9:30 AM
1:19-13118
Romeo M Evangelista
Chapter 13
#0.01 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 11
Tentative Ruling:
Party Information
Debtor(s):
Romeo M Evangelista Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-13130
Ghislaine Yallouz
Chapter 13
#0.02 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 7
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Ghislaine Yallouz Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-13181
Steven Mark Rosenberg
Chapter 13
#0.03 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 12
*** VACATED *** REASON: Substitution of Attorney filed by Giovanni Orantes (doc. 17) - hm
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Steven Mark Rosenberg Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-13184
Gregory Lusk
Chapter 13
#0.04 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 8
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Gregory Lusk Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:11-22664
L.D.T. Investments Inc.
Chapter 7
#1.00 Motion for relief from stay
U.S.BANK N.A., SUCCESSOR TRUSTEE BANK OF AMERICA, et., al.
fr. 8/21/19; 9/25/19, 11/6/19
Docket 708
Tentative Ruling:
Cont’d. fr. 11-6-19
The last hearing was continued per stipulation.
Chapter 7 Trustee filed a withdrawal of his opposition to the RFS Motion.
Disposition: GRANT requested 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); 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.
Previous Tentative Below:
Petition Date: 10-31-2011
Chapter: 7 (Involuntary)
Service: Proper. Opposition filed.
Property: 321 North Sweetwater Street, Anaheim, CA 92807 Property Value: $625,000.00 (per BPO)
Amount Owed: $305,976.62 Equity Cushion: 43.0% Equity: $319,023.38
Post-Petition Delinquency: N/A
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
10:00 AM
CONT...
L.D.T. Investments Inc.
Chapter 7
loss mitigation activities); 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 that Javier Sosa ("Sosa") executed and recorded a deed of trust in the amount of $804,000 with assignment of rents. Movant alleges that the deed of trust purported to create a lien on the Property in which the Chapter 7 Trustee of Debtor’s estate is the named beneficiary.
Trustee filed an Opposition. Trustee explains that a judgment was entered against Sosa in the amount of $804,495.67 in an adversary proceeding, and the trust deed secures the judgment. Trustee proposes that Movant work cooperatively with Trustee, so that Trustee may foreclose on the Property. Trustee further explains that the foreclosure will satisfy Movant’s claim and provide value to the estate.
Party Information
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 Richard Burstein Elissa Miller Aram Ordubegian Andy Kong
Jessica L Bagdanov Ronald P Abrams Talin Keshishian
10:00 AM
1:15-11162
Steven Sandler
Chapter 13
#2.00 Motion for relief from stay US BANK TRUST NA
fr, 2/6/19; 3/13/19, 3/27/19, 5/1/19, 6/5/19, 6/26/19; 7/17/19, 8/21/19, 10/23/19
Docket 77
Tentative Ruling:
Cont’d. fr. 10-23-19
An order extending the Loan Modification Management Period up to 3-11-20 was entered. An order approving the trial loan modification agreement was also entered, which require monthly payments of $2,585.97 beginning January 1, 2020 until June 1, 2020.
What is the status of this Motion? APPEARANCE REQUIRED.
10-23-19 Tentative Below:
This hearing was continued from 8/21/19 because the loan modification was still in the portal. Nothing has been filed regarding this Motion since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED for 10-23-19 tentative.
6/26/19 Tentative:
At the 06/5/19 hearing, the parties indicated they will seek the assistance of the Court's LMM program. On June 16, 2019, Debtor filed a Motion to Commence LMM Program. The time for objection under LBR 9013-1(o) runs on or about July 1, 2019. Given the status of the LMM Motion, the Court finds cause to continue this hearing to July 17, 2019, to allow for the LMM Motion to be resolved.
NO APPEARANCE REQUIRED ON 6/26/19
6/5/19 Tentative:
At the last hearing, the parties indicated that the creditor had the package to review.
10:00 AM
CONT...
Steven Sandler
Chapter 13
Nothing has been filed since the last hearing. What is the status of this matter? This has been continued several times without any clear progress. APPEARANCE REQUIRED for 6-5-19 tentative.
5/1/19 Tentative:
This hearing was continued to allow the parties time to review loan modification documents. What is the status of the loan modification efforts?
3/27/19 Tentative:
At the previous hearing, the parties indicated that they were reviewing the possibility of a loan modification. What is the status of loan modification efforts?
3/13/19 Tentative:
At the previous hearing, the parties indicated that they were reviewing the possibility of a loan modification. What is the status of loan modification efforts?
Party Information
Debtor(s):
Steven Sandler Represented By Stella A Havkin
Movant(s):
US Bank Trust National Association, Represented By
Michelle R Ghidotti Kristin A Zilberstein
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-13584
Rafael B Morales and Mandy M Morales
Chapter 13
#3.00 Motion for relief from stay TOYOTA LEASE TRUST
Docket 37
Tentative Ruling:
Petition Date: 4-3-2015
Chapter 13 Plan Confirmed: 3-9-2016 Service: Proper. No opposition filed. Property: 2016 Toyota Highlander
Property Value: unk (per debtor’s schedules) Amount Owed: $24,113.45
Equity Cushion: unk% Equity: unk
Post-Petition Delinquency: $24,113.45
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.
Party Information
Debtor(s):
Rafael B Morales Represented By David S Hagen
Joint Debtor(s):
Mandy M Morales Represented By David S Hagen
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
10:00 AM
CONT...
Trustee(s):
Rafael B Morales and Mandy M Morales
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12587
Bienvenida Bejosano Goudeaux
Chapter 13
#4.00 Motion for relief from stay JPMORGAN CHASE BANK
Docket 69
Tentative Ruling:
Petition Date: 9-27-17
Chapter 13 Plan Confirmed: 12-18-17 Service: Service proper. Opposition filed.
Property: 17600 Runnymede Street, Los Angeles, CA 91406 Property Value: $500,000 (per debtor’s schedules)
Amount Owed: $143,833.92 Equity Cushion: 63.0% Equity: $356,166.08
Post-Petition Delinquency: $5,496.50 (3 late payments of $2,165.50 each)
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); 7 (waiver of the 4001(a)(3) stay); and 13 (if stay not granted, order APO).
Debtor’s opposition explains that she is seeking an adequate protection agreement with Movant to cure the post-petition arrears.
Have the parties entered into an adequate protection agreement?
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Bienvenida Bejosano Goudeaux Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-10412
Rhonda Denise Hawkins
Chapter 13
#5.00 Motion for relief from stay NATIONSTAR MORTGAGE LLC, et., al.
Docket 52
Tentative Ruling:
Petition Date: 2-15-2018
Chapter 13 Plan Confirmed: 11-27-2018 Service: Proper. No opposition filed.
Property: 22738 Saticoy Street, West Hills, CA 91307 Property Value: $584,200 (per debtor’s schedules) Amount Owed: $638,626.55
Equity Cushion: 0.0% Equity: $0
Post-Petition Delinquency: $6,405.93 (2 late payments of $3,534.11)
DISPOSITION: GRANT relief requested under 11 U.S.C. 362(d)(1). GRANT 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).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Rhonda Denise Hawkins Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11229
Patrick Joseph Soria
Chapter 11
#6.00 Motion for relief from stay BANK OF AMERICA, N.A.
Docket 22
Tentative Ruling:
Petition Date: 5-11-2018
Chapter: 11
Service: Proper. No opposition filed.
Property: 1350 S. Towne Ave., Pomona, CA 91766 Property Value: $475,000 (per Movant’s Motion) Amount Owed: $641,484.59
Equity Cushion: 0.0% Equity: $0
Post-Petition Delinquency: $ n/a
Other: $122,751.43 payments overdue or 44 late payments.
Movant alleges the following: That on June 15, 2017, West H&A LLC filed a Statement of Information with the California Secretary of State listing Debtor as chief executive officer. On June 16, 2017, an unauthorized Assignment of Deed of Trust was fraudulently executed and subsequently recorded, which purports to assign the Movant’s interest in the Deed of Trust. Debtor signed the document in his capacity as "Member of Assignee, West H&A LLC."
On June 25, 2017, an unauthorized Substitution of Trustee was fraudulently executed and recorded, which purports to substitute "Warranted Effectuation of Substitute Transferee Inc" as the foreclosure trustee under Movant’s Deed of Trust. Debtor executed the document in his capacity as "Member of Current Beneficiary: West H&A LLC."
On July 6, 2017, an unauthorized Trustee’s Deed Upon Sale was fraudulently executed and recorded, which purports to transfer title to the Property to West H&A LLC.
On April 11, 2018, Nationstar Mortgage, LLC filed a complaint in the U.S. District Court Central District of California against Debtor, West H&A LLC, and others for
10:00 AM
CONT...
Patrick Joseph Soria
Chapter 11
alleged violations of the Racketeering Influenced Corrupt Organizations Act; the California Business & Professions Code; the Lanham Act; and other statutes. The district court entered an order establishing that Debtor engaged in "knowing fraud that victimizes financial institutions, investors, and the public." On May 7, 2018, the district court also entered an order for a preliminary injunction and appointed a permanent receiver. Debtor filed his bankruptcy petition four days later on May 11, 2018.
Disposition: GRANT relief requested under 11 U.S.C. 362(d)(1) and (d)(2). GRANT specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)(4)); 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.
Party Information
Debtor(s):
Patrick Joseph Soria Represented By Sandford L. Frey
10:00 AM
1:18-11771
Claudia Victoria Gonzalez
Chapter 13
#7.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST CO.
Docket 42
Tentative Ruling:
Petition Date: 7-16-2018
Chapter 13 Plan Confirmed: 11-27-2018
Service: Proper (co-borrower served). No opposition filed. Property: 6707 Shirley Avenue, Reseda, CA 91335 Property Value: $519,300 (per debtor’s schedules)
Amount Owed: $469,952.62 Equity Cushion: 2.0% Equity: $49,348
Post-Petition Delinquency: $7,751.37 (4 late payments of $1,965, $2,009, $2,044, and $2,044).
Disposition: GRANT relief requested under 11 U.S.C. 362(d)(1). GRANT 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 13 (if stay not granted, order APO).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Claudia Victoria Gonzalez Represented By Giovanni Orantes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12174
Hengameh Zadeh
Chapter 7
#8.00 Motion for relief from stay WELLS FARGO BANK, N.A.
5/15/19; 8/7/19; 8/28/19, 10/2/19; 12/4/19
Docket 67
Tentative Ruling:
Cont’d. fr. 12-4-19
The last hearing was continued per stipulation. What is the status of this Motion?
APPEARANCE REQUIRED.
10-2-19 Tentative Below:
This hearing was continued from 8-28-19 by stipulation. What is the status of this Motion?
Previous Tentative below:
Petition Date: 8/28/18 Chapter: 7
Service: Proper. No opposition filed.
Property: 10218 Larwin Ave. Unit 3, Chatsworth, CA 91311-0109 Property Value: $490,000 (per debtor’s schedules)
Amount Owed: $395,776.46 Equity Cushion: 11% Equity: $36,223.54
Delinquency: $44,947.50 (17 payments of $2,745.66)
Disposition: GRANT requested 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
10:00 AM
CONT...
Hengameh Zadeh
Chapter 7
(Movant permitted to engage in loss mitigation activities); and 7 (waiver of the 4001(a)(3) stay).
APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING for
previous tentative.
Party Information
Debtor(s):
Hengameh Zadeh Represented By Allan S Williams
Trustee(s):
David Seror (TR) Represented By Diane C Weil
10:00 AM
1:18-12542
Jennifer Schiffbauer
Chapter 13
#9.00 Motion for relief from stay
BMW BANK OF NORTH AMERICA
Docket 28
Tentative Ruling:
Petition Date: 10-16-2018
Chapter 13 Plan Confirmed: 4-10-2019 Service: Proper. No opposition filed.
Property: 2014 BMW
Property Value: $unk (per debtor’s schedules) Amount Owed: $25,021.44
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $1,084.80 (2 late payments of $542.40 each)
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); 11 (if stay not granted, order adequate protection).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Jennifer Schiffbauer Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12656
David Kapshanyan and Tina Sarkisyan
Chapter 13
#10.00 Motion for relief from stay TD AUTO FINANCE LLC
Docket 41
*** VACATED *** REASON: Resolved per stipulation [#45] -ts Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
David Kapshanyan Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Tina Sarkisyan Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12708
Jose Estrada
Chapter 13
#11.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO. fr. 12/18/19
Docket 50
Tentative Ruling:
Cont’d. fr. 12-18-19
At the last hearing, the parties indicated that they have agreed to an APO that is being prepared.
What is the status of this Motion? APPEARANCE REQUIRED.
12.18.19 Tentative Below:
Petition Date: 11-5-2018
Chapter: 13
Service: Improper (co-debtor served). Opposition filed. Property: 10956 Columbus Avenue, Mission Hills, CA 91345 Property Value: $602,000 (per debtor’s schedules)
Amount Owed: $397,422.11 Equity Cushion: 26.0% Equity: $204,577.89
Post-Petition Delinquency: $12,598.20 (4 late payments of $3,149.55 each)
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); 13 (if stay not granted, order APO); and 14 (reimbursement of attorney’s fees and costs provided for in Movant’s deed of trust).
Debtor opposed alleging that (1) service was improper because service was sent to
10:00 AM
CONT...
Jose Estrada
Chapter 13
the wrong attorney’s email address, and no Judge’s Copy was served; (2) payments are unaccounted for and Debtor will provide proof of payments; (3) all postpetition arrears will be cured by the hearing; (4) the Property has equity and necessary for an effective reorganization. If Debtor is unable to get current by the hearing, he requests an APO.
APPEARANCE REQUIRED for 12.18.19 tentative.
Party Information
Debtor(s):
Jose Estrada Represented By
Erika Luna
Movant(s):
U.S. Bank National Association as Represented By
Diane Weifenbach
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12709
Gloria Anita Funes
Chapter 13
#12.00 Motion for relief from stay HSBC BANK USA
Docket 63
Tentative Ruling:
Petition Date: 11-5-2018
Chapter 13 Plan Confirmed: 9-18-2019
Service: Proper (original borrower served). No opposition filed. Property: 13207 Bryson Street, Arleta, CA 91331
Property Value: $500,000 (per debtor’s schedules) Amount Owed: $532,607.54
Equity Cushion: 0.0% Equity: $0
Post-Petition Delinquency: $9,069.38 (2 late payments of $3,015.96 each).
Disposition: GRANT relief requested under 11 U.S.C. § 362(d)(1). GRANT 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 (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.
Party Information
Debtor(s):
Gloria Anita Funes Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10457
Gerardo Melendez and Maribel Melendez
Chapter 13
#13.00 Motion for relief from stay AMERICREDIT FINANCIAL SERVICES
Docket 69
Tentative Ruling:
Petition Date: 2-27-2019
Chapter 13 Plan Confirmed: 11-12-2019 Service: Proper. Late response filed.
Property: 2016 GMC Yukon
Property Value: $25,000 (per debtor’s schedules) Amount Owed: $35,917.87
Equity Cushion: 0% Equity: $0
Post-Petition Delinquency: $2,592.21 (3 late payments of $862.45 each)
Debtors filed a non-opposition to the Motion. Debtors state that they do not object to allowance/amendment to GMC’s proof of claim from secured to unsecured to be paid pro-rata and any provision in the Plan to be interlineated accordingly. Debtors have been struggling financially and will update their Schedules I and J and/or seek Plan modification.
Disposition: GRANT requested relief under 11 U.S.C. § 362(d)(1). GRANT specific relief requested in paragraphs 2 (proceed under applicable non-bankruptcy law); 6 (waiver of 4001(a)(3) stay); and 11 (if stay not granted, order adequate protection).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Gerardo Melendez Represented By Shai S Oved
Joint Debtor(s):
Maribel Melendez Represented By
10:00 AM
CONT...
Movant(s):
Gerardo Melendez and Maribel Melendez
Shai S Oved
Chapter 13
AmeriCredit Financial Services, Inc. Represented By
Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11646
Michael T Stoller
Chapter 11
#14.00 Motion for relief from stay
ADJUSTABLE RATE MORTGAGE TRUST
fr. 12/4/19
Docket 62
Tentative Ruling:
Cont’d. fr. 12-4-19
The last hearing was continued per stipulation. Petition Date: 7-3-2019
Chapter: 11
Service: Proper. Late Opposition and Reply filed. Property: 5747 Hoback Glen Road, Hidden Hills, CA 91302
Property Value: $3,150,000 (per debtor’s schedules) or $3,660,000 (per Debtor’s declaration in opposition).
Amount Owed: $4,021,981.31 Equity Cushion: 0.0%
$1,793,880.90 unpaid amount that is overdue (131 late payments of $19,636.92 each)
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).
On January 3, 2020, Debtor filed a late opposition arguing that a dispute in state court about the modification agreement will affect the bases for this Motion and the Movant’s standing to bring this Motion. Debtor does nothing to explain why a late response was filed when he has had the motion since November 12, 2019. The court may not consider it, although there are other grounds on which teh opposition should be overruled.
Movant has filed a motion for summary judgment in state court, which is scheduled for arguments in March 11, 2020 (Movant, on the other hand, indicated that the state court hearing is scheduled for January 14, 2020). Either way, all that is left in that
10:00 AM
CONT...
Michael T Stoller
Chapter 11
action is an alleged breach of contract on a loan modification and none of the issues debtor raises once again here.
Debtor argues that the Movant has no standing because the original lender did not assign the deed of trust to Movant, so there is a break in the chain of title. The debtor has not only failed to preserve that argument in its state court litigation, but raises it improperly here as "[s]tay litigation is limited to issues of the lack of adequate protection, the debtor’s equity in the property, and the necessity of the property to an effective reorganization." In re Johnson, 756 F.2d 738, 740 (9th Cir. 1985), cert. denied, 474 U.S. 828 (1985). "Hearings on relief from the automatic stay are thus handled in a summary fashion. Id. "The validity of the claim or contract underlying the claim is not litigated during the hearing." Id. The court is "simply determin[ing] whether the creditor has a colorable claim to the property of the estate." In re Luz Intern, Ltd., 219 B.R. 837, 842 (citing In re Johnson, 756 F.2d at 740); see also In re Edwards, 454 B.R. 100, 104-05 (9th Cir. BAP 2011). Movant has attached the note, deed of trust, and assignment of the Property to its Motion, it has a colorable claim to the Property.
Creditor also has standing to enforce the loan under state law because it possesses the original note, which is endorsed. The note endorsement and assignments are entitled to a presumption of validity absent significant evidence to suggest otherwise. Debtor also argues that the Property will have sufficient equity because it will be developed and is anticipated to sell for $11,000,000. Debtor has not yet filed a proposed Ch. 11 Plan, Disclosure Statement, and a motion to employ a developer or broker. Debtor indicates that he will submit a memorandum with the developer on January 31, 2020 and file a disclosure statement and plan by February 28, 2020.
Debtor has had 2 and a half years since he filed his first bankruptcy to develop some sort of plan and still has none. he blames this lack of a developer on delays due to the holidays which rings hollow, given how long debtor has been trying to reorganize this property.
Finally, Movant argues that Debtor failed to produce evidence to dispute (1) the contractual default; (2) lack of an equity cushion in the Property; or (3) the Property’s failure to produce income. This is true. there is no admissible evidence of value now or what it might be if developed. The debtor has managed to delay making payemnts on this loan for over 10 years and has done nothing to reorganize despite being given a second chance. there is no reaonable prospect of reorganization shown.
To be GRANTED; APPEARANCE REQUIRED.
Party Information
10:00 AM
CONT...
Debtor(s):
Michael T Stoller
Chapter 11
Michael T Stoller Represented By Matthew Abbasi
Movant(s):
Adjustable Rate Mortgage Trust Represented By Greg P Campbell
10:00 AM
1:19-11717
Lois Ann Harris
Chapter 13
#15.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
Docket 48
Tentative Ruling:
Petition Date: 7-11-2019
Chapter: 13
Service: Proper. Opposition filed.
Property: 6828 Laurel Canyon Blvd. #102, North Hollywood, CA 91605 Property Value: $350,000 (per debtor’s schedules)
Amount Owed: $387,902.25 Equity Cushion: 0.0% Equity: $0
Post-Petition Delinquency: $5,881.80 (4 late payments of $1,945.76 each)
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); 7 (waiver of the 4001(a)(3) stay); 12 (Debtor is a borrower for purposes of Cal. Civ. Code. 2923.5); and 13 (if stay not granted, order APO).
Debtor opposed explaining that she is 62 years old and is a caregiver and Lyft driver, who has lived in the home since the early 90s. Debtor generates monthly income of
$1,500 by renting out the Property and another rental property for $1,500 per month.
Debtor faced financial hardship when she had a heart condition, which caused her to default on payments. A family tragedy further caused Debtor to fall behind on July, September, and November 2019 payments, but Debtor made a partial payment for October 2019.
Debtor alleges filing the bankruptcy in good faith and having substantially complied with the chapter 13 requirements. Debtor plans to pay the delinquency in 2 payments and become current before the hearing date.
APPEARANCE REQUIRED.
Party Information
10:00 AM
CONT...
Debtor(s):
Lois Ann Harris
Chapter 13
Lois Ann Harris Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12079
Martin Pantoja
Chapter 13
#16.00 Motion for relief from stay WILMINGTON TRUST NA
Docket 54
Tentative Ruling:
Petition Date: 8-20-2019
Chapter: 13 (unconfirmed)
Service: Proper (co-borrower served). No opposition filed. Property: 4701 Gould Avenue, La-Canada Flintridge, CA 91011 Property Value: $515,333 (per debtor’s schedules)
Amount Owed: $n/a Equity Cushion: 0.0% Equity: $n/a
Post-Petition Delinquency: $n/a
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 9 (relief under 362(d)(4)).
Movant asserts that the bankruptcy was filed in bad faith as part of a scheme to delay, hinder, or defraud creditors because of unauthorized transfers and multiple bankruptcy filings affecting the Property.
Movant alleges that eleven unauthorized and recorded transfers occurred from 2015 to 2019 that violated the mortgagor’s original deed of trust, and which purported to transfer a percentage interest in the Property as a gift for no consideration or nominal consideration.
Previous bankruptcy filings include: (1) a chapter 13, #15-11639, filed on 5-8-2015
and dismissed on 9-3-2015; (2) a chapter 13, #15-12032, filed on 10-13-2015 and
dismissed on 11-12-2015; (3) chapter 13, #16-21214, filed on 12-28-2016 and
dismissed on 1-17-2017.
Disposition: GRANT requested relief under 11 U.S.C. § 362(d)(1). GRANT specific
10:00 AM
CONT...
Martin Pantoja
Chapter 13
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 9 (relief under 362(d)(4)).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Martin Pantoja Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Movant(s):
Wilmington Trust, NA, successor Represented By
Nancy L Lee
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12112
Deborah Rose Sanders
Chapter 13
#17.00 Motion for relief from stay NEWREZ LLC
fr. 11/20/19
Docket 31
Tentative Ruling:
Cont’d. fr. 11-20-19
At the last hearing, the parties requested to continue for 30 days to resolve the loan modification issue. Debtor asserted that she made the 2 late payments. Exhibits of checks in the amount of $1,023.51 is attached to Debtor’s opposition.
What is the status of this Motion? APPEARANCE REQUIRED.
Petition Date: 8/22/19 Chapter: 13
Service: Proper. No opposition filed.
Property: 10220 De Soto Ave. Unit 23 Chatsworth, CA 91311 Property Value: $180,000 (per debtor’s motion to avoid lien) Amount Owed: $186,096
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $2,047 (2 payments of $1,023)
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 she is post-petition current and has entered into a trial loan modification with Movant. Is Movant amenable to a continuance of this hearing to a time after the trial period is ended?
APPEARANCE REQUIRED for 11-20-19 tentative.
10:00 AM
CONT...
Debtor(s):
Deborah Rose Sanders
Party Information
Chapter 13
Deborah Rose Sanders Represented By Kevin T Simon
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12136
Carolin Perez
Chapter 13
#18.00 Motion for relief from stay RESIDENTIAL BANCORP
Docket 17
Tentative Ruling:
Petition Date: 8-26-2019
Chapter: 13 (unconfirmed)
Service: Proper (co-debtor served). No opposition filed. Property: 15102 Saticoy Street, Van Nuys, CA 91405 Property Value: $477,000 (per debtor’s schedules) Amount Owed: $418,059.41
Equity Cushion: 4.0% Equity: $58,941
Post-Petition Delinquency: $9,098.33 (3 late payments of $2,689.11 each).
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 13 (if stay not granted, order APO).
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Carolin Perez Pro Se
Movant(s):
Residential Bancorp Represented By Mark S Krause
Erin M McCartney
Trustee(s):
Elizabeth (SV) F Rojas (TR) Represented By Mark S Krause
10:00 AM
CONT...
Carolin Perez
Chapter 13
10:00 AM
1:19-12254
Julie Espinosa De Los Monteros
Chapter 7
#19.00 Motion for relief from stay 924 CARONDELET LLC
Docket 14
Tentative Ruling:
Petition Date: 9-9-2019
Ch: 7
Service: Proper. No opposition filed. Movant: 924 Carondelet, LLC
Property Address: 924 S. Carondelet Street #219, Los Angeles, CA 90006 Type of Property: Residential
Occupancy: Unlawful detainer Foreclosure Sale: N/A
UD case filed: 8-22-2019 UD Judgment: N/A
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); 4 (stay is annulled); 6 (waiver of 4001(a)(3) stay); and 8 (in rem relief under 362(d)(4)).
Movant requests in rem relief alleging that the bankruptcy was filed in bad faith to prohibit further bankruptcies from staying the unlawful detainer. Movant explains that this is the second bankruptcy affecting the Property and believes that both bankruptcies were hijacked to stay the unlawful detainer.
Movant alleges that the first bankruptcy #19-20407 was purportedly filed by Richard Kim. However, Richard Kim contacted Movant’s attorney and stated that he did not live in the Property, never signed a lease, and never filed a claim of possession for the unlawful detainer. Movant’s attorney also received an email from Debtor, and Debtor declared that she never resided in the Property, did not know the defendants in the unlawful detainer case, and she believes her bankruptcy was hijacked to delay the unlawful detainer case.
Disposition: GRANT relief requested under 11 U.S.C. §§ 362(d)(1) and (d)(2).
10:00 AM
CONT...
Julie Espinosa De Los Monteros
Chapter 7
GRANT specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 4 (stay is annulled); 6 (waiver of 4001(a)(3) stay); and 8 (in rem relief under 362(d)(4)).
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Julie Espinosa De Los Monteros Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:19-12292
Michael William Sadowski and Linda Diane Ptolemy
Chapter 7
#20.00 Motion for relief from stay
PARTNERS FEDERAL CREDIT UNION
Docket 24
Tentative Ruling:
Petition Date: 9-12-2019 Chapter: 7 (no asset)
Service: Proper. No opposition filed. Property: 2014 Ford C-Max
Property Value: $10,925 (per Movant’s valuation) Amount Owed: $14,953.70
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: n/a Arrears: $869.28
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); and 11 (if stay not granted, order adequate protection).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Michael William Sadowski Represented By Brian J Horan
Joint Debtor(s):
Linda Diane Ptolemy Represented By Brian J Horan
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
CONT...
Michael William Sadowski and Linda Diane Ptolemy
Chapter 7
10:00 AM
1:19-12664
Jesus Sarabia Valle and Liliana Sarabia
Chapter 7
#21.00 Motion for relief from stay
ACAR Leasing LTD dba GM FINANCIAL LEASING
Docket 9
Tentative Ruling:
Petition Date: 10-22-2019 Chapter: 7 (no asset)
Service: Proper. No opposition filed. Property: 2017 Chevrolet Tahoe
Property Value: $33,505 (per debtor’s schedules) Amount Owed: $38,546.74
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: n/a Arrears: $2,902.50
Disposition: GRANT under 11 U.S.C. § 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 6 (waiver of 4001(a)(3) stay); and 11 (if stay not granted, order adequate protection).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Jesus Sarabia Valle Represented By Lauren M Foley
Joint Debtor(s):
Liliana Sarabia Represented By Lauren M Foley
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
CONT...
Jesus Sarabia Valle and Liliana Sarabia
Chapter 7
10:00 AM
1:19-12679
Robert A Brard
Chapter 13
#22.00 Motion for relief from stay ARCH CBT SPE, LLC
Docket 17
Tentative Ruling:
Petition Date: 10-23-2019
Chapter: 13 (unconfirmed)
Service: Proper. Opposition and Reply filed.
Property: 4511 Dulcinea Court, Woodland Hills, CA 91364
Property Value: $1,400,000. Debtor’s portion is valued at $700,000 (per debtor’s schedules).
Amount Owed: $1,268,315.50 Equity Cushion: 1.0%
Equity: $131,685
Post-Petition Delinquency: $n/a
Movant requests relief under 11 U.S.C. § 362(d)(1), with specific 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 13 (if stay not granted, order APO).
Movant made a short-term loan to Belle Maison Partners, Inc. secured by a first deed of trust on the Property. Movant commenced foreclosure, but Debtor, the CEO of Belle Maison, filed bankruptcy before the foreclosure sale. Movant seeks relief under § 364(d)(1) for "cause" because Debtor is allegedly not the owner of the Property; Debtor filed the case in bad faith; and Debtor filed the bankruptcy to stall the foreclosure. Movant also seeks relief under § 362(d)(4) because Debtor’s bankruptcy filing is allegedly part of a scheme to delay, hinder, or defraud creditors under § 364(d)(4) because of unauthorized transfers to an entity known as The Legacy Living Trust.
Debtor opposed explaining that he is in the process of selling the Property and claims that Movant will be paid in full. Debtor requests 90 days to open and close escrow. Debtor asserts that the Property value is $1,400,000, he has $131,684.50 in equity, and $20,000 equity cushion after cost of sales and commissions, which provides Movant adequate protection.
10:00 AM
CONT...
Robert A Brard
Chapter 13
Movant replied arguing that:
Debtor’s opposition offered no evidence as required by LBR 9013-1(f)(2).
Debtor’s claim of selling the Property and paying the Movant in full is unrealistic because Debtor provides no evidence and the Property has been listed since June 2019.
Debtor miscalculates his equity because the debt owed to Movant since the 10-23-19 petition date has substantially increased based on interest, default interest, late fees, attorney’s fees, and other costs. Also, Los Angeles County secured a $30,092.47 tax lien against the Property. Movant calculates that its claim is now $1,366,193 ($1,268,315 original claim + $67,785 accrued post- petition fees + $30,092.47 property taxes). Movant points out that the cost of sale is approximately $84,000 based on a 6% commission of the $1,400,000
sales price. Thus, Debtor will have a negative equity of -$50,193.27 ($1,400,000 sales price - $1,366,193.27 owed to Movant - $84,000 costs of sale).
Debtor’s 90 days should be denied because Debtor offered no evidence about the sale of the Property. Plus, the debt owed to Movant will increase further after 90 days.
Debtor fails to address independent grounds for the court to grant relief, such as Movant’s contention that Debtor does not own a direct interest in the Property and that Debtor filed the bankruptcy in bad faith under § 362(d)(1) or as a scheme to hinder and delay Movant’s foreclosure § 362(d)(4). Movant points out that the Chapter 13 Trustee reached the conclusion that, "Debtor [is] using bankruptcy to not pay secured creditor until property is sold." [Dkt. No. 19, Ex.
10].
Disposition: GRANT requested relief under 11 U.S.C. § 362(d)(1). GRANT specific 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 13 (if stay not granted, order APO).
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Robert A Brard Represented By Ali R Nader
10:00 AM
CONT...
Movant(s):
Robert A Brard
Chapter 13
Arch CBT SPE, LLC Represented By Christopher Minier
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12691
Roberto Mendez Gonzalez
Chapter 7
#23.00 Motion for relief from stay BANK OF AMERICA, N.A.
Docket 8
Tentative Ruling:
Petition Date: 10-24-2019
Chapter: 7
Service: Proper. No opposition filed. Property: 2016 Chevrolet Camaro
Property Value: $25,000 (per debtor’s schedules) Amount Owed: $33,187.00
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $905.32 (1 late payment of $905.32) Arrears: $5,427.24.
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.
Party Information
Debtor(s):
Roberto Mendez Gonzalez Represented By Sydell B Connor
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:19-12808
Mardo Santos
Chapter 7
#24.00 Motion for relief from stay BMO HARRIS BANK N.A.
Docket 8
Tentative Ruling:
Petition Date: 11-6-2019
Chapter: 7
Service: Proper. No opposition filed.
Property: 2016 Wabash Refrigerated Trailer vehicle Property Value: $42,000 (per Movant’s valuation) Amount Owed: $43,439.25
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $1,457.69 (1 late payment of $1,457.69). Other: 1 prepetition payment of $1,457.69
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).
DENY relief requested in paragraph 3 (confirm no stay in effect) as no facts were alleged that would provide grounds for such relief.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Mardo Santos Represented By Sydell B Connor
Movant(s):
BMO HARRIS BANK N.A. Represented By
Raffi Khatchadourian
10:00 AM
CONT...
Trustee(s):
Mardo Santos
Chapter 7
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:17-12668
Demonica E M Santiago-Plummer
Chapter 13
#25.00 Default Under Adequate Protection Order; Request for Entry of Order Granting Relief from Stay 67 Notice of motion and motion for relief from the automatic stay with supporting declarations REAL PROPERTY
RE: 7501 Jumilla Ave, Winnetka, CA 91306 .
Docket 105
Tentative Ruling:
On June 24, 2019, the court entered an adequate protection order ("APO"). The APO required Debtor to (1) make regular monthly payments of $1,741.50 starting June 1, 2019; and (2) cure $8,115.88 in post-petition default by making stipulation payments of $901.76 per month starting June 15, 2019 until January 15, 2020.
Wells Fargo now moves for relief from stay based on an alleged default under an adequate protection order ("Motion"). Debtor allegedly failed to make stipulation payments for August to October 2019 and regular mortgage payments for September to November 2019.
Debtor opposed explaining that she had an "unforeseen emergency," but she is current because she made regular mortgage payments that totaled $6,685 to cure the December 2019 default. Debtor also asserts making stipulation payments totaling $3,205.28. Exhibits evidencing payments are attached to Debtor’s opposition.
APPEARANCE REQUIRED.
Past Tentative:
Petition Date: October 4, 2017 Chapter:13
Service: Proper. Opposition filed.
Property: 7501 Jumilla Ave., Winnetka, CA 91306 Property Value: $ 581,473 (per debtor’s schedules) Amount Owed: $ 325,968.56 (per RFS motion) Equity Cushion: 36% (assuming 8% cost of sale) Equity: $255,504.44
10:00 AM
CONT...
Demonica E M Santiago-Plummer
Chapter 13
Post-Petition Delinquency: $8,263.38 (4 payments of $1,741.50)
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, arguing that more payments have been made than movant accounts for and requesting that any remaining default be paid through an APO. Movant also appears to have a large equity cushion.
APPEARANCE REQUIRED for past tentative.
Party Information
Debtor(s):
Demonica E M Santiago-Plummer Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11538
Momentum Development LLC
Chapter 7
Adv#: 1:19-01129 Weil v. The Pyramid Center, Inc.
#26.00 Status Conference re: Complaint to avoid fraudulent transfers
Docket 1
*** VACATED *** REASON: Amended Complaint filed new summons issued new hrg. 1/15/20 @11am (eg)
Tentative Ruling:
Party Information
Debtor(s):
Momentum Development LLC Represented By
Michael H Raichelson
Defendant(s):
The Pyramid Center, Inc. Pro Se
Plaintiff(s):
Diane Weil Represented By
David Seror
Trustee(s):
Diane C Weil (TR) Represented By David Seror
10:00 AM
1:19-10828
Anna Barseghian
Chapter 7
Adv#: 1:19-01083 Zamora, Chapter 7 Trustee v. Baron et al
#27.00 Status Conference Re: Compliant for Avoidance of Transfer; Recovery of Avoided Transfer; Determination of Value, Priority, Extent and Validity of Lien; Declaratory Relief; Quiet Title; To Remove Cloud on Title; and Injunction
fr. 9/18/19, 11/6/19
Docket 1
*** VACATED *** REASON: Doc. #21 - Order continuing Status Conference to 4/8/20.
Tentative Ruling:
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Defendant(s):
Van Baron Pro Se
Does 1-20 Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Wesley H Avery
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
10:00 AM
1:19-10828
Anna Barseghian
Chapter 7
Adv#: 1:19-01084 Zamora, Chapter 7 Trustee v. Barseghian
#28.00 Status Conference Re: Complaint for Denial of Discharge.
fr. 9/18/19, 11/6/19
Docket 1
*** VACATED *** REASON: Doc. #18 - Order continuing Status Conference to 4/8/20.
Tentative Ruling:
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Defendant(s):
Anna Barseghian Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Wesley H Avery
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
10:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
Adv#: 1:19-01130 Saucedo v. San Vicente et al
#29.00 Status Conference re: Complaint to determine dischargeability of debt
Docket 1
Tentative Ruling:
Plaintiff’s counsel notes that this adversary presents most of the same issues as the pending adversary 19-01123 & recommends that the Court adopt the same scheduling order as was entered in that case (19-01123, ECF doc. 9). Is Defendant amenable to having the same schedule adopted for this adversary?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Maria Estela San Vicente Represented By Michael R Totaro
Defendant(s):
Maria Estela San Vicente Pro Se
Sergio San Vicente Pro Se
Plaintiff(s):
Rosa Saucedo Represented By Jesse J Thaler
10:00 AM
1:17-13125
Yanna Aleksandrovich
Chapter 7
Adv#: 1:18-01019 Karish Kapital LLC v. Aleksandrovich
#29.01 Motion for the Award of Attorneys Fees and Costs to Defendant
Docket 34
Tentative Ruling:
To be heard at 1:00 p.m., with the Motion to Reconsider Entry of Judgment, cal. no. 38
NO APPEARANCE REQUIRED AT 10:00 AM TENTATIVE RULING FOR 1:00 P.M. BELOW
The facts of the two related adversary proceedings have been exhaustively detailed in the tentative ruling for calendar no. #38. On November 25, 2019, Defendant filed a Motion for Attorney’s Fees and Costs as a prevailing party, based on Cal. Civ. Code § 1717. Under California Civil Code § 1717(a),
In any action on a contract, where the contract specifically provides that attorney's fees and costs which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.
Cal. Civil Code § 1717 does not apply to tort claims; it determines which party, if any, is entitled to attorney's fees on a contract claim. Stout v. Turney, 22 Cal.3d 718, 730 (Cal. 1978) (action for fraud arising out of a contract to sell real property was not an action on a contract within the meaning of Civil Code § 1717); Santisas v. Goodin, 17 Cal.4th 599, 615 (Cal. 1998) (complaint alleging failure to disclose defects in sales transaction sounded in tort and was entirely outside the scope of Civil Code § 1717). The dischargeability of a debt under § 523(a)(2)(A) resolves a tort claim. Candland v. Ins. Co. of N. Am. (In re Candland), 90 F.3d 1466, 1470 (9th Cir. 1996) (discussing elements of § 523(a)(2)(B) case).
10:00 AM
CONT...
Yanna Aleksandrovich
Chapter 7
The contract attached to the Complaint contains an attorney’s fees provision. Section
1.11 provision of Protection Against Default provides:
Protection 6: KK may proceed to protect and enforce its rights and remedies by lawsuit. In any such lawsuit, in which KK shall recover judgment against Merchant, shall be liable for all of KK’s costs of lawsuits, including but limited to all reasonable attorney’s fees and court costs.
See Complaint, Ex. B, internal p. 2 (emphasis added).
Further, the Contract also provides at section 3.4 that "Costs: Merchant shall pay to KK all reasonable costs associated with … (b) the enforcement of KK’s remedies set forth in Section 3.3 above, including but not limited court costs and attorney’s fees." Id. at internal p. 4 (emphasis added).
In Bos v. Board of Trustees, the Ninth Circuit held that the § 523(a)(4) case before it was not within the ambit of Civil Code §1717. Ninth Circuit pointed out that:
Santisas and relevant Ninth Circuit cases establish not just a rule of inclusion, but also a rule of exclusion: that if the bankruptcy court did not need to determine whether the contract was enforceable, then the dischargeability claim is not an action on the contract within the meaning of [Civil Code] § 1717.
Bos v. Board of Trustees, 818 F.3d 486, 489 (9th Cir. 2016) (citing Redwood Theaters, Inc. v. Davison (In re Davison), 289 B.R. 716, 723 (B.A.P. 9th Cir. 2003)).
Here, the Pretrial Stipulation adopted by the Court covered issues of fact and law related only to a determination of dischargeability for fraud under § 523(a)(2) or willful and malicious injury under § 523(a)(6). No issues of fact or law included in the Pretrial Stipulation related to the enforceability of the contract, or issues related enforcement of the terms or collection of what was owed. See Exxess Electronixx v. Heger Realty Corp., et al., 64 Cal.App.4th 698, 710 (Cal.Ct.App. 1998) (holding that tort claims for breach of fiduciary duty and constructive fraud did not enforce the terms of a lease contract and were thus outside the ambit of § 1717).
While the Court cannot award attorney’s fees and costs to Defendant’s counsel under Cal. Civ. Code § 1717, Defendant has not addressed whether there are grounds for an award of attorney’s fees under LBR 9011-3(c). The Court would
10:00 AM
CONT...
Yanna Aleksandrovich
Chapter 7
entertain a Motion for Order to Show Cause Why Sanctions should not be Imposed under LBR 9011-3, brought under the procedures of LBR 9020-1.
For the reasons stated above, the Motion for the Award of Attorney’s Fees and Costs to Defendant is DENIED.
Party Information
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 Jarrod Y Nakano
Trustee(s):
Diane C Weil (TR) Pro Se
10:00 AM
1:19-10828
Anna Barseghian
Chapter 7
Adv#: 1:19-01083 Zamora, Chapter 7 Trustee v. Baron et al
#29.02 Motion to Continue Hearing On Status Conference
Docket 17
*** VACATED *** REASON: Doc. #21 - Order continuing Status Conference to 4/8/20.
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Defendant(s):
Van Baron Pro Se
Does 1-20 Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Wesley H Avery
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
10:00 AM
1:19-10828
Anna Barseghian
Chapter 7
Adv#: 1:19-01084 Zamora, Chapter 7 Trustee v. Barseghian
#29.03 Motion to Continue Hearing On Status Conference
Docket 14
*** VACATED *** REASON: Doc. #18 - Order continuing Status Conference to 4/8/20
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Defendant(s):
Anna Barseghian Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Wesley H Avery
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
10:00 AM
1:11-16307
Diana Lopez
Chapter 7
#30.00 Motion for Order Disallowing Claim No. 35-1
Docket 317
Tentative Ruling:
Claimant filed Claim 35-1 on January 30, 2012, asserting a claim totaling
$199,000.00 in the Lopez case. Trustee argues that the Claim lacks supporting evidence. The Claim asserts the loss of $199,000 against many defendants.
Claimant alleged in a State Court action that Debtor did not perform under a contract for sale of property located at 1051 N. Brantford St., Anaheim, CA 92805 ("Property"). The principal attachment to Claim 35-1 appears to Claimant’s Complaint filed April 26, 2011 in the Orange County Superior Court, case number
20-2011-00470257 ("Complaint"). Trustee argues that critical allegations in the Complaint are deficient or lack the supporting documents alleged.
Prior to filing the within Objection, Trustee sent a letter to Claimant outlining the basis for objections to his Claim. The letter was directed to Claimant at the address shown for his claim 35-1. Claimant is a member of the State Bar of California and that address is shown currently on the website of the State Bar as his address of record with the State Bar. Trustee received no response.
Service proper at address on proof of claim designated to receive notice. No opposition filed.
Objection SUSTAINED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS. NO APPEARANCE REQUIRED ON 1/8/2020
Party Information
Debtor(s):
Diana Lopez Represented By
Kathleen P March
Trustee(s):
David Seror (TR) Represented By Claire E Shin Steven T Gubner
10:00 AM
CONT...
Diana Lopez
David Seror (TR) Corey R Weber Richard Burstein Jessica L Bagdanov
Chapter 7
10:00 AM
1:18-11544
Happy Jump, Inc.
Chapter 11
#31.00 U.S. Trustee Motion to dismiss or convert Under 11 U.S.C. § 1112(b)
Docket 164
Tentative Ruling:
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Happy Jump, Inc. Represented By Mark T Young
Amelia Puertas-Samara
10:00 AM
1:18-11544
Happy Jump, Inc.
Chapter 11
#32.00 Status and case management conference
fr. 12/12/18, 4/17/19; 5/15/19, 9/11/19, 10/23/19, 12/18/19
Docket 1
Tentative Ruling:
Party Information
Debtor(s):
Happy Jump, Inc. Represented By Mark T Young
10:00 AM
1:09-16565
David Schwartzman
Chapter 11
#33.00 Post confirmation status conference 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;
8/1/18; 3/6/19, 8/21/19, 12/18/19
Docket 1
Tentative Ruling:
Having reviewed Debtor’s Post-Confirmation Status Report (ECF doc. 418), the Court finds cause to continue this post-confirmation status conference to July 15, 2020, at 10:00 a.m. Debtor to give notice of the continued status conference.
NO APPEARANCE REQUIRED ON 1/8/2020
Party Information
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
11:00 AM
1:12-10231
Owner Management Service, LLC and Trustee Corps
Chapter 7
#34.00 Motion to Disallow Claims Objection to Proof of Claim No. 38
fr. 12/4/19
Docket 2317
Tentative Ruling:
Chicago's evidence must be subjected to cross examination and the claims objections turned into a contested matter as they have come forward with a colorable claim. They have not, however, provided sufficient evidence of why they did not file the claim sooner, so the question of what priority any claim might have should perhaps be resolved first
Party Information
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 Jorge A Gaitan
1:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
Adv#: 1:19-01041 Lipel v. Davis et al
#35.00 Motion For Summary Judgment, In the Alternative,
Motion for Partial Summary Judgment fr. 7/17/19; 8/28/19, 11/13/19
Docket 13
*** VACATED *** REASON: Cont'd to 1/29/2020, per Order (ECF doc. 50) - hm
Tentative Ruling:
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler
Defendant(s):
Lesly Davis Represented By
Talin Keshishian
BRUTZKUS, GUBNER, Represented By Talin Keshishian
Plaintiff(s):
Vadim A Lipel Represented By
Blake J Lindemann
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
1:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
Adv#: 1:19-01041 Lipel v. Davis et al
#36.00 Status Conferencere re: First Amended Complain fr. 7/31/19; 8/28/19, 11/13/19
Docket 9
Tentative Ruling:
This status conference is continued to January 29, 2020, at 1:00 p.m., to be heard with the Motion for Summary Judgment
APPEARANCES WAIVED ON 1/8/2020
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler
Defendant(s):
Lesly Davis Represented By
Talin Keshishian
BRUTZKUS, GUBNER, Represented By Talin Keshishian
Plaintiff(s):
Vadim A Lipel Represented By
Blake J Lindemann
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
1:00 PM
1:12-17302
Dennis Berkovich
Chapter 13
Adv#: 1:19-01007 California Franchise Tax Board v. Berkovich
#37.00 Status Conference Re: Complaint to Determine NonDischargeability of Tax [11 USC Sections 523(a)(1)(B) (i) and 1328(a)(2)]
fr. 5/1/19
Docket 1
*** VACATED *** REASON: continued to 1/15/20 at 1 pm Tentative Ruling:
Continued to 1/15/20 at 1 pm to be heard at same time as motion for
summary judgment
Party Information
Debtor(s):
Dennis Berkovich Represented By Charles Shamash Joseph E. Caceres
Defendant(s):
Dennis Berkovich Represented By
Andrew Edward Smyth
Joint Debtor(s):
Marina Voloshin Represented By Charles Shamash Joseph E. Caceres
Plaintiff(s):
California Franchise Tax Board Represented By Ronald N Ito
1:00 PM
CONT...
Trustee(s):
Dennis Berkovich
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:17-13125
Yanna Aleksandrovich
Chapter 7
Adv#: 1:18-01019 Karish Kapital LLC v. Aleksandrovich
#38.00 Motion to Reconsider Judgment
Docket 38
Tentative Ruling:
On October 30, 2017, Yakov Aleksaundrovich, along with his co-debtor wife Natalia Koutina, filed a voluntary chapter 7 petition (referred to for clarity as the "Koutina Bankruptcy"). On November 22, 2017, Yanna Aleksandrovich, Yakov’s daughter, also filed a voluntary chapter 7 petition (referred to here for clarity as the "Aleksandrovich Bankruptcy").
On January 12, 2018, plaintiff Karish Kapital, LLC ("Plaintiff") filed an adversary complaint in the Koutina Bankruptcy to determine the dischargeability of a debt under §§ 523(a)(2) and (a)(6), assigned case no. 1:18-ap-01007 (the "Koutina Adversary"). On February 13, 2018, Plaintiff also filed an adversary complaint in the Aleksandrovich Bankruptcy to determine the dischargeability of a debt under
§§ 523(a)(2) and (a)(6), assigned case no. 1:18-ap-01019 (the "Aleksandrovich Adversary"). Both adversaries were filed on behalf of Plaintiff by its attorney McFarlin, LLP.
On March 20, 2018, the parties stipulated to dismiss Yakov Alexsaundrovich from the Koutina Adversary, 1:18-ap-01007, ECF doc. 17. Thereafter, status conferences were set on October 20, 2018 for both the Koutina Adversary and the Aleksandrovich Adversary. In preparation for the October 10 status conferences, the parties filed a Joint Status Report in the Aleksandrovich Adversary, signed by Plaintiff’s counsel from McFarlin, LLP, Jarrod Nakano ("Nakano"), 18-01019, ECF doc. 9, 9/26/18. In the Koutina Adversary, Plaintiff filed a Unilateral Status Report, also signed by Nakano, wherein he stated that he had not met and conferred with Defendant’s counsel as required under Local Bankruptcy Rule ("LBR") 7026-1 because "I was out on vacation and the emails were not being monitored." 18-01007 ECF doc. 28, 9/24/18.
On October 10, 2018, the Court held status conferences for both adversary proceedings. Attorney Hayden Traver, not Nakano, appeared for Plaintiff. At the status conferences, Defendant’s counsel Stella Havkin ("Havkin") represented that she did not receive any of the required Rule 26 disclosures of documents or
1:00 PM
CONT...
Yanna Aleksandrovich
Chapter 7
witnesses for either the Koutina Adversary or the Aleksandrovich Adversary. Havkin explained that she believed that the parties had agreed to a Pretrial Stipulation but then her email to Nakano regarding such was not returned. She then filed a Unilateral Pretrial Statement as required under LBR 7026-1(e)(2). Plaintiff also filed his Unilateral Pretrial Statement, explaining about his vacation. Havkin was amenable to mediation but not until she was able to review Plaintiff’s Rule 26 disclosures.
When questioned by the Court as to the status of the untimely Rule 26 disclosures, Mr. Traver explains that he is unfamiliar with the case because his "supervisor is handling the case." The Court reminded Plaintiff’s counsel that under LBR 7026-1(a)(1), a party must be represented by either an attorney who is responsible for trying the case or the attorney who is responsible for preparing the case for trial. The Court admonished Plaintiff’s counsel, explaining that the lack of compliance with the Rules was really delaying the case and that Plaintiff’s counsel’s practice of sending an attorney unfamiliar with the cases "is not going to fly, if it happens again." The Court continued both status conferences to November 14, 2018, to ensure that Plaintiff had made the required Rule 26 disclosures.
On November 14, 2018, Mr. Traver again appeared for Plaintiff, informing the Court that the required Rule 26 disclosures were filed on October 24, 2018 in the Koutina Adversary and on November 13, 2018 in the Aleksandrovich Adversary.
The Court pointed out to Mr. Traver that the Rule 26 disclosures were filed unnecessarily on the docket, instead of providing it to Havkin as the Rule intended. The Court then explained that a sealing order would be necessary because of personal identifying information contained in the Rule 26 disclosures. While the Court blocked public access in the interim to protect Defendant’s privacy, the Court ordered that Plaintiff lodge a sealing order. No sealing order was ever lodged. The Court then questioned by there were two complaints filed asserting the same causes of action. Mr. Traver was unable to explain why two complaints were necessary because "that was done before [he] joined to the firm." After Havkin explained the facts surrounding the two separate bankruptcy cases that necessitated the filing of two complaints related to one contract, the Court decided that the Koutina and Aleksandrovich Adversaries would be administrated together and set the pretrial conferences on February 27, 2019, with the briefing controlled by LBR 7016-1.
On February 12, 2019, the parties filed a Stipulation to Continue the Pretrial Stipulation Deadline and Continue Pretrial Conference in the Aleksandrovich Advesary. The Court entered an Order Approving the Stipulation continued the Aleksandrovich Advesary pretrial conference to March 27, 2019. 18-01019, ECF doc.
1:00 PM
CONT...
Yanna Aleksandrovich
Chapter 7
12; 16. In the Koutina Advesary, however, nothing was filed in advance of the pretrial conference, and it remained on calendar for February 27, 2019. After no appearance was made on behalf of Plaintiff, the Court issued an Order to Show Cause re Dismissal for lack of prosecution (the "OSC"). The hearing on the OSC was set for March 27, 2019, at 10 a.m.
On March 27, 2019, attorney Mario Oropeza appeared on behalf of Plaintiff. No response was filed to the OSC. When questioned by the Court as to whether he is the main counsel, Mr. Oropeza represented that he just joined the case and was asked to attend the hearings, but that Nakano is main counsel who will handle the trial. The Court, frustrated to again be speaking with Counsel who was not the attorney of record who would not be handling the trial, explained that Nakano needs to attend the status conferences as the trial counsel and that if he sends unknowledgeable counsel again, he will be sanctioned. When addressing the OSC, Mr. Oropeza explained that a filing error led to a stipulation to continue not being filed in the Koutina Adversary, like the one that was filed in the Alexsadrovich Adversary, and thus Plaintiff’s not appearing on February 27, 2019, was an error.
Havkin then informed the Court that she did not receive the draft pretrial stipulation from Plaintiff for the Aleksandrovich Adversary, as required under LBR 7016-1(c). Havkin then filed a Unilateral Pretrial Statement under LBR 7016-1(e)(2). 18-01019, ECF doc. 19, filed March 6, 2019, at 4:26 p.m. Thereafter, Plaintiff’s counsel filed a Unilateral Pretrial Statement. 18-01019, ECF doc. 20, filed March 6, 2019, at 8:53 p.m. Mr. Oropeza confirmed that a pretrial stipulation was not drafted for either case "so far as he knows." The Court questioned Mr. Oropeza as to why no work was done on the pretrial stipulation, if Plaintiff’s non-appearance at the February 27 pretrial conference was merely due to a mistaken belief that it had been continued per a stipulation. In response, Mr. Oropeza stated that "this was just brought to my attention this week, for me." When pressed by the Court as to McFarlin’s or Nakano’s efforts thus far, Mr. Oropeza could not provide any explanation. Mr. Oropeza did promise, however, to "encourage Mr. Nakano to appear moving forward."
Noting that Plaintiff did not appear to be prosecuting either case properly and not complying with the Rules, the Court nonetheless reluctantly vacated the OSC so that the matters could be resolved on their merit. To ensure that the adversaries proceeded with alacrity, the Court set "really firm deadlines" for the drafting and filing of the pretrial stipulation and set the pretrial conference for both adversaries on May 22, 2019.
1:00 PM
CONT...
Yanna Aleksandrovich
On May 22, 2019, the Court held a pretrial conference to review the pretrial
Chapter 7
stipulation that would control the trial for both adversaries. Nakano appeared on behalf of Plaintiff. The Joint Pretrial Stipulation was filed timely in Aleksandrovich Adversary on May 8, 2019, 18-01019, ECF doc. 22. The Court adopted the Joint Pretrial Stipulation. When the parties were discussing dates for trial, Nakano declined the June dates offered by the Court because he had another trial. Nakano also declined the August dates offered by the Court because he had a prepaid vacation to Hawaii planned. Ultimately, the Court set the trial set for October 29, 2019 at 10 a.m. but then allowed the parties an opportunity to attend a free mediation between then and the October trial, offered by the bankruptcy court’s mediation program. After the parties agree to attend mediation, the Court ordered Plaintiff to lodge a mediation order. No mediation order was lodged by Plaintiff.
On September 12, 2019, M. Jonathan Hayes, mediator, filed a certificate that the matter was unsettled. 18-01019, ECF doc. 23. In the Certificate, Mediator states that Plaintiff did not appear & that Defendant was prepared and ready for the mediation. Id. On October 15, 2019, a joint status report was filed in the Aleksandrovich Adversary by the parties, wherein Plaintiff asserts that its counsel was "in an automobile accident and was not able to attend Mediation as previously scheduled." No evidence was submitted by Plaintiff to show that Nakano was involved in an auto accident or was treated for injuries therefrom. Three days later, on October 18, 2019, the Court issued an Order Changing Time of Trial on Claims under § 523(a), moving the time of trial on October 29, 2019, from 10:00 a.m. to 1:00
p.m. 18-01019, ECF doc. 25. The Order did not reference the procedurally improper "joint status report."
On October 29, 2019, attorney Daniel Uribe appeared for Plaintiff. When the Court called for opening statements to begin the trial, Mr. Uribe explained that he was not trial counsel and was unprepared to go forward because he "found out about this case a few days ago" and that Nakano had suffered a concussion about
weeks prior and was unable to appear. Mr. Uribe admitted to being confused as to why trial was proceeding when the parties filed a status report indicating that they would not be ready for trial until February 2020. The Court explained that trial dates set by the Court cannot be moved by the parties without an order. Havkin indicated that she was prepared for trial and had called the Court the prior week to be sure that the trial was going forward.
Mr. Oropeza professed to be knowledgeable about the LBRs but acknowledged that LBR 7016-1(a) requires that the attorney who is responsible for trying the case or the attorney who is responsible for preparing the case for trial
1:00 PM
CONT...
Yanna Aleksandrovich
Chapter 7
appear at hearings. Plaintiff presented no evidence to support Nakano’s explanations of unavailability.
After having exhaustively reviewed the timeline of Plaintiff’s lack of compliance with scheduling orders and Local Rules, the Court dismissed the case with prejudice but reserved jurisdiction to hear any motion for attorney’s fees and costs filed by Defendants. An Order Dismissing Adversary Proceeding and Judgment was entered on November 13, 2019 (ECF doc. 30 and 31).
On November 25, 2019, Defendant filed a Motion for Attorney’s Fees and Costs and set a hearing on the Motion for Attorney’s Fees and Costs for January 8, 2020. On November 27, 2019, Plaintiff filed a Motion for Reconsideration of Entry of Judgment (the "Motion"). On December 11, 2019, the Court set a hearing on the Motion for January 8, 2020.
Standard
Under Rule 60, the moving party is not permitted to revisit the merits of the underlying order; instead, grounds for reconsideration require a showing that events subsequent to the entry of the judgment make its enforcement unfair or inappropriate, or that the party was deprived of a fair opportunity to appear and be heard. United Student Funds, Inc. v. Wylie (In re Wylie), 349 B.R. 204, 209 (B.A.P. 9th Cir. 2006). Under Rule 60, the court may relieve a party from an order for:
mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
the judgment is void;
the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; and
any other reason that justifies relief.
Fed. R. Civ. P. 60(b). In general, the burden of proof is on the party bringing a Rule 60(b) motion. See In re Gonzalez, 2019 WL 1495729 (Bankr. C.D. Cal. March 29, 2019).
A Rule 60(b) motion for reconsideration is timely if brought within a
1:00 PM
CONT...
Yanna Aleksandrovich
Chapter 7
reasonable time and if based on grounds (1), (2), or (3) enumerated above, then no more than a year after entry of the order. Fed. R. Civ. P. 60(c).
Plaintiff argues that "extraordinary circumstances" prevented lead counsel Nakano from attending trial and that such circumstances fall within the kind of "mistake, inadvertence, surprise, excusable neglect" that provide grounds for reconsideration. Exhibit B to the Motion is hard to read but it appears that Nakano was treated for a concussion on or about October 23, 2019. Defendant opposes the Motion, arguing that the failure to notify anyone of his inability to appear at trial is one in a long line of failures to communicate and abide by deadlines, as required under the Local Bankruptcy Rules and this Court’s Orders.
"[W]hether neglect is excusable is an equitable [determination] that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings;
(3) the reason for the delay and whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith." Bateman v. United States Postal Service, 231 F.3d 1220, 1223-24 (9th Cir. 2000). The Ninth Circuit has held that the Pioneer factors are not exclusive, but instead "provide a framework with which to determine whether missing a filing deadline constitutes ‘excusable’ neglect." Briones v. Riviera Hotel Casino, 116 F.3d 379, 381 (9th Cir. 1997) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993)). Although Pioneer dealt with a party’s failure to meet a filing deadline, the same factors are applied in cases where a party has failed to appear. See, Dryer v. Hyter Mgmt. Co., 2005 WL 8156201, at *1 (C.D. Cal. June 6, 2005) (citing Cobos v. Adelphi University, 179 F.R.D. 381, 386 (E.D.N.Y. 1998)).
In Jarvis v. Parker, the District Court was presented with a Motion for Relief from Judgment under Rule 60(b), wherein the plaintiffs requested relief from an order dismissing an adversary proceeding due to the plaintiffs’ failure to file a timely opposition. Jarvis v. Parker, 13 F. Supp. 3d 74, 76 (D.D.C.
2014). In support of the Rule 60(b) motion, the plaintiffs' counsel explained that his failure to timely respond was due, in part, to an illness that incapacitated counsel for eight days. Id. Because of his illness, the plaintiffs’ counsel stated that he was unable to file an extension request or prepare the filing in time. Id. Further, both because of his mistake as to the rules of this Court and the lingering effects of his illness, the plaintiffs' counsel stated that he believed that he had twenty-one days to file his response rather than the
1:00 PM
CONT...
Yanna Aleksandrovich
Chapter 7
actual seventeen days provided by the Local Rules and the Federal Rules of Civil Procedure. Id. The District Court in Jarvis rejected the argument that an incapacitating illness prevented the plaintiffs’ counsel from complying with filing deadlines, finding that there was sufficient time to respond or seek an extension due to illness. Id. at 78. The District Court explained that the plaintiffs' counsel had six days in which to take this action with respect to one motion—three days prior to his illness and three days afterward and eight days to take this action with respect to a different motion—two days prior to his illness and six days afterwards. Id.
While an attorney's illness may constitute an extraordinary circumstance warranting relief under Rule 60(b)(1), see, e.g., Gravatt v. Paul Revere Life Ins. Co., 101 Fed.Appx. 194, 195–96 (9th Cir.2004), that is not always the case. In the case at hand, nothing about the attorney's injury suggests a complete inability to communicate with the Court or opposing counsel. Here, Nakano’s injury occurred nine days prior to the trial date.
See Nakano Decl. ISO Motion, ¶2. There is no explanation offered as to why Plaintiff’s Counsel made no effort to notify the Court or Defendants’ counsel that the trial attorney would be unavailable for trial on October 29, 2019. In fact, Nakano states in his declaration that he sustained his injury on October 20, 2019. Exhibit B shows that he was treated on October 23, 2019. This shows that Nakano retained the ability to communicate.
Defendant will clearly be prejudiced if this Motion is granted.
Defendant notes that this case has gone one for nearly two years now with Defendant having to pay attorney’s fees, attend hearings and lose time from work, all because Plaintiff has not properly prosecuted the matter. The underlying bankruptcy case was a relatively simple, no-asset, chapter 7 case that should have been administered to discharge within a few months. This adversary proceeding stopped the case from progressing and Debtor’s fresh start was unjustifiably delayed. The length of the delay here was exacerbated by Plaintiff not proving Rule 26 disclosures in a timely fashion, sending unprepared attorneys to hearings, no-showing at the mediation and then treating the Trial Date as a status conference, irrespective of the Court’s October 18, 2019 Order.
The inquiry into whether a party's action constitutes excusable neglect "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer, 507 U.S. at 395. Plaintiff focuses the entirety of its five-page Motion on Nakano’s October 20, 2019 concussion
1:00 PM
CONT...
Yanna Aleksandrovich
Chapter 7
without any consideration of Plaintiff’s counsel’s history of lack of compliance with both the Local Bankruptcy Rules and the Federal Rules of Civil Procedure and his history of failing to appear at court hearings and at a free mediation that was scheduled by the parties themselves. Plaintiff’s counsel did not notify the Court that Nakano was unable to appear at trial and the same lack of communication was displayed when Nakano no-showed at the mediation. No prior notice was given to either opposing counsel or the mediator that Nakano would not be appearing at the September mediation.
As stated above, the Pioneer factors are not exclusive and the Pioneer factor regarding fault, i.e., the reason for the delay, is "perhaps the most important single factor." Webster v. Pacesetter, Inc., 270 F.Supp.2d 9, 14–15 (D.D.C.2003) (internal quotations and citations omitted). See also Wilson v. Prudential Fin., 218 F.R.D. 1, 3 (D.D.C.2003) (fault is the "key factor" in excusable neglect analysis). On this record, Plaintiff has not met its burden of proof of demonstrating legally sufficient grounds and evidence to support this Motion.
Motion for Reconsideration DENIED.
Party Information
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 Jarrod Y Nakano
Trustee(s):
Diane C Weil (TR) Pro Se
1:00 PM
1:17-13341
Castillo I Partnership
Chapter 11
Adv#: 1:19-01013 Castillo I Partnership v. MORTGAGE ELECTRONIC REGISTRATION
#39.00 Motion to Dismiss Adversary Proceeding
Docket 68
*** VACATED *** REASON: Vol. dismissed by Plaintiff (ECF doc. 74) - hm
Tentative Ruling:
Party Information
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Defendant(s):
MORTGAGE ELECTRONIC Represented By Valerie J Schratz
Bayview Financial Trading Group Pro Se M&T Mortgage Corp. Pro Se
Bayview Loan Servicing LLC Pro Se
Benjamin Kolodaro Pro Se
Nily Kolodaro Pro Se
Plaintiff(s):
Castillo I Partnership Represented By
Mark E Goodfriend
1:00 PM
1:18-11538
Momentum Development LLC
Chapter 7
Adv#: 1:19-01129 Weil v. The Pyramid Center, Inc.
#40.00 Motion to Dismiss Adversary Proceeding
Docket 7
*** VACATED *** REASON: Amended Complaint filed 12/18/19. Motion moot - hm
Tentative Ruling:
Party Information
Debtor(s):
Momentum Development LLC Represented By
Michael H Raichelson
Defendant(s):
The Pyramid Center, Inc. Represented By
Michael H Raichelson
Plaintiff(s):
Diane Weil Represented By
David Seror Jorge A Gaitan
Trustee(s):
Diane C Weil (TR) Represented By David Seror Jorge A Gaitan
1:00 PM
1:18-12917
Sohail Mobasseri
Chapter 7
Adv#: 1:19-01049 LendingHome Funding Corp. v. Mobasseri
#41.00 Motion for Summary Adjudication on the First, Second, and Third Claims for Relief and All Affirmative Defenses
Docket 13
Tentative Ruling:
The following facts are undisputed. Property Specialists Group, Inc. ("PSG") is a Nevada corporation. PSG documents dated in 2014 indicate Sohail Mobasseri ("Debtor" or "Defendant") as the president and secretary of PSG. In 2015, LendingHome Funding Corp. ("LendingHome" or "Plaintiff") loaned $961,200 ("Loan") to PSG. The Loan was secured by a deed of trust against a real property located at 15229 Hesby Street, Sherman Oaks, California ("Hesby Property"). Debtor signed the Loan documents as PSG’s president and personally guaranteed the Loan. PSG’s Statement of Information filed in 2016 with the California Secretary of State, which Debtor signed as PSG's president, listed Debtor as PSG's chief executive officer and chief financial officer. In 2018, All Investments Group, Inc. ("AIGI") filed its Statement of Information, which listed Debtor as the chief financial officer.
In 2017, PSG filed a voluntary chapter 11 petition, which Debtor signed as PSG's president. PSG filed a Statement Regarding Authority to Sign and File Petition, which declared that Debtor is PSG's president and that Debtor had the authority to sign and file the petition on behalf of PSG. PSG's List of Equity Security Holders and Statement of Financial Affairs ("PSG SOFA") listed Debtor as an 80% shareholder. PSG listed three properties in its schedules: (1) the Hesby Property;
(2) 28045 Promontory Lane, Valencia, California ("Valencia Property"); and (3) 5460 White Oak Ave., #6-205, Encino, California ("White Oak Property"). Debtor signed the PSG Schedules and SOFA as president and declared the information true and correct. Later, the bankruptcy court dismissed the PSG bankruptcy case because of a stipulation between PSG and the United States Trustee.
At the time of filing its petition, PSG held title to at least four additional
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CONT...
Sohail Mobasseri
Chapter 7
parcels of real property. These properties are each located at: (1) 27648 Ron Ridge Drive, Santa Clarita, California ("Santa Clarita Property"); (2) 9570 Olive Street, Temple City, California ("Temple City Property"); (3) 27503 Nike Lane, Canyon Country, California ("Canyon Country Property"); and (4) 18721 Hatteras Street, Unit 10, Tarzana, California ("Tarzana Property"). PSG held title to these properties on its petition date but did not list these properties on its schedules. In addition, PSG did not disclose various lawsuits to which it was a party, including a lawsuit it filed against HSBC Mortgage, which pertained to the Temple City Property. Debtor was allegedly aware of the Temple City lawsuit and signed a declaration that was filed in September 2015. In October 2017, LendingHome conducted a foreclosure sale of the Hesby Property, which left a $166,853.38 deficiency balance. The deficiency balance remains unpaid and owing under Debtor’s guaranty.
Debtor, who is represented by counsel, filed a chapter 7 bankruptcy petition ("Petition") on December 5, 2018 ("Petition Date"). Debtor also filed his Schedules, a Statement of Financial Affairs ("SOFA"), and a Statement of Related Cases. Debtor signed the Petition, Schedules, SOFA, Statement of Related Cases, and declared the information true and correct.
On April 30, 2019, LendingHome filed an adversary complaint against Debtor ("Complaint"), and Debtor filed an Answer. On November 21, 2019, LendingHome filed this motion for partial summary judgment ("Motion") as to its first, second, and third claim for relief. Debtor has not filed an opposition. In support of its Motion, LendingHome attached its Requests for Admission, Set One ("RFA") and Requests for Production of Documents ("RFP"). Debtor has not responded to either requests. LendingHome also provided a Separate Statement of Undisputed Facts and Conclusions of Law ("SS"); exhibits; declarations; email communications between LendingHome’s counsel and Debtor’s counsel; and a request for judicial notice.
Request for Judicial Notice
Rule 201 of the Federal Rules of Evidence permits judicial notice of adjudicative facts, which is "not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be
1:00 PM
CONT...
Sohail Mobasseri
Chapter 7
questioned. Fed. R. Evid. 201; Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038
(9th Cir. 2010).
LendingHome requests for this court to judicially notice the following:
PSG’s Statement of Information filed with the California Secretary of State on or about March 14, 2016, which lists Debtor as the chief executive officer and chief financial officer.
AIGI’s Statement of Information filed on or about February 16, 2017, which lists Debtor as AIGI’s chief financial officer
PSG’s chapter 11 bankruptcy petition filed on September 15, 2017, with a List of Equity Security Holders, Schedules, and Statement of Financial Affairs.
PSG’s bankruptcy petition, which is signed by Debtor as PSG’s president.
PSG’s List of Equity Security Holders, which lists Debtor as an 80% shareholder.
PSG’s SOFA.
The portion of PSG's SOFA, which lists Debtor as the president and secretary owning 80% of PSG.
PSG’s Schedules, which lists three real property assets: the Hesby Property, Valencia Property, and White Oak Property.
PSG’s Schedules and SOFA signed by Debtor as president, under penalty of perjury, declaring the information true and correct.
PSG’s Statement Regarding Authority to Sign and File Petition, which Debtor signed.
That PSG's bankruptcy case was dismissed by stipulation between PSG and the United States Trustee following the US Trustee’s motion to dismiss or convert the case.
Debtor’s petition filed on December 5, 2018 and Statement of Related Cases.
That Debtor was and is represented by counsel.
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Debtor’s Schedules and SOFA filed on December 20, 2018.
Debtor signed the Petition, Statement of Related Cases, Schedules, and SOFA under penalty of perjury, and declared the information true and correct.
Debtor listed the White Oak Property as his residence in the Petition.
Debtor’s Schedules did not list any real property assets in Schedule A.
Debtor did not list any executory contracts or unexpired leases other than automobile leases. In Schedule I, Debtor indicates monthly "rental or home ownership expenses" as $900.
In Schedule E/F, Debtor listed "Lending Home Funding Corp." as having a
$986,000 claim for a "Deficiency Balance on Foreclosed Real Estate." The only other debt listed by Debtor was $13,300 of secured claims and another $31,592 in unsecured claims.
Debtor indicated the majority of his debts as "consumer debts" in his Petition and SOFA.
Debtor stated that he held no stock or interest in any non-publicly traded corporation in his Schedule B, in response to question 19.
Debtor stated that he held no legal or equitable interest in any business-related property in his Schedule B, in response to question 37.
In section 8 of Debtor's SOFA, Debtor indicated that, within one year of his bankruptcy Petition Date, no property had been transferred on account of a debt that benefitted an insider.
In section 18 of Debtor’s SOFA, Debtor indicated that no property had been transferred to anyone within two years of Debtor’s Petition Date.
Section 27 of Debtor’s SOFA asks Debtor to indicate whether within 4 years of the Petition Date, he owned a business or was an officer, director or managing executive of a corporation, or an owner of at least 5% of the voting stock or equity of a corporation. In response to this question, Debtor stated, "No. None of the above applies."
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In the Statement of Related Cases, when asked to list any bankruptcy petition filed by "an affiliate of the debtor,…or any corporation of which the debtor is a director, officer, or person in control…" Debtor indicated, "None."
On March 15, 2019, the court entered an order approving a stipulation between Debtor and LendingHome extending the deadline to object to discharge under section 727.
On April 30, 2019, LendingHome filed its Complaint.
On July 17, 2019, Debtor filed his Amended Answer.
Debtor has not Amended his Schedules, SOFA, or Statement of Related Cases.
Because this information can be accurately and readily determined from public records, in which the accuracy cannot reasonably be questioned, this court takes judicial notice of these thirty items.
Legal Standards
Summary Judgment
A court grants summary judgment 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 judgment as a matter of law. Fed. R. Civ. P. 56(c) (incorporated by Fed. R. Bankr.
P. 7056). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 US 317, 323 (1986).
Once the moving party has met its initial burden of demonstrating an absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Id. at 322-23; Anderson v. Liberty Lobby, Inc., 477 US 242, 249 (1986). A mere facial denial of a material fact is insufficient; the opposing party must present admissible evidence. Tindle v. Pulte Home Corp., 607 F.3d 494, 496 (7th Cir. 2011). 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. Anderson, 477 US at 248.
The court must view the evidence in the light most favorable to the
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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 nonmoving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). 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). "Even where no evidence is presented in opposition to the motion, summary judgment should not be granted if the evidence in support of the motion is insufficient. Hoover v. Switlik Parachute Co., 663 F.2d 964, 967 (9th Cir. 1981).
Requests for Admissions
Federal Rules of Civil Procedure 36, made applicable to a bankruptcy proceeding through Federal Rules of Bankruptcy Procedure 7036, provides:
(3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.
When a party fails to respond timely or fails to respond, each request is deemed automatically admitted. Fed. Trade Comm’n. v. Medicor, 217 F. Supp. 2d 1048, 1053 (C.D. Cal. 2002). The propounding party need not move to have the matters deemed admitted. Id. Matters that are admitted may be used to support a grant of summary judgment. Conlon v. United States, 474 F. 3d 616, 621 (9th Cir. 2007); Sheppard v. County of LA, No. 15-02920, 2016 WL 9137531 (C.D. Cal. July 19, 2016). "[T]he failure to respond to admissions can effectively deprive the party of the opportunity to contest the merits of the case." Carney v. IRS (In re Carney), 258 F.3d 415, 421 (5th Cir. 2001)(relying on default admissions in granting summary judgment).
LendingHome properly served its Requests for Admission on August 30, 2019, and Debtor has not responded. Each request is thus deemed admitted.
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Objection to Discharge
A debtor is entitled to a discharge of his or her debts under 11 USC. § 727(a) and (b). A creditor may object to the granting of a discharge by an adversary complaint. 11 USC. § 727(c)(1); FRBP 7001(4). The objecting party bears the burden, by a preponderance of the evidence, to establish that the debtor should be denied his discharge. Khalil v. Dev. Sur. & Indem. Co. (In re Khalil), 379 BR 163, 172 (BAP 9th Cir. 2007). The burden then shifts to the debtor to establish that he or she is entitled to such a discharge. See Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 619 (11th Cir. 1984). Courts construe section 727 liberally in favor of debtors and strictly against parties objecting to discharge. Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010).
LendingHome’s First Claim for Relief
LendingHome seeks to deny Debtor’s discharge under 11 USC. § 727(a)(2) and 727(c). Section 727(a)(2) provides:
The court shall grant the debtor a discharge, unless—
…
the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, 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…
§ 727(a)(2)(A): Property of the Debtor Within One Year Before the Petition Date
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LendingHome alleges that Debtor had an ownership interest in PSG within one year of Debtor’s bankruptcy petition. It is undisputed that Debtor had an ownership interest in PSG as of September 15, 2017, which is PSG’s bankruptcy petition date. [SS 16]. A Statement of Information filed with the Secretary of State, indicates Debtor as PSG’s chief executive officer and chief financial officer. [RJN Ex. A].
LendingHome points out that although Debtor claims no longer having any interest in PSG because LendingHome foreclosed the Hesby Property, the Hesby Property foreclosure on December 27, 2017 occurred less than one year before Debtor filed his bankruptcy petition on December 5, 2018. [SS 90]. Thus, even if Debtor no longer had an ownership interest in PSG after the foreclosure, the alleged transfer of Debtor’s ownership interest would have occurred within one year of Debtor’s Petition Date.
Debtor has neither opposed nor offered evidence to dispute these allegations. There is thus no genuine dispute that Debtor owned property within one year of his bankruptcy petition. This requirement for a nondischargeability claim under § 727(a)(2)(A) is thus satisfied.
§ 727(a)(2)(B): Property of the Estate
The bankruptcy estate’s property includes all the debtor’s legal or equitable interests in property as of the case’s commencement. 11 USC. § 541. Whether, and to what extent, the debtor has a legal or equitable interest in a property as of the petition date is a question of state law. Butner v. United States, 440 U.S. 48 (1979), superseded on other grounds by statute, 11 U.S.C.S. § 552.
Here, LendingHome alleges that Debtor holds a: (1) legal interest in PSG through his 80% ownership of PSG shares, and (2) an equitable interest in PSG through the real property that PSG owns. LendingHome alleges that although real property titled under PSG is not the estate’s property, under California law, Debtor
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has an equitable interest in such property, and that equitable interest is the estate’s property. See Newell-Murdoch Realty Co. v. Wickham, 183 Cal. 39, 45 (1920) (reasoning that corporate shareholder does not hold legal title to corporate property but has an equitable interest therein).
Debtor did not oppose these allegations. Additionally, by not responding to LendingHome’s Requests for Admission, Debtor effectively admitted that he owned an 80 percent share of PSG; the Hesby Property foreclosure did not change his ownership of shares in PSG; PSG held at least three real property parcels; there was no written agreement transferring Debtor’s shares; and no written agreement or corporate resolution removing Debtor as PSG’s officer. Moreover, Debtor did not proffer evidence to contradict the allegations that he owned a legal and equitable interest in PSG. There is thus no genuine dispute as to whether there is property of the estate for a nondischargeability claim under § 727(a)(2)(B).
Concealment
An omission from a debtor’s petition, schedules, statement of financial affairs, statement of related cases, or other verified bankruptcy documents, qualifies as concealment under § 727(a)(2). Phillips v. United States Trustee (In re Phillips), No. 08–14147–KAO, 2010 WL 6259975, at *10 (9th Cir. BAP April 6, 2010); Keeney v.
Smith (In re Keeney), 227 F.3d 679, 682-83 (6th Cir. 2000); Peterson v. Scott (In re Scott), 172 F.3d 959 (7th Cir. 1999).
LendingHome points out that Debtor failed to: (1) list his current or former ownership interest in PSG in his Schedule A/B; (2) list his current or former ownership interest in PSG and role as an officer or director on his SOFA; (3) disclose his current or former ownership interest in PSG when questioned at the § 341(a) meeting; (4) schedule his equitable interest in other real property owned by PSG; (5) disclose the other real property PSG owned when questioned at the § 341(a) meeting; (6) disclose PSG’s bankruptcy in the Statement of Related Cases or at the
§341(a) meeting; (7) disclose his current or former role as an officer of AIGI; and (8) alternatively, to disclose the transfer of his interest in PSG, to the extent that Debtor asserts that he is no longer a shareholder of PSG.
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There is no genuine dispute here that Debtor concealed his property or property of the estate because Debtor provided no opposition to LendingHome’s allegations, admitted these allegations by not responding to LendingHome’s Requests for Admissions, and offered no evidence to create an issue for trial. This requirement for a nondischargeability claim under § 727(a)(2) is also satisfied.
Actual Intent
To deny a discharge under § 727(a)(2), the court must find that a debtor acted with actual intent to hinder, delay, or defraud a creditor. In re Adeeb, 787 F.2d 1339, 1342-43 (9th Cir. 1986). Constructive fraudulent intent cannot be the basis for denying a discharge under §§ 727(a)(2)(A) and (B). Id.; In re Phillips, 2010 WL 6259975 at *8.
Intent may be established by circumstantial evidence or by inferences drawn from the debtor’s course of conduct, such as "a pattern of falsity or cumulative falsehoods." In re Adeeb, 787 F.2d at 1343; In re Phillips, 2010 WL 6259975 at *10; Devers v. Bank of Sheridan (In re Devers), 759 F.2d 751, 754 (9th Cir. 1985); Garcia v. Coombs (In re Coombs), 193 BR 557, 563 (Bankr. S.D. Cal. 1996); Clark v. Hammeken (In re Hammeken), 316 BR 723, 728 (Bankr. D. Ariz. 2004).
A debtor’s reckless indifference to the accuracy of his schedules and statement of financial affairs may be probative of Debtor’s actual intent. In re Khalil, 379 BR at 163; see also Diorio v. Kreisler-Borg Const. Co., 407 F.2d 1330 (2d Cir. 1969). Moreover, the "inference of fraudulent behavior flowing from a concealment is greater than from a transfer…" Beauchamp v. Hoose (In re Beauchamp), 236 BR 727, 731 (9th Cir. 1999)(citation omitted).
There is no genuine dispute as to whether Debtor acted with actual intent. LendingHome’s allegations are supported by declarations, exhibits, Requests for Admission, a Separate Statement, and other documents. Debtor, on the other hand, has proferred no evidence to create a genuine dispute for trial on whether he acted
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with actual intent.
LendingHome’s undisputed allegations reveal a pattern of falsity in Debtor’s course of conduct. LendingHome alleged that Debtor failed to disclose his legal interest as a shareholder of PSG, his role as an officer of PSG, and his role as an officer of AIGI. When asked at the § 341(a) meeting, Debtor allegedly affirmed that he was not currently, nor was he ever, in the four years before his bankruptcy, a shareholder or officer of any corporation. However, the Statement of Information filed with the California Secretary of State on March 14, 2016 reveals that Debtor was the chief executive officer and chief financial officer of PSG within four years of Debtor’s bankruptcy Petition Date. [RJN Ex. A]. When LendingHome’s counsel further questioned Debtor about his status as a PSG officer, Debtor allegedly asserted that he was an "authorized agent." Debtor also allegedly claimed that he only made a small investment in the Hesby Property and had no other involvement with PSG or any other properties. After the § 341(a) meeting, Debtor did not amend his Schedules or SOFA, which reflects a reckless indifference to the accuracy of his bankruptcy documents.
LendingHome alleges that once it discovered the PSG bankruptcy case, and the Trustee and LendingHome inquired about this information, Debtor continued to refuse to be forthcoming or to admit his interest in PSG. Rather, Debtor allegedly continued to deny holding any interest in PSG, repeatedly failed to respond to Trustee’s inquiries or to explain his omissions, and failed to respond to LendingHome’s request to provide documents to support his claim that he was no longer a shareholder of PSG. Debtor allegedly did not amend his Schedules and SOFA to disclose his interest, former interest, or transfer of interest in PSG and never disclosed his status as an officer of AIGI. Debtor also allegedly failed to provide any evidence of a corporate resolution or other corporate action that resulted in the transfer of Debtor’s shares in PSG to support his claim that he no longer had any interest in PSG, and admitted that no such transfer occurred and did not disclose that any such transfer occurred in his schedules or SOFA.
Second, Debtor failed to disclose his equitable interest in PSG’s real property. Debtor’s assertion and testimony that he was not involved with any properties other than the Hesby Property was false and contradicted by Debtor’s 80% ownership in PSG, PSG’s ownership of multiple real properties at the time
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Debtor filed his bankruptcy petition, and Debtor’s knowledge of and participation in lawsuits relating to these real property assets.
Debtor did assert in his Answer that he owned an 80% interest in PSG. Debtor claims that he no longer had any interest in PSG upon filing his bankruptcy petition because the Hesby Property consists of his interest in PSG and LendingHome foreclosed on the Hesby Property before the bankruptcy filing. However, Debtor provided no evidence to support this assertion. Debtor also proffered no evidence to dispute LendingHome’s other allegations, which provide separate grounds for a finding that Debtor acted with actual intent, including his failure to disclose his equitable interest as a shareholder of PSG and failure to disclose at the § 341(a) meeting that he was a shareholder of a corporation within four years of his bankruptcy petition.
For the above reasons, the court finds that there is no genuine dispute on whether Debtor acted with actual intent. The actual intent requirement for a nondischargeability claim under section 727(a)(2) is thus satisfied.
In sum, the evidence LendingHome proffered and Debtor’s lack of evidence to contradict LendingHome’s evidence lead to no genuine dispute for trial. This court must GRANT summary judgment as to LendingHome’s section 727(a) nondischargeability claim.
LendingHome’s Second Claim for Relief
Section 727(a)(3) provides that a debtor shall not receive a discharge if:
"[T]he debtor has concealed, destroyed, 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 to act was justified under all of the
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circumstances of the case[.]"
Chapter 7
A debtor that conceals or falsifies, or fails to keep or preserve any recorded information, documents or papers from which his financial condition may be ascertained, may be denied a discharge. 4 Collier on Bankruptcy, ¶ 727.03[1]. The moving party need not present any evidence of fraudulent intent. In re Scott, 172 F.3d at 969. After the movant shows inadequate or nonexistent records, the burden shifts to the debtor to justify the inadequacy or nonexistence of records. Caneva v. Sun Cmtys. Operating Ltd. P’ship (In re Caneva), 550 F.3d 755, 761 (9th Cir. 2008).
The purpose of section 727(a)(3) is to ensure that the trustee and creditors are provided with "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." Seror v. Lopez (In re Lopez), 532 BR 140, 150 (Bankr. C.D. Cal. 2015)(citation omitted); see also In re Caneva, 550 F.3d at 761.
To determine whether the failure to keep records was justified under all the circumstances, courts consider, among other factors it deems relevant: (1) a debtor's intelligence and educational background; (2) a debtor’s experience in business matters; (3) the extent of a debtor’s involvement in the businesses for which discharge is sought; (4) a debtors reliance, including her knowledge of whether records were being kept; and (5) any recordkeeping or inquiry duties imposed upon a debtor by state law. In re Cox, 904 F.2d 1399, 1403 n.5 (9th Cir. 1990).
LendingHome alleges that Debtor concealed the existence and contents of PSG’s bankruptcy petition, schedules, SOFA, and bankruptcy records, which would have revealed to the Trustee the Debtor’s majority interest in PSG. Debtor also allegedly falsified his own bankruptcy Petition, Schedules, SOFA, and bankruptcy records, which are used by Debtor’s creditors and the Trustee to ascertain Debtor’s financial condition or business transactions. LendingHome claims that Debtor’s bankruptcy documents were false because they failed to disclose Debtor’s interest in PSG (or the alleged transfer of that interest), Debtor’s role as an officer of PSG and AIGI, and Debtor’s equitable interest in PSG’s real properties.
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LendingHome also alleges that Debtor has either failed to keep any records from which the Trustee or creditors can adequately ascertain Debtor’s financial condition and business transactions, or Debtor is concealing those records. LendingHome made Requests for Production of Documents and the Trustee made multiple requests for various documents, but Debtor either failed to preserve or maintain the records or has concealed the records. These requested records allegedly include: (1) records of Debtor’s financial investment and ownership interest in PSG; (2) the disposition of PSG’s property listed in the PSG Schedules, which the Trustee requested; (3) the existence or value of Debtor’s equitable interest in any property owned by PSG, including records of rent payments by Debtor to PSG for the White Oak Property; (4) Debtor’s interest in AIGI; and (5) communications between Debtor and other shareholders regarding PSG, such as any agreement regarding the resignation, termination, and transfer or sale of Debtor’s ownership interests in PSG.
There is no genuine dispute as to these allegations that Debtor concealed or failed to keep recorded information because Debtor has not provided evidence to the contrary and has admitted these allegations by not responding to the Requests for Admission. Moreover, Debtor has provided no arguments or evidence to show that the failure to keep records was justified. LendingHome is thus entitled to summary judgment as to its § 727(a)(3) nondischargeability claim.
LendingHome’s Third Claim for Relief
Section 727(a)(4) provides:
The court shall grant the debtor a discharge, unless—
…
(4) the debtor knowingly and fraudulently, in or in connection with the case —
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made a false oath or account; or
Chapter 7
(D) 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
Whether Debtor Made a False Oath or Account
Under section 727(a)(4)(A), the creditor must prove that: (1) the debtor made a false oath in connection with the case; (2) the oath related to a material fact; (3) the debtor made the oath knowingly; and (4) the debtor made the oath with fraudulent intent. In re Retz, 606 F.3d at 1197.
False Oath or Account
A false oath can constitute a false statement or an omission in the debtor’s bankruptcy schedules, petition, statement of financial affairs, or a false statement or omission at a section 341(a) meeting. In re Retz, 606 F.3d at 1196; In re Chalik, 748 F.2d at 618 (reasoning that omission of references to debtor’s interest in corporations was grounds to deny discharge, even if it may not have revealed assets available to creditors); Kortee v. IRS, 262 BR 464, 474-75 (BAP 8th Cir. 2001) (finding that debtor's failure to disclose property at the § 341(a) meeting constituted a false oath).
This element is satisfied because LendingHome proferred undisputed evidence that Debtor made the following false statements or omissions:
That most of Debtor’s debts were consumer debts even though they are business-related debts. [RFA 49-50; SS 45-47].
That Debtor held no stock or interest in any non-publicly traded corporation, although Debtor is an 80% shareholder of PSG. [SS 48-50; RFA 12, 65, 68, 69].
That Debtor held no legal or equitable interest in any business-related property even though Debtor had an equitable interest in at least three properties titled in the name of PSG as of his bankruptcy Petition Date. [SS 51-53; RFA 7, 18].
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That none of Debtor’s affiliates or any corporation in which Debtor is a director, officer, or person in control had filed a bankruptcy petition, although PSG had filed bankruptcy in 2017. [SS 11, 12, 14, 33, 57, 58; RFA 51-53].
That within four years of the petition date, Debtor was not an officer, director or managing executive of a corporation, even though Debtor was an officer of PSG and AIGI. [SS 11, 12, 14, 33, 57, 58; RFA 51-53].
That within four years of the petition date, Debtor was not an owner of at least 5% of the voting stock or equity of a corporation, although Debtor owned 80% of PSG. [SS 14, 16, 49, 54-56; RFA 1, 4, 8-10, 12, 65, 68].
That all the information in Debtor’s bankruptcy documents were true and correct even though some representations were false. [SS 42, 61, 62; RFA 45, 51, 54,
55].
That Debtor listed all his assets in his schedules even though Debtor omitted listing his interest in PSG and equitable interest in its property. [SS 49-53, 63; RFA 12, 17, 18, 48].
That Debtor indicated in his SOFA that he had no interest in a business in the last four years, although Debtor is and was an 80% shareholder of PSG within the last four years. [SS 54-56, 65; RFA 65, 68, 69].
That Debtor was not an officer of PSG, but an "authorized agent," even though Debtor was PSG’s President. [SS 69; RFA 13, 66, 67].
That Debtor was not involved with any other properties other than the Hesby Property, although PSG owned several other properties and Debtor was aware of at least two of these properties. [SS 71, 72].
That Debtor had not transferred property within two years of the petition date, even though Debtor transferred his interest in PSG. [SS 59, 60; RFA 56, 58-60].
