happy Jump, Inc. Represented By Mark T Young
9:30 AM
Docket 1
APPEARANCE REQUIRED
The court agrees that mediation is appropriate. The parties should choose a mediator from the panel and propose a deadline by which they will meet. The court will then continue this s/c to a date after the mediation completion.
Debtor(s):
Happy Jump, Inc. Represented By Mark T Young
9:30 AM
Docket 1
Debtor has not brought motion to employ appraiser as promised in status report. The valuations need to be completed quickly and case moved.
Proposed claim bar date:2/22/19- debtor should serve notice of bar date by 12/22
Proposed disclosure statement filing deadline: 3/15/19 Proposed disclosure statement hearing: 5/1/19 at 10 am
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Debtor(s):
Bagrat Ogannes Represented By
Crystle Jane Lindsey
9:30 AM
Docket 28
Proposed claim bar date: 2/22/19 - serve order with claims bar date by 12/22 Proposed disclosure statement filing deadline: 3/15/19
Proposed disclosure statement hearing: 5/22/19 at 10 am File valuation motions ASAP
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Debtor(s):
Ofelia Margarita Macias Represented By Lionel E Giron
9:30 AM
Docket 17
Debtor(s):
APPEARANCE REQUIRED
Catherine J. Watkins Represented By Michael R Totaro
9:30 AM
Docket 16
Proposed claim bar date: 2/22/19 - serve order with claims bar date by 12/22 Proposed disclosure statement filing deadline: 3/15/19
Proposed disclosure statement hearing: 5/22/19 at 10 am
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Debtor(s):
Michael Vara Represented By Onyinye N Anyama
10:00 AM
fr. 1/17/13, 2/21/13, 5/30/13, 10/10/13, 3/27/14, 10/2/14, 4/23/15, 4/23/15; 12/3/15, 2/4/16, 4/7/16;
6/9/16, 8/4/16, 11/10/16; 1/26/17, 3/1/17; 3/22/17,
4/26/17, 6/14/17, 6/20/17; 7/6/17; 8/1/17; 8/16/17,
8/17/17, 9/13/17; 10/11/17, 12/14/17, 2/7/18; 3/7/18,
5/1/18, 6/21/18, 7/18/18
Docket 210
- NONE LISTED -
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L James Lindsey L Smith
Movant(s):
JPMorgan Chase Bank, National Represented By
Christopher M McDermott
10:00 AM
fr. 9/29/10, 2/10/11, 5/26/11, 11/10/11, 3/15/12, 3/29/12, 11/28/12, 2/7/13,
2/21/13, 5/30/13, 10/10/13,
3/27/14, 10/2/14, 4/9/15; 4/23/15; 12/3/15
4/7/16, 4/7/16, 6/9/16, 8/4/16, 11/10/16; 1/26/17,
3/1/17; 3/22/17, 4/26/17, 6/14/17; 7/6/17; 8/1/17; 8/16/17,
8/17/17, 9/13/17; 10/11/17, 12/13/17, 2/7/18; 3/7/18,
5/1/18, 6/21/18, 7/18/18
Docket 1
- NONE LISTED -
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L Rodriguez
11:00 AM
Docket 30
Petition Date: 09/13/2018 Converted 7 13: 10/24/18
Service: Proper. No opposition filed. Property: 2016 Ford Explorer Property Value: not listed (LEASE)
Amount Owed: $29,607.39 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: $ 984.25 (2 payments of $493.25) Last payment was received on 09/07/2018
Movant indicates that Debtor's proposed ch.13 plan provides for rejection of this lease.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Alona Orit Athouel Represented By
Eric Bensamochan
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 31
Petition Date: 12/18/2015
Chapter 13 Plan confirmed on 03/31/2016 Service: Proper. Opposition filed.
Property: 11052 Reseda Blvd, Northridge, CA 91326 Property Value: $568,000 (per debtor’s schedules) Amount Owed: $354,722.20 (per RFS motion) Equity Cushion: 30.0%
Equity: $213,277.80
Post-Confirmation Delinquency: $2,354.46 (1 payment of $1,131.59; 1 payment of 1,193.58; post-petition advances or other charges due but unpaid:
$975; less suspense account or partial paid balance: $945.71)
Movant alleges cause for relief from stay under 11 U.S.C. 362(d)(1) , with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that Debtor has become current on all post-petition arrearages as of date 11/20/2018.
APPEARANCE REQUIRED.
Debtor(s):
Audrey M Whittinhall Represented By Michael D Luppi
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 12/5/18
Docket 50
Petition Date: 3/26/18
Chapter 13 plan confirmed: 8/14/18 Service: Proper. Opposition filed.
Property: 15050 Sherman Way #116, Van Nuys, CA 91405
Property Value: $295,000 (per Order Granting Debtor's Motion to Avoid Lien, doc. 39)
Amount Owed: $2,702 Equity Cushion: unk. Equity: unk.
Post-confirmation Delinquency: $2,702 (3 payments of $449; $105 for 7 late charges ($15 each))
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that Debtor is delinquent on their required post-confirmation payments to the HOA.
In opposition, Debtor argues that she has made more payments than have been accounted for in the Motion, and that any remaining delinquency will be cured on or before the hearing on this Motion.
APPEARANCE REQUIRED
Debtor(s):
Anna Gevorkian Represented By Robert T Chen
11:00 AM
Movant(s):
Parkwood Van Nuys HOA Represented By Neil B Katz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
SECOND CHANCE HOME LOAN LLC
fr. 10/24/18
Docket 37
NONE LISTED -
Debtor(s):
Henry W Hardison Jr Represented By
James Geoffrey Beirne
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 22
Petition Date: 05/30/2018
Chapter 13 Plan confirmed on 11/27/2018 Service: Proper. Opposition filed.
Property: 22656 Miranda Street, Woodland Hills, CA 91367 Property Value: $500,000.00 (per debtor’s schedules) Amount Owed: $396,165.07 (per RFS motion)
Equity Cushion: 13.0% Equity: $103,834.93.
Post-petition (pre-confirmation) Delinquency: $1,189.00 (one forced payment)
Movant alleges cause for relief from stay under 11 U.S.C. 362(d)(1) , with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that the Debtor is in a reverse mortgage and there are no post-petition mortgage payments due; the post-petition "arrearage" arises from the forced placed homeowners insurance the mortgage company placed upon the debtor’s residential real property; and she will obtain her own home own homeowners insurance and debtor will then only be financially responsible for the pro rata portion of the forced place homeowners insurance for the short period of time it was in effect. Also, the property is her primary residence since her Chapter 13 case was filed on May 30, 2018.
APPEARANCE REQUIRED
Debtor(s):
Irene Franklin Represented By Sunita N Sood
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 35
Petition Date: 04/27/2018
Chapter 13 Plan confirmed on 11/27/2018
Service: Proper. Co-debtor was served. No opposition filed. Property: 2016 Mercedes-Benz C300W
Property Value: $4,175.00 (per debtor’s schedules) Amount Owed: $31,201.87 (per RFS motion)
Last payment was received on 09/09/2018 and the lease is matured, therefore no future payment due.
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $0
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jason R. Corralejo Represented By Gregory M Shanfeld
Amelia Puertas-Samara
Joint Debtor(s):
Claudine P. Corralejo Represented By Gregory M Shanfeld
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
U.S. BANK NATIONAL ASSOCIATION fr. 10/24/18
Docket 37
NONE LISTED -
Debtor(s):
John Edward Wilds Represented By Randall V Sutter
Joint Debtor(s):
Lisa Irene Wilds Represented By Randall V Sutter
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
TAZANA GARDENS CONDOMINIUM ASSOCIATION
Docket 666
Petition Date: 10/31/2011 Chapter: 7
Service: Proper. No opposition filed.
Property: 18550 Hatteras Street, Suite 115, Tarzana, CA 91356 Property Value: $428,000 (per RFS motion)
Amount Owed: $364,000 (per RFS motion) Equity Cushion: 7.0%
Equity: $64,000.00.
Delinquency: N/A
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 5 (stay is annulled retroactively); 7 (waiver of the 4001(a)(3) stay) and 10 (relief binding and effective for 180 days against any debtor).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
L.D.T. Investments Inc. Pro Se
Trustee(s):
David Seror (TR) Represented By David Seror David Seror (TR) Steven T Gubner Corey R Weber Michael W Davis
11:00 AM
Richard Burstein Elissa Miller Aram Ordubegian Andy Kong Jessica L Bagdanov Ronald P Abrams Talin Keshishian
11:00 AM
fr. 10/24/18, 11/14/18
Docket 63
- NONE LISTED -
Debtor(s):
Liliya F Kargina Represented By Alla Tenina
Movant(s):
SETERUS, INC., AS THE Represented By James F Lewin Renee M Parker
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 10/24/18
Docket 42
This hearing was continued at the last hearing at the request of the parties. What is the status of this Motion?
APPEARANCE REQUIRED
10-24-18 TENTATIVE BELOW
Petition Date: 03/07/2018
Chapter 13 plan confirmed: 8/14/18 Service: Proper. No opposition filed.