Debtor has proffered no evidence to dispute these allegations. As such, there is no genuine dispute for trial on whether Debtor made these false oaths. This element for a nondischargeability claim under section 727(a)(4) is thus satisfied.
Whether Debtor’s False Oath Related to a Material Fact
Although the text of section 727(a)(4)(A) does not mention a materiality requirement, judicial interpretations have imposed one. Fogal Legwear of Switz.,
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Inc. v. Wills (In re Wills), 243 BR 58, 62-63 (9th Cir. BAP 1999). A false statement or omission that has no impact on a bankruptcy case, such as property that would not be property of the estate, is not grounds to deny a discharge under § 727(a)(4) (A). Id. at 63. A false oath or omission is material if it relates to a debtor’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence or disposition of a debtor’s property. In re Retz, 606 F.3d at 1198 (citation omitted); In re Chalik, 748 F.2d at 618; In re Phillips, 2010 WL 6259975 at *7 (finding omission material because it concerned trustee’s ability to discover assets). Material information include those that detrimentally affect the estate’s administration, including when incomplete and erroneous schedules make it almost impossible to reconstruct the debtor’s financial affairs. In re Retz, 606 F.3d at 1198. A false statement or omission may be material even if it does not cause direct financial prejudice to creditors. In re Wills, 243 BR at 63; In re Beaubouef, 966 F.2d 174, 178 (5th Cir. 1992). "Even if the debtor can show that the assets were of little value or that a full and truthful answer would not have directly increased the estate assets, a discharge may be denied if the omission adversely affects the trustee’s or creditors’ ability to discover other assets or to fully investigate the debtor’s pre-bankruptcy dealing and financial condition." 6 Collier on Bankruptcy ¶ 727.04(1)(b)(16th 2019).
There is no genuine dispute as to whether Debtor’s false statements or omissions were material. LendingHome alleges that Debtor’s false oaths, which are listed above, related to Debtor’s business transactions or concerned the discovery of assets, and business dealings with PSG and AIGI. The false oaths also allegedly relate to the existence or disposition of Debtor’s property, such as his interest in PSG and his equitable interest in its real properties, and any interest he may have or had in AIGI.
LendingHome further alleges that Debtor’s failure to provide documents to it or the Trustee makes unclear Debtor’s financial picture because it is unknown whether Debtor received any income from PSG, holds any ownership interest in AIGI or other corporations, or has any other income or assets that he has failed to disclose. Debtor has offered no evidence against these allegations to create an issue for trial. Accordingly, the court finds that Debtor’s false oaths were material.
Whether Debtor Made the False Oath Knowingly
"A debtor acts knowingly if he or she acts deliberately and consciously." In re Retz, 606 F.3d at 1198.
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The facts are undisputed that Debtor testified at the section 341(a) meeting that he had read and signed his Petition, Schedules, and SOFA; that the schedules listed all his assets; and that the contents were true and correct. [SS 62, 63]. LendingHome further alleges that on or before the Petition Date, Debtor knew that these documents were incomplete when he deliberately and consciously signed them. [SS 62, 63]. Debtor also allegedly knew these documents were incomplete at the section 341(a) meeting when he affirmed, under oath, that the Petition, Schedules and SOFA were true and correct. [Id.] These voluntary acts of testifying at the § 341(a) meeting and signing the documents indicate that Debtor was acting deliberately and consciously.
Debtor has not disputed these allegations. There is thus no genuine dispute that Debtor made the false oath knowingly.
Whether Debtor’s False Oath Was Made With Fraudulent Intent Summary judgment is generally inappropriate where intent is a primary issue.
Plise v. Krohn (In re Plise), 2018 US App. LEXIS 5259, at *5 (9th Cir. March 1, 2018) (citation omitted); Joudeh v. Truppa (In re Truppa), BAP No. CC-16-1281-KuFL, 2017 Bankr. LEXIS 1157, at *21-22 (9th Cir. BAP April 27, 2017)(citations omitted). The intent required to find that a debtor acted fraudulently under § 727(a)(4)(A) with respect to a false oath must be actual intent. Roberts v. Erhard (In re Roberts), 331 BR 876, 884 (9th Cir. BAP 2010). Constructive fraudulent intent cannot be the basis to deny a discharge. Id.
A debtor’s fraudulent intent may be shown either by evidence of actual intent or "of a reckless disregard of both the serious nature of the information sought and the necessary attention to detail and accuracy in answering." Jordan v. Bren (In re Bren), 303 BR 610 (BAP 8th Cir. 2004)(finding that debtor's failure to read schedules and reliance on counsel evidenced reckless disregard for truth); In re Retz, 606 F.3d at 1198. Even inexperience in financial affairs does not excuse knowingly swearing to false information. Sholdra v. Chilmark Fin. LLP, 249 F.3d 380, 383 (5th Cir. 2001), cert. denied, 534 US 1042 (2001). A debtor’s fraudulent intent may be demonstrated by circumstantial evidence and inference based on a "pattern of falsity." In re Truppa, 2017 Bankr. LEXIS, at *21 (quoting In re Wills, 243 BR at 62). However, "[r]eckless indifference or disregard for the truth…is not sufficient, alone, to constitute fraudulent intent." In re Truppa, 2017 Bankr. LEXIS, at *21 (quoting In
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Chapter 7
re Retz, 606 F.3d at 1199).
In Dzakula v. McHugh, the Ninth Circuit upheld a trial court’s grant of summary judgment where the debtor omitted a reference to an ongoing lawsuit and only amended the schedules to correct the omission when faced with a motion to dismiss. 746 F.3d 399, 400-02 (9th Cir. 2013). The trial court found that no reasonable jury could find in favor of the debtor because the debtor presented no evidence to explain the initial omission. Id. By contrast, the Ninth Circuit in In re Plise determined that a reasonable fact finder could not support a finding of fraudulent intent because the debtor provided evidence in the form of a declaration and a statement of disputed facts. 2018 US App. LEXIS, at *6-7.
As discussed above, there is no genuine dispute as to whether Debtor had the actual intent in making the false statements and omissions concerning his ownership interest and involvement in PSG; his equitable interest in PSG’s various properties; and his involvement in AIGI. Debtor did not disclose his legal or equitable interests in PSG or AIGI in his Schedules. At the § 341(a) meeting, Debtor even affirmed that he was not currently, nor was he ever, in the four years before his bankruptcy, a shareholder or officer of any corporation despite evidence to the contrary (the Statement of Information indicates that Debtor was the chief executive officer and financial officer of PSG within four years of Debtor’s bankruptcy Petition Date). Debtor’s also did not amend his Schedules or SOFA, which indicates a reckless indifference or disregard for the truth. Similar to the facts in Dzakula, Debtor has provided no evidence to explain his omissions, no amendment to his Schedules or SOFA, no documents requested by the Trustee or LendingHome, and no evidence to dispute LendingHome’s allegations that he made a false oath with fraudulent intent. As such, no reasonable fact finder can find in favor of Debtor as to whether Debtor had the fraudulent intent in making his false oaths.
In conclusion, because no genuine dispute exists on whether (1) Debtor made a false oath in connection with the case; (2) the oath related to a material fact;
Debtor made the oath knowingly; and (4) Debtor made the oath with fraudulent intent, LendingHome is entitled to summary judgment as to its section 727(a)(4) nondischargeability claim.
Whether Debtor Withheld Recorded Information
1:00 PM
CONT...
Sohail Mobasseri
Section 727(a)(4) provides that a debtor shall not receive a discharge if:
the debtor knowingly and fraudulently, in or in connection with the case –
Chapter 7
(D) 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
A debtor has an affirmative and non-negotiable duty to surrender all estate property and records to the chapter 7 Trustee. In re Lopez, 532 BR at 151. To establish grounds to deny a discharge under this subsection, LendingHome must show that Debtor (1) knowingly and (2) fraudulently (3) in, or in connection with, the case (4) withheld from the Trustee, as an officer of the estate entitled to possession, any recorded information, including books, documents, records, and papers relating to Debtor’s property or financial affairs. Id. at 150. Intent under section 727(a)(4) may be established by circumstantial evidence, or by inferences drawn from a debtor’s course of conduct, such as if the debtor hides the physical documents or withholds information about assets by failing or refusing to divulge information. Id. at 150, 152 (citation omitted).
LendingHome’s allegations are undisputed that Debtor failed to turn over information to the that the Trustee specifically requested in order to explain Debtor’s interest or lack thereof in PSG and any ownership or disposition of PSG’s property. Debtor also allegedly failed to provide bank statements, other financial records, or written agreements reflecting his PSG ownership interest or claim of making only a small investment in the Hesby Property, the alleged termination and transfer of his interest in PSG, and removal or resignation as a PSG officer. LendingHome also alleges that Debtor’s counsel represented to the Trustee that the documents would be provided to the Trustee, but never produced them.
LendingHome alleges that Debtor’s knowing and fraudulent intent may be inferred from Debtor’s prolonged lack of response and unwillingness to be forthcoming regarding his interest and involvement in PSG and to produce
1:00 PM
CONT...
Sohail Mobasseri
Chapter 7
documents relating to his interest therein. LendingHome’s points out that on or about March 6, 2019, the Trustee allegedly requested documents from Debtor regarding his interest in PSG, the disposition of the property owned by PSG, and any additional information from Debtor or PSG’s financial records. Five days later, on March 11, 2019, the Trustee again requested documents from Debtor. About six months later, Debtor allegedly still had not provided the information requested by the Trustee.
Given Debtor’s course of conduct of refusing to cooperate with the Trustee, combined with Debtor’ lack of evidence to explain his failure to provide the Trustee the requested documents, this court can only conclude that there is no genuine issue as to whether Debtor acted with fraudulent intent.
Debtor’s Affirmative Defenses
LendingHome argues that all of Debtor’s affirmative defenses raised in the Answer to the Complaint fail as a defense to LendingHome’s nondischargeability claim. In the summary judgment phase, the court only looks to the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
LendingHome, as the moving party, had the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp., 477 US at 322-23; Anderson, 477 US at 249. Based on the analysis above, LendingHome has met its burden. Once the moving party has met its initial burden of demonstrating an absence of a genuine issue of material fact, the nonmoving party, Debtor, must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp.,
477 US at 322-23; Anderson, 477 US at 249. Debtor must present admissible evidence. Tindle, 607 F.3d at 496. Debtor’s Answers to the Complaint are not a form of admissible evidence that this court can consider, and do not affect this court’s analysis.
1:00 PM
CONT...
Sohail Mobasseri
Chapter 7
Given that no genuine dispute exists for trial, LendingHome is entitled to partial judgment as a matter of law. The Motion is GRANTED as to LendingHome’s nondischargeability claim under sections 727(a)(2), 727(a)(3), 727(a)(4)(A), and 727(a)(4)(D).
Party Information
Debtor(s):
Sohail Mobasseri Represented By Dana M Douglas
Defendant(s):
Sohail Mobasseri Represented By Dana M Douglas
Plaintiff(s):
LendingHome Funding Corp. Represented By Adam Forest
Kerry A. Moynihan
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
1:18-12917
Sohail Mobasseri
Chapter 7
Adv#: 1:19-01049 LendingHome Funding Corp. v. Mobasseri
#41.01 Pretrial Conference Re: Complaint for Denial of Discharge Pursuant to 11 U.S.C. Sec.
727(a)(2), (a)(3), (a)(4), (a)(7) and (c)
fr. 7/17/19, 12/4/19
Docket 1
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Sohail Mobasseri Represented By Dana M Douglas
Defendant(s):
Sohail Mobasseri Pro Se
Plaintiff(s):
LendingHome Funding Corp. Represented By Adam Forest
Kerry A. Moynihan
Trustee(s):
David Keith Gottlieb (TR) Pro Se
2:00 PM
1:18-10891
Hamid Farkhondeh and Mary Dadyan
Chapter 13
#42.00 Order to show cause why Leo Fasen Esq. should not be held in contempt of court's disgorgment order
Docket 0
*** VACATED *** REASON: Ntc. of w/drawal of motion filed 12/11/19 (eg)
Tentative Ruling:
Party Information
Debtor(s):
Hamid Farkhondeh Represented By Stella A Havkin Stella Rafiei
Joint Debtor(s):
Mary Dadyan Represented By Stella A Havkin Stella Rafiei
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Friday, January 10, 2020
Hearing Room
302
10:00 AM
1:19-12322
M Shah Dental Inc
Chapter 7
#1.00 Trustee's Emergency Motion for Order Authorizing Trustee to (A) Operate Debtors Business for a Limited Period of Time; (B) Pay Post-Petition Wages to Key Employees; and (C) Use of Debtors Pre-Petition Bank Account
Docket 36
Matter Notes:
- NONE LISTED -
Tentative Ruling:
APPEARANCE REQUIRED on shortened time.
Party Information
Debtor(s):
M Shah Dental Inc Represented By Shirlee L Bliss
Trustee(s):
Nancy J Zamora (TR) Represented By Noreen A Madoyan Jeremy Faith
10:00 AM
1:19-10985
Fred Feraydoon Humble
Chapter 13
#1.00 Motion RE: Objection to Claim Number 2 by Claimant JPMorgan Chase Bank.
fr. 8/20/19, 9/18/19, 10/23/19
Docket 25
Matter Notes:
- NONE LISTED -
Tentative Ruling:
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Fred Feraydoon Humble Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:19-11711
Anzhey Vsevolodo Barantsevich
Chapter 7
#2.00 Motion Against Petitioning Creditor
For An Award of Attorneys Fees, Costs and Other Damages
Docket 45
Matter Notes:
- NONE LISTED -
Tentative Ruling:
APPEARANCE REQUIRED
Debtor(s):
Party Information
Anzhey Vsevolodo Barantsevich Represented By
Lindsey L Smith David B Golubchik
1:00 PM
1:19-11711
Anzhey Vsevolodo Barantsevich
Chapter 7
#3.00 Status Conference Re: Chapter 7 Involuntary Petition Against an Individual.
fr. 8/21/19, 7/31/19, 10/23/19, 10/24/19, 11/22/19
Docket 1
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Anzhey Vsevolodo Barantsevich Pro Se
9:30 AM
1:20-10005
James Jackson
Chapter 13
#0.01 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 7
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
James Jackson Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12596
Lynne Suzanne Boyarsky
Chapter 13
#1.00 Motion for relief from stay CITIBANK, N.A.
fr. 9/11/19, 10/16/19, 12/4/19
Docket 64
*** VACATED *** REASON: Cont'd to 4/1/20 @ 10:00 per order #86. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Lynne Suzanne Boyarsky Represented By Matthew D Resnik
Movant(s):
Citibank, N.A. Represented By Robert P Zahradka
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-10662
Doris Elizabeth Rosales
Chapter 13
#2.00 Motion for relief from stay
U.S. BANK TRUST NATIONAL ASSC. fr. 10/23/19, 11/20/19, 12/18/19
Docket 46
Tentative Ruling:
At the last hearing, the parties indicated that they are finalizing an APO and waiting for a signature. What is the status of this Motion?
APPEARANCE REQUIRED.
Cont. fr. 10/23/19
Petition Date: 3/18/18
Chapter 13 plan confirmed: 10/12/18
Service: Proper; co-borrower Jose Rosales not served. No opposition filed. Property: 8923 Lev Ave., Arleta, CA 91331
Property Value: $435,000 (per debtor’s schedules) Amount Owed: $409,152 (per Proof of Claim #8-2) Equity Cushion: -2.0% (assuming 8% cost of sale) Equity: $25,848
Post-Petition Delinquency: $7,574.88 (approx. 3 payments of $2,150.48; late charge of $92.44; attorney's fees of $1,031)
Movant alleges cause for 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 the last payment of $1,720.39 was made on or about August 13, 2019.
Given the relatively small delinquency, have the parties had an opportunity to discuss an APO?
APPEARANCE REQUIRED for 10-23-19 tentative.
10:00 AM
CONT...
Debtor(s):
Doris Elizabeth Rosales
Party Information
Chapter 13
Doris Elizabeth Rosales Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11666
Maria Kasingsing Garay
Chapter 13
#3.00 Motion for relief from stay (Personal Property) NISSAN-INFINITI LT
Docket 38
Tentative Ruling:
Petition Date: 6-30-2018
Chapter Plan Confirmed: 1-15-2019 Service: Proper. No opposition filed. Property: 2017 Infiniti Q50 (lease)
Property Value: $35,000 (per Debtor’s schedules) v. $24,500 (per Movant’s valuation)
Amount Owed: $41,779.36 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $2,876.40 (5 late payments of $575.28 each)
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)
stay); and 11 (if stay not granted, order APO).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Maria Kasingsing Garay Represented By David H Chung
Movant(s):
NISSAN-INFINITI LT. Represented By
Michael D Vanlochem
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
CONT...
Maria Kasingsing Garay
Chapter 13
10:00 AM
1:18-12709
Gloria Anita Funes
Chapter 13
#3.01 Motion for relief from stay HSBC BANK USA
fr. 1/8/20
Docket 63
*** VACATED *** REASON: settled by stipulation - ts Tentative Ruling:
Party Information
Debtor(s):
Gloria Anita Funes Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12253
Sonia Figueroa
Chapter 13
#4.00 Motion for relief from stay
WILMINGTON SAVINGS FUND SOCIETY
fr. 2/6/19; 2/27/19, 4/3/19, 5/1/19, 6/26/19, 7/31/19, 9/18/19, 12/4/19, 12/18/19
Docket 27
*** VACATED *** REASON: parties stipulated to APO - ts Tentative Ruling:
Party Information
Debtor(s):
Sonia Figueroa Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11288
Ronald Harris Gladle
Chapter 13
#5.00 Motion for relief from stay HSBC BANK USA
fr. 11/6/19
Docket 47
*** VACATED *** REASON: HSBC withdrew motion [#55] – ts Tentative Ruling:
Party Information
Debtor(s):
Ronald Harris Gladle Represented By Matthew D. Resnik
Movant(s):
HSBC Bank USA, National Represented By
Erica T Loftis Pacheco Darren J Devlin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12364
Amir Homayoun Ahmadi
Chapter 7
#6.00 Motion for relief from stay
20600 VENTURA BLVD APT. INVESTORS LLC
Docket 15
Tentative Ruling:
A discharge was entered in this chapter 7 case on 12-30-19, thereby terminating the automatic stay under 11 U.S.C. 362(c)(2)(C). The motion is therefore DENIED as moot.
NO APPEARANCE REQUIRED. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Amir Homayoun Ahmadi Pro Se
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:19-12408
Andrew JC Menschik
Chapter 13
#7.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK AS TRUSTEE
Docket 26
Tentative Ruling:
Petition Date: 9-24-19
Chapter: 13 (unconfirmed)
Service: Proper (co-debtor served). No opposition filed. Property: 11218 Sheldon Street, Sun Valley, CA 91352 Property Value: $360,000 (per debtor’s schedules) Amount Owed: $297,061.60
Equity Cushion: 9.0% Equity: $62,938.40
Post-Petition Delinquency: $7,886.65 (3 late payments of $2,068.55 each).
Disposition: GRANT requested relief under 11 U.S.C. § 362(d)(1). GRANT specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 5 (co-debtor stay is waived); and 6 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Andrew JC Menschik Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-13135
Nicole Tanice Shepherd
Chapter 13
#8.00 Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate 17732 San Fernando Mission Blvd., Granada Hills, CA 91344
Docket 9
Tentative Ruling:
On 12-17-19, Debtor filed this Chapter 13 case. Debtor has 1 previous bankruptcy case that was dismissed a short time ago. The dismissed Chapter 13 case, 18- bk-12079-MT, was filed on 10-12-17 and dismissed on 10-28-19.
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 Debtor was unable to make plan payments due to income loss. Debtor’s primary client initiated a merger with another company which took 5 months to be completed. Additionally, Debtor had three sudden family deaths and Debtor incurred substantial unexpected costs associated with these sudden deaths.
Debtor claims that the presumption of bad faith is overcome as to all creditors per Section 362(c)(3)(C)(i) because Debtor’s failure to perform the terms of the confirmed plan in the prior case is excusable because of the circumstances above. Additionally, there has been a substantial change in Debtor’s personal or financial affairs since the dismissal of the previous case because the merger is now complete, and the new company offers more business opportunities. Moreover, Debtor claims to have sufficient income to cure arrears and meet Plan requirements.
Service proper. No opposition filed.
MOTION GRANTED. RULING MAY BE MODIFIED AT HEARING. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Nicole Tanice Shepherd Represented By Matthew D. Resnik
10:00 AM
CONT...
Trustee(s):
Nicole Tanice Shepherd
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-13157
Juan Maldonado Bastida
Chapter 13
#9.00 Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate 16026 Leadwell Street, Van Nuys, CA 91406
Docket 8
Tentative Ruling:
On 12-18-2019, Debtor filed this Chapter 13 case. Debtor has 1 previous bankruptcy case that was dismissed a short time ago. The dismissed Chapter 13 case, 19-
bk-10089-MT, was filed on 1-14-19 and dismissed on 9-20-19.
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 of circumstances beyond Debtor’s control. Debtor was laid off from his job because of severe injuries sustained while at work and was physically impaired and had to seek medical treatment. Debtor incurred substantial medical expenses and his only source of income was rental income, which was insufficient to cover all expenses, mortgage payments, and plan payments.
Debtor claims that the presumption of bad faith is overcome as to all creditors per Section 362(c)(3)(C)(i) because Debtor’s failure to perform the terms of the confirmed plan in the prior case is excusable because of the circumstances as described above. Additionally, there has been a substantial change in Debtor’s personal and financial affairs because Debtor now generates more rental income, is in a better physical state, and has the ability to earn regular income again. Debtor also seeks to modify his loan through the LMM program. Debtor seeks to confirm the Plan and cure arrears with his now sufficient income.
Service proper. No opposition filed.
MOTION GRANTED. RULING MAY BE MODIFIED AT HEARING. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Juan Maldonado Bastida Represented By
10:00 AM
CONT...
Trustee(s):
Juan Maldonado Bastida
Matthew D. Resnik
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11965
Ian Jacoby
Chapter 7
Adv#: 1:18-01117 Williams v. Jacoby
#10.00 Pre trial conference re complaint for: willful and malicious injury
fr. 1/9/19, 10/23/19
Docket 1
*** VACATED *** REASON: Cont'd per stipulation to 3/11/2020 at 11
a.m. - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ian Jacoby Represented By
Andrew Goodman Vincent V Frounjian
Defendant(s):
Ian Jacoby Pro Se
Plaintiff(s):
Garrett Williams Represented By Lazaro E Fernandez
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:19-11659
Nicolas Mendez Rodriguez
Chapter 7
Adv#: 1:19-01119 Hernandez v. Rodriguez
#11.00 Status Conference re: Complaint for nondischargeability of debt
Docket 1
*** VACATED *** REASON: Vol. Dismissed 12/19/19 (doc. 4) - hm Tentative Ruling:
Party Information
Debtor(s):
Nicolas Mendez Rodriguez Represented By Steven A Simons
Defendant(s):
Nicolas Mendez Rodriguez Pro Se
Plaintiff(s):
Berta Hernandez Represented By Sarah Cuellar
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:19-12727
Tacarra Sheana Carthan
Chapter 7
Adv#: 1:19-01135 Barton et al v. Carthan
#12.00 Status Conference re: Complaint for determination
of dischargeability and objection to debtors discharge
Docket 1
Tentative Ruling:
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
10:00 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
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.
Party Information
Debtor(s):
Tacarra Sheana Carthan Pro Se
Defendant(s):
Tacarra Sheana Carthan Pro Se
Plaintiff(s):
Carmen Barton Pro Se
Anthony Carthan Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#13.00 Motion for Leave to Amend Complaint Pursuant to Fed.R.Civ.P. Rule 15(a)(2)
Docket 187
*** VACATED *** REASON: Cont'd to 2/26/20 at 1:00 p.m. per Doc. #197. lf
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Gordon Jones Represented By
Michael Worthington
Plaintiff(s):
John Levin, M.D. Represented By Michael Jay Berger
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#14.00 Motion to Dismiss Adversary Proceeding or for Judgment on the Pleadings
Docket 189
*** VACATED *** REASON: Cont'd to 2/26/20 at 1:00 p.m. per Doc. #197. lf
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Gordon Jones Represented By
Michael Worthington
Plaintiff(s):
John Levin, M.D. Represented By Michael Jay Berger
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
10:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
#15.00 Motion to Withdraw as Attorney
Docket 50
*** VACATED *** REASON: Withdrawal filed - Doc. #63. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Maria Estela San Vicente Represented By Michael R Totaro
10:00 AM
1:16-13421
Vicki Lynn Temkin
Chapter 7
#16.00 Trustee's Final Report and Applications for Compensation
Docket 76
Tentative Ruling:
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 JANUARY 15, 2020.
Party Information
Debtor(s):
Vicki Lynn Temkin Represented By Vicki I Temkin
Trustee(s):
Nancy J Zamora (TR) Represented By Larry D Simons Frank X Ruggier
10:00 AM
1:18-10094
Donald A Hilland
Chapter 7
#17.00 Trustee's Final Report and Hearing on Applications for Compensation
Docket 80
Tentative Ruling:
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 JANUARY 15, 2020.
Party Information
Debtor(s):
Donald A Hilland Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Toan B Chung
11:00 AM
1:18-11538
Momentum Development LLC
Chapter 7
Adv#: 1:19-01129 Weil v. The Pyramid Center, Inc.
#18.00 Status Conference re: Amended Complaint to Avoid Fraudulent Transfers
Docket 9
Tentative Ruling:
Having considered the Joint Status Report and finding good cause, this status conference is continued to Feb. 5, 2020 at 11:00 a.m.
Plaintiff to give notice of continued status conference. APPEARANCES WAIVED ON 1/15/2020.
Party Information
Debtor(s):
Momentum Development LLC Represented By
Michael H Raichelson
Defendant(s):
The Pyramid Center, Inc. Represented By
Michael H Raichelson
Plaintiff(s):
Diane Weil Represented By
David Seror Jorge A Gaitan
Trustee(s):
Diane C Weil (TR) Represented By David Seror Jorge A Gaitan
11:00 AM
1:12-10231
Owner Management Service, LLC and Trustee Corps
Chapter 7
#19.00 Motion RE: Objection to Claim Number 28 by Claimant Susan Ferguson fr. 11/20/19
Docket 2311
Tentative Ruling:
Claimants assert a claim against the estate for damages incurred in dealing with Matsuba & Trust Holding Services. Claimants rented a property in Burbank on a one- year lease, beginning on August 1, 2006. In November 2006, Joseph Huynh bought the property with two promissory notes, for $600,000 and $150,000, secured by deeds of trust in favor of New Century Mortgage Corporation. In June 2007, Huynh transferred the property into an inter vivos trust, with Trust Holding Services as the trustee and Huynh as the sole beneficiary. Beginning on August 1, 2007, after the expiration of the one-year lease, appellants made monthly rent payments to Trust Holding Services.
The Complaint filed by Claimants in Los Angeles Superior Court, asserted a claim for damages due to alleged "rent-skimming." The California Appellate Court upheld the dismissal of the rent-skimming causes of action under § 890(a)(2) but reversed the dismissal of the rent skimming cause of action under §890(a)(1) and remand the case for a limited new trial on that cause of action. Ferguson v. Trust Holding Services, Co., 2014 WL 810852 (Cal.Ct.App. March 3, 2014)(the "Appellate Decision"). In so holding, the California Court of Appeal explained that the trial court abused its discretion when it denied Ferguson's motion to reopen evidence after Matsuba's testimony at trial.
Once it became clear that the court would consider and credit Matsuba’s testimony, which was adverse to appellants’ case, appellants had the right to request permission to present rebuttal evidence, and the court erred in failing to exercise its discretion on their request.
Id. at *7.
The CA App. Court specified on retrial, that the posture of the case will be the same as if the motion for judgment had not been granted.
11:00 AM
CONT...
Owner Management Service, LLC and Trustee Corps
Chapter 7
The fraud cause of action, however, was dismissed because a plaintiff must show that he or she has suffered consequential damages in reasonable reliance on the actionable misrepresentation. Id. at *8, quoting Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1499.) "It is unclear how appellants were damaged by making their normal monthly rent payments and living on the property the entire time they paid rent." Id.
Cal. Civ. Code §890(d) states:
(d) A tenant of residential real property may bring an action against a person who has engaged in rent skimming with respect to that property for the recovery of actual damages, including any security, as defined in Section 1950.5, and moving expenses if the property is sold at a foreclosure sale and the tenant was required to move. A prevailing plaintiff in such an action shall be awarded reasonable attorney's fees and costs. The court also may award exemplary damages; it shall award exemplary damages of at least three times the amount of actual damages if the payments due under any deed of trust or mortgage were two or more months delinquent at the time the tenant rented the premises or if the defendant has engaged in multiple acts of rent skimming.
Trustee argues that a decision of the Appellate Decision is the "law of the case" and is preclusive to the issue of damages. While this is true that the final rulings of the Appellate Court are preclusive, Trustee is reliance on the Appellate Decision as to the issue of damages is misplaced. Discussing damages under § 890(c) and (d), the Appellate Court explained:
While we need not determine what actual damages besides the security deposit and moving expenses may be recoverable under this subdivision, we note that, under section 891 subdivision (c), a lender may sue to recover rent collected by a rent skimmer. As tenants, appellants were required to pay rent as consideration for living on the property but had no interest in how rent revenue was applied; they cannot claim the rent they paid to THS as actual damages. Nor should THS be held accountable for appellants’ decision to embroil themselves in the long-lasting legal battle to quiet title to the property following the foreclosure or to hold over and defend against Avelo’s unlawful detainer actions.
11:00 AM
CONT...
Owner Management Service, LLC and Trustee Corps
Chapter 7
Id. at *5 (emphasis added).
Claimant points out that the case is still pending in the Court of Appeal against Trust Holding Services Company, and the retrial is also currently stayed in the superior court against Dororthy Matsuba. Because the Appellate Court did not need to determine the actual damages recoverable besides the security deposit and the moving expenses, no preclusive findings were made as to the question of whether exemplary damages under §890(d) may be appropriate here.
The parties should be prepared to discuss whether the issues left on remand may be resolved here in a contested matter, or if the parties wish to participate in mediation to determine if a consensual resolution may be reached.
APPEARANCE REQUIRED
Debtor(s):
Party Information
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 Jorge A Gaitan
11:00 AM
1:17-12901
Yakov Aleksaudrovich and Natalia Koutina
Chapter 7
#20.00 Order to Show Cause why Karish Kapital LLC, Max Recovery Group LLC, Its Agents, assigns, successors and Counsel should not be held in Civil
Contempt and Sanctioned for failing to remedy continuing violations of the discharge injuction and automatic stay
Docket 0
Tentative Ruling:
APPEARANCE REQUIRED
On or about August 7, 2017, Karish entered into a Merchant Agreement Lucas Auto, a non-debtor corporation. Natalia Koutina ("Koutina") signed a personal guarantee ("Guaranty") that required her to concurrently sign a confession of judgment ("Confession"). FAC, 18-01007, ECF doc. 9, p. 15, 44. The Contract granted Karish a "security interest and lien upon (a) all accounts, chattel paper, documents, equipment, general intangibles, instruments, and inventory, as those terms are defined in Article 9." FAC, pg
27. Yakov Alexsaundrovich ("Debtor") contends that Karish has not provided any evidence of a perfected UCC-1 financing statement.
The Contract provided that "[Natalia] agrees that this is a contract of recoupment and [Karish] is not required to file motion for relief from a bankruptcy action automatic stay to realize any of the Secured Assets.
Nevertheless, [Natalia] agrees not to contest or object to any motion for relief from the automatic stay filed by [Karish]." Id., p. 27:6-10 (the "Waiver").
On October 30, 2017 ("Petition Date"), Debtors filed for bankruptcy relief under Chapter 7 of title 11 of the United States Code. On the petition date, Debtor states that the Account had a balance of zero. Decl. of Yakov Aleksandrovich ISO OSC (the "Yavob Decl."), ¶2. Karish was listed on the mailing matrix. See, ECF doc.4, p. 10. On November 2, 2017, Karish filed the Confession with the New York State Court which recorded and entered the Judgment against Natalia. RJN ISO Motion for OSC, Ex. 1.
11:00 AM
CONT...
Yakov Aleksaudrovich and Natalia Koutina
Debtor states that, post-petition, he placed funds in the Account.
Chapter 7
Yakov Decl., ¶2. On December 19, 2017, Debtor received an email informing him that Karish levied on the Account. Id., Ex. 1. On February 14, 2018, Debtor and Koutina received their discharges. On March 23, 2018, Debtor’s counsel emailed Karish’s counsel about a levy executed on the Account (the "Levy Email"), asserted that it was a violation of the discharge injunction, and requested that Karish immediately release the funds (the "Levied Funds").
Debtor argues that creditor Karish Kaptial ("Karish") should be held in contempt for (1) violation of the automatic stay for levying post-petition on a Paypal account held by Debtor (the "Paypal Account") and (2) violation of Debtor’s discharge injunction by refusing to release the funds levied from the Paypal Account.
Violation of the Automatic Stay
The filing of a bankruptcy petition under chapter 11 of the Bankruptcy Code creates an automatic stay which prohibits, inter alia, "the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]" 11 U.S.C. § 362(a) (1); Snavely v. Miller (In re Miller), 397 F.3d 726, 730-31 (9th Cir. 2006) ("The stay of section 362 is extremely broad in scope and . . . should apply to almost any type of formal or informal action against the debtor or property of the estate."). An automatic stay arose when Debtor and Koutina filed the chapter 7 bankruptcy petition on October 30, 2017. The automatic stay remained in effect to bar actions against Debtor until entry of the discharge and discharge injunction on February 14, 2018. 11 U.S.C. § 362(c)(2)(C); Zilog, Inc. v. Corning (In re Zilog, Inc.), 450 F.3d, 996, 1009 (9th Cir. 2006). ("[T]he stay of any other act under subsection (a) of this section continues until the earliest of — . . . the time a discharge is granted or denied[.]")
Consequently, any attempt by Karish to commence or continue an action against Debtor to collect on an alleged debt between October 30, 2017 and February 14, 2018 would constitute a violation of the automatic stay. In
11:00 AM
CONT...
Yakov Aleksaudrovich and Natalia Koutina
Chapter 7
Knupfer v. Lindblade (In re Dyer ), the Ninth Circuit held that the post- bankruptcy petition recordation of a deed of trust by a creditor was a willful violation of the automatic stay because the creditor "had an affirmative duty to remedy his automatic stay violation ... such as by attempting to undo the recordation process." Knupfer v. Lindblade (In re Dyer ), 322 F.3d 1178, 1191–92 (9th Cir.2003). Karish submitted the Judgment by Confession for entry by the New York Supreme Court on November 2, 2017 and placed a lien on Debtor’s Account on or about December 19, 2017. It is undisputed that Respondents’ actions in recording the Lien violated the automatic stay.
The Court first addresses whether the violation was willful.
Karish had actual notice of the bankruptcy
Section 362(k) permits sanctions for willful violations of the automatic stay under § 362(a). "A willful violation is satisfied if a party knew of the automatic stay, and its actions in violation of the stay were intentional." Eskanos & Adler, P.C. v. Leetien, 309 F.3d 1210, 1215 (9th Cir.2002) (citing Pinkstaff v. United States (In re Pinkstaff), 974 F.2d 113, 115 (9th Cir.1992)). Once a creditor has knowledge of the bankruptcy, it is deemed to have knowledge of the automatic stay. Ramirez v. Fuselier (In re Ramirez), 183 B.R. 583, 589 (B.A.P. 9th Cir. 1995).
Karish was included in the creditor mailing matrix that was filed with the chapter 7 bankruptcy petition on October 30, 2017. Bankr. ECF doc. 1. As Karish does not dispute that it received notice of the bankruptcy filing, it is deemed to have knowledge of the stay. Karish also does not dispute that it intended to have the Judgment by Confession when it sent it to the New York Supreme Court to be entered and that it intended to have the levy placed on the Account. Karish’s failure to address the issue of actual notice under the
§ 36299(k) suffice to establish that it received notice of the bankruptcy on or about October 30, 2017. As Karish had actual notice of the bankruptcy before it directed the entry of the Judgment by Confession and placed the lien on the Account in violation of the stay, the violation was willful under §362(k).
Measure of Damages re Violations of Automatic Stay
11 U.S.C. § 362(k)(1), states that "an individual injured by any willful
11:00 AM
CONT...
Yakov Aleksaudrovich and Natalia Koutina
Chapter 7
violation of a stay ... shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages." Actual damages include "fees … properly allocable to efforts to enforce the automatic stay," and any fees the debtor incurs after that point in pursuit of a damage award. See In re Schwarz-Tallard, 803 F.3d 1095, 1100 (finding that § 362(k) authorizes an award of attorney's fees incurred in prosecuting an action for damages, overruling Sternberg v. Johnson, 595 F.3d 937, 947 (9th Cir. 2009)).
Debtor and his counsel attempted informally on several occasions to get Karish to correct the violations. See Decl. of Stella Havkin ISO Motion for OSC; Yakov Decl. As it took the filing and pursuit of the Contempt Motion to finally force Karish to address the stay violations, it is appropriate to award Debtor his reasonable attorney’s fees and costs for prosecuting the Contempt Motion. Nothing in the record indicates that the Judgment by Confession has been vacated nor that the levy on the Account has been released. Thus, under Schwartz-Tallard, any attorney’s fees incurred by Debtor in connection with bringing the OSC Motion to enforce the stay would be compensable under § 362(k). The Court will set a deadline for Debtor to file a Statement of Attorney’s Fees, so that the Court may award damages under § 362(k).
Karish’s lien on the Account was placed post-petition. As such, the lien is void must be released. See generally 4 Collier on Bankruptcy at ¶ 524.02 (16th Ed. 2018)(a creditor whose debt is discharged is not permitted to obtain a lien, even by operation of law, if it did not hold a lien when the petition was filed.)(emphasis added).
Violation of Discharge Injunction
Section 524 of the Bankruptcy Code recites the effect of a discharge:
A discharge in a case under this title—
voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under [§ 727], whether or not discharge of such debt is waived;
11:00 AM
CONT...
Yakov Aleksaudrovich and Natalia Koutina
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[.]
Chapter 7
A party injured by a violation of the discharge injunction has no private cause of action for damages under § 524 or § 105. Walls v. Wells Fargo Bank, 276 F.3d 502, 504 (9th Cir.2002). Rather, a violation under § 524(a) is enforced through the bankruptcy court's contempt authority under § 105(a). Renwick v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002); Walls, 276 F.3d at 507.
"[T]he [aggrieved debtor] seeking contempt sanctions has the burden of proving, by clear and convincing evidence, that the sanctions are justified." ZiLOG, Inc. v. Corning (In re ZiLOG, Inc.), 450 F.3d 996, 1007 (9th Cir.2006). And to justify sanctions, the debtor must prove (1) that the offending creditor knew the discharge injunction was applicable and (2) that the creditor intended the actions which violated the injunction. Bennett, 298 F.3d at 1069 (citation omitted). After the debtor meets his/her burden, the burden then shifts to the creditor to demonstrate why it was unable to comply with the discharge injunction. See id. (citation omitted).
Karish argues that it relied on the terms of the Contract quoted above that it was entitled to levy on the Account. "Karish […] was working under the assumption that the agreement created a right of recoupment against the debtor’s right to income from the business." Karish Opp., 4:1-3. Because it believed that the Contract provided for recoupment, Karish claims that it held a good faith belief that the discharge injunction was not applicable.
Equitable recoupment is a common law doctrine that is not expressly recognized in the Bankruptcy Code, but is preserved through judicial decisions. In re Madigan, 270 B.R. 749 (B.A.P. 9th Cir. 2001) (quoting 5 Collier on Bankruptcy ¶ 553.10 (15th ed. rev.2001)). Recoupment "is the setting up of a demand arising from the same transaction as the plaintiff's claim or cause of action, strictly for the purpose of abatement or reduction of such claim." Newbery Corp. v. Fireman's Fund Ins. Co., 95 F.3d 1392, 1399
11:00 AM
CONT...
Yakov Aleksaudrovich and Natalia Koutina
Chapter 7
(9th Cir.1996) (quoting 4 Collier on Bankruptcy, ¶ 553.03, at 553–15 (15th ed.1995)) (emphasis in original)). It involves "netting out debt," and is allowed "because it would be inequitable not to allow the defendant to recoup those payments against the debtor's subsequent claim." Newbery, 95 F.3d at 1401; Long Term Disability Plan of Hoffman–La Roche, Inc. v. Hiler (In re Hiler), 99
B.R. 238, 243 (Bankr.D.N.J.1989) ("[T]he application of recoupment goes to the equity of the claim.").
As recoupment is neither a claim nor a debt, it is unaffected by either the automatic stay or the debtor's discharge. Oregon v. Harmon (In re Harmon), 188 B.R. 421, 425 (B.A.P. 9th Cir. 1995); In re TLC Hosps., 224
F.3d 1008, 1011 (9th Cir. 2000); Newbery, 95 F.3d at 1399–1400; Mercy Hosp. of Watertown v. New York State Dept. of Social Servs., 171 B.R. 490, 494–95 (N.D.N.Y.1994). Because the defense is based in equity, "courts should apply the recoupment doctrine in bankruptcy cases only when it would be inequitable for the debtor to enjoy the benefits of [a] transaction without meeting its obligations." Newbery, 95 F.3d at 1403.
In recoupment, the respective claims may arise either before or after the commencement of the bankruptcy case, but they must arise out of the same transaction. Newbery, 95 F.3d at 1399. Here, Karish does not allege that Levied Funds were subject to the security interest. In fact, Debtor Yakov is not a party to the Contract and Karish does not explain how the security interest would reach funds in Debtor Yakov’s Paypal Account, assuming a perfected UCC-1 Financing Statement exists. There is no allegation, let alone evidence presented, that the Levied Funds were of the same transaction, as required under the doctrine of equitable recoupment.
Karish knew as of March 23, 2018, when Debtor’s counsel sent the Levy Email, that Debtor asserted that the discharge injunction enjoined it from executing the levy. To date, there is no evidence that the levy has been released nor the Confession of Judgment vacated. Debtor’s counsel’s previous correspondence and the Levy Email should have put Karish on notice that the discharge injunction was implicated, which would trigger its duty to make reasonable inquiry about whether its failure to vacate the Judgment by Confession and failure to release on the Account would violate the discharge injunction and to determine if corrective action was required on
11:00 AM
CONT...
Yakov Aleksaudrovich and Natalia Koutina
Chapter 7
his part. A basic review of recoupment law would have demonstrated to Karish the tenuous nature of its recoupment argument. At the very least, such research in the law of equitable recoupment might have made its way into Karish’s brief in response to the OSC.
Karish also maintains that actual damages cannot be awarded in this case because "to the best of its knowledge" it has not collected any money through Max Recovery or its attorney Vadim Serebro, since the commencement of the case. It is unclear where the Levied Funds are now, as Debtor states that the Account has not been released and Debtor’s counsel has not represented that she has received the Levied Funds.
An exception to the Rooker–Feldman doctrine applies when the state proceeding is a legal nullity and void ab initio. In re Pavelich, 229 B.R. 777, 783 (B.A.P. 9th Cir. 1999)(citing Kalb v. Feuerstein, 308 U.S. at 438–40 (1940)(judgment in violation of automatic stay is void). Enforcing a bankruptcy court's discharge order in the face of a final state court judgment is permitted. Local Loan Co. v. Hunt, 292 U.S. 234 (1934). The rationale for the exception is that because "a void judgment is null and without effect, the vacating of such a judgment is merely a formality and does not intrude upon the notion of mutual respect in federal-state interests." In re Pavelich, 229 B.R. at 783 (internal citations omitted). The amount of the Levied Funds is included in the actual damages. Given the lack of evidence presented by Karish to support its position, the Account will be ordered released and the Levied Funds turned over to Debtor’s counsel.
Debtor also requests that Karish be ordered to pay Debtor’s attorney’s fees for having to bring the Motion for the Court to issue this OSC. The court's contempt authority under § 105(a) is only a civil contempt authority and allows only for civil sanctions as the appropriate remedy. In re Moreno, 479 B.R. 553, 569 (Bankr.E.D.Cal. 2012) (citing Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1192 (9th Cir.2003) (considering contempt sanctions in context of stay violation)). Civil sanctions must either be compensatory or designed to coerce compliance. Id. (internal citation omitted). For a discharge violation, "compensatory civil contempt allows an aggrieved debtor to obtain compensatory damages, attorney’s fees, and the offending creditor's compliance with the discharge injunction." Walls, 276 F.3d at 507.
11:00 AM
CONT...
Yakov Aleksaudrovich and Natalia Koutina
Chapter 7
The issue of the amount of damages that are appropriately awarded under § 362(k) will be reviewed after Debtor files a Statement of Fees related to enforcing the automatic stay. The Court will also review the appropriateness of awarding fees under its sanction authority.
Party Information
Debtor(s):
Yakov Aleksaudrovich Represented By Elena Steers Stella A Havkin
Joint Debtor(s):
Natalia Koutina Represented By Elena Steers Stella A Havkin
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:18-10309
Henrik Andreas Ingvarsson and Keri Ingvarsson
Chapter 11
#21.00 Chapter 11 Plan of Reorganization
fr. 2/6/19, 4/3/19, 5/15/19, 7/31/19, 9/18/19, 11/6/19
Docket 75
*** VACATED *** REASON: Stip. cont. to 2/26/20 @10am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
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
1:18-10309
Henrik Andreas Ingvarsson and Keri Ingvarsson
Chapter 11
#22.00 Scheduliing and Case Management Conference
fr. 3/28/18; 10/24/18; 2/6/19, 2/27/19, 4/3/19, 5/15/19, 7/31/19, 9/18/19, 11/6/19
Docket 1
*** VACATED *** REASON: Stip. cont. to 2/26/20 @10am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Henrik Andreas Ingvarsson Represented By Matthew D Resnik
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D Resnik
1:00 PM
1:12-17302
Dennis Berkovich
Chapter 13
Adv#: 1:19-01007 California Franchise Tax Board v. Berkovich
#22.01 Status Conference Re: Complaint to Determine NonDischargeability of Tax [11 USC Sections 523(a)(1)(B) (i) and 1328(a)(2)]
fr. 5/1/19, 1/8/20
Docket 1
Tentative Ruling:
Party Information
Debtor(s):
Dennis Berkovich Represented By Charles Shamash Joseph E. Caceres
Defendant(s):
Dennis Berkovich Represented By
Andrew Edward Smyth
Joint Debtor(s):
Marina Voloshin Represented By Charles Shamash Joseph E. Caceres
Plaintiff(s):
California Franchise Tax Board Represented By Ronald N Ito
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:12-17302
Dennis Berkovich
Chapter 13
Adv#: 1:19-01007 California Franchise Tax Board v. Berkovich
#23.00 Motion For Summary Judgment
Docket 14
Tentative Ruling:
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Dennis Berkovich Represented By Charles Shamash Joseph E. Caceres
Defendant(s):
Dennis Berkovich Represented By
Andrew Edward Smyth
Joint Debtor(s):
Marina Voloshin Represented By Charles Shamash Joseph E. Caceres
Plaintiff(s):
California Franchise Tax Board Represented By Ronald N Ito
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:18-11821
Sonia D. Roman
Chapter 7
Adv#: 1:18-01110 Roman v. US Bank ELT Brazos ELA Inc. et al
#24.00 Pre-trial conference re complaint for: dischargeability of student loan
fr. 1/9/19, 8/21/19
Docket 1
*** VACATED *** REASON: Stip. cont. to 3/11/20, @ 10am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Sonia D. Roman Represented By Christine A Kingston
Defendant(s):
US Bank ELT Brazos ELA Inc. Pro Se
Pennsylvania Higher Education Pro Se
Plaintiff(s):
Sonia D. Roman Represented By Christine A Kingston
Trustee(s):
Amy L Goldman (TR) Pro Se
1:00 PM
1:18-11545
Ian Ellis Silber
Chapter 11
Adv#: 1:18-01104 Silber et al v. Silber et al
#25.00 Motion For Summary Judgment
Docket 45
Tentative Ruling:
The facts and procedural history of this adversary proceeding are extensively documented in this Court’s decision, Notice of Tentative Ruling Re Plaintiff's Motion for Summary Judgment, ad. ECF doc. 34 (the "Decision") and the Findings of Fact and Conclusion of Law re Summary Judgment (ad. ECF doc. 53). The Court granted summary judgment as to Plaintiffs' claim for embezzlement under Section 523(a)(4). In doing so, the Court ruled as follows: "Here, the State Court record contains sufficient findings of Defendants' actions to conceal from Plaintiffs the fact that they had drained the equity from the Galvez Property and encumbered it with a substantial lien." [Decision, p. 10].
As part of its Decision, the Court ordered the parties to mediation to resolve the apportionment of nondischargeable damages. The Court indicated that should the parties fail to do so, the Court would decide the issue. The mediation was unsuccessful. On August 28, 2019, the Court ordered that Plaintiffs file a Motion for Summary Judgment regarding damages.
On September 5, 2018, Surtec Insurance Company, the bonding company on the two appeal bonds, paid the full amount of the bonds, $352,500, to Plaintiffs (the "Bond Funds"). At the time of the payment, the following amounts were owed under the First Amended Judgment by Defendants to Plaintiffs: (1) Economic damages of $103,591.38; (2) Punitive damages of
$90,000; (3) Attorney's fees of$190,390; (4) Pre-judgment interest of $68,395;
Post judgment interest of$12,363.47, for a total of $464,739.85.
1:00 PM
CONT...
Ian Ellis Silber
Chapter 11
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. Fed. R. Civ. P. 56(c) (incorporated by Fed. R. Bankr. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. 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). 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. Celotex, 477 U.S. at 324. The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir.1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). The inference drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (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).
A court can consider granting partial summary judgment under Fed. R. Civ. P. 56(f). Rule 56(f) states in relevant part:
1:00 PM
CONT...
Ian Ellis Silber
Judgment Independent of the Motion. After giving notice and a
Chapter 11
reasonable time to respond, the court may:
grant summary judgment for a nonmovant;
grant the motion on grounds not raised by a party; or
consider summary judgment on its own after identifying for the
parties material facts that may not be genuinely in dispute.
Under Rule 56(f) a cross-motion need not be filed for entry of summary judgment in favor of the opposing party. If there are no factual issues and the opposing party is entitled to judgment as a matter of law, and the moving party had notice and an adequate opportunity to address the issues, summary judgment may be granted forthwith. Gospel Missions of America v. City of Los Angeles, 328 F3d 548, 553 (9th Cir. 2003)("Even when there has been no cross-motion for summary judgment, a district court may enter summary judgment sua sponte against a moving party if the losing party has had a ‘full and fair opportunity to ventilate the issues involved in the matter. The salient issues upon which the district court granted summary judgment were presented in the original motion.’")(citation omitted).
In their Opposition, Defendants argue that summary judgment should be denied "because the State Court judgment remains inconsistent and fails to provide any clarity with regard to how the punitive damages and attorney's fees were apportioned among the various causes of action, making the amounts claimed for these categories likely non-dischargeable." Supp. Opp., p. 6.
1:00 PM
CONT...
Ian Ellis Silber
Whether the attorney's fees and punitive damages are dischargeable is
Chapter 11
not salient to the analysis of damages here. Plaintiffs' cite to In re Custer, 88
B.R. 573, 575-76 (Bankr. D. Conn. 1988) to support their position that a creditor will have the right to direct and allocate an involuntary payment to its advantage. The Bankruptcy Appellate Panel of the Ninth Circuit (the "BAP") cited to Custer and applied the same law in Gerwer v. Salzman (In re Gerwer), 253 B.R. 66 (B.A.P. 9th Cir. 2000). In Gerwer, the BAP explained that California statutory law is consistent with the general principal expressed in Custer and applied that law. Gerwer, 253 B.R. at 70. California Civil Code § 1479 provides:
Where a debtor, under several obligations to another, does an act, by way of performance ... the performance must be applied as follows:
One—If, at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation, be manifested to the creditor, it must be so applied.
Two—If no such application be then made, the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such performance ...
Cal.Civ.Code § 1479 (emphasis added).
Here, Defendants never made a voluntary payment towards the amounts due under the State Court Judgment. Instead, the bond company did.
Defendants may not direct the allocation of the Bond Funds. Plaintiffs have the right to allocate the Bond Funds first towards payment of the dischargeable
1:00 PM
CONT...
Ian Ellis Silber
Chapter 11
obligations due under the State Court Judgment, and then towards the non- dischargeable obligations due under the State Court Judgment. See id. at 70 ("Because [the debtor] did not make the payment and therefore cannot direct its allocation, [the creditor] had the right to allocate the distribution as he so determined").
The Bond Funds distributed by SureTec were $352,500. If the Bond Funds are applied as proposed by Plaintiffs, the allocation would be:
Bond funds | $ 352,500.00 |
less Punitive damages (dischargeable) | $ 90,000.00 |
less Attorney's fees (dischargeable) | $ 190,390.00 |
BALANCE OF BOND FUNDS | $ 72,110.00 |
Post-CA judgment interest (dischargeable) | $ 12,363.47 |
BALANCE OF BOND FUNDS | $ 59,746.53 |
less Compensatory damages (non-dischargeable) | $ 103,591.38 |
less Pre-judgment interest (non-dischargeable) | $ 68,395.00 |
BALANCE OF BOND FUNDS | $ (112,239.85) |
NET NON-DISCHARGEABLE JUDGMENT | $ 112,239.85 |
PLUS post-adversary judgment interest (9/5/19-1/15/20) | $15,313.50 |
TOTAL NON-DISCHARGEABLE JUDGMENT | $ 127,553.35 |
1:00 PM
CONT...
Ian Ellis Silber
As explained above, there is no genuine issue as to any material fact
Chapter 11
related to the allocation of damages under the applicable Ninth Circuit law and Plaintiffs are entitled to a judgment as a matter of law.
Motion GRANTED.
Party Information
Debtor(s):
Ian Ellis Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia Joyce Owens
Defendant(s):
Ian Ellis Silber Represented By Matthew D. Resnik
Jane Ellen Silber Represented By Matthew D. Resnik
DOES 1 through 50 Represented By Matthew D. Resnik
Joint Debtor(s):
Jane Ellen Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Plaintiff(s):
Kurt Silber Represented By
Timothy R Hanigan Arthur Carvalho Jr
Irene Silber Represented By
Timothy R Hanigan
1:00 PM
CONT...
Ian Ellis Silber
Chapter 11
1:00 PM
1:18-11545
Ian Ellis Silber
Chapter 13
Adv#: 1:18-01104 Silber et al v. Silber et al
#26.00 Status conference re complaint for: non-dischargeability of debt
fr. 12/12/18, 2/27/19; 3/13/19, 5/1/19, 8/7/19, 8/28/19
Docket 5
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
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
1:00 PM
CONT...
Trustee(s):
Ian Ellis Silber
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
8:30 AM
1:19-12220
Liliana Verduzco
Chapter 7
#1.00 Pro se Reaffirmation Agreement Between Debtor and Capital One Auto Finance, a division of Capital One, N.A.
Docket 14
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Petition date: 9/4/19
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): $11,000 Amount to be reaffirmed: $8,914
APR: 6.49%
Contract terms: $203.87 per month for 57 months Monthly Income (Schedule I): $3,396.14
Monthly expenses: (Schedule J): $3.374.80 Disposable income: $21.34
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 is provided. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until February 13, 2020, whichever is later.
Party Information
8:30 AM
CONT...
Debtor(s):
Liliana Verduzco
Chapter 7
Liliana Verduzco Represented By Elena Steers
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
1:19-12292
Michael William Sadowski and Linda Diane Ptolemy
Chapter 7
#2.00 Pro se Reaffirmation Agreement Between Debtor and Partners Federal Credit Union
Docket 23
Matter Notes:
- NONE LISTED -
Tentative Ruling:
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: 2009 Honda Civic
Debtor’s valuation of property (Sch. B): $3,000 Amount to be reaffirmed: $2,574.80
APR: 5.74%
Contract terms: $316.5
Monthly Income (Schedule I): $6,858.44
Monthly expenses: (Schedule J): $316.67 per month for 9 months Disposable income: $6,738.70
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 is provided. This payment is listed in Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until February 6, 2020, whichever is later.
Party Information
8:30 AM
CONT...
Debtor(s):
Michael William Sadowski and Linda Diane Ptolemy
Chapter 7
Michael William Sadowski Represented By Brian J Horan
Joint Debtor(s):
Linda Diane Ptolemy Represented By Brian J Horan
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
1:19-12932
Andrew Mark Weitz and Fay Weitz
Chapter 7
#3.00 Pro se Reaffirmation Agreement Between
Debtor and American Honda Finance Corporation
Docket 10
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Petition date: 11/21/19
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): $15,000 (LEASE)
Amount to be reaffirmed: $2,111.60 APR: 0% fixed
Contract terms: $342.34 per month for 6 months Monthly Income (Schedule I): $5,450
Monthly expenses: (Schedule J): $5,305 Disposable income: $145
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 is provided. The payment on this leased vehicle is on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until March 2, 2020, whichever is later.
Party Information
8:30 AM
CONT...
Debtor(s):
Andrew Mark Weitz and Fay Weitz
Chapter 7
Andrew Mark Weitz Pro Se
Joint Debtor(s):
Fay Weitz Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:19-13069
Kenneth Lee Altbush
Chapter 13
#74.00 Motion for Order Determining Value of Collateral (2015 Toyota Prius)
Docket 25
*** VACATED *** REASON: Withdrawl filed - Doc. #30.lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Kenneth Lee Altbush Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13069
Kenneth Lee Altbush
Chapter 13
#75.00 Motion for Order Determining Value of Collateral (2002 Toyota Sequoia)
Docket 24
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Personal Property: 2002 Toyota Sequoia
Value: $1,345 (per Movant’s valuation based on Edmunds) 1st Lien: $2,874.24 (Wheels Financial Group dba LoanMart)
Movant, Kenneth Altbush, moves to value the Property and to bifurcate the claim into a $1,345 secured portion and $1,529.24 unsecured portion.
LoanMart opposes arguing that Debtor undervalued the Property and that the correct replacement value based on Kelly Blue Book is $3,378. LoanMart asserts that Debtor’s indicating on Edmunds that the Property is in rough condition reduced the valued of the Property by almost half to $1,482, but Debtor did not provide evidence of any ascertainable damage to the Property.
Debtor replied with a declaration asserting that the Property has 215,350 miles and has considerable cosmetic damage. Debtor declares that the dashboard indicates "VSC TRAC" and "TRAC OFF" warning light. Further, a computer diagnostic test gave an error code of "C1231," which Debtor believes means that the steering angle sensor has failed and needs to be replaced. Debtor asserts that the Property needs various repairs that is estimated to cost $1,000.
There is a $2,033 difference between the Movant and LoanMart’s valuation.
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Kenneth Lee Altbush Represented By Matthew D. Resnik
11:00 AM
CONT...
Trustee(s):
Kenneth Lee Altbush
Roksana D. Moradi-Brovia
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:13-17737
Pella Parker
Chapter 13
#76.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 8/20/19, 10/22/19, 12/17/19
Docket 115
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
10-22-19 Tentative Below:
Cont’d. fr. 8/20/2019
On August 6, 2019, Debtor filed an Opposition to the Motion stating that she has not yet filed 2017 and 2018 tax returns. Debtor states that she is trying to make sure that she has the funds to pay her accountant but hopes to file the tax returns before the hearing. Debtor claims that any 2017 and 2018 tax refunds will be sent to the Trustee.
Has Trustee received Debtor’s tax refunds?
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
Party Information
Debtor(s):
Pella Parker Represented By
Steven A Alpert
11:00 AM
CONT...
Trustee(s):
Pella Parker
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-13718
Nina L. Novak
Chapter 13
#77.00 Trustee's Motion to Dismiss Case Due to Expiration of the Plan
Docket 106
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Trustee asserts that $3,750 remains unpaid under the Plan.
Debtor opposes and explains that her balance is only $2,670 and that she believes that she will be able to complete payments in the next few months.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Nina L. Novak Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-13751
Mike Ginzburg and Natasha Ginzburg
Chapter 13
#78.00 Trustee's Motion to Dismiss Case (Plan Expiration) fr. 11/19/19
Docket 74
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
The last hearing was continued.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Debtor filed an opposition with no arguments.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Mike Ginzburg Represented By Joshua L Sternberg
Joint Debtor(s):
Natasha Ginzburg Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14219
Carmine Antoniello
Chapter 13
#79.00 Trustee's Motion to Dismiss Case due to Infeasibility of the Plan fr. 9/24/19, 12/17/19
Docket 127
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
All parties agreed to continue at the last hearing. Debtor indicates in his Motion for Hardship Discharge [#151] that he is terminally ill and has no funds for his Plan to resolve the infeasibility.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
9-24-19 Tentative Below:
Cont’d. fr. 9-24-19
Debtor opposed asserting that she will make all payments to pay off the Plan. Trustee indicated outstanding balance of $12,890.55.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 9-24-19 hearing.
Party Information
Debtor(s):
Carmine Antoniello Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14219
Carmine Antoniello
Chapter 13
#80.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19
Docket 144
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
Debtor has filed a Motion for Hardship Discharge to a terminal illness and indicated that he does not have the funds to pay the Plan.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Debtor opposed and indicated she will bring receipts of payments or will file motion to modify.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Carmine Antoniello Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14219
Carmine Antoniello
Chapter 13
#81.00 Motion for Hardship Discharge Without Discharge or Prejudice to Secured Claims of Allied Collection Services and U.S. Bank Trust, N.A., et al. c/o Caliber Home Loans, Inc. and Priority Claims
of the Department of the Treasury - Internal Revenue Service
Docket 151
Matter Notes:
- NONE LISTED -
Tentative Ruling:
The court confirmed Debtor’s Plan on March 10, 2015 and required Debtor to pay
$987 per month for 5 years. Debtor now moves for a hardship discharge without discharge or prejudice to Allied Collection Services and U.S. Bank Trust’s secured claims and the IRS’s priority proofs of claims.
No opposition filed.
Legal Standard
The Bankruptcy Code allows the Debtor to request a hardship discharge under 11 USC § 1328(b):
"at any time after 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 the 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 a claim of the estate if the debtor had been liquidated under chapter 7 of this title on such date; and
11:00 AM
CONT...
Carmine Antoniello
Chapter 13
modification of the plan under section 1329 of this title is not practicable."
Debtor asserts the following:
He should not justly be held accountable because for the past 3 years, he has been undergoing medical treatment and had numerous extended hospital stays due to a terminal illness and has not been able to work for the entire 2019 year. Copies of his medical records will be sent to the Trustee and the court.
Unsecured creditors received more than the amount that would have been paid under chapter 7 because the chapter 13 plan was confirmed on a projected 0.00% distribution to unsecured creditors. The liquidation of Debtor’s estate would leave no monies payable to any creditors.
Plan modification is not possible because Debtor has no income whatsoever. Motion GRANTED. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Carmine Antoniello Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15110
Marlene Colon
Chapter 13
#82.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds fr. 8/20/19, 10/22/19
Docket 76
*** VACATED *** REASON: Ntc. of w/drawal filed 1/24/20 (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 10-22-19
All parties agreed to continue at the last hearing
APPEARANCE REQUIRED unless Trustee stipulates to continue.
10-22-19 Tentative Below:
On 8/5/19, Debtor submitted an Opposition. Debtor asserts that she will pay federal tax refund to Trustee before the hearing, or, alternatively, counsel will serve and file an appropriate motion to resolve the default.
Has Debtor tendered the tax refunds to Trustee?
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
Party Information
Debtor(s):
Marlene Colon Represented By Todd J Roberts
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15423
David F Shin
Chapter 13
#83.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns fr. 8/20/19, 10/22/19
Docket 43
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 10-22-19
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
David F Shin Represented By
Tyson Takeuchi Scott Kosner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15455
Sirous Salem
Chapter 13
#84.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 8/20/19, 9/24/19, 11/19/19
Docket 68
*** VACATED *** REASON: Trustee file a withdrawal - doc #70. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Sirous Salem Represented By
William J Smyth Stephen S Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10079
Judy Marie Napolitano
Chapter 13
#85.00 Trustee Motion for Order Dismissing Case due to Failure to submit Tax Returns
Docket 81
*** VACATED *** REASON: Withdrawal filed - Doc. #83. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Judy Marie Napolitano Represented By Robert Reganyan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10366
Dieter Cortez
Chapter 13
#86.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
Docket 57
Matter Notes:
- NONE LISTED -
Tentative Ruling:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Dieter Cortez Represented By
James B Smith
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10366
Dieter Cortez
Chapter 13
#87.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr, 10/22/19, 11/19/19
Docket 52
*** VACATED *** REASON: Withdrawal filed - doc. #60. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Dieter Cortez Represented By
James B Smith
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10366
Dieter Cortez
Chapter 13
#88.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment Pursuant to 11 USC Sec 1329(A) and the percentage to be Paid to Unsecured Creditors or, in the alternative, Dismissing the Chapter 13
Petition Due to the Debtor's Failure to Make their Best Efforts to Repay Creditors Pursuant to 11 USC Sec. 1307(c)(6)
fr. 11/19/19
Docket 55
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
The parties agreed to continue at the last hearing. APPEARANCE REQUIRED unless Trustee stipulates to continue. 11-19-19 Tentative Below:
Cont’d. fr. 10-22-19
Trustee moved to modify the Plan to increase Plan Payment and percentage paid to unsecured creditors, or, alternatively, to dismiss the petition due to Debtor’s failure to make best efforts to repay creditors.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Dieter Cortez Represented By
James B Smith
11:00 AM
CONT...
Trustee(s):
Dieter Cortez
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10674
Shireen Janti Reid
Chapter 13
#89.00 Chapter 13 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 11/19/19
Docket 40
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
1-19-19 Tentative Below:
Trustee moved to modify the Plan to increase Plan Payment and percentage paid to unsecured creditors, or, alternatively, to dismiss the petition due to Debtor’s failure to make best efforts to repay creditors.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Shireen Janti Reid Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10707
Edward F Wrona and Diletta Wrona
Chapter 13
#90.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 9/24/19, 11/19/19
Docket 34
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Edward F Wrona Represented By Devin Sawdayi
Joint Debtor(s):
Diletta Wrona Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10822
Tracey Lynne Baumert
Chapter 13
#91.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr,10/22/19, 11/19/19
Docket 112
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
The parties agreed to continue at the last hearing. APPEARANCE REQUIRED unless Trustee stipulates to continue. 11-19-19 Tentative Below:
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
10-22-19 Tentative Below:
On 10/2/19, Debtor filed an Opposition asserting that he will provide 2015, 2016, 2017, and 2018 federal and state tax returns to Trustee before the hearing.
Has Debtor provided Trustee the tax returns? If so, does this resolve the Motion?
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
Party Information
Debtor(s):
Tracey Lynne Baumert Represented By Kevin T Simon
11:00 AM
CONT...
Trustee(s):
Tracey Lynne Baumert
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10859
Victor Hugo Castillo and Maria De los Angeles Castillo
Chapter 13
#92.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 9/24/19, 11/19/19
Docket 43
*** VACATED *** REASON: Ntc. of w/drawal filed 12/16/19 (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Victor Hugo Castillo Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Maria De los Angeles Castillo Represented By Jaime A Cuevas Jr.
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10864
Luis Alberto Paz De La Vega-Mayandia and Margarita
Chapter 13
#93.00 Trustee Motion for Order Dismissing Case due to Failure to submit Tax Returns
Docket 55
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #57. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Luis Alberto Paz De La Vega- Represented By Ali R Nader
Joint Debtor(s):
Margarita Mirtha Calle-Zanabria Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11086
Christopher C Dutton and Erika Courtney Perry-Dutton
Chapter 13
#94.00 Trustee Motion to Dismiss Case for Failure to Submit All Tax Returns
Docket 84
*** VACATED *** REASON: Ntc. of w/drawal filed 12/18/19 (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Christopher C Dutton Represented By Anerio V Altman
Joint Debtor(s):
Erika Courtney Perry-Dutton Represented By Anerio V Altman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11162
Steven Sandler
Chapter 13
#95.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19
Docket 98
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
12-17-19 Tentative Below:
Debtor opposed explaining that he had to care for his mother, who has a serious health issue, which affected his income.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Steven Sandler Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11162
Steven Sandler
Chapter 13
#96.00 Trustee Motion for Failure to Submit All Tax Returns
Docket 108
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes explaining that he has not filed his 2016, 2017, and 2018 tax returns because he has been working on saving his house and helping his family. Debtor asserts that he will complete his tax returns in the next 60 days. Debtor request to continue the hearing for 60 days.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Steven Sandler Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11552
Athena Marie Massey
Chapter 13
#97.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 54
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposed explaining that the Trustee’s records are inaccurate because payments were sent but not received by Trustee.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Athena Marie Massey Represented By Mark E Brenner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12361
Jose Suarez
Chapter 13
#98.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 60
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes because he had unforeseen expenses for his wife’s illness in which he had to pay high medical bills that caused the delinquency. Debtor explains that he has been working overtime and will soon be able to make his plan current before the hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Jose Suarez Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12928
Theodore Douglas BECK and Susan Marjorie BECK
Chapter 13
#99.00 Motion to Avoid Junior Lien with Wells Fargo Bank, N.A.
Docket 71
*** VACATED *** REASON: Debtor's attorney filed a withdrawal - Doc. #76. lf
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Theodore Douglas BECK Represented By
R Grace Rodriguez
Joint Debtor(s):
Susan Marjorie BECK Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-13123
Buenaventura Marquez
Chapter 13
#100.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19
Docket 26
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
The parties agreed to continue at the last hearing. APPEARANCE REQUIRED unless Trustee stipulates to continue. 12-17-19 Tentative Below:
Cont’d. fr. 10-22-19
Debtor opposed explaining that during 2017, 2018, and 2019 tax years, Debtor and her family had increased necessary expenses, particularly health and house insurance, that exceeded the tax refunds.
Trustee filed a reply asserting that Debtor did not disclose her increased income, and did not update income and expenses information.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Buenaventura Marquez Represented By Stella A Havkin
11:00 AM
CONT...
Trustee(s):
Buenaventura Marquez
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-13493
Ronny Bess and Jeannie Renat Bess
Chapter 13
#101.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 129
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
The parties agreed to continue at the last hearing. APPEARANCE REQUIRED unless Trustee stipulates to continue. 12-17-19 Tentative Below:
Debtor opposed explaining that he has not yet filed his taxes and will do so on December 4, 2019, and will provide the Trustee with a copy.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
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
CONT...
Ronny Bess and Jeannie Renat Bess
Chapter 13
11:00 AM
1:15-14044
Ahmad Heidari and Nafiseh Alamdar Heidari
Chapter 13
#102.00 Trustee Motion for Order Dismissing Case due to Failure to submit Tax Returns
Docket 105
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #108. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Ahmad Heidari Represented By Steven A Alpert
Joint Debtor(s):
Nafiseh Alamdar Heidari Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14098
Vartkes Kassardjian
Chapter 13
#103.00 Trustee Motion for Order Dismissing Case due to Failure to submit Tax Returns
Docket 117
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #121. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Vartkes Kassardjian Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14101
Carlita Smith
Chapter 13
#104.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 60
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes and explains that she is in the process of mailing the past due amount to the Trustee. Debtor made a payment that posted with the Trustee on December 6, 2019. Debtor requests time for the Trustee to receive the payments.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Carlita Smith Represented By
Lauren Rode
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14147
Jared Garcia Canchola
Chapter 13
#105.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19
Docket 88
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #92 lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Jared Garcia Canchola Represented By
L. Tegan Rodkey
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14171
Albert Hakakha
Chapter 13
#106.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 9/24/19, 11/19/19
Docket 233
*** VACATED *** REASON: Ntc. of w/drawal filed by Trustee on 1/24/20 (eg)
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
Debtor filed amended schedules I & J. Trustee filed amended comments approving. The court entered an order granting the motion to modify.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Cont’d. fr. 9-24-19
This was continued so that the motion to modify can be resolved. Trustee disapproves of the motion to modify because Trustee has not received updated Schedules I and J or evidence of income, and cannot determine whether the modification is feasible.
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Albert Hakakha Represented By Nathan A Berneman
11:00 AM
CONT...
Trustee(s):
Albert Hakakha
David Brian Lally
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14171
Albert Hakakha
Chapter 13
#107.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/7/19(MB), 3/26/19, 6/25/19, 7/30/19, 9/24/19, 11/19/19
Docket 225
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
The court entered an order granting the motion to modify. APPEARANCE REQUIRED unless Trustee stipulates to continue. 11-19-19 Tentative Below:
Cont’d. fr. 9-24-19
Debtor filed opposition in 3-7-2019 stating the he believes he will be current before the next hearing or he will file a motion to modify plan. Debtor filed a motion to modify or suspend plan payments. Trustee disapproves of the motion to modify or suspend plan payments because Trustee has not received updated Schedules I and J or evidence of income and cannot determine whether proposed modification is feasible.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Albert Hakakha Represented By Nathan A Berneman David Brian Lally
11:00 AM
CONT...
Trustee(s):
Albert Hakakha
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10125
Ben Diep
Chapter 13
#108.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 91
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor asserts that he will bring receipts of payments to the hearing and/or file a motion to modify.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Ben Diep Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10137
Anaida Prazyan-Vartanyan
Chapter 13
#109.00 Trustee Motion for Order Dismissing Case due to Failure to submit Tax Returns
Docket 103
*** VACATED *** REASON: Ntc. of w/drawal filed 12/16/19 (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Anaida Prazyan-Vartanyan Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10348
Jim K. Nikolopoulos and Ayarpi Nikolopoulos
Chapter 13
#110.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment Pursuant to 11 USC Sec. 1329(a) and the Percentage to be
Paid to Unsecured Creditors or, in the Alternative, Dismissing the Chapter 13 Petition Due to Debtrors' Failure to Make Debtors' Best Efforts to Repay Creditors Pursuant to 11 USC Sec. 1307(c)(6)
fr. 12/17/19
Docket 55
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
The parties agreed to continue at the last hearing. APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Jim K. Nikolopoulos Represented By Scott D Olsen
11:00 AM
CONT...
Jim K. Nikolopoulos and Ayarpi Nikolopoulos
Chapter 13
Joint Debtor(s):
Ayarpi Nikolopoulos Represented By Scott D Olsen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10898
Jacqueline Desiree Landaeta Alvarez
Chapter 13
#111.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/20/19, 9/24/19, 12/17/19
Docket 113
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
At the last hearing, Trustee indicated wanting evidence of medical payments. Debtor requested another continuance to gather the funds. Debtor asserts that she had to spend money for medical expenses.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Jacqueline Desiree Landaeta Alvarez Represented By
Matthew D Resnik Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11278
Armine Charkhchyan and Andranik Charkhchyan
Chapter 13
#112.00 Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 10/22/19, 12/17/19
Docket 73
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Cont’d. fr. 10-22-19
At the last hearing, the parties requested to continue.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
10-22-19 Tentative Below:
On 9/17/19, Trustee filed this Motion requesting to increase plan payments to
$5,587.88 starting November 13, 2019 and to increase the percent to unsecured creditors, or, alternatively, dismiss the petition.
On 10/8/19, Debtors filed an Opposition asking to deny the Motion, or, alternatively, modify the plan to no greater than $905 based on Debtors’ current monthly net income.
Debtors were given notice that they selected the incorrect hearing date and time of 11/12/19.
11:00 AM
CONT...
Armine Charkhchyan and Andranik Charkhchyan
Chapter 13
On 10/10/2019, Trustee filed a Reply stating the following issues with Debtors’ proposal: (1) no current paystub has been provided to Trustee; (2) Debtors’ budget now includes a $721.41 payment for a vehicle. Trustee states that Debtors appeared to have purchased or leased a vehicle without court authorization to incur debt; and (3) Debtors increased the entertainment expense from $100 to $300 and the charitable expense from $30 to $200. The Trustee requests that Debtor provide the current paystub and address the budget concerns.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
Party Information
Debtor(s):
Armine Charkhchyan Represented By
Rosie Barmakszian
Joint Debtor(s):
Andranik Charkhchyan Represented By
Rosie Barmakszian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11279
Carl N. Ciarfalio and Theresa R. Ciarfalio
Chapter 13
#113.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 11/19/19
Docket 32
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #37. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Carl N. Ciarfalio Represented By Joseph A Weber
Joint Debtor(s):
Theresa R. Ciarfalio Represented By Joseph A Weber
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11356
Denny Tedesco and Suzie Tedesco
Chapter 13
#114.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 11/19/19
Docket 81
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Debtors opposed arguing that they will provide 2016, 2017, and 2018 state and federal tax returns before the hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Denny Tedesco Represented By Kevin T Simon
Joint Debtor(s):
Suzie Tedesco Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11542
Dolores Margaret Lomeli
Chapter 13
#115.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 76
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor asserts that she will be current before the hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Dolores Margaret Lomeli Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12085
Arthur H. Song
Chapter 13
#116.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 12/17/19
Docket 34
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Cont’d. fr. 10-22-19
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
10-22-19 Tentative Below:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
Party Information
Debtor(s):
Arthur H. Song Represented By Ali R Nader
11:00 AM
CONT...
Trustee(s):
Arthur H. Song
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12201
Andrea Beckham
Chapter 13
#117.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/22/19, 12/17/19
Docket 42
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Cont’d. fr. 10-22-19
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue. 10-22-19 Tentative Below:
On 9/18/19, Debtor filed an Opposition asserting that the delinquent payment will be cured before the hearing. Debtor also claims making an online payment of $1,200 on 9/13/19.
Has Trustee received Debtor’s payments?
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
Party Information
Debtor(s):
Andrea Beckham Represented By
11:00 AM
CONT...
Trustee(s):
Andrea Beckham
Michael Jay Berger
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12216
Sarkis Ohannes Mouchmouchian
Chapter 13
#118.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 10/22/19, 11/19/19
Docket 44
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Cont’d. fr. 10-22-19
On 10-23-19, Debtor filed a declaration in support of the opposition with attached amended Schedules I and J. Debtor requests to maintain his payments at $215 per month. Debtor explains that his income remains stagnant, but his expenses have increased. Debtor asserts that he has additional income from social security benefits. Debtor explains that he and his wife were required to lease two new vehicles because one lease expired and another vehicle broke, and that the lease payments of $252 and $259 per month on two vehicles are not extravagant. Debtor explains that his wife needed a $15,000 dental work, which cost $1,250 per month, and his son’s college expenses is $797 per month.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
10-22-19 Tentative Below:
Trustee requested this court to increase plan payments to $3,130.25 starting November 1, 2019 and increase the percent to unsecured creditors, or, alternatively, dismiss the petition.
11:00 AM
CONT...
Sarkis Ohannes Mouchmouchian
Chapter 13
On 10/3/19, Debtor filed an Opposition asserting that the MOMOD only updates Debtor’s income under his 2018 tax returns but does not account for expenses. Debtor filed amended Schedules I and J to reflect current monthly income and expenses. Debtor asserts that his monthly disposable income remains at $215 per month and he does not have sufficient income to increase payments to $3,130.25 per month. Debtor asks that his payments remain at $215 per month.
On 10/10/2019, Trustee filed a Reply stating that based on a review of the amended budged, it appears that Debtor spent money on new vehicles, dental work, and college for an adult child instead of making a best effort to repay creditors. Trustee asserts that expenses must be reasonable and necessary, and creditors are only receiving 8%. Trustee further explains that the amended budget indicates an increase in several expenses without support or explanation, including: (1) the amended budget including car payments for two vehicles that is not indicated in Debtor’s original Schedules; (2) $1,250 per month for dental work; and (3) $797 for books and tuition for an adult child. The Trustee requests the court to increase plan payments to $3,130.25 as of November 1, 2019 and increase the percentage to unsecured creditors, or, alternatively, dismiss the petition.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
Party Information
Debtor(s):
Sarkis Ohannes Mouchmouchian Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12264
Alicia Butterfield
Chapter 13
#119.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 11/19/19
Docket 62
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Debtor opposed asserting that she will cure the deficiency on or before the hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Alicia Butterfield Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12275
Cecilia Arrieta
Chapter 13
#120.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All
Tax Refunds fr. 12/17/19
Docket 27
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Debtor opposed explaining that she filed amended schedules B & C exempting the tax refunds. Debtor alleges that her tax refunds are exempted because no objections were filed to the amended exemptions per FRBP § 4003(b)(1).
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Cecilia Arrieta Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12528
Damian M Wilson
Chapter 13
#121.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19
Docket 60
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #64. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Damian M Wilson Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12578
Waqas Memon
Chapter 13
#122.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment Pursuant to 11 USC Sec. 1329(a) and the Percentage to be Paid to Unsecured Creditors or, in the Alternative, Dismissing the Chapter 13 Petition Due to Debtor's Failure to Make Debtor's Best Efforts to Repay Creditors Pursuant to 11 USC Sec. 1307(c)(6).
fr. 12/17/19
Docket 85
*** VACATED *** REASON: trustee withdrew [#91] -ts Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Waqas Memon Represented By William R Ramsey
Trustee(s):
Elizabeth (SV) F Rojas (TR) Represented By Huy N Tran
11:00 AM
1:16-12613
Susan Griffin
Chapter 13
#123.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 11/19/19
Docket 50
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Debtor opposed on 10-15-19 stating that she will file a motion to modify or suspend plan payments. No motion to modify or suspend plan payments has been filed yet.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Susan Griffin Represented By
Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12860
Erika Urrego
Chapter 13
#124.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 38
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
Parties entered into a stipulation modifying plan.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Erika Urrego Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13055
Mark David Cave
Chapter 13
#125.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 107
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes asserting that he experienced a business downturn and that he anticipates paying the Trustee after the first of the year. Debtor requests a continuance to get current.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Mark David Cave Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13127
Adolfo Flores, Jr.
Chapter 13
#126.00 Trustee's Motion to Dismiss Case for Failure to submit all tax returns
fr. 12/17/19
Docket 39
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Adolfo Flores Jr. Represented By Sydell B Connor
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13127
Adolfo Flores, Jr.
Chapter 13
#127.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
Docket 42
Matter Notes:
- NONE LISTED -
Tentative Ruling:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Adolfo Flores Jr. Represented By Sydell B Connor
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13555
Carlos M Jimenez Cuellar and Nicole Cuellar
Chapter 13
#128.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 11/19/19
Docket 28
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Cont’d. fr. 10-22-19
At the last hearing, all parties agreed to continue.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Carlos M Jimenez Cuellar Represented By Marlin Branstetter
Joint Debtor(s):
Nicole Cuellar Represented By Marlin Branstetter
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10021
Nelson Humberto Pinto
Chapter 13
#129.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
Docket 105
Matter Notes:
- NONE LISTED -
Tentative Ruling:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Nelson Humberto Pinto Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10559
Teresa Ann Marquez
Chapter 13
#130.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/24/19, 11/19/19
Docket 45
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Cont’d. fr. 9-24-19
Debtor opposed explaining that she defaulted because of extreme illness, but she is now recuperating and should be able to pay the defaulted amount on or before the hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Teresa Ann Marquez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10811
Daniel Mora
Chapter 13
#131.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 38
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes explaining that she experienced an unforeseen financial emergency due to a household contributor failing to make contributions. Debtor intends to be current on or before the hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Daniel Mora Represented By
Axel H Richter
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10883
Martin Rios
Chapter 13
#132.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 47
*** VACATED *** REASON: Trustee withdrew [#51]-ts Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Martin Rios Represented By
William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10982
Nicole Karen Lee
Chapter 13
#133.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
Docket 75
*** VACATED *** REASON: Ntc of w/drawal filed 1/24/20, (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Nicole Karen Lee Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11120
Jennifer H. Nguyen
Chapter 13
#134.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 42
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
Parties entered stipulation modifying plan.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Jennifer H. Nguyen Represented By Rob R Nichols
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11159
Levia Blane Arbuckle
Chapter 13
#135.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 110
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor asserts that she will bring receipts of payments and/or file motion to modify. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Levia Blane Arbuckle Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11205
Shahla Hariri
Chapter 13
#136.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 82
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #86. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Shahla Hariri Represented By
Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12376
Abdolvahab Pourvasei
Chapter 13
#136.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 105
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes asserting that the plan will be current on or before the hearing and/or a motion to modify will be filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Abdolvahab Pourvasei Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11267
Irma Villalpando
Chapter 13
#137.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 118
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #127. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Irma Villalpando Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11267
Irma Villalpando
Chapter 13
#138.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 12/17/19
Docket 120
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Court granting motion to modify entered.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Debtor opposes explaining that she will file a motion to modify. No motion to modify on file.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Irma Villalpando Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11281
Eduard Shevkolenko and Sokhiba Shevkolenko
Chapter 13
#139.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All
Tax Refunds fr. 12/17/19
Docket 107
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Eduard Shevkolenko Represented By Elena Steers
Joint Debtor(s):
Sokhiba Shevkolenko Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11281
Eduard Shevkolenko and Sokhiba Shevkolenko
Chapter 13
#140.00 Trustee's motion to dismiss case for failure to make plan payments
fr. 4/5/18 ; 6/7/18, 7/19/18, 11/1/18, 12/6/18, 12/18/18, 2/7/19 4/23/19, 6/25/19, 7/30/19, 9/24/19, 11/19/19
Docket 59
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
Declaration in support of motion to modify filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Cont’d. fr. 9-24-19
At the last hearing, all parties agreed to continue.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 9-24-19 tentative.
Fr. 7/30/19
What is the status of the motion to modify? Fr. 6/25/19
Debtor filed a motion to modify on April 22. On April 24, Trustee filed an opposition to the motion to modify on several grounds. What is the status of that motion to modify? Are the parties trying to work out the issues on the motion to modify?
FR. 4/23/19
Ruling for February 7, 2019: Continued to 4/23/19 at 11:00.
11:00 AM
CONT...
Eduard Shevkolenko and Sokhiba Shevkolenko
Chapter 13
Ruling for December 18, 2018:
Continued to February 7, 2019 at 11:30 a.m.
Ruling for November 1, 2018:
Cont. to 12/6/18 at 11:30.
Ruling for July 19, 2018
Continued to November 1, 2018 at 11:30 a.m.
Ruling for June 7, 2018
Continued to July 19, 2018, at 11:30 a.m.
Ruling for April 5, 2018:
Continued to June 7, 2018, at 11:30 a.m.
Party Information
Debtor(s):
Eduard Shevkolenko Represented By Elena Steers
Joint Debtor(s):
Sokhiba Shevkolenko Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#141.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 151
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Debtors oppose asserting that they have provided the tax returns to the Trustee.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
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
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#142.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/24/19, 11/19/19
Docket 138
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Trustee alleges that Debtors are $7,992 in default.
Debtors opposed explaining that they had a dispute with Chase and made extra payments, but the dispute is not resolved. Debtors explain that they will pay Trustee before the 9-24-19 hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
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
1:17-11387
Haroutiun Papazian
Chapter 13
#143.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
Docket 50
Matter Notes:
- NONE LISTED -
Tentative Ruling:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Haroutiun Papazian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#144.00 Motion RE: Objection to Creditor's Proof of Claim
fr. 12/17/19
Docket 77
*** VACATED *** REASON: Continued to 2/11 per stip. [j.j.] Matter Notes:
- NONE LISTED -
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Linda Akerele Alele Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11764
Jeffrey Arthur Craddock
Chapter 13
#145.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 12/17/19
Docket 75
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Trustee moves to modify the Plan or dismiss the case because Debtor allegedly failed to make best efforts to repay creditors.
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Jeffrey Arthur Craddock Represented By Stephen S Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11804
Eduardo N Trillo, Jr. and Maritess Biglangawa Trillo
Chapter 13
#146.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19
Docket 58
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
No motion to modify on file yet.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Debtor opposed explaining that he will file motion to modify or suspend plan payments, which has not been filed yet.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Eduardo N Trillo Jr. Represented By Elena Steers
Joint Debtor(s):
Maritess Biglangawa Trillo Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12102
Arman Tombakian
Chapter 13
#147.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 11/19/19
Docket 62
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Debtor opposed asserting that he will be current by the hearing date. Debtor explains that he paid $2,000 and $1,000 in October 2019.
Did Trustee receive the payments?
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Arman Tombakian Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12270
Alejandra Castellanos
Chapter 13
#148.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 40
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor asserts that she made two separate TFS payments on 11/16/19 for $2,000 and on 12/9/2019 for $690 to bring her account current.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Alejandra Castellanos Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12322
Steven Ronan and Claudia Ronan
Chapter 13
#149.00 Trustee Motion for Order Dismissing Case due to Failure to submit Tax Returns
Docket 87
Matter Notes:
- NONE LISTED -
Tentative Ruling:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Steven Ronan Represented By
R Grace Rodriguez
Joint Debtor(s):
Claudia Ronan Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12329
Barbara Jean Woodard-Cox
Chapter 13
#150.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
Docket 70
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor asserts that she will bring the payments or documents or file a motion to modify.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Barbara Jean Woodard-Cox Represented By Barry E Borowitz Michael E Clark
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12363
Janice Marie Semien
Chapter 13
#151.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
Docket 58
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes explaining that she is currently employed and makes $122,576.94 per year and may receive a bonus, but the bonuses are not guaranteed. Debtor claims that the Trustee’s proposed modification of $3,581 per month is not feasible. Debtor would like to work with the Trustee to create a modified plan that is realistic. Debtor asks that she be allowed to continue to pay into her plan.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Janice Marie Semien Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12596
Lynne Suzanne Boyarsky
Chapter 13
#152.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 75
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative:
Debtor opposed explaining that the 2017 and 2018 tax returns were uploaded on Trustee’s website.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Lynne Suzanne Boyarsky Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12834
Michael Rizzo, Jr
Chapter 13
#153.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 64
*** VACATED *** REASON: resolved per stip [#67]-ts Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Michael Rizzo Jr Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13032
Barry Lee Morgan
Chapter 13
#154.00 Trustee Motion to Dismiss Case for Failure to Submit All Tax Returns
Docket 55
Matter Notes:
- NONE LISTED -
Tentative Ruling:
No opposition.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Barry Lee Morgan Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13047
Brenda Leigh Worden-Jones
Chapter 13
#155.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 25
*** VACATED *** REASON: Ntc. of w/drawal filed 1/24/20 (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Debtor opposed explaining that she uploaded her 2017 and 2018 tax returns on the Trustee’s website.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Brenda Leigh Worden-Jones Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13139
Mariane Del Mundo Laya
Chapter 13
#156.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 10/22/19, 11/19/19
Docket 31
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Cont’d. fr. 10-22-19
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
10-22-19 Tentative Below:
Trustee requests to increase plan payments to $4,783.86 as of 11/2/19 and increase the percentage to unsecured creditors, or, alternatively, dismiss the case.
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
Party Information
Debtor(s):
Mariane Del Mundo Laya Represented By
Hasmik Jasmine Papian
11:00 AM
CONT...
Trustee(s):
Mariane Del Mundo Laya
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13196
Isaac Nessim Azoulay
Chapter 13
#157.00 Chapter 13 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 11/19/19
Docket 49
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Trustee requests to increase plan payments to $4,783.86 as of 11/2/19 and increase the percentage to unsecured creditors, or, alternatively, dismiss the case.
Debtor’s Opposition states that Trustee’s proposal would overpay creditors by
$244,835. Debtor explains that Trustee based her demands on the non-filing spouse’s 1031 exchange, which is separate property and not earned income.
Trustee filed a Reply explaining that she was not able to determine the source of income because Debtor did not provide a complete tax return. Trustee requests that Debtor turn over a complete 2018 tax return and provide evidence of current income.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Isaac Nessim Azoulay Represented By Steven L Bryson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13345
Antoaneta Daniela Silvia Panait
Chapter 13
#158.00 Trustee's Motion for Order Dismissing Case due to Failure to submit Tax Returns
Docket 57
*** VACATED *** REASON: Withdrawal filed by Trustee' - Doc. #62. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Antoaneta Daniela Silvia Panait 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
1:17-13365
Sundara Devananda Rao
Chapter 13
#159.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 57
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Sundara Devananda Rao Represented By William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#160.00 Motion under Local Bankruptcy Rule 3015-1 (n) and (w) to modify plan or suspend plan payments
fr. 12/17/19
Docket 89
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
The parties agreed to continue at the last hearing. APPEARANCE REQUIRED.
12-17-19 Tentative Below:
Debtor proposes to suspend 3 plan payments and reduce play payment from $5,800 to $500.
Trustee opposes Debtor’s Motion because the reduced payment to $500 from
$5,800 does not appear to be Debtor’s best effort.
Former Ch. 7 Trustee objects as well because the reduced payment and suspension of 3 payments is allegedly not Debtor’s best efforts. Trustee states that the Motion is not filed in good faith and requests to reconvert Debtor’s case to Ch. 7.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
11:00 AM
CONT...
Trustee(s):
Dawn O. Olivieri
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#161.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19
Docket 85
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
See Debtor’s motion to modify above #160.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Debtor opposes and explains that she will file and serve a motion to modify or suspend plan payments. T’ee. opposes Debtor’s motion to modify or suspend plan payments, which is set for hearing on 12-17-19 at 11:00 a.m.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10208
Luzmaria Payan Gomez
Chapter 13
#162.00 Trustee Motion to Dismiss Case for Failure to Submit All Tax Returns
Docket 45
*** VACATED *** REASON: Ntc. of wdrawal filed 1/24/20 (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Luzmaria Payan Gomez Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10407
Jose Galindo, Jr
Chapter 13
#163.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 49
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor unintentionally fell behind on plan payments because of financial difficulties and intends to bring his plan current on or before the hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Jose Galindo Jr Represented By Karine Karadjian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#164.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 45
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Marvin Eleid Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10551
Joaquin Martinez
Chapter 13
#165.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/24/19, 11/19/19, 12/17/19
Docket 68
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Cont’d. fr. 11-19-19
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
11-19-19 Tentative Below:
Cont’d. fr. 9-24-19, 12/17/19
Debtor opposed explaining that he suffered financial hardship because his brother and tenant failed to pay rent due to diabetes complications. Debtor would like to reinstate his post-petition arrears by modifying the plan. Debtor has not filed a motion for plan modification.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
11:00 AM
CONT...
Debtor(s):
Joaquin Martinez
Chapter 13
Joaquin Martinez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10551
Joaquin Martinez
Chapter 13
#166.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 77
*** VACATED *** REASON: Trustee withdrew [#81]-ts Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Joaquin Martinez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10629
Jose Jaime Estrada
Chapter 13
#167.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19
Docket 46
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
It looks like the opposition came in late and an order was entered dismissing the case. As debtor believes he can cure, the dismissal order was vacated. The parties should advise at the hearing when the cure can be made.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Jose Jaime Estrada Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10671
Yuriy Sharonov
Chapter 13
#168.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 37
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Yuriy Sharonov Represented By Vahe Khojayan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10891
Hamid Farkhondeh and Mary Dadyan
Chapter 13
#169.00 Motion RE: Objection to Claim Number 7 by Claimant Noushin Laaly.
fr. 10/23/18; 4/23/19, 6/25/19; 8/20/19, 9/24/19, 11/19/19
Docket 54
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
The last hearing was continued. Since then, Debtors/Defendants have filed an Amended Plan. On September 30, 2019, the state court signed the judgment and awarded Plaintiffs/Creditors Noushin and Kourosh Laaly $662,416.38, which is broken down as follows:
Return of payments… $182,313.00
Prejudgment interest on $182,313.00… 97,032.17
Penalty imposed under Business & Professions Code § 7160… 500.00
Damages for Fraud and Breach of Contract… 222,089.00
Attorney’s Fees Per Cal. Bus. & Prof. Code § 7160… 146,351.00
Costs, per Memorandum of Costs… 14,131.21
Total………………………………………………………………………………
$662,416.38
Plaintiff’s allege that the state court ruled in favor of Mary Dadyan, but Plaintiffs have not dismissed the complaint against her at this time.
Legal Standard
A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in
11:00 AM
CONT...
Hamid Farkhondeh and Mary Dadyan
Chapter 13
writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶ 3001.05[2].
To defeat a claim, a debtor must present 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. "The objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992).
"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.
An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c).
Analysis
Debtors objected to the claim based on 11 U.S.C. § 502(b)(1), which provides that a claim is not allowed if "such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured." Debtors object on the bases that "no court of law has determined that the proof of claim has any merit."
Because the state court has entered an award against Debtors, Debtors’ objection is OVERRULED. However, the evidence presented demonstrates that Claimants must amend the $750,000 claim to reflect the correct amount.
APPEARANCE REQUIRED.
11-19-19 Tentative Below:
11:00 AM
CONT...
Hamid Farkhondeh and Mary Dadyan
Chapter 13
Cont’d. fr. 9-24-19
At the last hearing, Debtors’ counsel said that the state trial is complete, and she filed a proposed judgment, which the state court judge has not signed yet. There is a motion for attorney’s fees in state court.
The parties agreed to continue for Debtors to file an amended plan and for the parties to discuss the objection to claim and adversary proceeding.
APPEARANCE REQUIRED for 11-19-19 tentative.
Party Information
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
1:18-10891
Hamid Farkhondeh
Chapter 13
Adv#: 1:18-01067 Laaly et al v. Farkhondeh et al
#170.00 Status conference re complaint for:
dischargeability of debt for false pretenses
false representations, and/or actual fraud
objection to debtors' discharge, pursuant to 523 and 727 of the bankruptcy code
fr. 8/8/18; 12/12/18; 4/10/19; 4/23/19, 6/25/19; 8/20/19, 9/24/19, 11/19/19
Docket 1
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
Plaintiffs Noushin and Kourosh Laaly filed this adversary complaint to determine Debtors’ debts nondischargeable for false pretenses, false representations, and/or actual fraud.
SR filed on 1-17-2020.
The parties had stipulated to stay Plaintiffs’ complaint, filed June 5, 2018, pending the state court trial. On September 30, 2019, the state court signed the judgment and awarded Plaintiffs $662,416.38. The state court ruled in favor of Mary Dadyan, but Plaintiffs have not dismissed the complaint against her.
Plaintiffs need to take deposition of third party, Homay Naraghi. The parties do not need a pretrial conference. Creditors filed an objection to Debtors’ proposed plan.
Discovery cut-off (all discovery to be completed*):
Expert witness designation deadline (if necessary):
Case dispositive motion filing deadline (MSJ; 12(c)):
11:00 AM
CONT...
Hamid Farkhondeh
Chapter 13
Pretrial conference:
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) :
APPEARANCE REQUIRED.
11-19-19 Tentative Below:
Cont’d. fr. 9-24-19
At the last hearing, Debtors’ counsel said that the state trial is complete, and she filed a proposed judgment, which the state court judge has not signed yet. There is a motion for attorney’s fees in state court.
The parties agreed to continue for Debtors to file an amended plan and for the parties to discuss the objection to claim and adversary proceeding.
APPEARANCE REQUIRED for 11-19-19 tentative. 9/24/19 Tentative Below:
Parties filed a Joint SR on 9/17/19, apprising the Court of the resolution of the State Court Action on or about 8/28/19. Now that this portion of the litigation appears to be resolved, the parties should be prepared to discuss how to advance this adversary matter.
APPEARANCE REQUIRED for 9/24/19 tentative.
Party Information
Debtor(s):
Hamid Farkhondeh Pro Se
Defendant(s):
Hamid Farkhondeh Pro Se
Mary Dadyan Pro Se
Joint Debtor(s):
Mary Dadyan Pro Se
11:00 AM
CONT...
Hamid Farkhondeh
Chapter 13
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
1:18-10933
Bertha Perez
Chapter 13
#171.00 Trustee Motion to Dismiss Case for Failure to Submit All Tax Returns
Docket 39
*** VACATED *** REASON: Withdrawal filed by Trustee - #44. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Bertha Perez Represented By
Michael E Clark Barry E Borowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11080
Rafael Huerta
Chapter 13
#172.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19
Docket 31
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Debtor opposed explaining that he mailed a cashier’s check for $1,248 to Trustee and that he will be current on his plan payments by the hearing.
Did Trustee receive Debtor’s payments?
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Rafael Huerta Represented By William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11140
Dahlia J-nai Jones
Chapter 13
#173.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 60
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes and asserts that she has good cause to modify plan or suspend payments or will be current by the hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Dahlia J-nai Jones Represented By Erika Luna
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11210
Thomas Vy Nguyen
Chapter 13
#174.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 62
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposed providing no arguments.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Thomas Vy Nguyen Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11512
Donna Mapile
Chapter 13
#175.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All
Tax Refunds fr. 12/17/19
Docket 33
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
Debtor filed her amended schedules I and J. What is the status of this Motion? APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Debtor filed a motion to retain her 2018 tax refunds for $3,986 for birthday expenses and child care. Debtor used $1,500 to pay a divorce attorney.
Trustee filed a comment stating that more information is needed to determine whether she can recommend retaining the tax refunds or whether the remaining payments can be increased to compensate the estate for the use of the refunds. Debtor’s circumstances appear to have significantly changed. Trustee requests Debtor to update Schedules I and J to show current income and expenses and provide evidence of current income. Trustee is not clear whether Debtor is receiving support or is continuing to pay household expenses.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Donna Mapile Represented By Nathan A Berneman
11:00 AM
CONT...
Trustee(s):
Donna Mapile
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11575
Roderick Bill Norseweather
Chapter 13
#176.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19
Docket 60
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #67. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Roderick Bill Norseweather Represented By James G. Beirne
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11672
Artura Flores and Rosalba Rubalcaba
Chapter 13
#177.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 12/17/19
Docket 33
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Artura Flores Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Rosalba Rubalcaba Represented By Rebecca Tomilowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11718
James Sarkis Giritlian and Joan Schaeffer Giritlian
Chapter 13
#178.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
Docket 56
Matter Notes:
- NONE LISTED -
Tentative Ruling:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
James Sarkis Giritlian Represented By Daniel King
Joint Debtor(s):
Joan Schaeffer Giritlian Represented By Daniel King
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11771
Claudia Victoria Gonzalez
Chapter 13
#179.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 39
*** VACATED *** REASON: Ntc of w/drawal filed 1/15/20 (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Claudia Victoria Gonzalez Represented By Giovanni Orantes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12323
Ruben Lepe, Jr. and Lucy Ivette Salazar
Chapter 13
#179.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 50
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposed explaining that they experienced unexpected and unavoidable circumstances that caused the delinquency and they intend to be current by the time of the hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Ruben Lepe Jr. Represented By Tamar Terzian
Joint Debtor(s):
Lucy Ivette Salazar Represented By Tamar Terzian
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12410
Terry Gale Moorhead
Chapter 13
#180.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19
Docket 33
*** VACATED *** REASON: Ntc. of w/drawal filed 12/4/19 (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Terry Gale Moorhead Represented By Leon D Bayer
Jeffrey N Wishman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12473
Stephen Anthony Cook
Chapter 13
#181.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 56
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes and asserts that he has mailed the past due amount to Trustee and requests time for Trustee to receive payment.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Stephen Anthony Cook Represented By Lauren Rode
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12708
Jose Estrada
Chapter 13
#182.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/24/19, 11/19/19
Docket 47
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
11-19-19 Tentative Below:
Cont’d. fr. 9-24-19
All parties agreed to continue at the last hearing.
Debtor opposes explaining that he already made a $4,000 payment and that he intends to catch up on payments.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 11-19-19 tentative.
Party Information
Debtor(s):
Jose Estrada Represented By
Erika Luna
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12709
Gloria Anita Funes
Chapter 13
#183.00 Application of Attorney for Debtor for Additional Fees and Related Expenses in a Pending Chapter 13 Case Subject to a Rights and Responsibilities Agreement (RARA)
Fee: $2,380.00
Expenses: $0.00.
Docket 59
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor’s attorney requests payment of the following:
Fees for Additional Services: $2,380 Expenses related to Additional Services: $0 Total: $2,380
Debtor’s attorney declares that this fee is a no-look fee for the prosecution of Debtor’s loan modification application. An order granting motion to commence LMM Program entered.
Trustee takes no position but indicates that Debtor has altered the supplemental fee form to include a no look fee for loan modification of $2,380 and that there is no line item for this fee and no detail of services provided.
Service proper. No objections filed. Having reviewed the Application for Additional Fees and Related Expenses, the Court finds that the fees were necessary and reasonable and are approved as requested.
APPLICANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED.
Party Information
11:00 AM
CONT...
Debtor(s):
Gloria Anita Funes
Chapter 13
Gloria Anita Funes Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10130
Bonnie Kay Lopez
Chapter 13
#184.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 30
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes explaining that she faced financial difficulties and unintentionally fell behind on payments. Debtor has filed a motion to modify. Trustee approves of the motion to modify provided the plan remains at 100%. Debtor filed Am. Sch. I & J.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Bonnie Kay Lopez Represented By
Raj T Wadhwani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10255
Jennifer Tagros Bolhayon
Chapter 13
#185.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 45
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes explaining that he will bring receipts of payments to the hearing and/or file a motion to modify.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Jennifer Tagros Bolhayon Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10310
Daniel Macias Castellanos
Chapter 13
#186.00 Motion RE: Objection to Claim Number 5 by Claimant The Bank of New York Mellon as Trustee for CWABS, Inc.
Docket 46
*** VACATED *** REASON: Ntc. of w/drawal filed 12/24/19 (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Daniel Macias Castellanos Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10611
Juan Manuel Arias
Chapter 13
#187.00 Motion For Allowance and Payment of Administrative Expense
Docket 31
Matter Notes:
- NONE LISTED -
Tentative Ruling:
APPEARANCES REQUIRED.
Party Information
Debtor(s):
Juan Manuel Arias Represented By Jaime A Cuevas Jr.
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10708
Elizabeth Fincher
Chapter 13
#188.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19
Docket 19
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
No motion to modify on file.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Debtor opposed explaining that he will file motion to modify, which has not yet been filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Elizabeth Fincher Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10976
Andre Fitzgerald Hayes
Chapter 13
#189.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 61
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor opposes asserting that the payments will be current on or before the hearing and/or a motion to modify will be filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Andre Fitzgerald Hayes Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11047
Edward Leonard Gaines
Chapter 13
#190.00 Application for Compensation for Scott Kosner
Period: 4/30/2019 to 11/19/2019 Fee: $6000
Expenses: $.
Docket 27
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor’s Attorney, Scott Kosner, is applying for $6,000 for Basic Services under the RARA agreement. Mr. Kosner previously has not been awarded fees for Basic Services. This case was dismissed, and the plan was not confirmed prior to dismissal.
Period: 4/30/2019 to 11/19/2019 Fee: $6000
Expenses: $0
Trustee does not recommend approving the application because the RARA indicates
$5,000 in fees and $1,091 paid up front for a balance due of $3,910, and not $6,000. Trustee also asserts that Debtor has not consented to the fees requested.
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Edward Leonard Gaines Represented By Scott Kosner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11301
Robert Benjamin Sautter
Chapter 13
#191.00 Motion for Order Determining Value of Collateral [11 U.S.C. § 506(a), FRBP 3012]: 3859 Sherwood
Place, Sherman Oaks, CA 91423 fr. 7/30/19, 9/24/19; 11/19/19
Docket 18
*** VACATED *** REASON: Parties stipulated to continue to March 10, 2020 at 11:00 a.m.-ts
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Robert Benjamin Sautter Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11717
Lois Ann Harris
Chapter 13
#192.00 Motion to Avoid Junior Lien on Principal Residence [11 U.S.C. § 506(d)] : 6828 Laurel Canyon Blvd.,
Unit 102, North Hollywood, CA 91605 fr. 9/24/19, 11/19/19
Docket 30
*** VACATED *** REASON: Parties stipulated to continue to February 25, 2020 at 11:00 a.m. -ts
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Lois Ann Harris Represented By Matthew D Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12079
Martin Pantoja
Chapter 13
#193.00 Motion for Order Determining Value of Collateral fr. 12/17/19
Docket 38
*** VACATED *** REASON: resolved per stipulation [#70]-ts Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Martin Pantoja Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12112
Deborah Rose Sanders
Chapter 13
#194.00 Motion to Avoid JUNIOR LIEN with PNC Bank, National Association fr. 11/19/19
Docket 29
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 11-19-19
All parties agreed to continue at the last hearing. Creditor has not filed its appraisal. APPEARANCE REQUIRED.
11-19-19 Tentative Below:
Service: Proper. Opposition filed.
Property Address: 10220 De Soto Avenue, Unit 23 Chatsworth, CA 91311
First trust deed: $191,646.37 (Shellpoint Mortgage Servicing) Second trust deed: $72,033.63 (PNC Bank)
Fair market value per appraisal: $180,000
On 11-5-19, Creditor PNC Bank opposed the Motion. Creditor asserts that the value of its claim is $71,526.08 as opposed to $72,033.63. Creditor requests a continuance of at least 45 days to inspect the interior of the Property and obtain an appraisal. Creditor’s Broker Price Opinion values the Property at $345,000.
APPEARANCE WAIVED for 11-19-19 tentative. Hearing continued to January 28, 2020 at 11:00 a.m. Creditor is to file its appraisal three weeks before the hearing. The parties will discuss a briefing schedule for an evidentiary hearing at the next hearing once all appraisals are submitted.
Party Information
11:00 AM
CONT...
Debtor(s):
Deborah Rose Sanders
Chapter 13
Deborah Rose Sanders Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12352
Martin Miguel Centurion and Magalita R Centurion
Chapter 13
#195.00 Objection to Homestead Exemption fr. 12/17/19
Docket 16
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
The court entered an order approving the parties’ stipulation. The Objection to the exemptions taken on the Debtors’ personal injury lawsuits and Debtors’ personal injury claims are DENIED as to C.C.P. §704.140 (a) but CONTINUED as to C.C.P. §
704.140 (b) until such time as either Debtor receives any proceeds from said lawsuits or claims without prejudice to Debtors amending Schedule C to claim exemption(s) on any proceeds from the personal injury lawsuits and/or personal injury claims and providing evidence as to the extent the funds are necessary for the support of the judgment debtor and spouse and dependents when funds from the lawsuit or claim are received.
NO APPEARANCE REQUIRED.
12-17-19 Tentative Below:
Trustee objects to Debtors’ $100,000 claimed exemption from an alleged personal injury lawsuit and drunk driving accident under C.C.P. § 704.140.
C.C.P. § 704.140 provides:
Except as provided in Article 5 (commencing with Section 708.410) of Chapter 6, a cause of action for personal injury is exempt without making a claim.
Except as provided in subdivisions (c) and (d), an award of
11:00 AM
CONT...
Martin Miguel Centurion and Magalita R Centurion
damages or a settlement arising out of personal injury is exempt to the extent necessary for the support of the judgment debtor and the spouse and dependents of the judgment debtor.
Chapter 13
Generally, a debtor's claimed exemption is presumptively valid, and the party objecting to a debtor's exemption has the burden of proving that the exemption is improper. Carter v. Anderson (In re Carter), 182 F.3d 1027, 1029 n. 3 (9th Cir.
1999); Rule 4003(c).
If the objecting party can produce evidence sufficient to rebut the presumption of validity, then the burden of production shifts to the debtor to provide unequivocal evidence to demonstrate that the exemption is proper. Carter, 182 F.3d at 1029 n. 3. The burden of persuasion always remains with the objecting party who must provide sufficient proof to meet the preponderance of the evidence standard. Id. The objecting party must show by a preponderance of the evidence that the exemption should be denied. In re Nicholson, 435 BR 622, 632-633 (B.A.P. 9th Cir. 2010).
Debtors’ $100,000 claimed exemption is presumptively valid. Trustee carries the burden to prove that the exemption is improper. Here, Trustee objects based on the allegation that Debtors provided no evidence that the proceeds are reasonable and necessary for maintenance and support, and that Debtors’ budget indicates
$100,000 is not necessary for Debtors’ maintenance and support.
Debtors argue that Trustee applied the wrong standard, C.C.P. § 704.140(b), which exempts an award of damages or a settlement to the extent necessary for the support of the judgement debtor and the spouse and dependents of the judgment debtor. Debtors explain that the personal injury cause of action has not yet been reduced to a judgment, and as of the petition, are only claims, so C.C.P. § 704.140(b) does not apply and Trustee’s objection is premature and inapplicable.
Debtors assert that, even assuming C.C.P. § 704.140(b) applies, $100,000 is necessary for their maintenance and support because they are still undergoing treatment and the extent of their injuries is unknown.
Debtors explain that C.C.P. § 704.140(a) is the proper standard, which exempts a personal injury cause of action that has not yet been reduced to a judgment and paid.
Without more evidence to rebut the presumption of validity of Debtors’ claimed exemption, Trustee’s evidence is insufficient. As such, Trustee’s objection is OVERRULED.
11:00 AM
CONT...
Martin Miguel Centurion and Magalita R Centurion
Chapter 13
Service proper. Opposition filed.
APPEARANCE REQUIRED for 12-17-19 tentative.
Party Information
Debtor(s):
Martin Miguel Centurion Represented By Kevin T Simon
Joint Debtor(s):
Magalita R Centurion Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12583
Linda M. Bergman
Chapter 13
#196.00 Chapter 13 Trustee's Objection to Homestead Exemption
Docket 16
Matter Notes:
- NONE LISTED -
Tentative Ruling:
The court takes judicial notice of the Trustee’s files and records in support of this objection pursuant to Rule 201 of the Federal Rules of Evidence.
Debtor owns real property located at 21355 San Jose Street, Chatsworth, CA 91311 ("Property") and seeks to exempt 100% of the Property’s equity under C.C. P. § 704.730. The Property is valued at $675,000. After cost of sale and liens are deducted, the Property has $379,716 in equity.
C.C.P. § 704.730 provides for an exemption up to $175,000 of equity in a homestead. Debtor’s exemption is in excess of the allowed amount.
Service proper. Debtor has not filed a response to this objection. Objection SUSTAINED.
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Linda M. Bergman Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12699
Ramiro Zendejas Rico
Chapter 13
#197.00 Chapter 13 Trustee's Notice of Objection to Homestead Exemption
Docket 14
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #27. lf Matter Notes:
- NONE LISTED -
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Ramiro Zendejas Rico Represented By Kian Mottahedeh
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12802
Susana Padre
Chapter 13
#198.00 Motion To Dismiss Case Pursuant To 11 U.S.C.
§ 1307(c) With A Two-Year Bar From Refiling Pursuant To 11 U.S.C. §§ 349(a) And 105(a)
Docket 11
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Debtor filed voluntary petition on November 6, 2019. On November 22, 2019, the
U.S. Trustee moved for dismissal for bad faith under 11 U.S.C. § 1307(c) with a 2- year bar under 11 U.S.C. §§ 349(a) and 105(a)("Motion"). Debtor has not opposed this Motion. On November 26, 2019, the court entered an order dismissing this bankruptcy case with a 180-day bar after no appearance by Debtor [Dkt. No. 18].
Under § 1307(c), the U.S. Trustee may seek to dismiss a case under chapter 13 for cause under any of the enumerated circumstances. 11 U.S.C. § 1307(c). One of the enumerated causes for dismissal is "unreasonable delay by the debtor that is prejudicial to creditors." 11 U.S.C. § 1307(c)(1).
In addition, "[a]lthough not specifically listed, bad faith is ‘cause’ for dismissal under
§ 1307(c). Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1224 (9th Cir. 1999). In determining whether a debtor filed a plan or petition in bad faith, the court should consider the totality of the circumstances, including whether the debtor misrepresented facts in the petition or plan, unfairly manipulated the Bankruptcy Code, or otherwise filed in an inequitable manner. In re Eisen, 14 F.3d 469, 470 (9th Cir. 1994). Relevant factors include whether the debtor has a history of filings and dismissals and whether the debtor intended to use the bankruptcy only to defeat state court litigation. In re Nash, 765 F.2d 1410, 1415 (9th Cir. 1994); In re Chinichian, 784 F.2d 1440, 1445-46 (9th Cir. 1986). No single factor is dispositive, and the entirety of the situation must be evaluated. In re Powers, 135 B.R. 980,
991-92 (Bankr. C.D. Cal. 1991). A showing of fraudulent intent by the debtor is not required to find bad faith. In re Leavitt, 171 F.3d at 1224. The court determines a bad faith filing based on substantial evidence. Brown v. Billingslea (In re Brown), BAP No. SC-14-1388-JuKlPa, 2015 Bankr. LEXIS 3625, at *29 (October 26, 2015).
11:00 AM
CONT...
Susana Padre
Chapter 13
The U.S. Trustee alleges that this is Debtor’s seventh bankruptcy filing and that previous filings include:
Ch. 13, 18-12605-MT, filed on 10-24-2018 and dismissed with a special restriction period against refiling for 180 days.
Ch. 13, 18-11797-VK, filed on 7-18-18 and dismissed for failure to file schedules, statements, and/or plan.
Ch. 13, 16-10982-MT, filed on 4-4-2016 and dismissed for failure to file schedules, statements, and/or plan.
Ch. 13, 12-20759-VK, filed on 12-20759 and dismissed for failure to make required payments and/or failure to appear at § 341(a) meeting.
Ch. 13, 09-10268-KT, filed on 1-12-09, and dismissed for failure to file schedules, statements, and/or plan.
The U.S. Trustee alleges that Debtor filed numerous bankruptcies to obtain the automatic stay and that the previous cases were dismissed for failure to properly prosecute. The U.S. Trustee argues that Debtor filed this bankruptcy in bad faith because Debtor’s serial filings have caused "unreasonable delay by the debtor that is prejudicial to creditors."
Under 11 U.S.C. § 349(a), a case dismissal does not prejudice the debtor with regard to the filing of a subsequent petition, "[u]nless the court, for cause, orders otherwise." The court may restrict the debtor from future filings if cause exists. In re Leavitt, 171 F.3d at 1223-24.
The U.S. Trustee has presented substantial evidence for the court to find, based on the totality of the circumstances, that this case was filed in bad faith.
Motion GRANTED. NO APPEARANCE REQUIRED. U.S. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Susana Padre Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10018
Betty D Frey
Chapter 13
#198.01 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/20/19, 10/22/19; 12/17/19
Docket 72
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Cont’d. fr. 10-22-19
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
10-22-19 Tentative Below:
Cont’d. fr. 8/20/19, 10/22/19
On 7/24/19, Debtor filed an Opposition stating that she intends to bring plan payments current before 8/20/19.
Is Debtor now current on her plan payments?
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
11:00 AM
CONT...
Debtor(s):
Betty D Frey
Party Information
Chapter 13
Betty D Frey Represented By
Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10545
Mario Rene Tejada
Chapter 13
#198.02 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 7/30/19; 8/20/19, 10/22/19; 12/17/19
Docket 109
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Cont’d. fr. 10-22-19
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue. 10-22-19 Tentative Below:
Cont’d. fr. 8/20/19
Trustee asserts that Debtor has a $3,273 delinquency.
Debtor filed an Opposition on 6/25/19 stating that he will bring his plan current before the hearing or will file a motion to modify.
No motion to modify has been filed. Has Debtor cured the default?
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
11:00 AM
CONT...
Debtor(s):
Mario Rene Tejada
Party Information
Chapter 13
Mario Rene Tejada Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10437
Osnat Bentov
Chapter 13
#198.03 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/22/19; 12/17/19
Docket 112
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Cont’d. fr. 10-22-19
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
10-22-19 Tentative Below:
On 9/18/19, Debtor filed an Opposition stating that the arrears were paid.
Debtor provided evidence in the form of exhibits of an $8,500 payment to the Trustee via a cashier’s check.
Has Trustee received the payment?
APPEARANCE REQUIRED unless Trustee stipulates to continue for 10-22-19 tentative.
Party Information
11:00 AM
CONT...
Debtor(s):
Osnat Bentov
Chapter 13
Osnat Bentov Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10437
Osnat Bentov
Chapter 13
#198.04 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/20
Docket 118
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 12-17-19
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 Tentative Below:
Debtor opposes explaining that he has not submitted his 2018 tax returns because it has not yet been completed and filed. Debtor requests to dismiss this motion or to continue the hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Osnat Bentov Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11938
Emilio I Ochoa
Chapter 13
#198.05 Motionfor Hardship discharge; Refund of
Any Funds Held by the Chapter 13 Trustee to Debtor's Survinving Spouse, Delia Aminta Pireda
Docket 84
Matter Notes:
- NONE LISTED -
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Emilio I Ochoa Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12653
Rolando Drilon Quimson
Chapter 13
#198.06 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 46
Matter Notes:
- NONE LISTED -
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Rolando Drilon Quimson Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12892
John Gaitanis
Chapter 13
#199.00 Motion for Order Determining Value of Collateral [11 U.S.C.§ 506(a), FRBP 3012]
(2011 Chevrolet Tahoe)
Docket 19
*** VACATED *** REASON: resolved per stipulation - ts Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
John Gaitanis Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:30 AM
1:19-10985
Fred Feraydoon Humble
Chapter 13
Adv#: 1:19-01092 Fred Feraydoon Humble, Humble's Family and Mi v. JPMorgan Bank, N.A.
#199.01 HearingRE: [12] Motion to Dismiss Adversary Proceeding (Balser, Justin)
Docket 12
Matter Notes:
- NONE LISTED -
Tentative Ruling:
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Fred Feraydoon Humble Pro Se
Defendant(s):
JPMorgan Bank, N.A. Chase Home Represented By
Justin D Balser
Plaintiff(s):
Fred Feraydoon Humble, Humble's Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:19-11288
Ronald Harris Gladle
Chapter 13
#200.00 Motion to Avoid Lien JUNIOR LIEN with Wells Fargo Bank, N.A.
2nd TD on 22344 Burton Street, Canoga Park, CA 91304
fr. 7/30/19, 9/24/19, 10/22/19
Docket 22
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Cont’d. fr. 10-22-19
No one appeared for the 2nd TD at the last hearing. The court continued the hearing to 1-28-20 for an evidentiary hearing and the parties were instructed to have appraisers appear.
APPEARANCE REQUIRED.
10-22-19 Tentative Below:
Cont’d. fr. 9/24/19
Service: Proper. Opposition filed.
Property Address: 22344 Burton Street, Canoga Park, CA 91304 First trust deed: $557,296.69
Second trust deed (to be avoided): $120,347.67 Debtor’s Fair market value per appraisal: $520,000
On 9/18/19, Wells Fargo filed an Opposition asserting that its appraisal of the Property indicates a $590,000 value as of May 22, 2019.
Legal Standard
To ascertain the amount of Respondent’s claim for purposes of §506(a) and to
1:00 PM
CONT...
Ronald Harris Gladle
Chapter 13
determine whether the lien is wholly unsecured, the court must determine the present fair market value of the collateral securing the claim. 11 U.S.C. §506(a). The Ninth Circuit has determined that Debtors are able to combine section 506(a) with section 1322 (b)(2) to effectively "avoid" or "strip-off" a junior lien on a Debtor’s principal residence if the lien is completely or wholly unsecured. See Lam v.
Investors Thrift (In re Lam), 211 B.R. 36 (B.A.P. 9th Cir. 1997); Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220 (9th Cir. Cal. 2002).
APPEARANCE REQUIRED so that the parties can inform the court whether an evidentiary hearing is required or whether the parties submit on the papers for 10-22-19 tentative.
Party Information
Debtor(s):
Ronald Harris Gladle Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:19-11288
Ronald Harris Gladle
Chapter 13
#201.00 Motion to Avoid Lien JUNIOR LIEN with Wells Fargo Bank, N.A.
3rd TD on 22344 Burton Street, Canoga Park, CA 91304
fr. 7/30/19, 9/24/19, 10/22/19
Docket 23
*** VACATED *** REASON: Cont'd to 2/25/20 @11:00 a.m. per Order #60. lf
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Ronald Harris Gladle Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10077
Betina McKinley
Chapter 13
#0.01 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling
Docket 9
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Betina McKinley Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10087
Miriam Munoz
Chapter 13
#0.02 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling
Docket 7
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Miriam Munoz Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10100
Esther Solorzano De Bonvehi
Chapter 13
#0.03 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling
Docket 5
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Esther Solorzano De Bonvehi Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10103
Robert A Cox
Chapter 13
#0.04 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling
Docket 6
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Robert A Cox Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:14-14576
Anita Marie Dominguez
Chapter 13
#1.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON fr. 9/18/19, 10/2/19, 12/11/19
Docket 65
Tentative Ruling:
On January 25, 2020, Debtor filed a supplemental opposition, attaching evidence of payments made on this claim on 10/10/19; 12/2/19; 12/11/19; 1/16/20. Nothing else has been filed since October related to this Motion. What is the status of this motion?
APPEARANCE REQUIRED.
10/2/2019 Tentative
This hearing was continued from 9-18-19 because late Opposition filed indicating two payments were made. What is the status of this Motion?
Contd. fr. 9/18/19
Petition Date: 10/7/2014
Chapter 13 plan confirmed: 4/28/15
Service: Proper; co-borrower served. Late opposition filed. Property: 11009 Fenway Street, Los Angeles, CA 91352-1213 Property Value: $521,000 (as of October 2013)
Amount Owed: $ 595,745.96 (as of 7/29/19) Equity Cushion: 0.0%
Equity: $0.00.
Post-confirmation Delinquency: $5,703.56 (approx. 2 payments of $2,851.78)
Movant alleges that the last payment tendered for this claim was on or about 5/23/19.
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
10:00 AM
CONT...
Anita Marie Dominguez
Chapter 13
loss mitigation activities); 6 (Co-debtor stay is waived); and 7 (waiver of 4001(a)(3) stay); 8 (if relief from stay granted, adequate protection shall be ordered).
Party Information
Debtor(s):
Anita Marie Dominguez Represented By
Raffy M Boulgourjian
Movant(s):
THE BANK OF NEW YORK Represented By Kelsey X Luu Josephine E Salmon Arnold L Graff
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-11335
Lyn P De Vera
Chapter 13
#2.00 Motion for relief from stay HSBC BANK USA
Docket 50
Tentative Ruling:
Petition Date: 4/16/15
Ch. 13 plan confirmed: 9/10/2015
Service: Not proper; second mortgagor CitiMortgage not served. Opposition filed. Property: 19350 Sherman Way #118, Reseda, CA 91335
Property Value: $191,501 (per debtor’s schedules) Amount Owed: $212,119.55
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $4,012.61 (3 payments of $1,106.44; post-petition advances of $1,138.34; less suspense balance of $445.05)
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)(3) stay). Movant alleges that the last payment of $1,110.50 was received was on or about November 5, 2019.
Debtor opposes the Motion, requesting to cure any deficiency under an APO. Is Movant amenable to Debtor's request?
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Lyn P De Vera Represented By Lauren Rode
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-10317
James Patrick Sweet
Chapter 13
#3.00 Motion for relief from stay LOANCARE, LLC
fr. 12/18/19
Docket 50
*** VACATED *** REASON: Resolved per APO (doc. 55) - hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
James Patrick Sweet Represented By Stephen S Smyth William J Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-10545
Mario Rene Tejada
Chapter 13
#4.00 Motion for relief from stay US BANK NA
Docket 116
Tentative Ruling:
Petition Date: 03/03/2017
Ch.: 13; Plan confirmed on 03/07/2018
Service: Proper; original borrower & grantee served. Opposition filed. Property: 11622 Glamis Street, Sylmar, CA 91342
Property Value: $430,000 (per debtor’s amended schedules) Amount Owed: $ 547,298.16
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $18,205.52 (3 payments of $2,225.64 and 5 payments of
$2,305.72.
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 (co-debtor stay is terminated), and 7 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment of $2,225.64 was received was on or about 06/03/2019.
Debtor opposes the Motion, requesting to cure any deficiency under an APO. Debtor has recently experienced a death in his family. Is Movant amenable to Debtor's request?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Mario Rene Tejada Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
CONT...
Mario Rene Tejada
Chapter 13
10:00 AM
1:17-10615
Jennifer Yvonne Johnson
Chapter 13
#5.00 Motion for relief from stay TOYOTA MOTOR CREDIT CORP.
Docket 27
Tentative Ruling:
Petition Date: 3/10/2017
Chapter: 13, plan confirmed on 8/3/2017 Service: Proper. No opposition filed.
Property: 2016 LEXUS IS200 Property Value: unk. (LEASE)
Amount Owed: $22, 610.72 (amount due to purchase vehicle at end of lease) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: $22, 610.72 (amount due to purchase vehicle at end of lease)
Movant alleges that the last payment was received on or about 10/25/2019. Debtor indicates on Sch. A/B that she leased this vehicle for her daughter, who is the sole driver and allegedly makes all the payments.
Disposition: GRANTED under 11 U.S.C. 362(d)(1). GRANTED as to paragraph 2 (proceed under applicable non-bankruptcy law); 5 (co-debtor stay is terminated) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Jennifer Yvonne Johnson Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-10814
Sabrina Goldfield
Chapter 13
#6.00 Motion for relief from stay HYUNDAI LEASE TITLING TRUST
Docket 37
Tentative Ruling:
Petition Date: 03/30/2017
Chapter: 13. Plan confirmed on 07/28/2017 Service: Proper. No opposition filed.
Property: 2017 Hyundai Genesis Property Value: unk. (lease)
Amount Owed: $28,459.32 (amount due to purchase vehicle at end of lease) Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: $28,459.32 (amount due to purchase vehicle at end of lease)
Movant alleges that the last payment was received on or about 7/10/2019. Disposition GRANTED under 11 U.S.C. 362(d)(1). GRANTED as to paragraph 2
(proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE
Debtor(s):
Party Information
Sabrina Goldfield Represented By Lenelle C Castille
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#7.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION
fr. 12/11/19
Docket 74
Tentative Ruling:
This hearing was continued from 12/11/19 because Debtor asserted that Creditor was not applying payments properly. Nothing related to this motion has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
12/11/19 TENATIVE BELOW
Petition Date: 6/19/17
Chapter 13 plan confirmed: 11/14/17
Service: Proper; co-debtor served. Opposition filed. Property: 18795 Kenya St. Northridge, CA 91326
Property Value: $900,000 (per Debtor's declaration ISO Opposition) Amount Owed: $631,126
Equity: $268,874
Post-Petition Delinquency: $8,228.36 (3 payments of $2,836.14; less suspense balance of $280.06)
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 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that Movant has been misapplying payments, making it seem as if there is a delinquency when there is not. Debtor contends that she has made more payments than have been accounted for in the Motion. Have the parties had an opportunity to discuss the accounting?
Party Information
10:00 AM
CONT...
Debtor(s):
Linda Akerele Alele
Chapter 13
Linda Akerele Alele Pro Se
Movant(s):
U.S. Bank National Association, as Represented By
Josephine E Salmon Arnold L Graff Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12246
Dana Alexander Lieberman and Elaine Michelle Lieberman
Chapter 13
#8.00 Motion for relief from stay BANK OF AMERICA N.A.
Docket 95
Tentative Ruling:
Petition Date: 8/23/2017
Ch.13. Plan Confirmed on 05/18/2018.
Service: Proper. Opposition filed and reply to opposition filed. Property: 5444 Ben Avenue, Los Angeles, CA 91607 Property Value: $1,119,424 (per debtor’s declaration)
Amount Owed: $498,040.86 Equity Cushion: 55% Equity: $611,900.14
Post-Petition Delinquency: $10,884.12 (3 payments of $3,840.14; attorneys' fees and costs of $1,231; less suspense balance of $1,867.30).
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 of $3,840.14 was received was on or about 12/11/2019.
Debtor opposes the motion and argues that all post-petition mortgage and plan payments have been paid through January 2020. Debtor further argues that movant has failed to credit debtor with payments made and that debtor will remain current on future payments.
APPEARANCE REQUIRED
Debtor(s):
Party Information
Dana Alexander Lieberman Represented By
Richard Mark Garber
Joint Debtor(s):
Elaine Michelle Lieberman Represented By
10:00 AM
CONT...
Trustee(s):
Dana Alexander Lieberman and Elaine Michelle Lieberman
Richard Mark Garber
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-13035
Rolando M Rodriguez
Chapter 13
#9.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOC, et., al. fr. 12/11/19
Docket 31
Tentative Ruling:
This hearing was continued from 12/11/19 because the parties were discussing curing in an APO. Nothing related to this motion has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
12/11/19 TENATIVE BELOW
Petition Date: 12/19/18
Chapter 13 plan confirmed: 5/15/19 Service: Proper. Opposition filed.
Property: 19524 Turtle Ridge Lane, Porter Ranch, CA 91326 Property Value: $579,000 (per debtor’s schedules)
Amount Owed: $703,656 Equity: $0.00.
Post-Petition Delinquency: $8,276.60 (1 payment of $2,745.32; 2 payments of
$2,749.17)
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, requesting to enter into an APO to cure any remaining deficiency after crediting the two payments of which he provided proof, totaling
$5,498.34. Is Movant amenable to Debtor's request?
Party Information
Debtor(s):
Rolando M Rodriguez Represented By Ali R Nader
10:00 AM
CONT...
Trustee(s):
Rolando M Rodriguez
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10805
Debbie Ann Ko
Chapter 13
#10.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST CO
fr. 12/4/19
Docket 39
*** VACATED *** REASON: Resolved per APO (doc. 44) - hm Tentative Ruling:
Party Information
Debtor(s):
Debbie Ann Ko Represented By Kevin T Simon
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10940
Laurie Francene Kinzer
Chapter 13
#11.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOCIATION.
Docket 41
Tentative Ruling:
Petition Date: 04/17/2019
Ch. 13; confirmed on 07/22/2019.
Service: Proper; co-debtor served. No opposition filed. Property: 5800 Kanan Road Unit #272 Agoura Hills, CA 91301 Property Value: $350,000 (per debtor’s schedules)
Amount Owed: $203,317.31 Equity Cushion: 58.0% Equity: $146,682.69.
Post-Petition Delinquency: $2,708.89 (3 payments of $1,316.48; less suspense balance of $1,240.55)
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested as to paragraph 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 of $500 was received was on or about 10/16/2019.
There appears to be sufficient equity to protect this claim. Have the parties had an opportunity to discuss whether this delinquency can be resolved in an APO?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Laurie Francene Kinzer Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10996
Aida Asturias
Chapter 13
#12.00 Motion for relief from stay
NEWREZ DBA SHELLPOINT MORTGAGE
fr. 12/4/19
Docket 36
Tentative Ruling:
This hearing was continued from 12/4/19 because the parties were discussing curing in an APO. Nothing related to this motion has been filed since the last hearing.
What is the status of this Motion? APPEARANCE REQUIRED
12-4-19 Tentative Below:
Petition Date: 4-24-2019
Chapter 13 Plan Confirmed: 9-18-2019 Service: Proper. Opposition filed.
Property: 13070 Foothill Blvd., Sylmar, CA 91342 Property Value: $559,000 (per debtor’s schedules) Amount Owed: $399,843.87
Equity Cushion: 20.0% Equity: $159,156.13
Post-Petition Delinquency: $9,222.23 (6 late payments of $1,844.03 each)
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); 7 (waiver of the 4001(a)(3) stay); and 13 (if stay not granted, order APO).
Debtor opposed explaining that all postpetition arrears will be cured by the hearing date.
Party Information
Debtor(s):
Aida Asturias Represented By Anerio V Altman
10:00 AM
CONT...
Movant(s):
Aida Asturias
Chapter 13
The Bank of New York Mellon FKA Represented By
Stephen T Hicklin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11118
Miguel Hernandez Garcia
Chapter 13
#13.00 Motion for relief from stay WELL FARGO BANK, N.A. fr. 11/13/19, 12/18/19
Docket 29
*** VACATED *** REASON: Withdrawal was filed - doc. #49. lf Tentative Ruling:
Party Information
Debtor(s):
Miguel Hernandez Garcia Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11177
Douglas Erasmo Castaneda and Claudia Beatriz Castaneda
Chapter 13
#14.00 Motion for relief from stay
LOGIX FEDERAL CREDIT UNION
Docket 30
*** VACATED *** REASON: Movant filed a withdrawal - Doc. #32.
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Douglas Erasmo Castaneda Represented By
Raj T Wadhwani
Joint Debtor(s):
Claudia Beatriz Castaneda Represented By
Raj T Wadhwani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11646
Michael T Stoller
Chapter 11
#15.00 Motion for relief from stay
ADJUSTABLE RATE MORTGAGE TRUST
fr. 12/4/19, 1/8/20
Docket 62
Tentative Ruling:
APPERANCE REQUIRED.
Debtor(s):
Party Information
Michael T Stoller Represented By Matthew Abbasi
Movant(s):
Adjustable Rate Mortgage Trust Represented By Greg P Campbell
10:00 AM
1:19-11874
Lisa M. Bueno
Chapter 13
#16.00 Motion for relief from stay
THE BANK OF NEW YOURK MELLON
Docket 25
Tentative Ruling:
Petition Date: 07/25/19 Ch.13; confirmed on 10/18/19
Service: Proper. Opposition filed.
Property: 16638 Wyandotte Street, Los Angeles, CA 91406 Property Value: $ 590,000 (per debtor’s schedules) Amount Owed: $ $533,705.1
Equity Cushion: 9.0% Equity: $56,294.09.
Post-Petition Delinquency: $6,526.25 (2 payments of $3,08.45; post-petition advances of $900; attorneys' fees of $1,231; less suspense balance of $1,775.65)
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); 5 (co-debtor stay is terminated); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment of $2,758.00 was received was on or about 12/16/19.
Debtor opposes the motion and argues that all post-petition payments have been made through December 2019. Debtor is also in the process of receiving a loan modification.
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Lisa M. Bueno Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
CONT...
Lisa M. Bueno
Chapter 13
10:00 AM
1:19-12524
Henry Theodore Baumert, Jr.
Chapter 13
#17.00 Motion for relief from the Automatice Stay HSBC BANK USA NATIONAL ASSOCIATION
Docket 32
Tentative Ruling:
Petition Date: 10/04/2019 Ch: 13
Service: Proper. No opposition filed.
Movant: HSBC Bank USA National Association, As Trustee on behalf of Deutsche Mortgage Loan Trust.
Property Address: 4702 Kraft Ave, North Hollywood, CA 91602-1116 Type of Property: Residential
Occupancy: Unlawful Detainer Foreclosure Sale: Held on 10/04/2019. UD case filed: N/A
UD Judgment: N/A
Movant alleges that the sale of the property at issue was sold prior to the filing of debtor's bankruptcy petition. Sale of property on 10/04/2019 at 10:46AM. Bankruptcy petition filed on 10/04/2019 at 3:27PM. Sale Recorded on 10/11/2019.
Motion GRANTED under 11 U.S.C. 362(d)(1) and (d)(2), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law), 3 (confirmation that there is no stay in effect), and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Henry Theodore Baumert Jr. Represented By Ali R Nader
10:00 AM
CONT...
Trustee(s):
Henry Theodore Baumert, Jr.
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12901
Sergio Ascencio Rodriguez and Maria Alejandra Ascencio
Chapter 7
#18.00 Motion for relief from stay
LOGIX FEDERAL CREDIT UNION
Docket 10
*** VACATED *** REASON: Movant filed a withdrawal - Doc. #17. lf Tentative Ruling:
Party Information
Debtor(s):
Sergio Ascencio Rodriguez Represented By Roland H Kedikian
Joint Debtor(s):
Maria Alejandra Ascencio Represented By Roland H Kedikian
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:19-12903
Enoch Gilbert Carabajal
Chapter 13
#19.00 Motion for relief from stay
FORD MOTOR CREDIT COMPANY
Docket 17
Tentative Ruling:
Petition Date: 11/19/2019 Chapter: 13
Service: Proper. Response filed. Property: 2017 Ford F450 Property Value: unk. (LEASE) Amount Owed: $38,438.27 Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: $764.57 (1 payment post-petition) and $764.57 (1 payment prepetition).
Lease matured on 12/2/2019. Debtor does not oppose the granting of the Motion; Ch. 13 plan rejects this lease.
Motion GRANTED under 11 U.S.C. 362(d)(1) and (d)(2), with specific 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.
Party Information
Debtor(s):
Enoch Gilbert Carabajal Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-13144
Brian Jay Schapiro
Chapter 13
#20.00 Motion for relief from stay
T AND S PROPERTIES LLC
Docket 9
Tentative Ruling:
Petition Date: 12/18/2019 Ch: 13
Service: Proper. Response filed. Movant: T and S Properties LLC
Property Address: 14804 Calvert Street, Van Nuys, CA 91411 Type of Property: Nonresidential
Occupancy: Unlawful Detainer Foreclosure Sale:
UD case filed: 07/22/2019 UD Judgment: N/A
Movant alleges that multiple bankruptcy cases affecting the property have been filed and dismissed as recent as 11/20/2019. Debtor does not oppose the granting of the motion.
Motion GRANTED under 11 U.S.C. 362(d)(1) and (d)(2), with specific relief 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, upon a recording of the order in compliance with applicable non-bankruptcy law), 9 ( binding and effective relief against any debtor who claims interest in the property for 180 days), and 10 (binding and effective in any other bankruptcy case for 2 years)
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Brian Jay Schapiro Represented By Kevin T Simon
10:00 AM
CONT...
Trustee(s):
Brian Jay Schapiro
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10077
Betina McKinley
Chapter 13
#20.01 Motion for relief from stay PACIFIC WEST MANAGEMENT
Docket 4
Tentative Ruling:
Petition Date: 1/13/2020 Ch: 13
Service: Proper on Judge's shortened time procedures. No opposition filed. Movant: Pacific West Management
Property Address: 13627 Sherman Way Suite # 305, Van Nuys, CA 91405 Type of Property: Residential
Occupancy: Unlawful Detainer Foreclosure Sale:
UD case filed: 11/22/2019 UD Judgment: N/A
Movant alleges that debtor has failed to pay monthly rent of $1,595 beginning on 11/01/2019.
Moreover, movant alleges bad faith since the bankruptcy petition was filed one day prior to the state court UD trial date.
Motion GRANTED under 11 U.S.C. 362(d)(1), with specific relief 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, upon a recording of the order in compliance with applicable non-bankruptcy law), 9 (order is effective against any debtor who claims interest in the property for 180 days).
APPEARANCE REQUIRED DUE TO SHORTENED TIME. RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Betina McKinley Pro Se
10:00 AM
CONT...
Trustee(s):
Betina McKinley
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10022
Edward Leonard Gaines
Chapter 13
#21.00 Motion in Individual Case for Order Imposing
a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 10
Tentative Ruling:
On 1/7/2020, Debtor filed this chapter 13 case. Debtor had one previous bankruptcy case that was dismissed within the previous year. The First Filing, 19-11047-MT, was a chapter 13 that was filed on 4/30/19 and dismissed on 11/19/19 for failure to make required payments.
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 he lost his job during the pendency of the First Filing and could not make the payments.
Debtor claims that there has been a substantial change in his financial affairs. Debtor states that since the First Filing was dismissed, he is now employed and seeks to keep the home in which he lives with his father. Debtor claims that the property is necessary for a successful reorganization because this is his primary residence, and there is equity to protect the claim.
Wells Fargo Bank ("WFB") opposes the Motion, arguing that Debtor has not rebutted the presumption of bad faith by clear and convincing evidence. WFB argues that Debtor's Chapter 13 case is not feasible. While Debtor has found new employment, WFB points out that his gross income has decreased by $2,318.55, and that his net income of $1,642.30 is insufficient to make a plan payment of $1,750.00.
Additionally, WFB believes Debtor’s stated net income is inflated because he includes no payroll deductions in his Schedule I. WFB notes that Debtor claims in his Schedule J a reduction of $400.00 in his monthly expenses, with his utilities and transportation expenses dropping by $150 each, but he provides no explanation for why his expenses have changed.
Debtor replies that finding new employment in the instant case after losing employment in his prior case is a substantial change in circumstances and shows good faith in the present case. Debtor has agreed to “tighten his belt” and decrease his discretionary expenses in order to make his chapter 13 plan feasible. Debtor’s
10:00 AM
CONT...
Edward Leonard Gaines
Chapter 13
father also lives with him and can contribute a portion of his (father’s) social security income if necessary.
Service proper on Judge's shortened time procedures. APPEARANCE REQUIRED DUE TO SHORTENED TIME.
Party Information
Debtor(s):
Edward Leonard Gaines Represented By Scott Kosner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10037
Andrew Blas Lorenzo
Chapter 13
#22.00 Motion in Individual Case for Order Imposing
a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 7
Tentative Ruling:
On 1/7/2020, Debtor filed this chapter 13 case. Debtor had one previous bankruptcy case that was dismissed within the previous year. The First Filing, 16-12513-MT, was a chapter 13 that was filed on 8/29/16 and dismissed on 2/11/19 for failure to make required plan payments.
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 plan payments because the self- employed Debtor experienced sporadic income from a lull in his business and his wife became unemployed as well. Debtor claims that there has been a substantial change in his financial affairs, and he can now afford all plan and mortgage payments. Debtor states that since the First Filing was dismissed, he is now steadily employed at Ralph's and his wife has also found employment/ 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.
Party Information
Debtor(s):
Andrew Blas Lorenzo Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:12-19998
Process America, Inc.
Chapter 11
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
#23.00 Status conference re complaint for: damages and equitable relief
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, 6/26/19
9/21/18, 10/31/18; 12/12/18, 2/27/19; 3/13/19; 12/11/19
Docket 1
*** VACATED *** REASON: Continued to 2.26.20 at 10:00 a.m. - ts Tentative Ruling:
Party Information
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
CONT...
Process America, Inc.
Chapter 11
Like Zebra, LLC Pro Se
Stripe Entertainment Group, Inc. Pro Se
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
U.S. Trustee(s):
United States Trustee (SV) Pro Se
10:00 AM
1:18-10309
Henry Andreas Ingvarsson
Chapter 11
Adv#: 1:19-01102 Barton et al v. Ingvarsson et al
#24.00 Status Conferece re: Complaint for nondischargeability
of debt and objection to discharge pursuant to section 523(a) fr. 10/23/2019
Docket 1
*** VACATED *** REASON: Continued by Stip to 2/26/20 at 10:00 a.m. - jc
Tentative Ruling:
Party Information
Debtor(s):
Henry Andreas Ingvarsson Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Defendant(s):
Keri Ingvarsson Pro Se
Henry Andreas Ingvarsson Pro Se
TKC Media Group, LLC Pro Se
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Plaintiff(s):
Daniel and Helena Barton Represented By Sevan Gorginian
No Such Agency Represented By Sevan Gorginian
10:00 AM
1:11-16307
Diana Lopez
Chapter 7
#25.00 Trustee's Notice of Motion and Motion for Order Disallowing Claim No. 17 and 40-1/ Objection Thereto
Docket 323
Tentative Ruling:
No opposition. Trustee provides adequate basis to overcome any presumption. Objection Sustained.
Service proper.
NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Diana Lopez Represented By
Kathleen P March
Trustee(s):
David Seror (TR) Represented By Claire E Shin Steven T Gubner David Seror (TR) Corey R Weber Richard Burstein
Jessica L Bagdanov
10:00 AM
1:11-22664
L.D.T. Investments Inc.
Chapter 7
#26.00 Trustee's Notice of Motion and Motion for Order Disallowing Claim No. 17 and 40-1/Objection Thereto
Docket 743
Tentative Ruling:
No opposition. Trustee provides adequate basis to overcome any presumption. Objection Sustained.
Service proper.
NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Party Information
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 Richard Burstein Elissa Miller Aram Ordubegian Andy Kong
Jessica L Bagdanov Ronald P Abrams Talin Keshishian
10:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
#27.00 Trustee's Motion to dismiss or convert Notice
Of Motion And Motion Under 11 U.S.C. § 1112(b) To Dismiss Or Convert Case
Docket 54
*** VACATED *** REASON: Trustee file a withdrawal - Doc. #64. lf Tentative Ruling:
Party Information
Debtor(s):
Maria Estela San Vicente Represented By Michael R Totaro
10:00 AM
1:20-10168
Boubacar Tidjane Diallo
Chapter 7
#27.01 Debtor's Ex Parte Motion to Enforce the Automatic Stay (SHORTENED TIME)
Docket 6
Tentative Ruling:
Debtor requests to be heard because the Los Angeles Department of Water and Power is allegedly not honoring the automatic stay, which places Debtor at risk of having services disconnected.
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Boubacar Tidjane Diallo Pro Se
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
1:10-16648
Vadim A Lipel
Chapter 7
#28.00 Trustee's Final Report and Application for Compensation fr. 10/23/19
Docket 199
Tentative Ruling:
This matter will be called at 1:00 p.m., to be heard with related matters.
APPEARANCES WAIVED AT 11:00 A.M.
Party Information
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
1:10-19870
Melissa Mosich Miller
Chapter 11
#29.00 Motion by JP Morgan to convert case from chapter 11 to 7 or in the alternative to dismiss
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; 12/12/18, 2/27/19; 5/22/19, 7/31/19, 10/23/19
Docket 210
Tentative Ruling:
APPERANCE REQUIRED
Debtor(s):
Party Information
Melissa Mosich Miller Represented By Jacqueline L James Lindsey L Smith
Movant(s):
JPMorgan Chase Bank, National Represented By
Christopher M McDermott
11:00 AM
1:10-19870
Melissa Mosich Miller
Chapter 11
#30.00 Status and case management conference
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, 2/12/18, 2/27/19; 5/22/19, 7/31/19, 10/23/19
Docket 1
Tentative Ruling:
On January 22, 2020, Debtor filed an updated status report.
Since the last report, Debtor and her team of experts have continued to seek approval of an updated grading plan design for the grading work on the Property, which is part of the terms of Debtor’s settlement agreement with the State. The grading plan has not been formally submitted to the City of Malibu. Debtor believes that there are 6 Malibu department approvals required before Debtor can obtain the Administrative Plan Review approval. Debtor estimates being able to start grading at the end of April/May 2020.
On March 4, 2013, Chase and Debtor entered into an APO stipulation requiring Debtor to pay $10,000 monthly and maintain taxes and hazard insurance. The court approved the stipulation. On May 22, 2018, the court approved Debtor and Chase’s stipulation regarding Debtor’s use of the cash collateral generated by the Property. The stipulation required Debtor to file an accounting with the court if she fails to tender APO payments.
Debtor’s affirmative action against CalTrans (the inverse condemnation case) was dismissed on 11/19/19.
APPEARANCE REQUIRED.
Party Information
11:00 AM
CONT...
Debtor(s):
Melissa Mosich Miller
Chapter 11
Melissa Mosich Miller Represented By Jacqueline L Rodriguez
1:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
Adv#: 1:19-01041 Lipel v. Davis et al
#31.00 Motion For Summary Judgment, In the Alternative,
Motion for Partial Summary Judgment fr. 7/17/19; 8/28/19, 11/13/19; 1/8/20
Docket 13
Tentative Ruling:
On April 19, 2010, Plaintiff retained Defendants to file a bankruptcy petition. On June 2, 2010, Defendants filed a Chapter 7 Bankruptcy petition on Plaintiff’s behalf: In re Vadim Lipel, Case No. 1:10-16648 MT (the "Bankruptcy Case"). After examining Plaintiff at the section 341(a) meetings of creditors in the Case, Trustee administered assets disclosed in Debtor's schedules and disclosed during the initial and continued meetings of creditors. After the Trustee's Final Report and Final Account were filed in the Case on April 8 and September 21, 2016, respectively, the Court closed the case on September 27, 2016.
Plaintiff then filed a claim in arbitration before the Hon. Richard Stone (1) asserting that the advice and conduct of the Defendants representing Plaintiff in Bankruptcy Case that arose before the Petition Date, constituted grounds for a legal action in tort, including without limitation, legal malpractice ("Pre-Petition Malpractice Claim"), and; (2) asserting that the advice and conduct of the Defendants representing Plaintiff in Bankruptcy that arose with the filing of the Petition, after the Petition Date, constituted grounds for a legal action in tort, including without limitation, malpractice (the "Post-Petition Malpractice Claim"). Plaintiff complains of the conduct and advice of Defendants concerning the filing and prosecution of a bankruptcy case without properly evaluating that by prosecuting the case, a certain tax liability would not be discharged. On May 22, 2019, Plaintiff filed a second amended demand for arbitration before Judge Stone.
In August 2018, the United States Trustee ("UST") filed a motion to reopen the Case based on the Trustee's declaration regarding a claim for professional liability (the "Claim") against Debtor's former counsel, Lesly Davis, that existed on the Petition Date. The Claim
1:00 PM
CONT...
Vadim A Lipel
Chapter 7
was stated to be property of the Estate that Debtor did not disclose in his schedules, at the meetings of creditors, or at any time before the Court closed the case.
On August 28, 2018, the Court entered its order reopening the case and directing the UST to appoint a chapter 7 trustee. On August 29, 2018, the UST appointed Trustee as chapter 7 trustee in the case. Trustee negotiated with 22845 Sparrowdell LLC dba PBOG, an asset purchase agreement (the "APA") that Trustee and PBOG’s managing member, Steven
T. Gubner, executed in October 2018. The assets were described in the Sale Motion to include the Estate’s interest in the "claim for professional liability against Debtor’s former counsel including, but not limited to that certain arbitration complaint in the action styled Vadim Lipel v. Lesley Davis and Brutzkus Gubner Rozansky Seror Weber LLP together with any and all other related legal or equitable claims, defenses, actions, demands, rights, damages, remedies, expenses, and compensation whatsoever." The Assets also included any and all other undisclosed, unscheduled and/or unadministered claims, rights and interest of the Estate. Thereafter the Trustee filed a Motion for Order approving sale of the Assets, subject to overbid, on October 17, 2018 (the "Sale Motion"). On November 13, 2018, the Court entered an "Order Approving Trustee’s Sale of Assets" (the "Sale Order").
On April 16, 2019, Debtor filed a Complaint for declaratory relief seeking orders from the Bankruptcy Court related to the Sale Order. On May 22, 2019, Plaintiff filed an Amended Complaint (the "FAC"). On July 18, 2019, the Court held a hearing on a Motion to Dismiss the FAC under Fed. R. 12(b)(6). For the reasons stated it the adopted tentative ruling, ad. ECF doc. 33, the Court denied the Motion to Dismiss.
Debtor contends in the FAC that this action was filed because Judge Stone ordered him to seek guidance as to how the sale order affected the Arbitration Proceedings. FAC, 3:22-23. Plaintiff has moved for Summary Judgment on all claims for relief.
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
1:00 PM
CONT...
Vadim A Lipel
Chapter 7
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). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inference drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (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).
The Sale Order Transferred Only the Estate’s Interest, not Debtor’s interest, in the Pre-Petition Malpractice Claims
In general, causes of action existing at the time the bankruptcy petition is filed are considered property of the estate. Sierra Switchboard Co. v. Westinghouse Elec. Corp. (In re Sierra Switchboard), 789 F.2d 705, 707 (9th Cir.1986) (citing Whiting Pools, 462 U.S. 198, 205 & n. 9 (1983)). This includes pre-petition tort claims. Id. (holding that a claim for emotional distress is an asset of the bankruptcy estate); Suter v. Goedert, 396 B.R. at 542 (internal citations omitted). Jackson v. Rogers & Wells, 210 Cal.App.3d 336, 341-42 (Cal. Ct. App. 1989). The California prohibition against sale or assignment of legal malpractice claims is applicable even in a bankruptcy context. See Baum v. Duckor, Spradling & Metzger, 72 Cal.App.4th 54, 68-72; 84 (Cal. Ct. App. 1999)(holding that to allow a bankruptcy trustee to sell a debtor’s legal malpractice claim to creditors, especially where a trustee chooses not to prosecute such a claim, is against public policy).
Plaintiff relies on the California law prohibiting sale or assignment of malpractice claims to support his argument that he is entitled to summary judgment as to declaratory relief that the Sale Order did not transfer Debtor’s interest in the Pre-Petition Malpractice
1:00 PM
CONT...
Claim.
Vadim A Lipel
Chapter 7
While the Pre-Petition Malpractice Claims are property of the Estate, what interest was sold to Defendant BG depends on the scope of the Sale Order. The Sale Motion defines the Assets to be sold as:
a claim for professional liability against Debtor's former counsel (the "Claim") including, but not limited to that certain arbitration complaint in the action styled Vadim Lipel v. Lesley Davis and Brutzkus Gubner Rozansky Seror Weber LLP together with any and all other related legal or equitable claims, defenses, actions, demands, rights, damages, remedies, expenses, and compensation whatsoever ("Complaint"); and
any and all other undisclosed, unscheduled and/or unadministered claims, rights and interests of the Estate.
Sale Motion, 2:25-3:7.
The Sale Order explains that Trustee is selling the Assets that "are comprised of the Estate’s rights, title and interests, if any…" and "any and all other undisclosed, unscheduled and/or unadministered." Sale Order, 2:14-21 (emphasis added). The Sale Order is clear that the Estate’s interest in the Assets was being sold on "an ‘as-is, where-is’ basis, with no representations or warranties regarding the Assets, and with no contingencies, to Buyer…" Id. at 4:15-16. At the hearing on the Sale Motion, Trustee appeared and had the following exchange with the Court:
TRUSTEE: I would like to disclose to the Court that I was contacted by Katherine Lipel, who is the ex-spouse of Mr. Lipel, the debtor. She is representing him in the arbitration proceeding and, um, by Ted Boxer who had… I don’t know if he’s engaged in the case, but he was being consulted with as a bankruptcy attorney. I did meet with them last week. They indicated that they may have an opposition. I told them both in person and in writing by email
1:00 PM
CONT...
Vadim A Lipel
that I had no problem with them filing an opposition until last Friday. I’ve been checking the docket on a daily basis and I see no opposition having been filed. And I don’t see either of those attorneys here today and I’ve not been contacted by them since the day of our meeting last week. But I did want to disclose that on the record.
COURT: Ok…
TRUSTEE: But I did want to disclose that on the record just in case an issue arose regarding that, so the transcript would show that that was fully disclosed to the Court but that nothing – no opposition’s been made in writing and the parties are not here opposing the sale.
COURT: Ok… I’ve just checked my Courtcall list and I don’t have them down as appearing. Is there anyone on the telephone on the Vadim Lipel case?
[SILENCE]
COURT: Hearing no answer, I assume they didn’t decide to last-minute appear telephonically. Let me just check the docket… um… no. I’ve just checked the most recent docket right now and there is still no opposition.
TRUSTEE: Thank you, Your Honor. And it’s an "as-is, where-is" sale, with no representations or warranties. The Estate is selling whatever interest it has in the litigation rights as well as any undisclosed remnant assets of the Estate.
Chapter 7
Hr’g on Sale Motion, November 7, 2018 (emphasis added).
The conditions on sale explained in the Sale Motion and codified in the Sale Order provided that Trustee was selling only whatever interest the Estate had in the described
1:00 PM
CONT...
Vadim A Lipel
Chapter 7
Assets. The extent of the Estate’s interest in the Pre- or Post-Petition Malpractice Claims was not litigated in connection with the Sale Motion to prevent the Estate from having to cover the costs of litigating that very issue. See Sale Motion, 8:4-18.
Defendants argue that because he did not oppose the Sale Motion, Plaintiff is barred from relief under Rule 60(b) for failure to timely assert his claims. Opposition, p. 3-9. Defendant’s argument is predicated on the incorrect assumption that Plaintiff is attempting to revisit the circumstances surrounding the entry of and/or the merits of the Sale Motion. Instead, Plaintiff is litigating the very issue left purposely unresolved by Trustee: what is exactly included in the Sale Order. Plaintiff correctly argues that any Pre-Petition Malpractice Claim in which Debtor had an interest could not have been included in the Sale Order.
In a footnote in its Opposition, Defendants argue that "the underlying transaction could also be seen as a settlement of the underlying claim" and that the record does not support a finding that the sale was an improper assignment. Opposition, p. 10, fn. 1. In Suter v. Goedert, 396 B.R. 535, the debtors argued on appeal that the bankruptcy court abused its discretion when it approved what the debtors characterized as a sale between the chapter 7 trustee and the defendants of a legal malpractice action claim held by the debtors. Suter v. Goedert, 396 B.R. 535 (D. Nev. 2008). The District Court disagreed with the debtors’ characterization of the transaction as a sale, explaining:
The bankruptcy court looked at the situation as one where the trustee had two offers to compromise, one from the Suters and one from the Goedert firm, and the trustee accepted the Goedert offer because it was in the best interest of the estate. The bankruptcy court disavowed the notion that it was approving a sale.
Suter v. Goedert, 396 B.R. at 546.
The District Court looked to the motion filed by the trustee, styled as a Motion Authorizing the Release of the Estate's Interest in a Personal Litigation Suit, wherein the Court noted that the trustee analyzed her position under the A & C Properties test. Id. at 548. The Court
1:00 PM
CONT...
Vadim A Lipel
Chapter 7
explained:
The trustee determined that there would be a low probability of success in the litigation in light of the defendants' success at the state district court level. Further, the trustee reasoned that collection of funds, while not difficult, would likely not occur until after a long delay. As such, she thought it would be best to settle the claim. Last, the trustee stated that she thought it would be in the best interest of the creditors if the compromise were approved.
Suter, 396 B.R. at 547. In footnote 8, the Suter court notes that at oral argument, counsel for the defendant law firm conceded that if the transaction were a "sale" of the lawsuit to the firm, such a transaction would be void. Id. at fn. 8.
Here, Trustee’s Sale Motion rested entirely on 11 U.S.C. § 363(b) and analyzed only those issues relevant to a § 363(b) analysis, i.e., authority to approve sale under § 363(b); that the sale is in the best interest of the creditors; that notice of the sale is adequate; request for a finding of "good faith purchaser" under § 363(m), and approval of an overbid procedure. See Sale Motion, ECF doc. 185. The document that memorializes the sale is titled "Asset Purchase Agreement," within which Trustee expressly states, "the Seller agrees to sell, transfer and assign to Buyer, and the Buyer agrees to purchase from Seller…" Decl. of Nancy Zamora ISO Opposition, Ex. A, p. 2, ¶ A. The Asset Purchase Agreement also provides that upon Trustee’s receipt of the Purchase Price of $10,000, Trustee shall "promptly file and serve a motion ("Sale Approval Motion") pursuant to 11 U.S.C. § 363(b) and (f) … seeking entry of an order ("Sale Order") approving the sale contemplated by this Agreement subject to overbids." Decl. of Nancy Zamora ISO Opposition, Ex. A. Unlike Suter, there is no evidence in the record that Trustee analyzed her position under the standard for a settlement or compromise. Instead, the record before the Court supports a finding that Trustee and Defendants intended to (and ultimately did) sell the whatever interest the Estate may have had in the Pre-Petition Malpractice Claim, not settle it.
The law in California, as applied by the courts of Ninth Circuit, is clear that legal malpractice claims cannot be sold. The only interest Trustee was empowered to convey
1:00 PM
CONT...
Vadim A Lipel
Chapter 7
were the "undisclosed remnant assets of the Estate." Defendant BG is a law firm that is more than familiar with bankruptcy law, as it represents bankruptcy trustees, debtors, and creditors. BG should well have understood the risks of purchasing assets from a bankruptcy trustee on an "as-is, where-is" basis, with no representations or warranties, when the extent of the Estate’s interest in those assets was purposefully left silent. In this instance, the risk taken did not result in a commensurate reward – the interest the Estate had in the Pre-Petition Malpractice Claims was not transferrable by sale and thus not included in the Sale Order.
As the Sale Order could not have included any Pre-Petition Malpractice Claims, there are no genuine issue of material fact. Plaintiff is entitled to a judgment as a matter of law on his claim for declaratory relief that the Sale Order only Transferred the whatever interest the Estate’s had, not Debtor’s interest, in the Pre-Petition Malpractice Claims.
Declaratory relief that Post-Petition Malpractice Claim is not Barred by Sale Order
Plaintiff also moves for summary judgment on his claim that this Court does not have subject matter jurisdiction over any part of the Post-Petition Malpractice Claim.
Defendants did not address this issue directly in their opposition.
When a bankruptcy petition is filed, an "estate" is created, consisting of all of the debtor's interests, both legal and equitable, in all property, both tangible and intangible. 11
U.S.C. § 541(a); Hillis Motors, Inc. v. Hawaii Auto. Dealers' Ass'n, 997 F.2d 581, 585 (9th Cir.1993). Thereafter, the property of the estate is distinct from the property of the debtor. Property acquired post-petition by the debtor does not enter the estate; it remains the separate property of the debtor. Suter v. Goedert, 396 B.R. 535, 540-541 (D. Nev. 2008). Thus, any portion of the Malpractice Claim that accrued post-petition could not have been sold pursuant to the Sale Order, as it is not property of the Estate. For these reasons, there are no genuine issue of material fact as to whether the Post-Petition Malpractice Claims are property of the Estate. The Court takes no position and is not ruling on the merits of the Malpractice Action or what accrued pre- or post-petition. These matters appear to be matters better left to the mediator.
Summary judgment is GRANTED as to Count II. Plaintiff is entitled to a judgment as
1:00 PM
CONT...
Vadim A Lipel
Chapter 7
a matter of law on his claim for declaratory relief that the Sale Order only Transferred the whatever interest the Estate had, not Debtor’s interest, in the Pre-Petition Malpractice Claims.
Summary judgment is GRANTED as to Count I. Plaintiff is entitled to a judgment as a matter of law on his claim for declaratory relief that Post-Petition part of the Malpractice Claim is not barred by the Sale Order.
The Court does not need to address the claim for relief in Count III related to Federal Rule 60(b) because it was pled in the alternative to the other Counts and Debtor is not seeking to revisit the merits or the circumstances surrounding the entry of the Sale Order.
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler
Defendant(s):
Lesly Davis Represented By
Talin Keshishian
BRUTZKUS, GUBNER, Represented By Talin Keshishian
Plaintiff(s):
Vadim A Lipel Represented By
Blake J Lindemann
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
1:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
Adv#: 1:19-01041 Lipel v. Davis et al
#32.00 Status Conferencere re: First Amended Complain fr. 7/31/19; 8/28/19, 11/13/19, 1/29/20
Docket 9
Tentative Ruling:
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler
Defendant(s):
Lesly Davis Represented By
Talin Keshishian
BRUTZKUS, GUBNER, Represented By Talin Keshishian
Plaintiff(s):
Vadim A Lipel Represented By
Blake J Lindemann
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
Thursday, January 30, 2020
Hearing Room
302
10:00 AM
1:19-12322
M Shah Dental Inc
Chapter 7
#1.00 Trustee's Emergency Motion for Order Authorizing Trustee to (A) Operate Debtors Business for a Limited Period of Time; (B) Pay Post-Petition Wages to Key Employees; and (C) Use of Debtors Pre-Petition Bank Account
fr. 1/10/20
Docket 36
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
M Shah Dental Inc Represented By Shirlee L Bliss
Trustee(s):
Nancy J Zamora (TR) Represented By Noreen A Madoyan Jeremy Faith
9:30 AM
1:20-10161
Jorge Antonio Corpus
Chapter 13
#0.01 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 8
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Jorge Antonio Corpus Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11764
Jeffrey Arthur Craddock
Chapter 13
#1.00 Motion for relief from stay JPMORGAN CHASE BANK
Docket 82
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 07/03/2017 Ch.13; confirmed on 02/08/2018
Service: Proper; co-debtor, 2nd and 3rd mortgagors served. Property: 9445 Natick Ave, North Hills, CA 91343
Property Value: $ 450,000.00
Amount Owed: $ 215,393.30 (Chase) + $247,179.98 (Seterus) +$67,000 (BofA)=
$529,776.98.
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $4,044.68 (4 payments of $1,011.17)
Movant alleges that the last payment of $3,033.51 was received was on or about 07/29/2019.
Disposition: GRANT 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 terminated); 7 (waiver of the 4001(a)(3) stay); and 12 (define debtor as a borrower).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Jeffrey Arthur Craddock Represented By
10:00 AM
CONT...
Trustee(s):
Jeffrey Arthur Craddock
Stephen S Smyth
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12587
Bienvenida Bejosano Goudeaux
Chapter 13
#2.00 Motion for relief from stay JPMORGAN CHASE BANK
fr. 1/8/20
Docket 69
*** VACATED *** REASON: stip entered cont. to 4/29/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Bienvenida Bejosano Goudeaux Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-10412
Rhonda Denise Hawkins
Chapter 13
#3.00 Motion for relief from stay NATIONSTAR MORTGAGE LLC, et., al.
fr. 1/8/20
Docket 52
*** VACATED *** REASON: Resolved per APO - hm Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Rhonda Denise Hawkins Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
#4.00 Motion for relief from stay JOHN LEVIN MD
fr. 11/6/19
Docket 74
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 3-21-2018 Chapter: 7 (no asset)
Service: Proper. Opposition filed. Movant: John Levin, M.D.
Relief Sought: Movant seeks to renew and amend State Court judgment. Litigation Information
Case Name: John Levin, M.D. v. John Gordon Jones Court/Agency: California Superior Court, Santa Monica Date Filed: 6-1-2009
Judgment Entered: 4-2-2010 Trial Start Date: Unknown
Action Description: The State Court has adjudicated the matter, and Creditor seeks to renew his judgment against Debtor and to amend the judgment to add Debtor’s non-debtor companies as judgment debtor(s).
Grounds
Movant requested relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 5 (waiver of the 4001(a)(3) stay); and 6 (relief binding & effective for 180 days against any debtor). Creditor seeks to lift the stay for the limited purpose of renewing a State Court judgment against Debtor, which will expire in April 2020, and to amend the judgment to add Debtor’s non-debtor companies, Corporate Distributions, Inc. and Worldwide Computer, Inc.
10:00 AM
CONT...
John Gordon Jones
Chapter 7
Debtor argued that he needs the stay to research the status of his account with Creditor concerning the State Court judgment. Debtor alleges making payments to Creditor and that he will be severely prejudiced if the stay is lifted.
Movant argued that any payments Debtor made would be accounted for and stated in Movant’s application for renewing the judgment, so the stay is not necessary to research how much is owed to Movant.
At the hearing on the relief from stay motion, held on November 6, 2019, the Court granted relief from stay to Creditor to file the motion to renew judgment in the state court. The Court clarified that it would not be litigating the amount of the credits and how any payments were allocated. As to Debtor’s arguments that Creditor has not provided a breakdown of how payments were allocated between principal and interest, the Court explained
So I will grant relief from stay just to file the motion to renew the judgment and you two can argue over the amounts. I think you should send it over by email in advance because there’s no reason you can’t -- I mean, there’s really been an inability to just talk numbers on each side which has shocked me in this case. Two of you can sit down and you can say, I’m going to file a motion -- or send everybody an email, this amount, these credits, credited here. And Mr. Worthington should be able to get back and say, no, it’s this amount, credited here or fine. And that -- that’s math and you can explain where you’re getting it from. That shouldn’t really be much litigation.
Tr. of Hr’g on Motion for Relief from Stay, ECF doc. 90, 20:5-16.
The Court then permitted the parties to submit additional briefing on the issue of whether Creditor’s motion to add the non-debtor entities implicates Debtor’s automatic stay.
The pleading filed on behalf of Debtor was not a supplemental brief, but a declaration by Debtor’s counsel that takes issue with the lack of detail in the accounting that accompanied the state court Motion to Renew Judgment. Then, instead of addressing the question presented by the Court for briefing, counsel’s declaration veers off into a discussion of a Covenant Not to Sue that Debtor alleges is germane to the issue of payment allocation and the amount owed that was
10:00 AM
CONT...
John Gordon Jones
Chapter 7
asserted in the Motion to Renew Judgment, even though the Court was very clear at the previous relief from stay hearing that those issues were before the state court.
Three days after the briefing deadline set by the Court, Debtor then filed a pleading styled, "Errata – Omissions of Debtor’s Brief Adding Non-Debtor entities to Creditor’s State Court Judgment" in which Debtor finally addresses the issue of whether the stay covers non-debtor entities, arguing that the "unusual circumstances" exception to the general rule that the stay of § 362 does not cover "other non-debtor parties that maybe liable on the debts of the debtor." See A.H. Robins Co. v. Piccinin (In re A.H. Robins Co.), 788 F.2d 994 (4th Cir.), cert. denied, 479 U.S. 876, 10 (1986).
For his part, Creditor cites to In re Chugash Forest Products, Inc., 23 F.3d 241 (9th Cir. 1994) to support his argument that the Ninth Circuit has repeatedly declined to recognize the "unusual circumstances" exception, and so the stay in Debtor’s bankruptcy case does not extend to the non-debtor entities Corporate Distribution, Inc. and Worldwide Computer, Inc.
In Excel Innovations, Inc., the Ninth Circuit considered a case in which the debtor applied for a preliminary injunction staying arbitration proceedings between two non-bankrupt parties. In re Excel Innovations, Inc., 502 F.3d 1086 (9th Cir.
2007). In holding that the usual preliminary injunction standard applies to stays of proceedings against non-debtors under § 105(a)), the Ninth Circuit found that the Bankruptcy Appellate Panel erroneously relied on the "unusual circumstances" doctrine developed in the Fourth Circuit, which provides an exception to the general rule that the automatic stay does not apply to actions against non-debtors. Id. at 1094. The Ninth Circuit explained:
[The Fourth Circuit] in Piccinin held that the automatic stay may be extended if unusual circumstances make the interests of the debtor and the non-debtor defendant inextricably interwoven. 788 F.2d at 998–1004 (affirming stay of actions against debtor's officers under a combination of § 362(a), § 105(a), and the court's inherent equitable powers); [citations omitted]. The BAP treated the "unusual circumstances" doctrine and the usual preliminary injunction standard as separate and distinct bases for affirming the stay. That is error, because the "unusual circumstances" doctrine does not negate the traditional preliminary injunction standard. As we have noted, stays under the doctrine, "although referred to as extensions of the automatic stay, were in fact injunctions issued by the bankruptcy court after hearing and the
10:00 AM
CONT...
John Gordon Jones
establishment of unusual need to take this action to protect the administration of the bankruptcy estate." Chugach Forest Prods., 23 F.3d at 247 n. 6 (quoting Patton v. Bearden, 8 F.3d 343, 349 (6th Cir.1993)). Indeed, Piccinin itself applied the usual preliminary injunction standard in affirming the stay. 788 F.2d at 1008.
Chapter 7
In re Excel Innovations, Inc., 502 F.3d 1086, 1096 (9th Cir. 2007)(emphasis in original).
In order to obtain a preliminary injunction, a party must establish that: 1) it is likely to succeed on the merits; 2) it is likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in its favor; and 4) that an injunction is in the public interest. Winter v. Natural Resources Defense Counsel, Inc., 555 U.S. 7, 20 (2008); Munaf v. Geren, 553 U.S. 674, 689-90 (2008). A
preliminary injunction is an "extraordinary and drastic remedy" that should not be awarded as of right. Munaf v. Geren, 553 U.S. 689; Winter, 555 U.S. 26.
The moving party bears the burden of persuasion to show that it is entitled to relief by a clear showing. 11A Federal Practice and Procedure § 2948 (Wright, Miller and Kane 2d 1995); Winter, 555 U.S. 22. Here, it is Debtor who seeks an injunction against Creditor’s actions against his wholly-owned, non-debtor entities that would bear the burden of persuasion.
Rule 7001 imposes specific procedures for obtaining an injunction. A proceeding to obtain an injunction must comply with the adversary proceeding provisions of Part VII, i.e., the applicant must file a complaint under Federal Rule of Bankruptcy Procedure 7001, naming the parties against whom injunctive relief is sought, that complies with the federal pleading requirements. In re Pro-Fit Holdings Ltd., 391 B.R. 850, 859 (Bankr. C.D. Cal. 2008)
Under the applicable law in the Ninth Circuit, the automatic stay in Debtor’s chapter 7 case does not extend to the non-debtor entities that Creditor seeks to add to the state court judgment. Thus, Creditor has demonstrated grounds for relief from stay. The Court will not, however, waive the stay provided for under FRBP 4001(a) (3), so that Debtor has an opportunity to decide if he will file an adversary complaint seeking an injunction. Whether Debtor can meet his burden under the standard remains to be seen. See In re American Hardwoods, Inc., 885 F.2d621, 625 (9th Cir.
10:00 AM
CONT...
John Gordon Jones
Chapter 7
1989)(explaining that preliminary injunctions to enjoin actors not covered by the automatic stay are to be granted sparingly).
APPEARANCE REQUIRED.
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Movant(s):
John Levin, M.D. Represented By Michael Jay Berger
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
10:00 AM
1:18-11448
Nasrin Ashouri
Chapter 13
#5.00 Motion for relief from stay
HSBC BANK USA NATIONAL ASSOCIATION
Docket 59
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 6/6/2018
Ch.13; Plan confirmed on 11/27/2018 Service: Proper. No opposition filed.
Property: 3929 Deervale Drive, Los Angeles, CA 91403-4608 Property Value: $1,600,000
Amount Owed: $ 1,188,522.10 Equity Cushion: 25.8%
Equity: $411,477.9
Post-Petition Delinquency: $ 40,896.53 (6 payments of $7,133.14, less suspense balance of $1,902.31)
Movant alleges that the last payment of $7,200.00 was received was on or about 11/20/2019.
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); 6 (co-debtor stay is terminated), 7 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
10:00 AM
CONT...
Debtor(s):
Nasrin Ashouri
Chapter 13
Nasrin Ashouri Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11771
Claudia Victoria Gonzalez
Chapter 13
#6.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST CO.
fr. 1/8/20
Docket 42
Matter Notes:
NONE LISTED -
Tentative Ruling:
This hearing was continued from January 8, 2020, 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.
1-8-20 Tentative Below:
Petition Date: 7-16-2018
Chapter 13 Plan Confirmed: 11-27-2018
Service: Proper (co-borrower served). No opposition filed. Property: 6707 Shirley Avenue, Reseda, CA 91335 Property Value: $519,300 (per debtor’s schedules)
Amount Owed: $469,952.62 Equity Cushion: 2.0% Equity: $49,348
Post-Petition Delinquency: $7,751.37 (4 late payments of $1,965, $2,009, $2,044, and $2,044).
Disposition: GRANT relief requested under 11 U.S.C. 362(d)(1). GRANT 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 13 (if stay not granted, order APO).
Party Information
Debtor(s):
Claudia Victoria Gonzalez Represented By
10:00 AM
CONT...
Trustee(s):
Claudia Victoria Gonzalez
Giovanni Orantes
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11717
Lois Ann Harris
Chapter 13
#7.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
fr. 1/8/20
Docket 48
*** VACATED *** REASON: Cont'd per stipulation to 2/25/2020 at 11
a.m. (doc. 54) - hm Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Lois Ann Harris Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12138
Bruno Alain Rosenthal
Chapter 13
#8.00 Motion for relief from stay JPMORGAN CHASE BANK, N.A.
Docket 26
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 8/26/2016
Chapter: 13, Plan Confirmed on 12/6/2019 Service: Proper. No opposition filed.
Property: 2015 Honda Civic Sedan 4D EX-L I4 Property Value: $5,6000 (per debtor’s schedules) Amount Owed: $ 12,254.74
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $1,421.04 (4 payments of $355.26)
Movant alleges that last payment received on 08/08/2019, in the amount of $355.26.
Motion 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.
Party Information
Debtor(s):
Bruno Alain Rosenthal Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12735
Reynaldo Rene Vizcarra
Chapter 7
#9.00 Motion for relief from stay HONDA LEASE TRUST
Docket 38
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 10/30/2019 Chapter: 7
Service: Proper.
Property: 2016 Honda Pilot Property Value: $ unk. (lease) Amount Owed: $ 20,408.53 Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: 1,140.26 (plus late charges/fees of $50.00) (2 payments of $570.13)
Movant alleges that last payment received on 10/20/2019.
Motion 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.
Party Information
Debtor(s):
Reynaldo Rene Vizcarra Represented By David R Hagen
10:00 AM
CONT...
Trustee(s):
Reynaldo Rene Vizcarra
Chapter 7
Diane C Weil (TR) Pro Se
10:00 AM
1:19-12787
Ricky Austen Gray
Chapter 7
#10.00 Motion for relief from stay
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Docket 11
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 11/04/2019 Ch: 7
Service: Proper. No opposition filed.
Movant: Plaintiff
Relief Sought to: Pursue Insurance _Y Litigation Information
Case Name: State Farm Mutual Auto. Ins. Co. v. Ricky Austin Gray, et al. Court/Agency: Los Angeles County Superior Court-Central District-Stanley Mosk Courthouse
Date Filed: 08/29/2018 Judgment Entered: N/A Trial Start Date: 2/26/2020
Action Description: Subrogation for Property Damage. Grounds
Claim is Insured _Y_
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 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.
10:00 AM
CONT...
Debtor(s):
Ricky Austen Gray
Party Information
Chapter 7
Ricky Austen Gray Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:19-13092
Kimball Regan Hall and Caroline Dale Hall
Chapter 7
#11.00 Motion for relief from stay ARCHSTONE OAK CREEK 1 LLC
Docket 11
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 12/12/2019 Ch: 7
Service: Proper. No opposition filed. Movant: Archstone Oak Creek 1 LLC
Property Address: 5304 Willow Court #601 Agoura Hills, CA 91301 Type of Property: Residential
Occupancy: Unlawful Detainer Foreclosure Sale:
UD case filed: 11/22/2019 UD Judgment:
Movant alleges that debtor has failed to pay monthly rent of $3,267.00 since 11/01/2019. In total, amount due equates to $5,109.67.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (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.
Party Information
Debtor(s):
Kimball Regan Hall Represented By
Rabin J Pournazarian
10:00 AM
CONT...
Kimball Regan Hall and Caroline Dale Hall
Chapter 7
Joint Debtor(s):
Caroline Dale Hall Represented By
Rabin J Pournazarian
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:20-10076
Claire L Gregorio
Chapter 13
#12.00 Motion in Individual Case for Order Imposing a Stay or
Continuing the Automatic Stay as the Court Deems Appropriate 16401 Flanders Street, Granada Hills, CA 91344
Docket 9
Matter Notes:
NONE LISTED -
Tentative Ruling:
On January 13, 2020, Debtor filed this Ch. 13 case. Debtor had one case pending within the previous year. The First Filing, 19-12788-MT, was a chapter 13 that was filed on 11/4/2019 and dismissed on 12/19/2019 for failure to appear at 341(a) meeting.
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 appear because she now has an experienced attorney. 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 her financial affairs. Debtor states that since the First Filing was dismissed, she has competent counsel to help her reorganize her debts. Debtor argues that she has cut her expenses significantly and has sufficient income to fund a plan. Debtor claims that the property is necessary for a successful reorganization because this is her primary residence.
Service proper. No opposition filed.
MOTION GRANTED. RULING MAY BE MODIFIED AT HEARING. NO APPEARANCE REQUIRED
Party Information
Debtor(s):
Claire L Gregorio Represented By Andrew Moher
10:00 AM
CONT...
Trustee(s):
Claire L Gregorio
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12668
Demonica E M Santiago-Plummer
Chapter 13
#13.00 Default Under Adequate Protection Order; Request for Entry of Order Granting Relief from Stay 67 Notice of motion and motion for relief from the automatic stay with supporting declarations REAL PROPERTY
RE: 7501 Jumilla Ave, Winnetka, CA 91306 . fr. 1/8/20
Docket 105
Matter Notes:
NONE LISTED -
Tentative Ruling:
This hearing was continued so that the parties had an opportunity to review the payments tendered by Debtor & how they've been accounted for. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
1-8-2020 TENTATIVE BELOW
On June 24, 2019, the court entered an adequate protection order ("APO"). The APO required Debtor to (1) make regular monthly payments of $1,741.50 starting June 1, 2019; and (2) cure $8,115.88 in post-petition default by making stipulation payments of $901.76 per month starting June 15, 2019 until January 15, 2020.
Wells Fargo now moves for relief from stay based on an alleged default under an adequate protection order ("Motion"). Debtor allegedly failed to make stipulation payments for August to October 2019 and regular mortgage payments for September to November 2019.
Debtor opposed explaining that she had an "unforeseen emergency," but she is current because she made regular mortgage payments that totaled $6,685 to cure the December 2019 default. Debtor also asserts making stipulation payments totaling $3,205.28. Exhibits evidencing payments are attached to Debtor’s opposition.
APPEARANCE REQUIRED.
10:00 AM
CONT...
Demonica E M Santiago-Plummer
Chapter 13
Past Tentative:
Petition Date: October 4, 2017 Chapter:13
Service: Proper. Opposition filed.
Property: 7501 Jumilla Ave., Winnetka, CA 91306 Property Value: $ 581,473 (per debtor’s schedules) Amount Owed: $ 325,968.56 (per RFS motion) Equity Cushion: 36% (assuming 8% cost of sale) Equity: $255,504.44
Post-Petition Delinquency: $8,263.38 (4 payments of $1,741.50)
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, arguing that more payments have been made than movant accounts for and requesting that any remaining default be paid through an APO. Movant also appears to have a large equity cushion.
APPEARANCE REQUIRED for past tentative.
Party Information
Debtor(s):
Demonica E M Santiago-Plummer Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-12223
Arsen Babikian
Chapter 13
#13.01 Hearing
RE: Default under adequate protection, on 13051 Willard Street, North Hollywood, California 91605, filed by Creditor U.S. Bank National Association, as Trustee for Structured Asset Mortgage Investments II Inc., Bear Stearns ALT- A Trust, Mortgage Pass-Through Certificates, Series 2006-3.
Docket 41
Matter Notes:
NONE LISTED -
Tentative Ruling:
On December 31, 2019, Nationstar filed a declaration in support of its request for entry of order pursuant to an Adequate protection order dated 8/15/2016 ("Declaration"). Attached to the Declaration was prior notices of default. Nationstar stated in the Declaration was that Debtor was also behind on October and November 2019 payments.