Property: 6449 Elmer Avenue, Los Angeles, CA 91606 Property Value: $567,576.00 (per debtor’s schedules) Amount Owed: $286,094.34 (per RFS motion)
Equity Cushion: 42.0% Equity: $281,481.66.
Post-Petition Delinquency: $7,254.96 (3 payments of $2,198.16; cost added for administration of bankruptcy claim of $665; less suspense account or partial paid balance of 4.52)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 6 (waiver of the 4001(a)
stay). Movant alleges that the last payment tendered was on or about 6/8/18.
Debtor's plan has only recently been confirmed and there is a sizeable equity cushion to protect Movant's claim. Have the parties discussed whether an
11:00 AM
APO is a feasible solution?
APPEARANCE REQUIRED
Debtor(s):
Marcela Navarrete Melendrez Represented By Raymond Perez
Movant(s):
Bank of America, N.A. Represented By Asya Landa
Diana Torres-Brito
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
MAGNUM PROPERTY INVESTMENTS, LLC AND STRATEGIC ACQUISITIONS, INC
Docket 19
Petition Date: 09/26/2018
Chapter 13 dismissed with 180-day bar to refiling: 10/21/18
Service: Proper. Co-debtor (owner) was served. No opposition filed. Property: 5055 Coldwater Canyon Ave, #101, Sherman Oaks, CA 91423 Property Value: $ N/A (per debtor’s schedules)
Amount Owed: $ N/A (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: N/A
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(4). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 5 (stay is annulled retroactively); 6 (termination of co-debtor stay); 7 (waiver of the 4001(a)(3) stay); and 9 (Relief under 362(d)(4) for bad faith).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Pan Lea Kim Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 10
Petition Date: 09/19/2018 Chapter: 7
Service: Proper. No opposition filed. Movant: MTGLQ Investors
Property Address: 34652 Boros Boulevard, Beaumont, CA 92223 Type of Property: Residential
Occupancy: holdover after foreclosure sale Foreclosure Sale: 12/27/17
UD case filed: 06/04/2018 UD Judgment: N/A
A review of Debtor’s schedules shows that he asserts no interest in any real property, and the chapter 7 trustee issued her no asset report on 10/30/18. Based on the history of bankruptcy filings affecting this property, it is likely that this bankruptcy case was "hijacked" by having this property "dumped" into this
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), 6 (waiver of 4001(a)(3) stay); 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law); 9 (relief binding and effective for 180 days against any debtor); and 10 (Binding in any other bankruptcy case purporting to affect the Property filed not later than 2 years).
DENY relief requested in paragraph 8 (relief under 362(d)(4) because Movant is not a secured creditor entitled to such relief; and 11 (binding and effective against this Debtor for 180 days) because no allegations of bad faith have been made with respect to his actions in this bankruptcy
.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
11:00 AM
Debtor(s):
Pedro Lopez Pro Se
Movant(s):
MTGLQ Investors, L.P., Represented By Nancy L Lee
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 43
Petition Date: 08/19/2018 Chapter: 13
Service: Proper. No opposition filed.
Property:15222 Carey Ranch Lane, Los Angeles, CA 91342 Property Value: $ (per debtor’s schedules)
Amount Owed: $933,853.11 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: $12,992.66 (3 payments of $3,987.22; attorney’s fees and costs: $1,031)
Movant alleges cause for relief from stay under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
The Relief under 362(d)(4) is not requested but there are multiple bankruptcies cases affecting the Property were filed.
Debtor filed a response that he does not oppose the granting of the Motion.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Raquel Rosales-Yapo Represented By Kevin T Simon
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
KERN COUNTY TREASURER AND TAX COLLECTOR
fr.11/8/17, 2/7/18, 3/21/18; 12/5/18
Docket 12
- NONE LISTED -
Debtor(s):
Richard Khatibi Represented By Kevin T Simon
Movant(s):
Kern County Treasurer and Tax Represented By Nicole M Misner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 51
Petition Date: 06/13/2014
Chapter 13 Plan confirmed on 06/12/2015 Service: Proper. No opposition filed.
Property: 12615 Cathy Street, Los Angeles, CA 91342 Property Value: $320,000 (per debtor’s schedules) Amount Owed: $371,039.19 (per RFS motion)
Equity Cushion: 0.0% Equity: $0.00.
Post-Confirmation Delinquency: $13,168.84 (2 payments of $3,034.83; 2 payments of $3,110.06; post-petition advance or other charges due but unpaid: $56; attorneys’ fees and costs: $1,000.50; less suspense account or partial paid balance: $177.44) Last payment was received on 10/18/2018
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Rosa Maria Arevalo Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
DEUTSCHE BANK NATIONAL TRUST CO fr. 6/13/18, 8/15/18, 10/17/18
Docket 34
The hearing was continued at the last hearing at the request of the parties. What is the status of this Motion?
APPEARANCE REQUIRED
10-17-18 TENTATIVE BELOW
At the previous hearing, the parties indicated that there was no confirmation whether Debtor was able to obtain a loan modification. If the loan modification did not go through, the parties indicated that they would seek an adequate protection order.
Nothing new has been filed on the docket. What is the status of either a loan modification or an adequate protection order?
8/15/18 Tentative
This hearing was continued from June 13, 2018, to allow the Debtor to apply for a loan modification. What is the status of this Motion?
APPEARANCE REQUIRED
6/13/18 TENTATIVE BELOW
Petition Date: 08/2/2017
Service: Proper. Opposition filed.
Property: 21051 Schoenborn St., Canoga Park, California 91304 Property Value: $ 560,000.00 (per debtor’s schedules)
Amount Owed: $ 687,555.73 Equity Cushion: 0.0% Equity: $0.00
Post-Petition Delinquency: $11,056.62 (4 payments of $10,251.16; $0.00 in post- petition advances; $1,031 in attorneys’ fees; less $225.54 in suspense account or partial paid balance)
11:00 AM
Debtor opposes the Motion, arguing that there is an application for a loan modification still under review, and requests a continuance of this hearing to allow for a determination of the loan modification application. See Opposition, Ex. A.
Movant requests relief under 11 U.S.C. 362(d)(1). Movant requests specific relief in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 5 (11 U.S.C. §1201 (a) or §1301(a) co-debtor stay terminated, modified, or annulled); and 6 (waiver of the 4001(a)(3) stay).
APPEARANCE REQUIRED
Debtor(s):
Samuel Araos Pasag Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Nellie Garingan Pasag Represented By
Hasmik Jasmine Papian
Movant(s):
Deutsche Bank National Trust Co., Represented By
Alexander G Meissner S Renee Sawyer Blume
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 21
Petition Date: 08/24/2018 Chapter: 13
Service: Proper. Opposition filed. Movant: SRPS LP
Property Address: 7443 Gaviota Avenue, Van Nuys, CA 91406 Type of Property: Residential
Occupancy: Owner of the Property
Foreclosure Sale:
UD case filed: 10/02/2018 (without knowledge of this bankruptcy filing) UD Judgment: N/A
Movant alleges cause for relief under 11 U.S.C. 362(d)(1), (d)(2), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law), 4 (stay is annulled retroactively), 6 (waiver of 4001(a)(3) stay), 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law) and 9 (relief binding and effective for 180 days against any debtor). Movant alleges cause for annulment because it caused an unlawful detainer complaint to be filed against Debtor (among others) on or about October 2, 2018, without notice or knowledge of this filing. Movant alleges it was not notified of this bankruptcy until October 15, 2018, when the Superior Court clerk notified its office.
Debtor opposes the Motion, arguing that movant has not established cause to justify annulment of the stay; Debtor has equitable interest in the property and the property is necessary to an effective reorganization; and that Movant was not entitled to notice of bankruptcy filing.
APPEARANCE REQUIRED
11:00 AM
Debtor(s):
Silvia Veronica Venegas Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
KINECTA FEDERAL CREDIT UNION
Docket 36
- NONE LISTED -
Debtor(s):
Sonia Pantoja Represented By Lauren M Foley
Movant(s):
Kinecta Federal Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
THE BANK OF NEW YORK MELLON
Docket 13
Petition Date: 10/22/2018 Chapter:7
Service: Proper. No opposition filed.
Property: 22664 Cohasset Street, West Hills, CA 91307 Property Value: $550,000 (per debtor’s schedules) Amount Owed: $595,722.26 (per RFS motion)
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $126,118.92
41 of payments have come due and were not made.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Susan R. Forcier Represented By Louis J Esbin
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
U.S. BANK NATIONAL ASSOCIATION fr. 11/14/18
Docket 32
11-14-18 TENTATIVE BELOW
Petition Date: 05/10/18
Chapter 13 plan confirmed: 08/14/18
Service: Proper. Co-debtor served. No opposition filed. Property: 7711 Calle Maria, Winnetka, CA 91306 Property Value: $750,000 (per debtor’s schedules) Amount Owed: $537,818.45 (per RFS motion)
Equity Cushion: 20.0% Equity: $212,181.55.
Post-Petition Delinquency: $9,090.34 (2 pre-confirmation payments of $6,043.56; 1 posy-confirmation payment of $3,021.78; post-petition advances or other charge due but unpaid: $25)
Movant alleges cause for relief under 11 U.S.C. 362(d)(1). Relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (co-debtor stay is terminated) and 7 (waiver of the 4001(a)(3) stay).
Given the size of the equity cushion here, have the parties discussed whether this can be resolved by an APO?
APPEARANCE REQUIRED
Debtor(s):
Thomas Vy Nguyen Represented By Joshua L Sternberg
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 24
Petition Date: 09/29/2018 Chapter:7
Service: Proper. Co-debtor was served. No opposition filed. Property: 2017 ACURA RDX
Property Value: $25,850 (per RFS motion) Amount Owed: $31,264.59 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00. Delinquency: $ 1,054.04
Last payment was received on 09/12/18
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Salvador German Helleon Represented By
Blake J Lindemann
Joint Debtor(s):
Daniel Roy Farrell Represented By
Blake J Lindemann
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
11:00 AM
PACIFIC WEST HOME MORTGAGE, LLC
Docket 131
Petition Date: 07/24/2013
Chapter 13 plan confirmed: 4/2/14 Service: Proper. No opposition filed.
Property: 8745 Willis Avenue #114, Los Angeles, CA 91402-2178 Property Value: $ 150,000 (per debtor’s schedules)
Amount Owed: $ N/A (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: N/A
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Josephine E Williams Represented By Carlo Reyes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 23
Petition Date: 10/5/18 Ch: 13 (pro se)
Service: Proper; former owner served. No opposition filed. Movant: Deutsche Bank
Property Address: 400 Whitegate Rd., Thousand Oaks, CA 91320 Type of Property: Residential
Occupancy: holdover after foreclosure Foreclosure Sale: 7/24/18
UD case filed: 8/4/18 UD Judgment: n/a
Disposition: GRANT under 11 U.S.C. 362(d)(1); (d)(2). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)(3) stay). GRANT relief as to paragraph 7 (designated law enforcement officer may evict any occupant, upon a recording of the order in compliance with applicable non-bankruptcy law).
DENY request for relief in paragraphs 9 (binding & effective relief for 2 years); 10 (binding & effective relief against any debtor for 180 days) and 11 (binding & effective against this Debtor for 180 days) because Movant did not allege facts to support a finding of bad faith.
APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Raul Jimenez Pro Se
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 11
Petition Date: 10/25/18 Ch: 7
Service: Proper on Judge's Shortened Time procedue for UD RFS. No opposition filed.
Movant: Susan Mata
Property Address: 16252 Kalisher St., Granada Hills, CA 91344 Type of Property: Residential
Occupancy: month-to-month tenancy in default Foreclosure Sale: n/a
UD case filed: 7/25/18
UD Judgment (entered against Debtor's spouse, Arcelia Rivera): 10/25/18 Writ of Possession issued: 10/29/18
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), and 6 (waiver of 4001(a)
(3) stay). GRANT relief as to paragraph 9 (binding and effective against any debtor for 180-days).
DENY relief as to paragraph 8 (relief under 362(d)(4)), as Movant here is not a secured creditor entitled to relief.
APPEARANCE REQUIRED DUE TO SHORTENED TIME—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Jose Rivera Represented By
Alfred Manuel Freitas
11:00 AM
Movant(s):
Susan Mata Represented By
Steven M Mayer
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 11
On November 14, 2018, Debtor filed this Chapter 13 case. Debtor has one previous bankruptcy case that was dismissed a short time ago. The previous case, 18-11451-MT, was a chapter 13 filed on June 6, 2018 and dismissed on October 24, 2018. The dismissal was initially with a 180 day bar under Section 109(g)(2), but the order was alter amended to remove the bar against refiling (Doc. No. 42).
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case. Debtor states the reason for dismissal of the prior case as "Delinquent plan payments and failed post petition mortgage payments." Debtor further states that he misunderstood the process of selling his home in a chapter 13, and was under the mistaken belief that he did not have to make post-petition mortgage payments. Debtor intends to make the post-petition mortgage payments in this case until the house is sold. Debtor argues that the property is of consequential value to the estate because the value exceeds all encumbrances on the property by
$254,050, which would be available to pay unsecured creditors of the estate. Debtor argues that all secured creditors are adequately protected by an equity cushion. Debtor supports his motion with declarations from himself and from a real estate agent who states that the property would likely sell for between $750,000 and $800,000 in the next 45-120 days.
Creditors Glen and Pamela Blunden oppose the motion, arguing that the motion should be denied because Debtor shows little change in financial condition since his last filing. The Blundens received no payments on behalf of their deed of trust during the previous bankruptcy, and point to the timing of this filing (right before another scheduled nonjudicial foreclosure sale) as
11:00 AM
evidence of bad faith. The Blundens argue that Debtor has not rebutted the presumption of bad faith with clear and convincing evidence.
The occurrences in the previous bankruptcy, including the hearing where the case was dismissed, gave every indication that Debtor would re-file to "do it right." Therefore, the timing of this case is not troubling. The Blundens and other secured creditors appear to be protected by a substantial equity cushion in the property. Furthermore, if Debtor is successful with a sale, unsecured creditors will be paid 100%. As to the missed post-petition mortgage payments in the previous bankruptcy, this never should have happened.
Debtor will be on a short leash regarding stay-current payments to secured creditors during this bankruptcy. Have December's payments been made? Whether clear and convincing evidence exists to demonstrate good faith in this bankruptcy will depend on whether Debtor has made post-petition payments in this bankruptcy.
If Debtor has made or can make ongoing payments to Secured creditors, the Motion will be GRANTED.
APPEARANCE REQUIRED.
Debtor(s):
Loi Tan Nguyen Represented By Khachik Akhkashian
Movant(s):
Loi Tan Nguyen Represented By Khachik Akhkashian Khachik Akhkashian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 11/27/18
Docket 9
At the hearing on November 27, a creditor appeared and made an oral opposition to the motion (which was heard on shortened time). Because the Debtor's attorney had already left the courtroom when the creditor arrived, the Court imposed the stay for a limited time, through December 13, and continued this matter to December 12.
No opposition papers have been filed. The creditor will have to appear and make its opposition orally.
APPEARANCE REQUIRED
11-27-18 TENTATIVE BELOW
On November 9, 2018, Debtor filed this Chapter 13 case. Debtor has one previous bankruptcy case that was dismissed a short time ago, and three additional cases in the past ten years. The most recent dismissed Chapter 13 case, 1:18-bk-11444-VK, was filed on June 6, 2018 and dismissed on October 9, 2018 at confirmation. At the confirmation hearing, appearance counsel stated that Debtor had decided to "go ahead and work with the lender," and seek a loan modification. It appears that those efforts were unsuccessful.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case. Debtor contends the previous case was dismissed because his income has been more consistent and he is more organized with respect to his work-related international travel expenses.
No opposition filed. The Motion is GRANTED. Because this motion is being heard on
11:00 AM
shortened time, APPEARANCE REQUIRED.
Debtor(s):
Orlando Huete Represented By Jaime A Cuevas Jr.
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01004 Ballout v. Sarieddine
fr. 6/28/17, 7/5/17, 1/24/18, 2/14/18, 8/8/18, 8/29/18
Docket 19
APPEARANCE REQUIRED
8-29-18 TENTATIVE BELOW
This matter was continued from August 8th to allow time for the settlement to be approved. What is the status of the settlement?
APPEARANCE REQUIRED
8/8/18 Tentative
Having reviewed the dockets for both the adversary and bankruptcy cases, and finding that this matter has settled, this pretrial conference will be continued to August 29, 2018 at 11 a.m., to allow time for the Motion to Approve Compromise under Rule 9019 to be resolved.
APPEARANCES WAIVED ON 8/8/18.
Debtor(s):
Kamel M. Ballout Represented By
R Grace Rodriguez
Defendant(s):
Mike Sarieddine Represented By Daniel J King Daniel J King
Plaintiff(s):
Kamel M. Ballout Represented By
11:00 AM
Trustee(s):
R Grace Rodriguez
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:17-01040 GOTTLIEB v. Elkwood Associates, LLC et al
declaratory relief (two counts)
avoid foreclosure sales (two counts)
conversion
money had and received
unjust enrichment
conspiracy to chill bidding
Docket 151
- NONE LISTED -
Debtor(s):
Solyman Yashouafar Represented By
Mark E Goodfriend
Defendant(s):
Elkwood Associates, LLC Represented By Daniel J McCarthy
Fieldbrook, Inc. Represented By Daniel J McCarthy
Soda Partners, LLC Represented By Ronald N Richards
Quality Loan Service Pro Se
Chase Manhattan Mortgage Co. Pro Se
Howard Abselet Represented By Henry S David
11:00 AM
Israel Abselet Represented By Henry S David
Citivest financial Services, Inc. Pro Se
State Street Bank and Trust Co. Pro Se DMARC 2007-CD5 Garden Street, Represented By
Timothy C Aires
QUALITY LOAN SERVICE Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Jeremy V Richards John W Lucas
Trustee(s):
David Keith Gottlieb (TR) Represented By Jeremy V Richards John W Lucas
11:00 AM
Adv#: 1:17-01083 Vargas et al v. Gitnick et al
fr. 12/13/17, 6/20/18
Docket 1
NO PRETRIAL STIPULATION HAS BEEN FILED - Plaintiff should explain why this case should not be dismissed for a lack of prosecution
Exchange of exhibit lists:
Parties to file and serve Notice of Cross-Examination of Witness:
Hard copies of exhibit books exchanged (if not already done):
Parties to file and serve trial briefs:
TRIAL TO BE HELD ON:
PLAINTIFF TO LODGE SCHEDULING ORDER WITHIN 7 DAYS.