In opposition, Debtor argues that Nationstar has been consistently misapplying the payments and miscommunicating with their counsel regarding default. Debtor has previously disputed the notices of default. Attached to the declaration in support of the Opposition are copies of payments for the months of July, August, September, October and November 2019 (August 6, 2019 $2710 (for July and August 2019),
August 26, 2019 $1650 (for September 2019), September 20, 2019 $1700 (for
October 2019), November 4, 2019 (For November 2019).
Have the parties had an opportunity to review the payment history and how the payments have been allocated by Nationstar?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Arsen Babikian Represented By Roland H Kedikian
10:00 AM
CONT...
Trustee(s):
Arsen Babikian
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10925
Roben Saeidian
Chapter 7
#14.00 Motion RE: Objection to Claim Number 7 by Claimant Orah Pourati
Docket 39
*** VACATED *** REASON: continued to 4.8.2020 at 10:00 a.m. [#45] - ts Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Roben Saeidian Represented By
Hamid Soleimanian
Trustee(s):
David Seror (TR) Represented By Elissa Miller Sulmeyer Kupetz
10:00 AM
1:19-11236
Francisco Arango Arreaga
Chapter 7
#15.00 Trustee's Motion To Disgorge Compensation Pursuant To 11 U.S.C. § 329
Docket 16
Matter Notes:
NONE LISTED -
Tentative Ruling:
The following allegations by the U.S. Trustee are unopposed. The U.S. Trustee selected Debtor’s case for audit and requested documents and information from Debtor. Debtor provided his attorney, Martin Branstetter, the requested documents and information, but Mr. Branstetter did not provide them to the auditor.
Consequently, the auditor filed a report of inability to complete the audit. Later, when the U.S. Trustee requested (1) a declaration explaining what happened and (2) the requested documents, Mr. Branstetter again did not comply.
Mr. Branstetter’s received $1,400 from Debtor to render legal services for all aspects of his bankruptcy case, including:
Analysis of the debtor's financial situation, and rendering advice to the debtor in determining whether to file a petition in bankruptcy;
Preparation and filing of any petition, schedules, statements of affairs and plan which may be required;
Representation of the debtor at the meeting of creditors and confirmation hearing, and any adjourned hearings thereof;
Representation of the debtor in adversary proceedings and other contested bankruptcy matters[.]
The U.S. Trustee now moves for an order disgorging any and all compensation Debtor paid to Mr. Branstetter.
Section 329(b) of the Bankruptcy Code provides that if the compensation paid to a debtor’s attorney exceeds the reasonable value of the services rendered or to be rendered, the court may order the return of the compensation paid to the estate or the entity that made the payment. 11 U.S.C. § 329(b). Rule 2017, which implements
§ 329, provides that the court may determine whether any payment from a debtor to
10:00 AM
CONT...
Francisco Arango Arreaga
Chapter 7
an attorney in contemplation of a bankruptcy filing is excessive.
Under § 330 of the Bankruptcy Code, in determining the reasonable amount of compensation to be awarded to a chapter 7 debtor’s attorney, "the court shall consider the nature, the extent, and the value of . . . services" in relation to the following factors:
the time spent on such services;
the rates charged for such services;
whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title;
In addition to the factors above, the quality of representation should be considered in determining the reasonableness of an attorney’s fee. See, e.g., In re Mills, 170 B.R. 404, 409 (Bankr. D. Ariz. 1994); In re Wright, 48 B.R. 172 (Bankr. E.D.N.C. 1985)(all fees ordered disgorged where counsel failed to properly represent the debtors in their chapter 7 case); In re Grant, 14 B.R. 567, 569 (Bankr. S.D.N.Y. 1981).
Here, although Debtor did receive a discharge, Debtor is still exposed to the risk of having his discharge revoked because the U.S. Trustee has reserved his right to revoke the discharge under section 727(d)(4) because Mr. Branstetter failed to provide the documents to the U.S. Trustee. This risk significantly diminishes the value and benefit of Mr. Branstetter’s services. As a result, the $1,400 compensation paid to Mr. Branstetter exceeds the reasonable value of the services he rendered.
No opposition filed. Service proper. Motion GRANTED. U.S. Trustee to lodge order within 7 days.
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Francisco Arango Arreaga Represented By Marlin Branstetter
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:19-12494
Edwin Saghian
Chapter 7
#16.00 Motion to Compel Margaret Saghian's Cooperation with Trustee's Administration of Real Estate Asset
Docket 30
Matter Notes:
NONE LISTED -
Tentative Ruling:
The Chapter 7 Trustee moves for an order to compel the cooperation of Margaret Saghian, who is the spouse of Debtor and current occupant of the real property located at 15237 Greenleaf Street, Sherman Oaks, California (the "Property", with the administration of the Property.
The following allegations are unopposed. Despite several requests, Ms. Saghian has failed to provide access to the Trustee’s real estate brokers to enable them to view the Property’s interior. Without access, the Trustee’s efforts to administer the Property for the benefit of the estate have come to a standstill, while the balance due on the mortgage against the Property continues to increase. Consequently, the delay in administration caused by Ms. Saghian’s noncooperation is quickly diminishing any equity in the Property available to the estate, which is to the detriment of Debtor’s creditors.
Service proper. No response filed.
Motion is GRANTED. Trustee to lodge order within 7 days. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Edwin Saghian Represented By
Mitchell reed Sussman
Trustee(s):
David Keith Gottlieb (TR) Represented By Carmela Pagay
11:00 AM
1:19-12134
Mehrnaz Fotoohi
Chapter 7
Adv#: 1:19-01143 Irani v. Fotoohi
#17.00 Status Conference re: Complaint for Non-dischargeability of debt pursuant to 11 U.S.C. section 523(a)(6) &
11 U.S.C. section 727(a)(2)(A),(3),(4)&(5)
Docket 1
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Mehrnaz Fotoohi Represented By Fari B Nejadpour
Defendant(s):
Mehrnaz Fotoohi Pro Se
Plaintiff(s):
Karin Irani Represented By
Sanaz S Bereliani
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
Adv#: 1:19-01150 Olivieri v. Faucher et al
#18.00 Status Conference re: Complaint by debtor for professional negligence
Docket 1
Matter Notes:
NONE LISTED -
Tentative Ruling:
This matter will be called at 1:00 p.m., to be heard with the Motion to Dismiss.
APPEARANCES WAIVED AT 11:00 A.M.
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Defendant(s):
John D Faucher Pro Se
Faucher Law Pro Se
Plaintiff(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11538
Momentum Development LLC
Chapter 7
Adv#: 1:19-01129 Weil v. The Pyramid Center, Inc.
#19.00 Status Conference re: Amended Complaint to Avoid Fraudulent Transfers fr. 1/15/20
Docket 9
*** VACATED *** REASON: Cont'd per stipulation to March 4, 2020, at 1:00 p.m. (doc. 15) - hm
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Momentum Development LLC Represented By
Michael H Raichelson
Defendant(s):
The Pyramid Center, Inc. Represented By
Michael H Raichelson
Plaintiff(s):
Diane Weil Represented By
David Seror Jorge A Gaitan
Trustee(s):
Diane C Weil (TR) Represented By David Seror Jorge A Gaitan
11:00 AM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:19-01142 PCB Debt LLC v. Lee
#20.00 Status Conference re: Complaint to revoke discharge under 11 U.S.C. section 727
Docket 1
*** VACATED *** REASON: Cont'd per stipulation to March 11, 2020, at 1 p.m. - hm
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Albert Lee Represented By
M Teri Lim
Defendant(s):
Albert Lee Pro Se
Plaintiff(s):
PCB Debt LLC Represented By George T Busu James E Till
Bryan King Sheldon
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:19-10925
Roben Saeidian
Chapter 7
Adv#: 1:19-01090 POURATI v. Saeidian
#21.00 Status Conferencr Re: Conplaint for Non-Dischargeability and Objection to Discharge for:
- Debts Incurred through Fals Pretenses, False Representation or Actual Frad under 11 USC Sec. 523(a)(2)(A);
- Debts incurred through Conversion under 11 USC Sec. 523(a)(4);
- Debts Incurred through Willful and Malicious Injury to Property under 11 USC sec. 523(a)(6);
- Objection to Discharge under 11 USC Sec. 727(a)(5)
- Objection to Discharge under 11 USC Sec. 727(a)(s); and
- Objection to Discharge under 11 USC Sec. 727(a)(3).
fr. 11/6/19
Docket 1
*** VACATED *** REASON: Cont'd to 4/8/2020 at 11 a.m. - hm Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Roben Saeidian Represented By
Hamid Soleimanian
11:00 AM
CONT...
Roben Saeidian
Chapter 7
Defendant(s):
Roben Saeidian Pro Se
Plaintiff(s):
ORAH POURATI Represented By David Pourati Leonardo Drubach
Trustee(s):
David Seror (TR) Represented By Elissa Miller
11:00 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
Adv#: 1:19-01086 Walters et al v. K&A Global Management Company, a California corpor
#22.00 Status Conference for Declaratory Relief fr. 9/18/19, 11/6/19
Docket 1
Matter Notes:
NONE LISTED -
Tentative Ruling:
Having reviewed the post-confirmation status report filed in the chapter 11 case 16-13295 (bankr. doc. 127) and finding cause to continue this adversary status conference to the same date as the chapter 11 status conference, this matter is continued to May 6, 2020, at 11:00 a.m.
DEBTOR TO GIVE NOTICE OF CONTINUED STATUS CONFERENCE. NO APPEARANCE REQUIRED ON FEBRUARY 5, 2020.
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
Defendant(s):
K&A Global Management Pro Se
Plaintiff(s):
James Walters Represented By Amman A Khan
Kellogg & Andelson Accountancy, Represented By
Amman A Khan
11:00 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
#23.00 Post-Confirmation Status Conference
fr. 1/12/17, 8/16/17, 11/1/17, 10/25/17, 12/13/17, 3/21/18, 1/30/19, 2/6/19, 11/6/19
Docket 16
Matter Notes:
After having reviewed Debtor’s 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.
Post-confirmation status conference will be held on
Please advise if any date conflict.
Tentative Ruling:
Having reviewed the post-confirmation status report (ECF doc. 127), the Court finds cause to continue this status conference to May 6, 2020, at 11:00 a.m.
DEBTOR TO GIVE NOTICE OF CONTINUED STATUS CONFERENCE. NO APPEARANCE REQUIRED ON FEBRUARY 5, 2020.
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
1:00 PM
1:17-13429
Dawn O. Olivieri
Chapter 13
Adv#: 1:19-01150 Olivieri v. Faucher et al
#24.00 Defendant's Motion to Dismiss the Adversary Complaint Pursuant to FRCP 12(B)(6) and FRBP 7012
Docket 7
Matter Notes:
NONE LISTED -
Tentative Ruling:
On December 16, 2019, Dawn Olivieri ("Debtor" or "Plaintiff’) filed a Complaint against her former attorney, John D. Faucher, Esq. and Faucher Law (collectively "Defendants")1. Debtor alleges that, as an actress, she receives income from performing her shows initially and residual income from the repeat airing of her shows.
Debtor’s Complaint alleges that Defendants committed professional negligence by misfiling her bankruptcy case as a chapter 7 on December 30, 2017, rather than as a chapter 13 initially. Upon learning of the chapter 7 trustee’s affirmative steps to monetize her residual income, Debtor allegedly converted her chapter 7 case to chapter 13 on June 19, 2018. Consequently, Debtor allegedly had to propose a chapter 13 plan, which required her to pay all creditors in full, including the chapter 7 trustee and his attorneys, rather than just paying her priority tax obligations and a percentage to general unsecured creditors had her case been filed as a chapter 13 initially.
The court confirmed Debtor’s chapter 13 plan on January 3, 2019. On January 10, 2020, Defendant, John D. Faucher, filed a motion to dismiss Plaintiff’s Complaint as being untimely. Plaintiff filed an
1:00 PM
CONT...
Dawn O. Olivieri
Chapter 13
opposition and Defendant responded with a brief in support of dismissal.
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the allegations 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).
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 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. 556
U.S at 678 (citations and internal quotation marks omitted).
The allegations of the complaint, along with other materials properly before the court on a motion to dismiss, can establish an absolute bar to recovery. See Weisbuch v. County of Los Angeles, 119 F.3d 778, 783 n. 1 (9th Cir. 1997)("If the pleadings establish facts
1:00 PM
CONT...
Dawn O. Olivieri
Chapter 13
compelling a decision one way, that is as good as if depositions and other expensively obtained evidence on summary judgment establishes the identical facts."). While the court generally must not consider materials outside the complaint, the court may consider exhibits submitted with the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). A court may also consider judicially noticed matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
In the absence of a federal statute of limitations, federal courts apply the forum state’s statue of limitations for personal injury actions. Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008); Jones v. Blanas, 393 F.3d 918, 927 (2004); Fink v.
Shedler, 192 F.3d 911, 914 (9th Cir. 1999).
California’s statute of limitations for 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." Cal. Code Civ. Proc. § 340.6.
California’s one-year statute of limitations is tolled by 11 U.S.C. § 108(a), which allows a "trustee" to commence an action in a non- bankruptcy proceeding within the period allowed for such a proceeding or within two years after the order for relief, whichever is later. 11
U.S.C. § 108(a); 2 Collier on Bankruptcy ¶ 108.02[1] (16th Ed. 2019).
1:00 PM
CONT...
Dawn O. Olivieri
Chapter 13
Section 108(a) explicitly provides the trustee the privilege of extending the one-year time limit for filing an action. 11 U.S.C. § 108(a). This privilege extends to debtors-in-possession. 11 U.S.C. § 1107; United States for Use of American Bank v. CIT Constr. Inc. of Texas, 944 F.2d 253, 259-60 (5th Cir. 1991)(citations omitted).
Court decisions diverge on whether post-confirmation debtors are entitled to the tolling provisions of § 108(a). Some courts find that post- confirmation debtors are not entitled to the time extension of § 108(a) because debtors, acting for their own interests, are not acting on behalf of the creditors. CIT Constr. Inc. of Texas, 944 F.2d at 260; Natco Industries, Inc. v. Federal Ins. Co. 69 B.R. 418, 419 (S.D.N.Y. 1987). Some courts reason that post-confirmation debtors are not acting on behalf of the estate because while recoveries from lawsuits by trustees and debtors-in-possession during the bankruptcy proceeding’s pendency accrues to benefit creditors, recoveries from lawsuits by post- confirmation debtors vests solely in debtors. Natco Industries, Inc., 69
B.R. 418, 419 (S.D.N.Y. 1987)(citation omitted).
There is also a question of whether § 108(a) may apply to chapter 13 debtors. The district court in Stephenson v. Chase Home Fin. LLC discussed how 11 U.S.C. § 103 applies § 108(a)’s tolling provisions to chapter 13 bankruptcies. No. 10cv2639-L(WMc), 2011 U.S. Dist. LEXIS 54791, at *14-15 (S.D. Cal. May 23, 2011). The same court and a Pennsylvania bankruptcy court explained how a chapter 13 debtor has the trustee’s capacity to sue on the estate’s behalf under 11 U.S.C. §§ 1303, 363(b), and 323 and chapter 13 debtors are thus entitled to the limitations extension under § 108(a). Id.; McConnell v. K-2 Mortg. (In re McConnell), 390 B.R. 170, 180-81 (Bankr. W.D. Pa. 2008).
This court need not resolve these issues of whether a post-
1:00 PM
CONT...
Dawn O. Olivieri
Chapter 13
confirmation debtor or a Chapter 13 debtor is entitled to a time extension under §108(a) because, as discussed next, § 108(a) does not apply to postpetition claims.
Defendant argues that section 108(a)(2) does not apply to claims arising post-petition. In re Phillip, 948 F.2d 985, 986 (5th Cir. 1991) (holding that § 108(a) does not apply to claims arising during the period between the filing of a chapter 11 petition and the conversion of the case to chapter 7); In re United Trucking, Inc., 91 B.R. 30 (E.D.Mich.1988); In re Northern Specialty Sales, Inc., 57 B.R. 557 (D.Or. 1986); In re Ward, 42 B.R. 946 (M.D.Tenn. 1984). "[T]he language of § 108(a) indicates it is applicable only to prepetition claims." In re Northern Specialty Sales, Inc., 57 B.R. at 559.
The court in United Trucking discussed how § 108(a) appropriately applies to prepetition claims to give the trustee or debtor in possession time to discover and evaluate claims a debtor may have against others. 57 B.R. at 559. Section 108(a) is not appropriate for postpetition claims because the trustee or debtor in possession are theoretically operating the debtor’s business when the postpetition claim arose, so that they should have notice to bring a claim and do not require the time extension provided by § 108(a) to act. Id. United Trucking also looked to the language of § 108(a) to supports its conclusion that the statute only applies to prepetition claims. Section 108(a) states:
"If applicable law…fixes a period within which the debtor may
1:00 PM
CONT...
Dawn O. Olivieri
Chapter 13
commence an action, and such period has not expired before the date of the filing of the petition…" 11 U.S.C. § 108(a).
The court reasoned that "such period" will never expire before the petition’s filing for post-petition claims, so section 108(a) must not have been intended for postpetition claims. Id.
Plaintiff concedes that her claim is postpetition. In her Opposition, Plaintiff asserts that her claim arose upon confirmation of the chapter 13 plan and the "earliest that [she] could have filed a complaint against Defendant would have been after the case converted to Chapter 13." All these events occurred after the filing of the chapter 7 petition on December 30, 2017. Given that Plaintiff’s claim is postpetition, Plaintiff is not entitled to section 108(a)’s time extension. The only way for Plaintiff’s Complaint to survive a motion to dismiss is if her claim arose within the one-year time limit under CCP § 340.6(a), which is between December 16, 2018 and December 16, 2019.
The statute of limitations in a legal malpractice action does not begin to run simply when the former client knows, or should know, of the attorney’s negligence. Goebel v. Lauderdale, 263 Cal. Rptr. 275, 277 (Cal. Ct. App. 1989). The former client must also sustain actual and appreciable harm. Id. (citation omitted). Harm is actual and appreciable when it becomes irremediable, or impossible to remedy or correct. Id. (citations omitted).
1:00 PM
CONT...
Dawn O. Olivieri
Chapter 13
Plaintiff argues that the one-year time limit under CCP § 340.6(a) does not bar her Complaint because the January 3, 2019 confirmation order is the appropriate date from which the time limit starts to run because this is when she was required to pay all her creditors, and the Complaint was filed within one year on December 16, 2019. If CCP § 340(a)’s one-year time limit started to run on this date, Plaintiff claim is not barred by the statute of limitations.
Defendant contends that Plaintiff suffered actual and appreciable harm immediately upon the filing of the chapter 7 case by precluding Plaintiff from taking advantage of priority tax debt and paying only a percentage to general unsecured creditors or when the Trustee administered her residual income stream.
Plaintiff alleges that the chapter 7 trustee took affirmative steps to monetize her residual income upon the filing of her chapter 7 bankruptcy. Based on the trustee’s actions, Debtor allegedly converted her chapter 7 case to one under chapter 13. After the conversion date, Debtor allegedly had to propose a chapter 13 plan, which provided to pay all creditors in full, including the chapter 7 trustee and his attorneys. Plaintiff asserts in her Complaint being harmed by Defendant's misfiling a chapter 7 instead of a chapter 13 because she would not have incurred an obligation to the chapter 7 trustee and his counsel, and she would not have had to pay all her general unsecured creditors in full had Defendant initially filed the case as a chapter 13. Debtor claims that had her bankruptcy case been initially filed as a chapter 13, she could have proposed a repayment plan that paid just her $18,656 tax obligations and a percentage to her general unsecured creditors based on her disposable income.
The parties have provided no briefing on when the claim would
1:00 PM
CONT...
Dawn O. Olivieri
Chapter 13
arise as a matter of California law. The parties also provided few details on actual post-petition accrual or whether the discovery rule applies. The parties should be prepared to discuss these questions at oral argument.
Plaintiff requests from this court leave to amend. Courts are encouraged to grant leave to amend unless the plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009). This will depend on the conclusion on whether plaintiff can allege an accrual date within the one-year limitation.
The parties should be prepared to discuss these issues and whether further briefing is needed at the argument.
APPEARANCES REQUIRED.
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Defendant(s):
John D Faucher Represented By Christopher M Cotter
Faucher Law Represented By
Christopher M Cotter
1:00 PM
CONT...
Dawn O. Olivieri
Chapter 13
Plaintiff(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11985
Samuel James Esworthy
Chapter 11
#1.00 Post Confirmattion status conference
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, 6/26/19, 9/18/19, 12/18/19
Docket 1
Debtor(s):
*** VACATED *** REASON: Cont'd to March 4, 2020 - hm Party Information
Samuel James Esworthy Represented By
M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes
11:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#2.00 Motion RE: Objection to Creditor's Proof of Claim
fr. 12/17/19, 1/28/20
Docket 77
Debtor(s):
*** VACATED *** REASON: WIthdrawn (doc. 93) - hm
Party Information
Linda Akerele Alele Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
8:30 AM
1:19-12861
Varojan Akopian
Chapter 7
#1.00 Pro se Reaffirmation Agreement Between Debtor and Wells Fargo Bank, dba Wells Fargo Auto
Docket 10
Tentative Ruling:
Petition date: 11/14/2019
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 Toyota Prius
Debtor’s valuation of property (Sch. B): $3,575 Amount to be reaffirmed: $4,289.77
APR: 11.390% (fixed)
Contract terms: $465.17 per month for 16 months Monthly Income (Schedule I): $2,265
Monthly expenses: (Schedule J): $2,264 Disposable income: $1.00
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 is unemployed and has no income other than family contributions. Debtor does not explain how they will afford this payment, which is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until March 23, 2020, whichever is later.
Party Information
8:30 AM
CONT...
Debtor(s):
Varojan Akopian
Chapter 7
Varojan Akopian Pro Se
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
1:19-12904
Byron G Willilams
Chapter 7
#2.00 Pro se Reaffirmation Agreement Between Debtor and Santander Consumer USA Inc., dba Chrysler Capital
Docket 10
Tentative Ruling:
Petition date: 11/19/2019
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 Dodge Ram Promaster
Debtor’s valuation of property (Sch. B): $14,000 Amount to be reaffirmed: $15,420.42
APR: 19.05% (fixed)
Contract terms: $459.86 per month for 46 months Monthly Income (Schedule I): $1,650
Monthly expenses: (Schedule J): $2,721 Disposable income: <$1,071>
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, a self-employed plumber that uses this vehicle for work, does not explain how he will afford this vehicle. This payment is listed in Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until March 7, 2020, whichever is later.
Party Information
8:30 AM
CONT...
Debtor(s):
Byron G Willilams
Chapter 7
Byron G Willilams Represented By David S Hagen
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
1:19-13203
Tanya Juliana McLean
Chapter 7
#3.00 Reaffirmation Agreement with
Los Angeles Police Federal Credit Union
Docket 10
Tentative Ruling:
Petition date: 12/26/2019
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 Mazda 3
Debtor’s valuation of property (Sch. B): $8,104 Amount to be reaffirmed: $11,800
APR: 9.240% (fixed)
Contract terms: $216.44 per month for 71 months Monthly Income (Schedule I): $5,397.23
Monthly expenses: (Schedule J): $5,348 Disposable income: $49.23
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 this payment, which is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until April 1, 2020, whichever is later.
Party Information
8:30 AM
CONT...
Debtor(s):
Tanya Juliana McLean
Chapter 7
Tanya Juliana McLean Represented By
R Grace Rodriguez
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
1:19-13186
Janet Lee Kelley
Chapter 7
#4.00 Motion for Approval of Reaffirmation Agreement with Addition Financial Credit Union
Docket 9
Tentative Ruling:
Petition date: 12/23/19
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 Chrysler 200
Debtor’s valuation of property (Sch. B): $9,840 Amount to be reaffirmed: $20,972.65
APR: 4.45% (fixed)
Contract terms: $484.49 per month for approx. 44 months Monthly Income (Schedule I): $2,119.09
Monthly expenses: (Schedule J): $2,029 Disposable income: $90.09
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 this payment, which is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until April 3, 2020, whichever is later.
Party Information
8:30 AM
CONT...
Debtor(s):
Janet Lee Kelley
Chapter 7
Janet Lee Kelley Represented By Omar Zambrano
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:14-11666
Corina Alarcon
Chapter 13
#72.00 Debtor's Motion to Avoid Lien Junior Lien
On Principal Residence with Bank Of The West
Docket 86
Tentative Ruling:
Service: Proper. No opposition filed.
Property Address: 15834 Larkspur Street, Sylmar, CA 91342 First trust deed: $326,342.49 (Ocwen)
Second trust deed (to be avoided): $163,342.49 (Citibank)(this lien was avoided by court order entered July 8, 2014)
Third trust deed (to be avoided): $20,427.50)
Debtor’s Fair market value per appraisal in May 2014: $325,000 Legal Standard
To ascertain the amount of a claim for purposes of §506(a) and to determine whether the lien is wholly unsecured, the court must determine the present fair market value of the collateral securing the claim. 11 U.S.C. §506(a). The Ninth Circuit has determined that Debtors can avoid a junior lien on his or her principal residence if the lien is completely or wholly unsecured. See Lam v. Investors Thrift (In re Lam), 211 B.R. 36 (B.A.P. 9th Cir. 1997); Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220 (9th Cir. Cal. 2002).
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.
Party Information
Debtor(s):
Corina Alarcon Represented By
Glenn Ward Calsada
11:00 AM
CONT...
Trustee(s):
Corina Alarcon
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-12566
Gabriel Rufus and Shirley Rufus
Chapter 13
#73.00 Trustee's Motion to Dismiss Case Due to Expiration of Plan
Docket 79
Tentative Ruling:
Debtors oppose explaining that they will file a motion to modify.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Gabriel Rufus Represented By Devin Sawdayi
Joint Debtor(s):
Shirley Rufus Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-12567
Terry Byrd Pitt
Chapter 13
#74.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns fr. 8/20/19, 10/22/19, 12/17/19
Docket 34
Tentative Ruling:
Cont’d. fr. 12.17.2019
The last hearing was continued. What is the status of this Motion? APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Terry Byrd Pitt Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14146
Elisha Zeev Majerczyk
Chapter 13
#75.00 Hearing re: Opposition to response to notice of final
cure payment filed by creditor Wells Fargo Bank, N.A., et, al, and request evidence of canceled checks paid by creditor
Docket 0
Tentative Ruling:
Chapter 13 Trustee filed a notice of final cure payment stating that the $167,563.33 amount required to cure the default has been paid in full. Wells Fargo responded and agreed that it received the $167,563.33 from the Trustee to cure prepetition default payments. Wells Fargo asserts, however, that Debtor is not current on
$25,018.59 in post-petition payments. Included in Wells Fargo’s response is an escrow history ledger showing payments allegedly advanced by Wells Fargo to cover various postpetition property tax and insurance payments.
Debtor declares that she made $4,250.57 in payments for property taxes. Debtor also declares requesting proof of cancelled checks made by Wells Fargo towards the insurance company, but Wells Fargo was unable to provide proof. Debtor requests this court to reduce the postpetition delinquent balance to $20,768.02 and to require Wells Fargo to provide evidence of all post-petition payments made toward property taxes and insurance in the form of canceled checks to determine the amount due. Wells Fargo has not filed a reply.
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Elisha Zeev Majerczyk Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14146
Elisha Zeev Majerczyk
Chapter 13
#76.00 Status hearing re: Objection to entry of order valuing claim as requested in debtor's declaration after
ch. 13 plan completion or discharge
Docket 74
Tentative Ruling:
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Elisha Zeev Majerczyk Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14219
Carmine Antoniello
Chapter 13
#77.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19; 1/28/20
Docket 144
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #163. lf Tentative Ruling:
Party Information
Debtor(s):
Carmine Antoniello Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14219
Carmine Antoniello
Chapter 13
#78.00 Trustee's Motion to Dismiss Case due to Infeasibility of the Plan fr. 9/24/19, 12/17/19; 1/28/20
Docket 127
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #164. lf Tentative Ruling:
Party Information
Debtor(s):
Carmine Antoniello Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14889
Guy Pierre Hector and Brenda Buell Hector
Chapter 13
#79.00 Trustee's Motion to Dismiss Case Due to Expiration of Plan
Docket 75
Tentative Ruling:
Trustee’s Motion states that Debtors are delinquent $22,200 for postpetition taxes owed in 2014 and 2016. Debtor asserts already having paid the IRS directly.
Debtors state that they will make the $22,200 payment to the Trustee before the hearing as a precaution.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
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
1:14-15605
Rolando Chavez and Irma Chavez
Chapter 13
#80.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr/ 8/20/19, 10/22/19,11/19/19
Docket 34
Tentative Ruling:
Cont’d. fr. 11.19.2019
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Rolando Chavez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Irma Chavez Represented By
Rebecca Tomilowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10398
Jose Luis Banuelos and Maria L. Tejada
Chapter 13
#81.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19
Docket 63
Tentative Ruling:
Cont’d. fr. 12.17.2019
APPEARANCE REQUIRED unless Trustee stipulates to continue.
12-17-19 tentative:
Cont’d. fr. 10-22-19
No opposition filed.
All parties agreed to continue at the last hearing.
APPEARANCE REQUIRED unless Trustee stipulates to continue for 12-17-19 tentative.
Party Information
Debtor(s):
Jose Luis Banuelos Represented By Leonard Pena
Joint Debtor(s):
Maria L. Tejada Represented By Leonard Pena
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10674
Shireen Janti Reid
Chapter 13
#82.00 Chapter 13 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 11/19/19; 1/28/20
Docket 40
Tentative Ruling:
Cont’d. fr. 1.28.2020
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Shireen Janti Reid Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10822
Tracey Lynne Baumert
Chapter 13
#83.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr,10/22/19, 11/19/19; 1/28/20
Docket 112
*** VACATED *** REASON: Ntc. of w/drawal filed 2/21/20 (eg) Tentative Ruling:
Debtor asked for one more continuance at the last hearing, but Trustee opposed the
continuance because Debtor has allegedly not paid for over one year.
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Tracey Lynne Baumert Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10981
Sandra Andrews
Chapter 13
#84.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/24/19, 10/22/19, 12/17/19
Docket 44
*** VACATED *** REASON: T’ee withdrew [#51] -ts Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Sandra Andrews Represented By Rebecca Tomilowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11051
Romeo J Pettinelli and Gloria J Pettinelli
Chapter 13
#85.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 12/17/19
Docket 64
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #73. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Romeo J Pettinelli Represented By Eliza Ghanooni
Joint Debtor(s):
Gloria J Pettinelli Represented By Eliza Ghanooni
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11552
Athena Marie Massey
Chapter 13
#86.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 54
*** VACATED *** REASON: Ntc. of w/drawal filed 2/4/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Athena Marie Massey Represented By Mark E Brenner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12070
Bernice Holtz Hart
Chapter 13
#87.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 48
Tentative Ruling:
Debtor opposes and states that: (1) she acknowledges falling behind on $743.45 in plan payments because of extraordinary expenses; (2) she paid $194 on 1.17.2020; and (3) she intends to be current by the hearing or within one continuance.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Bernice Holtz Hart Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12349
Marjan Bahman
Chapter 13
#88.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 12/17/19
Docket 65
Tentative Ruling:
Cont’d. fr. 12.17.2019
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Marjan Bahman Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12361
Jose Suarez
Chapter 13
#89.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 60
Tentative Ruling:
Cont’d. fr. 1.28.2020
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Jose Suarez Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14171
Albert Hakakha
Chapter 13
#90.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 3/7/19(MB), 3/26/19, 6/25/19, 7/30/19, 9/24/19, 11/19/19; 1/28/20
Docket 225
*** VACATED *** REASON: Ntc. of w/drawal filed 2/13/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Albert Hakakha Represented By Nathan A Berneman David Brian Lally
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10348
Jim K. Nikolopoulos and Ayarpi Nikolopoulos
Chapter 13
#91.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment Pursuant to 11 USC Sec. 1329(a) and the Percentage to be
Paid to Unsecured Creditors or, in the Alternative, Dismissing the Chapter 13 Petition Due to Debtrors' Failure to Make Debtors' Best Efforts to Repay Creditors Pursuant to 11 USC Sec. 1307(c)(6)
fr. 12/17/19; 1/28/20
Docket 55
Tentative Ruling:
Cont’d. fr. 1.28.2020
Debtors filed amended schedules I & J.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Jim K. Nikolopoulos Represented By Scott D Olsen
Joint Debtor(s):
Ayarpi Nikolopoulos Represented By Scott D Olsen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10898
Jacqueline Desiree Landaeta Alvarez
Chapter 13
#92.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/20/19, 9/24/19, 12/17/19; 1/28/20
Docket 113
Tentative Ruling:
Cont’d. fr. 1.28.2020
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Jacqueline Desiree Landaeta Alvarez Represented By
Matthew D Resnik Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11278
Armine Charkhchyan and Andranik Charkhchyan
Chapter 13
#93.00 Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 10/22/19, 12/17/19; 1/28/20
Docket 73
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Armine Charkhchyan Represented By
Rosie Barmakszian
Joint Debtor(s):
Andranik Charkhchyan Represented By
Rosie Barmakszian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11356
Denny Tedesco and Suzie Tedesco
Chapter 13
#94.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 11/19/19; 1/28/20
Docket 81
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #92. lf Tentative Ruling:
Party Information
Debtor(s):
Denny Tedesco Represented By Kevin T Simon
Joint Debtor(s):
Suzie Tedesco Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11542
Dolores Margaret Lomeli
Chapter 13
#95.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 76
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Dolores Margaret Lomeli Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12085
Arthur H. Song
Chapter 13
#96.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 12/17/19; 1/28/20
Docket 34
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Arthur H. Song Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12201
Andrea Beckham
Chapter 13
#97.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/22/19, 12/17/19; 1/28/20
Docket 42
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Andrea Beckham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12216
Sarkis Ohannes Mouchmouchian
Chapter 13
#98.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 10/22/19, 11/19/19; 1/28/20
Docket 44
*** VACATED *** REASON: T’ee. withdrew [#66] - ts Tentative Ruling:
Party Information
Debtor(s):
Sarkis Ohannes Mouchmouchian Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12264
Alicia Butterfield
Chapter 13
#99.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 11/19/19; 1/28/20
Docket 62
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Alicia Butterfield Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12275
Cecilia Arrieta
Chapter 13
#100.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All
Tax Refunds
fr. 12/17/19; 1/28/20
Docket 27
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Cecilia Arrieta Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12400
Daniel Robert Eaton and Linell Zuidema Eaton
Chapter 13
#100.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 105
Tentative Ruling:
Debtors oppose and explain that they will be current on or before the hearing. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Daniel Robert Eaton Represented By
Rabin J Pournazarian
Joint Debtor(s):
Linell Zuidema Eaton Represented By
Rabin J Pournazarian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12613
Susan Griffin
Chapter 13
#101.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 11/19/19; 1/28/20
Docket 50
Tentative Ruling:
Cont’d. fr. 1.28.2020
Debtor has not yet filed a motion to modify. The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Susan Griffin Represented By
Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12860
Erika Urrego
Chapter 13
#102.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20
Docket 38
*** VACATED *** REASON: Ntc. of w/drawal filed on 1/30/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Erika Urrego Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12860
Erika Urrego
Chapter 13
#103.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20
Docket 38
*** VACATED *** REASON: Duplicated of #102 Tentative Ruling:
Party Information
Debtor(s):
Erika Urrego Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12904
Maria Teresa Pedalino
Chapter 13
#104.00 Application of Attorney for Debtor for Additional Fees and Related Expenses in a Pending Chapter 13 Case Subject to a Rights and Responsibilities Agreement
Docket 34
Tentative Ruling:
Debtor’s former attorney became ineligible to practice law and self-terminated from Debtor’s case on 11.1.2019. Debtor’s current attorney requests $2,500 in additional fees for additional services. Trustee does not recommend approving the additional fees because the prior attorney RARA was for $3,500; the prior attorney was paid
$2,500 through the Plan; this application does not include an accounting of time; and this application is for future work and not for work already performed. Trustee requests that Debtor’s attorney submit supplemental fee applications as the work is performed.
Will Chapter 13 Trustee seek to disgorge any of original attorney fee? APPEARANCE REQUIRED.
Party Information
Debtor(s):
Maria Teresa Pedalino Represented By David H Chung
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12904
Maria Teresa Pedalino
Chapter 13
#105.00 Application for Compensation for David H Chung Period: to, Fee: $2500, Expenses: $.
Docket 34
*** VACATED *** REASON: Duplicate to #104.
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Maria Teresa Pedalino Represented By David H Chung
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13053
Pablo Arreola
Chapter 13
#106.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
Docket 64
*** VACATED *** REASON: Ntc. of w/drawal filed on 1/30/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Pablo Arreola Represented By
Eric Bensamochan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13250
Robert Michael Martinez
Chapter 13
#107.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19
Docket 93
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Robert Michael Martinez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13250
Robert Michael Martinez
Chapter 13
#108.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 12/17/19
Docket 84
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Robert Michael Martinez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13537
Tillman Pink, III
Chapter 13
#109.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 47
Tentative Ruling:
Debtor opposes stating that he has tendered the $618 deficiency. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Tillman Pink III Represented By Anil Bhartia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13555
Carlos M Jimenez Cuellar and Nicole Cuellar
Chapter 13
#110.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 11/19/19; 1/28/20
Docket 28
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #37. lf Tentative Ruling:
Party Information
Debtor(s):
Carlos M Jimenez Cuellar Represented By Marlin Branstetter
Joint Debtor(s):
Nicole Cuellar Represented By Marlin Branstetter
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10032
Michael Klapsis and Marina Klapsis
Chapter 13
#111.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 36
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Michael Klapsis Represented By Devin Sawdayi
Joint Debtor(s):
Marina Klapsis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10080
Jesse Farran
Chapter 13
#112.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 60
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Jesse Farran Represented By
Janet L Mertes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10164
Christy Ann Nelson
Chapter 13
#113.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 86
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Christy Ann Nelson Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10297
Felix Ray Wright
Chapter 13
#114.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 12/17/19
Docket 145
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Felix Ray Wright Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10353
Annette Sanders-Wright
Chapter 13
#115.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 51
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Annette Sanders-Wright Represented By Dana C Bruce
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10479
Felipe Rosas
Chapter 13
#116.00 Trustee Motion to Dismiss for Failure to Submit All Tax Refunds
Docket 42
Tentative Ruling:
No opposition filed. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Felipe Rosas Represented By
Mark M Sharf
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10545
Mario Rene Tejada
Chapter 13
#117.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 7/30/19; 8/20/19, 10/22/19; 12/17/19; 1/28/20
Docket 109
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Mario Rene Tejada Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10811
Daniel Mora
Chapter 13
#118.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 38
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Daniel Mora Represented By
Axel H Richter
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10856
Marian Woods and Timothy Woods
Chapter 13
#119.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 45
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2019 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Marian Woods Represented By Aalok Sikand
Joint Debtor(s):
Timothy Woods Represented By Aalok Sikand
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11130
Monet R Davis
Chapter 13
#120.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 32
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2019 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Monet R Davis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#121.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 7/30/19, 9/24/19, 11/19/19, 12/17/19
Docket 50
Tentative Ruling:
Cont’d. fr. 12.17.2019
At the last hearing the Trustee indicated that Debtor is $24,307 delinquent and that the issue with BoNYM must be resolved first before Debtor can modify the Plan.
Debtor stated that BoNYM is reviewing the stipulation. Debtor seeks to modify her loan with BoNYM.
Debtor has withdrawn its objection to BoNYM’s proof of claim. U.S. Bank’s RFS motion is scheduled for 2.26.2020.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Linda Akerele Alele Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11732
Anthony Antoniello and Tamara Marie Antoniello
Chapter 13
#122.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 12/17/19
Docket 93
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2019 hearing was continued. On 1.15.2020, Creditor JP Morgan Chase filed a RFS motion, which is set for hearing on 2.26.2020. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Anthony Antoniello Represented By Kevin T Simon
Joint Debtor(s):
Tamara Marie Antoniello 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
1:17-11732
Anthony Antoniello and Tamara Marie Antoniello
Chapter 13
#123.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 91
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2019 hearing was continued. On 1.15.2020, Creditor JP Morgan Chase filed an RFS motion, which is set for hearing on 2.26.2020. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
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
1:17-11777
Cindy Lee Harris
Chapter 13
#124.00 Motion to Dismiss Case for Failure to Make
Plan Payments F Rojas (TR) (Rojas (TR), Elizabeth (SV)) fr. 12/17/19
Docket 68
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2019 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Cindy Lee Harris Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11995
Priscilla Jeanette Bueno
Chapter 13
#125.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 55
Tentative Ruling:
Cont’d. fr. 12.17.2019
The 12.17.2019 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Priscilla Jeanette Bueno Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12102
Arman Tombakian
Chapter 13
#126.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 11/19/19; 1/28/20
Docket 62
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Arman Tombakian Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12270
Alejandra Castellanos
Chapter 13
#127.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 40
*** VACATED *** REASON: Ntc. of w/drawal filed 2/13/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Alejandra Castellanos Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12322
Steven Ronan and Claudia Ronan
Chapter 13
#128.00 Trustee Motion for Order Dismissing Case due to Failure to submit Tax Returns
fr. 1/28/20
Docket 87
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. An order was entered granting Trustee’s motion to dismiss this case for failure to make plan payments. This motion is denied as moot. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Steven Ronan Represented By
R Grace Rodriguez
Joint Debtor(s):
Claudia Ronan Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12363
Janice Marie Semien
Chapter 13
#129.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 52
Tentative Ruling:
Cont’d. fr. 12.17.2019
Debtor filed a motion to modify to suspend 2017 and 2018 tax returns. Trustee opposed because Debtor allegedly has sufficient income to pay. On 2.21.2020, Trustee and Debtor stipulated to increase Plan payments and for Debtor to pay all bonuses net of taxes into the Plan. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Janice Marie Semien Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12363
Janice Marie Semien
Chapter 13
#130.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 1/28/20
Docket 58
Tentative Ruling:
Cont’d. fr. 1.28.2020
Debtor filed a motion to modify to suspend 2017 and 2018 tax returns. Trustee opposes because Debtor allegedly has sufficient income to pay. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Janice Marie Semien Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12376
Abdolvahab Pourvasei
Chapter 13
#131.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 105
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Abdolvahab Pourvasei Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12596
Lynne Suzanne Boyarsky
Chapter 13
#132.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 83
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #91. lf Tentative Ruling:
Party Information
Debtor(s):
Lynne Suzanne Boyarsky Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12666
Francisco Guerrero
Chapter 13
#133.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
Docket 43
Tentative Ruling:
Debtor opposes stating that he will provide the refunds for the 2017 and 2018 tax years totaling $6,716 before the hearing or he will file a motion to modify.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Francisco Guerrero Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13139
Mariane Del Mundo Laya
Chapter 13
#134.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 10/22/19, 11/19/19; 1/28/20
Docket 31
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #37. lf Tentative Ruling:
Party Information
Debtor(s):
Mariane Del Mundo Laya Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13196
Isaac Nessim Azoulay
Chapter 13
#135.00 Chapter 13 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 11/19/19; 1/28/20
Docket 49
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. Debtor filed a declaration re: current postpetition income and expenses. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Isaac Nessim Azoulay Represented By Steven L Bryson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13365
Sundara Devananda Rao
Chapter 13
#136.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20
Docket 57
Tentative Ruling:
Cont’d. fr. 1.28.2020
No opposition filed. The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Sundara Devananda Rao Represented By William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#137.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20
Docket 85
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#138.00 Motion under Local Bankruptcy Rule 3015-1 (n) and (w) to modify plan or suspend plan payments
fr. 12/17/19; 1/28/20
Docket 89
Tentative Ruling:
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10004
Cynthia Deniese Sanders
Chapter 13
#139.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
Docket 74
Tentative Ruling:
No opposition filed. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Cynthia Deniese Sanders Represented By Frank X Ruggier
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10018
Betty D Frey
Chapter 13
#140.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/20/19, 10/22/19; 12/17/19; 1/28/20
Docket 72
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #85. lf Tentative Ruling:
Party Information
Debtor(s):
Betty D Frey Represented By
Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10407
Jose Galindo, Jr
Chapter 13
#141.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 49
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Jose Galindo Jr Represented By Karine Karadjian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#142.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20
Docket 45
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Marvin Eleid Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10891
Hamid Farkhondeh
Chapter 13
Adv#: 1:18-01067 Laaly et al v. Farkhondeh et al
#143.00 Status conference re complaint for:
dischargeability of debt for false pretenses
false representations, and/or actual fraud
objection to debtors' discharge, pursuant to 523 and 727 of the bankruptcy code
fr. 8/8/18; 12/12/18; 4/10/19; 4/23/19, 6/25/19; 8/20/19, 9/24/19, 11/19/19 1/28/20
Docket 1
Tentative Ruling:
Cont’d. fr. 1.28.2020
Joint SR filed 1.17.2020. State court’s final judgment filed. The state court held a bench trial and rendered judgment in favor of Creditors, Noushin Laaly and Kourosh Laaly, and against Hamid Farkhondeh and his defunct corporation, DAF Construction, Inc., in the amount of $501,934.17 plus $146,351 in costs and attorney’s fees, for a total amount of $662,416.38. The state court found in favor of Mary Dadyan and Creditors indicated that they will dismiss the complaint as to Ms. Dadyan. Debtor withdrew the objection to claim. Discovery can commence. It will be determined whether an evidentiary hearing is required at this hearing.
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hamid Farkhondeh Pro Se
Defendant(s):
Hamid Farkhondeh Pro Se
Mary Dadyan Pro Se
Joint Debtor(s):
Mary Dadyan Pro Se
11:00 AM
CONT...
Hamid Farkhondeh
Chapter 13
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
1:18-11080
Rafael Huerta
Chapter 13
#144.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19; 1/28/20
Docket 31
*** VACATED *** REASON: T’ee withdrew [#38] -ts Tentative Ruling:
Party Information
Debtor(s):
Rafael Huerta Represented By William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11140
Dahlia J-nai Jones
Chapter 13
#145.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 60
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Dahlia J-nai Jones Represented By Erika Luna
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11221
Marlene Benyamine
Chapter 13
#146.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 61
*** VACATED *** REASON: Ntc. w/drawal filed 2/7/10 (eg) Tentative Ruling:
Party Information
Debtor(s):
Marlene Benyamine Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11247
Sabrina Loralyn Samuel-Lawton
Chapter 13
#147.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 69
*** VACATED *** REASON: Trustee withdrew [#74]-ts Tentative Ruling:
Party Information
Debtor(s):
Sabrina Loralyn Samuel-Lawton Represented By
Barry E Borowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11512
Donna Mapile
Chapter 13
#148.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All
Tax Refunds
fr. 12/17/19; 1/28/20
Docket 33
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Donna Mapile Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11528
Heather Lynn Brezny
Chapter 13
#149.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 30
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #37. lf Tentative Ruling:
Party Information
Debtor(s):
Heather Lynn Brezny Represented By
Richard A Brownstein
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11558
Paymaun Jafari
Chapter 13
#150.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 44
*** VACATED *** REASON: Trustee filed a withdrawal - doc. #51. lf Tentative Ruling:
Party Information
Debtor(s):
Paymaun Jafari Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11672
Artura Flores and Rosalba Rubalcaba
Chapter 13
#151.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 12/17/19; 1/28/20
Docket 33
*** VACATED *** REASON: Ntc. of w/drawal filed 2/13/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Artura Flores Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Rosalba Rubalcaba Represented By Rebecca Tomilowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11718
James Sarkis Giritlian and Joan Schaeffer Giritlian
Chapter 13
#152.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 1/28/20
Docket 56
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #64. lf Tentative Ruling:
Party Information
Debtor(s):
James Sarkis Giritlian Represented By Daniel King
Joint Debtor(s):
Joan Schaeffer Giritlian Represented By Daniel King
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12016
Gregory Bernard Walker and Brenda Yvonne Walker
Chapter 13
#153.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 6/25/19, 7/30/19; 8/20/19, 10/22/19, 12/17/19
Docket 60
Tentative Ruling:
Cont’d. fr. 12.17.2019
Debtor’s motion to modify was approved. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Gregory Bernard Walker Represented By Thomas B Ure
Joint Debtor(s):
Brenda Yvonne Walker Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12042
Vrej Anbarsoun and Anahid Anbarsoun
Chapter 13
#154.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 58
Tentative Ruling:
Debtors oppose stating that they have filed a revised motion to modify. Trustee disapproves of Debtors’ motion to modify because (1) Debtors’ income has not decreased since the bankruptcy case’s filing to justify Debtors not making for 6 months then reducing payments from $1,380 to $707 monthly; (2) there has been no actual change in circumstances; and (3) the parties have been unable to resolve issues regarding best efforts. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Vrej Anbarsoun Represented By David A Tilem Donna R Dishbak
Joint Debtor(s):
Anahid Anbarsoun Represented By David A Tilem Donna R Dishbak
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12231
Manouchehr Kouchakali
Chapter 13
#155.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
Docket 60
*** VACATED *** REASON: Ntc. of w/drawal filed 2/13/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Manouchehr Kouchakali Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12323
Ruben Lepe, Jr. and Lucy Ivette Salazar
Chapter 13
#156.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 50
*** VACATED *** REASON: Ntc. of w/drawal filed 2/4/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ruben Lepe Jr. Represented By Tamar Terzian
Joint Debtor(s):
Lucy Ivette Salazar Represented By Tamar Terzian
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12653
Rolando Drilon Quimson
Chapter 13
#157.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 46
Tentative Ruling:
Cont’d. fr. 1.28.2020
Debtor opposes. Debtor filed two motions to modify, which appear to be identical [# 54 & 55]. Trustee approved both motions to modify. The court entered an order approving the motion to modify [#55]. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Rolando Drilon Quimson Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12708
Jose Estrada
Chapter 13
#158.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/24/19, 11/19/19; 1/28/20
Docket 47
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #58. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jose Estrada Represented By
Erika Luna
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12737
Craig A. Lapiner
Chapter 13
#159.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/22/19, 12/17/19
Docket 65
*** VACATED *** REASON: Trustee filed a withdrawal - doc. #88. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Craig A. Lapiner Represented By Eliza Ghanooni
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12843
Francisco Romero
Chapter 13
#160.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 50
Tentative Ruling:
Debtor opposes stating that he will bring receipts of payments to the hearing or file a motion to modify. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Francisco Romero Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-13035
Rolando M Rodriguez
Chapter 13
#160.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 34
Tentative Ruling:
Debtor opposes and states that he remitted $6,573.84 on 2.7.2020. Has Trustee received the payments? APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Rolando M Rodriguez Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10003
Edwin E. Vidanez
Chapter 13
#161.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 25
Tentative Ruling:
Debtor opposes. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Edwin E. Vidanez Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10130
Bonnie Kay Lopez
Chapter 13
#162.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 30
*** VACATED *** REASON: Ntc. of w/drawal filed 2/13/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Bonnie Kay Lopez Represented By
Raj T Wadhwani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10310
Daniel Macias Castellanos
Chapter 13
#163.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 50
*** VACATED *** REASON: Ntc. of w/drawal filed 2/7/10 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Daniel Macias Castellanos Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10611
Juan Manuel Arias
Chapter 13
#164.00 Motion For Allowance and Payment of Administrative Expense
fr. 1/28/20
Docket 31
Tentative Ruling:
Cont’d. fr. 1.28.2020
At the last hearing, Debtor’s counsel indicated that Debtor could not file an opposition because he is out of the country. The issue of the Creditor’s duty to mitigate was an issue. The court instructed the parties to file the Response by February 7, 2020 and the Reply by February 14, 2020. APPEARANCE REQUIRED.
Party Information
Debtor(s):
Juan Manuel Arias Represented By Jaime A Cuevas Jr.
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10664
Bridget G Moran Smith
Chapter 13
#165.00 Motion RE: Objection to Claim Number 3 by Claimant U.S. Bank, National Association, et al. c/o PHH Mortgage Corporation, its Successors and/or Assigns.
fr. 7/30/19; 8/20/19; 10/22/2019; 12/17/19
Docket 26
Tentative Ruling:
Cont’d. fr. 12.17.2019
Both the 10.22.2019 and 12.17.2019 hearings were continued. On 2.4.2020, the court entered an order requiring U.S. Bank to submit to an examination under FRBP 2004 and to produce documents. Creditor was ordered to appear on 3.5.2020 at the office of Debtor’s counsel for the examination and to produce all documents necessary to complete accounting of Debtor’s loan.
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Bridget G Moran Smith Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10789
Carmen Ivy Garcia-Torres
Chapter 13
#166.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 47
Tentative Ruling:
Debtor opposes stating that she will file a motion to modify or suspend payments to cure the delinquency.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Carmen Ivy Garcia-Torres Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10996
Aida Asturias
Chapter 13
#167.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 41
Tentative Ruling:
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Aida Asturias Represented By Anerio V Altman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11288
Ronald Harris Gladle
Chapter 13
#168.00 Motion to Avoid Lien JUNIOR LIEN with Wells Fargo Bank, N.A.
3rd TD on 22344 Burton Street, Canoga Park, CA 91304
fr. 7/30/19, 9/24/19, 10/22/19, 1/28/20
Docket 23
*** VACATED *** REASON: Continued to 3.31.2020 at 11:00 a.m. -ts Tentative Ruling:
Party Information
Debtor(s):
Ronald Harris Gladle Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11288
Ronald Harris Gladle
Chapter 13
#169.00 Motion to Avoid Lien JUNIOR LIEN with Wells Fargo Bank, N.A.
2nd TD on 22344 Burton Street, Canoga Park, CA 91304
fr. 7/30/19, 9/24/19, 10/22/19; 1/28/20
Docket 22
Tentative Ruling:
Cont’d. fr. 1.28.2020
Wells Fargo did not oppose this Motion but opposed #168 above.
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.
Party Information
Debtor(s):
Ronald Harris Gladle Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11301
Robert Benjamin Sautter
Chapter 13
Adv#: 1:19-01074 Sautter v. Santa Fe General Construction, Inc., a California
#170.00 Status Conference re: Complaint for: 1) Fraud;
Civil Conspiracy;
Expungment of Mechanics Liens
Quiet Title;
Cancellatio of Instruments;
Slander of Title; 7) Elder Abuse;
Declaratory Relief
Injunctive Relief
fr; 8/21/19, 11/6/19, 12/18/19
Docket 1
Tentative Ruling:
The court entered default judgement in favor of Plaintiff for the following causes of action: following cause of action: (1) fraud; (2) expungement of mechanic’s liens; (3) quiet title; (4) cancellation of instruments; (5) slander of title; and (6) elder abuse.
Plaintiff filed a supplemental memorandum of points and authorities in support of his claim for damages. Attorney fees of $17,129 are awarded for the action. Plaintiff should submit the judgement and order.
NO OPPOSITION. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Robert Benjamin Sautter Represented By Matthew D Resnik
Defendant(s):
Santa Fe General Construction, Inc., Pro Se Jubilio Escalera Pro Se
Chaidez Construction, Inc. Pro Se
Cesar Chaidez Pro Se
11:00 AM
CONT...
Robert Benjamin Sautter
Chapter 13
Lorena Lara Pro Se
Humberto Lara Pro Se
John White Pro Se
Plaintiff(s):
Robert Benjamin Sautter Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11717
Lois Ann Harris
Chapter 13
#171.00 Motion to Avoid Junior Lien on Principal Residence [11 U.S.C. § 506(d)] : 6828 Laurel Canyon Blvd.,
Unit 102, North Hollywood, CA 91605 fr. 9/24/19, 11/19/19; 1/28/20
Docket 30
Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued per stipulation. APPEARANCE REQUIRED.
Party Information
Debtor(s):
Lois Ann Harris Represented By Matthew D Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12796
Walter Garcia
Chapter 13
#172.00 Trustee's Objection to Debtor's Claim of Exemption
Docket 15
Tentative Ruling:
Trustee objects to Debtor's request to exempt $175,999.77 of equity in real property located at 8414 Wystone Avenue, Northridge, CA 91324 under C.C.P. § 704.950 because Trustee asserts that Debtor has not provided evidence that he is entitled to this exemption.
Service proper. No opposition filed.
Objection SUSTAINED. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Walter Garcia Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12798
Jonathan Emrys
Chapter 13
#173.00 Trustee's Objection to Debtor's Homestead Exemption
Docket 21
*** VACATED *** REASON: Ntc. of w/drawal filed 2/24/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Jonathan Emrys Represented By Stephen Parry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12800
Mansour Hossein Barghi
Chapter 13
#174.00 Trustee's Objection to Debtor's Homestead Exemption
Docket 33
Tentative Ruling:
Trustee objects to Debtor’s claimed exemption of $100,000 of equity in real property located at 4880 Winnetka Avenue, Woodland Hills, CA 91342 under CCP § 704.730.
On 2.1.2020, Debtor requested to voluntarily dismiss the bankruptcy case, and the court entered an order dismissing the case on 2.11.2020.
The Motion is denied as moot. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Mansour Hossein Barghi Represented By Hayk Grigoryan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12972
Martha Alicia Ybanez
Chapter 13
#175.00 Motion For Order Compelling Attorney To File Disclosure Of Compensation And Disgorgement Of Fees Pursuant To 11 U.S.C. § 329
Docket 20
*** VACATED *** REASON: OUST filed a withdrawal Doc. #24. lf Tentative Ruling:
Party Information
Debtor(s):
Martha Alicia Ybanez Represented By Dana M Douglas
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13000
Anna Kara
Chapter 13
#176.00 Motion For Order Compelling Attorney To
File Disclosure Of Compensation And Disgorgement Of Fees Pursuant To 11 U.S.C. § 329
Docket 12
*** VACATED *** REASON: OUST filed a withdrawal - Doc. #15. lf Tentative Ruling:
Party Information
Debtor(s):
Anna Kara Represented By
Aris Artounians
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13069
Kenneth Lee Altbush
Chapter 13
#177.00 Motion for Order Determining Value of Collateral (2002 Toyota Sequoia)
fr. 1/28/20
Docket 24
*** VACATED *** REASON: Resolved per stipulation [#36]-ts Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Kenneth Lee Altbush Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10040
Giovanni Garofoli
Chapter 13
#178.00 Debtor's Motion to Avoid Junior Lien Junior on Principal Residence with Trinity Financial Services, Inc.
Docket 14
Tentative Ruling:
Service: Proper. No opposition filed.
Property Address: 7814 Vicky Avenue, Canoga Park, CA 91394 First trust deed: $625,799.00 (Specialized Loan Servicing)
Second trust deed (to be avoided): $83,899.00 (Trinity Financial Services, Inc.) Fair market value per appraisal: $619,000
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.
Party Information
Debtor(s):
Giovanni Garofoli Represented By
D Justin Harelik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11380
Maria Magdalena Carmona
Chapter 13
#179.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 78
Tentative Ruling:
Debtor opposes and explains that she fell behind on payments because she faced financial difficulties and that she intends to bring her Plan current on or before the hearing. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Maria Magdalena Carmona Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10351
Robert William Brown, Sr.
Chapter 13
#0.01 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 0
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Robert William Brown Sr. Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10350
Ira Michael Harrison
Chapter 13
#0.02 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 8
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Ira Michael Harrison Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10323
Alfonso Alvarado
Chapter 13
#0.03 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 9
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Alfonso Alvarado Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10332
Arthur James Summroell
Chapter 13
#0.04 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 8
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Arthur James Summroell Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10232
Avedis Harold Hakopian
Chapter 13
#0.05 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 8
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Avedis Harold Hakopian Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10246
Angele Lang
Chapter 13
#0.06 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 9
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Angele Lang Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-10545
Mario Rene Tejada
Chapter 13
#1.00 Motion for relief from stay US BANK NA
fr. 1/29/20
Docket 116
*** VACATED *** REASON: Resolved per APO (doc. 120) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mario Rene Tejada Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11120
Jennifer H. Nguyen
Chapter 13
#2.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
Docket 48
Tentative Ruling:
Petition Date: 4/28/2017
Ch.13; confirmed on 10/12/2017.
Service: Proper; Co-debtor served. No opp filed. Property: 7968 Fairchild Avenue, Los Angeles, CA 91306 Property Value: $ 600,000
Amount Owed: $ 409,247.60 Equity Cushion: 31.8% Equity: $190,725.04.
Post-Petition Delinquency: $52,551.33 (7 payments of $2,616.89 + 5 payments of
$2,879.05 + 7 payments of $3,036.53 less suspense balance of $1,417.86)
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 (co-debtor stay is terminated) and 7 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment of $2,813.00 was received was on or about 2/21/2019.
There appears to be a sufficient amount of equity here, but the deficiency is large; have the parties had an opportunity to discuss if an APO is appropriate?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Jennifer H. Nguyen Represented By Rob R Nichols
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#3.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION
fr. 12/11/19, 1/29/20
Docket 74
Tentative Ruling:
This hearing was continued from 1/29/20, so that the parties could work on a loan modification. Nothing else has been filed related to this Motion. What is the status of this matter?
APPEARANCE REQUIRED 12/11/19 TENATIVE BELOW
Petition Date: 6/19/17
Chapter 13 plan confirmed: 11/14/17
Service: Proper; co-debtor served. Opposition filed. Property: 18795 Kenya St. Northridge, CA 91326
Property Value: $900,000 (per Debtor's declaration ISO Opposition) Amount Owed: $631,126
Equity: $268,874
Post-Petition Delinquency: $8,228.36 (3 payments of $2,836.14; less suspense balance of $280.06)
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 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that Movant has been misapplying payments, making it seem as if there is a delinquency when there is not. Debtor contends that she has made more payments than have been accounted for in the Motion. Have the parties had an opportunity to discuss the accounting?
Party Information
10:00 AM
CONT...
Debtor(s):
Linda Akerele Alele
Chapter 13
Linda Akerele Alele Pro Se
Movant(s):
U.S. Bank National Association, as Represented By
Josephine E Salmon Arnold L Graff Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11229
Patrick Joseph Soria
Chapter 11
#4.00 Motion for relief from stay BANK OF AMERICA, N.A. FR. 1/8/20
Docket 22
Tentative Ruling:
This hearing was continued since 1/8/20 due to the District Court having granted a motion to suspend the bankruptcy under 11 U.S.C. 305(a)(1), ECF doc. 20. Nothing has been filed since the last hearing. Does Movant intend to go forward with this Motion, given the procedural posture of this case?
APPEARANCE REQUIRED
1-8-2020 TENTATIVE BELOW
Petition Date: 5-11-2018
Chapter: 11
Service: Proper. No opposition filed.
Property: 1350 S. Towne Ave., Pomona, CA 91766 Property Value: $475,000 (per Movant’s Motion) Amount Owed: $641,484.59
Equity Cushion: 0.0% Equity: $0
Post-Petition Delinquency: $ n/a
Other: $122,751.43 payments overdue or 44 late payments.
Movant alleges the following: That on June 15, 2017, West H&A LLC filed a Statement of Information with the California Secretary of State listing Debtor as chief executive officer. On June 16, 2017, an unauthorized Assignment of Deed of Trust was fraudulently executed and subsequently recorded, which purports to assign the Movant’s interest in the Deed of Trust. Debtor signed the document in his capacity as "Member of Assignee, West H&A LLC."
On June 25, 2017, an unauthorized Substitution of Trustee was fraudulently executed and recorded, which purports to substitute "Warranted Effectuation of
10:00 AM
CONT...
Patrick Joseph Soria
Chapter 11
Substitute Transferee Inc" as the foreclosure trustee under Movant’s Deed of Trust. Debtor executed the document in his capacity as "Member of Current Beneficiary: West H&A LLC."
On July 6, 2017, an unauthorized Trustee’s Deed Upon Sale was fraudulently executed and recorded, which purports to transfer title to the Property to West H&A LLC.
On April 11, 2018, Nationstar Mortgage, LLC filed a complaint in the U.S. District Court Central District of California against Debtor, West H&A LLC, and others for alleged violations of the Racketeering Influenced Corrupt Organizations Act; the California Business & Professions Code; the Lanham Act; and other statutes. The district court entered an order establishing that Debtor engaged in "knowing fraud that victimizes financial institutions, investors, and the public." On May 7, 2018, the district court also entered an order for a preliminary injunction and appointed a permanent receiver. Debtor filed his bankruptcy petition four days later on May 11, 2018.
Disposition: GRANT relief requested under 11 U.S.C. 362(d)(1) and (d)(2). GRANT specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)(4)); 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.
Party Information
Debtor(s):
Patrick Joseph Soria Represented By Sandford L. Frey
10:00 AM
1:18-12737
Craig A. Lapiner
Chapter 13
#5.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO.
Docket 85
*** VACATED *** REASON: SETTLED BY STIP - TS
Tentative Ruling:
Party Information
Debtor(s):
Craig A. Lapiner Represented By Eliza Ghanooni
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12917
Sohail Mobasseri
Chapter 7
#6.00 Motion for relief from stay TOYOTA LEASE TRUST
Docket 40
Tentative Ruling:
Petition Date: 12/5/2018 Chapter: 7
Service: Proper. No opposition filed. Property: 2017 Toyota Camry Property Value: $ unk. (lease) Amount Owed: $ 15,822.66
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $15,822.66 (purchase option at end of lease) Debtor made all payments and the lease matured in January 2020.
Motion GRANTED 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).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Sohail Mobasseri Represented By Dana M Douglas
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:19-10598
Debra J DeVictoria
Chapter 13
#7.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOCIATION
Docket 26
Tentative Ruling:
Petition Date: 03/14/2019 Ch.13; confirmed on 06/04/2019
Service: Proper. No opposition filed.
Property: 22922 Avenue San Luis, Los Angeles CA 91364 Property Value: $ 668,000
Amount Owed: $ 418,572.52 Equity Cushion: 37.3% Equity: $249,428.00.
Post-Petition Delinquency: $13,188.21 (5 payments of $2,439.69 + Attorneys' fees of $1,231.00 less suspense balance of $241.24).
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 of $2,500 was received was on or about 09/20/2019.
There appears to be a sufficient amount of equity here. Have the parties had an opportunity to discuss if an APO is appropriate?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Debra J DeVictoria Represented By Kenneth H J Henjum
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10996
Aida Asturias
Chapter 13
#8.00 Motion for relief from stay
NEWREZ DBA SHELLPOINT MORTGAGE
fr. 12/4/19, 1/29/20
Docket 36
Tentative Ruling:
Continued from 1/29/2020 because parties were discussing curing the deficiency in an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
12-4-19 Tentative Below:
Petition Date: 4-24-2019
Chapter 13 Plan Confirmed: 9-18-2019 Service: Proper. Opposition filed.
Property: 13070 Foothill Blvd., Sylmar, CA 91342 Property Value: $559,000 (per debtor’s schedules) Amount Owed: $399,843.87
Equity Cushion: 20.0% Equity: $159,156.13
Post-Petition Delinquency: $9,222.23 (6 late payments of $1,844.03 each)
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); 7 (waiver of the 4001(a)(3) stay); and 13 (if stay not granted, order APO).
Debtor opposed explaining that all postpetition arrears will be cured by the hearing date.
Party Information
Debtor(s):
Aida Asturias Represented By
10:00 AM
CONT...
Movant(s):
Aida Asturias
Anerio V Altman
Chapter 13
The Bank of New York Mellon FKA Represented By
Stephen T Hicklin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11076
Rufina Vasquez
Chapter 13
#9.00 Motion for relief from stay TOYOTA LEASE TRUST
Docket 26
Tentative Ruling:
Petition Date: 5/1/2019
Chapter: 13; confirmed on 8/15/2019 Service: Proper. No opposition filed. Property: 2018 Toyota Corrolla Property Value: $ unk. (Lease).
Amount Owed: $ 14,583.60 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $14,583.60 (lease end option-to-purchase amount)
Movant alleges that the last payment of $412.24 was received on or about 11/13/2019. Lease was matured on 12/18/19.
GRANT 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).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Rufina Vasquez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11874
Lisa M. Bueno
Chapter 13
#10.00 Motion for relief from stay
THE BANK OF NEW YOURK MELLON
fr. 1/29/20
Docket 25
*** VACATED *** REASON: Ntc. of w/drawal filed 2/20/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Lisa M. Bueno Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12108
Tina Michell Ramsey
Chapter 7
#11.00 Motion for relief from stay OSM BURNET HOMES LP
Docket 19
Tentative Ruling:
Petition Date: 08/22/2019 Ch: 7
Service: Proper. No opposition filed. Movant: OSM Burnet Homes LP
Property Address: 15221 Villagio Way, North Hills, CA 91343 Type of Property: Residential
Occupancy: Unlawful Detainer Foreclosure Sale:
UD case filed: 09/23/2019 (without knowledge of the bankruptcy). UD Judgment: N/A
Movant alleges that debtor failed to pay monthly rent of $3,195.00 beginning on 9/01/2019. Movant alleges that it initiated an unlawful detainer proceeding on 09/2319 without knowledge of the bankruptcy. Movant requests annulment of the automatic stay as it was not notified nor aware of the BK filing until on or about November 13, 2019, when Movant received a fax from Debtor's Attorney.
Disposition: GRANT under 11 U.S.C. 362(d)(1); (d)(2), with specific relief as requested in paragraphs 2 (proceed under non-bankruptcy law), 4 (stay is annulled retroactive to bankruptcy petition date) and 6 (waiver of 4001(a)(3) stay). Under (d2), movant alleges that Debtor has no equity and property is not necessary to an effective reorganization.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Tina Michell Ramsey Represented By Allan S Williams
10:00 AM
CONT...
Trustee(s):
Tina Michell Ramsey
Chapter 7
Diane C Weil (TR) Pro Se
10:00 AM
1:19-12329
Leticia E. Donis Duran
Chapter 13
#12.00 Motion for relief from stay LAKEVIEW LOAN SERVICING LLC
Docket 27
Tentative Ruling:
Petition Date: 09/16/2019
Ch.: 13. Plan Confirmed on 01/03/2020. Service: Proper. Opposition filed on 02/11/2020. Property: 14262 Berg St., Sylmar, CA 91342
Property Value: $588,124.00 (per Debtor’s declaration attached to Debtor's opposition)
Amount Owed: $295,244.39 (including principal, interest, and fees) Equity Cushion: 49.8%
Equity: $292,880.00 (per Debtor's declaration attached to Debtor's opposition) Post-Petition Delinquency: $5,337.98 (3 postpetition preconfirmation payments of
$2,665.63, less suspense of $2,658.91)
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 4001(a)(3) stay). Movant alleges that the last payment of $2,662.27 was received on 12/24/2019.
Debtor opposes, asserting that Movant is adequately protected, and asks for a 12- month APO to repay her postpetition arrears. Debtor alleges that she tendered her 1st postpetition mortgage payment in October 2019 and that she is presently looking for evidence of that payment. Debtor alleges that she reasonably believed she was making complete mortgage payments.
There appears to be a sufficient amount of equity here. Have the parties had an opportunity to discuss if an APO is appropriate?
APPEARANCE REQUIRED
Party Information
10:00 AM
CONT...
Debtor(s):
Leticia E. Donis Duran
Chapter 13
Leticia E. Donis Duran Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12393
Amy Volker
Chapter 7
#13.00 Motion for relief from stay 924 CARONDELET LLC
Docket 20
Tentative Ruling:
Petition Date: 09/23/2019 Ch.: 7.
Service: Proper. No opposition filed.
Movant: 924 Carondelet, LLC (owner of Property)
Property Address: 924 S. Carondelet St., Unit #419, Los Angeles, CA 90006 Type of Property: Residential
Occupancy: Leasehold Interest Foreclosure Sale: Not Applicable UD case filed: 09/24/2019
UD Judgment: Not rendered
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law), 4 (annulment of stay retroactive to petition date), and 6 (waiver of 4001(a)(3) stay). Movant alleges that lease payments have not been made since August 2019. Movant alleges cause for annulment of the stay because it began unlawful detainer proceedings without notice or knowledge of the bankruptcy.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), 4 (annulment of stay retroactive to petition date), and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Amy Volker Pro Se
10:00 AM
CONT...
Trustee(s):
Amy Volker
Chapter 7
Diane C Weil (TR) Pro Se
10:00 AM
1:19-12415
Guadalupe Hamm
Chapter 13
#14.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST COMPANY
Docket 41
*** VACATED *** REASON: Cont'd per stipulation to April 1, 2020, at 10
a.m. - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Guadalupe Hamm Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12714
Russ Gene Robinson
Chapter 13
#15.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOCIATION
Docket 25
Tentative Ruling:
Petition Date: 10/28/2019
Dismissed at Ch. 13 SC: 11/26/2019
Service: Proper. Pro se Opposition filed on 02/10/2020. Property: 16200 Community Court, North Hills, CA 91343
Property Value: $750,000-800,000 (per Debtor’s opposition; schedules not filed) Amount Owed: $647,555.90 (per Movant's Continuation Page)
Equity Cushion: 13.7% - 19.1% Equity: $102,444.10 - $152,444.10
Post-Petition Delinquency: $ N/A (Movant does not specify)
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), 4 (confirmation that no stay is in effect), 5 (annulment of stay retroactive to petition date), 7 (waiver of the 4001(a)(3) stay), and 9 (relief under 11 U.S.C. 362(d)(4)). Movant also alleges that its interest in the property is not adequately protected, and that this case was filed in bad faith as part of a scheme to hinder, delay, or defraud creditors, as this is the sixth bankruptcy Debtor has file that affected the subject property. This case was dismissed on 11/26/2019, and reopened at the request of Movant so that the Court could hear this Motion.
Movant alleges cause for annulment of the stay, as Movant contends that it did not have notice of bankruptcy filing before the sale. Movant provides evidence that the foreclosure sale occurred on October 28, 2019 at 11:00AM. Debtor filed his eighth bankruptcy very shortly after on October 28, 2019 at 11:00:35 AM, 35 seconds later. Debtor did not give Movant notice of the filing either before or at the time of the foreclosure sale. To the extent that the Court finds there was a stay at the moment the sale occurred, Movant requests that the stay be annulled.
Self-represented Debtor opposes, asserting that they have "tried to work with the
10:00 AM
CONT...
Russ Gene Robinson
Chapter 13
bank" on their own, but that the bank has "made it difficult" by "denyi[ng]" all options available. Debtor alleges that Movant's interest in the property is adequately protected due to Debtor's equity of $100,000-150,000, and that Debtor did not file this case in bad faith.
APPEARANCE REQUIRED
Debtor(s):
Party Information
Russ Gene Robinson Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12983
Juan Gregorio Berberian and Emma Berberian
Chapter 7
#16.00 Motion for relief from stay
21ST MORTGAGE CORPORATION
Docket 22
Tentative Ruling:
Petition Date: 11/27/2019 Chapter: 7.
Service: Proper. No opposition filed.
Property: 1976 West manufactured home, Decal No. AAJ2384, Serial Numbers A26364/B26364, Label Nos. 006082 and 006083 located at 21001 Plummer Street, Sp. 95, Chatsworth, CA 91311
Property Value: $79,000 (per debtor’s schedules) Amount Owed: $ 38,054.34
Equity Cushion: 51.8% Equity: $40,945.66.
Post-Petition Delinquency: N/A (Debtor is not delinquent on payments)
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). Movant also requests lifting of the automatic stay pursuant to 11
U.S.C. 362(h). Movant alleges that Debtor failed to comply with 11 U.S.C. Section 521(a)(2), due to Debtor's failure to "redeem[] the [P]roperty or enter[] into a Reaffirmation Agreement" as allegedly required by that section.
This property appears to be Debtor's residence. Have the parties had an opportunity to discuss filing a reaffirmation agreement?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Juan Gregorio Berberian Represented By Stephen L Burton
10:00 AM
CONT...
Juan Gregorio Berberian and Emma Berberian
Chapter 7
Joint Debtor(s):
Emma Berberian Represented By Stephen L Burton
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:19-13027
Daniel Patrick Bailey
Chapter 7
#17.00 Motion for relief from stay BANK OF AMERICA NA
Docket 11
Tentative Ruling:
Petition Date: 12/05/2019
Chapter no asset report filed on 01/13/2020. Service: Proper. No opposition filed.
Property: 2015 Lexus IS 250, VIN #JTHCF1D24F5021425
Property Value: $17,800 (per debtor’s schedules)
Amount Owed: $27,644.29 (including principal, interest, and fees) Equity Cushion: 0%
Equity: $0
Post-Petition Delinquency: $1,075.97 ( 2 payments of $634.57 less $193.17 partial payment balance)
Motion GRANTED under 11 U.S.C. 362(d)(1) and (2), with the specific relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay). Movant alleges that the last payment it received was on October 1, 2019.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS
Party Information
Debtor(s):
Daniel Patrick Bailey Represented By Robert Reganyan
Trustee(s):
Diane C Weil (TR) Pro Se
10:00 AM
1:19-13117
Karhen Sargsyan
Chapter 13
#18.00 Motion for relief from stay
STATE FARM MUTUAL AUTOMOBILE INS. CO.
Docket 19
*** VACATED *** REASON: Ntc. of w/drawal filed 2/24/20 (eg) Tentative Ruling:
Petition Date: 12/16/2019
Service: Proper. No opposition filed.
Movant: Plaintiff, State Farm Mutual Automobile Insurance Co. v. Karen Sargsyan Relief Sought to: Pursue Pending Litigation X_ Commence Litigation
Pursue Insurance _X Other
Litigation Information
Case Name: State Farm Mutual Automobile Insurance Co. v. Karen Sargsyan Court/Agency: Los Angeles Superior Court, Stanley Mosk Courthouse
Date Filed: 03/07/2018 Judgment Entered:
Trial Start Date: 03/09/2020
Action Description: Subrogation for 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 paragraph 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.
Party Information
10:00 AM
CONT...
Debtor(s):
Karhen Sargsyan
Chapter 13
Karhen Sargsyan Represented By Aris Artounians
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-13213
Paola Alejandra Alvarez
Chapter 7
#19.00 Motion for relief from stay SANTANDER CONSUMER USA INC.
Docket 12
Tentative Ruling:
Petition Date: 12/27/2019 Chapter: 7.
Service: Proper. No opposition filed.
Property: 2012 Toyota Prius, VIN# JTDKN3DU6C5451708
Property Value: $10,650 (per Movant’s declaration; Debtor's schedules didn't list Property)
Amount Owed: $16,970.93 Equity Cushion: 0% Equity: $0
Post-Petition Delinquency: $461.67 (1 payment of $461.67 due on 01/03/2020; total prepetition and postpetition arrears of $4,941.35)
Motion GRANTED under 11 U.S.C. 362(d)(1) and (2), with the specific relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay). Movant alleges that the last payment it received was on 06/12/2019; and that Debtor has failed to provide proof that they have insured the Property as required by contract.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS
Party Information
Debtor(s):
Paola Alejandra Alvarez Represented By Hector Vega
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:19-12138
Bruno Alain Rosenthal
Chapter 13
#19.01 Motion for relief from stay JPMORGAN CHASE BANK, N.A.
fr. 2/5/20
Docket 26
Tentative Ruling:
This hearing was continued from 2/5/2020 so that the payments Debtor alleged he sent to Movant could be accounted for. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
2/5/2020 TENTATIVE BELOW
Petition Date: 8/26/2016
Chapter: 13, Plan Confirmed on 12/6/2019 Service: Proper. No opposition filed.
Property: 2015 Honda Civic Sedan 4D EX-L I4 Property Value: $5,6000 (per debtor’s schedules) Amount Owed: $ 12,254.74
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $1,421.04 (4 payments of $355.26)
Movant alleges that last payment received on 08/08/2019, in the amount of $355.26.
Motion 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.
Party Information
Debtor(s):
Bruno Alain Rosenthal Represented By
10:00 AM
CONT...
Trustee(s):
Bruno Alain Rosenthal
Matthew D. Resnik
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10270
Maribel Munoz Garcia
Chapter 13
#19.02 Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay
Real Property 6742 Sylmar Avenue, Van Nuys, CA 91405 .
Docket 13
Tentative Ruling:
APPEARANCE REQUIRED
Debtor(s):
Party Information
Maribel Munoz Garcia Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10169
Gilda Beatriz Gomez
Chapter 7
#20.00 Motion for relief from stay
THE HOUSING AUTHORITY OF THE CITY OF LOS ANGELES
Docket 12
Tentative Ruling:
Petition Date: 01/23/2020 Ch.: 7.
Service: Proper. No opposition filed.
Movant: The Housing Authority of the City of Los Angeles (Property owner) Property Address: 12100 Sheldon Street #324, Sun Valley, CA 91352
Type of Property: Residential Occupancy: Leasehold Interest Foreclosure Sale: Not Applicable UD case filed: 12/24/2019
UD Judgment: Not rendered
Movant requests relief under 11 U.S.C. 362(d)(2), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law), 3 (confirmation that no stay is in effect), and 6 (waiver of 4001(a)(3) stay), and 13 (binding & effective relief despite conversion). Movant alleges that lease payments have not been made since 12/1/2019.
Disposition: GRANT under 11 U.S.C. 362(d)(2). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), 3 (confirmation that no stay is in effect), and 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Gilda Beatriz Gomez Pro Se
10:00 AM
CONT...
Trustee(s):
Gilda Beatriz Gomez
Chapter 7
David Seror (TR) Pro Se
10:00 AM
1:20-10270
Maribel Munoz Garcia
Chapter 13
#20.01 Motion for relief from stay
REDIGER MORTAGE INVESTMENT FUND
Docket 7
Tentative Ruling:
APPEARANCE REQUIRED
Debtor(s):
Party Information
Maribel Munoz Garcia Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-12223
Arsen Babikian
Chapter 13
#20.02 Hearing re: Default under adequate protection, on 13051 Willard Street, North Hollywood, California 91605, filed by Creditor U.S. Bank National Association, as Trustee for Structured Asset Mortgage Investments II Inc., Bear
Stearns ALT-A Trust, Mortgage Pass-Through Certificates, Series 2006-3. fr. 2/5/20
Docket 41
*** VACATED *** REASON: RESOLVE PER APO STIP - TS
Tentative Ruling:
Party Information
Debtor(s):
Arsen Babikian Represented By Roland H Kedikian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:12-10229
C.M. Meiers Company, Inc.
Chapter 11
Adv#: 1:14-01042 Sharp v. Essex Insurance Company
#21.00 Status conference re complaint for: 1- declaratory relief
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, 9/26/18, 2/6/19; 4/8/19
5/15/19
Docket 1
*** VACATED *** REASON: Pending Order -Cont. to 6/24/20 at 10am (eg)
Tentative Ruling:
Having reviewed the status report, this matter will be continued to February 26, 2020 at 10:00 a.m. Plaintiff to lodge order.
NO APPEARANCE REQUIRED ON 4/8/19
Party Information
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
CONT...
Trustee(s):
C.M. Meiers Company, Inc.
Chapter 11
Bradley D. Sharp (TR) Represented By David Gould Stanley H Shure Larry W Gabriel
U.S. Trustee(s):
United States Trustee (SV) Pro Se
10:00 AM
1:12-19998
Process America, Inc.
Chapter 11
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
#22.00 Status conference re complaint for: damages and equitable relief
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, 6/26/19
9/21/18, 10/31/18; 12/12/18, 2/27/19; 3/13/19; 12/11/19, 1/29/20
Docket 1
Tentative Ruling:
Cont’d. fr. 1.29.2020
On December 3, 2012, Plaintiff, Tigrent Group Inc. ("Tigrent") filed an adversary action against Defendants Process America, Inc.; Kim Ricketts; Craig Pickard; Keith Phillips; Gwendolyn Phillips; C2K Group, LLC; Applied Funding, Inc.; KBS Dreams, Inc.; Like Zebra, LLC; and Stripe Entertainment Group, Inc.
On January 6, 2020, the parties filed a status report indicating that they are engaged in discussions regarding a potential negotiated resolution and requested a 30-day continuance of the December 11, 2019 status conference.
On January 10, 2020, Tigrent dismissed with prejudice all claims in the Complaint against Defendants Keith Phillips and Gwendolyn Phillips.
On January 10, 2020, Defendant Kim Ricketts and Tigrent stipulated to dissolve the preliminary injunction as to Kim Ricketts only, based on a signed settlement agreement reached on January 6, 2020, so that Kim Ricketts may fund the settlement payment under the confidential settlement agreement. The court entered an order granting the stipulation.
On January 30, 2020, Tigrent dismissed with prejudice all its claims in the Complaint against Defendant Kim Ricketts.
10:00 AM
CONT...
Process America, Inc.
Chapter 11
On February 25, 2020, Tigrent submitted a status conference statement stating that it has settled with defendants Kim Ricketts, Keith Phillips, and Gwendolyn Phillips, and has dismissed each of these defendants from this action. Tigrent is engaged in discussions with defendant Craig Rickard regarding a potential negotiated resolution of the adversary proceeding and requests a continuance.
This matter is continued to March 25, 2020 at 10:00 a.m. APPEARANCES WAIVED.
2.11.19 Tentative Below:
Having considered the status report filed on 12/6/19, this status conference is continued to January 29, 2020, at 10:00 a.m.
NO APPEARANCE REQUIRED ON 12/11/19
Party Information
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
10:00 AM
CONT...
Process America, Inc.
Chapter 11
Stripe Entertainment Group, Inc. Pro Se
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
U.S. Trustee(s):
United States Trustee (SV) Pro Se
10:00 AM
1:18-10309
Henry Andreas Ingvarsson
Chapter 11
Adv#: 1:19-01102 Barton et al v. Ingvarsson et al
#23.00 Status Conferece re: Complaint for nondischargeability
of debt and objection to discharge pursuant to section 523(a) fr. 10/23/2019; 1/29/20
Docket 1
*** VACATED *** REASON: Continued to March 11, 2020 at 10:00 a.m. - ts
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Henry Andreas Ingvarsson Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Defendant(s):
Keri Ingvarsson Pro Se
Henry Andreas Ingvarsson Pro Se
TKC Media Group, LLC Pro Se
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Plaintiff(s):
Daniel and Helena Barton Represented By Sevan Gorginian
No Such Agency Represented By Sevan Gorginian
10:00 AM
CONT...
Henry Andreas Ingvarsson
Chapter 11
10:00 AM
1:18-11965
Ian Jacoby
Chapter 7
Adv#: 1:18-01117 Williams v. Jacoby
#24.00 Motion to Extend Deadline Dates; Memorandum of Points and Authorities and Declaration of L. Fernandez in Support.
Docket 17
*** VACATED *** REASON: resolved per stipulation [#23] -TS Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Ian Jacoby Represented By
Andrew Goodman Vincent V Frounjian
Defendant(s):
Ian Jacoby Represented By
Andrew Goodman
Plaintiff(s):
Garrett Williams Represented By Lazaro E Fernandez
Trustee(s):
Amy L Goldman (TR) Represented By Carmela Pagay
10:00 AM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#24.01 Motion For Leave To File First Amended Complaint Naming Additional Defendants And Alleging Additional
Claims For Relief; And To Reschedule Discovery and Dispositive
Docket 25
Tentative Ruling:
Based on new evidence, reorganized Debtor and Plaintiff, David Rosen, filed this Motion for leave to file a first amended complaint to (1) add Chase Bank as a party;
add Nationstar, aka Mr. Cooper, as a defendant based on an alleged negligent management of Debtor’s account; (3) add claims for relief for alleged violations of the automatic stay; for turnover of property of the estate and violation of the California Commercial Code against Chase Bank; and for negligence against Chase Bank and Nationstar.
Defendant does not oppose the Motion, but categorically denies all contentions in the Motion, including claims of noncooperation and delay and insinuations of malfeasance.
Reorganized Debtor filed a reply providing evidence of his allegations and pointing out that Defendant provided no evidence for the statements made in the opposition.
Leave to amend a pleading "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). A court will deny leave to amend for "bad faith, undue delay, prejudice to the opposing party, and futility of amendment." DCD Programs, Ltd. V. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Given that none of these factors are present, the Motion is GRANTED.
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
David B. Rosen Represented By Louis J Esbin
10:00 AM
CONT...
David B. Rosen
Chapter 11
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
10:00 AM
1:19-10828
Anna Barseghian
Chapter 7
#25.00 Motion to Sell Property of the Estate Free and Clear of Liens under Section 363(f)
Docket 38
Tentative Ruling:
Chapter 7 Trustee moves for entry of an order approving escrow instructions for escrow #005732-SA. The signatories and parties to the escrow instructions are the Trustee as the seller, and Erik Baroyan, an individual, as the buyer of a single-family residence located at 11130 Collet Avenue, Granada Hills, CA 91344 and any personalty found there (collectively, the "Property"). The purchase price is for
$645,000.
PennyMac Loan Services, LLC ("PennyMac"), the first lien holder, does not object to the Motion, provided that the sale proceeds will be used to fully repay its
$434,494.94 lien and any increases in the amount of its claim.
The Trustee and Housing and Urban Development ("HUD") stipulated that the HUD claim shall be deemed (1) an allowed secured claim for $76,000 and paid in full through the escrow; and (2) an allowed nonpriority general unsecured claim for
$25,000, which shall be paid in the ordinary course of the bankruptcy case’s administration. On these terms, the HUD agrees to the sale and the granting of the Motion.
Motion GRANTED. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
10:00 AM
1:19-11927
Vardui Vanessa Aleksanyan
Chapter 7
#26.00 Motion for Order Authorizing Trustee to Sell Personal Property, Subject to Overbid
Docket 26
Tentative Ruling:
Service proper. No opposition filed. Having considered the motion and finding good cause, the Motion is granted. Trustee to lodge order within 7 days. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Vardui Vanessa Aleksanyan Represented By Keith S Dobbins
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:19-13094
Abby Yvonne Perez
Chapter 7
#27.00 Motion to Reopen Chapter 7 Case
Docket 18
Tentative Ruling:
Debtor moves to reopen his chapter 7 case due to his attorney’s mistake of not filing required schedules and Statement of Financial Affairs. "On motion and upon such terms as are just, the Court may relieve a party or a party legal representative from a final judgment, order or proceeding for the following reasons…mistake, inadvertence, surprise, or excusable neglect…" Fed. R. Civ. P. 60(b).
No opposition filed. Service proper. Motion GRANTED.
Party Information
Debtor(s):
Abby Yvonne Perez Represented By Nathan A Berneman
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:18-10309
Henrik Andreas Ingvarsson and Keri Ingvarsson
Chapter 11
#28.00 Chapter 11 Plan of Reorganization
fr. 2/6/19, 4/3/19, 5/15/19, 7/31/19, 9/18/19, 11/6/19; 1/15/20
Docket 75
*** VACATED *** REASON: Cont'd to 3/11/20 per order #183. lf Tentative Ruling:
- NONE LISTED -
Party Information
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
1:18-10309
Henrik Andreas Ingvarsson and Keri Ingvarsson
Chapter 11
#29.00 Scheduliing and Case Management Conference
fr. 3/28/18; 10/24/18; 2/6/19, 2/27/19, 4/3/19, 5/15/19, 7/31/19, 9/18/19, 11/6/19; 1/15/20
Docket 1
*** VACATED *** REASON: continued to March 11, 2020 at 10:00 a.m. - ts
Tentative Ruling:
Party Information
Debtor(s):
Henrik Andreas Ingvarsson Represented By Matthew D Resnik
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D Resnik
10:00 AM
1:16-10909
Sheffield Manufacturing, Inc.
Chapter 7
#30.00 Trustee's Final Report and Applications for Compensation
Docket 37
Tentative Ruling:
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.
Party Information
Debtor(s):
Sheffield Manufacturing, Inc. Represented By David S Kupetz Jessica Vogel
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:16-10933
Fortune Manufacturing Inc.
Chapter 7
#31.00 Trustee's Final Report and Applications for Compensation
Docket 43
Tentative Ruling:
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.
Party Information
Debtor(s):
Fortune Manufacturing Inc. Represented By David S Kupetz
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:19-10529
Jodi Ann Greene
Chapter 7
#32.00 Trustee's Final Report and Applications for Compensation
Docket 26
Tentative Ruling:
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.
Party Information
Debtor(s):
Jodi Ann Greene Represented By David R Hagen
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
1:20-10272
Barjinder Singh
Chapter 13
#33.00 Motion in Individual Case for Order Imposing
a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
Re: 14661 Oak Road, Sylmar, CA 91342
Docket 7
Tentative Ruling:
On 2.4.2020, Debtor filed this chapter 13 case. Debtor had one previous bankruptcy case that was dismissed within the previous year. The First Filing, 18-11203-MT, was a chapter 13 that was filed on 5.9.2018 and dismissed on 8.22.2019 because Debtor was unable to make the court or mortgage payments due to his business closing.
Debtor now moves for an order continuing the automatic stay as to all creditors. Debtor asserts that the present case was filed in good faith notwithstanding the dismissal of the previous case and the presumption of bad faith filing is overcome in this case as to all creditors because (1) Debtor closed his business in 2019, but he has since opened a new restaurant on November 23, 2019; (2) the restaurant business is picking up; (3) Debtor is paying himself a salary of $3,600; and (4) Debtor’s wife, who works in the same business, also receives $3,600 a month.