Debtor(s):
Neil D Gitnick Represented By James R Selth
Defendant(s):
Neil D Gitnick Pro Se
11:00 AM
Anita Marton Pro Se
Joint Debtor(s):
Anita Marton Represented By
James R Selth
Plaintiff(s):
Patricia Vargas Represented By Jay W Smith
Ana Contreras Represented By Jay W Smith
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:18-01047 SP22, Inc., a California corporation et al v. Yurdumyan, an individual
fr. 7/18/18
Docket 1
- NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Defendant(s):
Karmile Yurdumyan, an individual Pro Se
Plaintiff(s):
SP22, Inc., a California corporation Represented By
Allan Herzlich
Scott Parrish, an individual Represented By Allan Herzlich
Saeideh Parrish, an individual Represented By Allan Herzlich
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
Adv#: 1:18-01052 Hernandez et al v. Choe
fr. 7/18/18
Docket 1
- NONE LISTED -
Debtor(s):
Harold H Choe Represented By Young K Chang
Defendant(s):
Harold H Choe Pro Se
Plaintiff(s):
Jose Hernandez Represented By Timothy L Joens
Viviana R Valle Represented By Timothy L Joens
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Adv#: 1:18-01067 Laaly et al v. Farkhondeh et al
fr. 8/8/18
Docket 1
- NONE LISTED -
Debtor(s):
Hamid Farkhondeh Pro Se
Defendant(s):
Hamid Farkhondeh Pro Se
Mary Dadyan Pro Se
Joint Debtor(s):
Mary Dadyan Pro Se
Plaintiff(s):
Noushin Laaly Represented By Stella Rafiei
Kourosh Laaly Represented By Stella Rafiei
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Adv#: 1:18-01068 Gregorio v. PHEAA-Pennsylvania Higher Education et al
fr. 11/14/18
Docket 7
Discovery cut-off (all discovery to be completed*):_Feb. 28, 2019
Expert witness designation deadline (if necessary):to be determined at next hearing Case dispositive motion filing deadline (MSJ; 12(c)):_to be determined at next hearing
Status conference to be set for April 2019
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil Procedure.
Meet and Confer
Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
Discovery Motion Practice:
All discovery motions must be filed within 30 days of the service of an objection, answer, or response which becomes the subject of dispute or the passing of a discovery due date without response or production, and only after counsel have met
11:00 AM
and conferred and have reached an impasse with regard to the particular issue.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
Jerald Angelo Gregorio Pro Se
Defendant(s):
PHEAA-Pennsylvania Higher Pro Se
Windham Professionals Pro Se
ECMC Educational Credit Represented By Scott A Schiff
United States Department of Pro Se
Plaintiff(s):
Jerald Angelo Gregorio Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Adv#: 1:18-01079 Seror v. Gregorian et al
fr. 9/26/18; 12/5/18
Docket 1
Having considered Trustee's Unilateral status report, the status conference is continued to January 23, 2019 at 10:00 a.m. to allow Trustee an opportunity to file motion(s) for default judgment.
Plaintiff to give notice of continued status conference. APPEARANCE WAIVED on December 12, 2018.
Debtor(s):
Owner Management Service, LLC Pro Se
Defendant(s):
Alfred Gregorian Pro Se
La Vista Properties Pro Se
Plaintiff(s):
David Seror Represented By
Richard Burstein Michael W Davis
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis
11:00 AM
David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
Adv#: 1:18-01104 Silber et al v. Silber et al
Docket 5
NO Status report has been filed. Is plaintiff prosecuting this case? Discovery cut-off (all discovery to be completed*):
Pretrial conference:
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil Procedure.
Meet and Confer
Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
Discovery Motion Practice:
All discovery motions must be filed within 30 days of the service of an objection, answer, or response which becomes the subject of dispute or the passing of a discovery due date without response or production, and only after counsel have met and conferred and have reached an impasse with regard to the particular issue.
11:00 AM
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
Ian Ellis Silber Represented By Henry Glowa
Defendant(s):
Ian Ellis Silber Pro Se
Jane Ellen Silber Pro Se
DOES 1 through 50 Pro Se
Joint Debtor(s):
Jane Ellen Silber Represented By Henry Glowa
Plaintiff(s):
Kurt Silber Represented By
Timothy R Hanigan Arthur Carvalho Jr
Irene Silber Represented By
Timothy R Hanigan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 83
Debtor filed its chapter 7 petition on January 4, 2017. Debtor is an entity that was either a plumbing company or an entity that operated and managed plumbing companies, under the direction of Debtor’s principal John Ahokian.
On December 21, 2017, creditor Wesley Hatfield ("Hatfield") filed a proof of claim in the amount of $90,385 for "Unpaid, earned wages & commissions, penalties, interest, etc." Proof of Claim no. 7, filed December 21, 2018 (the "Hatfield PoC").
There were no documents attached to the Hatfield PoC when it was filed. The Hatfield PoC was amended on November 27, 2018, to include declarations, estimated calculations of the claim amount, and documentation in the form of timesheets and invoice reports from various entities alleged to be under the direction of John Ahokian.
On December 21, 2017, creditor Jose Pina ("Pina") filed a proof of claim in the amount of $155,990 for "Unpaid, earned wages & commissions, penalties, interest, etc." Proof of Claim no. 8, filed December 21, 2018 (the "Pina PoC"). There were no documents attached to the Pina PoC when it was filed. The Pina PoC was amended on November 27, 2018, to include declarations, estimated calculations of the claim amount, and documentation in the form of timesheets and invoice reports from various entities alleged to be under the direction of John Ahokian.
On December 21, 2017, creditor Angel Valdez ("Valdez") filed a proof of claim in the amount of $128,076 for "Unpaid, earned wages & commissions, penalties, interest, etc." Proof of Claim no. 9, filed December 21, 2018 (the "Valdez PoC"). There were no documents attached to the Valdez PoC when it was filed. The Valdez PoC was amended on November 27, 2018, to include declarations, estimated calculations of the claim amount, and documentation in the form of timesheets and invoice reports from various entities alleged to be under the direction of John Ahokian.
Debtor objects to the Hatfield PoC, the Pina PoC, and the Valdez PoC (referred to together as the "Wage PoCs") on the same grounds, contending that the Wage PoCs are unsupported by any substantial documentation evidencing the dates of
11:00 AM
alleged employment, terms of such employment or any other evidence validating the claim, which apparently alleges that Hatfield, Pina, and Valdez ("referred to together as "Claimants") were not paid for services performed. Further, as an additional ground for such objection, Debtor alleges that the Claimants were never employed by Debtor. See Declaration of John Akhoian ISO Objection.
Claimants argue in their jointly filed Opposition to Objections that each Claimant has cured the inadvertent failure to attach documents to their initial Proofs of Claims.
These Amended Proofs of Claim relate back to the initial Proofs of Claims. Claimants note that the Amended Proofs of Claims provide updated damages calculations for each Proof of Claim, specifically concern the exact claims, conduct, circumstances and facts which gave rise to the initial Proofs of Claims, namely "Unpaid, earned wages & commissions, penalties, interest…" Claimants contend that the basis for the Wage PoCs was set forth in great detail in a legal demand sent to Debtor well before any proofs of claims were due, for that legal demand had been filed in this case as an exhibit to a Declaration before the filing of the initial Proofs of Claims.
In reply, Debtor does not directly address the documents provided in the Amended Proofs of Claim, but instead argues with the basis asserted for the Wage PoCs.
Specifically, Debtor contends that the claims were based on Claimants "disingenuous" position that they were plumbers and entitled to compensation for work performed as such. Although they may have begun as plumbers, it is Debtor’s position that the Claimants were no longer performing plumbing services. Debtor claims that each Claimant had graduated to working in sales and they were being paid strictly on a commission basis for selling services and are not entitled to compensation as plumbers.
Standard
A proof of claim is deemed allowed unless a party in interest objects under § 502(a) and constitutes "prima facie evidence of the validity and amount of the claim" pursuant to Bankruptcy Rule 3001(f). See also Fed. R. Bankr.P. 3007. The filing of an objection to a proof of claim "creates a dispute which is a contested matter" within the meaning of Bankruptcy Rule 9014 and must be resolved after notice and opportunity for hearing upon a motion for relief. See Adv. Comm. Notes to Fed. R. Bankr.P. 9014.
Upon objection, the proof of claim provides "some evidence as to its validity and amount" and is "strong enough to carry over a mere formal objection without more."
11:00 AM
Wright v. Holm ( In re Holm ), 931 F.2d 620, 623 (9th Cir.1991) (quoting 3 Collier on Bankruptcy § 502.02, at 502-22 (15th ed.1991)); see also Ashford v. Consolidated Pioneer Mort. ( In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff'd, 91 F.3d 151, 1996 WL 393533 (9th Cir.1996). To defeat the claim, the objector must come forward with 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." In re Holm, 931 F.2d at 623.
"If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence." In re Consol. Pioneer, 178 B.R. at 226 (quoting In re Allegheny Int'l, Inc., 954 F.2d 167, 173-74 (3d Cir.1992)). The ultimate burden of persuasion remains at all times upon the claimant. See In re Holm, 931 F.2d at 623.
Analysis
Debtor here sought to defeat the Wage PoCs by submitting evidence in the form of a declaration by John Ahokian, Debtor’s principal. This evidence cast doubt on the Claimants’ assertions that they were employed by Debtor as plumbers. In response, Claimants amended the Wage PoCs to include evidence in the form of declarations of the Claimants and documentation to support their claims. §
A party objecting to a claim must come forward with 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." In re Holm, 931 F.2d at 623. Here, the evidence provided in the Amended Wage PoCs is sufficient to defeat the scant Objection raised here – that the Wage PoCs lacked supporting documentation.
The factual issues about the validity of the claim that were argued in the Reply cannot be resolved on this record. Claimants request that the Court set the matter for a full evidentiary hearing. In addition to their desire to cross-examine Mr.
Akhoian, Claimants state that they intend to subpoena third parties that will provide material facts for the Court’s consideration. The parties should be prepared to discuss dates for any further briefing that may be required in advance of an evidentiary hearing.
APPEARANCE REQUIRED.
11:00 AM
Debtor(s):
Akhoian Enterprises, Inc. Represented By David S Hagen
Trustee(s):
David Seror (TR) Represented By Steven T Gubner Richard Burstein Talin Keshishian
11:00 AM
Docket 84
See tentative for #53
Debtor(s):
Akhoian Enterprises, Inc. Represented By David S Hagen
Trustee(s):
David Seror (TR) Represented By Steven T Gubner Richard Burstein Talin Keshishian
11:00 AM
Docket 85
See tentative for #53
Debtor(s):
Akhoian Enterprises, Inc. Represented By David S Hagen
Trustee(s):
David Seror (TR) Represented By Steven T Gubner Richard Burstein Talin Keshishian
11:00 AM
Docket 86
Debtor filed its chapter 7 petition on January 4, 2017. Debtor is an entity that was either a plumbing company or an entity that operated and managed plumbing companies, under the direction of Debtor’s principal John Ahokian.
On May 2, 2017, State Compensation Insurance Fund ("SCIF") filed a proof of claim in the amount of $72,871.11 for unpaid workers compensation insurance. Proof of Claim no. 4, filed May 2, 2017 (the "SCIF PoC"). The documents attached to the SCIF PoC were insurance premium invoices for an entity called "TATS, Inc."
Debtor objects to the SCIF PoC, contending that the documentation attached to the claim indicates that the obligation is owed by another entity, TATS, Inc., which filed a separate and distinct bankruptcy proceeding as 1:17-bk10018-MB. See Declaration of John Akhoian ISO Objection.
SCIF argues in opposition that the insurance policy that it issued was what is known as a "common ownership" policy and provided coverage to Debtor as well as "TATS, Inc." and "TAAC, Inc." (referred to with Debtor as the "Debtor entities"). The workers compensation policy that was issued (# 9077363) covered the time period 10/26/13 – 4/1/14. The policy automatically renewed on 4/1/14 and was cancelled on or about 12/22/14. SCIF attached to its declaration in support a copy of Debtor Entities’ Submission Summary, which shows that Debtor sought insurance not only for Debtor but also for "TATS, Inc." and "TAAC, Inc." and "Mr. Rooter." Because Debtor Entities did not allow SCIF to complete an audit of the 2014 policy term, SCIF claims it was not able to determine how much payroll was generated by each entity as the employer failed to comply with SCIF’s attempts to perform the audit. Thus, per the Policy terms, SCIF issued a forced estimated bill of $34,108.56. SCIF did not have a breakdown of payroll for each Debtor entity, so the full amount of the estimated bill was included in the SCIF PoC for Ahokian Enterprises, Inc.
In reply, Debtor does not continue with its argument that some other entity owes the debt on which the SCIF PoC is based. Instead, Debtor contends that it objects to SCIF’s use of "estimates" to determine the amount of the SCIF PoC. The use of
11:00 AM
such estimates, Debtor believes, has inflated the claim by SCIF’s use of "intentional mischaracterization of workers categories, putting employees in the highest risk categories to inflate the premium."
Standard
A proof of claim is deemed allowed unless a party in interest objects under § 502(a) and constitutes "prima facie evidence of the validity and amount of the claim" pursuant to Bankruptcy Rule 3001(f). See also Fed. R. Bankr.P. 3007. The filing of an objection to a proof of claim "creates a dispute which is a contested matter" within the meaning of Bankruptcy Rule 9014 and must be resolved after notice and opportunity for hearing upon a motion for relief. See Adv. Comm. Notes to Fed. R. Bankr.P. 9014.
Upon objection, the proof of claim provides "some evidence as to its validity and amount" and is "strong enough to carry over a mere formal objection without more." Wright v. Holm ( In re Holm ), 931 F.2d 620, 623 (9th Cir.1991) (quoting 3 Collier on Bankruptcy § 502.02, at 502-22 (15th ed.1991)); see also Ashford v. Consolidated Pioneer Mort. ( In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff'd, 91 F.3d 151, 1996 WL 393533 (9th Cir.1996).
"If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence." In re Consol. Pioneer, 178 B.R. at 226 (quoting In re Allegheny Int'l, Inc., 954 F.2d 167, 173-74 (3d Cir.1992)). The ultimate burden of persuasion remains at all times upon the claimant. See In re Holm, 931 F.2d at 623.
Analysis
A party objecting to a claim must come forward with 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." In re Holm, 931 F.2d at 623. Here, the evidence provided in support of SCIF’s Opposition is sufficient to defeat the scant Objection raised in the Motion – that the debt on which the SCIF PoC was based was owed by another entity.
The factual issues about the amount of the claim that should be attributed to this bankruptcy estate that were argued in the Reply cannot be resolved on this record. Claimants request that the Court require Debtor to access its records to complete a
11:00 AM
payroll audit for the 2014 policy term. By completing the payroll audit, SCIF can determine exactly how much is owed for the 2014 policy period for each of the three Debtor entities. The parties should be prepared to discuss dates for exchanging or allowing access to information to resolve this objection.
APPEARANCE REQUIRED.
Debtor(s):
Akhoian Enterprises, Inc. Represented By David S Hagen
Trustee(s):
David Seror (TR) Represented By Steven T Gubner Richard Burstein Talin Keshishian
11:00 AM
Docket 44
On October 5, 2018, Trustee filed a Motion to Approve Compromise under FRBP 9019 the ("9019 Motion"). In the Motion, Trustee explains that Debtor, a member of the California Bar who was suspended from his solo practice during the period between 7/23/17 and 7/23/18. Attorney Armando Martinez Galvan ("Galvan") took over various legal cases ("Cases") and Debtor filed liens on those Cases. Trustee asserts that Debtor's right to receive fees and costs are property of the Estate as of the petition date. The Cases consist of (1) settled cases whereby fees and costs earned are readily determined and settlement funds have been received from the defendants ("Settled Cases"); (2) cases where fees and costs are not yet determined ("Pending Cases") and (3) cases whereby a deceased attorney Paul Ottosi and law practice administrator F. James Feffer (who took over Ottosi's practice) claimed an interest (the "Ottosi/Feffer Cases"). See 9019 Motion, p. 3-6. Galvan expressed an interest in settling the fees and costs with Trustee and the parties began negotiations. The parties agreed to a resolution whereby Trustee and Galvan split the fees and costs on a 50/50 basis (the "Agreement"). Trustee asserts that the Estate cannot achieve a better result than the Agreement and it is in her business judgment that the Agreement is in the best interest of the Estate.
On October 22, 2018, Debtor Donald Hilard filed a pro se Objection to the 2019 Motion, arguing that Galvan "does not represent me in any cases." Hillard contends that Galvan has "no right to settle or authorize settlement in any cases on my behalf" and accuses Galvan of "gross ethical violations" in all of the cases and "failed to represent [Debtor] properly in any respect." Debtor then goes on to explain his contentions about Galvan's alleged lack of professionalism, alleged chicanery on the part of Ottosi's wife Linda and Mr. Feffer, and many details about the process of Mr. Ottosi dying.