Secured creditor, Bank of America, opposes and argues that Debtor has not rebutted the presumption of bad faith filing in this case. Bank of America holds a secured claim evidenced by a promissory note in the amount of $337,911. Bank of America asserts that Debtor’s increased income from operating his new restaurant business appears speculative. Debtor’s Amended Schedule I for his First Filing reflects a $4,700 net income from operating Claypit Indian Kitchen restaurant.
Debtor’s schedules in this bankruptcy case reflects $6,000 in wages from operating Claypit Indian Cuisine. Bank of America also points out that this is Debtor’s fifth bankruptcy case since January 2, 2014.
Service proper. Opposition filed.
APPEARANCE REQUIRED.
Party Information
11:00 AM
CONT...
Debtor(s):
Barjinder Singh
Chapter 13
Barjinder Singh Represented By
D Justin Harelik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:16-13077
David Saghian
Chapter 7
Adv#: 1:18-01039 Weil, Chapter 7 Trustee v. Saghian et al
#34.00 Pre-Trial Conference re: Complaint
fr. 6/6/18; 5/8/19, 5/15/19, 9/11/19, 12/11/19
Docket 1
*** VACATED *** REASON: Cont'd to 5/6/20 per order #64. lf Tentative Ruling:
Party Information
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
1:00 PM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#35.00 Motion to Dismiss Adversary Proceeding or for Judgment on the Pleadings
fr. 1/15/20
Docket 189
Tentative Ruling:
APPEARANCE REQUIRED. See Tentative Ruling for #38.
As the motion for summary judgment ruling resolves any 12(c) issues as well on the 523 cause of action, the motion to dismiss does not need to be addressed. It is subsumed in the Rule 56 discussion.
The specific objections about the 727 causes of action are unclear and confusing. Because the basis of the 727 objections is unclear, it is denied. The plaintiff's proposed pretrial order must contain each specific of what he intends to prove at trial. A shotgun approach of every perceived wrong will not be permitted at trial.
Motion denied.
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Gordon Jones Represented By
Michael Worthington
Plaintiff(s):
John Levin, M.D. Represented By Michael Jay Berger
Michael Worthington
1:00 PM
CONT...
Trustee(s):
John Gordon Jones
Chapter 7
Amy L Goldman (TR) Represented By Leonard Pena
1:00 PM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#36.00 Motion for Leave to Amend Complaint Pursuant to Fed.R.Civ.P. Rule 15(a)(2)
fr. 1/15/20
Docket 187
Tentative Ruling:
The proposed amended complaint as to the section 523 cause of action has been considered as part of the summary judgment motion and it still fails to support the 523 cause of action. Any amendment would be futile.
The 727 causes of action are not modified in any significant way in the proposed amended complaint and they are adequately plead already. The amendments appear to be argumentative and are matters that can simply be proven at trial in support of allegations already in the complaint. They do not need to be included as amendments. The pretrial order can contain the particulars of the proofs. Adding any new allegations would be improper at this time since discovery has already closed and has been such an ordeal. It is too little too late. This case has been going on too long to suddenly shift gears.
Motion to amend denied.
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Gordon Jones Represented By
Michael Worthington
Plaintiff(s):
John Levin, M.D. Represented By Michael Jay Berger
1:00 PM
CONT...
Trustee(s):
John Gordon Jones
Michael Worthington
Chapter 7
Amy L Goldman (TR) Represented By Leonard Pena
1:00 PM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#37.00 Motion For Summary Judgment for Adjudication of Issues.
fr. 10/2/19, 12/4/19
Docket 123
Tentative Ruling:
APPEARANCE REQUIRED
In 2007, defendant John Gordon Jones ("Debtor" or "Defendant") borrowed
$335,000 from plaintiff John Levin, M.D. ("Plaintiff"), issuing a note (the "2007 Loan") secured by a deed of trust on Defendant’s residence at 2700 Benedict Canyon Dr., Beverly Hills, CA 90210 (the "Benedict Property"). At some point, Defendant defaulted on the 2007 Loan and Plaintiff foreclosed on the Benedict Property. For reasons that are disputed and explained further below, Plaintiff reconveyed title to the Benedict Property. Sometime in October 2008, Defendant gave Plaintiff a promissory note for $400,000 (the "2008 Note"), secured by a deed of trust by the Benedict Property. Defendant defaulted on the 2008 Note and, on March 18, 2010, Plaintiff obtained a judgment against Defendant for $446,027.40, plus pre-judgment interest of $11,297.77 (the "State Court Judgment"). Complaint, Ex. 1 (ad. ECF doc. 1).
On March 21, 2018, Defendant filed a voluntary chapter 7 petition. On June 22, 2018, Plaintiff filed an adversary complaint against Debtor, asserting claims for nondischargeability under 11 U.S.C. § 523(a)(2)(B) because he alleges that Debtor used false written representations to secure loans from Plaintiff, and that he was damaged as a result of the alleged misrepresentations. Plaintiff also alleged claims for denial of discharge under § 727(a), et seq., claiming that Debtor’s bankruptcy schedules and other required case commencement documents contained false statements about his assets and the valuation of his scheduled assets. Complaint, 5:7-6:13. Plaintiff also alleged that Debtor understated his income by paying personal expenses through his company, Corporate Distributions, and that he has not satisfactorily explained the loss of assets or the deficiency of his assets. Id. at 5:3-5:6; 6:14-7:2. On July 26, 2018, Defendant filed his answer to the Complaint.
1:00 PM
CONT...
John Gordon Jones
Thereafter, protracted battles about the scope of discovery ensued for nearly
Chapter 7
a year, with competing motions to compel deposition filed by Plaintiff and motions for protective orders and motions to quash filed by Defendant (the "Discovery Motions"). After holding continued hearings, on July 9, 2019, the Court issued its orders on the Discovery Motions (the "Discovery Orders"). Ad. ECF doc. 93 – 99. The Court also issued its Scheduling Order setting September 27, 2019 as the discovery cut-off and set other pretrial deadlines. Ad. ECF doc. 100.
On June 25, 2019, before the rulings on the Discovery Motions were issued, Defendant filed a Motion for Summary Judgment. Ad. ECF doc. 77. Plaintiff John Levin filed a motion under Federal Rule of Civil Procedure 56(d) to defer consideration of or deny Defendant’s Motion for Summary Judgment due to incomplete discovery. Ad. ECF Doc. 114. The Court granted the 56(d) motion and set October 23, 2019 as the deadline to file a case dispositive motion.
On August 21, 2019, Defendant filed an Amended Motion for Summary Judgment (the "MSJ"). Ad. ECF doc. 123. Once again, the case dispositive motion was filed before the discovery was complete. Plaintiff filed another Rule 56(d) motion on September 5, 2019. On September 10, 2019, the Court issued an order granting in part the 56(d) motion, setting deadlines for Plaintiff to respond to the MSJ that were after the date by which all depositions would be complete and setting the hearing for December 4, 2019. Ad. ECF doc. 137.
On October 25, 2019, Plaintiff filed a Motion for Sanctions/Disgorgement against Defendant for failure to pay sanctions of $3.769.70 ordered in the Discovery Orders. On October 30, 2019, Defendant responded by filing his Cross-Motion for Sanctions/Disgorgement against Plaintiff. The matters were set for hearing on November 20, 2019.
On November 13, 2019, the Court also held a status conference re discovery matters to check in with the parties on the status of the case. A scheduling order was entered on November 19, 2019. Ad. ECF doc. 163. In the scheduling order, the Court continued the hearing on the pending MSJ to February 26, 2020, provided a date by which mediation was to be complete, and adjusted the responsive pleading dates for the MSJ and for a pretrial stipulation. Id. The Order Assigning the Matter to Mediation was entered on November 29, 2019. Orders on the Motion and Cross- Motion for Sanctions/Disgorgement were entered on December 3, 2019. Ad. ECF doc. 181 and 182.
On December 24, 2019, Plaintiff filed a Motion for Leave to file Amended
1:00 PM
CONT...
John Gordon Jones
Chapter 7
Complaint under Fed. R. Civ. P. 15(a)(2) (the "Rule 15 Motion"), seeking permission to amend the Complaint with information obtained in discovery and to clarify factual allegations that Defendant argues were not made with the required specificity. On that same day, Defendant filed a Motion for Judgment on the Pleadings under Rule 12(c) or Dismissal of Complaint Without Leave to Amend (the "Rule 12(c) Motion"), in which Defendant argues that the allegations of fraud were not made with the requisite specificity required under the pleading rules of Fed. R. Civ. P. 9(b). Both parties complain at length in their respective briefs about how the other party’s alleged litigation gamesmanship forced this awkward procedural morass.
This memorandum will address the issues presented by the MSJ and the opposition thereto. In the MSJ, Defendant seems to focus his arguments on the claims under §§ 523(a)(2)(B) and 727(a)(5). MSJ, p. 11-14 (re § 523(a)(2)(B)); and 15-21; 24-25 (re § 727(a)(5)), so the Court’s analysis will be on those claims.
Standard
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FRCP 56(a); see also FRBP 7056. The moving party must show that a fact cannot be disputed by citing to "materials in the record, including depositions documents, electronically stored information, affidavits or declarations, stipulations… or other materials…" FRCP(c)(1)(A).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. Id. at 324. The nonmoving party must show more than "the mere existence of some alleged factual dispute… the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The court must view the evidence in the light most favorable to the nonmoving party.
Tolan v. Cotton, 572 U.S. 650, 656-57 (2014). Summary judgment must not be granted if "a reasonable juror, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s favor." James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008). However, the evidence offered by the parties must be believable. See Scott v. Harris, 550 U.S. 372, 380-81 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary
1:00 PM
CONT...
John Gordon Jones
Chapter 7
judgment." Id.
523(a)(2)(B)
Section 523(a)(2)(B) exempts from discharge any debt any debt obtained by the use of a statement in writing that is:
materially false;
respecting the debtor's or an insider's financial condition;
on which the creditor to whom the debtor is liable for such money, property,
services, or credit reasonably relied; and
that the debtor caused to be made or published with intent to deceive.
11 U.S.C. §523(a)(2)(B). The Ninth Circuit Court of Appeals has articulated this section of the bankruptcy code as seven separate requirements, which are: 1) a representation of fact by the debtor, 2) that was material, 3) that the debtor knew at the time to be false, 4) that the debtor made with the intention of deceiving the creditor, 5) upon which the creditor relied, 6) that the creditor's reliance was reasonable, 7) that damage proximately resulted from the representation. In re Candland 90 F.3d 1466, 1469 (9th Cir., 1996).
When examining the element of reliance, there is a key difference between the articulated tests for subsection (a)(2)(A) and (a)(2)(B) that must be underscored; that subsection (A) employs a subjective standard, and subsection (B) and objective one. The standard for fraud under subsection (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).
Conversely, the standard for §523(a)(2)(B) is an objective one. When examining the facts and circumstances surrounding the misuse of a statement in writing, the court will rely upon a community standard of what would constitute reasonable reliance.
Id. This is a slight but crucial distinction in the analysis of each cause of action.
1:00 PM
CONT...
John Gordon Jones
Chapter 7
Defendant points to the Declaration of Barry K. Rothman, state court attorney for Defendant, that was submitted in the state court action, to support his MSJ. In the declaration, Rothman explains that there was a forbearance agreement in place when Plaintiff wrongfully foreclosed on the Benedict Property. Compendium of Evidence ISO MSJ, Ex. K-4, ¶¶ 3-6. Defendant contends instead that the 2008 Note was an "Amended and Reinstated Promissory Note Secured by Deed of Trust and Assignment of Rents" whereby Levin reconveyed the Property to Defendant and Defendant waived any claims he may have against Plaintiff related to the circumstances surrounding the foreclosure. See Id. at ¶ 7. Defendant argues that because the 2008 Note was not an extension, renewal or refinancing of the 2007 Loan, but instead a completely separate transaction, the 2005-2007 loan documents were not relevant, so there is no reliance on any alleged misrepresentation.
Plaintiff argues that the information in the several loan applications contained numerous written misstatements made by or on behalf of Debtor about his income and value of his business. Plaintiff’s argument regarding his reasonable reliance is that it was objectively reasonable for him to rely on the loan applications from
2005-2007 when he lent $335,000 to Defendant because any lender would have. Opposition, 12:23-27. Plaintiff then claims that he relied those same loan applications from 2005 through 2007 when he agreed to accept the 2008 Note from Defendant in exchange for reconveyance of the Benedict Property. Levin Decl. ISO Opposition, 18:24-26.
Which party’s version of these events is correct is not material to this analysis. The question presented instead is, if the Court takes Plaintiff’s account of the facts as true and makes all inferences in his favor as the non-moving party, whether Plaintiff could have "reasonably relied" on documents that were obtained for the previously-given, defaulted 2007 loan when lending to the same borrower again. Plaintiff states that he was "surprise[d] and shock[ed]" by Plaintiff’s failure to repay the 2007 Loan that was secured by the Benedict Property. Id. at 18:19. Plaintiff goes on to say that had Defendant made $80,000 per month as his loan application documents had represented, Defendant could have easily paid back Plaintiff the
$335,000. Id. at 19:25-26. The very fact that Defendant was not able to repay the 2007 Loan and had to enter into forbearance agreements with him to prevent foreclosure should have put Plaintiff on notice that the representations made in the documents on which he relied may be inaccurate. Nevertheless, Plaintiff does not describe requesting or receiving any additional showing of ability to pay when he agreed to accept the 2008 Note in exchange for reconveyance of the Benedict Property.
1:00 PM
CONT...
John Gordon Jones
Chapter 7
The standard for reasonable reliance under §523(a)(2)(B) is an objective one. When examining the facts and circumstances surrounding the misuse of a statement in writing, the Court must apply a community standard of what would constitute reasonable reliance. Plaintiff provided no evidence that he exercised the same degree of care expected from a reasonably prudent person entering into the same type of business transaction with a defaulted borrower, by relying on stale loan applications instead of requiring Defendant to submit new financial information.
Defendant, on the other hand, provides evidence by way of his declaration that Plaintiff made no request for updated information or documents in October 2008. Jones Decl. ISO Reply, 3:23-25. Plaintiff does not dispute this assertion.
Even considering all of plaintiff’s statements as true and even all allegations in the proposed amended complaint, there are simply no facts showing an reasonable reliance on defendant’s financial statements for the 2008 note. The record before the Court shows Plaintiff did not conduct proper due diligence about the facts asserted in the loan applications from 2005 through 2007 when agreeing to accept the 2008 Note from a borrower who had previously defaulted on one of his loans. Instead, "I was again impressed with [Defendant’s] wealth and assets and was led to believe that Defendant had the funds to pay me back." Levin Decl., 5:8-10.
While Plaintiff correctly notes that generally, a creditor is under no duty to investigate every representation made in a borrower’s financial statements, In re Gertsch, 237
B.R. 160, 170 (B.A.P. 9th Cir. 1999), this does not entitle him to cover his eyes to red flags that call into question the veracity of the financial statements. Heritage Pacific v. Machuca (In re Machuca), 237 B.R. 726 (B.A.P. 9th Cir. 2012)(citing Cashco Fin. Servs. V. McGee (In re McGee), 357 B.R. 764 (B.A.P. 9th Cir. 2006)). Had he done so, Plaintiff may have discovered that Defendant’s financial situation was changed from 2005 through 2008, when Debtor continued to seek loans in an effort to pay a $4.5 million dollar judgment against him in the matter Harrison v. Jones. MSJ, p. 18-20; Jones Decl., ¶¶ 6-14.
Viewing the evidence in the light most favorable to Plaintiff, the non-moving party, there is no question of material fact that Plaintiff’s reliance on the 2005-2007 loan application documents was objectively unreasonable when he agreed to accept the 2008 Note without any further inquiry into Debtor’s ability to repay after Debtor defaulted on a loan of a lesser amount. Thus, because no evidence has been presented to support Plaintiff’s assertion of reasonable reliance, his claim for nondischargeability under § 523(a)(2)(B) must fail, and Defendant is entitled to judgment as a matter of law.
1:00 PM
CONT...
John Gordon Jones
Chapter 7
727(a)(5)
The provisions denying a discharge to a debtor are generally construed 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." Bernard 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.
Under §727(a)(5), a debtor may not be granted a discharge if:
(5) the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor's liabilities;
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
1:00 PM
CONT...
John Gordon Jones
Chapter 7
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).
Defendant’s arguments in support of summary judgment on the §§ 727 claims are a bit disjointed. The sections of the MSJ that purport to analyze the
§ 727(a)(5) claim also contains legal standards and argument for claims under
§ 727(a)(2). MSJ, 15; 23:27-25:5. In his declarations, Defendant attempts to explain the circumstances that led to his bankruptcy filing in 2018 and how his assets were dissipated since 2005. Jones Decl. ISO MSJ, ¶¶ 18-33; Jones Decl. ISO Reply,
¶¶ 2-5. Defendant also explained that he takes a weekly payroll check of $890 from Corporate Distributions to explain how his income is distributed from the entity.
Jones Decl. ISO MSJ, ¶¶ 19-20.
Plaintiff notes that the there are many more instances of Debtor’s use of Corporate Distributions’ account to pay personal expenses, noting that debits for take-out, Amazon and iTunes appear regularly. Opposition, Ex. 8, 148:1-149:21; Ex. 14 and 14a. Plaintiff also takes issue with Defendant’s practice of making cash withdrawals to keep "working capital set aside in cash" to keep the business running in the event that there is a setoff or levy on the Corporate Distributions account. Id., Ex. 15. Plaintiff argues that questions about the nature and reasons for these transactions raise triable issues of fact as to whether (1) Defendant has concealed or transferred property of the estate; (2) whether Defendant has knowingly and fraudulently made a false oath in his schedules; and (3) whether Defendant has failed to satisfactorily explain any loss of assets.
1:00 PM
CONT...
John Gordon Jones
Chapter 7
As to the § 727(a) claims, Defendant has not shown the absence of a genuine issue of material fact because it is quite unclear how the evidence presented by way of Defendant’s declaration relates to each individual claim under
§ 727(a). The documentary evidence presented in support of the MSJ seems to go mostly to the § 523(a)(2)(B) claim and is not relevant to the § 727(a) claims. The factual allegations made by Defendant related to the § 727(a) claims, which are mostly disputed by Plaintiff, present material disputed facts. Thus, summary judgment is denied as to the § 727(a) claims.
The remaining outstanding discovery disputes will be resolved. If either party seeks to bring any further motion for summary judgment, he should so state at the next hearing. Any motion that does not detail the subsection of 727 under which it is brought will not be considered. As each subsection of section 727 has distinct elements to consider, a scattershot, rambling motion will be denied.
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Gordon Jones Represented By
Michael Worthington
Plaintiff(s):
John Levin, M.D. Represented By Michael Jay Berger
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
1:00 PM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#38.00 Order Setting Status Conference re Discovery Matters
Docket 0
Tentative Ruling:
Personal appearances by Plaintiff John Levin, M.D. and Defendant John G. Jones, and their respective counsel are required.
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Gordon Jones Represented By
Michael Worthington
Plaintiff(s):
John Levin, M.D. Represented By Michael Jay Berger
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
9:30 AM
1:20-10389
Marlene Evangelina Castellanos
Chapter 13
#0.01 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 15
Tentative Ruling:
Party Information
Debtor(s):
Marlene Evangelina Castellanos Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10386
Gregory Lusk
Chapter 13
#0.02 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 8
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Gregory Lusk Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10376
Mary A Vancoons
Chapter 13
#0.03 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 7
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Mary A Vancoons Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10351
Robert William Brown, Sr.
Chapter 13
#0.04 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 8
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Robert William Brown Sr. Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10350
Ira Michael Harrison
Chapter 13
#0.05 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 8
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Ira Michael Harrison Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:12-10231
Owner Management Service, LLC and Trustee Corps
Chapter 7
#1.00 Motion for relief from stay WELLS FARGO BANK, N.A.
fr. 9/18/19, 11/20/19
Docket 2284
Tentative Ruling:
This hearing was continued from November 20, 2019 to allow the trustee to market the McKeever Property. On 2/28/20, Trustee filed a Supplement explaining that he is presently in escrow for on the proposed sale and requests a 60 day continuance.
Having considered the record and finding good cause, this hearing is continued to May 13, 2020, at 10:00 a.m. NO APPEARANCE REQUIRED ON 3/4/2020.
Cont’d. fr. 9-18-19; 11/20/19
Prior tentative
Petition Date: 1/9/12
Converted to Chapter 7: 3/14/12 Service: Proper
Property: 16442 McKeever St., Granada Hills, CA 91344 Property Value: $500,000 (per Movant's appraisal)
Amount Owed: $207,994 (as of 8/14/19) Equity Cushion: 58%
Equity: $292,006
This hearing was continued per stipulation from Sept. 18, 2019. On Nov. 15, 2019, Trustee filed an opposition, arguing that Movant has a sufficient equity cushion to protect its claim and requests a 90 day continuance, as the Property is being administered by Trustee.
Having reviewed the Motion and the Opposition, the Court is inclined to continue this matter for 90 days to allow Trustee to market the Property. Is Movant amenable to such continuance?
10:00 AM
CONT...
Debtor(s):
Owner Management Service, LLC and Trustee Corps
Party Information
Chapter 7
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 Jorge A Gaitan
10:00 AM
1:16-10064
Jacobo Reyes
Chapter 13
#2.00 Motion for relief from stay
SELENE AS ATTORNEY IN FACT WILMINGTON SAVINGS FUNDS
Docket 77
Tentative Ruling:
Petition Date: 1/11/2016
Ch.: 13, Plan Confirmed on 06/14/2016
Service: Proper. No opposition filed as of 02/26/2020. Property: 13461 Hubbard Street #47, Sylmar, CA 91342 Property Value: $261,945 (per Debtor’s schedules) Amount Owed: $294,381 (per Movant's declaration) Equity Cushion: 0.0%
Equity: $0.00
Post-Petition Delinquency: $16,905.97 (2 payments of $1,150.99; 1 payment of
$1,302.85; and 11 payments of $1,313.65)
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); and 7 (waiver of the 4001(a)(3) stay).
Disposition: GRANT. NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Jacobo Reyes Represented By
Ghada Helena Philips
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12656
David Kapshanyan and Tina Sarkisyan
Chapter 13
#3.00 Motion for relief from stay Specialized Loan Servicing LLC
Docket 48
Tentative Ruling:
Petition Date: 10/30/2018
Ch.: 13, Plan Confirmed on 05/15/2019.
Service: Proper. No opposition filed as of 02/26/2020. Property: 14610 Erwin Street, Unit 211, Van Nuys, CA 91411 Property Value: $280,000 (per debtor’s schedules)
Amount Owed: $149,654.64 (including principal, interest, and fees) Equity Cushion: 46.6%
Equity: $130,345.35.
Post-Petition Delinquency: $1,382.68 (2 payments of $1,083.44, less suspense of
$784.20)
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 of $1,100 was received on or about 01/24/2020.
There appears to be sufficient equity to protect Movant's claim & a small delinquency. Have the parties discussed whether this delinquency can be cured via APO?
APPEARANCE REQUIRED
Debtor(s):
Party Information
David Kapshanyan Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Tina Sarkisyan Represented By
10:00 AM
CONT...
Trustee(s):
David Kapshanyan and Tina Sarkisyan
Hasmik Jasmine Papian
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10940
Laurie Francene Kinzer
Chapter 13
#4.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOCIATION. fr. 1/29/20
Docket 41
Tentative Ruling:
This hearing was continued from January 29, 2020 so that Movant had an opportunity to look into the three payments Debtor said she tendered that were returned. Nothing has been filed since the last hearing. What is the status of this matter?
APPERANCE REQUIRED
1-29-2020 TENTATIVE BELOW
Petition Date: 04/17/2019
Ch. 13; confirmed on 07/22/2019. Service: Proper. No opposition filed.
Property: 5800 Kanan Road Unit #272 Agoura Hills, CA 91301 Property Value: $ 350,000 (per debtor’s schedules)
Amount Owed: $ 203,317.31 Equity Cushion: 58.0% Equity: $146,682.69.
Post-Petition Delinquency: $2,708.89 (3 payments of $1,316.48; less suspense balance of $1,240.55)
Movant alleges that the last payment of $500 was received was on or about 10/16/2019.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANTED as to paragraph 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).
Party Information
10:00 AM
CONT...
Debtor(s):
Laurie Francene Kinzer
Chapter 13
Laurie Francene Kinzer Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12079
Martin Pantoja
Chapter 13
#5.00 Motion for relief from stay
U.S. BANK NA
Docket 75
Tentative Ruling:
Petition Date: 08/20/2019 Ch.: 13
Service: Proper. No opposition filed as of 02/26/2020. Property: 7551 Shore Cliff Drive, Los Angeles, CA 90045 Property Value: $515,333.00 (per debtor’s schedules) Amount Owed: Not alleged in declaration
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: Not alleged in declaration.
Movant alleges that the case was filed in bad faith, as part of a scheme to hinder, delay, or defraud creditors. Movant alleges the existence of multiple bankruptcy filings affecting the Property. See Decl. ISO RFS, Continuation Sheet. There are no facts alleged that Debtor is involved in the scheme. Debtor did not claim an interest in this property in this case and confirmed a chapter 13 plan on February 13, 2020.
DISPOSITION: GRANT 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 (co-debtor stay terminated); 7 (waiver of the 4001(a)(3) stay); 8 (Movant permitted to evict occupants for 180 days from hearing date); 9 (Movant may proceed under 11 U.S.C. 362(d)(4), with no finding of bad faith as to this Debtor); and 10 (order binding for 180 days on any debtor claiming interest in Property).
DENY relief requested under paragraph 11 (order binding on all debtors in any future case) as such injunctive relief requires an adversary proceeding under FRBP 7001.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
10:00 AM
CONT...
Martin Pantoja
Chapter 13
MOVANT IS ORDERED TO SERVE A COPY OF THE ENTERED ORDER ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
Party Information
Debtor(s):
Martin Pantoja Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10169
Gilda Beatriz Gomez
Chapter 7
#5.01 Motion for relief from stay
THE HOUSING AUTHORITY OF THE CITY OF LOS ANGELES
fr. 2/26/20
Docket 12
Tentative Ruling:
This hearing was continued from 2/26/20 so that Debtor had an opportunity to look for an attorney to help represent her in her landlord-tenant issues. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
2/26/20 TENTATIVE RULING
Petition Date: 01/23/2020 Ch.: 7.
Service: Proper. No opposition filed.
Movant: The Housing Authority of the City of Los Angeles (Property owner) Property Address: 12100 Sheldon Street #324, Sun Valley, CA 91352
Type of Property: Residential Occupancy: Leasehold Interest Foreclosure Sale: Not Applicable UD case filed: 12/24/2019
UD Judgment: Not rendered
Movant requests relief under 11 U.S.C. 362(d)(2), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law), 3 (confirmation that no stay is in effect), and 6 (waiver of 4001(a)(3) stay), and 13 (binding & effective relief despite conversion). Movant alleges that lease payments have not been made since 12/1/2019.
Disposition: GRANT under 11 U.S.C. 362(d)(2). GRANT relief as requested in paragraphs 2 (proceed under non-bankruptcy law), 3 (confirmation that no stay is in effect), and 6 (waiver of 4001(a)(3) stay).
Party Information
10:00 AM
CONT...
Debtor(s):
Gilda Beatriz Gomez
Chapter 7
Gilda Beatriz Gomez Pro Se
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:19-12714
Russ Gene Robinson
Chapter 13
#5.02 Motion for relief from stay
U.S. BANK NATIONAL ASSOCIATION fr. 2/26/20
Docket 25
Tentative Ruling:
This hearing was continued from 2/26/20 so that the parties had an opportunity to discuss an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED 2/26/20 TENTATIVE BELOW:
Petition Date: 10/28/2019
Dismissed at Ch. 13 SC: 11/26/2019
Service: Proper. Pro se Opposition filed on 02/10/2020. Property: 16200 Community Court, North Hills, CA 91343
Property Value: $750,000-800,000 (per Debtor’s opposition; schedules not filed) Amount Owed: $647,555.90 (per Movant's Continuation Page)
Equity Cushion: 13.7% - 19.1% Equity: $102,444.10 - $152,444.10
Post-Petition Delinquency: $ N/A (Movant does not specify)
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), 4 (confirmation that no stay is in effect), 5 (annulment of stay retroactive to petition date), 7 (waiver of the 4001(a)(3) stay), and 9 (relief under 11 U.S.C. 362(d)(4)). Movant also alleges that its interest in the property is not adequately protected, and that this case was filed in bad faith as part of a scheme to hinder, delay, or defraud creditors, as this is the sixth bankruptcy Debtor has file that affected the subject property. This case was dismissed on 11/26/2019, and reopened at the request of Movant so that the Court could hear this Motion.
10:00 AM
CONT...
Russ Gene Robinson
Chapter 13
Movant alleges cause for annulment of the stay, as Movant contends that it did not have notice of bankruptcy filing before the sale. Movant provides evidence that the foreclosure sale occurred on October 28, 2019 at 11:00AM. Debtor filed his eighth bankruptcy very shortly after on October 28, 2019 at 11:00:35 AM, 35 seconds later. Debtor did not give Movant notice of the filing either before or at the time of the foreclosure sale. To the extent that the Court finds there was a stay at the moment the sale occurred, Movant requests that the stay be annulled.
Self-represented Debtor opposes, asserting that they have "tried to work with the bank" on their own, but that the bank has "made it difficult" by "denyi[ng]" all options available. Debtor alleges that Movant's interest in the property is adequately protected due to Debtor's equity of $100,000-150,000, and that Debtor did not file this case in bad faith.
Party Information
Debtor(s):
Russ Gene Robinson Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-10309
Henry Andreas Ingvarsson and Keri Ingvarsson
Chapter 11
#6.00 First Interim Application by Resnik Hayes Moradi LLP, General Bankruptcy Counsel for the Debtors, for Allowance of Fees and Reimbursement of Costs for the
Period: 2/1/2018 to 2/10/2020, Fee: $76,209.00,
Expenses: $162.29.
Docket 177
Tentative Ruling:
Period: 2/1/2018 to 2/10/2020, Fee: $76,209.00,
Expenses: $162.29
Application seeks (1) allowance of $76,209 in fees for services rendered by the firm for the period of February 1, 2018 through February 10, 2020; approval of $162.29 in costs and expenses expended on behalf of Debtors for the same period; and (3) authorization of payment thereof less the retainer received of $16,000.
Service proper. No objections filed. Having reviewed the First Interim Application, 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.
Party Information
Debtor(s):
Henry Andreas Ingvarsson Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Keri Ingvarsson Represented By
10:00 AM
CONT...
Henry Andreas Ingvarsson and Keri Ingvarsson
Matthew D. Resnik Roksana D. Moradi-Brovia
Chapter 11
10:00 AM
1:19-10925
Roben Saeidian
Chapter 7
Adv#: 1:19-01115 David Seror, Chapter 7 Trustee v. Saeidian
#7.00 Status Conference Re: Complaint for
(1) Avoidance and Recovery of Preferential Transfer and (2) Preservation of Transfer Avoid
fr. 12/11/19
Docket 1
Tentative Ruling:
fr. 12/11/19
Ch. 7 Trustee filed a Motion to Dismiss Adversary Proceeding Per Settlement ("Motion"). The court entered an order granting the Motion[#13].
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Roben Saeidian Represented By
Hamid Soleimanian
Defendant(s):
Joseph Saeidian Pro Se
Plaintiff(s):
David Seror, Chapter 7 Trustee Represented By Elissa Miller
Trustee(s):
David Seror (TR) Represented By Elissa Miller Sulmeyer Kupetz
10:00 AM
CONT...
Roben Saeidian
Chapter 7
11:00 AM
1:18-12380
Pan Lea Kim
Chapter 13
#7.01 Motion for Relief from Order Granting in Rem Relief from Stay
Docket 27
Tentative Ruling:
APPEARANCE REQUIRED
Debtor(s):
Party Information
Pan Lea Kim Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11292
Mani Mukherjee
Chapter 7
Adv#: 1:19-01104 Uddin et al v. Mukherjee
#7.02 Status Conference re: Complaint objecting to Discharge of debt under 11 U.S.C. section 523 (a)(2) and (a)(6)
fr. 10/23/19
Docket 1
Tentative Ruling:
fr. 10/23/19
Nothing new filed since the 10/23/19 hearing. APPEARANCE REQUIRED.
10/23/19 Tentative:
It appears the most effective way to move this case at this point is a motion for summary judgment to see what issues are precluded following state court trial.
Case dispositive motion filing deadline (MSJ) due by December 4, 2019 Response brief due December 30, 2019
Reply brief die January 15, 2020 Hearing will be 1 pm January 29
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE
PROVISIONS WITHIN 7 DAYS for 10/23/19 tentative.
Party Information
Debtor(s):
Mani Mukherjee Represented By Armen Shaghzo
Defendant(s):
Mani Mukherjee Pro Se
11:00 AM
CONT...
Mani Mukherjee
Chapter 7
Plaintiff(s):
Zohir Uddin Represented By
Mazyar H Mazarei
Delwara Uddin Represented By Mazyar H Mazarei
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:12-17302
Dennis Berkovich
Chapter 13
Adv#: 1:19-01007 California Franchise Tax Board v. Berkovich
#8.00 Status Conference Re: Complaint to Determine NonDischargeability of Tax [11 USC Sections 523(a)(1)(B) (i) and 1328(a)(2)]
fr. 5/1/19, 1/8/20, 1/15/20
Docket 1
Tentative Ruling:
fr. 1/15/20
This court entered a memorandum of decision granting the FTB’s motion for summary judgment and a judgment excepting Defendant debt from discharge. Defendant filed a Notice of Appeal and Statement of Election to BAP.
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Dennis Berkovich Represented By Charles Shamash Joseph E. Caceres
Defendant(s):
Dennis Berkovich Represented By
Andrew Edward Smyth
Joint Debtor(s):
Marina Voloshin Represented By Charles Shamash Joseph E. Caceres
11:00 AM
CONT...
Dennis Berkovich
Chapter 13
Plaintiff(s):
California Franchise Tax Board Represented By Ronald N Ito
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10925
Roben Saeidian
Chapter 7
Adv#: 1:19-01116 David Seror, Chapter 7 Trustee v. York
#9.00 Status Conference Re: Complaint for
(1) Avoidance and Recovery of Preferential Transfer and (2) Preservation of Transfer Avoid
fr. 12/11/19
Docket 1
Tentative Ruling:
fr. 12/11/19
Ch. 7 Trustee filed a Motion to Dismiss Adversary Proceeding Per Settlement ("Motion"). The court entered an order granting the Motion [#13].
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Roben Saeidian Represented By
Hamid Soleimanian
Defendant(s):
David York Pro Se
Plaintiff(s):
David Seror, Chapter 7 Trustee Represented By Elissa Miller
Trustee(s):
David Seror (TR) Represented By Elissa Miller Sulmeyer Kupetz
11:00 AM
CONT...
Roben Saeidian
Chapter 7
11:00 AM
1:16-11985
Samuel James Esworthy
Chapter 11
#10.00 Post Confirmattion status conference
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, 6/26/19, 9/18/19, 12/18/19; 2/11/20
Docket 1
Tentative Ruling:
fr. 2/11/20
Reorganized Debtor filed a 4th post-confirmation status report and declaration. Debtor requests to continue to end of June 2020.
Continued to June 24, 2020 at 11:00 a.m.
APPEARANCES WAIVED.
Debtor(s):
Party Information
Samuel James Esworthy Represented By
M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes M Jonathan Hayes
11:00 AM
1:19-12322
M Shah Dental Inc
Chapter 7
#10.01 Chapter 7 Trustee's Motion for Entry of an Order:
Authorizing the Sale of Dental Practice Located
at 8401 Van Nuys Blvd., #26, Panorama City, CA Free and
Clear of Liens and Interests; (2) Approving Overbidding Procedures;
Authorizing Payment of Estate Broker's Commission;
Approving the Cure, Assumption and Assignment of
Non-Residential Real Property Lease; (5) Finding Purchaser is a Good Faith Purchaser; and (6) Waiving the 14 Day Stay Prescribed by Rule 6004
Docket 61
Tentative Ruling:
Ch. 7 Trustee for the bankruptcy estate ("Estate") of M Sha Dental Inc. (the "Debtor") moves to (1) authorize the Trustee to sell the Estate’s interest in the dental practice;
approve overbid procedures; (3) approve payment of broker’s commission through escrow; (4) authorize the cure, assumption and assignment of non- residential real property lease; (5) find that the purchaser is a good faith purchaser; and (6) waive the 14-day stay.
The Trustee has accepted an all-cash offer to purchase the dental practice a purchaser for $350,000.
Creditor Bank of America filed a limited objection. Creditor does not object to the sale but seeks clarification from the Trustee about the $350,000 proposed purchase price, and whether it is fair and reasonable. In order for a sale to be approved under section 363, the purchase price must be fair and reasonable. In re Coastal Indus., Inc., 63 B.R. 361 (Bankr. N.D. Ohio 1986). Creditor requests Trustee to provide details concerning all written and oral offers to purchase the dental practice, counteroffers, and acceptances from the three potential buyers. Creditor also requests to continue the hearing to allow it the opportunity to review the information requested.
Bidder Dr. Kaveh Kohanof requests to be approved as a qualified overbidder; to be treated fairly and objectively in these proceedings with the same terms and conditions as those offered to the proposed purchaser; and before the auction, to have records clarified with respect to certain liability issues or terms in the Dental
11:00 AM
CONT...
M Shah Dental Inc
Chapter 7
Practice Purchase Agreement and Addendum (collectively "Agreement") and the Motion. Bidder asserts that he did not receive a meaningful response to his
$355,000 offer, which was the highest offer submitted.
APPEARANCE REQUIRED.
Debtor(s):
Party Information
M Shah Dental Inc Represented By Shirlee L Bliss
Trustee(s):
Nancy J Zamora (TR) Represented By Noreen A Madoyan Jeremy Faith
11:00 AM
1:17-13341
Castillo I Partnership
Chapter 11
Adv#: 1:19-01013 Castillo I Partnership v. MORTGAGE ELECTRONIC REGISTRATION
#11.00 Status Conference re: Complaint for 1) Cancellation of Written Instruments; 2) Quiet Title and 3) Declaratory Relief
fr. 5/15/19, 8/21/19, 11/6/19, 11/13/19
Docket 3
Tentative Ruling:
The following parties were dismissed from this adversary:
Nationstar, 4/19/19, doc. 10
MERS, 12/30/2018, doc. 74
Who is left on the defendant's side for this adversary? Should this adversary be closed?
Party Information
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Defendant(s):
MORTGAGE ELECTRONIC Pro Se
Bayview Financial Trading Group Pro Se M&T Mortgage Corp. Pro Se
Bayview Loan Servicing LLC Pro Se
Nationstar Mortgage, LLC Pro Se
Benjamin Kolodaro Pro Se
Nily Kolodaro Pro Se
11:00 AM
CONT...
Castillo I Partnership
Chapter 11
Plaintiff(s):
Castillo I Partnership Represented By
Mark E Goodfriend
11:00 AM
1:17-13341
Castillo I Partnership
Chapter 11
#12.00 Chapter 11 plan Motion to Confirm Third Amended Chapter 11 Plan of Reorganizaiton
fr. 10/23/19, 11/6/19, 11/13/19,
Docket 228
Tentative Ruling:
After having reviewed Debtor’s Plan, the ballot summary, and the Order Approving Stipulation re Chapter 11 Plan Treatment between Bank of NY Mellon and Debtor (ECF doc. 254), 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 September 9, 2020, at 11:00 a.m.
Please advise if any date conflict.
Party Information
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Movant(s):
Castillo I Partnership Represented By
Mark E Goodfriend
11:00 AM
1:17-13341
Castillo I Partnership
Chapter 11
#13.00 Scheduling and case management conference
fr. 1/17/18, 6/13/18, 8/29/18; 12/2/18; 12/12/18; 4/3/19 5/15/19, 8/21/19, 10/23/19, 11/6/19, 11/13/19
Docket 1
Tentative Ruling:
Post-conf. status conferene to be set, cal . no. 12
Party Information
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
1:00 PM
1:18-11538
Momentum Development LLC
Chapter 7
Adv#: 1:19-01129 Weil v. The Pyramid Center, Inc.
#14.00 Motion to Dismiss Adversary Proceeding or Alternatively, to Provide a More Definite Statement.
Docket 13
Tentative Ruling:
On June 19, 2018, Momentum Development, LLC ("Momentum" or "Debtor") filed a voluntary petition for relief under Chapter 7 of Title 11 of the United States Code. Momentum’s managing member is Josef Dolezal ("Dolezal").
Dolezal is also the Chief Executive Officer and Chief Financial Officer of Pyramid Center, Inc. ("Pyramid" or "Defendant").
On October 25, 2019, Diane C. Weil, the Chapter 7 Trustee ("Trustee") filed a complaint against Pyramid. Trustee alleges that Momentum fraudulently transferred two-hundred acres of its real property located in San Bernardino County, California ("SB Property") to Pyramid. Thus, Trustee seeks to avoid and recover the transfer of the SB Property pursuant to 11 U.S.C. §§ 544(b) and 550; and under Cal. Civ. Code § 3439.04(a)(1) or Cal. Civ. Code § 3439.04(a)(2).
On January 21, 2020 Defendant filed the present FRCP 12(b)(6) motion ("Motion") to dismiss Trustee’s Amended Complaint ("Amended Complaint"), that was filed on December 18, 2019. Defendant argues that the Amended Complaint "fails to plead the Rule 9(b) requirement that the plaintiff specify the who, what, when, where and how of the alleged fraud." In the alternative, Defendant moves to provide a more definite statement pursuant to FRCP 12(e).
Standard
"A motion to dismiss in an adversary bankruptcy proceeding is governed by Federal Rule of Bankruptcy Procedure 7012(b), which incorporates [FRCP] 12(b)-9(i)." In re Tracht Gut, LLC, 836 F.3d 1146, 1150 (9th Cir. 2016). In
examining a motion to dismiss, the court engages in a two-step inquiry. First, a
1:00 PM
CONT...
Momentum Development LLC
court accepts all factual allegations in the complaint as true and sets aside legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The court reads these allegations in the light most favorable to the
Chapter 7
non-moving party to see whether the facts state a claim for relief. Id. Second, the court determines whether the claim is plausible. A claim is plausible if it is more than speculative. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007).
A claim moves from mere speculation and into the realm of plausibility when the facts alleged "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (emphasis added). The court may look to the "allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Lastly, the judge draws on her own judicial experience and common sense to determine plausibility. Id. at 679.
First Claim For Relief
The Amended Complaint’s first claim for relief seeks to avoid the transfer of the SB Property pursuant to 11 U.S.C. §§ 544(b) and 550; and Cal. Civ. Code §§ 3439.04(a)
and 3439.07. Section 544(b) provides that "the trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law… ." California Civil Code § 3439.04(a)(1) is the applicable state law that allows the trustee to avoid actually fraudulent transfers made by the debtor. A transfer is actually fraudulent if made with the "actual intent to hinder, delay, or defraud any creditor of the debtor." Id. The focus of this provision is on the debtor’s state of mind. In re Beverly, 374 B.R. 221, 235 (B.A.P. 9th Cir. 2007), aff’d in part, dismissed in part, 551 F.3d 1092 (9th Cir. 2008).
Because there is rarely any direct evidence of a debtor’s intent to hinder, delay, or defraud, courts look to the surrounding circumstances of the transfer to infer intent. Id. Historically, these tell-tale signs are known as "badges of fraud." Filip v.
Bucurenciu, 129 Cal. App. 4th 825, 834 (2005); Twyne’s Case, 3 Coke 806, 76 Eng.
Rep. 809 (Star Chamber, 1601).
1:00 PM
CONT...
Momentum Development LLC
Chapter 7
Defendant raises three defenses in its Motion: (1) the Plaintiff’s claim is barred by the statute of limitations; (2) the allegations of fraud are not pleaded with particularity; and (3) the Amended Complaint does not identify with specificity an actual creditor capable of asserting the state law claims in the Complaint. The second argument will be addressed first.
The Amended Complaint Satisfies Rule 9(b)
Defendant argues that Plaintiff has not met the heightened pleading requirements pursuant to Rule 9(b) of the FRCP, made applicable to adversary proceedings by Bankruptcy Rule 7009. Defendant’s Motion contends that "there are no allegations in the Amended Complaint, let alone particular factual allegations," to state a claim for relief under § 3439.04(a)(1). On the contrary, Plaintiff has pleaded enough facts to survive a motion to dismiss.
The Amended Complaint identifies the transfer at issue, when it occurred, and between which parties. Paragraph 12 of the Amended Complaint provides, "On or about October 31, 2012, Debtor [Momentum] through Josef Dolezal, its CEO, executed a Grant Deed conveying the San Bernardino Property to Pyramid." Amended Complaint, Ex. A. Moreover, the Amended Complaint incorporates Dolezal’s testimony from the Rule 2004 Examination. The Rule 2004 Examination of Dolezal revealed the following exchange:
Creditor DCA’s Counsel: Momentum used to own about 200-plus
acres in – would be the San Bernardino County. Is that correct?
Dolezal: Correct.
Creditor DCA’s Counsel: When that was transferred, it was
transferred to Pyramid Center, correct?
Dolezal: Correct.
Creditor DCA’s Counsel: Was that a formal sale? Was there an
escrow opened? Anything of that nature or brokers used?
1:00 PM
CONT...
Momentum Development LLC
Chapter 7
Dolezal: I believe it was gifted. RJN ISO Opp., Ex. 15-4, 15:24.
Moreover, the 2004 examination revealed that Dolezal is Momentum’s only member, other than his brother. Id. at 15-12, 7:16. Further, the date of the transfer is explained and gives Defendant notice as to which parties were involved:
Creditor DCA’s Counsel: And so Momentum no longer owns that
property [SB Property]. When did the Pyramid acquire it?
Dolezal: 2012, I believe…
Creditor DCA’s Counsel: So you were managing overseeing the
operations of Momentum, and at the same time you were overseeing the operations and managing Pyramid Center when this transaction occurred?
Dolezal: I think there were more people involved.
Creditor DCA’s Counsel: Who?
Answer by Dolezal: I was one of them. My brother. Id. at 15-32:33, 7:12, 17:23.
Thus, Plaintiff has notified Defendant of the transfer at issue, when it occurred, and which parties were privy to the transaction. Section 3439.04(b) lists 11 badges to infer actual intent. Here, Plaintiff has sufficiently pleaded under §§ 3439.04(b)(1) by alleging that the transfer or obligation was to an insider; under (b)(2) by alleging Debtor retained possession or control of the property transferred after the transfer.
Plaintiff has also pleaded sufficiently facts under 3439.09(b)(5), by alleging that the transfer was of substantially all the debtor’s assets, and under (b)(8) by alleging that the value of the consideration received by the debtor was not reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred. Enough
1:00 PM
CONT...
Momentum Development LLC
Chapter 7
“badges” have been pleaded—with particularity—to survive the motion to dismiss.
The Plaintiff’s Claims Are Not Time Barred
Defendant’s first argument, that the Statute of Limitations bars the Plaintiff’s complaint is similarly not persuasive.
Cal. Civ. Code § 3439.09 states:
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.
Defendant asserts that because Trustee alleges in the Amended Complaint that the transfer occurred in 2012, and Debtor filed bankruptcy on June 19, 2018, the Plaintiff’s claim is time-barred because it was not brought within four years of the transfer provided in § 3439.09.
In Plaintiff’s Opposition ("Opposition"), Plaintiff counters that "the statute does not commence running until the transfer could reasonably have been discovered by the plaintiff." This is the second test of Section 3439.09(a). On February 26, 2020, Defendant filed a Reply to its Motion To Dismiss ("Reply"). In the Reply, Defendant argues for the first time that the original Complaint was filed more than 14 months after the Trustee knew or had reason to know of the transfer. Defendant argues that the Trustee knew of the transfer on August 17, 2018, when it conducted a Meeting of Creditors. Reply ISO Motion, 2:10-24. Thus, the Plaintiff’s claim is time-barred because the complaint was filed 14 months after, on October 25, 2019.
Arguably, the fraudulent nature of the transfer was not known until the Rule 2004 Examination date, December 12, 2018. However, defendant’s creditors should have known of the transfer by April 30, 2018—the date DCA’s counsel
1:00 PM
CONT...
Momentum Development LLC
Chapter 7
examined Dolezal on direct and elicited testimony similar to that procured on December 12, 2018. RJN ISO Opp., Ex. 22-22, 9:27. If the April 30, 2018 date is used, Trustee filed the complaint at issue on October 25, 2019—more than one year past April 30, 2018.
However, Cal. Civ. Code § 3439.09(c) contains a seven-year statute of repose. See In Re Ezra, 537 B.R. 924, 935 (B.A.P. 9th Cir. 2015) (holding that Section 3439.09(c) "does not bar a claim under 544(b) and Cal. Civ. Code § 3439.04 so long as the claim arose less than seven years before the debtor’s bankruptcy"). Cal. Civ. Code § 3439.09(c) states:
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.
When the legislature uses the phrase "[n]otwithstanding any other provision of law," it expresses a "legislative intent to override all contrary law." Roach v. Lee, 369 F. Supp. 2d 1194, 1198 (C.D. Cal. 2005); In re JMC Telecom LLC,
416 B.R. 738, 743 (C.D. Cal. 2009). Thus, the seven-year provision trumps §§ 3439.09(a) and (b).
In Ezra, the court held that the trustee’s fraudulent transfer claim was not barred. 537 B.R. at 935. The debtor filed for bankruptcy in February 2011 and the transfer at issue occurred in April 2004. Id. Because the bankruptcy case was filed within seven years of the April 2004 date, the Ezra court held that the trustee could still pursue his claim. Id.
So, like Ezra, Trustee’s claim in this case is not time barred because the claim arose less than seven years before the debtor’s bankruptcy. The claim arose on the date of the transfer—October 31, 2012—and the debtor filed for bankruptcy on June 19, 2018.
Second and Third Claim for Relief
The Amended Complaint’s second and third claim for relief seek to avoid the transfer of the SB Property pursuant to 11 U.S.C. §§ 544(b) and 550; and Cal. Civ. Code §§ 3439.04(a)(2)(A) and 3439.04(a)(2)(B) and § 3439.07.
1:00 PM
CONT...
Momentum Development LLC
Chapter 7
Section 3439.04(a)(2) voids transfers that are constructively fraudulent and "requires the trustee to show that the debtor did not receive "reasonably equivalent value in exchange for the transfer" and the transfer was made when debtor "(A) [w]as engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction"; or
(B) the debtor "[i]ntended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due." Optional Capital, Inc. v. DAS Corp., 222 Cal. App. 4th 1388, 1401-02 (2014).
Debtor Momentum admits that it did not receive "reasonably equivalent value" when it transferred the SB Property to Pyramid. RJN ISO Opp., Ex. 15-33.
Creditor DCA’s Counsel: Do you remember Pyramid Center giving
anything to Momentum in return or did Momentum receive anything in return for the property transfer to Pyramid?
Dolezal: Not that I can recall, no. Creditor DCA’s Counsel: Did money change hands? Dolezal: No.
RJN ISO Opp., Ex. 15-33, 11:16.
Thus, the first prong of constructive fraud has been adequately pleaded. Section 3439.04(a)(2)(A) has been sufficiently pleaded even if the claims for 3439.04(a)(2)
and 3439.04(a)(2)(B) were pleaded in the disjunctive. Amended Complaint, par.
36. Section 3439.04(a)(2)(B) has been sufficiently pleaded because Plaintiff has alleged that debtor reasonably believed he would incur future debts beyond his ability to pay as they came due. RJN ISO Opp., Ex. 22-21, and Ex. B/C.
The Amended Complaint Identifies DCA As A Creditor with A Viable Cause of Action
Defendant contends that the Amended Complaint does not identify the existence of an actual creditor with a viable cause of action.
1:00 PM
CONT...
Momentum Development LLC
Chapter 7
The Amended Complaint identifies DCA as a creditor of Debtor prior to the transfer of the SB Property on October 31, 2012. Reviewing the Amended Complaint and materials judicially noticed, Trustee has sufficiently pleaded DCA as having a contractual dispute with Debtor Momentum in 2011. RJN ISO Opp., Ex. 22-21/22.
12(e) Motion For A More Definite Statement
Defendant argues that if its 12(b)(6) Motion is dismissed, alternatively the court should grant a 12(e) motion. Defendant argues that the "allegations in the Amended Complaint are conclusory, confused, and unclear." Here, a 12(e) motion for a more definite statement is inappropriate. Plaintiff’s allegations are clear and give adequate notice to Defendant to defend himself.
Party Information
Debtor(s):
Momentum Development LLC Represented By
Michael H Raichelson
Defendant(s):
The Pyramid Center, Inc. Represented By
Michael H Raichelson
Plaintiff(s):
Diane Weil Represented By
David Seror Jorge A Gaitan
Trustee(s):
Diane C Weil (TR) Represented By David Seror Jorge A Gaitan
1:00 PM
1:18-11538
Momentum Development LLC
Chapter 7
Adv#: 1:19-01129 Weil v. The Pyramid Center, Inc.
#15.00 Status Conference re: Amended Complaint to Avoid Fraudulent Transfers fr. 1/15/20, 2/5/20
Docket 9
Tentative Ruling:
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
1:00 PM
CONT...
Momentum Development LLC
Chapter 7
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.
Party Information
Debtor(s):
Momentum Development LLC Represented By
Michael H Raichelson
Defendant(s):
The Pyramid Center, Inc. Represented By
Michael H Raichelson
Plaintiff(s):
Diane Weil Represented By
David Seror Jorge A Gaitan
Trustee(s):
Diane C Weil (TR) Represented By David Seror Jorge A Gaitan
1:00 PM
1:19-11422
Joe Kearney
Chapter 13
#16.00 Motion for Partial Summary Judgment With Respect to Debtor's Motion for Order Disallowing Claim of Patricia Leupold (Claim #8-1)
Docket 65
Tentative Ruling:
Background
Patricia Leupold ("Creditor") owns real property located at 1023 East Walnut Avenue, Burbank, California (the "Property"). Joe Kearney ("Debtor") and Creditor had entered into a written contract on September 15, 2015 in which Debtor agreed to construct an addition and renovate the Property. Debtor and his workers also performed additional work on the Property outside the scope of the contract, which Debtor billed as "extras" (all work on the Property is hereinafter collectively referred to as the "Project"). Debtor issued 18 invoices to Creditor, and Creditor paid Debtor $346,723.00. The undisputed facts are that Debtor had other workers working on the Project, including Miguel Ramos, and did not have workers’ compensation insurance coverage at any time during the Project.
Debtor filed a Chapter 13 petition on June 6, 2019. Creditor then filed a
$1,362,223.89 nonpriority unsecured claim (the "Claim") against Debtor. Creditor’s Claim attaches a state civil action filed by Creditor against Debtor, which is pending before the Los Angeles Superior Court ("Civil Action"). Creditor later filed a first amended complaint ("State FAC") against Debtor, Joe Kearney Construction, and Wesco Insurance Company, asserting ten causes of action. The eighth cause of action is for the disgorgement of Creditor's payments to Debtor under California Business and Professions Code § 7031(b).
On August 19, 2019, Debtor filed a motion to disallow the Claim ("Claim Objection"). Creditor now moves for partial summary judgment to the Claim Objection ("Motion") seeking judgment on the disgorgement claim of
$421,676.99, which consists of $346,723 that Creditor paid to Debtor and
$74,953.99 in prepetition prejudgment interest. The parties stipulated that instead of filing a response to the claim objection, Creditor should file this motion.
1:00 PM
CONT...
Joe Kearney
Chapter 13
Legal Standard
Summary Judgment
A court grants summary judgment 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 judgment as a matter of law. Fed. R. Civ. P. 56(c) (incorporated by Fed. R. Bankr. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 US 317, 323 (1986). Once the moving party has met its initial burden of demonstrating an absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Id. at 322-23; Anderson v. Liberty Lobby, Inc., 477 US 242, 249 (1986). A mere facial denial of a material fact is insufficient; the opposing party must present admissible evidence. Tindle v. Pulte Home Corp., 607 F.3d 494, 496 (7th Cir. 2011). Summary judgment will not lie if the dispute about a material fact is genuine. Anderson, 477 US at 248. A dispute is material if the evidence presented is such that a reasonable jury could return a verdict for the nonmoving party. Id.
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 nonmoving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). 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). "Even where no evidence is presented in opposition to the motion, summary judgment should not be granted if the evidence in support of the motion is insufficient. Hoover v. Switlik Parachute Co., 663 F.2d 964, 967 (9th Cir. 1981).
Discussion
California Business & Professions Code §§ 7700-7191, which is also known as the Contractors’ State License Law, requires contractors to be licensed unless they are exempt from licensure. Cal. Bus. & Prof. Code §§ 7700-7191; Ball v. Steadfast-BLK, 196 Cal. App. 4th 694, 700 (2011). In California, employers are generally mandated to carry worker’s compensation insurance. See Cal. Lab. Code § 3700. Additionally, under the Contractors’ State License Law, a licensed
1:00 PM
CONT...
Joe Kearney
Chapter 13
contractor must carry worker's compensation insurance if he or she has one or more employees. See Cal. Bus. & Prof. Code §§ 7125(a) & (b). A licensed contractor’s failure "to obtain or maintain workers compensation insurance coverage, if required under [the Contractors’ State License Law], shall result in the automatic suspension of the license by operation of law." Cal. Bus. & Prof. Code § 7125.2.
A license suspension extinguishes a contractor’s licensed status and subjects him or her to possible sanctions under § 7031. See Wright v. Issak, 149 Cal. App. 4th 1116, 1122-23(2007). Section 7031(b) provides that "a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract." Cal. Bus. & Prof. Code § 7031(b).
Relying on § 7031(b), Creditor argues that Debtor must disgorge the
$346,723 she paid to him, including $74,953.99 in interest, because (1) Debtor was a contractor subject to the licensing requirement; (2) at least one of Debtor’s workers on the Project was an employee, and not an independent contractor, such that Debtor was required to obtain worker’s compensation insurance coverage; and (3) Debtor was considered an unlicensed contractor during the Project due to his not obtaining the required workers’ compensation insurance coverage as an employer.
Debtor does not dispute that he contracted with Creditor to construct an addition and make renovations to the Property; that Miguel Ramos performed a variety of contracting work on the Project; that Miguel Ramos was not licensed as a contractor throughout the Project; that he did not carry workers’ compensation insurance coverage at any time during the Project; and that Creditor made a total of $346,723 payments to him. The only fact that Debtor contends is whether Miguel Ramos worked for him or was one of his workers on the Project by declaring that he "used as my subcontractors various persons, including, without limitation, Miguel Ramos."
Debtor’s declaration, however, contradicts his prior admissions and does
1:00 PM
CONT...
Joe Kearney
Chapter 13
not really dispute Creditor’s assertions. Debtor filed a Statement of Genuine Issues [Dkt. No. 75] in which he concedes that Miguel Ramos performed work on the Project [Fact No. 17] and that "Miguel Ramos worked for the Debtor for approximately 25 years [Fact No. 13]. In response to interrogatories, Debtor also admitted that Miguel Ramos is his supervising employee in the Project [Kirkner Decl. Ex. 41 at 58; Ex. 42 at 67]. "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Van Asdale v. Intl’ Game Tech, 577 F.3d 989, 998 (9th Cir. 2009). Based on Debtor’s admissions, there is no genuine dispute on whether Miguel Ramos worked for Debtor on the Project. Accordingly, there is no genuine dispute that Debtor violated the Contractors’ State License Law and that Cal. Bus. & Prof. Code § 7031’s disgorgement provision applies.
Debtor’s opposition to this Motion mainly targets the constitutionality of § 7031 by arguing that the statute violates the Fourteenth Amendment’s Due Process Clause and that disgorgement under § 7031(b) imposes an excessive fine in violation of the Eighth Amendment. First, Debtor argues that § 7031(b) violates the Due Process Clause by depriving contractors of the opportunity to be heard on issues, such as whether the contractor completed the task; whether the client will be unjustly enriched; whether the contractor may retain any of his costs; or whether the client has deliberately and fraudulently made use of the scheme to gain a benefit without payment.
The Fourteenth Amendment provides, in relevant part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. The Due Process Clause generally requires that individuals receive notice and an opportunity to be heard before being deprived of property. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993). A procedural due process claim has two elements: (1) the deprivation of a constitutionally protected property interest; and (2) the denial of adequate procedural protections. See Brewster v. Bd. Of Educ. Of the Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998).
On his procedural due process claim, Debtor relies on G&G Fire
1:00 PM
CONT...
Joe Kearney
Chapter 13
Sprinklers, Inc. v. Bradshaw, 156 F.3d 893 (9th Cir. 1998). G&G Fire Sprinklers, Inc. involves a constitutional challenge to a portion of the California Labor Code, which authorized the state to direct the withholding of payments due to a subcontractor on a public works project if the subcontractor failed to comply with prevailing wage requirements, without notice or hearing given to the subcontractor. See Id. at 898-99. The Ninth Circuit determined that the state’s action of withholding payments without a pre- or post-deprivation opportunity to be heard violated the Due Process Clause. Id. at 904. Based on this decision, Debtor concludes that § 7031’s provision requiring disgorgement of money paid to him as an unlicensed contractor also violates the Due Process Clause.
G&G Fire Sprinklers, Inc. is not controlling, however, because the Supreme Court in Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 199 (2001) has overruled this decision. The Supreme Court concluded that California’s statutory withholding scheme did not deprive subcontractors of their property without due process of law so long as the government provided the subcontractors the opportunity to bring a post-deprivation lawsuit in state court to recover the payments withheld. See Lujan, 532 U.S. at 197-99. The Supreme Court observed that "if California makes ordinary judicial process available to [the subcontractor] for resolving its contractual dispute, that process is due process." Lujan, 532 U.S. at 197.
Even if G&G Fire Sprinklers, Inc. were still good law, its ruling would not apply here. First, the subcontractors in G&G Fire Sprinklers, Inc. "suffered a deprivation of a protectible property interest as a result of a state’s action." G&G Fire Sprinklers, Inc., 156 F.3d at 903. By contrast, there is no state action in this case. Because this dispute is between private parties, the Due Process Clause is not implicated. Cf. Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)(observing how the Due Process Clause "erects no shield against merely private conduct, however discriminatory or wrongful"); Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478, 485 (1988)("Private use of state sanctioned private remedies or procedures does not rise to the level of state action"). Second, unlike the subcontractor in G&G Fire Sprinklers, Inc., who was not afforded a pre- deprivation hearing before the withholding of payments, Debtor here is provided an opportunity for a hearing at a meaningful time, and in a meaningful manner, before any possible property deprivation. Debtor was provided notice of the hearing and an opportunity to present his case before this court. Additionally, in conformance with Lujan, § 7031 provides an unlicensed contractor due process
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CONT...
Joe Kearney
Chapter 13
before any deprivation of a property interest by requiring a judicial proceeding before a tribunal before the contractor’s compensation is disgorged. See Cal. Bus. & Prof. Code § 7031(b)(allowing aggrieved party to "bring an action in any court of competent jurisdiction" to recover amounts paid). For the foregoing reasons, this court finds that § 7031(b) does not violate the Fourteenth Amendment’s Due Process Clause.
Debtor next argues that § 7031 is unconstitutional because it imposes an excessive fine under the Eighth Amendment. The Eighth Amendment provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. A constitutional challenge under the Eighth Amendment involves a two-step inquiry: (1) whether the clause applies; and (2) if so, whether the fine at issue is excessive. See Engquist v. Or. Dep’t. of Agric., 478 F.3d 985, 1006 (9th Cir. 2007), aff’d., 553 U.S.
591 (2008).
Debtor argues that the first prong is satisfied because the Excessive Fines clause applies to state legislation. Pimentel v. City of Los Angeles, 2018 U.S. Dist. LEXIS 85054 at *9 (C.D. Cal. May 21, 2018). In Pimentel, the question before the district court was whether civil penalties for parking meter violations imposed by a city government violated the Excessive Fines Clause. See Pimentel, 2018 U.S. Dist. LEXIS 85054, at *10. Pimentel involved a lawsuit between private parties and a government body, whereas this case involves a dispute between private parties only.
Indeed, the Excessive Fines Clause only applies if some government action is involved. United States v. Bajakajian, 524 U.S. 321, 327-28 (1998) (discussing how the Excessive Fines Clause limits the government’s power to extract payments for punishment for some offense); Browning-Ferris Indus. V. Kelco Disposal, 492 U.S. 257, 260 (1989)("the Eighth Amendment places limits on the steps a government may take against an individual, whether it be keeping him in prison, imposing excessive monetary sanctions, or using cruel and unusual punishments. The fact that punitive damages are imposed through the aegis of courts and serve to advance governmental interests is insufficient" for the Court "to apply the Excessive Fines Clause in a case between private parties"); Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 1006 (9th Cir. 2007)(finding that the
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CONT...
Joe Kearney
Chapter 13
Excessive Fines Clause "applies only to government acts that are intended to punish").
Based on the Supreme Court and Ninth Circuit precedent, this court must conclude that the Excessive Fines Clause does not apply to this civil action between private parties, which involves no government action. While the statutory scheme concerning licensed contractors and workers compensation insurance can be draconian, it is clear California law. As explained in the cases cited below, it has been repeatedly upheld and enforced by the California courts.
Finally, Debtor directs his argument against the amount claimed in the Motion. The Motion seeks adjudication that Creditor suffered damages of
$421,676.99, which includes $346,723 in payments and $74,953.99 in interest. Debtor contends that the principal amount of $346,723 does not account for at least $25,000 in setoffs Creditor owes Debtor for work he performed.
There is no dispute that Debtor is deemed an unlicensed contractor because he did not have worker’s compensation insurance for an employee. An unlicensed contractor is precluded by § 7031(a) from recovering any compensation for work that requires a contractor's license, including payment for the agreed contract price or the reasonable value of labor and materials. MR Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., 36 Cal. 4th 412 (2005); Hydrotech Sys., Ltd. v. Oasis Waterpark, 52 Cal. 3d 988, 997 (1991). An unlicensed contractor is required to return all compensation received without reductions or offsets. Cal. Bus. & Prof. Code § 7031(b)("a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract")(emphasis added); White v. Cridlebaugh, 178 Cal. App. 4th 506, 520-21 (2009); accord Judicial Council of Cal. v. Jacobs Facilities, Inc., 239 Cal. App. 4th 882, 896 (2015) ("Although construction contractors often make substantial payments to others for materials and labor, an unlicensed contractor forfeits all money paid, without offsets for such payments to third parties"); Alatriste v. Cesar’s Exterior Designs, Inc., 183 Cal. App. 4th 656 (2010)("As with section 7031(a), section 7031(b) does not permit a contractor to assert legal or equitable defenses"); Davis Moreno
1:00 PM
CONT...
Joe Kearney
Chapter 13
Constr., Inc. v. Frontier Steel Bldgs. Corp., Case No. 1:08-cv-00854-OWW-SMS, 2010 U.S. Dist. LEXIS 116566, at *25-26 (E.D. Cal. Nov. 2, 2010)(granting summary judgment against unlicensed subcontractor on prime contractor’s disgorgement claim under § 7031(b) to allow recovery of all amounts paid to subcontractor and denying subcontractor’s counterclaim seeking amounts owed for services rendered to prime contractor as subcontractor’s because unlicensed subcontractor could not recover any compensation under § 7031(a)). Given the overwhelming precedent precluding unlicensed contractors from receiving any offsets, this court must find that Debtor is not entitled to any offsets.
Creditor also asserts entitlement to prepetition prejudgment interest totaling $74,953.99 based on a 7.00 percent annual interest rate, which has allegedly accrued on the $346,723 principal of the Disgorgement Claim. In support of her claim for accrued interest, Creditor provides an itemization of each of the 18 checks Debtor received and the accrued interest on each. Debtor does not dispute the computation of the $74,953.99 in accrued interest. Rather, Debtor contends that Creditor is not entitled to receiving interest because (1) the Disgorgement Claim, including the interest thereon, is based on an unconstitutional statute; (2) there is no "judgment" in which to base accrual of interest, and interest has not yet accrued because the question of whether Debtor owes anything has yet to be determined by the Claim Objection and this Motion;
(3) the Motion fails to cite any authority as to why prejudgment interest is appropriate in the context of the Claim Objection.
Debtor’s arguments do not create a genuine dispute for trial. First, this court has discussed why the disgorgement scheme under § 7031 cannot be deemed unconstitutional based on current precedent. Second, although the state court civil action is currently pending before the Los Angeles Superior Court, a claim objection proceeding in bankruptcy court takes the place of the state court lawsuit or other action. Veal v. Am. Home Mortg. Servicing, Inc. (In re Veal), 450
B.R. 897, 918 (B.A.P. 9th Cir. 2010). A bankruptcy court’s allowance or disallowance of a claim is a final judgment. Siegel v. Fed. Home Loan Mortg. Corp.,143 F.3d 525, 529 (9th Cir. 1998).
Third, a creditor is entitled to prepetition prejudgment interest in a disgorgement claim if the applicable state law allows interest to accrue on the
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CONT...
Joe Kearney
Chapter 13
underlying claim. Otto v. Niles (In re Niles), 106 F.3d 1456, 1463 (9th Cir. 1997) (noting that where nondischargeable debt arises under state law, "the award of prejudgment interest on that debt is also governed by state law"); Key Bank Nat’l Ass’n v. Milham (In re Milam), 141 F.3d 420, 423 (2d Cir. 1998)("Prepetition interest is generally allowable to the extent and at the rate permitted under the applicable nonbankruptcy law"); In re Lamarre, 269 B.R. 266 (Bankr. D. Mass. 2001)(holding that prepetition prejudgment interest on a claim that is fixed and liquidated during the bankruptcy accrued interest that was not prohibited under
§ 502(b)(2)). To support her claim of entitlement to receiving accrued interest, Creditor points to two California Appellate Court decisions, which imposed prejudgment interest as part of a judgment on an unlicensed contractor on a § 7031(b) claim. Alatriste, 183 Cal. App. 4th at 660, 663 (affirming trial court’s judgment against unlicensed contractor for $57,500 plus interest); White, 178 Cal. App. 4th at 522-23 (modifying trial court’s judgment to grant judgment against unlicensed contractor for $84,621.45 plus interest). This court finds the California Appellate Court decisions sound and conforms to their decision including prejudgment interest on a disgorgement claim under § 7031(b).
The motion is GRANTED.
Party Information
Debtor(s):
Joe Kearney Represented By
Robert M Aronson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:19-11422
Joe Kearney
Chapter 13
#17.00 Status Conference Re:
Motion to Disallow Claims of Patricia Leupold (claim # 8-1) fr. 10/22/19, 12/17/19
Docket 37
Tentative Ruling:
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Joe Kearney Represented By
Robert M Aronson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Tuesday, March 10, 2020
Hearing Room
302
11:00 AM
1:19-11301
Robert Benjamin Sautter
Chapter 13
#1.00 Motion for Order Determining Value of Collateral [11 U.S.C. § 506(a), FRBP 3012]: 3859 Sherwood
Place, Sherman Oaks, CA 91423
fr. 7/30/19, 9/24/19; 11/19/19; 1/28/20
Docket 18
*** VACATED *** REASON: continued to 3.31.20 at 11:00 a.m. per stipulation
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Robert Benjamin Sautter Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10419
Diane Newman
Chapter 13
#0.01 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 8
Tentative Ruling:
Party Information
Debtor(s):
Diane Newman Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10427
Marie Darlene Evangelista
Chapter 13
#0.02 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 9
Tentative Ruling:
Party Information
Debtor(s):
Marie Darlene Evangelista Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10451
Arda Alex Yanik
Chapter 13
#0.03 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 9
Tentative Ruling:
Party Information
Debtor(s):
Arda Alex Yanik Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10457
Lidia Ovando Aguila
Chapter 13
#0.04 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 9
*** VACATED *** REASON: Sub. of Attorney filed by D. Douglas on 3-13
-20 (hm)
Tentative Ruling:
Party Information
Debtor(s):
Lidia Ovando Aguila Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-13055
Mark David Cave
Chapter 13
#1.00 Motion for relief from stay MUFG UNION BANK, N.A.
Docket 112
*** VACATED *** REASON: Resolved per APO (doc. 116) - hm Tentative Ruling:
Party Information
Debtor(s):
Mark David Cave Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-13198
Nelda Fuentes and Jose Fuentes
Chapter 13
#2.00 Motion for relief from stay CSMC 2018-RPL10 TRUST
Docket 62
*** VACATED *** REASON: Resolved per APO (doc. 66) - hm Tentative Ruling:
Party Information
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
10:00 AM
1:19-11717
Lois Ann Harris
Chapter 13
#3.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
fr. 1/8/20, 2/5/20
Docket 48
Tentative Ruling:
This hearing was continued from 2/5/20 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
Previous tentative below Petition Date: 7-11-2019
Chapter: 13
Service: Proper. Opposition filed.
Property: 6828 Laurel Canyon Blvd. #102, North Hollywood, CA 91605 Property Value: $350,000 (per debtor’s schedules)
Amount Owed: $387,902.25 Equity Cushion: 0.0% Equity: $0
Post-Petition Delinquency: $5,881.80 (4 late payments of $1,945.76 each)
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); 7 (waiver of the 4001(a)(3) stay); 12 (Debtor is a borrower for purposes of Cal. Civ. Code. 2923.5); and 13 (if stay not granted, order APO).
Debtor opposed explaining that she is 62 years old and is a caregiver and Lyft driver, who has lived in the home since the early 90s. Debtor generates monthly income of
$1,500 by renting out the Property and another rental property for $1,500 per month.
Debtor faced financial hardship when she had a heart condition, which caused her to default on payments. A family tragedy further caused Debtor to fall behind on July, September, and November 2019 payments, but Debtor made a partial payment for
10:00 AM
CONT...
Lois Ann Harris
Chapter 13
October 2019.
Debtor alleges filing the bankruptcy in good faith and having substantially complied with the chapter 13 requirements. Debtor plans to pay the delinquency in 2 payments and become current before the hearing date.
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Lois Ann Harris Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12207
Sahin Sultana
Chapter 13
#4.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST CO
Docket 41
Tentative Ruling:
Petition Date: 9/03/2019
Ch. 13; confirmed on 1/03/2020 Service: Proper. No opposition filed.
Property: 18630 Napa St., Northridge, CA 91324 Property Value: $ 479,582 (per debtor’s schedules) Amount Owed: $ 504,889.74
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $8,502.96 (4 postpetition preconfirmation payments of
$2,125.74)
Movant alleges cause for relief under 362(d)(4) due to unauthorized transfers of, and multiple bankruptcies affecting, the subject property. Movant alleges that this is, at least, the sixth bankruptcy filed by this Debtor and/or co-borrower Mohammed Hanif that has affected the subject property.
DISPOSITION: GRANT under 11 U.S.C. 362(d)(1), with relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3(a) (Movant permitted to engage in loss mitigation activities); 6 (waiver of the 4001(a)(3) stay); 7 (law enforcement may evict); 8 (relief under 362(d)(4)); and 9 (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.
Party Information
Debtor(s):
Sahin Sultana Represented By
10:00 AM
CONT...
Trustee(s):
Sahin Sultana
Allan S Williams
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12735
Reynaldo Rene Vizcarra
Chapter 7
#5.00 Motion for relief from stay LAKEVIEW LOAN SERVICING INC.
Docket 54
Tentative Ruling:
Petition Date: 10/30/2019 Ch. 7
Service: Proper. No opposition filed.
Property: 450 Calle Jazmin, Thousand Oaks, CA 91360 Property Value: $550,000 (per debtor’s schedules) Amount Owed: $ 364,849.02
Equity Cushion: 33.7% Equity: $185,150.98
Post-Petition Delinquency: $17,474.73 (9 payments of $2,157.98)
There is a judgment lien recorded by Infinity Capital Funding on 5/14/19 in the amount of $6,741,713.60 against Debtor. Debtor has 5 properties (including this one) roughly equating to $5,000,000.
Disposition: GRANT 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).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Reynaldo Rene Vizcarra Represented By David R Hagen
Trustee(s):
Diane C Weil (TR) Pro Se
10:00 AM
1:20-10002
Pete Magdaleno
Chapter 13
#6.00 Motion for relief from stay
WILMINGTON SAVINGS FUND SOCIETY FSB
Docket 12
Tentative Ruling:
Petition Date: 01/01/20 Ch. 13
Service: Proper. Opposition filed.
Property: 13529 Bracken Street, Arleta, CA 91331-6212 Property Value: $ 484,000 (per debtor’s schedules) Amount Owed: $ 359,397.00
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: None alleged in Movant's RFS Motion.
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 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 effective against any debtor who claims interest in the property for 180 days) 10 (order is binding in any other bankruptcy case for 2 years)
Movant alleges that the original borrower (brother of debtor, Luis Magdaleno) has filed multiple bankruptcy petitions as part of a scheme to delay, hinder or defraud Movant. Original borrower Luis has filed 2 bankruptcy cases in past 3 years.
Debtor counters that he has an equitable interest in the property because he lives with his brother Luis and assists in making mortgage payments. Alleges bad faith by Movant, asserting that it refused to provide mortgage payoff figures in Luis' most recent case 19-11408-VK until Luis dismissed his bankruptcy. Debtor alleges that Movant delayed giving them the payoff figures until Dec. 23, 2019 and then reset the foreclosure sale for ten days later, on Jan. 2, 2020. Because of the holidays, Debtor contends that he and his brother were unable to secure refinancing within the ten days provided and Movant refused to delay the foreclosure sale.
APPEARANCE REQUIRED
10:00 AM
CONT...
Debtor(s):
Pete Magdaleno
Party Information
Chapter 13
Pete Magdaleno Represented By Anil Bhartia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10143
Jorge Alberto Renderos
Chapter 7
#7.00 Motion for relief from stay
US BANK NATIONAL ASSOC.
Docket 9
Tentative Ruling:
Petition Date: 01/21/2020 Ch. 7
Service: Proper. No opposition filed.
Property: 37625 Baro Circle, Palmdale, CA 93550 Property Value: $275,000 (per debtor’s schedules) Amount Owed: $259,777.07
Equity Cushion: 5.5% Equity: $15,222.93
Delinquency: $32,953.98 (16 payments of $2,013.90)
Debtor has 1 bankruptcy case that was dismissed on 11/22/19 for failure to attend 341 meeting. Debtor is pro se.
GRANT 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).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Jorge Alberto Renderos Pro Se
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:20-10281
Cristina Perez
Chapter 7
#8.00 Motion for relief from stay TD AUTO FINANCE LLC
Docket 7
Tentative Ruling:
Petition Date: 02/05/2020 Chapter: 7
Service: Proper. No opposition filed. Property: 2017 Nissan Sentra Property Value: $ 9,000 (per movant) Amount Owed: $ 17,396.96
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $756.62
Grant 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) and 6 (waiver of 4001(a)(3) stay). Movant alleges that the last payment of $344.27 was received on or about 01/20/2020.
Debtor's daughter operates the vehicle and makes payments towards the loan.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Cristina Perez Represented By Navid Kohan
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:20-10367
Maria Rosales
Chapter 13
#9.00 Motion in Individual Case for Order Imposing
a Stay or Continuing the Automatic Stay as the Court Deems Appropriate.
19125 Olympia Street Porter Ranch, CA 91326 .
Docket 7
Tentative Ruling:
On 2/18/20, Debtor filed this chapter 13 case. Debtor had one previous bankruptcy case that was dismissed within the previous year. The First Filing, 19-11343-MT, was a chapter 13 that was filed on 5/29/19 and dismissed on 10/25/19 at the plan confirmation hearing. On 10/21/2019, relief from stay was granted as to the Olympia St. Property in the First Filing.
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. Debtor claims that there has been a substantial change in her financial affairs. Debtor states that since the First Filing was dismissed, her brother-in-law can again help make plan payments by submitting a family contribution. Debtor claims that the property is necessary for a successful reorganization because this is her primary residence income.
Service proper. No opposition filed.
MOTION GRANTED. NO APPEARANCE REQUIRED. RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Maria Rosales Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11120
Jennifer H. Nguyen
Chapter 13
#9.01 Motion for relief from stay
THE BANK OF NEW YORK MELLON
fr. 2/26/20
Docket 48
Tentative Ruling:
This hearing was continued from 2/26/20 so that Debtor could tender a large payment to Movant and then an APO was to be negotiated for any remaining deficiency. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
2-26-20 TENTATIVE BELOW
Petition Date: 4/28/2017
Ch.13; confirmed on 10/12/2017.
Service: Proper; Co-debtor served. No opp filed. Property: 7968 Fairchild Avenue, Los Angeles, CA 91306 Property Value: $ 600,000
Amount Owed: $ 409,247.60 Equity Cushion: 31.8% Equity: $190,725.04.
Post-Petition Delinquency: $52,551.33 (7 payments of $2,616.89 + 5 payments of
$2,879.05 + 7 payments of $3,036.53 less suspense balance of $1,417.86)
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 (co-debtor stay is terminated) and 7 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment of $2,813.00 was received was on or about 2/21/2019.
There appears to be a sufficient amount of equity here, but the deficiency is large; have the parties had an opportunity to discuss if an APO is appropriate?
APPEARANCE REQUIRED
10:00 AM
CONT...
Debtor(s):
Jennifer H. Nguyen
Party Information
Chapter 13
Jennifer H. Nguyen Represented By Rob R Nichols
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12944
Winston L. Alexander
Chapter 7
#10.00 Motion For An Order Disgorging Attorney Compensation Pursuant To 11 U.S.C. § 329
Docket 11
*** VACATED *** REASON: Ntc. of w/drawal filed 2/25/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Winston L. Alexander Represented By Daniel King
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:18-11081
Jose Luis Correa Nava
Chapter 7
#11.00 Trustee's Final Report and Applications for Compensation
Docket 37
Tentative Ruling:
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.
Party Information
Debtor(s):
Jose Luis Correa Nava Represented By Francis Guilardi
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:16-12791
Menco Pacific, Inc.
Chapter 11
#12.00 U.S. Trustee Motion to dismiss or convert case
Docket 511
*** VACATED *** REASON: Ntc. of w/drawal filed 2/19/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Menco Pacific, Inc. Represented By Jeffrey S Shinbrot
10:00 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
#13.00 U.S. Trustee Motion to dismiss or convert case
Docket 129
*** VACATED *** REASON: OUST filed a withdrawal - Doc. #133. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
10:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#14.00 U.S. Trustee Motion to dismiss or convert Case
Docket 164
*** VACATED *** REASON: OUST filed a withdrawal - Doc. #174. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
PB-1, LLC Represented By
Jeffrey S Shinbrot
10:00 AM
1:19-11646
Michael T Stoller
Chapter 11
#15.00 U.S. Trustee Motion to dismiss or convert case
Docket 83
Tentative Ruling:
T’ee. moves to dismiss because (1) Debtor has not provided evidence of insurance declaration for 2010 Mercedes and Monthly Operating Report for November and December 2019; (2) Debtor has not paid $325 in 4th quarter fees; (3) Debtor has not filed a disclosure statement and Ch. 11 plan; and (4) Debtor is unlikely to obtain confirmation for lack of assets.
Debtor filed a Monthly Operating Report for November and December 2019 and January 2020. Debtor also filed a motion to reconsider the granting of relief from stay on the property located at 5747 Hoback Glen Road, Hidden Hills, California.
No opposition filed.
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Michael T Stoller Represented By Matthew Abbasi
10:00 AM
1:18-10309
Henry Andreas Ingvarsson and Keri Ingvarsson
Chapter 11
#16.00 U.S. Trustee Motion to dismiss or convert case
Docket 174
Tentative Ruling:
US Trustee moves to dismiss because (1) Debtors have not provided evidence of renter’s insurance declaration, evidence of insurance declaration for the Mercedes Benz, and Monthly Operating Report for October, November, and December 2019;
Debtors have not paid $1,302.25 of 3rd and 4th quarter fees.
The U.S. Attorney’s Office filed a joinder arguing in support of the Motion because Debtor has no unencumbered assets to administer; Debtor is not in compliance with post-petition tax obligations; and dismissal is in the creditors’ best interest.
No opposition filed.
APPEARANCE REQUIRED
Debtor(s):
Party Information
Henry 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
1:18-10309
Henrik Andreas Ingvarsson and Keri Ingvarsson
Chapter 11
#17.00 Chapter 11 Plan of Reorganization
fr. 2/6/19, 4/3/19, 5/15/19, 7/31/19, 9/18/19, 11/6/19; 1/15/20, 2/26/20
Docket 75
Tentative Ruling:
Given the feasibility issues presented by the proposed plan and the pending objection, this plan cannot be confirmed. The issues raised by the UST in the pending motion to dismiss (cal. no. 16), the issues raised by the IRS in the joinder thereto (ECF doc. 186), and that Debtors' counsel's motion to withdraw (ECF doc. 185) will be granted makes it highly unlikely that these Debtors can propose a confirmable plan.
APPEARANCE REQUIRED
Debtor(s):
Party Information
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
1:18-10309
Henry Andreas Ingvarsson
Chapter 11
Adv#: 1:19-01102 Barton et al v. Ingvarsson et al
#17.01 Status Conferece re: Complaint for nondischargeability
of debt and objection to discharge pursuant to section 523(a) fr. 10/23/2019; 1/29/20; 2/26/20
Docket 1
Tentative Ruling:
See Tentative Ruling for cal. no. 16
APPEARANCE REQUIRED
Debtor(s):
Party Information
Henry Andreas Ingvarsson Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Defendant(s):
Keri Ingvarsson Pro Se
Henry Andreas Ingvarsson Pro Se
TKC Media Group, LLC Pro Se
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Plaintiff(s):
Daniel and Helena Barton Represented By Sevan Gorginian
No Such Agency Represented By
10:00 AM
CONT...
Henry Andreas Ingvarsson
Sevan Gorginian
Chapter 11
10:00 AM
1:18-10309
Henrik Andreas Ingvarsson and Keri Ingvarsson
Chapter 11
#17.02 Scheduliing and Case Management Conference
fr. 3/28/18; 10/24/18; 2/6/19, 2/27/19, 4/3/19, 5/15/19, 7/31/19, 9/18/19, 11/6/19; 1/15/20; 2/26/20
Docket 1
Tentative Ruling:
See Tentative Ruling for cal. no. 17
APPEARANCE REQUIRED
Debtor(s):
Party Information
Henrik Andreas Ingvarsson Represented By Matthew D Resnik
Joint Debtor(s):
Keri Ingvarsson Represented By Matthew D Resnik
10:00 AM
1:18-11821
Sonia D. Roman
Chapter 7
Adv#: 1:18-01110 Roman v. US Bank ELT Brazos ELA Inc. et al
#18.00 Pre-trial conference re complaint for: dischargeability of student loan
fr. 1/9/19, 8/21/19; 1/15/20
Docket 1
*** VACATED *** REASON: Stip. cont. to 5/13/20 @10am (eg) Tentative Ruling:
Party Information
Debtor(s):
Sonia D. Roman Represented By Christine A Kingston
Defendant(s):
US Bank ELT Brazos ELA Inc. Pro Se
Pennsylvania Higher Education Pro Se
Plaintiff(s):
Sonia D. Roman Represented By Christine A Kingston
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
1:17-10527
Sharique Ahmed Shaikh
Chapter 7
Adv#: 1:19-01016 Weil, Chapter 7 Trustee v. Shaikh
#19.00 Status Conference Re: Complaint to Avoid and Recover Fraudulent Transfers and/or Preferential Transfers
fr. 5/15/19; 5/22/19, 12/18/19
Docket 4
*** VACATED *** REASON: Cont'd to 5/13/20 per Order #23. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Sharique Ahmed Shaikh Represented By Kenumi T Maatafale
Defendant(s):
Ishraque Shaikh Pro Se
Plaintiff(s):
Diane C Weil, Chapter 7 Trustee Represented By
Jessica L Bagdanov
Trustee(s):
Diane C Weil (TR) Represented By David Seror
Jessica L Bagdanov
11:00 AM
1:18-11965
Ian Jacoby
Chapter 7
Adv#: 1:18-01117 Williams v. Jacoby
#20.00 Pre trial conference re complaint for: willful and malicious injury
fr. 1/9/19, 10/23/19, 1/15/20
Docket 1
*** VACATED *** REASON: Stip. cont to 9/2/20 @10am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Ian Jacoby Represented By
Andrew Goodman Vincent V Frounjian
Defendant(s):
Ian Jacoby Pro Se
Plaintiff(s):
Garrett Williams Represented By Lazaro E Fernandez
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
1:19-10925
Roben Saeidian
Chapter 7
Adv#: 1:19-01113 David Seror, Chapter 7 Trustee v. Saeidian
#21.00 Status Conference Re: Complaint for
Avoidance and Recovery of Preferential Transfer and (2) Preservation of Transfer Avoid
fr. 12/11/19
Docket 1
*** VACATED *** REASON: Order Dismissing adv. 2/20/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Roben Saeidian Represented By
Hamid Soleimanian
Defendant(s):
Jonathan Saeidian Pro Se
Plaintiff(s):
David Seror, Chapter 7 Trustee Represented By Elissa Miller
Trustee(s):
David Seror (TR) Represented By Elissa Miller Sulmeyer Kupetz
11:00 AM
1:19-10925
Roben Saeidian
Chapter 7
Adv#: 1:19-01114 David Seror, Chapter 7 Trustee v. Nostrati
#22.00 Status Conference Re: Complaint for
(1) Avoidance and Recovery of Preferential Transfer and (2) Preservation of Transfer Avoid
fr. 12/11/19
Docket 1
*** VACATED *** REASON: Order Dismissing adv. 2/20/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Roben Saeidian Represented By
Hamid Soleimanian
Defendant(s):
Saeid Nostrati Pro Se
Plaintiff(s):
David Seror, Chapter 7 Trustee Represented By Elissa Miller
Trustee(s):
David Seror (TR) Represented By Elissa Miller Sulmeyer Kupetz
11:00 AM
1:19-11292
Mani Mukherjee
Chapter 7
Adv#: 1:19-01104 Uddin et al v. Mukherjee
#23.00 Status Conference re: Complaint objecting to Discharge of debt under 11 U.S.C. section 523 (a)(2) and (a)(6)
fr. 10/23/19
Docket 1
Tentative Ruling:
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Mani Mukherjee Represented By Armen Shaghzo
Defendant(s):
Mani Mukherjee Pro Se
Plaintiff(s):
Zohir Uddin Represented By
Mazyar H Mazarei
Delwara Uddin Represented By Mazyar H Mazarei
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:19-12322
M Shah Dental Inc
Chapter 7
Adv#: 1:19-01153 Mejia et al v. M Shah Dental Inc et al
#24.00 Status Conference re: Complaint
Docket 1
*** VACATED *** REASON: filed ntc. of dismissal on 1/21/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
M Shah Dental Inc Represented By Shirlee L Bliss
Defendant(s):
Mihir Shah Pro Se
M Shah Dental Inc Pro Se
Plaintiff(s):
Veronica Flores Sanchez Pro Se
Araceli Mejia Represented By harout messrelian
Sevag Nigoghosian
Trustee(s):
Nancy J Zamora (TR) Represented By Noreen A Madoyan Jeremy Faith
11:00 AM
1:16-12791
Menco Pacific, Inc.
Chapter 11
#25.00 Post-Confirmation Status Conference
fr. 10/25/17, 12/13/17, 3/21/18; 3/28/18, 6/6/18; 11/7/18; 12/18/18, 2/20/19; 6/6/19/ 7/16/19; 8/8/19, 10/2/19; 12/11/19
Docket 0
Tentative Ruling:
fr. 12/11/19
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Menco Pacific, Inc. Represented By Jeffrey S Shinbrot
11:00 AM
1:19-11646
Michael T Stoller
Chapter 11
#26.00 Scheduling and Case Managment Conference
fr. 9/11/19
Docket 42
Tentative Ruling:
fr. 9/11/19
T’ee. filed a motion to dismiss. Debtor did not oppose but filed a Monthly Operating Report for November and December 2019 and January 2020. Debtor filed a Motion to Reconsider the RFS, which will be considered on the papers.
APPEARANCE REQUIRED.
9/11/19 Tentative Below:
Proposed claim bar date: November 1, 2019 Objections to claims deadline: December 2, 2019 Avoidance actions deadline: December 16, 2019
Proposed disclosure statement filing deadline: January 22, 2020 Proposed disclosure statement hearing: March 11, 2020 at 11 am
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL
STATUS CONFERENCE for 9/11/19 tentative.