On October 23, 2018, Trustee filed a "Declaration that No Party Requested a Hearing on Motion" relating to the 9019 Motion, and on October 26, 2018, the Court entered an Order Granting the 9019 Motion. On November 5, 2018, Trustee filed a Reply addressing Debtor's Opposition and set a hearing on the matter for 12/12/18.
11:00 AM
Here, Trustee correctly notes that in a non-surplus case, a debtor does not have standing to object relating to estate property because the filing of a chapter 7 extinguishes any pecuniary interest the debtor formerly had in property of the estate, except where a successful objection could result in a surplus to the estate that would inure to the benefit of the debtor. Here, Trustee asserts that Debtor cannot show that such a surplus is a reasonable possibility where there have been 6 claims filed that total $99,288 and one claim that indicates it could be up to $200,000. Even if Trustee recovered 100% of the Settled Cases ($66,531) rather than 50% of the cases, it would still not result in a surplus here.
Further, the tortuous factual details provided by Debtor surrounding the Ottosi/ Ferrer cases, and his allegations of fraud and double-dealing as relates to Galvan, bolster Trustee's assertion of her business judgment. Specifically, if Trustee was required to sift through all of the various parties' factual assertions against each other (Debtor, Galvan, Ottosi), it would require a significant amount of Trustee's (and her professionals') time, which would eat into the Estate's recovery by way of professional fees. Trustee, in her business judgment, determined that it would be in the best interest of the Estate to compromise with Galvan to receive 50% of the fees and costs, without having to fight with any of the other parties. Nothing raised here by Debtor warrants vacating the Order Granting the 9019 Motion.
Objection overruled. APPEARANCE REQUIRED.
Debtor(s):
Donald A Hilland Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Toan B Chung
11:00 AM
Docket 27
Service proper. Having considered the Motion to Dismiss Debtor with a One-Year Bar to Refiling, the evidence in support thereof, and no opposition having been filed, the Court finds cause to grant the Motion in full, with a one-year bar to refiling.
Movant to lodge order within 7 days. APPEARANCES WAIVED on 12-12-18
Debtor(s):
Rene Pastor Alvarez Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
Docket 15
- NONE LISTED -
Debtor(s):
Mario Nestor Monroy Represented By Chirnese L Liverpool
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
property of the estate pursuant to 11USC section 554(b) fr. 8/15/18
Docket 119
Appearance required or parties may stipulate to continue a month or two until
adversary proceedings are further along.
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Movant(s):
Karmile Yurdumyan Represented By Michael E Clark
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
fr. 11/14/18
Docket 50
Debtor opposes Trustee's Application to Employ Karl T. Anderson CPA as Accountant for the Estate, arguing that there are no grounds for hiring an accountant. Debtor's main argument seems to be that he believes Trustee is receiving and acting upon information from Debtor’s opponent
in adversary litigation. Debtor contends that there are no funds in this estate to employ an accountant solely because a creditor believes Debtor has secreted away valuable assets. Debtor believes that there is no justification for an accountant to be employed by the estate at this time and believes Trustee should be required to show probable cause, presumably for her investigations.
The Court has the power to authorize employment of an accountant under 11 U.S.C.
§ 327(d), which reads, "The Court may authorize the Trustee to act as attorney or accountant for the estate if such authorization is in the best interest of the estate." In her declaration, Trustee asserts that she requires the services of a certified public accountant for tasks listed in para. 4(a) - 4(g) of the Application. The CPA who Trustee seeks to employ is experienced in accounting for bankruptcy estates.
Debtor has not raised any issue to counter Trustee's assertion that it is in the best interest of the Estate to employ an accountant. The Application to Employ Karl T. Anderson CPA as Accountant for the Estate is APPROVED on the terms set forth in the Application.
APPEARANCE REQUIRED.
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
11:00 AM
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 49
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON December 12, 2018.
Debtor(s):
Arutun Narinian Represented By Silva Berejian
Joint Debtor(s):
Marine Kazaryan Represented By Silva Berejian
Trustee(s):
David Keith Gottlieb (TR) Represented By Steven Werth
11:00 AM
fr. 12/5/18
Docket 46
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON December 12, 2018.
Debtor(s):
Jose E Irias Represented By
Allan J Sarkin
Trustee(s):
Diane C Weil (TR) Represented By Diane C Weil
11:00 AM
Docket 102
Service proper. No opposition filed. Having reviewed the Trustee's Final Report, the Court finds that the fees and costs are reasonable and are approved as requested.
APPEARANCES WAIVED ON December 12, 2018.
Debtor(s):
Pimsiri Wichayathanawas Represented By Faith A Ford
Trustee(s):
Amy L Goldman (TR) Represented By Annie Verdries Lovee D Sarenas
1:00 PM
Adv#: 1:18-01067 Laaly et al v. Farkhondeh et al
to 523 and 727 of the bankruptcy code fr. 8/8/18
Docket 1
In light of s/r and state court action, this adversary will be stayed pending
completion of state court action. The status conference is continued to April 10 at 10 am
Debtor(s):
Hamid Farkhondeh Pro Se
Defendant(s):
Hamid Farkhondeh Pro Se
Mary Dadyan Pro Se
Joint Debtor(s):
Mary Dadyan Pro Se
Plaintiff(s):
Noushin Laaly Represented By Stella Rafiei
Kourosh Laaly Represented By Stella Rafiei
1:00 PM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
Docket 1
- NONE LISTED -
Debtor(s):
Nurit Petri Pro Se
8:30 AM
Docket 10
Petition date: 9/27/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2016 Nissan Sentra
Debtor’s valuation of property (Sch. B): $9,692 Amount to be reaffirmed: $13,146.47
APR: 6.9% (fixed)
Contract terms: $249.65 per month for 63 months Monthly Income (Schedule I): $1,966
Monthly expenses: (Schedule J): $2,135 Disposable income: <$169.84>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor statest that his daughter will contribute to his living expenses. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until January 26, 2019, whichever is later.
8:30 AM
Debtor(s):
Roberto A Meraz Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
Docket 8
Petition date: 9/28/18
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LR 4008-1? Yes
Discharge?: No
Property: 2016 Honda Accord
Debtor’s valuation of property (Sch. B): $0.00 (LEASE) Amount to be reaffirmed: $1,799.77
APR: 0% (fixed)
Contract terms: $257.11 per month for seven months Monthly Income (Schedule I): $2,336.32
Monthly expenses: (Schedule J): $3,930 Disposable income: <$1,593>
Sec. 524(k) disclosures received in writing prior to Debtor’s signing the agreement? Yes
If disposable income is insufficient to make payments, then there is a rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor states that he disconnected his internet service and reduced other expenses (food; personal care) to afford this payment. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until January 2, 2019, whichever is later.
8:30 AM
Debtor(s):
Abdollah Mohajerani Represented By Sanaz S Bereliani
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
Docket 9
- NONE LISTED -
Debtor(s):
Gwendolyn Perez Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:30 AM
fr. 10/25/17, 12/13/17, 3/21/18; 3/28/18, 6/6/18; 11/7/18
Docket 0
- NONE LISTED -
Debtor(s):
Menco Pacific, Inc. Represented By Jeffrey S Shinbrot
11:00 AM
Adv#: 1:18-01056 GOTTLIEB v. Law Offices of Maro Burunsuzyan, A Prof. Corp. et
fr. 7/18/18; 10/24/2018
Docket 1
- NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Defendant(s):
Maro Burunsuzyan Pro Se Law Offices of Maro Burunsuzyan, Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Peter A Davidson
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
1:00 PM
Docket 122
- NONE LISTED -
Debtor(s):
Neil D Gitnick Represented By James R Selth
Joint Debtor(s):
Anita Marton Represented By
James R Selth
Trustee(s):
Amy L Goldman (TR) Pro Se
9:00 AM
Docket 8
- NONE LISTED -
Debtor(s):
Mayra Jeovana Flores Jiminez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Octavio Magallanes Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Alex Khorrami Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 8
- NONE LISTED -
Debtor(s):
Vine S Merino Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
Docket 1
- NONE LISTED -
Debtor(s):
Octavio Magallanes Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
Docket 1
Proposed claim bar date: 2/22/19 - submit order this week Objections to claims deadline: 4/12/19
Avoidance actions deadline: 4/12/19
Proposed disclosure statement filing deadline: 4/17/19 Proposed disclosure statement hearing: 6/5/19 - 10:00 am
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Debtor(s):
Green Nation Direct, Corporation Represented By
Giovanni Orantes
11:00 AM
fr. 10/24/18
Docket 2149
- NONE LISTED -
Debtor(s):
Owner Management Service, LLC Pro Se
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror David Seror (TR) Steven T Gubner Reagan E Boyce
Jessica L Bagdanov Reed Bernet
Talin Keshishian
11:00 AM
THE BANK OF NEW YORK MELLON
Docket 88
Petition Date: 04/01/2015
Chapter 13 Plan confirmed: 10/07/2015
Service: Proper. Co-debtor was served. No opposition filed. Property: 6544 Capistrano Avenue, West Hills, CA 91307 Property Value: $550,000 (per debtor’s schedules)
Amount Owed: $592,729.34 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Confirmation Delinquency: $26,753.30 (5 payments of $3,858.81; 2 payments of $3,708.36; post-petition advances or other charges due but unpaid: $40; less suspense account or partial paid balance: $26,753.30)
Movant alleges that the last payment was received on 9/28/2018
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (termination of co-debtor stay); and 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Kelly D Hankins Represented By Steven A Wolvek
Joint Debtor(s):
Pamela J Hankins Represented By Steven A Wolvek
11:00 AM
Movant(s):
The Bank of New York Mellon fka Represented By
Erin M McCartney
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 55
Petition Date: 04/11/2016
Chapter 13 Plan confirmed: 09/07/2016 Service: Proper. Opposition filed.