Party Information
Debtor(s):
Michael T Stoller Represented By Matthew Abbasi
11:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#27.00 Motion re: Objection to Claim Number 7,8 by
Claimant Foothill Financial, LP, et al,FCI Lender Services, Inc. and Med Equity, LLC et al c/o FCI Lenders Services, Inc..
fr. 12/11/19
Docket 142
Tentative Ruling:
fr. 12/11/19
APPEARANCE REQUIRED.
Debtor(s):
Party Information
PB-1, LLC Represented By
Jeffrey S Shinbrot
11:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#28.00 Scheduling and Case Management Conference
fr. 2/6/19, 3/13/19; 4/3/19; 6/17/19; 6/24/19, 7/18/19 12/11/19
Docket 1
Tentative Ruling:
fr. 12/11/19
APPEARANCE REQUIRED.
Debtor(s):
Party Information
PB-1, LLC Represented By
Jeffrey S Shinbrot
11:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#29.00 Status Conference RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
(1) Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19
Docket 21
Tentative Ruling:
fr. 12/18/19
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
11:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#30.00 Motion to Extend Exclusivity Period for Filing a Chapter 11 Plan and Disclosure Statement
Docket 49
Tentative Ruling:
Debtor seeks extensions of (1) the Plan Exclusivity Period from March 20, 2020 through July 20, 2020 (which is an additional approximately 120 days), and, (2) for purposes of maintaining the Debtor’s exclusive right to file its plan of reorganization, the Solicitation Exclusivity Period from May 22, 2020 through September 21, 2020 (which is an additional approximately 120 days).
NO opposition has been filed. GRANTED for cause.
APPEARANCE REQUIRED for other hearings but not this one.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
11:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#31.00 Case Management Conference
Docket 0
Tentative Ruling:
APPEARANCE REQUIRED.
Debtor(s):
Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
1:00 PM
1:19-12134
Mehrnaz Fotoohi
Chapter 7
Adv#: 1:19-01143 Irani v. Fotoohi
#32.00 Motion for Summary Judgment
Docket 6
Tentative Ruling:
APPEARANCE REQUIRED
Debtor(s):
Party Information
Mehrnaz Fotoohi Represented By Fari B Nejadpour
Defendant(s):
Mehrnaz Fotoohi Pro Se
Plaintiff(s):
Karin Irani Represented By
Sanaz S Bereliani
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:19-01142 PCB Debt LLC v. Lee
#33.00 Motion to Dismiss Complaint
Docket 11
Tentative Ruling:
Albert Lee ("Debtor" or "Defendant") had a state court judgment entered against him and SH Supply, Inc. for $706,542.72 in September 2011 (the "Judgement"). The Judgment was in favor of Pacific City Bank (the "Bank").
Defendant filed for Chapter 7 bankruptcy on July 25, 2018. About three months later, on November 5, 2018, Debtor received a discharge. Debtor’s case was reopened about a week later on November 13, 2018.
The Bank collected $5,000 before Defendant filed for bankruptcy. The Bank then assigned its remaining interest in the Judgment to PCB Debt, LLC ("Plaintiff"), a Nevada limited liability company in October 2019. About two months later, Plaintiff initiated an adversary action against Defendant (the "Complaint").
The Complaint is comprised of three claims for relief. The first two claims seek to revoke Defendant’s discharge under 11 U.S.C. § 727(d)(1) because Defendant allegedly obtained his Chapter 7 discharge through fraud by concealing
$20,000 in monthly income and his connection to and interest in two corporations. The third claim seeks to revoke Debtor’s discharge under 11 U.S.C. § 727(d)(2) because Defendant allegedly acquired property of the bankruptcy estate and knowingly failed to report its acquisition.
In response, Defendant moves to dismiss Plaintiff’s Complaint (the "Motion"). The Motion contends that the Complaint fails to state a claim for relief under Fed. R. Civ. Pro. 12(b)(6) and that Plaintiff lacks capacity to bring the claims. Plaintiff opposes Defendant’s dismissal Motion ("Opposition").
1:00 PM
CONT...
Albert Lee
Chapter 7
12(b)(6)
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint’s allegations. "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). 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).
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 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. 556 U.S at 678 (citations and internal quotation marks omitted).
The allegations of the complaint, along with other materials properly before the court on a motion to dismiss, can establish an absolute bar to recovery. See Weisbuch v. County of Los Angeles, 119 F.3d 778, 783 n. 1 (9th Cir. 1997)("If the pleadings establish facts compelling a decision one way, that is as good as if depositions and other expensively obtained evidence on summary judgment establishes the identical facts."). While the court generally must not consider materials outside the complaint, the court may consider exhibits submitted with the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). A court may also consider judicially noticed matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Dismissal is warranted only if it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts that could be proved. Halet v. Wend Investment Co., 672 F.2d 1305, 1309 (9th Cir. 1982).
Federal Rule of Civil Procedure 9(b) imposes heightened pleading
1:00 PM
CONT...
Albert Lee
Chapter 7
requirements for fraud claims. 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).
First & Second Claims for Relief
Plaintiff seeks to revoke Defendant’s discharge under 11 U.S.C. § 727(d)(1) because Defendant allegedly obtained his Chapter 7 discharge through fraud by (1) knowingly and fraudulently making materially false statements in his bankruptcy documents; and (2) knowingly and fraudulently making materially false statements under oath at the § 341(a) meeting of creditors (a) by testifying that his bankruptcy documents were true and correct; and/or (b) by testifying that all of his assets were disclosed in his schedules.
Revocation of a discharge is an extraordinary remedy. Bowman v. Belt Valley Bank (In re Bowman), 173 B.R. 922, 924 (9th Cir. BAP 1994). A Chapter 7 discharge may be revoked if the "discharge was obtained through the fraud of the debtor, and the requesting party did not know of such fraud until after the granting of such discharge…" 11 U.S.C. § 727(d)(1). The plaintiff must prove, by a preponderance of the evidence, that the debtor procured the discharge through actual fraud, as opposed to constructive fraud, and that the debtor’s discharge would not have been granted "but for" the fraud. Tanasescu v. Bors (In re Bors), BAP No. CC-12-1214-KiDH, 2012 Bankr. LEXIS 5807, at *25-26 (9th Cir. BAP December 17,
2012). A finding of fraud in the procurement of the discharge requires evidence of some conduct that would have caused the bankruptcy court to deny the debtor’s discharge under § 727(a)((4)(A). Id. at *27.
A bankruptcy judge should deny a discharge under § 727(a)(4)(A) if, inter alia, "the debtor knowingly and fraudulently, in or in in connection with the
1:00 PM
CONT...
Albert Lee
Chapter 7
case…made a false oath or account…" 11 U.S.C. § 727(a)(4)(A). In the Ninth Circuit, to prove a violation of Section 727(a)(4)(A), the plaintiff must prove that the debtor (1) made a false oath in connection with the case; (2) related to a material fact; (3) knowingly and fraudulently. Jones v. U.S. Tr., Eugene, 736 F.3d 897, 900 (9th Cir. 2013)(holding that "a material fraud, which would have resulted in the denial of a Chapter 7 discharge had it been known at the time of such discharge, can justify subsequent revocation of that discharge under 11 U.S.C. § 727(d)(1)").
The Complaint sufficiently alleges one of the requirements for revocation under § 727(d)(1), which is that the Bank and Plaintiff did not know of, or have reason to know of, Defendant’s alleged bankruptcy fraud until after the court granted Defendant’s discharge. [Complaint ¶¶ 18, 21]. The court will now analyze whether the Complaint sufficiently alleges facts to state a plausible violation of § 727(a)(4)(A).
The Complaint Sufficiently Alleges that Defendant Made a False Oath
The $20,000 Monthly Allowance
The Complaint satisfies Rule 12(b)(6)’s pleadings standards and the heightened pleading standards for fraud under Rule 9(b) to state a claim for a false oath because the Complaint alleges with particularity the time, place, and content of Debtor’s false oath. Specifically, the Complaint alleges that Debtor did not disclose his income by:
declaring in his Schedule I, signed under penalty of perjury, that his monthly income was $1,520, earned entirely from working as an Uber driver, and that he had no other sources of income. [Compl. ¶ 8];
indicating $0 in response to Schedule I, at Part 2, line 8(c) that required Debtor to list "Family support payments that you, or a non-filing spouse, or a dependent regularly receive" and to "Include alimony, spousal support, child support, maintenance, divorce settlement and property settlement." [Id. ¶ 9];
indicating that he did not "receive any other income during this year or the two previous calendar years," in response to Question 5 of the SOFA where "Other income" is defined below Question 5 to include "alimony; child support." [Id. ¶ 10]; and
testifying at the meeting of creditors that his bankruptcy statements were true and correct and that all of his assets were disclosed in his schedules.
1:00 PM
CONT...
Albert Lee
Chapter 7
The Complaint also alleges that, contrary to Defendant’s representations, Defendant received $20,000 in monthly income. [Id. ¶ 12]. The $20,000 monthly income was allegedly revealed when Defendant’s former spouse, Sun Mi Choi, passed away in February 2019 and probate was opened in state court ("Probate Proceeding") in the Estate of Sun Mi Choi (the "Estate of Choi"). Defendant filed a "Second Supplement to Ex Parte Application for an Order for Special Letters of Administration" ("Application"). [Complaint Ex. A]. In the Application, Defendant requested a $20,000 monthly family allowance from the Estate of Choi in the following way:
Previously, Decedent [the former spouse] was providing an "unofficial" child support payment of $20,000 per month to Petitioner [Defendant] for the benefit of the children. Petitioner requests that the court authorize the Co-Special Administrators to continue to pay such family allowance going forward, and to pay retroactively for the month of February, which was not yet paid.
[Complaint ¶ 12].
Defendant contends that the Complaint does not allege that he received the
$20,000 monthly allowance at the time he filed his bankruptcy petition in July 2018. The Probate Proceeding opened after Defendant’s former spouse passed away in February 2019. Although the Probate Proceeding opened after Debtor filed his bankruptcy petition, the Complaint sufficiently alleges the plausibility of Defendant receiving the $20,000 monthly allowance at the time of his bankruptcy filing because the Complaint references the question in the SOFA with the relevant time frame and alleges that Defendant’s response to this question was false because he received the $20,000 monthly allowance. [Id. ¶ 10].
The plausibility of Defendant receiving the $20,000 monthly allowance at the time of the bankruptcy petition is also indicated by the Complaint’s allegation that Defendant wrote in his Application that "Although Petitioner did file for bankruptcy protection, there was no fraud committed as alleged by Park. The money that Petitioner [Defendant] received from Decedent after the divorce was for child support." [Id. ¶ 12].
Moreover, the Complaint alleges that Defendant indicated in his Application that "Previously, Decedent [his wife] was providing ‘unofficial’ child support payment of $20,000 per month to Petitioner [Defendant] for the benefit of the children." [Id.]
1:00 PM
CONT...
Albert Lee
Chapter 7
The court can reasonably infer that "previously" included the time of his bankruptcy filing because Defendant and his former wife had already filed a petition to dissolve their marriage in 2011 and executed a Marital Separate Agreement on July 31, 2014 ("Divorce Judgment"), which is before the bankruptcy petition date. [RJN Ex. G].
Because the Complaint alleges that the Divorce Judgment occurred almost four years before Defendant filed his bankruptcy petition in July 2018, it is plausible that the Defendant was receiving the $20,000 Monthly Allowance payments at the time of his bankruptcy petition.
Defendant’s Connection to and Interest in the Two Corporations
The Complaint also sufficiently alleges that Debtor made a false oath in connection to and claimed interest in the two corporations. Question 27 of the SOFA asks, "Within 4 years before you filed for bankruptcy, did you own a business or have any of the following connections to any business?...An officer, director or managing executive of a corporation." [Complaint ¶ 13]. Defendant answered in the negative, and the Complaint points to how Defendant’s answer is contradicted by his Declaration in the Probate Proceeding where he declared the following on March 6, 2019:
[¶ 5] I established Chas [Group, Inc.], in 2009, and Amberboa [Inc.], in 2012, and served as the "President" along with decedent Sun Mi Choi, up until approximately 2017. I was in charge of running and managing the entire business operations at Chas and Amberboa since inception to about March 2017.
[¶ 11] Decedent and I lived together for approximately 13 years, but even after our "paper" divorce in 2014, which was only for the protection and separation of assets due to bankruptcy…
[¶ 16] I completely trusted Decedent, and had no concern that my businesses were in Decedent’s name because we had 3 children together, and I believed that ultimately everything would go to them and be for their benefit.
[Complaint ¶ 14](emphasis added).
Defendant denies having any ownership interest in the two corporations at any time during the 4 years before his bankruptcy petition. Defendant explains that his Declaration in the Probate Proceeding was to rebut the ownership claims of his former spouse’s boyfriend, Brian Park, and that Plaintiff took his declaration out of context in which he stated, "I completely trusted Decedent, and had no concern that
1:00 PM
CONT...
Albert Lee
Chapter 7
my business were in Decedent’s name because we had 3 children together, and I believed that ultimately everything would go to them and be for their benefit." [Motion p. 14]. Defendant asserts that he and his wife intended for Defendant to have no ownership interest in the businesses and that he asserted to the probate court that he had no interest in his children’s inheritance. [Id.].
The court must accept all factual allegations in the Complaint as true despite Defendant’s explanations. The factual allegations are that (1) Defendant declared that he was the "President" until approximately 2017, which is within 4 years before he filed for bankruptcy in 2018; (2) Defendant referred to the corporations as "my businesses; and (3) Defendant declared that he was not the owner of record and was involved in a "paper divorce" only to protect assets from bankruptcy. These allegations are sufficient to state a plausible claim at this stage in the proceeding.
The Complaint Sufficiently Alleges that Defendant’s False Oath Related to a Material Fact
A material fact "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 Khalil, 379 B.R. 163, 173 (9th Cir. BAP 2007), aff’d, 578 F.3d 1167 (9th Cir. 2009).
Defendant’s alleged false oath concerning the two corporations is related to his business transactions or estate because the allegations connect to Question 27 of the SOFA, which inquired about Defendant's "connection to any business." [Complaint ¶ 13]. Also, Defendant’s false oath concerning the $20,000 monthly allowance relates to the discovery of Defendant's assets or the existence and disposition of Defendant's property because the allegation concerns Defendant’s income.
The Complaint sufficiently alleges the materiality of the false oaths.
The Complaint Sufficiently Alleges that Defendant Concealed Facts Knowingly and Fraudulently
A debtor acts knowingly if he or she "acts deliberately and consciously." In re Khalil, 379 B.R. at 173. Fraudulent intent under § 727(a)(4)(A) may be proven by "circumstantial evidence or by inferences drawn from [a debtor’s] course of conduct."
The Complaint sufficiently alleges that Defendant concealed material facts
1:00 PM
CONT...
Albert Lee
Chapter 7
knowingly, intentionally, and fraudulently. First, the Complaint alleges that "Defendant’s Schedule I, signed under penalty of perjury, required Defendant to list all sources of income. Defendant declared that his monthly income was $1,620, earned entirely from working as an ‘Uber driver.’ Defendant declared that he had no other sources of income. Defendant’s representations regarding his income were knowingly and intentionally false when made." [Complaint ¶ 8].
The Complaint also alleges that "Defendant’s SOFA, at Quest 27, signed under penalty of perjury, asked whether ‘[w]ithin 4 years before you filed for bankruptcy, did you own a business or have any of the following connections to any business? … An officer, director or managing executive of a corporation.’ Defendant responded to this question in the negative. This representation was knowingly and intentionally false when made…" [Id. ¶ 13].
Finally, the Complaint alleges that "By [Defendant’s] Declaration filed in the Probate Proceeding, signed under penalty of perjury, Defendant admitted that he committed bankruptcy fraud in this Bankruptcy Case in order to deny the Bank its right to collect on the Judgement Debt…" [Id. ¶ 15].
The Complaint’s general allegations of fraudulent intent are sufficient under Rule 9(b)’s heightened pleading standard because a plaintiff can allege generally intent, knowledge, and other conditions of a person's mind. See Fed. R. Civ. P. 9(b).
Whether Defendant’s Alleged Misrepresentation Was the "But For" Cause of Defendant’s Discharge
The Complaint sufficiently alleges that Defendant’s fraud caused the procurement of his Chapter 7 discharge. [Complaint ¶ 17, 20, 23].
Third Claim for Relief
The Complaint seeks to revoke Debtor’s discharge under 11 U.S.C. § 727(d)
(2) which provides that the court shall revoke a discharge if:
[T]he debtor acquired property that is property of the estate, or became entitled to acquire property that would be property of the estate, and knowingly and fraudulently failed to report the acquisition of or entitlement to such property, or to deliver or surrender such property to the trustee.
1:00 PM
CONT...
Albert Lee
Chapter 7
11 U.S.C. § 727(d)(2)
The Complaint sufficiently alleges a plausible claim for relief under § 727(d)
(2) by alleging that (1) Defendant concealed receiving $20,000 per month from his former spouse after the "paper divorce" and acquiring bankruptcy estate property; and (2) Defendant knowingly and fraudulently failed to report the acquisition of such property to the trustee. [Compl. ¶ 23]. The Complaint further alleges that neither the Bank nor Plaintiff knew of, or have reason to know of, Defendant’s bankruptcy fraud until after Defendant’s discharge was granted. [Id. ¶ 23].
Plaintiff’s Capacity to Bring a Claim
Defendant asserts that Plaintiff lacks capacity to bring its claims because it did not have a certificate of registration with the California Secretary of State while conducting intrastate business in California.
Capacity to sue is a party’s right to appear and bring a claim to court. Cmty. Bd. 7 v. Schaffer, 84 N.Y. 2d 148, 154-55 (N.Y. Ct. App. 1994). For limited liability companies, capacity to sue is determined by the law of the state where the federal court is located. Fed. R. Civ. P. 17(b)(3). In California, "[a] foreign limited liability company transacting intrastate business in this state shall not maintain an action or proceeding in this state unless it has a certificate of registration to transact intrastate business in this state." Cal. Corp. Code § 17708.07(a).
It is undisputed that Plaintiff is a Nevada limited liability company and did not obtain a Certification of Registration with the California Secretary of State. Plaintiff contends, however, that it did not engage in intrastate business in California because its "only activity in California is prosecuting the present action and maintaining an office address." Plaintiff is correct that maintaining or defending any action does not constitute transacting intrastate business in California. Cal. Corp. Code § 17708.03. Moreover, maintaining an office in California and having employees does not, by itself, constitute doing intrastate business. See Jarzab v. KM Enterprises, Inc., No. C 11-06671 LB, 2012 U.S. Dist. LEXIS 114575, at *10-13 (N.D. Cal. August 14, 2012).
As this is a motion to dismiss, Plaintiff’s allegations must be taken as true.
Defendant would have the burden of proving at a later stage that "(1) the action arises out of the foreign business’ intrastate business transactions; and (2) the foreign business commenced the action before qualifying to transact intrastate business. Sessions v. Prospect Funding Holdings LLC, No. CV 16-02620 SJO (DTBx), 2018 U.S. Dist. LEXIS 227979, at *8-9 (C.D. Cal. May 1, 2018). A foreign
1:00 PM
CONT...
Albert Lee
Chapter 7
limited liability company that engages in repeated and successive business transactions in California, other than in interstate or foreign commerce, is considered to be transacting intrastate business in California. Cal. Corp. Code § 17708.03(a).
Plaintiff sufficiently pled its first, second, and third claims for relief.
Defendant’s motion to dismiss is DENIED.
Party Information
Debtor(s):
Albert Lee Represented By
M Teri Lim
Defendant(s):
Albert Lee Represented By
Kurt Ramlo
Plaintiff(s):
PCB Debt LLC Represented By George T Busu James E Till
Bryan King Sheldon
Trustee(s):
David Keith Gottlieb (TR) Represented By Howard Camhi Peter A Davidson
1:00 PM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:19-01142 PCB Debt LLC v. Lee
#34.00 Status Conference re: Complaint to revoke discharge under 11 U.S.C. section 727
fr. 2/5/20
Docket 1
Tentative Ruling:
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Albert Lee Represented By
M Teri Lim
Defendant(s):
Albert Lee Pro Se
Plaintiff(s):
PCB Debt LLC Represented By George T Busu James E Till
Bryan King Sheldon
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
1:19-12904
Byron G Willilams
Chapter 7
#1.00 Reaffirmation Agreement with Ally Financial
Docket 15
Tentative Ruling:
Petition date: 11/19/2019
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 Dodge Ram
Debtor’s valuation of property (Sch. B): $16,000 Amount to be reaffirmed: $8,844.61
APR: 5.69%
Contract terms: $530.96 per month for 17 months Monthly Income (Schedule I): $1,650
Monthly expenses: (Schedule J): $2,721 Disposable income: ($1,071)
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 is a self-employed plumber and needs the vehicle for his job. In his Sch. J, Debtor provides for a $459 payment for this vehicle - not the $530.96 that is proposed in this reaffirmation agreement.
Debtor has a right to rescind agreement anytime prior to discharge, or until April 24, 2020, whichever is later.
Party Information
8:30 AM
CONT...
Debtor(s):
Byron G Willilams
Chapter 7
Byron G Willilams Represented By David S Hagen
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
1:19-13050
Jeremiah Bradley Whitman
Chapter 7
#2.00 Reaffirmation Agreement with Wells Fargo Bank
Docket 14
Tentative Ruling:
Petition date: 12/9/2019
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 Focus
Debtor’s valuation of property (Sch. B): $11,735 Amount to be reaffirmed: $12,618.82
APR: 6.99% (fixed)
Contract terms: $318.17 per month for 45 months Monthly Income (Schedule I): $3,883
Monthly expenses: (Schedule J): $1,712 Disposable income: $2,171
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 provide an explanation for how she will afford this payment. In his schedules, Debtor indicates that his employment is seasonal - Sch. J provides for this payment.
Debtor has a right to rescind agreement anytime prior to discharge, or until April 24, 2020, whichever is later.
Party Information
Debtor(s):
Jeremiah Bradley Whitman Pro Se
8:30 AM
CONT...
Trustee(s):
Jeremiah Bradley Whitman
Chapter 7
Nancy J Zamora (TR) Pro Se
8:30 AM
1:19-13098
Wade Foote
Chapter 7
#3.00 Reaffirmation Agreement with Mechanics Bank
Docket 15
Tentative Ruling:
Petition date: 12/13/2019
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: 2003 Porshe 911
Debtor’s valuation of property (Sch. B): $20,500 Amount to be reaffirmed: $7,882.49
APR: 8.99%
Contract terms: $453.74 per month for 19 months Monthly Income (Schedule I): $900
Monthly expenses: (Schedule J): $2,943.74 Disposable income: ($2,043.74)
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 has increased since filing. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until April 25, 2020, whichever is later.
Party Information
Debtor(s):
Wade Foote Represented By
Michael Jay Berger
8:30 AM
CONT...
Trustee(s):
Wade Foote
Chapter 7
Nancy J Zamora (TR) Pro Se
8:30 AM
1:20-10234
Jose H. Picado and Martha Lidia Picado
Chapter 7
#4.00 Reaffirmation Agreement with wescom central credit union wescom central credit union
Docket 15
Tentative Ruling:
Petition date: 1/30/2020
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 Toyota Camry
Debtor’s valuation of property (Sch. B): $6,275 Amount to be reaffirmed: $1,801
APR: 3.99%
Contract terms: $282.96 per month for approx. 6 mo., with reduced last payment Monthly Income (Schedule I): $6,362.69
Monthly expenses: (Schedule J): $6,358.57 Disposable income: $4.12
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 provide an explanation but the payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until May 4, 2020, whichever is later.
Party Information
Debtor(s):
Jose H. Picado Represented By
8:30 AM
CONT...
Jose H. Picado and Martha Lidia Picado
R Grace Rodriguez
Chapter 7
Joint Debtor(s):
Martha Lidia Picado Represented By
R Grace Rodriguez
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:12-19998
Process America, Inc.
Chapter 11
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
#1.00 Status conference re complaint for: damages and equitable relief
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, 6/26/19
9/21/18, 10/31/18; 12/12/18, 2/27/19; 3/13/19; 12/11/19, 1/29/20
2/26/20
Docket 1
*** VACATED *** REASON: hm Tentative Ruling:
Given that Chief Judge for the District Court has issued her Order No. 20-042
activating the Continuity of Operations Plan, directing that all courthouses in the Central District of California be closed to the public until May 1, 2020, and that no status report having been filed, this status conference is continued to May 20, 2020, at 10:00 a.m. Plaintiff to give notice of continued status conference.
NO APPEARANCE REQUIRED ON 3/25/2020
Party Information
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
10:00 AM
CONT...
Process America, Inc.
Chapter 11
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
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
U.S. Trustee(s):
United States Trustee (SV) Pro Se
10:00 AM
1:19-12217
Jaime Gutierrez
Chapter 13
#2.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST COMPANY
Docket 30
*** VACATED *** REASON: New hearing date 4/1/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Jaime Gutierrez Represented By Allan S Williams
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:13-17737
Pella Parker
Chapter 13
#66.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 8/20/19, 10/22/19, 12/17/19; 1/28/2(0
Docket 115
*** VACATED *** REASON: Cont. to 7/21/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Pella Parker Represented By
Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14146
Elisha Zeev Majerczyk
Chapter 13
#67.00 Status hearing re: Objection to entry of order valuing claim as requested in debtor's declaration after
ch. 13 plan completion or discharge fr. 2/25/20
Docket 74
*** VACATED *** REASON: Wells Fargo withdrew objection [#85] - ts Tentative Ruling:
Party Information
Debtor(s):
Elisha Zeev Majerczyk Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14146
Elisha Zeev Majerczyk
Chapter 13
#68.00 Hearing re: Opposition to response to notice of final
cure payment filed by creditor Wells Fargo Bank, N.A., et, al, and request evidence of canceled checks paid by creditor
fr. 2/25/20
Docket 0
*** VACATED *** REASON: Debtor withdrew opposition [#90]-ts Tentative Ruling:
Party Information
Debtor(s):
Elisha Zeev Majerczyk Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15455
Sirous Salem
Chapter 13
#69.00 Trustee's Motion to Dismiss Case Due to Expiration of the Plan.
Docket 72
*** VACATED *** REASON: Trustee cont'd to 7/21/20 at 11:00 a.m. lf Tentative Ruling:
Debtor opposes and declares that he filed his 2008 to 2013 tax returns and is
working with the Franchise Tax Board. Debtor believes he will not owe taxes once the FTB receives and processes his tax returns. Debtor requests to continue.
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Sirous Salem Represented By
William J Smyth Stephen S Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15487
Verjineh Isagholian
Chapter 13
#70.00 Trustee's Motion to Dismiss Case due to Expiration of Plan
Docket 53
*** VACATED *** REASON: Trustee cont'd to 7/21/20 @ 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Verjineh Isagholian Represented By Aris Artounians
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10398
Jose Luis Banuelos and Maria L. Tejada
Chapter 13
#71.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19, 2/25/20
Docket 63
*** VACATED *** REASON: Trustee cont'd to 6/23/20 @ 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Jose Luis Banuelos Represented By Leonard Pena
Joint Debtor(s):
Maria L. Tejada Represented By Leonard Pena
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10674
Shireen Janti Reid
Chapter 13
#72.00 Chapter 13 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 11/19/19; 1/28/20, 2/25/20
Docket 40
*** VACATED *** REASON: resolved per stip [#43]-ts Tentative Ruling:
Party Information
Debtor(s):
Shireen Janti Reid Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10707
Edward F Wrona and Diletta Wrona
Chapter 13
#73.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 9/24/19, 11/19/19; 1/28/20
Docket 34
*** VACATED *** REASON: Trustee cont'd to 4/28/20 at 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Edward F Wrona Represented By Devin Sawdayi
Joint Debtor(s):
Diletta Wrona Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10822
Tracey Lynne Baumert
Chapter 13
#74.00 Trustee's Motion To Dismiss Case for Failure to Submit All Tax Refunds
Docket 125
*** VACATED *** REASON: Cont. to 5/19/20 @11am (eg)
Tentative Ruling:
Debtor opposes explaining that 2015 through 2018 tax refunds totaling $24,767 will be provided before the hearing or a motion to modify will be filed.
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Tracey Lynne Baumert Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11162
Steven Sandler
Chapter 13
#75.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19; 1/28/20
Docket 98
*** VACATED *** REASON: Cont. to 7/21/20 @11am (eg) Tentative Ruling:
fr. 1/28/20
The last hearing was continued. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Steven Sandler Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11162
Steven Sandler
Chapter 13
#76.00 Trustee Motion for Failure to Submit All Tax Returns
fr. 1/28/20
Docket 108
*** VACATED *** REASON: Ntc. of w/drawal filed 3/4/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Steven Sandler Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-13123
Buenaventura Marquez
Chapter 13
#77.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19; 1/28/20
Docket 26
*** VACATED *** REASON: Cont. to 5/19/20 @11am (eg) Tentative Ruling:
fr. 1/28/20
The last hearing was continued. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Buenaventura Marquez Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14101
Carlita Smith
Chapter 13
#78.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 60
*** VACATED *** REASON: Cont. to 6/23/20 @ 11an (eg) Tentative Ruling:
Party Information
Debtor(s):
Carlita Smith Represented By
Lauren Rode
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10348
Jim K. Nikolopoulos and Ayarpi Nikolopoulos
Chapter 13
#79.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment Pursuant to 11 USC Sec. 1329(a) and the Percentage to be
Paid to Unsecured Creditors or, in the Alternative, Dismissing the Chapter 13 Petition Due to Debtrors' Failure to Make Debtors' Best Efforts to Repay Creditors Pursuant to 11 USC Sec. 1307(c)(6)
fr. 12/17/19; 1/28/20, 2/25/20
Docket 55
*** VACATED *** REASON: Trustee cont'd to 5/19/20 at 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Jim K. Nikolopoulos Represented By Scott D Olsen
Joint Debtor(s):
Ayarpi Nikolopoulos Represented By Scott D Olsen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10507
Amjad Shaktah
Chapter 13
#80.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 109
*** VACATED *** REASON: Trustee filed a withdrawal - doc. #114. lf Tentative Ruling:
Party Information
Debtor(s):
Amjad Shaktah Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11164
Bennie James Hildreth
Chapter 13
#81.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 49
*** VACATED *** REASON: Cont. to 7/21/20 @11am (eg) Tentative Ruling:
Debtor acknowledges falling behind on plan installments but explains that he can
bring the plan current before the hearing. If Trustee has not dismissed the case before the hearing, Debtor requests to continue to give him the opportunity to bring plan installments current. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Bennie James Hildreth Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11278
Armine Charkhchyan and Andranik Charkhchyan
Chapter 13
#82.00 Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 10/22/19, 12/17/19; 1/28/20, 2/25/20
Docket 73
Tentative Ruling:
fr. 2/25/20
The last hearing was continued. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Armine Charkhchyan Represented By
Rosie Barmakszian
Joint Debtor(s):
Andranik Charkhchyan Represented By
Rosie Barmakszian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12085
Arthur H. Song
Chapter 13
#83.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 12/17/19; 1/28/20, 2/25/20
Docket 34
*** VACATED *** REASON: Trustee cont'd to 4/28/2020 @ 11:00 am (tk) Tentative Ruling:
Party Information
Debtor(s):
Arthur H. Song Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12201
Andrea Beckham
Chapter 13
#84.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/22/19, 12/17/19; 1/28/20
Docket 42
*** VACATED *** REASON: Cont. to 5/19/20 @ 11an (eg) Tentative Ruling:
Party Information
Debtor(s):
Andrea Beckham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12264
Alicia Butterfield
Chapter 13
#85.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 11/19/19; 1/28/20, 2/25/20
Docket 62
*** VACATED *** REASON: Ntc. of w/drawal filed 3/5/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Alicia Butterfield Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12264
Alicia Butterfield
Chapter 13
#86.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 64
*** VACATED *** REASON: Trustee cont'd to 6/23/2020 @ 11:00 am (tk) Tentative Ruling:
Party Information
Debtor(s):
Alicia Butterfield Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12275
Cecilia Arrieta
Chapter 13
#87.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All
Tax Refunds
fr. 12/17/19; 1/28/20, 2/25/20
Docket 27
*** VACATED *** REASON: Trustee filed a withdrawal - doc. #36. lf Tentative Ruling:
Party Information
Debtor(s):
Cecilia Arrieta Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12400
Daniel Robert Eaton and Linell Zuidema Eaton
Chapter 13
#88.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 2/25/20
Docket 105
*** VACATED *** REASON: Trustee withdrew [#110]-ts Tentative Ruling:
Party Information
Debtor(s):
Daniel Robert Eaton Represented By
Rabin J Pournazarian
Joint Debtor(s):
Linell Zuidema Eaton Represented By
Rabin J Pournazarian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12613
Susan Griffin
Chapter 13
#89.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 11/19/19; 1/28/20, 2/25/20
Docket 50
*** VACATED *** REASON: Cont. to 5/19/20 @11am (eg) Tentative Ruling:
fr. 2/25/20
The last hearing was continued. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Susan Griffin Represented By
Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13055
Mark David Cave
Chapter 13
#90.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 107
*** VACATED *** REASON: Cont. to 7/21/20 @11am Tentative Ruling:
fr. 1/28/20
The last hearing was continued. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Mark David Cave Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13393
Carmen Avellanosa
Chapter 13
#91.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 70
*** VACATED *** REASON: Cont. to 7/21/20 @11am (eg) Tentative Ruling:
Debtor opposes and explains that she was terminated from job and that she filed a
motion to modify to reduce play payment from $2,070 to $500 and to reduce the percentage paid to unsecured creditors from 100% to 54%. The Trustee disapproves of the motion to modify. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Carmen Avellanosa Represented By
D Justin Harelik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13537
Tillman Pink, III
Chapter 13
#92.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20
Docket 47
*** VACATED *** REASON: trustee withdrew [#54] - ts Tentative Ruling:
Party Information
Debtor(s):
Tillman Pink III Represented By Anil Bhartia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10021
Nelson Humberto Pinto
Chapter 13
#93.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 1/28/20
Docket 105
*** VACATED *** REASON: Cont. to 7/21/20 @11am (eg) Tentative Ruling:
fr. 1/28/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Nelson Humberto Pinto Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10164
Christy Ann Nelson
Chapter 13
#94.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20
Docket 86
Tentative Ruling:
fr. 2/25/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue
Party Information
Debtor(s):
Christy Ann Nelson Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10559
Teresa Ann Marquez
Chapter 13
#95.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/24/19, 11/19/19; 1/28/20
Docket 45
Tentative Ruling:
fr. 1/28/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Teresa Ann Marquez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10739
Jacobo Lopes Tunchez
Chapter 13
#96.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
Docket 46
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #54. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Jacobo Lopes Tunchez Represented By Kevin T Simon
Amelia Puertas-Samara
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10811
Daniel Mora
Chapter 13
#97.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20, 2/25/20
Docket 38
*** VACATED *** REASON: Cont. to 6/23/20 @11am (eg) Tentative Ruling:
fr. 2/25/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Daniel Mora Represented By
Axel H Richter
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10856
Marian Woods and Timothy Woods
Chapter 13
#98.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20
Docket 45
*** VACATED *** REASON: Ntc. of w/drawal filed 3/16/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Marian Woods Represented By Aalok Sikand
Joint Debtor(s):
Timothy Woods Represented By Aalok Sikand
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11130
Monet R Davis
Chapter 13
#99.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20
Docket 32
*** VACATED *** REASON: Cont. to 4/28/20 @11am (eg) Tentative Ruling:
fr. 2/25/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Monet R Davis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11159
Levia Blane Arbuckle
Chapter 13
#100.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 110
*** VACATED *** REASON: Trustee cont'd to 5/19/20 at 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Levia Blane Arbuckle Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#101.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/24/19, 11/19/19; 1/28/20
Docket 138
*** VACATED *** REASON: Cont. to 6/23/20 @11am (eg) Tentative Ruling:
fr. 1/28/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
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
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#102.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20
Docket 151
*** VACATED *** REASON: Cont. to 6/23/20 @11am (eg) Tentative Ruling:
fr. 1/28/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
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
1:17-11380
Maria Magdalena Carmona
Chapter 13
#103.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 2/25/20
Docket 78
*** VACATED *** REASON: Cont. to 7/21/20 @11am (eg) Tentative Ruling:
fr. 2/25/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Maria Magdalena Carmona Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11387
Haroutiun Papazian
Chapter 13
#104.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 1/28/20
Docket 50
*** VACATED *** REASON: Trustee cont'd to 5/19/20 at 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Haroutiun Papazian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11777
Cindy Lee Harris
Chapter 13
#105.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19, 2/25/20
Docket 68
*** VACATED *** REASON: Trustee cont'd to 4/28/20 at 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Cindy Lee Harris Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11804
Eduardo N Trillo, Jr. and Maritess Biglangawa Trillo
Chapter 13
#106.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20
Docket 58
*** VACATED *** REASON: Cont. to 4/28/20 @11am (eg) Tentative Ruling:
fr. 1/28/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Eduardo N Trillo Jr. Represented By Elena Steers
Joint Debtor(s):
Maritess Biglangawa Trillo Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11995
Priscilla Jeanette Bueno
Chapter 13
#107.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 58
*** VACATED *** REASON: Trustee cont'd to 5/19/2020 @ 11:00 am (tk) Tentative Ruling:
Party Information
Debtor(s):
Priscilla Jeanette Bueno Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12102
Arman Tombakian
Chapter 13
#108.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 11/19/19; 1/28/20, 2/25/20
Docket 62
*** VACATED *** REASON: trustee withdrew [#72]-ts Tentative Ruling:
Party Information
Debtor(s):
Arman Tombakian Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12329
Barbara Jean Woodard-Cox
Chapter 13
#109.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 1/28/20
Docket 70
*** VACATED *** REASON: Trustee cont'd to 5/19/20 at 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Barbara Jean Woodard-Cox Represented By Barry E Borowitz Michael E Clark
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12363
Janice Marie Semien
Chapter 13
#110.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 1/28/20, 2/25/20
Docket 58
*** VACATED *** REASON: Ntc. of w/drawal filed 3/25/20 (eg) Tentative Ruling:
fr. 2/25/20
Trustee and Debtor stipulated to a modification. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Janice Marie Semien Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12363
Janice Marie Semien
Chapter 13
#111.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20
Docket 52
*** VACATED *** REASON: Ntc. of w/drawal filed 3/4/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Janice Marie Semien Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12666
Francisco Guerrero
Chapter 13
#112.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 2/25/20
Docket 43
*** VACATED *** REASON: Ntc. of w/drawal filed 3/5/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Francisco Guerrero Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12668
Demonica E M Santiago-Plummer
Chapter 13
#113.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 121
Tentative Ruling:
Trustee’s motion indicates a $6,543 delinquency. Debtor opposes and states that she will bring receipts of payments to the hearing and/or file a motion to modify/suspend. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Demonica E M Santiago-Plummer Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12943
Alireza Alex Mesrinejad and Mojgan Taghipour
Chapter 13
#114.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 91
Tentative Ruling:
Trustee’s motion indicates a $450 delinquency. Debtor opposes and states that she will bring receipts of payments to the hearing and/or file a motion to modify/suspend. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Alireza Alex Mesrinejad Represented By Kevin T Simon
Joint Debtor(s):
Mojgan Taghipour Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13047
Brenda Leigh Worden-Jones
Chapter 13
#115.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
Docket 31
*** VACATED *** REASON: Trustee cont'd to 7/21/20 at 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Brenda Leigh Worden-Jones Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13196
Isaac Nessim Azoulay
Chapter 13
#116.00 Chapter 13 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment
fr. 11/19/19; 1/28/20, 2/25/20
Docket 49
*** VACATED *** REASON: Trustee filed a withdrawal - doc. #68. lf Tentative Ruling:
Party Information
Debtor(s):
Isaac Nessim Azoulay Represented By Steven L Bryson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13365
Sundara Devananda Rao
Chapter 13
#117.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20, 2/25/20
Docket 57
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #65. lf Tentative Ruling:
Party Information
Debtor(s):
Sundara Devananda Rao Represented By William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#118.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20, 2/25/20
Docket 45
*** VACATED *** REASON: Cont. to 5/19/20 @11am Tentative Ruling:
fr. 2/25/20
What is the status of this motion? TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Marvin Eleid Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10551
Joaquin Martinez
Chapter 13
#119.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/24/19, 11/19/19, 12/17/19; 1/28/20
Docket 68
*** VACATED *** REASON: Cont. to 5/19/20 @11am (eg) Tentative Ruling:
fr. 1/28/20
What is the status of this motion? TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Joaquin Martinez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10671
Yuriy Sharonov
Chapter 13
#120.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20
Docket 37
*** VACATED *** REASON: Cont. to 5/19/20 @ 11an (eg) Tentative Ruling:
Party Information
Debtor(s):
Yuriy Sharonov Represented By Vahe Khojayan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11210
Thomas Vy Nguyen
Chapter 13
#121.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 62
Tentative Ruling:
fr. 1/28/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Thomas Vy Nguyen Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11806
Maria Heredia
Chapter 13
#122.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 63
*** VACATED *** REASON: Trustee cont'd to 7/21/20 at 11:00 a.m. lf Tentative Ruling:
Debtor opposes and states that she will be current by the hearing date.
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Maria Heredia Represented By Erika Luna
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12016
Gregory Bernard Walker and Brenda Yvonne Walker
Chapter 13
#123.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 6/25/19, 7/30/19; 8/20/19, 10/22/19, 12/17/19, 2/25/20
Docket 60
*** VACATED *** REASON: Trustee cont'd to 7/21/20 at 11:00 a.m. lf Tentative Ruling:
fr. 2/25/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Gregory Bernard Walker Represented By Thomas B Ure
Joint Debtor(s):
Brenda Yvonne Walker Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12042
Vrej Anbarsoun and Anahid Anbarsoun
Chapter 13
#124.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20
Docket 58
*** VACATED *** REASON: Ntc. of w/drawal filed 3/25/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Vrej Anbarsoun Represented By David A Tilem Donna R Dishbak
Joint Debtor(s):
Anahid Anbarsoun Represented By David A Tilem Donna R Dishbak
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12473
Stephen Anthony Cook
Chapter 13
#125.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 56
*** VACATED *** REASON: Cont. to 6/23/20 @11am (eg) Tentative Ruling:
fr. 1/28/20
Has Trustee received Debtor’s payment? TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Stephen Anthony Cook Represented By Lauren Rode
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12653
Rolando Drilon Quimson
Chapter 13
#126.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20, 2/25/20
Docket 46
*** VACATED *** REASON: Ntc. of w/drawal filed 3/2/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Rolando Drilon Quimson Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12737
Craig A. Lapiner
Chapter 13
#127.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 89
*** VACATED *** REASON: Trustee cont'd to 7/21/20 at 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Craig A. Lapiner Represented By Eliza Ghanooni
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12957
Arturo Gutierrez
Chapter 13
#128.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 37
*** VACATED *** REASON: Trustee cont'd to 4/28/20 at 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Arturo Gutierrez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-13035
Rolando M Rodriguez
Chapter 13
#129.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20
Docket 34
*** VACATED *** REASON: Cont. to 7/21/20 @ 11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Rolando M Rodriguez Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10003
Edwin E. Vidanez
Chapter 13
#130.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20
Docket 25
*** VACATED *** REASON: Cont. to 7/21/20 @11am Tentative Ruling:
fr. 2/25/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Edwin E. Vidanez Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10040
Yoonah Mason
Chapter 13
#131.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 72
*** VACATED *** REASON: Cont. to 6/23/20 @11am (eg) Tentative Ruling:
The motion indicates $3,006 delinquency. Debtor opposes and states that he will
bring payment receipts to the hearing or file a motion to modify/suspend. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Yoonah Mason Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10611
Juan Manuel Arias
Chapter 13
#132.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 33
*** VACATED *** REASON: Moot - Case Dismissed 2/28/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Juan Manuel Arias Represented By Jaime A Cuevas Jr.
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10692
Anna Maria Liden
Chapter 13
#133.00 Motion under Local Bankruptcy Rule 3015-1 (n) and
(w) to modify plan or suspend plan payments
Docket 32
Tentative Ruling:
Trustee disapproves of the modification and states that (1) she does not oppose Debtor retaining the $2,967 for car repairs, but opposes the purchase of a $1,745 refrigerator because the refrigerator can be purchased for as little as $220 and creditors should not have to support the purchase of a luxury item; and (2) she proposes for Debtor to increase the remaining payments by $2,322 to reimburse creditors for the refrigerator purchase.
Debtor replied and declared that the $220 refrigerator is too small and not suitable for a family of four and the $1,745 refrigerator purchased was reasonable to meet her family’s needs. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Anna Maria Liden Represented By Michael E Clark
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10781
Daniel Correa
Chapter 13
#134.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 32
*** VACATED *** REASON: Cont. to 4/28/20 @ 11an (eg) Tentative Ruling:
Party Information
Debtor(s):
Daniel Correa Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10976
Andre Fitzgerald Hayes
Chapter 13
#135.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20
Docket 61
*** VACATED *** REASON: Case dismissed -Motion Moot Tentative Ruling:
The court entered order granting dismissal of this case. This motion is denied as
moot. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Andre Fitzgerald Hayes Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11081
Noel Dia and Imee Dia
Chapter 13
#136.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 22
*** VACATED *** REASON: Cont. to 6/23/20 @11am (eg) Tentative Ruling:
Debtors oppose and state that they will file a motion to modify/suspend shortly.
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Noel Dia Represented By
Rabin J Pournazarian
Joint Debtor(s):
Imee Dia Represented By
Rabin J Pournazarian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11288
Ronald Harris Gladle
Chapter 13
#137.00 Motion to Avoid Lien JUNIOR LIEN with Wells Fargo Bank, N.A.
3rd TD on 22344 Burton Street, Canoga Park, CA 91304
fr. 7/30/19, 9/24/19, 10/22/19, 1/28/20; 2/25/20
Docket 23
*** VACATED *** REASON: continued to 4.28.2020 at 11:00 a.m. - ts Tentative Ruling:
Party Information
Debtor(s):
Ronald Harris Gladle Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11301
Robert Benjamin Sautter
Chapter 13
#138.00 Motion for Order Determining Value of Collateral [11 U.S.C. § 506(a), FRBP 3012]: 3859 Sherwood
Place, Sherman Oaks, CA 91423
fr. 7/30/19, 9/24/19; 11/19/19; 1/28/20; 3/10/20
Docket 18
*** VACATED *** REASON: Continued to May 19, 2020 at 11:00 a.m.
Tentative Ruling:
Party Information
Debtor(s):
Robert Benjamin Sautter Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11717
Lois Ann Harris
Chapter 13
#139.00 Motion to Avoid Junior Lien on Principal Residence [11 U.S.C. § 506(d)] : 6828 Laurel Canyon Blvd.,
Unit 102, North Hollywood, CA 91605 fr. 9/24/19, 11/19/19; 1/28/20, 2/25/20
Docket 30
Tentative Ruling:
Having reviewed the docket for this case and finding that the parties have resolved the matter per stipulation, this hearing is continued to April 28, 2020, at 11:00 a.m., so that the parties have time to have the stipulation approved and this Motion withdrawn.
APPEARANCES WAIVED on 3/31/2020.
Party Information
Debtor(s):
Lois Ann Harris Represented By Matthew D Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11762
Christopher Michael Niblett
Chapter 13
#140.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 47
*** VACATED *** REASON: Cont. to 4/28/20 @11am (eg) Tentative Ruling:
Debtor opposes and states that he will be current on or before the hearing.
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Christopher Michael Niblett Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11964
Hazel M Renderos
Chapter 13
#141.00 Motion RE: Objection to Claim Number 3 by Claimant Los Angeles County Treasurer and Tax Collector
Docket 28
Tentative Ruling:
Debtor objects to the $31,810.71 claim filed by the Los Angeles County Treasurer and Tax Collector ("Tax Collector").
Under FRBP 3001(f), "a proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶ 3001.05[2].
An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c).
To defeat a claim, a debtor must present 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. "The objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992).
"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
11:00 AM
CONT...
Hazel M Renderos
Chapter 13
226 (quoting In re Allegheny Int’l, Inc., 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times upon the claimant. See In re Holm, 931 F.2d at 623.
The Tax Collector’s proof of claim is prima facie evidence of the validity and amount of the claim. Debtor has produced sufficient evidence, however, to refute the claim. Debtor declares that (1) she does not owe any property taxes because her mortgage payments include property taxes; and (2) she believes that the next-door neighbor owes these property taxes and the Tax Collector has been using the wrong address and Assessor’s Parcel Number. Additionally, Debtor’s counsel, Nathan A. Berneman ("Counsel"), declares that he contacted Debtor’s mortgage company and that he received documents evidencing payments the mortgage company made on Debtor’s behalf to the Tax Collector. The documents are attached to Counsel’s declaration as Exhibit B.
The burden is now on the Tax Collector to prove the validity of its claim by a preponderance of the evidence. Given that the Tax Collector has not filed an opposition to prove the validity of its claim, Debtor’s objection is SUSTAINED.
Service proper.
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hazel M Renderos Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12112
Deborah Rose Sanders
Chapter 13
#142.00 Motion to Avoid JUNIOR LIEN with PNC Bank, National Association fr. 11/19/19; 1/28/20
Docket 29
*** VACATED *** REASON: Cont. to 4/28/20 @ 11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Deborah Rose Sanders Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#142.01 Motion RE: Objection to Claim Number 7 by Claimant STARR TAXMAN.
Docket 70
*** VACATED *** REASON: Continued to April 28, 2020 at 11:00 a.m. to give Clamaint time to respond - ts
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#142.02 Motion RE: Objection to Claim Number 8 by Claimant STARR TAXMAN.
Docket 71
*** VACATED *** REASON: Continued to April 28, 2020 at 11:00 a.m. to give Clamaint time to respond - ts
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#142.03 Motion RE: Objection to Claim Number 9 by Claimant STARR TAXMAN.
Docket 72
*** VACATED *** REASON: Continued to April 28, 2020 at 11:00 a.m. to give Clamaint time to respond - ts
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#142.04 Motion RE: Objection to Claim Number 10 by Claimant STARR TAXMAN.
Docket 73
*** VACATED *** REASON: Continued to April 28, 2020 at 11:00 a.m. to give Clamaint time to respond (eg)
Tentative Ruling:
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#142.05 Motion RE: Objection to Claim Number 5 by Claimant KRYCLER, ERVIN, TAUBMAN & KAMINSKY.
Docket 74
*** VACATED *** REASON: Continued to April 28, 2020 at 11:00 a.m. to give Clamaint time to respond, (eg)
Tentative Ruling:
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12207
Sahin Sultana
Chapter 13
#143.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 43
*** VACATED *** REASON: Trustee cont'd to 7/21/20 at 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Sahin Sultana Represented By Allan S Williams
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12562
Shiela Sayrafi
Chapter 13
#144.00 Motion For Order Determining Value of Collateral [11 U.S.C. § 506(a), FRBP 3012)
Docket 23
Tentative Ruling:
Debtor is to file a declaration in support of her appraisal on or before April 15, 2020. Creditor to file its appraisal on or before April 27, 2020. Would the parties be willing to stipulate to a schedule of filing written critiques of the other side’s appraisal report in lieu of an evidentiary hearing? The court would be willing to have argument either in written form or telephonically following the submission of both appraisals and both critiques.
Party Information
Debtor(s):
Shiela Sayrafi Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12952
Richard Lopez
Chapter 13
#145.00 Motion RE: Objection to Claim Number 4 by Claimant The Bank of New York Mellon c/o Specialized Loan Servicing, LLC with request for valuation of security, payment of fully secured claims, and modification of undersecured claims.
Docket 25
*** VACATED *** REASON: Cont. to 4/28/20 @11am (eg) Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Richard Lopez Represented By James Studer
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12968
Kevin Frederick Montague
Chapter 13
#146.00 Trustee's Objection to Homestead Exemption
Docket 23
Tentative Ruling:
Trustee objected to Debtor's attempt to exempt $157,739 in equity in real property at 5744 Burnet Avenue, Van Nuys, CA 91411 under C.C.P. § 704.950 because T'ee asserts that Debtor has not provided evidence (i.e. a copy of a filed homestead declaration) that Debtor is entitled to this exemption.
Service proper. Debtor has not filed a response to this objection. Objection SUSTAINED.
NO APPEARANCE REQUIRED
Party Information
Debtor(s):
Kevin Frederick Montague Represented By Scott Kosner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#147.00 Debtor's Motion To Impose Automatic and Non-Automatic Stays
As To Pending State Court Order To Show Cause Hearing By Melissa Pearcy
Docket 27
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13169
Lekan Aremu Gbadamosi and Diana Y Kuchmar
Chapter 13
#148.00 Trustee's Objection to Homestead Exemption to Debtors' Claim of Pending Personal Injury Claim Pursuant to C.C.P. Sec. 704.140.
Docket 15
*** VACATED *** REASON: Trustee cont'd to 4/28/20 at 11:00 a.m. lf Tentative Ruling:
Party Information
Debtor(s):
Lekan Aremu Gbadamosi Represented By Elena Steers
Joint Debtor(s):
Diana Y Kuchmar Gbadamosi Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10250
Kenneth Larkin
Chapter 13
#148.01 Motion for Order Determining Value of Collateral
Docket 10
*** VACATED *** REASON: continued to 4.28.2020 at 11:00 a.m. -ts Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Kenneth Larkin Represented By James G. Beirne
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:30 AM
1:17-11120
Jennifer H. Nguyen
Chapter 13
#149.00 Order to Show Cause why Debtor's Attorney, Rob R. Nichols, should not have fees Disgorged for Failure to Comply with Rights and Rresponsibilities Agreement.
Docket 52
*** VACATED *** REASON: OSC ORDER VACATED
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Jennifer H. Nguyen Represented By Rob R Nichols
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
12:00 PM
1:18-10891
Hamid Farkhondeh
Chapter 13
Adv#: 1:18-01067 Laaly et al v. Farkhondeh et al
#150.00 Status conference re complaint for:
dischargeability of debt for false pretenses
false representations, and/or actual fraud
objection to debtors' discharge, pursuant to 523 and 727 of the bankruptcy code
fr. 8/8/18; 12/12/18; 4/10/19; 4/23/19, 6/25/19; 8/20/19, 9/24/19, 11/19/19 1/28/20, 2/25/20
Docket 1
*** VACATED *** REASON: Case to be dismissed Tentative Ruling:
Because this ruling was taken under advisement and already argued, there is no
need for an appearance. because the Chapter 13 case is being dismissed, there is no need for a status conference on the adversary, which will also be dismissed.
Thus, NO APPEARANCE PERMITTED. This ruling speaks for itself:
Noushin Laaly and Kourosh Laaly ("Creditors") filed a complaint in state court against Hamid Farkhondeh and Mary Dadyan ("Debtors") on January 9, 2017. The state court entered a final judgment on September 30, 2019 and awarded $501,934.17 in damages plus $14,131.21 in attorney’s fees for a total amount of $662,416.38. The state court also ordered money sanctions against Debtors and their attorney for misuse of the discovery process and additional sanctions of $1,310,000 against Farkhondeh for failing to comply with state court orders.
On April 11, 2018, Debtors filed a Chapter 13 petition. On June 13, 2018, debtors hired new counsel and then filed their first amended plan on June 15, 2018 ("First Amended Plan"). Later, on September 18, 2018, Creditors filed a motion to dismiss Debtors’ Chapter 13 bankruptcy case for bad faith ("Motion to Dismiss"). The court held an evidentiary hearing on November 2, 2018 ("First MTD") concerning Creditors’ Motion to Dismiss. After the parties presented witnesses and provided closing arguments, the court found that Debtors’ bankruptcy case was not filed in bad faith and denied Creditors’ Motion to
12:00 PM
CONT...
Hamid Farkhondeh
Chapter 13
Dismiss. At the time of that hearing, the plan provided for monthly payments of
$1200 per month for 60 months, totaling $72,000. It was stated to be a 100% plan, but the final judgment had not yet been ruled on by the Superior Court. Objections to confirmation and the motion to dismiss centered on the fact that the petition was filed in response to the litigation, the sale of debtors’ home (the "Alonzo property") and disposition of the proceeds and the failure to account for settlement of a lawsuit against Home Depot. Creditors also alleged that the debtors’ income was insufficient to fund the payments promised in the plan. They believed that the debtors should have arranged to pay them more from the sale of the Alonzo property and the Home Depot settlement.
At the evidentiary hearing, the court took testimony from both debtors and reviewed all documents submitted by the parties. The court found that both debtors were largely credible. The final ruling discussed that although Debtors did not properly file their petition and did not read the schedules carefully enough before signing, their actions did not rise to the level of bad faith. The court found that (1) Debtors did not conceal any assets and that the sale of the Alonzo Property was permissible; (2) the evidence presented was not persuasive to prove that Debtors concealed the Creditors’ state lawsuit as creditors’ counsel was noticed; and (3) although the transactions were not explained well, there was no evidence of improper conduct. The proceeds of the sale and the settlement were adequately explained. The debtors clearly had poor counsel at the time they filed their petition and plan. There were also some language barriers in the explanations at the hearing. The court warned, however, that if Creditors’ business partner, Mr. Naragi, is holding the money on Debtors’ behalf or that Debtors’ actions lead to further objections about the transparency of their transactions, then dismissal of their bankruptcy case is possible. The court also discussed that a final state court judgment must be paid, but that Chapter 13 would be a good way to get them paid.
Debtors then filed a second amended plan on January 17, 2020 ("Second Amended Plan") and Amended Statement of Financial Affairs ("Amended SOFA"). The Second Amended Plan indicates non-priority unsecured claims of
$724,528.37; a 9% plan payment of $62,072; and the liquidation value of the estate in a hypothetical Chapter 7 case to be $71,577.06. The debtors promised
$1200 a month for months 1 through 20 and $1400 for months 21 through 60. After Debtor’s filed their Second Amended Plan, Creditors filed an objection to plan confirmation on January 24, 2020 ("Objection to Plan Confirmation"). The
12:00 PM
CONT...
Hamid Farkhondeh
Chapter 13
objection raised the debt limits for Chapter 13 cases for the first time. The objection raised the Alonzo property sale again, but presented no further tracing of funds or details beyond what was presented at the Initial MTD hearing. No examination of Mr. Naraghi had been sought. The objection raised again that there was no satisfactory explanation of the proceeds from the sale and the Home Depot suit even though the court had found the earlier testimony satisfactorily explained by the earlier testimony. The debtors explained that the reduced percentage paid was due to the increased amount owed now that the judgment was entered.
On February 25, 2020, the court held a hearing regarding Creditors Objection to Plan Confirmation. The court found that Debtors’ $662,416.38 debt from a state court final judgment was liquidated and non-contingent and that Debtors did not qualify for Chapter 13 because their debts exceeded the debt limit under 11 U.S.C. § 109(e). The Creditors sought to convert Debtors’ case to Chapter 7 and planned to pursue a fraudulent transfer action. Debtors wish dismiss their case without a bar and to refile under subchapter 5. Debtors oppose a Chapter 7 conversion. The basis argued for conversion to Chapter 7 are the same as those presented at the original motion to dismiss hearing. At oral argument, Creditors added allegations that the possible malpractice actions of debtors’ previous counsel were also not scheduled.
The issue taken under submission is whether Debtors’ Chapter 13 bankruptcy case should be dismissed or converted to Chapter 7. And if dismissed, whether the bankruptcy case should be dismissed with or without a 180-day bar. Because the court already found no bad faith in Debtors’ actions before the motion to dismiss hearing, this court’s decision on whether to dismiss this Chapter 13 case for bad faith must be based on Debtors’ actions after the last ruling, which is mainly reflected in the Second Amended Plan and Second Amended SOFA.
Section 1307
Under 11 U.S.C. § 1307(b), a debtor has the right to voluntarily dismiss a chapter 13 bankruptcy case at any time. 11 U.S.C. §1307(b). This right is not absolute, however, and is limited by an exception for bad faith conduct or abuse of the bankruptcy process. Rosson v. Fitzgerald (In re Rosson), 545 F.3d 764,
12:00 PM
CONT...
Hamid Farkhondeh
Chapter 13
774-75 (9th Cir. 2008)(citing Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365 (2007).
Under 11 U.S.C. § 349(a), a bankruptcy court may convert or dismiss a case "for cause", depending on the best interest of the creditors and the estate, for any of ten enumerated circumstances under 11 U.S.C. § 1307(c). 11 U.S.C. § 349(a); 11 U.S.C. § 1307(c); In re Leavitt, 171 F.3d 1219, 1224 (9th Cir. 1999). Bad
faith is "cause" to dismiss under § 1307(c). Id. A finding of bad faith based on egregious behavior can justify dismissal with prejudice. Id. In determining whether to dismiss a Chapter 13 case with prejudice for cause, courts analyze the "totality of the circumstances." Those circumstances were analyzed thoroughly in the last motion to dismiss ruling. The only additional factors here are that a smaller percentage is proposed to be paid of the unsecured debt and the allegation that certain malpractice actions were not scheduled.
A bad faith finding does not require fraudulent intent by the debtor. Id. at 1224. Neither malice nor actual fraud is required to find a lack of good faith. Id. The bankruptcy judge is not required to have evidence of debtor’s ill will directed at creditors or evidence that debtor was affirmatively attempting to violate the law – malfeasance is not a prerequisite to bad faith. Id. at 1225.
Discussion
There appears to be a second lawsuit the creditors brought against DAF Construction, and they allege it was not listed in the amended schedules or SOFAs. They also allege that a potential action against prior counsel for malpractice was not listed. Whether the lawsuit would need to be listed is questionable, and creditors have not explained exactly how this lawsuit against a separate company affects the estate. Even if the creditors prevail and the judgment ties back to the debtors, the proceeds would still be whatever could be received from debtors in this Chapter 13 case, the same issue that was litigated in the first evidentiary hearing. The alleged malpractice action is rather speculative at this time, and it is not clear that such an action can be brought, making any claim that this is a concealment rather spurious.
Turning to the factors detailed in Leavitt, there are no other indicators of
12:00 PM
CONT...
Hamid Farkhondeh
Chapter 13
the extreme sanction of dismissal with prejudice. Debtors’ history of bankruptcies does not weigh in favor of finding bad faith. Debtors filed a Chapter 7 bankruptcy [10-17845] on June 29, 2010, in which Debtors received a standard discharge on October 22, 2010. There is no indication that this case was abusive or fraudulent. In fact, it bolsters the shaky financial situation the debtors described at the hearing.
The Ninth Circuit in In re Leavitt looked to the debtor’s intent and concluded that the debtor filed his Chapter 13 bankruptcy petition with the primary motive to discharge a state court judgment. 171 F.3d at 1226. The Ninth Circuit considered the timing of the bankruptcy filings, which was within two weeks of the state court judgment.
There is no dispute that Debtors filed their bankruptcy case to prevent paying the state court judgment. This factor does not weigh in favor of finding bad faith, however, because the court has reasoned that filing for bankruptcy to deal with a judgment alone is not indicative of bad faith. The court stated at the Evidentiary Hearing that:
"And the way I come out is that filing bankruptcy to deal with a lawsuit in and of itself is not lack of good faith if the lawsuit is going to be dealt with in the bankruptcy, and if the bankruptcy is sometimes a way to deal with resolving a dispute more effectively than years of litigation.
I don’t think the debtors were very forthright in saying they didn’t file to deal with the lawsuit. They were in some financial distress; there was some claim for filing, but the main driver was to deal with this lawsuit. But I don’t think they -- I don’t find the evidence persuasive that they purposely concealed the Laaly’s lawsuit against them because they noticed Ms. Rafiei and they let her know about the bankruptcy."
[Transcript p. 133-34].
12:00 PM
CONT...
Hamid Farkhondeh
Chapter 13
The Ninth Circuit found egregious behavior because the debtor did not offer a justification for his actions and used the bankruptcy system to avoid paying a judgment. In re Leavitt, 171 F.3d at 1225-26. There is no indication here, despite six months of litigation and creditors theory of concealed proceeds that there is anything from which to pay this judgment other than the payments proposed in the Chapter 13 plan. The debtors appear to be trying to pay all disposable income to the plan to support the judgment. They are also facing a non-dischargeability action for the same claim.
The totality of the circumstances indicate that Debtors did not act in bad faith. As such, this case cannot be dismissed with prejudice.
Whether Debtors’ Bankruptcy Should Be Dismissed or Converted to Chapter 7
A bankruptcy court has the authority to convert a Chapter 13 bankruptcy case to one under Chapter 7 if doing so is in the best interest of the creditors and the bankruptcy estate. 11 U.S.C. § 1307(c); Rosson v. Fitzgerald (In re Rosson),
545 F.3d 764, 774-75 (9th Cir. 2008)(citing Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365 (2007)(finding that bankruptcy court did not abuse its discretion when it converted debtor’s case on its own motion and denied debtor’s request to voluntarily dismiss). A bankruptcy court’s sua sponte conversion of a chapter 13 case to one under chapter 7 typically requires the court to find bad faith or abuse of the bankruptcy process. 11 U.S.C. § 107(c); In re Rosson, 545 F.3d at 774-75 (finding no abuse of discretion when bankruptcy court sua sponte converted debtor’s chapter 13 case to one under chapter 7 to prevent abuse of the bankruptcy process).
Here, conversion of Debtors’ chapter 13 bankruptcy case to one under Chapter 7 is not in the best interest of the creditors and the bankruptcy estate because Creditors are repeating arguments that have already been examined without presenting any additional evidence. The Debtors and Creditors are better off working out a payment plan of what can actually be paid rather than spending it on further litigation. The Debtors appear ready to do that. After the extensive evidentiary hearing for the motion to dismiss and further analysis of Debtors’ actions after that, the court finds no bad faith. Creditor had an opportunity to take further evidence and to show that the sale of the Alonzo
12:00 PM
CONT...
Hamid Farkhondeh
Chapter 13
Property was fraudulent but did not convince the court that Debtor acted improperly. Moreover, converting this case to chapter 7 would reverse this court’s earlier decision without basis in new evidence. The only option remaining is the dismissal of Debtor’s case because the debtor is over the Chapter 13 debt limits.
Whether Debtor’s Case Should Be Dismissed With or Without a 180-Day Bar
Under 11 U.S.C. § 109(g), dismissal with a 180-day bar applies if the debtor requested and obtained a voluntary dismissal of a bankruptcy case after the filing of a request for relief from the automatic stay under § 362. Creditor Nissan-Infinity filed a motion for relief from stay, which was resolved under an adequate protection agreement. Creditors Noushin Laaly and Kourosh Laaly also filed a motion for relief from stay, which was granted on August 6, 2018. The plain language of §109(g) permits a 180 day bar upon dismissal. This resolution is not as extreme as the dismissal with prejudice under §349(a), and gives the parties an opportunity to work out this two party dispute outside of bankruptcy.
Under 11 U.S.C. § 105(a), this court may enter any order necessary to carry out the provisions of the Bankruptcy Code and to prevent an abuse of the bankruptcy process. 11 U.S.C. § 105(a); In re Rosson, 545 F.3d at 771 n. 8; Tennant v. Rojas (In re Tennant), 318 B.R. 860, 869 (9th Cir. 2004).
Because Debtors filed their Chapter 13 case despite being over the debt limit under § 109(e), and Debtors were generally sloppy in filing their Chapter 13 case, this case is dismissed with a180-day bar.
Creditors Objection to Plan Confirmation is SUSTAINED and motion to dismiss is GRANTED. Debtors’ bankruptcy case is dismissed with a 180-day bar. Creditors should submit an appropriate order
Party Information
Debtor(s):
Hamid Farkhondeh Pro Se
Defendant(s):
Hamid Farkhondeh Pro Se
Mary Dadyan Pro Se
12:00 PM
CONT...
Hamid Farkhondeh
Chapter 13
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
9:30 AM
1:20-10580
Victor Assouline
Chapter 13
#0.01 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 8
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Victor Assouline Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10511
Fernando Medina
Chapter 13
#0.02 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 10
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Fernando Medina Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10574
Wendy Ann Anderson
Chapter 13
#0.03 Order 1- Setting Status Conference: 2- Directing Compliance with Applicable Law; and 3- Requiring Debtor(s) to explain why this case should not be converted or dismissed with 180-day bar to refiling.
Docket 9
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Wendy Ann Anderson Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-11377
Carla Yvette Carr
Chapter 13
#1.00 Motion for relief from stay
U.S.BANK TRUST N.A., TRUSTEE LSF9 MASTER PARTICIPATION TRUST
Docket 50
Tentative Ruling:
Ch. 13 Petition Date: 04/20/2015, Plan Confirmed 07/22/2015.
Service: Proper. Opp. filed on 03/19/2020. Property: 8451 Amestoy Ave., Northridge, CA 91325 Property Value: $740,000 (per debtor’s schedules) Amount Owed: $378,704.51
Equity Cushion: 49% Equity: $361,295.49.
Post-Petition Delinquency: $15,987.41 (6 postpetition payments of $3,081.91 less suspense of $2,504.05)
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); 6 (waiver of 1201(a) or 1301(a) co-debtor stay); and 7 (waiver of the 4001(a)(3) stay). Movant alleges that it received last postpetition payment on or about 11/29/2019.
Debtor opposes, asserting that the stay should be continued until the end of their confirmed plan, so Debtor can cure their post-petition delinquency.
Debtor alleges that they requested a loan modification and submitted all requested paperwork to Movant’s servicer, Caliber Home Loans, in Nov. 2019. Debtor alleges that Caliber’s representatives assured Debtor that Debtor’s payment obligations were suspended through the pendency of the loan modification negotiations. Debtor alleges that Caliber failed to contact them until this motion was filed, making Caliber’s actions "deceitful, misleading, and predatory."
Have the parties had an opportunity to discuss if the post-petition delinquency
10:00 AM
CONT...
Carla Yvette Carr
Chapter 13
can be cured in an APO?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Carla Yvette Carr Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-11904
Christa Franck Bretz
Chapter 13
#2.00 Motion for relief from stay
U.S. BANK TRUST NATIONAL ASSO.
Docket 100
Tentative Ruling:
Ch. 13 Petition Date: 05/29/2015 Plan Confirmed on 03/09/2016.
Service: Proper. Opp. filed on 03/16/2020. Property: 7718 Hatton Place, Reseda, CA 91335 Property Value: $440,000 (per debtor’s schedules) Amount Owed: $231,849.67
Equity Cushion: 47% Equity: $208,150.33
Post-Petition Delinquency: $25,503.06 (2 payments of $1828.54 and 11 payments of $1846.53 less suspense of $17.73).
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 12 (declare Debtor borrower under Cal. Civ. Code § 2920.5(c)(2) (C)). Movant alleges that it received last postpetition payment on or about 01/24/2020.
Debtor opposes, asserting that they wish to enter into an APO with Movant to cure their arrears. Have the parties had an opportunity to discuss an APO?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Christa Franck Bretz Represented By Steven A Alpert
10:00 AM
CONT...
Trustee(s):
Christa Franck Bretz
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-10064
Jacobo Reyes
Chapter 13
#3.00 Motion for relief from stay
SELENE AS ATTORNEY IN FACT WILMINGTON SAVINGS FUNDS
fr. 3/4/20
Docket 77
Tentative Ruling:
This hearing was continued from 3-4-20 so that the parties could negotiate an APO. Nothing has been filed since the last hearing. What is the status of this motion?
TELEPHONIC APPEARANCE REQUIRED
3-4-20 TENTATIVE BELOW
Petition Date: 1/11/2016
Ch.: 13, Plan Confirmed on 06/14/2016
Service: Proper. No opposition filed as of 02/26/2020. Property: 13461 Hubbard Street #47, Sylmar, CA 91342 Property Value: $261,945 (per Debtor’s schedules) Amount Owed: $294,381 (per Movant's declaration) Equity Cushion: 0.0%
Equity: $0.00
Post-Petition Delinquency: $16,905.97 (2 payments of $1,150.99; 1 payment of
$1,302.85; and 11 payments of $1,313.65)
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); and 7 (waiver of the 4001(a)(3) stay).
Disposition: GRANT. NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Jacobo Reyes Represented By
Ghada Helena Philips
10:00 AM
CONT...
Trustee(s):
Jacobo Reyes
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#4.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION fr. 12/11/19, 1/29/20; 2/26/520
Docket 74
Tentative Ruling:
This hearing has been continued twice since 12/11/19 because Debtor asserted that Creditor was not applying payments properly. At the last hearing on 2/26/20, the parties explained that they had resolved the accounting and that Debtor was three payments behind. Parties were negotiating an APO to cure the three payments. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
12/11/19 TENATIVE BELOW
Petition Date: 6/19/17
Chapter 13 plan confirmed: 11/14/17
Service: Proper; co-debtor served. Opposition filed. Property: 18795 Kenya St. Northridge, CA 91326
Property Value: $900,000 (per Debtor's declaration ISO Opposition) Amount Owed: $631,126
Equity: $268,874
Post-Petition Delinquency: $8,228.36 (3 payments of $2,836.14; less suspense balance of $280.06)
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 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that Movant has been misapplying payments, making it seem as if there is a delinquency when there is not. Debtor contends that
10:00 AM
CONT...
Linda Akerele Alele
Chapter 13
she has made more payments than have been accounted for in the Motion. Have the parties had an opportunity to discuss the accounting?
Party Information
Debtor(s):
Linda Akerele Alele Pro Se
Movant(s):
U.S. Bank National Association, as Represented By
Josephine E Salmon Arnold L Graff Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11732
Anthony Antoniello and Tamara Marie Antoniello
Chapter 13
#5.00 Motion for relief from stay JPMORGAN CHASE BANK
Docket 104
*** VACATED *** REASON: settled per APO stipulation - ts Tentative Ruling:
Party Information
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
10:00 AM
1:17-12289
Bernardino B Muniz
Chapter 13
#6.00 Motion for relief from stay
US BANK TRUST NATIONAL ASSO.
Docket 39
Tentative Ruling:
Ch. 13 Petition Date: 08/28/2017, Plan Confirmed on 02/08/2018. Service: Proper. No opposition filed.
Property: 11826 Snelling St., Sun Valley, CA 91352 Property Value: $383,543 (per debtor’s schedules) Amount Owed: $364,423.57
Equity Cushion: 5% Equity: $19,119.43.
Post-Petition Delinquency: $20,076.52 (9 payments of $2,191.56, plus attorneys’ fees/costs of $1,231 less suspense of $878.52)
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); 7 (waiver of the 4001(a)(3) stay). Movant alleges that it last received payment on or about 07/16/2019.
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.
Party Information
Debtor(s):
Bernardino B Muniz Represented By Stephen S Smyth
10:00 AM
CONT...
Trustee(s):
Bernardino B Muniz
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12587
Bienvenida Bejosano Goudeaux
Chapter 13
#7.00 Motion for relief from stay
BMW BANK OF NORTH AMERICA
Docket 78
*** VACATED *** REASON: Resolved per stipulation (doc. 82) - hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Bienvenida Bejosano Goudeaux Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12596
Lynne Suzanne Boyarsky
Chapter 13
#8.00 Motion for relief from stay CITIBANK, N.A.
fr. 9/11/19, 10/16/19, 12/4/19, 1/15/20
Docket 64
*** VACATED *** REASON: Continued per stipulation to 5-13-2020 at 10
a.m. - hm Tentative Ruling:
Party Information
Debtor(s):
Lynne Suzanne Boyarsky Represented By Matthew D Resnik
Movant(s):
Citibank, N.A. Represented By Robert P Zahradka
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12945
Geysell Juniet Espinoza
Chapter 13
#9.00 Motion for relief from stay
JPMORGAN CHASE BANK NATIONAL ASSOC.
Docket 34
*** VACATED *** REASON: Cont'd to 5/13/20 at 10:00 per order #41. lf Tentative Ruling:
Party Information
Debtor(s):
Geysell Juniet Espinoza Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-10083
Abdul K. Patel
Chapter 13
#10.00 Motion for relief from stay
TOYOTA MOTOR CREDIT CORPORATION
Docket 53
Tentative Ruling:
Ch. 13 Petition Date: 01/10/2018, Plan Confirmed on 01/03/2019. Service: Proper. Opp. filed on 03/18/2020.
Property: 2016 Toyota Prius, VIN# JTDKARFU1G3508748 Property Value: $14,660 (per debtor’s schedules)
Amount Owed: $16,935.64 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $1,460.94 (2 preconfirmation payments of $486.98 and 1 postconfirmation payment of $486.98).
Movant requests relief under 11 U.S.C. 362(d)(1) and (2), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 5 (waiver of 1201(a) or 1301(a) co-debtor stay); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that its interest in the Property is not adequately protected, and that it last received payment on or about 10/01/2019.
Debtor opposes, alleging that Debtor made all post-petition payments before Movant’s motion was filed. Have the parties resolved the accounting?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Abdul K. Patel Represented By
David Samuel Shevitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
CONT...
Abdul K. Patel
Chapter 13
10:00 AM
1:18-10737
Dana Stone Goldberg and Barry David Goldberg
Chapter 13
#11.00 Motion for relief from stay VW CREDIT LEASING LTD
Docket 65
Tentative Ruling:
Ch.13 Petition Date: 03/22/2018 Plan Confirmed on 12/06/2018. Service: Proper. No opposition filed.
Property: 2017 Volkswagen Jetta Sedan
Property Value: $N/A (seemingly not listed on debtor’s schedules) Amount Owed: $11,810.78
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $11,810.78
Movant alleges that Debtor did not list Property, which is allegedly a leased vehicle, in their schedules. Movant alleges that it is not adequately protected, that it last received payment on or about 12/01/2019, and that the lease for this vehicle matured on 12/31/19.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 5 (waiver of 1201(a) or 1301(a) 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.
Party Information
Debtor(s):
Dana Stone Goldberg Represented By Kevin T Simon
10:00 AM
CONT...
Dana Stone Goldberg and Barry David Goldberg
Chapter 13
Joint Debtor(s):
Barry David Goldberg Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11090
Jason R. Corralejo and Claudine P. Corralejo
Chapter 13
#12.00 Motion for relief from stay HSBC BANK
Docket 59
Tentative Ruling:
Ch. 13 Petition Date: 04/27/2018, Plan Confirmed on 11/27/2018. Service: Proper. No opposition filed as of 03/24/2020.
Property: 13927 Carol Lane, Sylmar, CA 91342 Property Value: $630,000 (per debtor’s schedules) Amount Owed: $679,346.52
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $38,265.43 (14 payments of $2,759.5)
Movant requests relief under 11 U.S.C. 362(d)(1), with 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 it last received payment on or about 02/26/2019.
Debtors oppose the motion, arguing that Movant rejected post-petition mortgage payments. Debtors have saved those payments and will tender them to bring the account current. Have the parties had an opportunity to discuss the accounting?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Jason R. Corralejo Represented By Gregory M Shanfeld
Amelia Puertas-Samara
10:00 AM
CONT...
Jason R. Corralejo and Claudine P. Corralejo
Chapter 13
Joint Debtor(s):
Claudine P. Corralejo Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11229
Patrick Joseph Soria
Chapter 11
#13.00 Motion for relief from stay BANK OF AMERICA, N.A. FR. 1/8/20; 2/26/20
Docket 22
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
2-26-2020 TENTATIVE BELOW
This hearing was continued since 1/8/20 due to the District Court having granted a motion to suspend the bankruptcy under 11 U.S.C. 305(a)(1), ECF doc. 20. Nothing has been filed since the last hearing. Does Movant intend to go forward with this Motion, given the procedural posture of this case?
APPEARANCE REQUIRED
1-8-2020 TENTATIVE BELOW
Petition Date: 5-11-2018
Chapter: 11
Service: Proper. No opposition filed.
Property: 1350 S. Towne Ave., Pomona, CA 91766 Property Value: $475,000 (per Movant’s Motion) Amount Owed: $641,484.59
Equity Cushion: 0.0% Equity: $0
Post-Petition Delinquency: $ n/a
Other: $122,751.43 payments overdue or 44 late payments.
Movant alleges the following: That on June 15, 2017, West H&A LLC filed a Statement of Information with the California Secretary of State listing Debtor as chief executive officer. On June 16, 2017, an unauthorized Assignment of Deed of Trust was fraudulently executed and subsequently recorded, which purports to assign the Movant’s interest in the Deed of Trust. Debtor signed the document in his capacity
10:00 AM
CONT...
Patrick Joseph Soria
Chapter 11
as "Member of Assignee, West H&A LLC."
On June 25, 2017, an unauthorized Substitution of Trustee was fraudulently executed and recorded, which purports to substitute "Warranted Effectuation of Substitute Transferee Inc" as the foreclosure trustee under Movant’s Deed of Trust. Debtor executed the document in his capacity as "Member of Current Beneficiary: West H&A LLC."
On July 6, 2017, an unauthorized Trustee’s Deed Upon Sale was fraudulently executed and recorded, which purports to transfer title to the Property to West H&A LLC.
On April 11, 2018, Nationstar Mortgage, LLC filed a complaint in the U.S. District Court Central District of California against Debtor, West H&A LLC, and others for alleged violations of the Racketeering Influenced Corrupt Organizations Act; the California Business & Professions Code; the Lanham Act; and other statutes. The district court entered an order establishing that Debtor engaged in "knowing fraud that victimizes financial institutions, investors, and the public." On May 7, 2018, the district court also entered an order for a preliminary injunction and appointed a permanent receiver. Debtor filed his bankruptcy petition four days later on May 11, 2018.
Disposition: GRANT relief requested under 11 U.S.C. 362(d)(1) and (d)(2). GRANT specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)(4)); 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.
Party Information
Debtor(s):
Patrick Joseph Soria Represented By Sandford L. Frey
10:00 AM
1:19-10598
Debra J DeVictoria
Chapter 13
#14.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOCIATION fr. 2/26/20
Docket 26
Tentative Ruling:
This hearing was continued from 2-26-20 so that the parties could discuss an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
2-26-20 TENTATIVE BELOW
Petition Date: 03/14/2019 Ch.13; confirmed on 06/04/2019
Service: Proper. No opposition filed.
Property: 22922 Avenue San Luis, Los Angeles CA 91364 Property Value: $ 668,000
Amount Owed: $ 418,572.52 Equity Cushion: 37.3% Equity: $249,428.00.
Post-Petition Delinquency: $13,188.21 (5 payments of $2,439.69 + Attorneys' fees of $1,231.00 less suspense balance of $241.24).
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 of $2,500 was received was on or about 09/20/2019.
There appears to be a sufficient amount of equity here. Have the parties had an opportunity to discuss if an APO is appropriate?
APPEARANCE REQUIRED
Party Information
10:00 AM
CONT...
Debtor(s):
Debra J DeVictoria
Chapter 13
Debra J DeVictoria Represented By Kenneth H J Henjum
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12138
Bruno Alain Rosenthal
Chapter 13
#15.00 Motion for relief from stay JPMORGAN CHASE BANK, N.A.
fr. 2/5/20; 2/26/20
Docket 26
*** VACATED *** REASON: Withdrawal filed on 3/27/20 - Doc. #36. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Bruno Alain Rosenthal Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12217
Jaime Gutierrez
Chapter 13
#15.01 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST COMPANY
fr. 3/25/20
Docket 30
Tentative Ruling:
Petition Date: 9/4/2019
Chapter 13 plan confirmed: 2/13/2020
Service: Proper; co-debtor served. Opposition filed. Property: 7312 Leescott Ave., Van Nuys, CA 91406 Property Value: $613,000 (per debtor’s schedules) Amount Owed: $622,513
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $11,471 (5 payments of $2,294.28)
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 Debtor is delinquent at least five post-petition payments.
Debtor opposes the Motion, arguing that the property is his residence & necessary for a reorganization, and requests to cure any deficiency with an APO. Is Movant amenable to discussing an APO with Debtor's counsel to resolve this matter?
APPEARANCE REQUIRED
10:00 AM
CONT...
Jaime Gutierrez
Chapter 13
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Jaime Gutierrez Represented By Allan S Williams
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12276
Irma Kaarina Hiltunen
Chapter 13
#16.00 Motion for relief from stay JPMORGAN CHASE BANK N.A.
Docket 25
Tentative Ruling:
Petition Date: 9/11/2019 Service: Proper. Opposition filed.
Property: 2014 Ford Edge SE FWD
Property Value: $ 10,500 (per debtor’s schedules) Amount Owed: $ 6,374.34
Equity Cushion: 39% Equity: $4,125.66
Post-Petition Delinquency: $1,879.92 (4 post-petition payments of $469.98)
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay). Movant alleges that Debtor has failed to make post-petition payments due to Movant under the contract. Movant alleges that the last payment was received on 10/15/2019
Debtor argues that the property is necessary for an effective reorganization because the vehicle is debtor’s only means of transportation. Debtor seeks an APO. Have the parties had an opportunity to discuss an APO?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Irma Kaarina Hiltunen Represented By William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12329
Leticia E. Donis Duran
Chapter 13
#17.00 Motion for relief from stay LAKEVIEW LOAN SERVICING LLC
fr. 2/26/20
Docket 27
*** VACATED *** REASON: Resolved per APO (doc. 36) - hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Leticia E. Donis Duran Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12361
Jose R. Fernandez and Esther Fernandez
Chapter 13
#18.00 Motion for relief from stay U.S.BANK NATIONAL ASSOC
Docket 44
Tentative Ruling:
Petition Date: 9/18/2019
Service: Proper. No opposition filed.
Property: 16439 Jersey Street, Granada Hills, CA 91344 Property Value: $545,000 (per debtor’s schedules) Amount Owed: $ 490,374.32
Equity Cushion: 10% Equity: $54,625.68
Post-Petition Delinquency: $8,997.15 (5 post-petition payments of $1,799.43) Debtors have had 3 bankruptcy cases dismissed in past 3 years.
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.
Party Information
Debtor(s):
Jose R. Fernandez Represented By Donald E Iwuchuku
Joint Debtor(s):
Esther Fernandez Represented By Donald E Iwuchuku
10:00 AM
CONT...
Trustee(s):
Jose R. Fernandez and Esther Fernandez
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12415
Guadalupe Hamm
Chapter 13
#19.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST COMPANY
fr. 2/26/20
Docket 41
*** VACATED *** REASON: Resolved per APO - hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Guadalupe Hamm Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12797
Natalia Alexandrovna Nesterenko-Nisali and Eitan Albaz
Chapter 7
#20.00 Motion for relief from stay TOKYO CENTURY(USA) INC.
Docket 15
*** VACATED *** REASON: Ntc. of w/drawal filed 3/11/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Natalia Alexandrovna Nesterenko- Represented By
Shai S Oved
Joint Debtor(s):
Eitan Albaz Nisali Represented By Shai S Oved
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:19-12917
Maurice Vasquez
Chapter 13
#21.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO.
Docket 26
Tentative Ruling:
Petition Date: 11/20/2019; Ch 13 Service: Proper. No opposition filed.
Property: 6728 Lindley Ave., Los Angeles Reseda Area, CA 91335
Property Value: Unk. (Debtor has not provided Amended Schedules detailing description of Property)
Amount Owed: $ 675,476.74 Equity Cushion: unk.
Equity: unk.
Post-Petition Delinquency: $6,427.52 (2 post-petition payments of
$3,213.76).
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.
Party Information
Debtor(s):
Maurice Vasquez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10073
Jason Serrone
Chapter 7
#22.00 Motion for relief from stay
HSBC BANK USA NATIONAL ASSOC., TRUSTEE OPTEUM MORGAGE
Docket 12
Tentative Ruling:
Petition Date: 1/13/2020; Ch. 7 Service: Proper. No opposition filed.
Property: 1747 South Elverta Street, Visalia, CA 93292 Property Value: $ N/A
Amount Owed: $266,795.97 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: N/A
Movant alleges that this case has been "hijacked" by third parties and that multiple bankruptcies have been filed by several different debtors, affecting this Property. Movant alleges this is at least the 5th bankruptcy to affect the Property but does not allege that this Debtor was involved.
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), with no finding of bad faith as to this Debtor).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS. MOVANT TO SERVE ORIGINAL BORROWER WITH A COPY OF THIS ORDER.
Party Information
Debtor(s):
Jason Serrone Pro Se
10:00 AM
CONT...
Trustee(s):
Jason Serrone
Chapter 7
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:20-10128
George Covington and Beverly Ann Covington
Chapter 7
#23.00 Motion for relief from stay SANTANDER CONSUMER USA INC.
Docket 10
Tentative Ruling:
Petition Date: 1/17/2020; Ch. 7 Service: Proper. No opposition filed. Property: 2017 Nissan Altima
Property Value: $ 18,500 (per debtor’s schedules) Amount Owed: $19,174.17
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $1,980.90
Movant alleges that debtor is $1,980.90 in arrears but doesn’t detail which payments were not made.
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.
Party Information
Debtor(s):
George Covington Represented By Stephen Parry
Joint Debtor(s):
Beverly Ann Covington Represented By Stephen Parry
10:00 AM
CONT...
Trustee(s):
George Covington and Beverly Ann Covington
Chapter 7
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:20-10157
Artur Sahakyan
Chapter 7
#24.00 Motion for relief from stay CIT BANK, N.A.
Docket 14
Tentative Ruling:
Petition Date: 1/22/2020 Ch. 7
Service: Proper. Opposition filed.
Property: 13417 Friar Street, Van Nuys, CA 91401 Property Value: $690,000 (per debtor’s schedules)
Amount Owed: $549,333.00 (1st DoT). There is also a judgment lien of
$45,477.14 on property. Equity Cushion: 12.39% Equity: $95,189
Post-Petition Delinquency: $66,944.69
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 debtor has missed 128 payments of
$536.22 equating to $66,944.69.
Debtor opposes the Motion, arguing that even though there is a thin equity cushion here, it’s Debtor's intention to save his home, so he plans to get a roommate to generate income. Debtor has filed a Motion to Convert to Ch. 13 to propose a plan to repay these arrears (doc. 18).
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Artur Sahakyan Represented By Aris Artounians
10:00 AM
CONT...
Trustee(s):
Artur Sahakyan
Chapter 7
David Seror (TR) Pro Se
10:00 AM
1:20-10419
Diane Newman
Chapter 13
#25.00 Motion for relief from stay CLASSICAL CREATIONS, INC.
Docket 11
Tentative Ruling:
This case was dismissed on 3/18/2020, so the stay expired on that same day under 362(c)(2)(B). As Movant does not request extraordinary or in rem relief due to allegations of bad faith, this Motion is DENIED as moot.
MOVANT TO LODGE ORDER IN ACCORDANCE WITH THIS RULING WITHIN 7 DAYS. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Diane Newman Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10421
Tamica Michael Jordan
Chapter 7
#26.00 Motion for relief from stay
AMERICAN HONDA FINANCE CORP
Docket 9
Tentative Ruling:
Petition Date: 2/24/2020 Ch. 7
Service: Proper. No opposition filed. Property: 2015 Honda Accord
Property Value: $6,500 (per debtor’s schedules) Amount Owed: $ 16,730.02
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $3,180.12 payments
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.
Party Information
Debtor(s):
Tamica Michael Jordan Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:20-10430
Sean Taheri and Jennifer Amy Taheri
Chapter 7
#26.01 Motion for relief from stay AMERICAN HONDA FINANCE
Docket 9
Tentative Ruling:
Petition Date: 2/25/2020 Ch. 7
Service: Proper. No opposition filed. Property: 2018 Honda Civic
Property Value: $15,000 (per debtor’s schedules) Amount Owed: $ 18,084.22
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: $719.42
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.
Party Information
Debtor(s):
Sean Taheri Represented By
Ali R Nader
Joint Debtor(s):
Jennifer Amy Taheri Represented By Ali R Nader
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
CONT...
Sean Taheri and Jennifer Amy Taheri
Chapter 7
10:00 AM
1:20-10002
Pete Magdaleno
Chapter 13
#26.02 Motion for relief from stay
WILMINGTON SAVINGS FUND SOCIETY FSB
fr. 3/11/20
Docket 12
Tentative Ruling:
This hearing was continued from 3/11/20 so that Debtor had an opportunity to secure refinancing or market the property for sale. Nothing has been filed since the last hearing. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
Tentative from 3/11/20 Petition Date: 01/01/20 Ch. 13
Service: Proper. Opposition filed.
Property: 13529 Bracken Street, Arleta, CA 91331-6212 Property Value: $ 484,000 (per debtor’s schedules) Amount Owed: $ 359,397.00
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: None alleged in Movant's RFS Motion.
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 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 effective against any debtor who claims interest in the property for 180 days) 10 (order is binding in any other bankruptcy case for 2 years)
Movant alleges that the original borrower (brother of debtor, Luis Magdaleno) has filed multiple bankruptcy petitions as part of a scheme to delay, hinder or defraud Movant. Original borrower Luis has filed 2 bankruptcy cases in past 3 years.
Debtor counters that he has an equitable interest in the property because he lives
10:00 AM
CONT...
Pete Magdaleno
Chapter 13
with his brother Luis and assists in making mortgage payments. Alleges bad faith by Movant, asserting that it refused to provide mortgage payoff figures in Luis' most recent case 19-11408-VK until Luis dismissed his bankruptcy. Debtor alleges that Movant delayed giving them the payoff figures until Dec. 23, 2019 and then reset the foreclosure sale for ten days later, on Jan. 2, 2020. Because of the holidays, Debtor contends that he and his brother were unable to secure refinancing within the ten days provided and Movant refused to delay the foreclosure sale.
APPEARANCE REQUIRED
Debtor(s):
Party Information
Pete Magdaleno Represented By Anil Bhartia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10367
Maria Rosales
Chapter 13
#26.03 Motion in Individual Case for Order Imposing
a Stay or Continuing the Automatic Stay as the Court Deems Appropriate.
19125 Olympia Street Porter Ranch, CA 91326 . fr. 3/11/20
Docket 7
Tentative Ruling:
This hearing was continued from 3/11/2020 so that the parties could negotiate an APO. At the last hearing, the Court ordered, in the interim, the stay to be extended to 4/2/2020. No interim order was lodged nor has an APO been filed. What is the status of this matter?
TELEPHONIC APPEARANCE REQUIRED
Tentative From 3/11/2020
On 2/18/20, Debtor filed this chapter 13 case. Debtor had one previous bankruptcy case that was dismissed within the previous year. The First Filing, 19-11343-MT, was a chapter 13 that was filed on 5/29/19 and dismissed on 10/25/19 at the plan confirmation hearing. On 10/21/2019, relief from stay was granted as to the Olympia St. Property in the First Filing.
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. Debtor claims that there has been a substantial change in her financial affairs. Debtor states that since the First Filing was dismissed, her brother-in-law can again help make plan payments by submitting a family contribution. Debtor claims that the property is necessary for a successful reorganization because this is her primary residence income.
Service proper. No opposition filed.
MOTION GRANTED. NO APPEARANCE REQUIRED. RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
10:00 AM
CONT...
Debtor(s):
Maria Rosales
Chapter 13
Maria Rosales Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
#27.00 Motion for Sanctions for Violation of the Automatic Stay Against Creditor John Levin, MD and his Attorneys Michael J. Berger and Samuel Boyamian
dba Law Office of Michael J. Berger
Docket 99
Tentative Ruling:
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 telephonic appearances are required.
Calls to the Court to check the status of tentative rulings are not permitted.
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
10:00 AM
1:15-10101
David Brent Joseph
Chapter 7
#28.00 Motion to abstain or in the alternative for a
status conference and a new non-dischargeability deadline
Docket 157
Tentative Ruling:
The issues raised relate to whether Movant can go forward with any proceeding to determine dischargeability or whether Joseph's discharge applies to Movant, would need to be resolved in an adversary proceeding per FRBP 4007(e). The parties do not address the specific law that Debtor’s discharge may not apply, unless Creditor had "notice or actual knowledge":
Dewalt held that a creditor whose claim is represented by a debt of a type specified in §523(a)(2), (4), or (6) is not required to file a request for extension of time to file a complaint to determine dischargeability, if it receives notice or actual knowledge of the case less than 30 days before the last date to file a complaint to determine dischargeability. 961 F.2d 848, 850-51 (9th Cir. 1992).
The decision in Dewalt analyzed the notice factor in the context of § 523(a)(3) (B). Section 523(a)(3) provides, in pertinent part:
(a) A discharge under section 727, does not discharge an individual debtor from any debt-
neither listed nor scheduled under section 521(1) of this title with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit-
if such debt is of a kind specified in paragraph (2), (4) or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request.
So, creditor needs to decide what to do in light of this law.
10:00 AM
CONT...
David Brent Joseph
Chapter 7
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
David Brent Joseph Represented By Todd J Roberts Jeffrey S Shinbrot
Trustee(s):
Nancy J Zamora (TR) Represented By John D Ott
10:00 AM
1:10-10209
R.J. Financial, Inc.
Chapter 7
Adv#: 1:18-01029 Seror v. Abalkhad et al
#29.00 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, 9/12/18, 7/17/19; 9/11/19, 12/11/19
Docket 47
*** VACATED *** REASON: Cont'd to 6/24/20 per order #106. lf Tentative Ruling:
Party Information
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
10:00 AM
CONT...
R.J. Financial, Inc.
Chapter 7
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
10:00 AM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#30.00 Motion to Compel Appearance and Production of Documents re Firooz Payan at Depostion
Docket 112
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
David Seror ("Trustee"), the Chapter 7 Trustee for the bankruptcy estate of Alliance Funding Group, Inc. ("Debtor") filed a First Amended Complaint ("FAC") on June 26, 2018. The FAC seeks to turnover the bankruptcy estate’s property; for quiet title against Alexander Usmanov and Natalia Usmanova (collectively "Defendants" or "Creditors"); and for declaratory relief. Property of the estate included a real property located at 1020 E. Providencia Avenue, Burbank, California 91501 (the "Property").
About one year later, the court approved the Trustee’s sale of the Property by an order entered on June 28, 2019 [Dkt. No. 72]. The order treated a $306,000 lien, which is asserted by Creditors, as disputed and directed the attachment of the Debtor’s disputed lien to the net proceeds of the sale for further adjudication, which is ongoing in this proceeding. The Debtor’s asserted and disputed lien is the remaining issue to be adjudicated in this adversary proceeding and the Defendants are the remaining Defendants. It is holding up resolution of the bankruptcy case after the trustee has resolved issues with many other parties.
In July 2019, the Creditors’ former attorney, Scott Dyle, at Barrington Legal, Inc. ("Barrington Legal") stated he discovered a fraudulent conveyance and various discrepancies in the contended chain of notes connected to the Property, which is at issue in this adversary proceeding. Based on this allegedly new information, Creditors contend that the Debtor and its principal, Mr. Payan, held no interest in the Property when they foreclosed on it and that the Usmanov Assignment has priority over any interest potentially held by Debtor because it relates back to the Note held by the Kellzi Family Trust.
10:00 AM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
Creditors now seek an order from the court to (1) compel non-party Firooz Payan ("Mr. Payan") to appear at a deposition and produce documents pursuant to subpoena served on Mr. Payan; (2) compel production of documents from non- party Alliance Funding Group, Inc.’s custodian of records; and (3) compel appearance of person most knowledgeable at deposition (the "Motions"). Creditors also move for a court order holding Mr. Payan in civil contempt under Fed. R. Civ. P. 45(a)(1)(c) and 45(g)("court may hold in contempt a person who, having been served, fails without adequate excuse to obey [a] subpoena"). In addition, Creditors request for an order imposing reasonable expenses and attorney’s fees against Mr. Payan under Fed. R. Civ. P. 37(a)(5). On October 8, 2019, Mr. Payan was served a subpoena to testify at a deposition on October 25, 2019.
Trustee expresses his concern that this Motion is on for hearing only sixteen days before the discovery and mediation cutoff and that the Creditors have still not moved forward with mediation. The court entered a Scheduling Order on November 19, 2019 [Dkt. No. 108]. The discovery and mediation cut-off deadline is April 17, 2020 and the pretrial conference is set for June 10, 2020. The discovery deadlines were set with full knowledge of the difficulty of getting discovery from Mr. Payan and a lengthier deadline was set at creditors’ request. The extra effort needed was already accommodated. The failure of Payan to appear was noted on the certificate of non-appearance prepared on November 8, 2019, yet this motion was filed at the last minute shortly before the discovery cutoff. There is no mention of why no attempt has been made at mediation in all this time.
The Trustee requests the court to preserve the Scheduling Order, and that the Defendants provide a sufficient explanation for why it took this long to move for a court intervention and a sufficient proposal to handle mediation in a way to not further delay the progress of this adversary proceeding to trial. The Trustee is concerned that the effort to depose and require production of documents from Mr. Panyan poses a risk of endlessly delaying the administration of the sale proceeds, which is not in the best interest of the creditors.
In their Reply, Creditors point out that (1) they may need to request a
10:00 AM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
continuance of the trial date and reopen discovery because of the COVID-19 situation; (2) at the time they filed the moving papers, they were confident that, without court intervention, the deposition and document production could be timely completed within the discovery cut-off deadline; (3) they diligently tried to depose the Debtor and Mr. Payan and obtain the documents; (4) there is a reasonable basis for the delay in pursuing court intervention because their case attorney left the firm, Barrington Legal, in January 2020, and Barrington Legal took a reasonable time to get another attorney up to speed with the case; (5) the Trustee has conducted no discovery to authenticate the Fraudulent Conveyance despite the patent abnormalities in the commission number; and (6) the commission number of Maria Gomez, who notarized the allegedly Fraudulent Conveyance, does not exist in the active notary list maintained by the California Secretary of State.
Creditors explain that the deposition and production of documents is crucial and necessary to get to the truth and determine who holds a valid interest in the Property and the order of priority of Creditors’ interest in the Property; to determine what part Mr. Payan and Debtor played in obtaining and filing the Fraudulent Conveyance, if any, that will further determine whether Debtor has any interest in the Property and whether the Deed of Trust was paid in full as indicated in Mr. Payan’s letter.
A party may depose any person without leave of the court and a party may command the attendance of a non-party witness at deposition. FBRP 7030 and 9060; Fed. R. Civ. P. 30(a)(1) and 45(a). "[U]nless a party or witness files a motion for a protective order and seeks and obtains a stay prior to the deposition, a party or witness has no basis to refuse to attend a properly noticed deposition." Huene v. U.S. Dep’t of Treasury, Internal Revenue Service, 2013 U.S. Dist. LEXIS 13803 at *7 (E.D. Cal. 2013); Fed. R. Civ. Pro. 45(e); Pioche Mines Consol, Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964), cert. denied, 380 U.S. 956 (1965)). Here, neither Mr. Panyan nor Trustee sought a protective order. Further, Mr. Payan failed to serve objections to the first and second deposition subpoenas.
Creditors tried to depose Debtor and Mr. Payan and get the documents because after Barrington Law discovered the new information in July 2019, they acted to attempt to depose and obtain the documents from August 2019 to
10:00 AM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
November 2019. Creditor’s counsel left Barrington Law in January 2020, but there is no explanation why all of this was not done well before that departure.
Mr. Payan appears to be a key witness in determining whether Debtor and Mr. Payan had any interest in the Property. Creditors assert a $306,000 lien on the net proceeds of the sale, however, which the deposition of Mr. Payan and the production of documents may help resolve.
Trustee understandably wishes to get this resolved and wrap up this estate. The desire to stick with the Scheduling Order Is not entirely realistic given Creditors’ previous efforts to depose Mr. Payan and obtain the documents and the current COVID-19 environment. That said, there was too much unexplained delay by creditors that could have been avoided before this COVID-19 situation arose.
Creditors should be given an opportunity to depose Mr. Payan and obtain the documents. An in-person deposition may not be possible any time soon which may further delay the disposition of the estate’s assets to creditors. Timely attaining the documents, however, is realistic. A motion to compel production of documents will be granted, and let’s figure out how to stay on course with the depositions. Are creditors willing to do a video deposition if the documents are provided? Creditors also need to explain why they have not pursued mediation at all.
Sanctions are warranted for all costs obtaining this order to compel. See F.
R. Civ. P, 37(a)(5). Creditors may submit an application and order for such costs and it will be ruled on without hearing.
Party Information
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
10:00 AM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
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
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
10:00 AM
CONT...
Trustee(s):
ALLIANCE FUNDING GROUP INC.
Richard Burstein
Chapter 7
David Seror (TR) Represented By Reagan E Boyce Richard Burstein Jorge A Gaitan
10:00 AM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#31.00 Motion to Compel Appearance and Production of Documents re Alliance Funding Group, Inc's Custodian of Records Compel Appearance of Person Most Knowledgeable at Deposition
Docket 111
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
see #30
Party Information
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
Defendant(s):
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
Does 1-10, Inclusive Pro Se
AMERICAN FUNDERS CORP. Pro Se
Eva Askar Pro Se
Robert Askar Pro Se
10:00 AM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
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
Plaintiff(s):
David Seror Represented By
Reagan E Boyce Richard Burstein
Trustee(s):
David Seror (TR) Represented By Reagan E Boyce Richard Burstein Jorge A Gaitan
10:00 AM
1:19-11301
Robert Benjamin Sautter
Chapter 13
Adv#: 1:19-01074 Sautter v. Santa Fe General Construction, Inc., a California
#32.00 Plaintiff's Motion to Amend Default Judgment
Docket 46
Tentative Ruling:
Motion GRANTED. No appearance required.
Party Information
Debtor(s):
Robert Benjamin Sautter Represented By Matthew D. Resnik
Defendant(s):
Santa Fe General Construction, Inc., Pro Se Jubilio Escalera Pro Se
Chaidez Construction, Inc. Pro Se
Cesar Chaidez Pro Se
Lorena Lara Pro Se
Humberto Lara Pro Se
John White Pro Se
Plaintiff(s):
Robert Benjamin Sautter Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:09-20447
Law Offices of Masry & Vititoe
Chapter 11
#33.00 U.S. Trustee Motion to dismiss or convert case
Docket 425
*** VACATED *** REASON: OUST filed a withdrawal - doc. #429. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Law Offices of Masry & Vititoe Represented By Leslie A Cohen Barry L Cohen David K Eldan
10:00 AM
1:12-10231
Owner Management Service, LLC and Trustee Corps
Chapter 7
#34.00 Motion RE: Objection to Claim Number 28 by Claimant Susan Ferguson fr. 11/20/19, 1/15/20
Docket 2311
Tentative Ruling:
The Order Assigning the Matter to Mediation was entered 3/5/20 (doc. 2380) but there has been nothing filed to apprise the Court of the status of the mediation. Having considered the status of the case, the Court is inclined to continue this matter to May 20, 2020, at 11:00 a.m., so that the parties have an opportunity to engage in mediation remotely or to negotiate a further continuance as needed during the COVID-19 restrictions. Trustee to notice the continued hearing.
NO TELEPHONIC APPEARANCE REQUIRED
Party Information
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 Jorge A Gaitan
10:00 AM
1:16-11598
Farideh Warda
Chapter 11
#35.00 U.S. Trustee Motion to dismiss or convert case
Docket 271
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Farideh Warda Pro Se
10:00 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
#36.00 Motion To Approve Compromise
Docket 135
Tentative Ruling:
Having reviewed the settlement, and for good cause appearing, the motion is GRANTED.
NO APPEARANCE RQUIRED.
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
10:00 AM
1:17-12980
Mainstream Advertising, a California Corporation
Chapter 7
#37.00 Motion for order extending time to file avoidance action under 11 u.s.c. section 546
Docket 185
Tentative Ruling:
No opposition. Service proper. Motion GRANTED. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Mainstream Advertising, a Represented By Kathleen P March
Trustee(s):
Amy L Goldman (TR) Represented By David B Golubchik Peter J Mastan
Anthony A Friedman John P. Reitman Jack A. Reitman
10:00 AM
1:19-12812
Morsheda Jhumur Hosain
Chapter 7
#38.00 Motion for Order: (1) Authorizing Sale of Estates Right, Title and Interest in Real Property Free and Clear of Liens;
Approving Overbid Procedure;
Approving Payment of Real Estate Brokers Commissions and Related Closing Costs; and
Finding Purchaser is a Good Faith Purchase
Docket 38
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Morsheda Jhumur Hosain Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Anthony A Friedman
10:00 AM
1:20-10110
Henry Jesus Martinez
Chapter 7
#39.00 Motion For Order Compelling Attorney To File Disclosure Of Compensation And Disgorgement Of Fees Pursuant To 11 U.S.C. § 329
Docket 16
*** VACATED *** REASON: Ntc. w/drawal filed 2/25/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Henry Jesus Martinez Represented By Michael D Kolodzi
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:19-11905
Arman Torosyan
Chapter 7
#40.00 Trustee's Final Report and Application for Compensation and Deadline to Object
Docket 29
Tentative Ruling:
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.
Party Information
Debtor(s):
Arman Torosyan Represented By Navid Kohan
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:10-14553
Anatoliy Kouzine
Chapter 7
#41.00 Motion For Sanctions for Violation of the Automatic Stay against Lev Yasnogorodsky and his Counsel
Docket 25
Tentative Ruling:
Debtor filed a Chapter 7 petition on April 19, 2010. Lev Yasnogorodsky ("Creditor") filed a lawsuit on May 19, 2010 and obtained a judgment against Debtor and his wife. On June 10, 2010, an Abstract of Judgment (Abstract #2) was issued. On June 14, 2010, Abstract #2 was recorded creating a judicial lien on Debtor’s real property. On October 23, 2019, Debtor’s counsel emailed Creditor requesting to release the judgment lien.
Debtor moves the court to order Creditor and his counsel, Lev Egerman ("Creditor’s Counsel"), to appear and show cause why each of them should not be held in contempt for violating 11 U.S.C. § 362(a), 11 U.S.C. § 524(a), and for sanctions.
Debtor also moves the court to impose punitive damages against Creditor and to order Creditor to (1) remove the Abstract of Judgment; and (2) pay attorney’s fees for violating the automatic stay and discharge injunction.
How much punitive damages and attorney’s fees is Debtor demanding?
Party Information
Debtor(s):
Anatoliy Kouzine Represented By Elena Steers
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:18-10313
Harold H Choe
Chapter 7
Adv#: 1:20-01008 Weil v. Kim et al
#42.00 Status Conference Re: Complaint for Avoidance and Recovery of Fraudulent Transfer.
Docket 1
Tentative Ruling:
Answer and joint S/R filed. TELEPHONIC APPEARANCE REQUIRED. Will the following work for the parties:
Discovery cut off August 21, 2020
pretrial conference September 30, 2020 at 11 am
Party Information
Debtor(s):
Harold H Choe Represented By Young K Chang
Defendant(s):
John Kim Pro Se
Lucy Kim Pro Se
Plaintiff(s):
Diane C Weil Represented By
Anthony A Friedman
Trustee(s):
Diane C Weil (TR) Represented By Anthony A Friedman
11:00 AM
1:18-10313
Harold H Choe
Chapter 7
Adv#: 1:20-01009 Weil v. Kim et al
#43.00 Status Conference Re: Complaint
for Avoidance and Recovery of Fraudulent Transfer
Docket 1
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
Will the following work for the parties:
Discovery cut off August 21, 2020
pretrial conference September 30, 2020 at 11 am
Party Information
Debtor(s):
Harold H Choe Represented By Young K Chang
Defendant(s):
Brian Kim Pro Se
Emily Kim Pro Se
Brian's Shave Ice Two, Inc. Pro Se
Plaintiff(s):
Diane C. Weil Represented By Anthony A Friedman
Trustee(s):
Diane C Weil (TR) Represented By Anthony A Friedman
11:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#44.00 Pre-Trial Status Conference re: Complaint
fr. 8/29/18, 2/20/19, 6/26/19; 9/11/19, 12/4/19
Docket 1
*** VACATED *** REASON: Cont'd to 5/1/20 per order #220. lf Tentative Ruling:
Party Information
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
1:18-12547
Michael Vara
Chapter 11
#45.00 Motion for (1) For Non-Material Modifications to Debtor's Chapter 11 Plan (2) to Confirm Debtor's Plan as Modified (3) Memorandum of
Law in Support of Confirmation of Chapter 11 Plan of Reorganization (4) Declaration of Michel Vara in Support Thereof.
Docket 119
Tentative Ruling:
According to the Motion, on January 29, 2020, escrow closed on the sale of the Debtor’s real property located at 24661 Cordillera Drive, Calabasas, CA 91302 (the "Property"). Motion at Exhibit A. The escrow statement attached to the Motion lists a sale price of $1,550,000 for the Property and that all but $49,635.09 (the "Sale Proceeds") were paid out of escrow for liens, charges, and other expenses on behalf of the Debtor. Id. The Motion is requesting confirmation of the Plan with the following modifications relating to the distribution of the Sale Proceeds:
− $7,500 to the Anyama Law Firm for attorney fees and costs;
− $2,500 to special counsel’s fees; and
− $35,000 to the allowed unsecured priority claim of the Internal Revenue Service.
UST objects, arguing that (1) the payments to Debtor’s DIP and Special Counsel fees cannot be paid before the Court has approved the fees; (2) the feasibility analysis does not take into account the increased UST fees for the upcoming quarters; and (3) Debtor’s income from work as a contractor doesn’t support feasibility.
Debtor responds, clarifying that both Anyama and special counsel Verdi will not be paid from the Sale Proceeds before the Court approves their compensation (fee applications are now on file) and that Debtor’s income is not only as a contractor but also as a real estate broker, so the $4,500 monthly income reported on the MORs may not give a complete picture. Debtor states in his declaration that on or about March 10, 2020, he completed a sale that garnered him $60,000, which he then deposited into his DIP account. From this income, he plans to pay the UST fees and believes his proposed modification is feasible.
The Court is inclined to grant this Motion but there is no evidence of ballots filed.
11:00 AM
CONT...
Michael Vara
Chapter 11
Although an approved Stipulation with US Bank provided for its acceptance of the plan (doc. 98 & 103), there still needs to be a ballot submitted. This hearing is continued to April 8, 2020, at 11:00 a.m., so that Debtor can file proof of the ballots received to support confirmation.
TELEPHONIC APPEARANCE PERMITTED BUT NOT REQUIRED
Party Information
Debtor(s):
Michael Vara Represented By Onyinye N Anyama Alfred J Verdi
11:00 AM
1:18-12547
Michael Vara
Chapter 11
#46.00 Scheduling and case management conference and filing of monthly reports.
fr. 12/12/18; 5/22/19; 6/14/19, 8/7/19, 8/28/19, 10/16/19, 12/18/19
Docket 16
Tentative Ruling:
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.
Party Information
Debtor(s):
Michael Vara Represented By Onyinye N Anyama
11:00 AM
1:19-13099
Marshall Scott Stander
Chapter 7
Adv#: 1:20-01011 Rob Kolson Creative Productions, Inc. v. Stander et al
#47.00 Status Conference re: Complaint to set aside fraudulent transfers, constructive trust, equitable lien, reverse alter Ego Liability and declaratory relief, and for damages
Docket 1
*** VACATED *** REASON: Stip. cont. to 5/6/20 @11am Tentative Ruling:
Party Information
Debtor(s):
Marshall Scott Stander Represented By Leslie A Cohen
Defendant(s):
Marshall Scott Stander Pro Se
Rita L. McKenzie Pro Se
Marianne Stander Pro Se
Jackie R. Stander Pro Se
The Stander Group, Inc. Pro Se
Plaintiff(s):
Rob Kolson Creative Productions, Represented By
Lane M Nussbaum
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
1:19-12134
Mehrnaz Fotoohi
Chapter 7
Adv#: 1:19-01143 Irani v. Fotoohi
#48.00 Motion for Summary Judgment fr. 3/11/20
Docket 6
Tentative Ruling:
Zarin Karin Irani ("Creditor") filed a complaint against Mehrnaz Fotoohi ("Debtor") on December 3, 2019, seeking to declare certain debt nondischargeable in Debtor’s Chapter 7 case, filed on August 24, 2019. Creditor now moves for partial Summary Judgement on her Second Claim for Relief ("MSJ"), asserting that Debtor’s conduct resulted in willful and malicious injury to Creditor within the meaning of 11
U.S.C. § 523(a)(6).
Creditor alleges that Debtor engaged in harassment and defamation. Complaint, 3:7-6:15 (ad. ECF doc.1). Namely, Creditor alleges that Debtor "intentionally initiated a campaign to harass and intimidate [Creditor] on a regular basis through phone calls, texts, social media posts and" other intimidating conduct. MSJ, 4:9-28 (ad. ECF doc. 6). Creditor specifically alleges that Debtor harassed Creditor on various occasions, prompting Creditor to apply for a restraining order against Debtor. Id. After a hearing was held, a civil restraining order was issued against Debtor in favor of Creditor. MSJ, 5:1-27. Creditor alleges that a California State Court Civil judgment was rendered against Debtor for "harassment," which included attorney’s fees (the "State Court Judgment"). Id.
Creditor contends that the attorney’s fees are nondischargeable under 11
U.S.C. § 523(a)(6), because they are the result of Debtor’s "intentional, harmful, and malicious" acts. Id.; Irani Decl. ISO MSJ, 4:1-3 (ad. ECF doc. 9). Creditor asserts that the factual issues decided in the State Court should be given preclusive effect and will satisfy the "willful" and "malicious" prongs of 11 U.S.C. § 523(a)(6). MSJ, 5:1-27; Irani Decl. ISO MSJ, 4:3-10. Additionally, Creditor contends that the attorney’s fees judgment could constitute an "injury" within the meaning of 11 U.S.C. § 523(a)(6), citing Suarez v. Barrett (In re Suarez), 400 B.R. 732 (B.A.P. 9th Cir. 2009) (finding attorney’s fees predicated on prosecuting
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
restraining order "injury" within the meaning of section 523(a)(6)). MSJ, 7:15-10:26. See Irani Decl. ISO MSJ, 3:1-7.
Debtor only admits the allegations related to an affair with a third party and the existence of the civil harassment action and its disposition. See Answer, 2:7, 3:15 (ad. ECF doc.4). Debtor answered with ten affirmative defenses, including that her conduct was justified. Id., 6:10-7:28. Debtor disputes that she acted within the meaning of 11 U.S.C. § 523(a)(6). Opposition ("Opp.") to MSJ, 4:6-10; Fotoohi Decl. ISO Opp., 1:2-6 (ad. ECF doc.16). Debtor asserts that the State Court Judgment finding Civil Harassment is insufficient to establish the willful and malicious prongs of 11 U.S.C. § 523(a)(6). Opp. to MSJ, 3:6-10. Additionally, Debtor contends that In re Suarez is factually distinguishable from this case. Id., 3:11-18.
Debtor has not filed an opposition to the facts alleged in the MSJ as required, because she failed to provide the Court with a statement of facts disputing the specific facts alleged in the MSJ. See Beard v. Banks, 548 U.S. 521, 527 (2006); Fed. R. Civ. Pro. § 56(e)(2) and (3); Local Bankruptcy Rule 7056-1(f). Regardless, the Court must analyze the motion to determine whether Creditor has met their burden of proof. See Local Bankruptcy Rule 7056-(1)(g) (requiring analysis of entirely unopposed motion, as failure to oppose is not consent to motion).
The Court takes judicial notice of the existence of the exhibits attached to the MSJ. RJN ISO MSJ, Ex. 1-6 (ad. ECF doc. 9). See Fed. R. E. § 201(b). The
existence of these public court filings is "not subject to reasonable dispute," because they are "generally known" within this District and "can be accurately and readily determined," as their existence is admitted by all parties or could be readily determined in an accurate manner by recourse to public court filings. Fed. R. E. § 201(b). See generally, Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018) (discussing judicial notice doctrine in context of rule 12(b)(6) motion).
Standards
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FRCP 56(a); see also FRBP 7056. The moving party must show that a fact cannot be disputed by citing to "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations…
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
or other materials…" FRCP(c)(1)(A).
The moving party has the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine dispute of material fact, then the nonmoving party must go beyond the pleadings and identify facts that show a genuine dispute for trial. Id. at 324. The nonmoving party must show more than "the mere existence of some alleged factual dispute… the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986).
When determining whether a genuine dispute or issue of material fact exists, all evidence is viewed in the light most favorable to the nonmoving party, Tolan v. Cotton, 572 U.S. 650, 656-57 (2014), and summary judgment should not be granted if "a reasonable juror, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s favor." James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008). However, the evidence offered by the parties must be believable. See Scott v. Harris, 550 U.S. 372, 380-81 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgement."); Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586–587 (1986); Anderson, U.S. 242 at 247-48.
11 U.S.C. Section 523(a)(6)
Section 523(a)(6) excepts from discharge any debt of the debtor "for willful or malicious injury to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6). Under section 523(a)(6), Debtor’s actions, as found in the State Court, would need to equate with "willful and malicious injury" within the meaning of the Bankruptcy Code.
The first step of this inquiry is whether there is "willful" injury, which must entail a deliberate or intentional injury. Kawaauhau v. Geiger, 523 U.S. 57, 61-62 (1998). In the Ninth Circuit, the intent required to be considered "willful" is either the subjective intent of the actor to cause harm or the subjective knowledge of the actor that harm is substantially certain to occur. Carillo v. Su (In re Su), 290 F.3d 1140, 1144-45 (9th Cir. 2002). Because it is usually necessary to infer such intent from
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CONT...
Mehrnaz Fotoohi
Chapter 7
circumstantial evidence, a court need not "simply take the debtor’s word for his state of mind." Id. at 1146 ("[A] bankruptcy court may consider circumstantial evidence that tends to establish what the debtor must have actually known when taking the injury-producing action."). Although the "focus [is] on what was actually going through the mind of the debtor at the time he acted," id., the "totality of the circumstances and the conduct of the person accused" are relevant, and a person is "charged with knowledge of the natural consequences of their actions." Ormsby v. First American Title Company of Nevada (In re Ormsby), 591 F.3d 1199,1206 (9th Cir. 2010) (upholding nondischargeability finding under section 523(a)(6) premised on applying issue preclusion to state court judgment which did not expressly find willful and malicious injury, because debtor committed intentional torts in a manner establishing that he "must have known" that creditor’s injury was "substantially certain to occur as a result" of such conduct).
The second step of this inquiry is whether Debtor’s conduct was "malicious." The relevant test for such "malicious" conduct is: 1) a wrongful act; 2) done intentionally; 3) which necessarily causes injury; and 4) without just cause and excuse. Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1105-1106 (9th Cir. 2005).
The Supreme Court has stated that when a wrongful act is voluntarily committed, with knowledge that the act is wrongful and will necessarily cause injury, it constitutes a willful and malicious injury within the meaning of § 523(a)(6). See Geiger, 523 U.S. at 62-63.
Issue Preclusion
The findings and determinations in a State Court Judgment may be given preclusive effect in this Court on summary judgement. See Khaligh v. Hadaegh (In re Khaligh), 338 B.R. 817, 831-32 (B.A.P. 9th Cir. 2006). The forum state's law of issue preclusion controls this analysis. Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir. 2001); see also 28 U.S.C. § 1738 (federal courts must give "full faith and credit" to state court judgments).
In California, issue preclusion will prevent a previously litigated issue from being relitigated if: "(1) the issue sought to be precluded from relitigation is identical to that decided in a former proceeding; (2) the issue was actually litigated in the former proceeding; (3) the issue was necessarily decided in the former proceeding; (4) the decision in the former proceeding is final and on the merits; and (5) the party
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
against whom preclusion is sought was the same as, or in privity with, the party to the former proceeding." Lucido v. Super. Ct., 51 Cal. 3d 335, 341 (1990). Application of issue preclusion must also be consonant with "the public policies underlying the doctrine." In re Harmon, 250 F.3d at 1245. Such public policies include "preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation." Lucido, 51 Cal. 3d at 346.
The party asserting preclusion bears the burden of proof. Id. They must provide a record revealing the controlling facts and issues litigated in the prior action. Honkanen v. Hopper (In re Honkanen), 446 B.R. 373, 382 (9th Cir. BAP 2011); Kelly v. Okoye (In re Kelly), 182 B.R. 255, 258 (B.A.P. 9th Cir. 1995), aff'd, 100 F.3d 110 (9th Cir. 1996). Any "reasonable doubt as to what was decided by a prior judgment should be resolved against" the preclusive effect. Plyam v. Precision Dev., LLC (In re Plyam), 530 B.R. 456, 462 (B.A.P. 9th Cir. 2015).
No "Genuine" Factual Dispute Exists on Creditor’s Second Claim for Relief
The Existence of Certain Judicially Noticed Exhibits is not in Dispute
The Court has taken judicial notice of public court filings which explicitly find that Debtor engaged in harassment, RJN ISO MSJ, Ex. 1-6, requiring Creditor’s counsel to prosecute a civil harassment claim to judgment to stop such conduct. See Irani Decl. ISO MSJ, 3:1-7. See generally, Ca. Civ. Code § 527.6 ("Harassment [is] unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.").
This evidence sufficiently supports Creditor’s factual burden on her Second Claim for Relief as to these document’s existence, see Celotex Corp., 477 U.S. at 323, as any reasonable person would infer that these public records exist and that they evince Debtor’s conduct as found in the State Court by clear and convincing evidence, even drawing all inferences in Debtor’s favor. See Tolan, 572 U.S. at 656-57; Scott, 550 U.S. at 380-81; Matsushita Elec. Industrial Co., 475 U.S. at 586-87; Anderson,
U.S. 242 at 247-48; James River Ins. Co., 523 F.3d at 920. Moreover, Debtor admitted to the State Court Judgment’s existence and its disposition, see Answer, 2:7
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
and 3:15, although she disputed whether it found that she had "specific intent to cause willful and malicious injury to [Creditor]." Debtor’s Statement of Disputed Facts, No. 3, generally citing Fotoohi Decl. ISO Opp.. Debtor therefore failed to create a genuine issue for trial on these documents’ existence. See Celotex Corp., 477 U.S. at 324; FRCP 56(a); FRCP(c)(1)(A); see also FRBP 7056.
There is no dispute that the State Court expressly found by "clear and convincing" evidence that Debtor engaged in "a course of conduct directed at [Creditor] that seriously alarmed, annoyed, or harassed her, that was knowing and willful, that served no legitimate purpose, and that were not constitutionally protected, and that would cause any reasonable person to suffer substantial emotional distress and did actually cause substantial emotional distress to" Creditor. RJN ISO MSJ, Ex. 4, 2:2-9.
All parties also agree that, in support of its determination, the State Court found by "clear and convincing evidence" that Debtor engaged in:
"Unlawful violence by physically assaulting [Creditor] on April 27th, 2018, and by a credible threat of violence, including a dangerous car chase at night on May 24th, 2018; and also by text messages to [Creditor] that she should disappear and that [Debtor] would have Bobby, [Creditor’s] husband, kill [Creditor], a threat that was repeated in a telephone call; and by a series of text messages, including photos and videos and a public Instagram page, with demeaning and insulting links and hashtags designed to sweep in [Creditor’s] entire personal and professional community."
Although Debtor’s Opposition does not mention this finding, the State Court also found that:
"[Debtor] admitted to much of the harassing conduct alleged but claimed that she did it in retaliation for harassing conduct by [Creditor]. The Court found much of her claim to be not credible, much of the defense as not credible, and that the evidence is insufficient to establish that [Creditor] took any negative actions against [Debtor] or sent her any negative communications. But even if it were true, it would not constitute a defense to this claim of civil harassment because the posting of the public Instagram page directed to petitioner, both personally and her entire professional community, was not an act of reasonable
1:00 PM
CONT...
Mehrnaz Fotoohi
self-defense. The public posting of that page was disproportionate to anything that [Debtor] claimed occurred to her."
Chapter 7
Id. at 1:19-3:7.
No "Genuine" Dispute Exists as to Creditor’s Second Claim for Relief Assuming that Debtor’s declaration is admissible, see Creditor’s Proposed
Order on Plaintiff’s Evidentiary Objections to Declaration of Mehrnaz Fotoohi (ad. ECF doc. 21), the parties’ dispute revolves around what inferences a reasonable factfinder could draw when looking at the State Court Judgment. See MSJ, 5:1-27; Irani Decl. ISO MSJ, 4:3-10; Opp. to MSJ, 3:6-10. Creditor asserts that the State Court’s factual findings, once given preclusive effect, require the inference that Debtor acted within the meaning of 11 U.S.C. § 523(a)(6), see MSJ, 5:1-27 and Irani Decl. ISO MSJ, 4:3-10; Debtor asserts that no such inference is possible because she did not act with the state of mind required by 11 U.S.C. § 523(a)(6), and because the State Court made no specific finding that she did so act. See Opp. to MSJ, 4:6-10; Fotoohi Decl. ISO Opp., 1:2-6. The threshold question is whether this dispute is sufficiently "genuine" to proceed to trial to determine Debtor’s state of mind at the time she engaged in the conduct underlying the State Court Judgment. Scott, 550 U.S. 372, 380-81 (2007); Matsushita Elec. Industrial Co., 475 U.S. at 586-87; Anderson,
U.S. 242 at 247-48.
Debtor asserts that she engaged in the underlying harassing conduct to drive Creditor away from her now ex-husband, not to injure Creditor. Opp. to MSJ, 3:6-10; Fotoohi Decl. ISO Opp., 1:2-6. The record establishes that Debtor’s defense in the State Court was to admit that she acted with a retaliatory purpose, see RETALIATION, Black's Law Dictionary (11th ed. 2019) ("The act of doing someone harm in return for actual or perceived injuries or wrongs. "), when engaging in the
underlying conduct on which the MSJ is based. RJN ISO MSJ, Ex. 4, 1:19-3:7. Debtor provides no argument on this issue, but it is likely that Debtor declared her retaliatory purpose in the State Court to argue that her actions had a legitimate purpose under California Harassment Law. See Ca. Civ. Code § 527.6 ("course of conduct [must serve] no legitimate purpose…." to constitute harassment).
The sheer scope and egregiousness of Debtor’s conduct coupled with her express admission that she engaged in that conduct in retaliation for acts she
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
perceived Creditor to be engaging in, RJN ISO MSJ, Ex. 4, 1:19-3:7, makes it "so that no reasonable jury could believe" that Debtor did not have the subjective intent to cause Creditor harm. Scott, 550 U.S. at 380-81. Moreover, Debtor’s proffered purpose does not preclude a finding that she acted with a retaliatory purpose. Debtor could have acted with both purposes, each of which could have been integral to advancing the other. As the record discloses Debtor’s retaliatory purpose, and because Debtor failed to explain or oppose that finding, the Court concludes that, even looking at all evidence in the light most favorable to Debtor, the Opposition creates the existence of "some alleged factual dispute," not a genuine dispute for trial. See Scott, 550 U.S. 372, 380-81 (2007); Matsushita Elec. Industrial Co., 475 U.S. at
586–587; Anderson, U.S. 242 at 247-48.
The Court cannot credit Debtor’s proffered version of the facts for purposes of ruling on the MSJ. See id. (refusing to credit assertion so "utterly discredited by the record that no reasonable jury" could believe it). The Court therefore concludes that Creditor met its initial burden of establishing the absence of a genuine dispute of material fact by providing the State Court Judgment – accorded preclusive effect as explained in Part III, A – which contains express findings requiring the inference that Debtor engaged in a course of conduct constituting harassment with the state of mind required by 11 U.S.C. § 523(a)(6). See Celotex Corp, 477 U.S. at 323; Anderson, 477
U.S. at 247-48; James River Ins. Co., 523 F.3d at 920.
Debtor’s Conduct, as Found in the State Court, Was "Willful" and "Malicious" Within the Meaning of Section 523(a)(6)
The Court finds that record requires an inference that Debtor acted within the meaning of 11 U.S.C. § 523(a)(6). See In re Su, 290 F.3d at 1144-45 (affirming appropriateness of inferential reasoning from circumstantial evidence in this context); In re Ormsby, 591 F.3d at 1206 (upholding application of issue preclusion to hold debt arising out of intentional torts nondischargeable under section 523(a)(6)).
Debtor acted willfully, because her intention to retaliate against Creditor evidences Debtor’s desire to perform the conduct underlying the restraining order with the subjective intent to cause Creditor harm. See Geiger, 523 U.S. at 61. Debtor’s retaliatory purpose clearly implies her conscious object when acting: to inflict harm upon Creditor. See RETALIATION, Black's Law Dictionary (11th ed. 2019). To
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
further her admitted end of inflicting harm upon Creditor in retaliation for Creditor’s perceived acts, Debtor engaged in a variety of acts that Debtor must have actually known were substantially certain to cause harmful effects to Creditor. See In Re Su, 290 F.3d at 1144-45; In re Ormsby, 591 F.3d at 1206.
Specifically, Debtor: (1) physically assaulted Creditor; (2) threatened violence upon Creditor by way of a "dangerous car chase;" (3) alluded to having individuals kill Creditor; and (4) disseminated noxious statements about Creditor through social media. RJN ISO MSJ, Ex. 4, 1:19-2:23. More specifically, Debtor regularly called and texted Creditor, calling her "a bitch and a bad dentist;" told Creditor she would have Creditor’s ex-husband kill her; sent pictures to Creditor via text message, displaying Debtor kissing Creditor’s ex-husband; and set up a social media page where "she attempted to ruin [Creditor’s] reputation both professionally and personally." Irani Decl. ISO MSJ, 2:12-24. Debtor has not specifically opposed these facts. See Fotoohi Decl. ISO Opp., 1:2-6.
Because this record establishes, by its sheer scope and egregiousness, that Debtor was likely to achieve her stated retaliatory purpose, the Court disregards Debtor’s opposing assertion. See In Re Su, 290 F.3d at 1146-47; In re Ormsby, 591 F.3d at 1206. In other words, the "totality of the circumstances" are such that Debtor is "charged with knowledge of the natural consequences of [her] actions," those consequences being to cause harm concomitant with that which Debtor erroneously perceived Creditor was inflicting upon Debtor. In re Ormsby, 591 F.3d at 1206.
Debtor must have known that directing the objectively egregious conduct above at Creditor, amplified by her purposes to retaliate and keep Creditor away from her ex- husband, would, in fact, lead to injury to Creditor’s professional reputation and bodily autonomy interests, among other interests. Moreover, Debtor’s professed purpose is consistent with her retaliatory purpose, as it is reasonable to infer that Debtor retaliated against Creditor so that Debtor may further her ultimate purpose of driving Creditor away from her ex-husband.
Debtor also acted maliciously, because Debtor voluntarily committed wrongful acts which necessarily cause injury without just cause or excuse, with a malicious retaliatory purpose. See In re Sicroff, 401 F.3d at 1105-06; Geiger, 523 U.S. at 62-63. The acts described above were "wrongful," in that they are proscribed by California Law. In re Sicroff, 401 F.3d at 1105-06. Debtor also acted "intentionally," because,
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
as described above, Debtor’s conscious object was to retaliate against Creditor. Id. Debtor’s conduct also "necessarily cause[s] injury," id., as the State Court found that Debtor’s conduct "would cause any reasonable person to suffer substantial emotional distress." RJN ISO MSJ, Ex. 4, 1:19-2:23. Finally, Debtor acted "without just cause and excuse," In re Sicroff, 401 F.3d at 1105-06, as the State Court found that Debtor had no legitimate purpose when engaging in the acts described above; Debtor engaged in such conduct for the illegitimate and thus unjustified purpose of retaliating against Creditor. See RJN ISO MSJ, Ex. 4, 1:19-2:23.
Debtor’s opposition seemingly suggests that, because Civil Harassment under California Law is presumed to require only general intent, the State Court Judgment’s harassment finding does not necessarily support a finding of 11 U.S.C. § 523 (a)(6)’s state of mind requirement. See Towle v. Matheus, 130 Cal. 574, 577 (1900) (declaring that "willful" in Ca. Civ. Code presumptively encompasses general intent). If the State Court’s legal finding of Civil Harassment alone was the basis of inferring that Debtor acted willfully, then this argument might have merit. See In re Plyam, 530
B.R. at 464. But in the course of defending herself against that presumptively general intent claim, Debtor admitted to engaging in the conduct underlying it with the state of mind required by 11 U.S.C. § 523(a)(6). Debtor cannot plausibly argue that she did not have the subjective intent to harm creditor – i.e., retaliate against Creditor for her perceived acts – when she admitted to having such intent in the State Court.
Therefore, because Debtor admitted in the State Court that her objectively egregious actions were purposed to cause harm to Creditor for her perceived actions against Debtor, and because Debtor did not oppose this specific finding so as to create a genuine dispute related to it, the Court finds that there is no genuine dispute that Debtor willfully engaged in malicious conduct with the subjective intent to cause Creditor harm, such that injury arising from that conduct may be nondischargeable under 11 U.S.C. § 523(a)(6).
The Attorney’s Fees Debt Can Constitute "Injury" Under Section 523(a)(6)
Creditor asserts that her attorney’s fees were a proximate result of Debtor’s willful and malicious conduct, see MSJ, 5:1-27 and Irani Decl. ISO MSJ, 4:1-3, and points to Suarez for the proposition that those fees constitute "injury" under section
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
523(a)(6). See 400 B.R. at 736-37.
A state court enjoined the debtor in Suarez from assaulting a third party. 400
B.R. at 734. After trial, the state court found the debtor in violation of its injunction and ordered the debtor to pay the third party’s attorney’s fees and costs for bringing the contempt proceedings, pursuant to Ca. Civ. Code § 1218(a). Id. at 734-35. The debtor then filed a voluntary Ch.7 petition seeking to discharge those fees; the third party instituted an adversary proceeding seeking to hold them nondischargeable. Id. The debtor argued that no statutory "injury" occurred because such injury must be evinced in a money judgment. Id. The bankruptcy court, however, found statutory injury because the debtor’s conduct was substantially certain to result in enforcement of the injunction and in turn attorney’s fees. Id. at 735-36.
Declaring that the nondischargeability of contempt sanctions depends on the "conduct leading to them" being willful and malicious – not on the charge of contempt itself – the B.A.P. upheld the bankruptcy court. Id. at 736-37 ("[A] debt for contempt sanctions may be nondischargeable under section 523(a)(6) when the conduct leading to the contempt is willful and malicious, as determined by Su," 290 F.3d at 1144-45.). Suarez’s reasoning was not expressly limited to contemptuous conduct; nor was its logic limited in a manner suggesting that it should not apply to this case. See id.
Suarez thus potentially stands for the broad proposition that a debt – at least one imposed by court-ordered sanction – arising from willful and malicious conduct does not need to be evidenced in a money judgement to be nondischargeable under section 523(a)(6); it can be premised on attorney’s fees incurred to stop such conduct. See id.
Debtor attempts to distinguish Suarez by asserting that she did not violate a restraining order. Opp. to MSJ, 3:11-18. But Suarez did not focus on that fact. It focused on determining whether a debt incurred pursuant to court ordered sanction is statutory injury in the absence of a money judgment evincing it. See 400 B.R. at 736-37. Such a debt was deemed injury, as it was the "proximate result" of the
debtor’s willful and malicious conduct. Id. See also, Papadakis v. Zelis (In re Zelis), 66 F.3d 205 (9th Cir. 1995) (finding sanctions ordered against debtor for litigation costs and attorney’s fees arising from frivolous appeal nondischargeable under section 523(a)(6) even where "there was no underlying monetary obligation other than the sanction."). Here, there is no dispute: (1) that Debtor’s willful and malicious conduct caused Creditor to prosecute a Civil Harassment claim to judgment to stop such
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
conduct; (2) that Creditor incurred attorney’s fees as a proximate result of such conduct; and (3) that the State Court imposed Creditor’s attorney’s fees against Debtor for such conduct.
Debtor also asserts that Suarez is not applicable because Debtor did not have the "specific intent to cause [Creditor] to incur attorney’s fees." Opp. to MSJ,
3:11-18. But neither did the debtor in Suarez; Suarez presumed that contemptuous conduct is willful and malicious because the debtor waived that issue on appeal. 400.
B.R. at 737. The debtor’s intent was thus not at issue in Suarez. Id. The Court fails to see the relevance of this distinction.
In sum, because Creditor’s attorney’s fees resulted from Debtor engaging in malicious acts with a willful state of mind, and because Debtor has failed to adequately dispute that Suarez should not apply in this context, Creditor is entitled to a finding of nondischargeablity on the debt alleged in her Second Claim for Relief as a matter of law. See id.
Creditor is Entitled to Judgment as a Matter of Law on her Second Claim for Relief
Facts Found by the State Court are Preclusive in This Adversary Proceeding
Although Plyam reversed a bankruptcy court’s nondischargeability finding under 11 U.S.C. § 523(a)(6) premised on issue preclusion, it did not purport to "eviscerate a bankruptcy court’s ability or opportunity to apply issue preclusion to … a state court judgment based on an intentional tort," 530 B.R. at 464, or to tortious conduct performed with the state of mind required by 11 U.S.C. § 523(a)(6). See id. (reversing nondischargeability finding premised on jury’s finding of breach of fiduciary duty and assessment of punitive damages, because those findings did not necessarily support a finding of willfulness under section 523(a)(6)). See generally, Sangha v. Schrader (In re Sangha), 2015 Bankr. LEXIS 1919 (B.A.P. 9th Cir. 2015), aff'd and remanded, 678 F. App'x 561 (9th Cir. 2017) (citing Plyam to reverse discharge exemption under section 523(a)(6) where state court made no findings allowing inference that debtor acted willfully under section 523(a)(6)). Using the premise that Debtor’s conduct is analogous to an intentional tort, the Court finds
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
application of issue preclusion appropriate here.
The issue relevant to the MSJ – whether Debtor acted with a sufficiently culpable state of mind – is substantially "identical to that decided in the former proceeding." Lucido, 51 Cal. at 341. The "identical issue requirement addresses whether identical factual allegations are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same." Id. at 342. Here, identical factual allegations support both Creditor’s Second Claim for Relief, premised on willful and malicious conduct, and the harassment determination made in the State Court, premised on knowing and willful conduct.
Further, the issue was "necessarily decided in the former proceeding," because it was not "entirely unnecessary" to the judgment arising from that proceeding. Id. at
342. Debtor’s state of mind was integral to the State Court’s harassment finding, which required a knowing and willful course of conduct. Ca. Civ. Code § 527.6 ("Harassment [is] … a knowing and willful course of conduct..."). Moreover, the issue was "actually litigated" by Debtor and Creditor in State Court, where both parties’ counsel presented the parties’ cases to Judge Byrd. The State Court rejected Debtor’s "reasonable self-defense" defense, thereby: (1) implicitly rejecting any notion that Debtor’s conduct was justified or performed for a legitimate purpose; and
(2) concluding that the acts above were performed with a culpable state of mind. The State Court Judgment is "final and on the merits," as it is "free from direct attack." Id. And these same parties appeared at the State Court proceedings; they are thus in "privity." Id.
Applying issue preclusion here is also consonant with the doctrine’s "public policies," In re Harmon, 250 F.3d at 1245, which include "preservation of the integrity of the judicial system, promotion of judicial economy, and protection from harassment by vexatious litigation." Lucido, 51 Cal. at 341. The judiciary’s integrity is fortified, and judicial resources are saved, when two tribunals render consistent verdicts on similar issues. Id. at 347. As explained above, the issue here is analogous to an issue already litigated in State Court; these two public policies rationales are therefore furthered by applying issue preclusion. See id. And "protection from harassment by vexatious litigation" is afforded to Creditor by applying issue preclusion here, as the traumatic effect of Creditor "being subjected to consecutive proceedings raising the
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
same factual allegations" of Debtor’s harassing conduct is minimized. Id. at 351.
Debtor states that issue preclusion should not apply because "the state court judgment does not specifically find that [her] subjective intent was to willfully and maliciously inflict injury to [Creditor]." Opp. to MSJ, 4:24-28. But that argument does not square with the controlling standard of law. See In re Harmon, 250 F.3d at 1245 (declaring forum state’s law of issue preclusion controlling here). And Debtor does not invoke In re Plyam’s limiting principle on issue preclusion’s application here. See 530 B.R. at 464. Moreover, Debtor’s argument is untenable if Debtor defines specifically as expressly because only Federal Courts can expressly find intent within the meaning of the Bankruptcy Code. See U.S. Con. Art. I, § 8, cl. 4 (Congress’ exclusive power to make Bankruptcy Law); 28 U.S.C. § 1334 (Art. III court’s exclusive or original jurisdiction to hear bankruptcy cases); 28 U.S.C. § 157(a) (Art. III court’s power to refer bankruptcy cases to this Court); Central District of California General Order No. 13-05 (referring bankruptcy cases to bankruptcy judges of this District).
Creditor has therefore met her burden of proof on the application of issue preclusion, as she provided a record which clearly reveals the facts controlling the State Court’s determination of Debtor’s state of mind when she engaged in the conduct underlying the State Court Judgment resulting in attorney’s fees. See In re Kelly, 182 B.R. at 258. No "reasonable doubt" exists as to the State Court Judgment’s finding that Debtor acted with a retaliatory purpose, and knowingly caused injury to Creditor thereby, within the meaning of 11 U.S.C. § 523(a)(6). In re Plyam, 530 B.R. at 462.
Summary Judgment is Appropriate
In sum, because Debtor essentially conceded the issue of her state of mind in the State Court, no reasonable juror could return a verdict in her favor on that issue in this Court. See James River Ins. Co., 523 F.3d at 920. As a result, the Court finds that Debtor failed to meet her burden of proof in opposition to the MSJ, because she failed to create a genuine dispute on the issue relevant to the MSJ: her state of mind when she engaged in the underlying harassing conduct that led to injury under the Bankruptcy Code. See Celotex Corp, 477 U.S. at 323-24. See also, Suarez, 400 B.R. at 736-37. Summary Judgment is therefore appropriate, as Creditor has cited to
1:00 PM
CONT...
Mehrnaz Fotoohi
Chapter 7
materials in the record establishing that there is no genuine dispute as to any material fact on her Second Claim for Relief, see RJN ISO MSJ, Ex. 4, 1:19-3:7, and that she is entitled to judgment as a matter of law by operation of issue preclusion and the law cited in the MSJ and her pleadings in support thereof. See FRCP 56(a); see also FRBP 7056.
Conclusion
For these reasons, the MSJ is granted.
Party Information
Debtor(s):
Mehrnaz Fotoohi Represented By Fari B Nejadpour
Defendant(s):
Mehrnaz Fotoohi Pro Se
Plaintiff(s):
Karin Irani Represented By
Sanaz S Bereliani
Trustee(s):
David Keith Gottlieb (TR) Pro Se
Friday, April 3, 2020
Hearing Room
302
10:00 AM
1:19-11659
Nicolas Mendez Rodriguez
Chapter 7
#1.00 Evidentiary Heraing re: Motion to Avoid Lien Judicial
Lien under section 522(f) (Berta Hernandez and Jose Eduardo Hernandez- Hlnojosa)
fr. 12/11/19
Docket 44
*** VACATED *** REASON: Cont'd to 6/11/20 at 10:00 a.m. per order #58. lf
Party Information
Debtor(s):
Nicolas Mendez Rodriguez Represented By Steven A Simons
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:16-13055
Mark David Cave
Chapter 13
#1.00 Motion for relief from stay KIMBERLY CAVE
Docket 118
Tentative Ruling:
Ch. 13 Petition Date: 10/24/2016. Plan Confirmed on 07/28/17. Service: Improper; no Proof of Service filed
Movant: Kimberly Cave
Relief Sought: Pursue Pending State Court Litigation Litigation Information
Case Name: POST JUDGMENT REQUEST FOR ORDER IN DISSOLUTION
Court/Agency: Superior Court of CA, County of LA Date Filed: 12/19/2019
Judgment Entered:
Trial Start Date: 06/16/2020
Action Description: Request for order determining scope of child support obligations and custodial rights; reimbursement of debt; and sale of residence.
Grounds
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 3 (stay annulled retroactively to petition date, as to actions taken in nonbankruptcy forum); 5 (waiver of the 4001(a)(3) stay); and 6 (order binding for 180 days in subsequent bankruptcy case). Movant claims that their Non-bankruptcy claims are best resolved in a non-bankruptcy forum.
Movant alleges lack of knowledge of bankruptcy action and asserts that they are entitled to relief from stay because the family law matter can be tried quicker in the nonbankruptcy forum.
10:00 AM
CONT...
Mark David Cave
Chapter 13
As no proof of service was filed with the Motion (ECF doc. 118) or the Notice of Motion (ECF doc. 119), this hearing will be continued to April 29, 2020, at 10:00 a.m., to allow Movant to properly serve the Motion.
NO TELEPHONIC APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING.
Party Information
Debtor(s):
Mark David Cave Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11120
Jennifer H. Nguyen
Chapter 13
#2.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
fr. 2/26/20, 3/11/20
Docket 48
Tentative Ruling:
This hearing was continued from 3/11/20 so that the parties could continue to work towards a loan modification and an APO to resolve this matter. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
2-26-20 TENTATIVE BELOW
Petition Date: 4/28/2017
Ch.13; confirmed on 10/12/2017.
Service: Proper; Co-debtor served. No opp filed. Property: 7968 Fairchild Avenue, Los Angeles, CA 91306 Property Value: $ 600,000
Amount Owed: $ 409,247.60 Equity Cushion: 31.8% Equity: $190,725.04.
Post-Petition Delinquency: $52,551.33 (7 payments of $2,616.89 + 5 payments of
$2,879.05 + 7 payments of $3,036.53 less suspense balance of $1,417.86)
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 (co-debtor stay is terminated) and 7 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment of $2,813.00 was received on or about 2/21/2019.
There appears to be a sufficient amount of equity here, but the deficiency is large; have the parties had an opportunity to discuss if an APO is appropriate?
Party Information
Debtor(s):
Jennifer H. Nguyen Represented By
10:00 AM
CONT...
Trustee(s):
Jennifer H. Nguyen
Rob R Nichols
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12656
David Kapshanyan and Tina Sarkisyan
Chapter 13
#3.00 Motion for relief from stay Specialized Loan Servicing LLC fr. 3/4/20
Docket 48
*** VACATED *** REASON: Resolved per APO (ECF doc. 50) - hm Tentative Ruling:
Party Information
Debtor(s):
David Kapshanyan Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Tina Sarkisyan Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10940
Laurie Francene Kinzer
Chapter 13
#4.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOCIATION. fr. 1/29/20, 3/4/20
Docket 41
*** VACATED *** REASON: Vol. dismissed (ECF doc. 44) - hm Tentative Ruling:
Party Information
Debtor(s):
Laurie Francene Kinzer Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11758
Aram Setrak Ohanesian
Chapter 13
#5.00 Motion for relief from stay
TOYOTA LEASE TRUST AS SERVICE BY TOYOTA MOTOR CREDIT CORP.
Docket 22
Tentative Ruling:
Petition Date: 4/15/19
Ch.13 confirmed on 10/18/19 Service: Proper. Opposition filed. Property: 2017 LEXUS RX350
Property Value: $ 20,350 (per debtor’s schedules) Amount Owed: $ 38,658.89
Equity Cushion: n/a (lease) Equity: n/a (lease)
Post-Petition Delinquency: $1,600 (2 post-petition payments of $550 and 1 post-petition payment of $500).
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay). Movant alleges that the last payment of $600 was received on or about 1/6/2020.
Debtor opposes the motion and wishes to enter an APO with Movant. TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Aram Setrak Ohanesian Represented By Elena Steers
10:00 AM
CONT...
Trustee(s):
Aram Setrak Ohanesian
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12358
Jessica M. DeMent
Chapter 13
#6.00 Motion for relief from stay
LAKEVIEW LOAN SERVICING, LLC
Docket 24
Tentative Ruling:
Ch. 13 Petition Date: 09/18/2019. Plan Confirmed on 01/03/2020. Service: Proper. No opposition filed.
Property: 5019 Ludgate Dr., Calabasas, CA 91301 Property Value: $760,000 (per debtor’s schedules) Amount Owed: $763,797.05
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $20,570.40 (4 payments of $5,144.08, less suspense of $5.92)
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 TELEPHONIC APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Jessica M. DeMent Represented By Tom A Moore
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12791
Richard Corcios and Aida Corcios
Chapter 13
#7.00 Motion for relief from stay TOYOTA MOTOR CREDIT CORP.
Docket 34
Tentative Ruling:
Ch. 13 Petition Date: 11/05/2019. Service: Proper. No opposition filed.
Property: 2017 Lexus RX350, VIN# 2T2ZZMCA7HC039044
Property Value: $37,431 (per debtor’s schedules) Amount Owed: $37,574.21
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: 1 payment of $622.84
Movant alleges that contract to lease Property matured on 11/18/2019, and that it last received payment on or about 10/11/2019.
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 TELEPHONIC PPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Richard Corcios Represented By Julie J Villalobos
Joint Debtor(s):
Aida Corcios Represented By
Julie J Villalobos
10:00 AM
CONT...
Trustee(s):
Richard Corcios and Aida Corcios
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10213
Afsaneh Doost
Chapter 7
#8.00 Motion for relief from stay
BANK OF AMERICA, N.A.
Docket 15
Tentative Ruling:
Ch.7 Petition Date: 01/28/2020 Service: Proper. No opposition filed.
Property: 4567 White Oak Place, Los Angeles, CA 91316-4334 Property Value: $1,550,000 (per debtor’s schedules)
Amount Owed: $1,333,137.62 Equity Cushion: 13.9%
Equity: $216,862.38.
Post-Petition Delinquency: $129,331.94 (17 payments of $10,565.18)
Movant alleges cause for in rem relief, arguing that this case was filed in bad faith as part of a scheme to hinder, delay, or defraud creditors, due to Debtor filing and then abandoning at least (3) bankruptcy petitions affecting the 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 TELEPHONIC PPEARANCE 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.
Party Information
10:00 AM
CONT...
Debtor(s):
Afsaneh Doost
Chapter 7
Afsaneh Doost Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:20-10462
Justin T Mir
Chapter 7
#9.00 Motion for relief Non-Bankruptcy
TIP TOP RESTORATION INC. AND DAN REICHMAN
Docket 9
Tentative Ruling:
This case was dismissed on 3/16/2020, so the stay expired on that same day under 362(c)(2)(B). As Movant does not request extraordinary or in rem relief, this Motion is DENIED as moot.
MOVANT TO LODGE ORDER IN ACCORDANCE WITH THIS RULING WITHIN 7 DAYS. NO TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Justin T Mir Represented By
Eric Bensamochan
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:20-10588
Cesar Hernandez and Cindy Lorena Diaz
Chapter 7
#10.00 Motion for relief from stay
AMERICAN HONDA FINANCE CORP.
Docket 16
Tentative Ruling:
Petition Date: Ch.7, filed on 3/10/20 Service: Proper. No opposition filed. Property: 2016 Honda Pilot
Property Value: $ 16,580 (per debtor’s schedules) Amount Owed: $ 21,222.29
Equity Cushion: n/a Equity: n/a
Post-Petition Delinquency: (movant already in possession of vehicle)
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.
Party Information
Debtor(s):
Cesar Hernandez Represented By Daniel F Jimenez
Joint Debtor(s):
Cindy Lorena Diaz Represented By Daniel F Jimenez
Trustee(s):
Diane C Weil (TR) Pro Se
10:00 AM
CONT...
Cesar Hernandez and Cindy Lorena Diaz
Chapter 7
10:00 AM
1:20-10598
Juan L Pandeli
Chapter 13
#11.00 Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 9
Tentative Ruling:
On 3/11/20 Debtor filed this chapter 13 case. Debtor had one previous bankruptcy case that was dismissed within the previous year. The First Filing 2:19-bk-21814- VZ, was a chapter 13 that was filed on 10/07/19 and dismissed on 10/25/19 for failure to file schedules.
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. Debtor claims that his prior case was filed without the assistance of counsel and he did not understand the requirements and obligations of a chapter 13 debtor. Debtor now has a bankruptcy attorney and has provided his Amended Schedules (doc. 12).
Service proper. No opposition filed.
MOTION GRANTED. RULING MAY BE MODIFIED AT HEARING. NO TELEPHONIC APPEARANCE REQUIRED DUE.
Party Information
Debtor(s):
Juan L Pandeli Represented By Onyinye N Anyama
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10626
Jose Barrios
Chapter 13
#12.00 Motion in dividual for imposing a stay or continuing the automatic stay
Docket 5
Tentative Ruling:
On 03/16/2020, Debtor filed this chapter 13 case. Debtor had 1 previous bankruptcy case that was dismissed within the previous year. The First Filing, 1:19-bk-11791-MT, was a chapter 13 that was filed on 07/17/2019 and dismissed on 11/21/2019 due to Debtor’s failure to make plan payments.
Debtor now moves for an order continuing the automatic stay as to certain creditors listed in his motion. Debtor argues that the present case was filed in good faith notwithstanding the dismissal of the previous case for his failure to make confirmation plan payments, because that prior failure was caused by Debtor’s "medical problems," which required surgery and time off from work. Debtor contends that those problems no longer pose an obstacle to his ability to fund a Ch.13 plan. Debtor also argues that 14800 Calahan Street, Panorama City, CA 91402 is necessary to an effective reorganization of the estate, because Debtor can use the money saved from not having to reside somewhere else to pay his creditors in a Ch. 13 plan.
Debtor claims that the presumption of bad faith is overcome per 11 U.S.C. 362(c)(3)(C)(i) because there has been a substantial change in his financial affairs, as "Debtor has now fully recovered from his surgery" such that he is able to work and receive "constant income" sufficient to fund a Ch. 13 plan.
Service proper. No opposition filed.
MOTION GRANTED. RULING MAY BE MODIFIED AT HEARING. NO TELEPHONIC APPEARANCE REQUIRED.
Party Information
10:00 AM
CONT...
Debtor(s):
Jose Barrios
Chapter 13
Jose Barrios Represented By
Jaime A Cuevas Jr.
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12894
Mark Theodore Vedel and Susan Wohl Vedel
Chapter 13
#12.01 Motion for relief from stay
THE BANK OF NEW YORK MELLON, et, al.,
Docket 25
Tentative Ruling:
Ch. 13 Petition Date: 11/18/2019. Plan Confirmed on 02/13/2020. Service: Proper. No opposition filed.
Property: 10307 Donna Avenue, Northridge, CA 91326-3317. Property Value: $725,000 (per debtor’s schedules)
Amount Owed: $636,917.58 Equity Cushion: 12.2% Equity: $88,082.42
Post-Petition Delinquency: $10,234.53 (3 payments of $3,411.51)
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 12 (debtor declared borrowed under Ca. law). Movant alleges that Debtor failed to tender postpetition payments due on note secured by Property but does not allege when it last received payment from Debtor.
Debtors confirmed their plan less than two months ago. Have the parties had an opportunity to discuss whether this matter can be resolved by an APO?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Mark Theodore Vedel Represented By Matthew D. Resnik
10:00 AM
CONT...
Mark Theodore Vedel and Susan Wohl Vedel
Chapter 13
Joint Debtor(s):
Susan Wohl Vedel Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10828
Anna Barseghian
Chapter 7
Adv#: 1:19-01083 Zamora, Chapter 7 Trustee v. Baron et al
#13.00 Status Conference Re: Compliant for Avoidance of Transfer; Recovery of Avoided Transfer; Determination of Value, Priority, Extent and Validity of Lien; Declaratory Relief; Quiet Title; To Remove Cloud on Title; and Injunction
fr. 9/18/19, 11/6/19, 1/8/20
Docket 1
*** VACATED *** REASON: Cont'd per stipulation to 6/24/2020, at 11
a.m. - hm Tentative Ruling:
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Defendant(s):
Van Baron Pro Se
Does 1-20 Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Wesley H Avery
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
10:00 AM
1:19-10828
Anna Barseghian
Chapter 7
Adv#: 1:19-01084 Zamora, Chapter 7 Trustee v. Barseghian
#14.00 Status Conference Re: Complaint for Denial of Discharge.
fr. 9/18/19, 11/6/19, 1/8/20
Docket 1
*** VACATED *** REASON: Cont'd per stipulation to 6/24/2020, at 11
a.m. - hm Tentative Ruling:
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Defendant(s):
Anna Barseghian Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Wesley H Avery
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
10:00 AM
1:14-14747
Tony Servera Company, Inc.
Chapter 11
#15.00 U.S. Trustee Motion to dismiss or convert Under 11 U.S.C. § 1112(b)
Docket 233
Tentative Ruling:
Debtor filed a non-opposition to the Motion and requests to dismiss its bankruptcy case. Motion GRANTED. Debtor’s bankruptcy case is dismissed. No appearance required.
Party Information
Debtor(s):
Tony Servera Company, Inc. Represented By Steven R Fox
W. Sloan Youkstetter
10:00 AM
1:18-12547
Michael Vara
Chapter 11
#16.00 Application for Compensation for Alfred J Verdi, Special Counsel, Period: 3/1/2019 to 3/5/2020, Fee: $2500.00, Expenses: $0.00.
Docket 127
Tentative Ruling:
Service proper. No objections filed. Having reviewed the Final Fee Application, the court finds that the fees and costs were necessary and that the fees are reasonable after Counsel voluntarily reduced his fees by 50%. The Application is approved as requested.
APPLICANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 4/8/2020.
Party Information
Debtor(s):
Michael Vara Represented By Onyinye N Anyama Alfred J Verdi
10:00 AM
1:08-10066
Hortencia Simiano Sandoval
Chapter 7
#17.00 Trustee's Final Report and Application for Compensation and Deadline to Object
Docket 37
Tentative Ruling:
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.
Party Information
Debtor(s):
Hortencia Simiano Sandoval Represented By
Joseph Arthur Bernal - DISBARRED -
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:17-12238
Juliana Njeim
Chapter 7
#18.00 Trustee's Amended Final Report and Application for Compensation and Deadline to Object
Docket 105
Tentative Ruling:
Service proper. No objection filed. The U.S. Trustee and SLBiggs, A Division of SingerLewak (the "Firm") entered a stipulation to reduce the fees requested by $700 (the "Stipulation").
Having reviewed Trustee's Final Report and Stipulation and finding that the $3,570 in fees and $183.10 in costs are reasonable and necessary, approval is GRANTED. NO APPEARANCE REQUIRED. TRUSTEE TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Juliana Njeim Represented By Matthew D. Resnik
M. Jonathan Hayes
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:12-19998
Process America, Inc.
Chapter 11
#19.00 Status and case management conference
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,
1/23/19; 3/13/19, 6/26/19; 12/11/19
Docket 1
Tentative Ruling:
Having considered Debtor's post-confirmation status report, ECF doc. 683, the Court finds cause to continue this status conference to June 10, 2020, at 11:00 a.m. to allow time for Debtor's Motion for Entry of Final Decree to be resolved. Debtor to give notice of continued status conference.
APPEARANCES WAIVED ON 4/8/2020
Party Information
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
1:15-11292
Mark Handel
Chapter 11
#20.00 Post Confirmation Status Conference
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; 10/24/18; 4/3/19
7/17/19; 12/11/19
Docket 1
Tentative Ruling:
Having considered Debtor's post-confirmation status report, ECF doc. 222, the Court finds cause to continue this status conference to August 19, 2020, at 11:00 a.m. Debtor to give notice of continued status conference.
APPEARANCES WAIVED ON 4/8/2020
Party Information
Debtor(s):
Mark Handel Represented By
David L. Neale
John-Patrick M Fritz
11:00 AM
1:18-11765
Sarah Ellen Tortorello
Chapter 13
#20.01 Motion for Authority to Sell or Refinance Real Property under LBR 3015-1
Docket 76
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Sarah Ellen Tortorello Represented By James G. Beirne
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10925
Roben Saeidian
Chapter 7
Adv#: 1:19-01090 POURATI v. Saeidian
#21.00 Status Conferencr Re: Conplaint for Non-Dischargeability and Objection to Discharge for:
- Debts Incurred through Fals Pretenses, False Representation or Actual Frad under 11 USC Sec. 523(a)(2)(A);
- Debts incurred through Conversion under 11 USC Sec. 523(a)(4);
- Debts Incurred through Willful and Malicious Injury to Property under 11 USC sec. 523(a)(6);
- Objection to Discharge under 11 USC Sec. 727(a)(5)
- Objection to Discharge under 11 USC Sec. 727(a)(s); and
- Objection to Discharge under 11 USC Sec. 727(a)(3).
fr. 11/6/19, 2/5/20
Docket 1
*** VACATED *** REASON: Stip. cont. to 5/13/20 @10am (eg) Tentative Ruling:
Party Information
Debtor(s):
Roben Saeidian Represented By
Hamid Soleimanian
Defendant(s):
Roben Saeidian Pro Se
11:00 AM
CONT...
Roben Saeidian
Chapter 7
Plaintiff(s):
ORAH POURATI Represented By David Pourati Leonardo Drubach
Trustee(s):
David Seror (TR) Represented By Elissa Miller
11:00 AM
1:19-10925
Roben Saeidian
Chapter 7
#22.00 Motion RE: Objection to Claim Number 7 by Claimant Orah Pourati
fr. 2/5/20
Docket 39
*** VACATED *** REASON: Stip. cont. to 5/13/20 @10am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Roben Saeidian Represented By
Hamid Soleimanian
Trustee(s):
David Seror (TR) Represented By Elissa Miller Sulmeyer Kupetz
11:00 AM
1:10-19870
Melissa Mosich Miller
Chapter 11
#23.00 Motion by JP Morgan to convert case from chapter 11 to 7 or in the alternative to dismiss
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; 12/12/18, 2/27/19; 5/22/19,
7/31/19, 10/23/19, 1/29/20
Docket 210
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L James Lindsey L Smith
Movant(s):
JPMorgan Chase Bank, National Represented By
Christopher M McDermott
11:00 AM
1:10-19870
Melissa Mosich Miller
Chapter 11
#24.00 Status and case management conference
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, 2/12/18, 2/27/19; 5/22/19,
7/31/19, 10/23/19, 1/29/20
Docket 1
Tentative Ruling:
Proposed disclosure statement filing deadline:
Proposed disclosure statement hearing:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L Rodriguez
1:00 PM
1:17-13125
Yanna Aleksandrovich
Chapter 7
Adv#: 1:18-01019 Karish Kapital LLC v. Aleksandrovich
#25.00 Order to Show Cause Why attorneys fees should not be awarded as a sanction
Docket 56
Tentative Ruling:
Appearance Required
Debtor(s):
Party Information
Yanna Aleksandrovich Represented By Elena Steers
Defendant(s):
Yanna Aleksandrovich Represented By Stella A Havkin
Plaintiff(s):
Karish Kapital LLC Represented By Timothy McFarlin Jarrod Y Nakano
Trustee(s):
Diane C Weil (TR) Pro Se
10:00 AM
1:20-10073
Jason Serrone
Chapter 7
#1.00
Motion for relief from stay NATIONSTAR MORTGAGE LLC
Docket 15
Debtor(s):
*** VACATED *** REASON: Notice filed Cont. to 4/29/20 at @10 (eg)
Party Information
Jason Serrone Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:15-14124
Ignacio Ramirez
Chapter 11
Adv#: 1:20-01017 Ramirez v. CitiMortgage, Inc., a corporation et al
#2.00
Status Conference Re: Complaint for
Declaratory Relief Regarding the Bindingness of Confirmed Chapter 11 Plan;
Injunctive or other Equitable Relief
Docket 1
*** VACATED *** REASON: Cont'd per stipulation to 5/20/2020 at 11
a.m. - hm
Party Information
Debtor(s):
Ignacio Ramirez Represented By
Anthony Obehi Egbase Crystle Crystle Lindsey Clarissa D Cu
Robert Rosvall
W. Sloan Youkstetter
Defendant(s):
CitiMortgage, Inc., a corporation Pro Se Nationstar Mortgage, LLC, a limited Pro Se
U.S. Bank Trust, N.A., a corporation Pro Se DOES 1-10, Inclusive Pro Se
Plaintiff(s):
Ignacio Ramirez Represented By
Anthony Obehi Egbase
11:00 AM
1:19-12201
Javier Salazar
Chapter 7
Adv#: 1:20-01020 Los Angeles Police Federal Credit Union v. Salazar
#3.00
Status Conference Re: Complaint to Determine Dischargeability of Debt
Docket 1
Debtor(s):
*** VACATED *** REASON: Judgment entered 3/3/2020 (doc. 9) - hm Party Information
Javier Salazar Represented By Sevan Gorginian
Defendant(s):
Javier Salazar Pro Se
Plaintiff(s):
Los Angeles Police Federal Credit Represented By
Joshua L Scheer
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
1:19-12735
Reynaldo Rene Vizcarra
Chapter 7
Adv#: 1:20-01024 Infinity Capital Funding, LLC v. Vizcarra
#4.00 Status Conference Re: Complaint to Determine Dischargeability of a Debt under 11 U.S.C. Sec. 523(a)(2) and 523(a)(6)
Docket 1
*** VACATED ***
Party Information
Debtor(s):
Reynaldo Rene Vizcarra Represented By David R Hagen
Defendant(s):
Reynaldo Rene Vizcarra Pro Se
Plaintiff(s):
Infinity Capital Funding, LLC Represented By Diane C Stanfield
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
1:19-12994
Carlos Gutierrez-Garcia
Chapter 7
#1.00 Reaffirmation Agreement with Toyota Motor Credit Corporation
Docket 13
Party Information
Debtor(s):
Carlos Gutierrez-Garcia Represented By Gregory Grigoryants
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
1:19-13098
Wade Foote
Chapter 7
#2.00 Pro se Reaffirmation Agreement with Ally Bank
Docket 18
Party Information
Debtor(s):
Wade Foote Represented By
Michael Jay Berger
Trustee(s):
Nancy J Zamora (TR) Pro Se
8:30 AM
1:20-10172
Shedireck Delshay Turner, Jr
Chapter 7
#3.00 Pro se Reaffirmation Agreement with Carvana LLC
Docket 11
Party Information
Debtor(s):
Shedireck Delshay Turner Jr Pro Se
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
1:20-10268
Angel Landeros Barajas
Chapter 7
#4.00 Pro se Reaffirmation Agreement with AMERICAN HONDA FINANCE CORPORATION
Docket 12
Party Information
Debtor(s):
Angel Landeros Barajas Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:14-12566
Gabriel Rufus and Shirley Rufus
Chapter 13
#49.00 Trustee's Motion to Dismiss Case Due to Expiration of Plan
fr. 2/25/20
Docket 79
*** VACATED *** REASON: Cont'd to 8/25/20 @ 11:00.
Tentative Ruling:
Party Information
Debtor(s):
Gabriel Rufus Represented By Devin Sawdayi
Joint Debtor(s):
Shirley Rufus Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-12567
Terry Byrd Pitt
Chapter 13
#50.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns fr. 8/20/19, 10/22/19, 12/17/19, 2/25/20
Docket 34
*** VACATED *** REASON: Cont. to 8/25/20 @ 11am (eg) Tentative Ruling:
fr. 2/25/20
Trustee told Debtor’s counsel there must be progress on this issue at the next hearing. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Terry Byrd Pitt Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-13455
Nicolasa Martinez
Chapter 13
#51.00 Trustee Motion To Dismiss Case Due to Expiration of the Plan (AMENDED)
Docket 87
*** VACATED *** REASON: Cont'd to 5/19/20 @ 11:00.
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Nicolasa Martinez Represented By James B Smith
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-13718
Nina L. Novak
Chapter 13
#52.00 Trustee's Motion to Dismiss Case Due to Expiration of the Plan
fr. 1/28/20
Docket 106
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #110. lf Tentative Ruling:
Party Information
Debtor(s):
Nina L. Novak Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-13751
Mike Ginzburg and Natasha Ginzburg
Chapter 13
#53.00 Trustee's Motion to Dismiss Case (Plan Expiration) fr. 11/19/19; 1/28/20
Docket 74
*** VACATED *** REASON: Cont. to 5/19/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Mike Ginzburg Represented By Joshua L Sternberg
Joint Debtor(s):
Natasha Ginzburg Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14889
Guy Pierre Hector and Brenda Buell Hector
Chapter 13
#54.00 Trustee's Motion to Dismiss Case Due to Expiration of Plan
fr. 2/25/20
Docket 75
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #80. lf Tentative Ruling:
Party Information
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
1:14-15223
Saul O Aviles
Chapter 13
#55.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns fr. 8/20/19, 12/17/19
Docket 65
*** VACATED *** REASON: Cont. to 8/25/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Saul O Aviles Represented By
Eric C Morris
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15423
David F Shin
Chapter 13
#56.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns fr. 8/20/19, 10/22/19; 1/28/20
Docket 43
*** VACATED *** REASON: withdrawal filed 4/23/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
David F Shin Represented By
Tyson Takeuchi Scott Kosner
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15605
Rolando Chavez and Irma Chavez
Chapter 13
#57.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr/ 8/20/19, 10/22/19,11/19/19, 2/25/20
Docket 34
Tentative Ruling:
fr. 2/25/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Rolando Chavez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Irma Chavez Represented By
Rebecca Tomilowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10707
Edward F Wrona and Diletta Wrona
Chapter 13
#58.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 9/24/19, 11/19/19; 1/28/20; 3/31/20
Docket 34
*** VACATED *** REASON: Ntc. of w/drawal filed 4/22/20 Tentative Ruling:
Party Information
Debtor(s):
Edward F Wrona Represented By Devin Sawdayi
Joint Debtor(s):
Diletta Wrona Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12070
Bernice Holtz Hart
Chapter 13
#59.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20
Docket 48
*** VACATED *** REASON: Cont. to 7/21/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Bernice Holtz Hart Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12349
Marjan Bahman
Chapter 13
#60.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 12/17/19, 2/25/20
Docket 65
*** VACATED *** REASON: Trustee filed a withdrawal - doc. 70. lf Tentative Ruling:
Party Information
Debtor(s):
Marjan Bahman Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12085
Arthur H. Song
Chapter 13
#61.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 12/17/19; 1/28/20, 2/25/20; 3/30/20
Docket 34
*** VACATED *** REASON: cont. to 7/21/20 @11 am (eg) Tentative Ruling:
Party Information
Debtor(s):
Arthur H. Song Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12648
Fernando Benitez
Chapter 13
#62.00 Motion RE: Objection to Claim Number 4 by Claimant North American Savings Bank, F.S.B..
Docket 37
*** VACATED *** REASON: Stip. cont. to 5/19/20 @11am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Fernando Benitez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13250
Robert Michael Martinez
Chapter 13
#63.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19, 2/25/20
Docket 93
*** VACATED *** REASON: cont. to 7/21/20 @11 am (eg) Tentative Ruling:
Party Information
Debtor(s):
Robert Michael Martinez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13250
Robert Michael Martinez
Chapter 13
#64.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 12/17/19, 2/25/20
Docket 84
*** VACATED *** REASON: Ntc. of w/drawal filed 4/22/20, (eg) Tentative Ruling:
Party Information
Debtor(s):
Robert Michael Martinez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10032
Michael Klapsis and Marina Klapsis
Chapter 13
#65.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20
Docket 36
*** VACATED *** REASON: Cont. to 8/25/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Michael Klapsis Represented By Devin Sawdayi
Joint Debtor(s):
Marina Klapsis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10080
Jesse Farran
Chapter 13
#66.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20
Docket 60
*** VACATED *** REASON: Case dismissed (eg) Tentative Ruling:
Party Information
Debtor(s):
Jesse Farran Represented By
Janet L Mertes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10297
Felix Ray Wright
Chapter 13
#67.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 12/17/19, 2/25/20
Docket 145
*** VACATED *** REASON: Cont'd to 7/21/20 @11:00.
Tentative Ruling:
Party Information
Debtor(s):
Felix Ray Wright Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10353
Annette Sanders-Wright
Chapter 13
#68.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20
Docket 51
*** VACATED *** REASON: Cont. to 6/23/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Annette Sanders-Wright Represented By Dana C Bruce
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11130
Monet R Davis
Chapter 13
#69.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20; 3/31/20
Docket 32
*** VACATED *** REASON: Cont. to 8/25/20 @ 11am (eg) Tentative Ruling:
fr. 3/31/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Monet R Davis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11130
Monet R Davis
Chapter 13
#70.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 36
*** VACATED *** REASON: Cont. to 8/25/20 @ 11am (eg) Tentative Ruling:
Debtor opposes and plans to file a motion to modify/suspend. TELEPHONIC
APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Monet R Davis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#71.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 7/30/19, 9/24/19, 11/19/19, 12/17/19, 2/25/20
Docket 50
Tentative Ruling:
fr. 2/25/20
Debtor withdrew her objection to Bank of New York’s proof of claim. The U.S. Bank relief from stay motion hearing was continued to July 21, 2020 at 11:00 a.m. Trustee indicates that Debtor is 12 payments behind. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Linda Akerele Alele Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11732
Anthony Antoniello and Tamara Marie Antoniello
Chapter 13
#72.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 12/17/19, 2/25/20
Docket 93
*** VACATED *** REASON: cont. to 7/21/20 @11 am (eg) Tentative Ruling:
Party Information
Debtor(s):
Anthony Antoniello Represented By Kevin T Simon
Joint Debtor(s):
Tamara Marie Antoniello 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
1:17-11732
Anthony Antoniello and Tamara Marie Antoniello
Chapter 13
#73.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20
Docket 91
*** VACATED *** REASON: Ntc. of w/drawal filed 4/22/20, (eg) Tentative Ruling:
Party Information
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
1:17-11777
Cindy Lee Harris
Chapter 13
#74.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19, 2/25/20; 3/31/20
Docket 68
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #81. lf Tentative Ruling:
Party Information
Debtor(s):
Cindy Lee Harris Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11804
Eduardo N Trillo, Jr. and Maritess Biglangawa Trillo
Chapter 13
#75.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20; 3/31/20
Docket 58
*** VACATED *** REASON: Cont. to 6/23/20 @ 11am (eg) Tentative Ruling:
fr. 3/31/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Eduardo N Trillo Jr. Represented By Elena Steers
Joint Debtor(s):
Maritess Biglangawa Trillo Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11995
Priscilla Jeanette Bueno
Chapter 13
#76.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20
Docket 55
*** VACATED *** REASON: VACATED: Trustee cont'd to 5/19/2020 @ 11:00 am (tk)
Tentative Ruling:
Party Information
Debtor(s):
Priscilla Jeanette Bueno Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13196
Isaac Nessim Azoulay
Chapter 13
#77.00 Motion under Local Bankruptcy Rule 3015-1 (n) and (w) to modify plan or suspend plan payments
Docket 64
*** VACATED *** REASON: Cont'd to 7/21/20 @11:00.
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Isaac Nessim Azoulay Represented By Steven L Bryson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#78.00 Motion under Local Bankruptcy Rule 3015-1 (n) and (w) to modify plan or suspend plan payments
fr. 12/17/19; 1/28/20, 2/25/20
Docket 89
*** VACATED *** REASON: Cont'd to 7/21/20 @11:00.
Tentative Ruling:
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#79.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20, 2/25/20
Docket 85
*** VACATED *** REASON: Cont'd to 7/21/20 @11:00.
Tentative Ruling:
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10004
Cynthia Deniese Sanders
Chapter 13
#80.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 2/25/20
Docket 74
*** VACATED *** REASON: Ntc. of w/drawal filed 4/22/20 Tentative Ruling:
Party Information
Debtor(s):
Cynthia Deniese Sanders Represented By Frank X Ruggier
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10023
Gennady Aleksandrovsky
Chapter 13
#81.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All Tax Returns
fr. 12/17/19
Docket 57
*** VACATED *** REASON: Cont. to 8/25/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Gennady Aleksandrovsky Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10143
Mayra Hernandez
Chapter 13
#82.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 56
*** VACATED *** REASON: Cont. to 5/19/20 @11am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Mayra Hernandez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10407
Jose Galindo, Jr
Chapter 13
#83.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20, 2/25/20
Docket 49
*** VACATED *** REASON: Cont'd to 8/25/20 @11:00.
Tentative Ruling:
Party Information
Debtor(s):
Jose Galindo Jr Represented By Karine Karadjian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11703
Fredy A. Caballero
Chapter 13
#84.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 53
*** VACATED *** REASON: cont. to 7/21/20 @11 am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Fredy A. Caballero Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12957
Arturo Gutierrez
Chapter 13
#85.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20
Docket 37
*** VACATED *** REASON: cont. to 5/19/20 @11 am (eg) Tentative Ruling:
Party Information
Debtor(s):
Arturo Gutierrez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10664
Bridget G Moran Smith
Chapter 13
#86.00 Motion RE: Objection to Claim Number 3 by Claimant U.S. Bank, National Association, et al. c/o PHH Mortgage Corporation, its Successors and/or Assigns.
fr. 7/30/19; 8/20/19; 10/22/2019; 12/17/19, 2/25/20
Docket 26
Tentative Ruling:
fr. 2/25/20
The 2004 Examination was continued to May 4, 2020 at 10:00 a.m. and the production of documents deadline moved to May 1, 2020. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Bridget G Moran Smith Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10692
Anna Maria Liden
Chapter 13
#87.00 Motion under Local Bankruptcy Rule 3015-1 (n) and
(w) to modify plan or suspend plan payments fr. 3/31/20
Docket 32
*** VACATED *** REASON: matter resolved /Motion to modify order entered., (eg)
Tentative Ruling:
Party Information
Debtor(s):
Anna Maria Liden Represented By Michael E Clark
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10781
Daniel Correa
Chapter 13
#88.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20
Docket 32
*** VACATED *** REASON: Cont. to 6/23/20 @ 11am (eg) Tentative Ruling:
fr. 3/31/20
Debtor opposes and states he will be current on or before the hearing. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Daniel Correa Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10789
Carmen Ivy Garcia-Torres
Chapter 13
#89.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20
Docket 47
*** VACATED *** REASON: Cont'd to 6/23/20 @11:00.
Tentative Ruling:
Party Information
Debtor(s):
Carmen Ivy Garcia-Torres Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10996
Aida Asturias
Chapter 13
#90.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20
Docket 41
Tentative Ruling:
fr. 2/25/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Aida Asturias Represented By Anerio V Altman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11288
Ronald Harris Gladle
Chapter 13
#91.00 Motion to Avoid Lien JUNIOR LIEN with Wells Fargo Bank, N.A.
3rd TD on 22344 Burton Street, Canoga Park, CA 91304
fr. 7/30/19, 9/24/19, 10/22/19, 1/28/20; 2/25/20; 3/31/20
Docket 23
*** VACATED *** REASON: Duplicate to matter 93.
Tentative Ruling:
Party Information
Debtor(s):
Ronald Harris Gladle Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11288
Ronald Harris Gladle
Chapter 13
#92.00 Amended Motion to Avoid Lien JUNIOR LIEN with Wells Fargo Bank, N.A.
2nd TD on 22344 Burton Street, Canoga Park, CA 91304
fr. 7/30/19, 9/24/19, 10/22/19; 1/28/20, 2/25/20
Docket 74
Tentative Ruling:
fr. 2/25/20
Service: Proper.
Property Address: 22344 Burton Street, Canoga Park, CA 91304 (the "Property") First trust deed: $476,502.02 (Specialized Loan Servicing)
Second trust deed (to be avoided): $112,717.22 (Wells Fargo)(Subject of this Motion)
Third trust deed (to be avoided): $120,322.37 (Wells Fargo) Debtor’s Fair market value per broker price opinion: $ 450,000.00. Wells Fargo’s value per appraisal: $596,000
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Ronald Harris Gladle Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11288
Ronald Harris Gladle
Chapter 13
#93.00 Amended Motion to Avoid Lien JUNIOR LIEN with Wells Fargo Bank, N.A.
3rd TD on 22344 Burton Street, Canoga Park, CA 91304
fr. 7/30/19, 9/24/19, 10/22/19, 1/28/20, 3/31/20
Docket 75
Tentative Ruling:
fr. 3/31/20
Service: Proper. Wells Fargo filed opposition.
Property Address: 22344 Burton Street, Canoga Park, CA 91304 (the "Property") First trust deed: $476,502.02 (Specialized Loan Servicing)
Second trust deed (to be avoided): $112,717.22 (Wells Fargo)
Third trust deed (to be avoided): $120,322.37 (Wells Fargo) (Subject of this Motion)
Debtor’s Fair market value per broker price opinion: $ 450,000.00. Wells Fargo’s value per appraisal: $596,000
Wells Fargo opposes and disputes Debtor’s $450,000 valuation of the Property, which Debtor formerly valued at $520,000. Wells Fargo’s certified appraisal values the Property at $596,000. Wells Fargo alleges that its appraiser reviewed Debtor’s broker price opinion and noted several deficiencies with the appraisal, including the use of improper comparables; not using the petition date as the valuation date; and factoring in damages on the Property where no visible damages or signs of structural damage were evident.
Will Debtor be submitting a certified appraisal of the Property? Would the parties be willing to stipulate to a schedule of filing written critiques of the other side’s appraisal report in lieu of an evidentiary hearing? The court would be willing to have argument either in written form or telephonically following the submission of all appraisals and both critiques. TELEPHONIC APEARANCE REQUIRED.TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
11:00 AM
CONT...
Debtor(s):
Ronald Harris Gladle
Chapter 13
Ronald Harris Gladle Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11422
Joe Kearney
Chapter 13
#94.00 Motion to Convert Case From Chapter 13 to 11.
Docket 92
Tentative Ruling:
Joe Kearney ("Debtor") filed a chapter 13 bankruptcy petition on June 6, 2019 and initially listed $118,000 in debt. About two months later, on August 7, 2019, Patricia Leupold ("Creditor") filed a proof of claim in the amount of $1,362,223.89. Creditor then filed a motion for partial summary judgment ("MSJ") based on a state law disgorgement claim for $421,676.99. The court granted the MSJ, which increased Debtor’s debt to $539,676.99. Debtor now seeks to convert his to one under Chapter 11 (the "Motion").