Property: 13487 Hubbard St, #13, SYLMAR AREA, CA 91342 Property Value: $237,000 (per debtor’s schedules)
Amount Owed: $ 353,905.33 (per RFS motion) Equity Cushion: 0.0%
Equity: $0.00.
Post-Confirmation Delinquency: $50,201.99 (11 payments of $2,755.70; 8 payments of $2,736.85; post-petition advances or other charges due but unpaid: $75; less suspense account or partial paid balance: $2,080.51)
Movant alleges case for relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, stating that the Debtor wishes to enter into an adequate protection agreement.
APPEARANCE REQUIRED
Debtor(s):
Art Summroell Represented By Elena Steers
Movant(s):
THE BANK OF NEW YORK Represented By
Christopher M McDermott
11:00 AM
Trustee(s):
Erin M McCartney
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
fr. 9/26/18; 10/24/18, 11/14/18, 11/14/18
Docket 68
This hearing was continued from 11/14/18 at the request of the parties. What is the status of this Motion?
APPEARANCE REQUIRED
11/14/18 TENTATIVE BELOW
This hearing was continued from 10-24-18 because the parties stated that escrow was about to close. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
10-24-18 TENTATIVE BELOW
This hearing was continued from 9-26-18 so that Debtors had an opportunity to have motions related to modifying their plan and refinancing real property resolved. The Court also continued the hearing so that Movant could properly serve other creditors with a secured interest in the subject property.
The Court has granted the Motion to Refinance Real Property (ECF doc. 89) and the Motion to Modify Plan (ECF doc. 87). On 9-26-18, Movant filed a Proof of Service of the Motion, showing proper service on Unifund CCR, LLC. Service on Los Angeles County Treasurer & Tax Collector was not proper, however, per the address listed for the creditor in Appendix D of the Court Manual and the address listed by the creditor on the Proof of Claim no. 6.
APPEARANCE REQUIRED.
11:00 AM
9-26-18 TENTATIVE BELOW
Petition Date: 12/21/16
Chapter 13 plan confirmed: 5/9/17
Service: NOT proper - secured judgment lien creditors not served.
Opposition filed.
Property: 12001 Martha St., North Hollywood, CA 91607
Property Value: $740,000 (per Appraisal ISO Debtor's Opposition) Amount Owed: $137,602
Equity Cushion: 81.4% Equity: $602,398
Post-confirmation Delinquency: $8,172.90 (10 payments of $817.29)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)
(3) stay). Movant alleges that the last payment received on this debt was on or about 11/6/17.
Debtors oppose the Motion, arguing that there is considerable equity in the property and that they have been conditionally approved for a reverse mortgage in the amount of $280,015.80. Once approved by the Court, the reverse mortgage will enable them to pay off all of the encumbrances against the Property, including Movant's claim, with $28,000 left over to pay off most of the unsecured creditors in class 5.
Given that Movant's claim is protected by sufficient equity, the Court finds grounds to continue this hearing to October 24, 2018, at 11:00 a.m., to allow time for (1) Movant to serve other creditors with a secured interest in the Property; and (2) Debtors to have all of the Motions related to approving the refinance and the motion to modify plan resolved.
APPEARANCES WAIVED ON 9/26/18
Debtor(s):
Bruce Jeffrey Starin Represented By
11:00 AM
John D Monte
Joint Debtor(s):
Geraldine Papel Starin Represented By John D Monte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
Docket 7
On December 4, 2018, Debtor filed this chapter 13 case. Debtor had one previous bankruptcy case that was dismissed within the previous year. The First Filing,
13-16743-MB, was a chapter 13 that was filed on 10/22/18 and dismissed on 11/29/18 after Debtor requested a voluntary dismissal. Debtor requested dismissal of the First Filing because the costs of her legal fees in family court made it so that her plan was no longer feasible.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor argues that the present case was filed in good faith notwithstanding the dismissal of the previous case because in the previous case, Debtor had to use her 401(k) money to continue her litigation in the family court and thus could not use it towards her plan, as she had contemplated in the First Filing. Debtor does not explain how her financial circumstances have changed since the dismissal of the First Filing, such that she will be able to propose a feasible plan that she can complete in this case.
Service proper. No opposition filed.
APPEARANCE REQUIRED DUE TO SHORTENED TIME.
Debtor(s):
Jennifer Martin Represented By Phillip Myer
Movant(s):
Jennifer Martin Represented By Phillip Myer
11:00 AM
Trustee(s):
Phillip Myer
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
EQUITY RESIDENTIAL MANAGEMENT, LLC
Docket 10
- NONE LISTED -
Debtor(s):
Lupe Haro Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Docket 17
Petition Date: 10/24/2018 Chapter: 13
Service: Proper. No opposition filed.
Property: 13014 Chestnut Avenue, Rancho Cucamonga, CA 91739 Property Value: $380,000 (per debtor’s schedules)
Amount Owed: $ 342,907.23 (per RFS motion) Equity Cushion: 2.0%
Equity: $0.00.
Post-Petition Delinquency: $9,023.36 (1 payment of $5,536.76; 1 payment of
$553.68; post-petition advances or other charges due but unpaid: $1,132.92; post- petition attorneys’ fees and costs: $1800)
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfers of the subject property. Movant alleges that no payment was made since 5/2018
Disposition: GRANT under 11 U.S.C. 362(d)(1), (d)(2) and (d)(4). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under 362(d)(4) for bad faith).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Delmy Lucia Orozco Pro Se
Movant(s):
Attion LLC Represented By
Alla Tenina
11:00 AM
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
INTELLECTUAL CAPITAL MANAGEMENT & SERVICER
Docket 8
This involuntary chapter 7 was dismissed with a 180-day bar to refiling on 12/12/18. As Movant does not request in rem relief or annulment of the stay, this Motion is DENIED as moot.
NO APPEARANCE REQUIRED. RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Nurit Petri Pro Se
Movant(s):
Intellectual Capital Management & Represented By
Douglas A Crowder
11:00 AM
Adv#: 1:18-01029 Seror v. Abalkhad et al
Abalkhad vs. Seror
Docket 84
This is continued to May 1, 2019 at 11 am to be heard at the same time as
the other claims. Parties should continue with discovery with same deadlines. A pretrial date and expert witness discovery will be set at the May 1 status conference. Parties should submit a form mediation order and schedule on their own with chosen mediator.
NO APPEARANCE REQUIRED ON DECEMBER 19, 2019
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
OPEN BANK Represented By
John H Choi Tony K Kim
MBNM FINANCIAL, INC Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
ROMANO'S JEWELERS Represented By
11:00 AM
Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
MELINA ABALKHAD Represented By Daniel J McCarthy
Randy Abalkhad Represented By Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol Michael W Davis Travis M Daniels Rosendo Gonzalez
11:00 AM
Adv#: 1:16-01135 Courtney Smith, individually and as Trustee of the v. SMITH
fr. 11/30/16; 1/25/17, 7/12/17; 12/6/17, 6/13/18
Docket 1
APPEARANCES REQUIRED ON DEC. 19, 2019 AT 11 AM
6/13/18 Tentative
No status report has been filed. What is the status of the ongoing state court litigation?
APPEARANCE REQUIRED
12/6/17 Tentative
Plaintiff’s unilateral status report indicates that the state court litigation is ongoing. The status conference will be continued to June 13. No appearance will be required on December 6.
07/12/17 Tentative
Based on the status report, this status conference will be continued until December 6 at 11 am to see if state court litigation has been completed. No appearance required on July 12.
Debtor(s):
Paul Allen Smith Represented By John F Nicholson
Defendant(s):
Paul Allen SMITH Pro Se
11:00 AM
Plaintiff(s):
Courtney Smith, individually and as Represented By
William Harold Brownstein
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Adv#: 1:18-01056 GOTTLIEB v. Law Offices of Maro Burunsuzyan, A Prof. Corp. et
fr. 7/18/18; 10/24/2018; 12/18/18
Docket 1
- NONE LISTED -
Debtor(s):
Karmile Yurdumyan Represented By Michael E Clark
Defendant(s):
Law Offices of Maro Burunsuzyan, Pro Se Maro Burunsuzyan Pro Se
Plaintiff(s):
DAVID K GOTTLIEB Represented By Peter A Davidson
Trustee(s):
David Keith Gottlieb (TR) Represented By Peter A Davidson
11:00 AM
Adv#: 1:18-01026 Navy Federal Credit Union v. Holowchak
fr. 5/23/18, 6/13/18; 11/7/18
Docket 1
- NONE LISTED -
Debtor(s):
Alycia Anne Holowchak Represented By
James Geoffrey Beirne
Defendant(s):
Alycia Anne Holowchak Pro Se
Plaintiff(s):
Navy Federal Credit Union Represented By Robert S Lampl
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
Adv#: 1:18-01109 Abarca et al v. Alvarenga et al
Complaint to Determine Dischargeability of Debt
Docket 1
APPEARANCE REQUIRED DESPITE STATE COURT HEARING SO PARTIES CAN EXPLAIN WHY THIS IS TAKING SO LONG
Discovery cut-off (all discovery to be completed*): Expert witness designation deadline (if necessary): Case dispositive motion filing deadline (MSJ; 12(c)): Pretrial conference:
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
*Completed means that all discovery under Fed. R. Civ. P. 30-36, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it will be completed by the cut-off date, taking into account time for service, notice and response as set forth in the Federal Rules of Civil Procedure.
Meet and Confer
Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26
Discovery Motion Practice:
All discovery motions must be filed within 30 days of the service of an objection, answer, or response which becomes the subject of dispute or the passing of a discovery due date without response or production, and only after counsel have met
11:00 AM
and conferred and have reached an impasse with regard to the particular issue.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Debtor(s):
Nelson Osmin Alvarenga Represented By Evangelina Malhotra
Defendant(s):
Nelson Osmin Alvarenga Pro Se
Olga Marquea Pro Se
Joint Debtor(s):
Olga Marquez Represented By Evangelina Malhotra
Plaintiff(s):
Noe Del Transito Abarca Represented By Katherine Warwick
Katherine Butts Warwick
Beatriz Adriana Pineda Represented By
Katherine Butts Warwick
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
Docket 99
- NONE LISTED -
Debtor(s):
Reliable Trust Deed Services, Inc. Represented By
Gerald McNally Jr Mark S Blackman
Trustee(s):
David Seror (TR) Represented By David Seror (TR) Richard Burstein Travis M Daniels Reagan E Boyce
11:00 AM
Docket 39
Service proper. No objection filed. Having reviewed Trustee's final report, and finding that the fees and costs are reasonable and necessary, approval is GRANTED. NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Martha Sofia Ramos Represented By
Eric Bensamochan
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
Docket 23
Service proper. No objection filed. Having reviewed Trustee's final report, and finding that the fees and costs are reasonable and necessary, approval is GRANTED. NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Debtor(s):
Sylvia Flores Represented By
Navid Kohan
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
Adv#: 1:17-01095 Nazaryan v. Bag Fund, LLC et al
Docket 28
The following facts are not in dispute, and are all identified in the Plaintiff’s Complaint
for Damages, Declaratory and Injunctive Relief for Violation of 11 U.S.C. § 524 (the "Complaint"):
The Judgment against the Plaintiff was obtained on November 28, 2006
[Complaint ¶ 16]
The Judgment was properly recorded on January 7, 2007 [Complaint Ex. 1];
The Judgment was assigned to Defendant BAG Fund on November 5, 2007 [Complaint ¶ 17];
The Plaintiff filed a petition for Bankruptcy relief on August 26, 2009 [Complaint Ex. 8];
The Plaintiff obtained a discharge under chapter 7 (the "Discharge") on December 1, 2009 [Complaint Ex. 8];
Defendant BAG Fund renewed the Judgment on March 4, 2016 [Complaint ¶ 17];
An Abstract of Judgment was obtained on June 20, 2016 and properly recorded on
July 13, 2016 [Complaint Ex. 1];
The Assignment Order was entered on July 5, 2017 [Complaint Ex. 2];
The Plaintiff’s previous counsel contacted Defendant BAG Fund on July 19, 2017
[Complaint Ex. 9];
Defendant Quigg sent two letters on July 27 and August 20, 2017 to the Plaintiff’s
previous counsel memorializing an agreement reached by phone that the Plaintiff
would pay $20,000 in settlement of legal fees and interest on the Judgment,
1:00 PM
plus
$2,000 per month in compliance with the Assignment Order [Complaint Ex. 9];
Defendant BAG Fund filed in the State Court a Motion for Sanctions on August 25, 2017 [Complaint Ex. 4];
The Plaintiff made a payment to Defendant BAG Fund in the amount of
$15,000
on September 19, 2017 [Complaint Ex. 6];
The Plaintiff’s new counsel sent a letter asserting violations of the Discharge Order on October 5, 2017 [Complaint Ex. 8]; and
The Complaint was filed on November 22, 2017.
On the basis of these identified facts from the Complaint, Defendants argue that only legal issues remain undecided and that they are entitled to summary judgment. Plaintiff did not file an opposition to this Motion.
Standard
Summary Judgment
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c) (incorporated by Fed.
R. Bankr. P. 7056).
Courts may not grant summary judgment solely because the motion is unopposed. Rather, the court must still analyze the motion to determine whether the movant is entitled to judgment as a matter of law. Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013). This principle is now codified in Rule 56(e)(3). When a summary-judgment motion is unopposed, Rule 56 "authorizes the court to consider a fact as undisputed," but it does not permit a court to grant summary judgment by default. Fed.R.Civ.P. 56 Advisory Committee Notes (2010)); Fed.R.Civ.P. 56(e)(2)- (3).
Failing to oppose the motion, however, can still have very significant
1:00 PM
consequences. Under Rule 56(e)(2), the court may consider the moving party's facts to be undisputed for purposes of resolving the motion. After doing that, the court may then determine whether the moving party is entitled to judgment as a matter of law based on the motion and supporting materials—including any of the facts deemed to be undisputed by virtue of the failure to oppose them. Rule 56(e)(3).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those which might affect the outcome of the suit." Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). When the nonmoving party has the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325; see Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000) (stating that the Celotex showing can be made by "pointing out through argument-the absence of evidence to support plaintiff's claim"). If the nonmoving party fails to establish a triable issue "on an essential element of her case with respect to which she has the burden of proof," the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.
The court may, after notice and a reasonable opportunity to respond, grant summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute. F.R.Civ.P. 56(f)(3).
Discharge under Section 524
Section 524 (a) provides that a discharge in a case under [Title 11] —
voids any judgment at any time obtain, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727, 944, 1141, 1228, or 1328 of this title; whether or not discharge of such debt is waived;
operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived; and
1:00 PM
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, 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.
Analysis
The discharge injunction prohibits only those acts that seek to collect, recover, or offset discharged debts as the "personal liability of the debtor." 11 U.S.C. § 524(a) (2). Clearly, a secured creditor has a right to repossess its collateral if the debtor fails to make payments. See Johnson v. Home State Bank, 501 U.S. 78, 83 (1991). So long as the creditor is not collecting the debt as a "personal liability of the debtor," there is no violation under § 524(a)(2). See 11 U.S.C. § 524(a)(2).
When a secured creditor retains a lien on the debtor’s property after the discharge, courts have held that it is not per se improper for the secured creditor to contact a debtor about the secured debt (e.g., to send payment coupons, determine whether payments will be made on the secured debt, or inform the debtor of a possible foreclosure or repossession), as long as it is clear the creditor is not attempting to collect the debt as a personal liability.
Based on our review of the record presented in support of summary judgment, Debtor failed to establish a triable issue on an essential element of her case with respect to which she has the burden of proof, specifically that Defendants violated § 524(a)(2) by seeking to collect on the discharged debt as a personal liability of Debtor. Thus, Defendants are entitled to judgment as a matter of law.
Service proper. No opposition filed.
1:00 PM
Motion GRANTED. Movant to lodge Order Granting Summary Judgment and Proposed Findings of Fact & Conclusions of Law within 7 days.
Debtor(s):
Hermine Nazaryan Represented By Lloyd D Dix
Defendant(s):
Bag Fund, LLC Represented By Vincent J Quigg
Leo Fasen Represented By
Vincent J Quigg
Vincent J Quigg Represented By Edith Walters
Michael Waldren Pro Se
Plaintiff(s):
Hermine Nazaryan Represented By Lloyd D Dix
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
Adv#: 1:17-01066 American Contractors Indemnity Company v. Ragsdale
Determine Dischargeability of debt
fr. 9/27/17, 12/13/17; 2/14/18, 8/15/18; 10/24/18
Docket 1
APPEARANCE REQUIRED
Please advise if discovery has been completed and a trial date set
Debtor(s):
Claudia Maria Ragsdale Pro Se
Defendant(s):
Claudia Maria Ragsdale Pro Se
Plaintiff(s):
American Contractors Indemnity Represented By
R Gibson Pagter Jr.
Trustee(s):
David Keith Gottlieb (TR) Pro Se