Under § 109(e), only an individual with regular income that owes, on the date of the petition’s filing, noncontingent, liquidated, unsecured debts of less than $394,725 may be a chapter 13 debtor. 11 U.S.C. § 109(e). The amount of the debt is determined as of "the date of the filing of the petition." 11 U.S.C. 109(e).; Slack v. Wilshire Insurance Company (In re Slack), 187 F.3d 1070, 1073 (9th Cir. 1999). Among Debtor’s arguments supporting his proposed conversion to Chapter 11 is that the disgorgement claim of $421,676.99, combined with his initial $118,000 debt, has now increased his debt above the § 109(e) limit of
$394,725.00. Postpetition events, however, do not determine the amount of debt. In re Slack, 187 F.3d at 1073. Because Creditor filed her proof of claim after Debtor filed his petition, the granting of the MSJ on the disgorgement claim cannot be the basis for converting to Chapter 11.
"[A]t any time before the confirmation of a [Chapter 13 plan], on request of a party in interest of the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 11 or 12 of this title." 11 U.S.C. § 1307(d)(underline added). Given that Debtor’s plan has not been confirmed and that no party has filed an opposition to this Motion, the Motion is GRANTED.
No opposition filed. Service proper. Motion GRANTED. NO APPEARANCE REQUIRED.
Party Information
11:00 AM
CONT...
Debtor(s):
Joe Kearney
Chapter 13
Joe Kearney Represented By
Robert M Aronson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11717
Lois Ann Harris
Chapter 13
#95.00 Motion to Avoid Junior Lien on Principal Residence [11 U.S.C. § 506(d)] : 6828 Laurel Canyon Blvd.,
Unit 102, North Hollywood, CA 91605
fr. 9/24/19, 11/19/19; 1/28/20, 2/25/20; 3/31/20
Docket 30
*** VACATED *** REASON: Withdrawal filed by debtor's atty. - doc. #67. lf
Tentative Ruling:
Party Information
Debtor(s):
Lois Ann Harris Represented By Matthew D Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11762
Christopher Michael Niblett
Chapter 13
#96.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20
Docket 47
*** VACATED *** REASON: Trustee withdrew motion (#58) -ts Tentative Ruling:
Party Information
Debtor(s):
Christopher Michael Niblett Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11916
Ada E Renderos Velasquez
Chapter 13
#97.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 31
*** VACATED *** REASON: cont. to 7/21/20 @11 am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Ada E Renderos Velasquez Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12112
Deborah Rose Sanders
Chapter 13
#98.00 Motion to Avoid JUNIOR LIEN with PNC Bank, National Association fr. 11/19/19; 1/28/20; 3/31/20
Docket 29
Tentative Ruling:
fr. 3/31/20
PNC Bank filed an amended supplemental opposition ("Supplemental Opposition"). PNC Bank explains that its certified interior appraisal values the Property at $355,000 (Supplemental Opposition Ex. 1, 2) and that the first lien is only $184,616.82 (Claim #16-1).
In contrast, Debtor’s September 25, 2019 certified appraisal only values the Property at $180,000, which is a $175,000 difference from PNC Bank’s appraisal.
Would the parties be willing to stipulate to a schedule of filing written critiques of the other side’s appraisal report in lieu of an evidentiary hearing? The court would be willing to have argument either in written form or telephonically following the submission of both appraisals and both critiques. TELEPHONIC APEARANCE REQUIRED.
Party Information
Debtor(s):
Deborah Rose Sanders Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12138
Bruno Alain Rosenthal
Chapter 13
#98.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 33
Tentative Ruling:
The Trustee filed a motion to dismiss. After Debtor failed to timely file and serve any response and request a hearing, the case was dismissed pursuant to LBR 9013-1(o)(3).
Debtor filed a late opposition to the motion and explains that he will file a motion to modify or suspend plan payments. The court then vacated the dismissal for good cause.
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Bruno Alain Rosenthal Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#99.00 Motion RE: Objection to Claim Number 5 by Claimant KRYCLER, ERVIN, TAUBMAN & KAMINSKY.
fr. 3/31/20
Docket 74
*** VACATED *** REASON: Cont'd to 5/19 @11:00. lf Tentative Ruling:
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#100.00 Motion RE: Objection to Claim Number 7 by Claimant STARR TAXMAN.
fr. 3/31/20
Docket 70
*** VACATED *** REASON: Cont'd to 5/19 @11:00. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#101.00 Motion RE: Objection to Claim Number 8 by Claimant STARR TAXMAN.
fr. 3/31/20
Docket 71
*** VACATED *** REASON: Cont'd to 5/19 @11:00. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#102.00 Motion RE: Objection to Claim Number 9 by Claimant STARR TAXMAN.
fr. 3/31/20
Docket 72
*** VACATED *** REASON: Cont'd to 5/19 @11:00. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#103.00 Motion RE: Objection to Claim Number 10 by Claimant STARR TAXMAN.
fr. 3/31/20
Docket 73
*** VACATED *** REASON: Cont'd to 5/19 @11:00. lf Tentative Ruling:
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12952
Richard Lopez
Chapter 13
#104.00 Motion RE: Objection to Claim Number 4 by Claimant The Bank of New York Mellon c/o Specialized Loan Servicing, LLC with request for valuation of security, payment of fully secured claims, and modification of undersecured claims.
fr. 3/31/20
Docket 25
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Richard Lopez Represented By James Studer
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12952
Richard Lopez
Chapter 13
#105.00 Motion for Setting Property Value of residence at 8816 Valjean Ave., North Hills, CA for determining wholly unsecured junior lien claim of The Bank of
New York Mellon fka The Bank of New York as Indenture Trustee c/o Specialized Loan Servicing LLC
Docket 19
Tentative Ruling:
Service: Proper. Opposition filed.
Property: 8816 Valjean Ave., North Hills, CA (the "Property")
Fair market value: $465,000 per Debtor’s certified appraisal and declaration First lien: $513,281.03 (Select Portfolio Servicing, LLC)
Second lien: $92,138.39 (BoNYM/Specialized Loan Servicing LLC)
Debtor Richard Lopez ("Movant") asserts that (1) the secured portion of the first lien is $465,000 and the unsecured portion is $48,281.03; and (2) the secured portion of the second lien is $0 and the unsecured portion is $92,138.
The court takes judicial notice of Movant’s documents in support of this Motion pursuant to Rule 201 of the Federal Rules of Evidence.
Secured Creditor, The Bank of New York Mellon ("BoNYM") opposes and contends that the value of the Property is $1,150,000 based on a broker price opinion. BoNYM requests to continue the hearing to provide it time to obtain a verified appraisal.
Debtor replied stating that BoNYM proposed the $1,150 valuation in bad faith because BoNYM did not submit evidence that it inspected the home, obtained a verified appraisal, and used the appropriate market comparables.
Hearing continued to June 23, 2020 at 11:00 a.m. APPEARANCE IS WAIVED.
Party Information
11:00 AM
CONT...
Debtor(s):
Richard Lopez
Chapter 13
Richard Lopez Represented By James Studer
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13157
Juan Maldonado Bastida
Chapter 13
#106.00 Motion to Avoid Junior Lien on Principal Residence [11 U.S.C. §506(d)]:
16026 Leadwell Street, Van Nuys, CA 91406; Declarations of Juan Maldonado Bastida and Rodney Gresko in Support Thereof
Docket 34
Tentative Ruling:
Service: Proper. BSI Financial filed opposition.
Property Address: 16026 Leadwell Street, Van Nuys, CA 91406 First trust deed: $509,884.38 (PHH Mortgage Corporation) Second trust deed: $160,581.78 (BSI Financial Services, Inc.) Fair market value per verified appraisal: $476,000
Second lienholder, BSI Financial, opposes stating that its valuation of the Property is $604,345.00 based on RedFin.com. However, BSI Financial has yet to obtain a certified appraisal.
Would the parties be willing to stipulate to a schedule of filing written critiques of the other side’s appraisal report in lieu of an evidentiary hearing? The court would be willing to have argument either in written form or telephonically following the submission of both appraisals and both critiques. TELEPHONIC APEARANCE REQUIRED.
Party Information
Debtor(s):
Juan Maldonado Bastida Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13169
Lekan Aremu Gbadamosi and Diana Y Kuchmar
Chapter 13
#107.00 Trustee's Objection to Homestead Exemption to Debtors' Claim of Pending Personal Injury Claim Pursuant to C.C.P. Sec. 704.140.
fr. 3/31/20
Docket 15
Tentative Ruling:
The last hearing was continued. Debtors have not filed a response. Service proper. Objection SUSTAINED. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Lekan Aremu Gbadamosi Represented By Elena Steers
Joint Debtor(s):
Diana Y Kuchmar Gbadamosi Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10250
Kenneth Larkin
Chapter 13
#108.00 Motion for Order Determining Value of Collateral fr. 3/31/20
Docket 10
Tentative Ruling:
fr. 3/31/20
Personal Property: 2007 Porsche 911 (the "Vehicle") Value: $64,415 (per Movant’s valuation)
1st Lien: $64,415 (Porsche Financial Services)(the "Creditor")
910 Provision: Property was acquired on May 2, 2017 per the contract. More than 910 days have passed. The 1st lien may therefore be bifurcated.
Debtor filed a Chapter 13 bankruptcy petition on January 31, 2020. Debtor asserts that (1) the balance on Creditor’s lien is $103,400; and (2) Creditor’s lien is $64,415.00 secured and $38,985 unsecured. [Motion p. 5]. Debtor’s valuation is derived from a May 2019 Black Book Value of the Vehicle for $74,400, which Debtor reduced by:
the value of deferred maintenance, including damage on the Vehicle’s lower rocker panel and replacement of brakes and tires; and
$5,585 for "extensive damage and repair" and needed maintenance. Debtor declares that the vehicle damage arose from a rear-end collision during his first year of ownership as evidenced by final bills and repair totaling $5,585. [Motion Ex. 5].
Creditor opposes and contends that (1) its total lien is $123,188.77 based on a state court judgment (Opposition Ex. A]; and (2) Debtor’s $64,415 valuation is improper.
Before the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA 2005"), the Supreme Court in Associates Commercial Corp. v. Rash concluded that the present value of a vehicle for purposes of valuing a collateral in a Chapter 13 bankruptcy case is the
11:00 AM
CONT...
Kenneth Larkin
Chapter 13
replacement value, which is a market standard based on what the debtor would have to pay to acquire the vehicle on the market. 520 U.S. 953 (1997). Section 506(a)(2), post-BAPCPA 2005, also provides that "If the debtor is an individual in a case under chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined." 11 U.S.C. § 506(a)(2) (underline added).
The correct method for calculating a vehicle’s replacement value, or retail value, depends on the facts presented in each case. In re Morales, 387 B.R. 36, 45 (Bankr. C.D. Cal. 2008). Absent unusual circumstances, the retail value should be calculated by adjusting the Kelley Blue Book or NADA Guide’s retail value for a like vehicle by a reasonable amount, in light of any additional evidence presented regarding the condition of the vehicle, and any other relevant factors. Id.; In re Eddins, 355 B.R. 849, 852 (W.D. Okla. 2006). "The burden in proving the reasonableness of any deviation from a guide’s retail value rests with the debtor because the debtor has the best access to information about the condition of the vehicle." In re Morales, 387 B.R. at 36 (citations omitted).
The Debtor has not satisfied this burden. Debtor deducted $5,585 from the Black Book Value of $74,400. As Creditor points out, however, Debtor has not provided sufficient evidence that the Vehicle’s value should be reduced, dollar-for-dollar, based on the $5,585 repair and deferred maintenance. Although Debtor provided a declaration, he has not provided evidence that he has the proper background, knowledge, and/or experience to make a reliable valuation.
Debtor has also not shown that the reductions are appropriate even though Debtor allegedly stopped necessary maintenance and/or allowed substandard repairs and Debtor agreed to a Retail Installment Sales Contract ("Sales Agreement") with the following terms:
"[i]f the vehicle is damaged, destroyed or missing … [y]ou agree to pay us all you owe under this contract even if the vehicle is damaged, destroyed or missing."
(See Miller Decl. ¶ 6; Exhibit B).
"You agree to have physical damage insurance covering loss of
11:00 AM
CONT...
Kenneth Larkin
or damage to the vehicle for the term of this contract. The insurance must cover our interest in the vehicle. If you do not have this insurance, we may, if we choose, buy physical damage insurance. If we decide to buy insurance, we may either buy insurance that covers your interest and out interest in the vehicle or buy insurance that covers only out interest. If we buy either type of insurance, we will tell you which type and the charge you must pay. The charge will be the premium for the insurance and a finance charge computed at the Annual Percentage Rate shown on page 1 of this contract or, at our option, the highest rate the law permits. If the vehicle is lost or damaged, you agree that we may use any insurance settlement to reduce what you owe or repair the vehicle."
Chapter 13
(See Decl. of Miller ¶ 7; Exhibit "B").
What law or further evidence can Debtor present to justify the deviation from the retail value?
Will Debtor and Creditor be submitting its verified appraisals of the Vehicle? Would the parties be willing to stipulate to a schedule of filing written critiques of the other side’s appraisal report in lieu of an evidentiary hearing? The court would be willing to have argument either in written form or telephonically following the submission of both appraisals and both critiques. TELEPHONIC APEARANCE REQUIRED.
Party Information
Debtor(s):
Kenneth Larkin Represented By James G. Beirne
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10713
Anthony Iver Hoffman
Chapter 13
#109.00 Motion For Order Authorizing And Instructing PHH Mortgage
To Continue To Allow Debtor Hoffman To Draw On His Reverse Mortgage
Docket 10
Tentative Ruling:
Debtor Anthony Hoffman requests for an order to authorize and instruct PHH Mortgage to continue to allow him to draw on his reverse mortgage. Debtor owns a condominium located at 22127 Burbank Blvd., Unit 5, Woodland Hills, CA 91367 (the "Property"). The Property is subject to a reverse mortgage. Debtor’s Schedule D indicates that PHH Mortgage has a $186,537.53 secured claim against the Property. According to the most recent mortgage statement from PHH Mortgage, dated March 4, 2020, Debtor is permitted to borrow up to an additional $74,248.05 on his reverse mortgage. Debtor has been drawing
$1,509.55 per month on his reverse mortgage, which is necessary to meet his various living expenses, including food and groceries, utilities, property taxes, insurance, medical, transportation, and fund his Chapter 13 plan.
No opposition filed. Service proper. Motion GRANTED. APPEARANCE WAIVED.
Party Information
Debtor(s):
Anthony Iver Hoffman Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-12201
Andrea Beckham
Chapter 13
#1.00 Motion for relief from stay
U.S. BANK TRUST NATIONAL ASSOCIATION.
Docket 54
Tentative Ruling:
Petition Date: 7/29/16; Ch 13-Confirmed on 8/03/2017 Service: Proper. Opposition filed.
Property: 6557 Cleomoore Avenue, West Hills, CA 91307 Property Value: $ 522,400 (per debtor’s schedules) Amount Owed: $ 451,431.85
Equity Cushion: 13.6% Equity: $70,968.15
Post-Petition Delinquency: $14,999.32 (6 payments of $2,247.58 +
$1,231.00 in attorneys’ costs + 1 late charge of $282.84)
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 and wishes to enter an APO with movant. Is Movant amenable to such request?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Andrea Beckham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#2.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION fr. 12/11/19, 1/29/20; 2/26/520, 4/1/20
Docket 74
Tentative Ruling:
This hearing has been continued since 12/11/19 because Debtor asserted that Creditor was not applying payments properly. At a previous hearing on 2/26/20, the parties explained that they had resolved the accounting and that Debtor was three payments behind. At the April 1 hearing, the parties were negotiating an APO to cure the three payments. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
12/11/19 TENATIVE BELOW
Petition Date: 6/19/17
Chapter 13 plan confirmed: 11/14/17
Service: Proper; co-debtor served. Opposition filed. Property: 18795 Kenya St. Northridge, CA 91326
Property Value: $900,000 (per Debtor's declaration ISO Opposition) Amount Owed: $631,126
Equity: $268,874
Post-Petition Delinquency: $8,228.36 (3 payments of $2,836.14; less suspense balance of $280.06)
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 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay).
Debtor opposes the Motion, arguing that Movant has been misapplying payments, making it seem as if there is a delinquency when there is not. Debtor contends that she has made more payments than have been accounted for in the Motion. Have the parties had an opportunity to discuss the accounting?
Party Information
10:00 AM
CONT...
Debtor(s):
Linda Akerele Alele
Chapter 13
Linda Akerele Alele Pro Se
Movant(s):
U.S. Bank National Association, as Represented By
Josephine E Salmon Arnold L Graff Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:17-12587
Bienvenida Bejosano Goudeaux
Chapter 13
#3.00 Motion for relief from stay JPMORGAN CHASE BANK
fr. 1/8/20; 2/5/20
Docket 69
*** VACATED *** REASON: Ntc. of w/drawal filed 4/1/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Bienvenida Bejosano Goudeaux Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:18-10083
Abdul K. Patel
Chapter 13
#4.00 Motion for relief from stay
10:00 AM
CONT...
Abdul K. Patel
Chapter 13
TOYOTA MOTOR CREDIT CORPORATION
fr. 4/1/20
Docket 53
*** VACATED *** REASON: Resolved per APO (doc. 56) - hm Tentative Ruling:
Party Information
Debtor(s):
Abdul K. Patel Represented By
David Samuel Shevitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:18-11090
Jason R. Corralejo and Claudine P. Corralejo
Chapter 13
#5.00 Motion for relief from stay HSBC BANK
fr. 4/1/20
Docket 59
*** VACATED *** REASON: Resolved per APO - hm Tentative Ruling:
Party Information
Debtor(s):
Jason R. Corralejo Represented By Gregory M Shanfeld
Amelia Puertas-Samara
10:00 AM
CONT...
Jason R. Corralejo and Claudine P. Corralejo
Chapter 13
Joint Debtor(s):
Claudine P. Corralejo Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:19-10940
Laurie Francene Kinzer
Chapter 13
#6.00 Motion for relief from stay
TOWN & COUNTRY HOMEOWNERS ASSOC., INC.
Docket 45
Tentative Ruling:
Petition Date: 04/17/2019
Ch: 13; confirmed on 7/22/2019 Service: Proper. Opp. filed
Property: 5800 Kanan Road Unit #272 Agoura Hills, CA 91301 Property Value: $ $350,000 (per debtor’s schedules)
Amount Owed: $ Total Claim=$28,718.38 (doc 45-3); Mortgagor U.S Trust Bank Owed $203,317.31.
Equity Cushion: n/a Equity: n/a
Post-Petition Delinquency: $6,892.50 (5 payments of $393.80 + Attorneys Fees of $2,040.45 + various late charges)
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 (waiver of the 4001(a)(3) stay); 7 (law enforcement may evict); 8 (relief under 362(d)(4)); and 9 (relief binding & effective for 180 days against any debtor). Movant alleges that since the petition date, Debtor has continually failed to pay its monthly
10:00 AM
CONT...
Laurie Francene Kinzer
Chapter 13
homeowner association dues to Movant. Movant also argues that there are grounds for in rem and extraordinary relief because of multiple filings by Debtor done to hinder, delay, and defraud creditors.
Debtor opposes the Motion, arguing that Movant has unfairly included attorneys’ fees from a separate state court action in calculating its post- petition debt. Debtor filed this bankruptcy petition on 4/17/2019, yet Movant charged attorneys’ fees for state court proceedings on four separate occasions—while the stay was in effect. Debtor wishes to cure any delinquency via an APO.
Movant has filed a Reply that asserts that the court appearances were not in violation of the automatic stay because they were mere Case Management Conferences to advise the state court whether the Automatic Stay was still in effect.
Debtor has had two previous filings, a chapter 7 from 2014 that was closed before discharge was entered, and another chapter 13 in 2016 that was dismissed for failure to make plan payments 1.5 years after a plan was confirmed. On this record, the Court does not find that Debtor's filing history are grounds for in rem relief under 362(d)(4).
If Movant intends to add to their claim the cost of attorney's fees in connection with this Motion, the Court will review the fees sought for reasonableness, as they are being sought against a debtor and will be paid from her estate. The Court will consider whether to award reasonable attorney fees and costs to Movant, if a declaration is filed, simultaneously with lodged order, attesting to the amount of fees and costs incurred on account of this motion.
Have the parties had an opportunity to discuss whether this matter can be resolved consensually via APO?
TELEPHONIC APPEARANCE REQUIRED
Party Information
10:00 AM
CONT...
Debtor(s):
Laurie Francene Kinzer
Chapter 13
Laurie Francene Kinzer Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:19-11717
Lois Ann Harris
Chapter 13
#7.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
fr. 1/8/20, 2/5/20, 3/11/20
Docket 48
*** VACATED *** REASON: resolved per APO (doc. 71) - hm Tentative Ruling:
Party Information
Debtor(s):
Lois Ann Harris Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:19-11762
Christopher Michael Niblett
Chapter 13
#8.00 Motion for relief from stay
BROKET SOLUTIONS, INC., DBA NEW AMERICAN FUNDING
10:00 AM
CONT...
Christopher Michael Niblett
Docket 55
Chapter 13
Tentative Ruling:
Petition Date: 07/15/2019;
Ch: 13, confirmed on 10/18/2019 Service: Proper. Opposition filed.
Property: 13588 Wingo St., Arletta, CA 91331 Property Value: $550,000 (per debtor’s schedules) Amount Owed: $ 350,184.22
Equity Cushion: 36.3% Equity: $199,815.78
Post-Petition Delinquency: $8,709.23 (4 payments of $1,945.97 + Attorneys’ Fees of $1,231.00 less suspense balance of $305.65)
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); 6 (co-debtor stay is terminated); 7 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment of $2,021.78 was received on or about 01/09/20.
Debtor asserts that he will pay a large lump sum to Creditor at the end of April and is willing to enter into an APO for the remainder. Is Movant amenable to an APO?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Christopher Michael Niblett Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:19-13021
Peter Clayton Purcell
Chapter 13
#9.00 Motion for relief from stay
10:00 AM
CONT...
Peter Clayton Purcell
Chapter 13
U.S. BANK NATIONAL ASSOC.
Docket 22
Tentative Ruling:
Ch. 13 Petition Date: 12/04/2019. Plan Confirmed on 03/19/2020. Service: Proper. Opposition filed.
Property: 7210 Darnoch Way, West Hills, CA 91307-1801 Property Value: $688,000 (per debtor’s schedules) Amount Owed: $599,257.50
Equity Cushion: 12.0% Equity: $88.742.5
Post-Petition Delinquency: $5,011.81 (3 payments of $2,496.06 less suspense of $2,476.37)
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); 6 (termination of co-debtor stay); and 7 (waiver of the 4001(a)(3) stay). Movant alleges that it last received payment on 02/28/2020.
Debtor opposes the Motion, arguing that he is post-petition current and that Movant has not applied his payments. Have the parties had an opportunity to discuss the accounting?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Peter Clayton Purcell Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM | ||
CONT... | Peter Clayton Purcell | Chapter 13 |
1:19-13135 | Nicole Tanice Shepherd | Chapter 13 |
#10.00 | Motion for relief from stay | |
WILMINGTON TRUST NATIONAL ASSO. | ||
Docket 32 | ||
Tentative Ruling:
Ch. 13 Petition Date: 12/17/2019. Service: Proper. Opp. filed.
Property: 17732 San Fernando Mission Boulevard, Granada Hills, CA 91344 Property Value: $685,680 (per debtor’s schedules)
Amount Owed: $621,696.53 Equity Cushion: 10.0% Equity: $63,983.47
Post-Petition Delinquency: $3,659.34 (3 payments of $1,814.78 less suspense of $1,785)
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 12 (declare debtor "borrower" under CA. law). Movant alleges that it last received payment on 03/09/2020.
Debtor opposes, asserting that she filed this case in good faith to save her house and that any default was due to mistake. Debtor alleges that she mistakenly sent payment to Movant to a wrong address and is looking for evidence to prove that. Debtor alleges that they’ve substantially cured their arrears and will be current by the hearing date.
TELEPHONIC APPEARANCE REQUIRED
Party Information
10:00 AM
CONT...
Debtor(s):
Nicole Tanice Shepherd
Chapter 13
Nicole Tanice Shepherd Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:20-10282
Walter Emigdio Lopez
Chapter 13
#11.00 Motion for relief from stay
NUVISION FEDERAL CREDIT UNION
Docket 17
Tentative Ruling:
Ch. 13 Petition Date: 02/05/2020. Service: Proper. No opposition filed.
Property: 2017 Nissan Altima, VIN# 1N4AL3AP0HC471056 Property Value: $ (listed as $0)
Amount Owed: $25,686.29 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $1,480 (1 payment of $428.37 plus late charge of
$21.42, and attorneys’ fees of $1,031.)
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). Movant alleges that Debtor intends to surrender possession of Property to Movant. (Ex. D)
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).
10:00 AM
CONT...
Walter Emigdio Lopez
Chapter 13
NO TELEPHONIC PPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Walter Emigdio Lopez Represented By Leon D Bayer
Jeffrey N Wishman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:20-10351
Robert William Brown, Sr.
Chapter 13
#12.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON, ET., AL.,
Docket 20
Tentative Ruling:
Ch. 13 Petition Date: 02/14/2020 Service: Proper. No opposition filed.
Movant: Bank of New York Melon (Owner)
Property Address: 4465 Alta Tupelo Drive, Calabasas, CA 91302 Type of Property: Residence
Occupancy: holdover after foreclosure Foreclosure Sale: 05/20/2016
UD case filed: 07/29/2016 UD Judgment: 03/22/2017
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
10:00 AM
CONT...
Robert William Brown, Sr.
Chapter 13
compliance with applicable non-bankruptcy law).
NO TELEPHONIC APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Robert William Brown Sr. Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:20-10374
Robert Minassian
Chapter 7
#13.00 Motion for relief from stay
FINANCIAL SERVICES VEHICLE TRUST
Docket 13
Tentative Ruling:
Ch.7 Petition Date: 02/19/2020 Service: Proper. No opposition filed.
Property: 2016 BMW 328i Sedan 4D, VIN #WBA8E9G53GNT44488
Property Value: $ (not on debtor’s schedules) Amount Owed: $31,059.69
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: N/A; Lease Matured prepetition
Movant alleges that lease for Property matured on 05/30/2019 and moves to regain possession of the Property, now held by a repo agent.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief
10:00 AM
CONT...
Robert Minassian
Chapter 7
requested in paragraph 2 (proceed under applicable non-bankruptcy law) and
6 (waiver of 4001(a)(3) stay).
NO TELEPHONIC APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Robert Minassian Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
1:20-10427
Marie Darlene Evangelista
Chapter 13
#14.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOC., at., al.
Docket 17
Tentative Ruling:
Petition Date: 2/25/20; Ch. 13 Service: Proper. No opposition filed.
Property: 15548 Harvest Street, Granada Hills CA, 91344 Property Value: $650,000 (per debtor’s schedules) Amount Owed: $ n/a
Equity Cushion: n/a Equity: n/a
Post-Petition Delinquency: n/a
This case was dismissed on 3/20/20 for failure to file schedules (doc. 15). Movant requests in rem relief under 362(d)(4), alleging that multiple bankruptcy filings and/or transfers of interest in the subject property are being done as part of a bad faith scheme for the sole purpose of thwarting Movant's foreclosure proceedings. There have been 4 other bankruptcy petitions
10:00 AM
CONT...
Marie Darlene Evangelista
Chapter 13
concerning this property filed and dismissed within the past 2 years.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3(a) (Movant permitted to engage in loss mitigation activities); 6 (waiver of the 4001(a)(3) stay); 7 (law enforcement may evict); 8 (relief under 362(d)(4)); and 9 (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.
Party Information
Debtor(s):
Marie Darlene Evangelista Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:20-10450
Todd M. Wolfe and Emma A. Wolfe
Chapter 7
#15.00 Motion for relief from stay
JEFFREY & SHARON NELSON AND NPG. INC.
Docket 16
Tentative Ruling:
Petition Date: 2/26/20 Ch: 7
Service: Proper. No opposition filed. Movant: Plaintiff
10:00 AM
CONT...
Todd M. Wolfe and Emma A. Wolfe
Chapter 7
Relief Sought to: Pursue Pending Litigation _Y Insurance Y_
Litigation Information
Pursue
Case Name: Jeffrey S. Nelson, Sharon J. Nelson and NPG, Inc. v. The Green Law Group, LLP and Todd Wolfe, et al.
Court/Agency: Riverside Superior Court Date Filed: 10/22/18
Judgment Entered: N/A Trial Start Date: 4/17/20
Action Description: (1) Professional Negligence; (2) Equitable
Indemnity/Contribution; (3) NIED
Grounds
Bad Faith Y_ Claim is Insured _Y_
Non-BK Claims Best Resolved in Non-BK Forum _Y_
Movant alleges debtor filed bankruptcy petition in bad faith because the filing occurred 2 months before trial. Moreover, Movant argues relief from stay should be granted because movant is only seeking recover from applicable 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).
NO APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Todd M. Wolfe Represented By
Edmond Richard McGuire
10:00 AM
CONT...
Todd M. Wolfe and Emma A. Wolfe
Chapter 7
Joint Debtor(s):
Emma A. Wolfe Represented By
Edmond Richard McGuire
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:19-11758
Aram Setrak Ohanesian
Chapter 13
#15.01 Motion for relief from stay
TOYOTA LEASE TRUST AS SERVICE BY TOYOTA MOTOR CREDIT CORP.
fr.4/8/20
Docket 22
Tentative Ruling:
This hearing was continued from 4/8/20 so that the parties could discuss curing the delinquency via an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
4-8-2020 Tentative Below
Petition Date: 4/15/19
Ch.13 confirmed on 10/18/19 Service: Proper. Opposition filed. Property: 2017 LEXUS RX350
Property Value: $ 20,350 (per debtor’s schedules) Amount Owed: $ 38,658.89
Equity Cushion: n/a (lease) Equity: n/a (lease)
Post-Petition Delinquency: $1,600 (2 post-petition payments of $550 and 1
10:00 AM
CONT...
Aram Setrak Ohanesian
Chapter 13
post-petition payment of $500).
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay). Movant alleges that the last payment of $600 was received on or about 1/6/2020.
Debtor opposes the motion and wishes to enter an APO with Movant.
Party Information
Debtor(s):
Aram Setrak Ohanesian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:17-11120
Jennifer H. Nguyen
Chapter 13
#15.02 Motion for relief from stay
THE BANK OF NEW YORK MELLON
fr. 2/26/20, 3/11/20; 4/28/20
Docket 48
Tentative Ruling:
This hearing was continued twice since February 26, 2020, so that the parties could continue to work towards a loan modification and an APO to resolve this matter.
Nothing has been filed since the last hearing. What is the status of this Motion? TELEPHONIC APPEARANCE REQUIRED
2-26-20 TENTATIVE BELOW
Petition Date: 4/28/2017
Ch.13; confirmed on 10/12/2017.
10:00 AM
CONT...
Jennifer H. Nguyen
Chapter 13
Service: Proper; Co-debtor served. No opp filed. Property: 7968 Fairchild Avenue, Los Angeles, CA 91306 Property Value: $ 600,000
Amount Owed: $ 409,247.60 Equity Cushion: 31.8% Equity: $190,725.04.
Post-Petition Delinquency: $52,551.33 (7 payments of $2,616.89 + 5 payments of
$2,879.05 + 7 payments of $3,036.53 less suspense balance of $1,417.86)
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 (co-debtor stay is terminated) and 7 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment of $2,813.00 was received was on or about 2/21/2019.
There appears to be a sufficient amount of equity here, but the deficiency is large; have the parties had an opportunity to discuss if an APO is appropriate?
Party Information
Debtor(s):
Jennifer H. Nguyen Represented By Rob R Nichols
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:16-13055
Mark David Cave
Chapter 13
#15.03 Motion for relief from stay KIMBERLY CAVE
fr. 4/8/20
Docket 118
Tentative Ruling:
10:00 AM
CONT...
Mark David Cave
Chapter 13
This hearing was continued from April 8, 2020, so that Movant could properly serve the Motion for Relief from Stay. As of April 27, 2020, nothing has been filed indicating that service was effectuated. FRBP 4001(a)(1) provides for service of a motion for relief from stay on certain parties, as well as "any other entities as the Court may direct." Every motion must be accompanied by a proof of service. LBR 9013-1(e). Motion is DENIED without prejudice for lack of proper service.
MOVANT TO LODGE ORDER IN ACCORDANCE WITH THIS RULING WITHIN 7 DAYS. NO TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Mark David Cave Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:20-10073
Jason Serrone
Chapter 7
#15.04
Motion for relief from stay NATIONSTAR MORTGAGE LLC
fr. 4/15/20
Docket 15
Tentative Ruling:
Standard discharge entered on 4/27/2020 Movant: Nation Star Mortgage LLC Petition Date: 1/13/2020
10:00 AM
CONT...
Jason Serrone
Chapter 7
Chapter: 7
Service: Proper. No opposition filed.
Property: 1656 Tamarron Drive, Corona, California 92883 (the "Property") Property Value: n/a (per debtor’s schedules)
Amount Owed: $598,031.69 Equity Cushion: n/a
Equity: n/a
Post-Petition Delinquency: n/a ($68,330 overdue)
Movant Nationstar Mortgage LLC alleges cause for relief under § 362(d)(4) due to unauthorized transfers of, and multiple bankruptcies affecting, the Property as part of a scheme by third parties to delay, hinder or defraud creditors. Movant states that Debtor is not the borrower but, apparently, is the recipient of a gratuitous ownership interest in the Corona Property. Bankruptcy cases affecting the Property include:
Case #: 2:11-bk-34096-PC
Chapter: 7 Filed: 6/3/2011
Discharged: 10/7/2011
Case #: 6:12-bk-10162-MJ
Chapter: 13 Filed: 1/4/2012
Dismissed: 1/24/2012
Case #: 6:14-bk-13775-WJ
Chapter: 13 Filed: 3/25/2014
Dismissed: 4/2/2014
Case #: 6:19-bk-18868-SY
Chapter: 13 Filed: 10/08/2019
Dismissed: 10/28/2019
Case #: 6:19-bk-20129-SY
Chapter: 13 Filed: 11/19/2019
Dismissed: 12/11/2019
10:00 AM
CONT...
Jason Serrone
Chapter 7
Disposition: GRANT 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); 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).
DENY relief requested under 11 (order binding & effective against any debtor) because such relief requires the filing of an adversary proceeding 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 ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
Party Information
Debtor(s):
Jason Serrone Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:18-12698
Green Nation Direct, Corporation
Chapter 7
#16.00 Motion for (1) Approval of Substantive Consolidation of N.R.G Investment Group with Debtor's Estate; and (2) Authority to Pursue Avoidance Actions.
Docket 249
*** VACATED *** REASON: Cont'd to 5/5/20 at 10:00 per order #254. lf Tentative Ruling:
- NONE LISTED -
Party Information
10:00 AM
CONT...
Debtor(s):
Green Nation Direct, Corporation
Chapter 7
Green Nation Direct, Corporation Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Jeffrey S Kwong
Edward M Wolkowitz
1:20-10462
Justin T Mir
Chapter 7
#17.00 Motion for order compelling attorney to file disclosure of compensation pursuant To 11 U.S.C. § 329
Docket 13
*** VACATED *** REASON: Ntc. of w/drawal filed 4/15/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Justin T Mir Represented By
Eric Bensamochan
Trustee(s):
Amy L Goldman (TR) Pro Se
1:18-13040
Eric Rodriguez
Chapter 7
Adv#: 1:19-01015 Gamm et al v. Rodriguez
#18.00 Status Conference Re: Amended Complaint to Determine Debts to be Non-Dischargeable Pursuant to Section 523(a) of the Bankruptcy Code.
fr. 7/31/19; 2/19/20
10:00 AM
CONT...
Eric Rodriguez
Docket 11
Chapter 7
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Eric Rodriguez Represented By Elena Steers
Defendant(s):
Eric Rodriguez Represented By David Brian Lally
Plaintiff(s):
Veronica Gamm Represented By Frank E Marchetti
Marina Noorali Represented By Frank E Marchetti
Fredy Harrison Represented By Frank E Marchetti
Trustee(s):
Amy L Goldman (TR) Pro Se
1:18-12547
Michael Vara
Chapter 11
#19.00 Application for Compensation for Onyinye N Anyama,
Period: 10/17/2018 to 3/30/2020, Fee: $13,720.00, Expenses: $667.45.
Docket 132
10:00 AM
CONT...
Michael Vara
Chapter 11
Tentative Ruling:
The U.S. Trustee and the Anyama Law Firm, A.P.C. (the "Firm") have agreed that the fees sought in the Application shall be reduced by $500.00, and therefore the Firm seeks an award of $13,220.00 in fees and $667.45 in expenses.
Having reviewed the 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.
Party Information
Debtor(s):
Michael Vara Represented By Onyinye N Anyama Alfred J Verdi
Movant(s):
Michael Vara Represented By Onyinye N Anyama Onyinye N Anyama Alfred J Verdi Alfred J Verdi
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#20.00 Motion filed jointly by debtor and detor in possession
1) Authorizing the debtor to hold rent payments in trust and 2) Excusing or deeming the debtor and sublessor in compliance with Bankruptcy code section 365(d)(3)
Docket 59
Tentative Ruling:
Debtor filed a motion to assume the lease on October 1, 2019 seeking to, among
10:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
other things, assume the Lease and Sublease. [Dkt. No. 21]. The hearing for that motion was initially set for November 6, 2019. The parties later entered into a Lease Stipulation and Second Lease Stipulation, which (1) extended the time by which the Debtor may assume and assign or reject the Lease to July 17, 2020; and (2) reserved the dates for an evidentiary hearing for June 25, 26, 29, and 30 2020. At a March 11, 2020 status conference, the parties agreed to further extend the existing deadlines and have prepared a Third Lease Stipulation. The Debtor’s deadline to assume or reject the Lease is now September 15, 2020 [Dkt. No. 57].
The sublessor, WERM, was operating a successful entertainment club in the Premises until its operations were affected by the COVID-19 pandemic. WERM employs approximately fifty to seventy regular employees and independent contractors and approximately twenty security guards, six valet attendants, and thirty marketing teams. On March 12, 2020, due to the COVID-19 pandemic, the City of Los Angeles imposed a 250-person capacity restriction, and later a full shutdown of the Premises.
Before the COVID-19 crisis, the Debtor timely paid rent for the 60-day period following the petition date. Rent on the Premises was due on April 1, 2020. The Debtor has not paid this and is holding $42,000 in trust for the April 2020 rent. Debtor seeks a court order to allowing it to continue withholding rent until the Premises is delivered for its intended use and the lease assumption evidentiary hearing has concluded.
Based on § 365(d)(3) and § 105(a) of the Bankruptcy Code, the Debtor also requests this court (1) to reallocate the lease payments it made during the first 60 days in September and October 2019 and apply it to the April and May 2020 rent; and (2) to retroactively defer rental payments for 60 days. The Landlord opposes, arguing that § 105(a) does not allow the bankruptcy court to override explicit mandates of other sections of the Bankruptcy Code. Law v. Siegel, 571 U.S. 415, 421 (2014), Specifically, § 105(a) cannot be used to override § 365(d)(3).
Although the current economic environment is "atypical and highly unusual," the Lease contains a "Force Majeure" clause that applies to "acts of God" and, specifically, governmental restrictions, regulation or controls such that the Debtor is not excused from paying rent.
Section 365(d)(3) of the Bankruptcy Code provides:
10:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
The Trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. The court may extend, for cause, the time for performance of any such obligation that arises within 60 days after the date of the order for relief, but the time for performance shall not be extended beyond such 60-day period. This subsection shall not be deemed to affect the trustee's obligations under the provisions of subsection (b) or (f) of this section. Acceptance of any such performance does not constitute waiver or relinquishment of the lessor's rights under such lease or under this title.
11 U.S.C. § 365(d)(3)
Additionally, section 365(d)(4) provides:
. . . In a case under any chapter of this title, if the trustee does not assume or reject an unexpired lease of nonresidential real property under which the debtor is the lessee within 60 days after the date of the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such lease is deemed rejected, and the trustee shall immediately surrender such nonresidential real property to the lessor.
11 U.S.C. § 365(d)(4)
A bankruptcy trustee (which is the Debtor here as debtor-in-possession) may assume or reject an unexpired lease, subject to the court’s approval. 11 U.S.C. § 365(a). Where the debtor is a lessee under an unexpired lease of nonresidential property, the trustee has 60 days from the date of the relief order to decide whether to assume or reject the lease. 11
U.S.C. § 364(d)(4).
Before the lease assumption or rejection, the trustee must continue to "perform all the obligations of the debtor" under that lease. 11 U.S.C. § 365(d)(3). Towers v. Chickering
10:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
& Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401, 403-4 (9th Cir. 1993)(stating, "[t] he plain and unconditional language of the statute demands that a trustee promptly pay the full amount of rent due under a nonresidential real property lease during the 60-day period pending assumption or rejection"); Pac. Shores Dev., LLC v. At Home Corp. (In re At Home Corp.), 392 F.3d 1064, 1068 (9th Cir. 2004)("First, § 365(d)(3) makes clear that the debtor must perform all obligations owing under a lease—particularly the obligation to pay rent at the contract rate—until the lease is rejected."). This obligation includes the payment of administrative rent. In re Pacific-Atlantic Trading Co., 27 F.3d at 404 (stating that, "notwithstanding the administrative or nonadministrative status of a claim by a lessor, a bankruptcy court must order its payment pending assumption or rejection.").
If the trustee fails to act within 60 days, the lease is "deemed rejected" and the trustee must "immediately surrender such nonresidential real property to the lessor." 11
U.S.C. § 365(d)(4); In re At Home Corp., 392 F.3d at 1068.
Debtor proposes the court (1) to reallocate its September and October 2019 to its April and May 2020 lease payment so that it can (2) retroactively apply § 365(d)(3) to extend the time to pay the rent for the September and October 2019 for 60 days.
First, the language of 365(d)(3) is unambiguous. The time for a commercial tenant to pay rent cannot be extended beyond the 60-day statutory period. 11 U.S.C. § 365(d)(3)(" The court may extend, for cause, the time for performance of any such obligation that arises within 60 days after the date of the order for relief, but the time for performance shall not be extended beyond such 60-day period"). It is now about 8 months since the Debtor filed its bankruptcy petition in August 21, 2019. It is way past the 60-day statutory maximum extension for paying rent. So, even if the court were to reallocate the Debtor’s September and October 2019 payments to April and May 2020, the 60-day extension period would still have expired.
The Debtor cites a Ninth Circuit case in which § 105(a) powers were used to retroactively reject leases. In re Pac. Shores Dev., LLC v. At Home Corp. (In re At Home Corp.), 392 F.3d 1064, 1068 (9th Cir. 2004). The decision in At Home Corp. does not support Debtor’s proposal because that case pertains to the retroactive rejection of leases under § 365(d)(3) and does not provide guidance on whether the court can retroactively extend the 60-day statutory period to pay rent under § 365(d)(3) or whether this court can reallocate rent payments.
10:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
The decision in At Home Corp. is supported by the First Circuit’s black-letter rule in Thinking Machines Corp. that "rejection under section 365(a) does not take effect until judicial approval is secured, but the approving court has the equitable power, in suitable cases, to order a rejection to operate retroactively." In re At Home Corp., 392 F.3d at 1069 (quoting In re Thinking Machines, 67 F.3d 1021, 1029 (1st Cir. 1995)). This rule is well- established among many bankruptcy courts following the First Circuit decision. In re At Home Corp., 392 F.3d at 1069-70. Even before the First Circuit ruling, some courts have used their equitable powers to authorize retroactive lease rejections. Id. at 1070. There is no similar analogy that supports Debtor’s propositions.
The decision in At Home Corp was also based on an understanding that the bankruptcy court’s use of its § 105(a) powers to allow the retroactive lease rejection was "necessary or appropriate to carry out" the provisions of Title 11. 11 U.S.C. § 105(a). In re At Home Corp., 393 F.3d at 1070. Specifically, the bankruptcy court’s use of its equitable powers was consistent with the purpose of § 365(d) for the prompt acceptance or rejection of an unexpired non-residential lease. Id. at 1070-71.
The Ninth Circuit makes it clear that a bankruptcy court’s equitable powers under § 105(a) is limited and does not allow a "roving commission to do equity." Id. at 1070 (citing Saxman v. Educ. Credit Mgmt. Corp. (In re Saxman), 325 F.3d 1168, 1175 (9th Cir. 2003) (quoting United States v. Sutton, 786 F.2d 1305, 1308 (5th Cir. 1986)). A bankruptcy court has statutory authority to "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of" the Bankruptcy Code. 11 U.S.C. § 105(a). A bankruptcy court, however, may not contravene specific statutory provisions. Law v. Siegel, 571 U.S. 415, 420-21 (2014).
Congress enacted § 365(d), also called the "Shopping Center Amendments," to protect the interests of commercial landlords that were being forced to extend rent during a pending chapter 11 proceeding. Congress intended the Shopping Center Amendments to ensure that commercial tenants that filed for chapter 11 continued to pay rent until the lease is rejected and commercial tenants decide quickly whether to reject or assume the lease instead of taking advantage of the automatic stay. Id. at 1068-69.
Although the court is cognizant of the economic impact and hardships that the COVID-19 pandemic has caused, both parties are affected by this health crisis. The parties have also agreed that rent will continue to be paid even under these circumstances under a Force Majeure clause (the "Clause"), which provides that:
10:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefor, governmental restrictions, governmental regulations, governmental controls, special orders, enemy or hostile governmental acting civil commotions, fire or other casualty and other causes (except financial) beyond the reasonable control of the party obligated to perform, shall excuse the performance by that party for a period equal to the prevention, delay or stoppage except the obligations imposed with regard to Minimum Rent and Additional Rent to be paid by Tenant.
[Opposition, Ex. 1].
Debtor asks this court to interpret the Clause as not including "global pandemics." [Reply p. 8]. As the Debtor stated in its Motion, however, the Premises was shut down by order of the City of Los Angeles. [Mtn. p. 10]. The action by the City of Los Angeles falls within "governmental restrictions, governmental regulations, governmental controls" of the Clause.
The Debtor also argues that Smart Capital cannot obtain an eviction of the Debtor from the Premises based on the California Governor’s order prohibiting landlords from evicting tenants affected by the COVID-19 pandemic. Although the Governor has issued a moratorium under Executive Order N-37-20 due to COVID-19 (the "Order"), the Order does not apply this case. The Order pertains to the eviction of residential tenants and states that "The deadline specified in Code of Civil Procedure section 1167 shall be extended for a period of 60 days for any tenant who is served, while this Order is in effect, with a complaint to evict the tenant from a residence or dwelling unit for nonpayment of rent…" Executive Order
N-37-20. The Governor’s orders are not applicable here and do not affect the enforceability of the Clause or the issue of eviction from a commercial establishment.
The Motion is DENIED. TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
11:00 AM
1:19-11646
Michael T Stoller
Chapter 11
#21.00 U.S. Trustee Motion to dismiss or convert case fr. 3/11/20
Docket 83
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Michael T Stoller Represented By Matthew Abbasi
1:19-11646
Michael T Stoller
Chapter 11
#22.00 Scheduling and Case Managment Conference
fr. 9/11/19, 3/11/20
Docket 42
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Michael T Stoller Represented By Matthew Abbasi
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:20-01022 Jones v. Levin
11:00 AM
CONT...
John Gordon Jones
Chapter 7
#23.00 Status Conference re: Petition for injuction prohibiting creditor join Levin, M.D. from
legal action aganst Non-Bankrupt Corporation entities
Docket 1
*** VACATED *** REASON: Moved to 1:00 per order #14. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Levin Pro Se
Plaintiff(s):
John Gordon Jones Represented By
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
1:00 PM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:20-01022 Jones v. Levin
#24.00 Motion to Dismiss Plaintiff John Gordon Jones' Complaint For: (1) Lack of Subject Matter Jurisdiction Pursuant to Fed.R.Civ.P. Rule 12(b)(1); and (2) Failure to State a Claim Upon Which Relief Can Be Granted Pursuant to Fed.R.Civ.P. Rule 12(b)(6)
Docket 9
Tentative Ruling:
The long factual history between the parties has been detailed in previous rulings and is truncated here for clarity. See Notice of Tentative Ruling re Motion for Summary Judgment, ad. ECF doc. 224. On March 18, 2010, creditor John Levin ("Defendant") obtained a judgment against debtor John G. Jones ("Debtor" or "Plaintiff") for $446,027.40, plus pre-judgment interest of $11,297.77 (the "State Court Judgment"). Complaint, Ex. 1 (ad. ECF doc. 1).
On March 21, 2018, Debtor filed a voluntary chapter 7 petition. On June 22, 2018, Defendant filed an adversary complaint against Debtor, asserting claims for nondischargeability under 11 U.S.C. § 523(a)(2)(B) and for denial of discharge under § 727(a), et seq., claiming that Debtor’s bankruptcy schedules and other required case commencement documents contained false statements about his assets and the valuation of his scheduled assets. Discharge Complaint 1:18-
ap-01075-MT, 5:7-6:13. Defendant also alleged that Debtor understated his income by paying personal expenses through his company, Corporate Distributions, and that he has not satisfactorily explained the loss of assets or the deficiency of his assets. Id. at 5:3-5:6; 6:14-7:2. On July 26, 2018, Debtor filed his answer to the Discharge Complaint.
Thereafter, protracted battles about the scope of discovery ensued, with competing motions to compel deposition filed by Defendant and motions for protective orders and motions to quash filed by Debtor. Ultimately, Summary Judgment was granted in favor of Debtor as to the claim under § 523 but was denied as to the § 727(a) claims.
Defendant then requested relief under 11 U.S.C. 362(d)(1) to lift the stay for the limited purpose of renewing a State Court judgment against Debtor, which will
1:00 PM
CONT...
John Gordon Jones
Chapter 7
expire in April 2020, and to amend the judgment to add Debtor’s wholly owned, non- debtor entities, Corporate Distributions, Inc. and Worldwide Computer, Inc. (the "NDEs"). Debtor opposed and argued that he needs the stay to research the history of payments and credits to his account with Defendant concerning the State Court judgment. Debtor alleged making payments to Defendant that were not properly credited and that he would be severely prejudiced if the stay were lifted.
At the hearing on the relief from stay motion, held on November 6, 2019, the Court granted relief from stay to Defendant to file the motion to renew judgment in the state court. The Court clarified that it would not be litigating the amount of the credits and how any payments were allocated. As to Debtor’s arguments that Defendant has not provided a breakdown of how payments were allocated between principal and interest, the Court explained
So, I will grant relief from stay just to file the motion to renew the judgment and you two can argue over the amounts. I think you should send it over by email in advance because there’s no reason you can’t -- I mean, there’s really been an inability to just talk numbers on each side which has shocked me in this case. Two of you can sit down and you can say, I’m going to file a motion -- or send everybody an email, this amount, these credits, credited here. And Mr. Worthington should be able to get back and say, no, it’s this amount, credited here or fine. And that -- that’s math and you can explain where you’re getting it from. That shouldn’t really be much litigation.
Tr. of Hr’g on Motion for Relief from Stay, ECF doc. 90, 20:5-16.
The Court then permitted the parties to submit additional briefing on the issue of whether Defendant’s motion to add the NDEs implicates Debtor’s automatic stay and continued the hearing to February 5, 2020.
At the continued hearing on February 5, 2020, after considering the briefs and oral arguments, the Court ruled that Debtor’s stay under § 362 did not extend to his NDEs. The Court’s adopted tentative ruling was filed on the docket on February 10, 2020 ("RFS Ruling," bankr. ECF doc. 95). The Order Granting Relief from Stay on the terms explained in the RFS Ruling was entered on March 4, 2020 (the "RFS Order," bankr. ECF doc. 98).
On February 20, 2020, Debtor filed an adversary complaint seeking injunctive
1:00 PM
CONT...
John Gordon Jones
Chapter 7
relief to prevent Defendant from proceeding in the State Court against the NDEs. Complaint, 20-01022. Debtor did not move for a preliminary injunction at that time. On March 23, 2020, Defendant filed this Motion to Dismiss under FRCP 12(b)(6).
On April 14, 2020, Debtor filed a Motion for Injunction in the bankruptcy case (bankr. ECF doc. 124), seeking an injunction against Defendant to prevent him from continuing his state court litigation as to the NDEs. On April 16, 2020, the Court entered an Order Denying Without Prejudice the Motion for Injunction, explaining that such relief must be sought in this adversary under FRBP 7001.
Standard
Standard for Motion to Dismiss Under Rule 12(b)(6):
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).
"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).
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
CONT...
John Gordon Jones
Chapter 7
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. 550 U.S at 570 (citations and internal quotation marks omitted). Further, the allegations of the complaint, along with other materials properly before the court on a motion to dismiss, can establish an absolute bar to recovery. See Weisbuch v. County of Los Angeles, 119 F.3d 778, 783 n. 1 (9th Cir. 1997) ("If the pleadings establish facts compelling a decision one way, that is as good as if depositions and other expensively obtained evidence on summary judgment establishes the identical facts."). While the court generally must not consider materials outside the complaint, the court may consider exhibits submitted with the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
In order to obtain a preliminary injunction under Fed. R. Civ. P. 65 ("Rule 65"), incorporated by reference in Fed. R. Bankr. P. 7065, Plaintiff must establish that: 1) it is likely to succeed on the merits; 2) it is likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in its favor; and 4) that an injunction is in the public interest. Winter v. Natural Resources Defense Counsel, Inc., 555 U.S. 7, 20 (2008); Munaf v. Geren, 553 U.S. 674, 689-90 (2008).
A preliminary injunction is an "extraordinary and drastic remedy" that should not be awarded as of right. Munaf v. Geren, 553 U.S. 689; Winter, 555 U.S. 26.
The moving party bears the burden of persuasion to show that it is entitled to relief by a clear showing. 11A Federal Practice and Procedure § 2948 (Wright, Miller and Kane 2d 1995); Winter, 555 U.S. 22. The burdens at the preliminary injunction stage track the burdens at trial. Gonzales v. O Centrol Espirita Uniao de Vegetal, 546 U.S. 418, 429 (U.S. 2006). Once the moving party has carried its burden of showing a likelihood of success on the merits, the burden shifts to the non-moving party to show a likelihood that its affirmative defense will succeed. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1158 (9th Cir. 2007).
Courts have granted injunctions under § 105(a) to protect non-debtors where certain actions would interfere with, deplete or adversely affect property of the bankruptcy estate or diminish the debtor’s ability to formulate a plan of reorganization. See Solidus Networks, Inc. v. Excel Innovations, Inc., (In re Excel Innovations, Inc.), 502 F.3d 1086, 1089 (9th Cir. 2007); Rinard v. Positive Invs., Inc. (In re Rinard), 451 B.R. 12, 24 (Bankr. C.D. Cal. 2011); Casner v. Chase Manhattan Mortg. Corp. (In Re Casner), 302 B.R. 695, 702-3 (Bankr. E.D. Cal. 2003).
Preliminary injunctions are to be granted sparingly to enjoin actors not covered by the automatic stay. In re American Hardwoods, Inc., 885 F.2d621, 625 (9th Cir.
1:00 PM
CONT...
John Gordon Jones
Chapter 7
1989). This does not prohibit limited time injunctions.
In the bankruptcy context the likelihood of success prong of the preliminary injunction standard does not necessarily entail a determination of the likely outcome of the state court proceeding that Debtor seeks to enjoin. For example, in Chapter 11 cases, where the objective of the request for injunction is to prevent state court litigation from negatively impacting the debtor's ability to reorganize, courts often define the likelihood of success prong of the preliminary injunction standard in terms of the probability of a successful reorganization. In re Excel Innovations, 502 F.3d at 1095. In adopting this standard, one court explained:
The Bankruptcy Code is designed to achieve either a reorganization or a fresh start, and 105 injunctions may be issued only as ‘necessary or appropriate to carry out the provisions of this title.’ 11 U.S.C. § 105. It makes sense to adopt a preliminary injunction standard with these principles in mind.
In re United Health Care Organization, 210 B.R. 228, 233 (S.D.N.Y.1997).
Here, Debtor filed a Chapter 7 case in which no reorganization is sought, so the probability of a successful reorganization cannot be used as a measure of the likelihood of
success. In Archambault v. Hershman (In re Archambault), 174 B.R. 923 (Bankr.W.D.Mich.1994), the bankruptcy court applied preliminary injunction standards in a Chapter 7 case in which the debtor sought to enjoin the prosecution of state court litigation against a third party allegedly liable with the debtor on a debt, and suggested that the " ‘likelihood of success on the merits' factor must be analyzed as to the possible success of the litigation which the debtor seeks to enjoin as well as the effect of that litigation on the debtor's fresh start." Archambault, 174 B.R. at 934 (emphasis added).
The parties disagree as to whether Debtor is likely to prevail in the State Court Action. Debtor believes that the documentary evidence of the course of dealings with Defendant will show that the debt that was the basis for the State Court Judgment is far lower than was awarded in the State Court Judgment. Defendant, for his part, argues that Debtor’s dealings with his NDEs show that the NDEs are Debtor’s alter egos and thus he cannot show likelihood of success on the merits.
These arguments miss the importance of the fresh start. In the Chapter 7 context, as suggested by Archambault, the furtherance of the Bankruptcy Code's fresh start
1:00 PM
CONT...
John Gordon Jones
Chapter 7
objective also bears on the Court's determination of Debtor’s likelihood of success.
A fundamental purpose driving the bankruptcy system is to "relieve the honest debtor from the weight of oppressive indebtedness, and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes." Williams v. U.S. Fidelity & Guaranty Co., 236 U.S. 549, 554–555 (1915) (citations omitted). To carry out those provisions, it is appropriate that debtors, if reasonably possible, be afforded an opportunity for a meaningful determination on the merits of non-dischargeability claims against them. Here, Debtor has already prevailed as to Defendant’s § 523(a)(2) claim, giving weight to his argument that he has demonstrated likelihood of success on the merits.
With these principles in mind, with regard to the likelihood of success prong of the preliminary injunction standard, it makes sense to require Debtor to demonstrate a reasonable likelihood that they will be deprived of a fresh start without a meaningful determination on the merits of Defendant’s remaining § 727(a) claims against him if no injunction is issued. Under this standard, the Court finds that Debtor has demonstrated a sufficient likelihood of success to prevail on a motion to dismiss under FRCP 12(b)(6).
Debtor explained that, under their current financial condition, he may be forced to proceed without counsel in the State Court Action, if his current counsel is unable to continue to forebear his fees. Debtor contends that he will suffer irreparable harm in the without the issuance of an injunction because he would be forced to proceeded pro se in the State Court Action to a litigated judgment. If forced to defend the alter ego claims that seek to pierce the corporate veil and to reach him personally, there is a reasonable likelihood Debtor would be deprived of a meaningful determination on the merits of Defendant’s § 727(a) claims. If Debtor is unable to defend against the alter ego actions and the State Court issues a default judgment that the NDEs are Debtor’s alter ego, Defendant would likely seek preclusive effect in this form for any factual finding made by the State Court.
In other words, if this Court were presented with findings by the State Court as relates to alter ego, Defendant may try to use collateral estoppel principles to establish facts to support his denial of discharge action under 11 U.S.C. §§ 727(a)(2) (A); (a)(4)(A) and (a)(5) based on a judgment obtained in the State Court Action. On the other hand, should Debtor prevail in the State Court Action, he will still have to relitigate related factual issues in this adversary proceeding. It is clear from the pleadings and arguments in this case thus far that the factual basis of the denial of discharge action also form the basis of Defendant’s claim for alter ego against the
1:00 PM
CONT...
John Gordon Jones
Chapter 7
NDEs. Discovery as between Defendant and the NDEs would proceed in the State Court Action, discovery that would seem to be largely duplicative of the discovery in this adversary proceeding. There would also be the risk of inconsistent rulings on discovery issues by the State Court and this Court.
Public policy is in favor of allowing debtors a fair opportunity to emerge from their financial difficulties with a fresh start is served by setting a trial in the adversary proceeding sooner, rather than later, and providing a forum for adjudication of the issues in which Debtor can afford counsel. Public policy also favors judicial economy and minimizing expense for the parties to the litigation. The most efficient use of judicial resources and the most economical way to resolve the pending litigation between the parties, is to hold the § 727(a) trial before any State Court proceeding on the alter ego claims. The result the Court envisions will "maximize protection and minimize prejudice" to both parties.
The Court can and will fashion relief to mitigate the harm to both parties by issuing a time-limited injunction, once Plaintiff makes a procedurally proper motion for such relief in this adversary proceeding. The Court can conduct a trial in the adversary proceeding and decide on Defendant’s §§ 727(a) claims, before any hearing before the State Court on the alter ego claims against the NDEs. If Debtor prevails in the § 727(a) against him, discharge will be entered and further prosecution of the claims against Debtor in the State Court Action would be barred by the discharge injunction. If, on the other hand, Defendant prevails, there will be no discharge to prevent him from exercising his state law rights against both Debtor and any of the NDEs against which he can obtain a judgment. Proceeding in this manner will avoid or mitigate the need for expensive duplicative discovery in the State Court Action and this adversary proceeding and minimize the risk of inconsistent rulings in the two actions.
For the reasons stated above, the Court denies the Motion to Dismiss under FRCP 12(b)(6). While the Complaint is not a model of clarity, the Court must construe the complaint in the light most favorable to Debtor and accept all well- pleaded factual allegations as true. Debtor has met his burden to show facts that support he has a viable legal theory that he it is likely to succeed on the merits and the litigation will have a deleterious on the debtor's fresh start, that he is likely to suffer irreparable harm in the absence of injunctive relief; that the balance of equities tips in its favor; and that an injunction is in the public interest.
Party Information
1:00 PM
CONT...
Debtor(s):
John Gordon Jones
Chapter 7
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Levin Represented By
Michael Jay Berger
Plaintiff(s):
John Gordon Jones Represented By
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:20-01022 Jones v. Levin
#25.00 Status Conference re: Petition for injuction prohibiting creditor join Levin, M.D. from
legal action aganst Non-Bankrupt Corporation entities
Docket 1
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Levin Pro Se
1:00 PM
CONT...
John Gordon Jones
Chapter 7
Plaintiff(s):
John Gordon Jones Represented By
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
Friday, May 1, 2020
Hearing Room
302
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#1.00 Pre-Trial Status Conference re: Complaint
fr. 8/29/18, 2/20/19, 6/26/19; 9/11/19, 12/4/19, 4/1/20
Docket 1
Debtor(s):
*** VACATED *** REASON: Cont'd to 7/10/20 at 10:00 per order #243. lf Party Information
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
Monday, May 4, 2020
Hearing Room
302
4:00 PM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 Motion filed jointly by debtor and detor in possession
Authorizing the debtor to hold rent payments in trust and 2) Excusing or deeming the debtor and sublessor in compliance with Bankruptcy code section 365(d)(3)
fr. 4/29/20
Docket 59
Tentative Ruling:
Appearance required
Debtor(s):
Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
9:30 AM
1:19-11422
Joe Kearney
Chapter 13
#1.00 Trial - Day 1
Motion to Disallow Claims OF PATRICIA LEUPOLD (CLAIM # 8-1) Filed by Debtor Joe Kearney (Aronson, Robert)
Docket 37
Debtor(s):
*** VACATED *** REASON: Per order #82. lf
Party Information
Joe Kearney Represented By
Robert M Aronson
Movant(s):
Joe Kearney Represented By
Robert M Aronson Robert M Aronson Robert M Aronson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12698
Green Nation Direct, Corporation
Chapter 7
#2.00 Motion for (1) Approval of Substantive Consolidation of N.R.G Investment Group with Debtor's Estate; and (2) Authority to Pursue Avoidance Actions.
fr. 4/29/20
Docket 249
Debtor(s):
*** VACATED *** REASON: Cont'd to 5/15/20 @ 10:00 per order #258. lf Party Information
Green Nation Direct, Corporation Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Jeffrey S Kwong
Edward M Wolkowitz
10:00 AM
1:15-13365
Daniel Scott Richards
Chapter 13
#1.00 Motion for relief from stay
NATIONSTAR MORTGAGE LLC DBA MR. COOPER
Docket 70
*** VACATED *** REASON: Ntc. of w/drawal filed 4/22/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Daniel Scott Richards Represented By Todd J Roberts
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-10064
Jacobo Reyes
Chapter 13
#2.00 Motion for relief from stay
SELENE AS ATTORNEY IN FACT WILMINGTON SAVINGS FUNDS
fr. 3/4/20, 4/1/20
Docket 77
Tentative Ruling:
This hearing was continued from 4/1/20 so that the parties could negotiate an APO. Nothing has been filed since the last hearing. What is the status of this motion?
TELEPHONIC APPEARANCE REQUIRED
3-4-20 TENTATIVE BELOW
Petition Date: 1/11/2016
Ch.: 13, Plan Confirmed on 06/14/2016
Service: Proper. No opposition filed as of 02/26/2020. Property: 13461 Hubbard Street #47, Sylmar, CA 91342 Property Value: $261,945 (per Debtor’s schedules) Amount Owed: $294,381 (per Movant's declaration) Equity Cushion: 0.0%
Equity: $0.00
Post-Petition Delinquency: $16,905.97 (2 payments of $1,150.99; 1 payment of
$1,302.85; and 11 payments of $1,313.65)
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); and 7 (waiver of the 4001(a)(3) stay).
Disposition: GRANT. NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Jacobo Reyes Represented By
Ghada Helena Philips
10:00 AM
CONT...
Trustee(s):
Jacobo Reyes
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12587
Bienvenida Bejosano Goudeaux
Chapter 13
#3.00 Motion for relief from stay HSBC BANK
Docket 86
*** VACATED *** REASON: Resolved per APO (doc. 96) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Bienvenida Bejosano Goudeaux Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11265
Stephanie Joyce Moore
Chapter 13
#4.00 Motion for relief from stay
NISSAN MOTOR ACCEPTANCE CORP.
Docket 62
Tentative Ruling:
Petition Date: 5-16-18
Ch. 13 Plan confirmed: 11-5-18 Service: Proper. Opposition filed. Property: 2017 Nissan Maxima
Property Value: $14,300 (per Movant's evidence, NADA Guide) Amount Owed: $23,933
Equity Cushion: 0.0% Equity: $0.00.
Post-confirmation Delinquency: $2,035 (3 payments of $678.36)
Movant alleges cause for relief 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). Movant alleges that the last payment received was on or about 2-7-20.
Debtor opposes the Motion, arguing that she has made all required post-petition payments and attached a screenshot of a payment made on 4/17/20 for $2,035.
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Stephanie Joyce Moore Represented By Michael E Clark Barry E Borowitz
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
10:00 AM
CONT...
Trustee(s):
Stephanie Joyce Moore
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10598
Debra J DeVictoria
Chapter 13
#5.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOCIATION fr. 2/26/20, 4/1/20
Docket 26
*** VACATED *** REASON: APO entered 4/28/20 (doc. 33) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Debra J DeVictoria Represented By Kenneth H J Henjum
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11930
Vicente M Aguilar
Chapter 13
#6.00 Motion for relief from stay
U.S.BANK TRUST NATIONAL et. al.
Docket 23
*** VACATED *** REASON: Settled by stipulation - ts Tentative Ruling:
Party Information
Debtor(s):
Vicente M Aguilar Represented By
David Samuel Shevitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12205
Mauricio Nunez
Chapter 13
#7.00 Motion for relief from stay FREEDOM MORTGAGE CORP.
Docket 31
Tentative Ruling:
Petition Date: 9/1/2019
Service: Proper. No opposition filed. Property: 9834 Vena Ave., Arleta, CA 91331
Property Value: $466,000 (per debtor’s schedules) Amount Owed: $290,657
Equity Cushion: 37.6% Equity: $175,343
Post-Petition Delinquency: $4,389.40 (3 payments of $2,189.80)
Movant alleges cause for relief 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 6 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment was made on or about 1/27/20.
There appears to be a sufficient equity cushion to protect this claim. Have the parties had an opportunity to discuss whether this small delinquency may be cured in an APO?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Mauricio Nunez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12217
Jaime Gutierrez
Chapter 13
#8.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST COMPANY
fr. 3/25/20, 4/1/20
Docket 30
Tentative Ruling:
This hearing was continued from 4/1/20 so that the parties could negotiate an APO. Nothing has been filed since the last hearing. What is the status of this motion?
TELEPHONIC APPEARANCE REQUIRED
Cont'd fr 4/1/20
Petition Date: 9/4/2019
Chapter 13 plan confirmed: 2/13/2020
Service: Proper; co-debtor served. Opposition filed. Property: 7312 Leescott Ave., Van Nuys, CA 91406 Property Value: $613,000 (per debtor’s schedules) Amount Owed: $622,513
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $11,471 (5 payments of $2,294.28)
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 Debtor is delinquent at least five post-petition payments.
Debtor opposes the Motion, arguing that the property is his residence & necessary for a reorganization, and requests to cure any deficiency with an APO. Is Movant amenable to discussing an APO with Debtor's counsel to resolve this matter?
10:00 AM
CONT...
Jaime Gutierrez
Chapter 13
APPEARANCE REQUIRED
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Jaime Gutierrez Represented By Allan S Williams
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12917
Maurice Vasquez
Chapter 13
#9.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO. fr. 4/1/20
Docket 26
*** VACATED *** REASON: APO entered 4/2/20 (doc. 34) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Maurice Vasquez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10157
Artur Sahakyan
Chapter 7
#10.00 Motion for relief from stay CIT BANK, N.A.
fr.4/1/20
Docket 14
Tentative Ruling:
This hearing was continued from 4/1/20 so that Debtor could convert this case to chapter 13 to have an opportunity to reorganize. On 4/23/20, this case was converted to chapter 13; 341(a) meeting is scheduled for 6/10/20. No plan has yet been filed. What is the status of this motion?
TELEPHONIC APPEARANCE REQUIRED
Cont'd fr. 4/1/20 Petition Date: 1/22/2020 Ch. 7
Service: Proper. Opposition filed.
Property: 13417 Friar Street, Van Nuys, CA 91401 Property Value: $690,000 (per debtor’s schedules)
Amount Owed: $549,333.00 (1st DoT). There is also a judgment lien of
$45,477.14 on property. Equity Cushion: 12.39% Equity: $95,189
Post-Petition Delinquency: $66,944.69
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 debtor has missed 128 payments of
$536.22 equating to $66,944.69.
Debtor opposes the Motion, arguing that even though there is a thin equity cushion here, it’s Debtor's intention to save his home, so he plans to get a
10:00 AM
CONT...
Artur Sahakyan
Chapter 7
roommate to generate income. Debtor has filed a Motion to Convert to Ch. 13 to propose a plan to repay these arrears (doc. 18).
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Artur Sahakyan Represented By Aris Artounians
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:20-10430
Sean Taheri and Jennifer Amy Taheri
Chapter 7
#11.00 Motion for relief from stay AMERICAN HONDA FINANCE
fr.4/1/20
Docket 9
*** VACATED *** REASON: Resolved per APO (doc. 16) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Sean Taheri Represented By
Ali R Nader
Joint Debtor(s):
Jennifer Amy Taheri Represented By Ali R Nader
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:16-13055
Mark David Cave
Chapter 13
#11.01 Motion for relief from stay KIMBERLY CAVE
fr. 4/8/20; 4/29/20
Docket 118
Tentative Ruling:
Ch. 13 Petition Date: 10/24/2016. Plan Confirmed on 07/28/17. Service: Proper (ECF doc. 123)
Movant: Kimberly Cave
Relief Sought: Pursue Pending State Court Family Law Litigation Litigation Information
Case Name: POST JUDGMENT REQUEST FOR ORDER IN DISSOLUTION
Court/Agency: Superior Court of CA, County of LA Date Filed: 12/19/2019
Judgment Entered:
Trial Start Date: 06/16/2020
Action Description: Request for order determining scope of child support obligations and custodial rights; reimbursement of debt; and sale of residence.
Movant alleges lack of knowledge of bankruptcy action and asserts that they are entitled to relief from stay because the family law matter can be tried quicker in the nonbankruptcy forum.
Disposition: GRANT under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 3 (stay annulled retroactively to petition date, as to actions taken in nonbankruptcy forum); 5 (waiver of the 4001(a)(3) stay); and 6 (order binding for 180 days in subsequent bankruptcy case).
10:00 AM
CONT...
Mark David Cave
Chapter 13
NO APPEARANCE REQUIRED--RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Mark David Cave Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12188
Ofelia Margarita Macias
Chapter 11
#12.00 Scheduling and case management conference and filing of monthly report
fr. 12/12/18; 5/22/19, 6/26/19, 8/21/19
Docket 28
*** VACATED *** REASON: Case closed 1/30/2020 - hm Tentative Ruling:
Order closing case on an Interim Basis (ECF doc. 111) was entered on
1/30/2020. No further status conference is required.
NO APPEARANCE REQUIRED ON 5/6/2020
Party Information
Debtor(s):
Ofelia Margarita Macias Represented By Lionel E Giron
11:00 AM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#13.00 Status Conferece re: First Amended Complaint for:
Declaratory Relief
Injuctive Relief for Violation of Automatic Stay
Extent, Validity or Priority of Claim or Interest
Turnover of Property of the Estate
Contempt for Violation of Court Order
Violation of California Penal Code section 470 and Commercial Code section 3-420 for wrongful alteration and Conversion of a Negotiable Instrument
Negligence in the Handling and Management of Debtor's Account.
Attorney fees and costs.
Docket 32
*** VACATED *** REASON: To be heard on 6/24/20 at 1:00 p.m., with related matters - hm
Tentative Ruling:
NONE LISTED -
Party Information
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 Chase Bank NA a National Banking Pro Se
Nationstar Mortgage, aka Mr. Pro Se
11:00 AM
CONT...
David B. Rosen
Chapter 11
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
11:00 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
Adv#: 1:19-01086 Walters et al v. K&A Global Management Company, a California corpor
#14.00 Status Conference for Declaratory Relief fr. 9/18/19, 11/6/19, 2/5/20
Docket 1
Tentative Ruling:
An Order Approving a Compromise between Debtor & Plaintiffs was entered in the BK case 16-13295, ECF doc. 138 (April 6, 2020). No status report was filed for this adversary proceeding. Does the approval of the settlement resolve the issues in this adversary proceeding?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
Defendant(s):
K&A Global Management Pro Se
Plaintiff(s):
James Walters Represented By Amman A Khan
Kellogg & Andelson Accountancy, Represented By
Amman A Khan
11:00 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
#15.00 Post-Confirmation Status Conference
fr. 1/12/17, 8/16/17, 11/1/17, 10/25/17, 12/13/17, 3/21/18, 1/30/19, 2/6/19, 11/6/19, 2/5/20
Docket 16
Tentative Ruling:
Having reviewed the post-confirmation status report (ECF doc. 140), the Court finds cause to continue this status conference to July 22, 2020, at 11:00 a.m.
DEBTOR TO GIVE NOTICE OF CONTINUED STATUS CONFERENCE. NO APPEARANCE REQUIRED ON MAY 6, 2020.
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
11:00 AM
1:17-12980
Mainstream Advertising, a California Corporation
Chapter 7
Adv#: 1:20-01027 Goldman v. Bibi et al
#16.00 Status Conference re: Complaint for avoidance and recovery of avoidable transfer, 11 u.s.c. section 544, 547, 548, 550; Declaratory relief; Turnover breach of fiduciary duty; Preliminary and Permanent Injuction; Disallowance of proof of claim; Equitable subordination of claim.
Docket 1
*** VACATED *** REASON: Cont'd per Court Order to June 10, 2020, at 1:00 p.m. - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mainstream Advertising, a Represented By Kathleen P March
Defendant(s):
Danny Bibi Pro Se
Shahla Mishkanin Pro Se
Iraj Khoshnood Pro Se
Monetize.com, inc. Pro Se
Ad.com Interactive Media Inc. Pro Se
Plaintiff(s):
Amy L. Goldman Represented By John P. Reitman
Trustee(s):
Amy L Goldman (TR) Represented By
11:00 AM
CONT...
Mainstream Advertising, a California Corporation
David B Golubchik Peter J Mastan Anthony A Friedman John P. Reitman Jack A. Reitman
Chapter 7
11:00 AM
1:17-12980
Mainstream Advertising, a California Corporation
Chapter 7
Adv#: 1:20-01028 Goldman v. Berger
#17.00 Status Conference re: Complaint for Turnover Avoidance and Recover of Postpetition Transfers; and Breach of Fiduciary Duty.
Docket 1
*** VACATED *** REASON: Cont'd per Court Order to June 10, 2020, at 1:00 p.m. - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mainstream Advertising, a Represented By Kathleen P March
Defendant(s):
Michael Berger Pro Se
Plaintiff(s):
Amy L. Goldman Represented By John P. Reitman
Trustee(s):
Amy L Goldman (TR) Represented By David B Golubchik Peter J Mastan
Anthony A Friedman John P. Reitman Jack A. Reitman
11:00 AM
1:19-13099
Marshall Scott Stander
Chapter 7
Adv#: 1:20-01025 Rob Kolson Creative Productions, Inc. v. Stander
#18.00 Status Conference Re: Complaint Objecting to Discharge Pursuant to Section 727 of
the Bankruptcy Code.
Docket 1
Tentative Ruling:
Because there is a motion to dismiss scheduled for June 24, this will be continued to June 24 at 1 pm as well. There is no need to appear on May 6. Apologies for the late notice.
Party Information
Debtor(s):
Marshall Scott Stander Represented By Leslie A Cohen
Defendant(s):
Marshall Scott Stander Pro Se
Plaintiff(s):
Rob Kolson Creative Productions, Represented By
Lane M Nussbaum
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:19-13099
Marshall Scott Stander
Chapter 7
Adv#: 1:20-01011 Rob Kolson Creative Productions, Inc. v. Stander et al
#19.00 Status Conference re Complaint to set aside fraudulent transfers; Constructive Trust Equitable Lien, Reverse Alter Ego Liability and Declaratory Relief and for Damages
fr. 4/1/20
Docket 1
Tentative Ruling:
Because there is a motion to dismiss scheduled for June 24, this will be continued to June 24 at 1 pm as well. There is no need to appear on May 6. Apologies for the late notice.
Party Information
Debtor(s):
Marshall Scott Stander Represented By Leslie A Cohen
Defendant(s):
Marshall Scott Stander Pro Se
Rita L. McKenzie Pro Se
Marianne Stander Pro Se
Jackie R. Stander Pro Se
The Stander Group, Inc. Pro Se
Plaintiff(s):
Rob Kolson Creative Productions, Represented By
Lane M Nussbaum
11:00 AM
CONT...
Trustee(s):
Marshall Scott Stander
Chapter 7
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:20-10351
Robert William Brown, Sr.
Chapter 13
Adv#: 1:20-01026 Brown v. Countrywide Home Loans Inc et al
#20.00 Status Conference Re: Complaint
Docket 1
*** VACATED *** REASON: Moved to 1:00 p.m. to be heard with related matters - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Robert William Brown Sr. Pro Se
Defendant(s):
Countrywide Home Loans Inc Pro Se
Mortgage Electronic Registration Pro Se
Recontrust Company N.A. Pro Se
Bank Of America N.A. Pro Se
THE BANK OF NEW YORK Pro Se
Plaintiff(s):
Robert Brown Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#21.00 Motion for Default Judgment
Docket 47
*** VACATED *** REASON: Cont'd to 6/24/20 at 1:00 p.m. to be heard with related matters- hm
Tentative Ruling:
Party Information
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards Arnold L Graff
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Jared D Bissell
JPMORGAN CHASE BANK, N.A. Represented By
Mary H Haas
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:16-13077
David Saghian
Chapter 7
Adv#: 1:18-01039 Weil, Chapter 7 Trustee v. Saghian et al
#22.00 Pre-Trial Conference re: Complaint
fr. 6/6/18; 5/8/19, 5/15/19, 9/11/19, 12/11/19, 2/26/20
Docket 1
Tentative Ruling:
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.
Party Information
Debtor(s):
David Saghian Represented By Edmond Nassirzadeh
1:00 PM
CONT...
David Saghian
Chapter 7
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
1:00 PM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#23.00 Motion to Compel Appearance and Production of Documents re Firooz Payan at Depostion
fr. 4/1/20
Docket 112
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
Party Information
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
1:00 PM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
Alexander Usmanov Represented By 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 Jorge A Gaitan
1:00 PM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#24.00 Motion to Compel Appearance and Production of Documents re Alliance Funding Group, Inc's Custodian of Records Compel Appearance of Person Most Knowledgeable at Deposition
fr. 4/1/20
Docket 111
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
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
1:00 PM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
Natalia Usmanova Represented By Eamon Jafari
Alexander Usmanov Represented By 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 Jorge A Gaitan
1:00 PM
1:20-10351
Robert William Brown, Sr.
Chapter 13
Adv#: 1:20-01026 Brown v. Countrywide Home Loans Inc et al
#25.00 Bank of America, Countrywide, and Recontrust's Motion to Dismiss Complaint, or in the alternative Opposition to Motion for leave to Amend to File Adversarial Complaint Contemporaneously in a Chapter 13 Proceeding
Docket 3
*** VACATED *** REASON: Withdrawn - hm, Main case dismissed 4/30/20 (eg)
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Robert William Brown Sr. Pro Se
Defendant(s):
Countrywide Home Loans Inc Represented By Adam N Barasch
Mortgage Electronic Registration Pro Se
Recontrust Company N.A. Represented By Adam N Barasch
Bank Of America N.A. Represented By Adam N Barasch
THE BANK OF NEW YORK Pro Se
Plaintiff(s):
Robert Brown Pro Se
1:00 PM
CONT...
Trustee(s):
Robert William Brown, Sr.
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:20-10351
Robert William Brown, Sr.
Chapter 13
Adv#: 1:20-01026 Brown v. Countrywide Home Loans Inc et al
#26.00 Status Conference Re: Request for leave to amend to file adversarial complaint contemporaneously
in chapter 13 proceeding.
Docket 1
*** VACATED *** REASON: Main case dismissed 4/30/20 (eg) Tentative Ruling:
The bankruptcy case 20-10351 was dismissed on 4/30/20, so this adversary
proceeding will likewise be dismissed.
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Robert William Brown Sr. Pro Se
Defendant(s):
Countrywide Home Loans Inc Pro Se
Mortgage Electronic Registration Pro Se
Recontrust Company N.A. Pro Se
Bank Of America N.A. Pro Se
THE BANK OF NEW YORK Pro Se
Plaintiff(s):
Robert Brown Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
2:00 PM
1:19-12812
Morsheda Jhumur Hosain
Chapter 7
#27.00 Motion for Order: (1) Authorizing Sale of Estates Right, Title and Interest in Real Property Free and Clear of Liens;
Approving Overbid Procedure;
Approving Payment of Real Estate Brokers Commissions and Related Closing Costs; and
Finding Purchaser is a Good Faith Purchase fr. 4/1/20
Docket 38
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Morsheda Jhumur Hosain Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Anthony A Friedman
9:30 AM
1:16-12201
Andrea Beckham
Chapter 13
#0.01 Motion for relief from stay
U.S. BANK TRUST NATIONAL ASSOCIATION. fr. 4/29/20
Docket 54
*** VACATED *** REASON: APO entered 5/8/20 (doc. 59) - hm Tentative Ruling:
Party Information
Debtor(s):
Andrea Beckham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-11762
Christopher Michael Niblett
Chapter 13
#0.02 Motion for relief from stay
BROKET SOLUTIONS, INC., DBA NEW AMERICAN FUNDING
fr. 4/29/20
Docket 55
Tentative Ruling:
This hearing was continued from 4/29/20 so that Debtor could tender $6,000 and so the parties could negotiate an APO for any remainder. Nothing has been filed since the last hearing. What is the status of this Motion?
TELEPHONIC APPEARANCE REQURED
Cont'd fr. 4/29/20
Petition Date: 07/15/2019;
Ch: 13, confirmed on 10/18/2019 Service: Proper. Opposition filed.
Property: 13588 Wingo St., Arleta, CA 91331 Property Value: $550,000 (per debtor’s schedules) Amount Owed: $ 350,184.22
Equity Cushion: 36.3% Equity: $199,815.78
Post-Petition Delinquency: $8,709.23 (4 payments of $1,945.97 + Attorneys’ Fees of $1,231.00 less suspense balance of $305.65)
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); 6 (co-debtor stay is terminated); 7 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment of $2,021.78 was received on or about 01/09/20.
9:30 AM
CONT...
Christopher Michael Niblett
Chapter 13
Debtor asserts that he will pay a large lump sum to Creditor at the end of April and is willing to enter into an APO for the remainder. Is Movant amenable to an APO?
Party Information
Debtor(s):
Christopher Michael Niblett Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:12-10231
Owner Management Service, LLC and Trustee Corps
Chapter 7
#1.00 Motion for relief from stay WELLS FARGO BANK, N.A.
fr. 9/18/19, 11/20/19, 3/4/20
Docket 2284
Tentative Ruling:
This hearing was continued has been repeatedly to allow the trustee to market the McKeever Property. On May 7, 2020, Trustee filed a status report informing the Court that he and a proposed buyer are presently in escrow on a proposed sale.
Trustee requests a 60-day continuance of this hearing to allow Trustee to finalize the sale but that Movant's counsel would not object to a continuance but was not authorized to sign a stipulation to continue.
Having considered the history of this matter and finding cause, this hearing is continued to July 15, 2020, at 9:30 a.m.
NO APPEARANCE REQUIRED ON 5/13/20
Cont’d. fr. 9-18-19; 11/20/19
Petition Date: 1/9/12
Converted to Chapter 7: 3/14/12 Service: Proper
Property: 16442 McKeever St., Granada Hills, CA 91344 Property Value: $500,000 (per Movant's appraisal) Amount Owed: $207,994 (as of 8/14/19)
Equity Cushion: 58% Equity: $292,006
This hearing was continued per stipulation from Sept. 18, 2019. On Nov. 15, 2019, Trustee filed an opposition, arguing that Movant has a sufficient equity cushion to protect its claim and requests a 90 day continuance, as the Property is being administered by Trustee.
Having reviewed the Motion and the Opposition, the Court is inclined to continue this matter for 90 days to allow Trustee to market the Property.
10:00 AM
CONT...
Debtor(s):
Owner Management Service, LLC and Trustee Corps
Party Information
Chapter 7
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 Jorge A Gaitan
10:00 AM
1:17-11159
Levia Blane Arbuckle
Chapter 13
#2.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST
Docket 132
Tentative Ruling:
Petition Date: 5/17/17
Ch. 13 plan confirmed: 12/18/17 Service: Proper. Opposition filed.
Property: 20662 Clark St., Woodland Hills, CA 91367 Property Value: $ (per debtor’s schedules)
Amount Owed: $469,108 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $9,214 (4 payments of $2,268; post-petition advances of
$1,400; less suspense balance of $1.219)
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). Movant alleges the last payment received was on or about 1/15/20.
Debtor opposes the Motion, arguing that Movant's accounting is incorrect and that she has made all required post-petition payments.
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Levia Blane Arbuckle Represented By Kevin T Simon
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry
10:00 AM
CONT...
Trustee(s):
Levia Blane Arbuckle
Keith Labell Eric P Enciso
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12596
Lynne Suzanne Boyarsky
Chapter 13
#3.00 Motion for relief from stay CITIBANK, N.A.
fr. 9/11/19, 10/16/19, 12/4/19, 1/15/20,
4/1/20
Docket 64
Tentative Ruling:
This hearing has been continued several times, the last by stipulation, so that Movant could review Debtor's payment history & draft an APO. Nothing has been filed since the last stipulation. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
Prior Tentative Below:
Petition Date: 9/27/17
Chapter 13 plan confirmed: 2/2/18 Service: Proper. Opposition filed.
Property: 3750 Sunswept Dr., Studio City, CA 91604 Property Value: $600,000 (per debtor’s schedules) Amount Owed: $197,124 (2nd Deed of Trust)
Equity Cushion: 59% Equity: $402,876.00
Post-Petition Delinquency: $25,145 (approx. 17 payments of between
$1,404.47 and $1,536.74)
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); 7 (waiver of the 4001(a)(3) stay); 14 (if RFS not granted, order APO).
Movant alleges that the last payment it received was $591.37 on or about May 1, 2019.
10:00 AM
CONT...
Lynne Suzanne Boyarsky
Chapter 13
Debtor opposed the motion and asserts that she will be current by the hearing date or will cure the arrears over 9 months. Debtor will agree to an APO. Has Debtor tendered payments? Have the parties discussed whether this can be resolved via APO?
Movant filed Notice of Mortgage Payment Change on 10/1/2019 based on agreement with Debtor decreasing Debtor’s mortgage payment from
$1,530.38 to $1,513.84.
Party Information
Debtor(s):
Lynne Suzanne Boyarsky Represented By Matthew D Resnik
Movant(s):
Citibank, N.A. Represented By Robert P Zahradka
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12945
Geysell Juniet Espinoza
Chapter 13
#4.00 Motion for relief from stay
JPMORGAN CHASE BANK NATIONAL ASSOC.
fr. 4/1/20
Docket 34
*** VACATED *** REASON: Withdrawal filed by atty for JPMorgan Chas Bank - Doc. #43. lf
Tentative Ruling:
Party Information
Debtor(s):
Geysell Juniet Espinoza Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12724
Irene J Goytia
Chapter 13
#5.00 Motion for relief from stay HSBC BANK USA
Docket 31
Tentative Ruling:
Petition Date: 10/29/19
Ch. 13 dismissed: 11/26/19
Service: Proper; original borrower served. No opposition filed. Property: 22022 Violeta Ave., Hawaiian Gardens, CA 90716 Property Value: unk.; not provided
Amount Owed: unk.
Equity Cushion: unk.
Equity: unk.
Post-Petition Delinquency:
Movant alleges cause for relief under 362(d)(4) because of multiple unauthorized transfers of the subject property. Movant lists at least twenty bankruptcy filings affecting the subject property. Movant alleges cause for annulment because the subject property was sold at a non-judicial foreclosure sale on or about 11/1/19, without notice or knowledge of this Debtor's alleged interest.
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); 6 (relief from 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).
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.
Party Information
Debtor(s):
Irene J Goytia Pro Se
10:00 AM
CONT...
Movant(s):
Irene J Goytia
Chapter 13
HSBC Bank USA, National Represented By Robert P Zahradka
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-13020
Eugenia Lugo Martinez
Chapter 13
#6.00 Motion for relief from stay NATIONSTAR MORTGAGE, LLC
Docket 35
Tentative Ruling:
Petition Date: 12/4/2019 Ch. 13
Service: Proper; original borrower served. No opposition filed. Property: 923 & 923 1/2 E. 118th St., Los Angeles, CA 90059 Property Value: unk.; not provided
Amount Owed: unk.
Equity Cushion: unk.
Equity: unk.
Post-Petition Delinquency:
Movant alleges cause for relief under 362(d)(4) because of unauthorized transfers of the subject property, and that this property was "dumped" into this bankruptcy so that the stay would delay, hinder, and defraud creditors. Movant also alleges cause for annulment because the subject property was sold at a non-judicial foreclosure sale on or about 1/7/2020, without notice or knowledge of this Debtor's alleged interest.
Movant acknowledges that this Debtor did not claim an interest in this Property. Debtor's chapter 13 case is progressing, and it does not appear that this Debtor is involved in any scheme to interfere with Creditor's interest.
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); and 9 (relief under 362(d)(4), with no finding of bad faith as to this 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.
Party Information
10:00 AM
CONT...
Debtor(s):
Eugenia Lugo Martinez
Chapter 13
Eugenia Lugo Martinez Represented By Michael Okayo
Movant(s):
Nationstar Mortgage, LLC Represented By Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10037
Andrew Blas Lorenzo
Chapter 13
#7.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO.
Docket 35
Tentative Ruling:
Petition Date: 1/7/2020
Ch. 13 plan confirmed: 4/14/2020 Service: Proper. No opposition filed.
Property: 5319 Goodland Ave., Valley Village, CA 91607 Property Value: $1,076,378 (per debtor’s motion to continue stay) Amount Owed: $620,451
Equity Cushion: 42.4% Equity: $455,927
Post-Petition Delinquency: $2,304.90 (two payments of $2,244.84; less suspense payment of $2,184.78)
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).
Movant alleges that the last payment was received on or about 3/11/2020. Debtor's chapter 13 plan was just confirmed on 4/14/2020 and the delinquency here is so small when compared to the equity cushion. Have the parties had an opportunity to discuss an APO to cure?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Andrew Blas Lorenzo Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
CONT...
Andrew Blas Lorenzo
Chapter 13
10:00 AM
1:20-10626
Jose Barrios
Chapter 13
#8.00 Motion for relief from stay SIERRA CREDIT CORP.
Docket 20
*** VACATED *** REASON: Resolved per APO (doc. 27) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jose Barrios Represented By
Jaime A Cuevas Jr.
Movant(s):
Sierra Credit Corporation Represented By Adam N Barasch
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10672
Saiful A. Ansary
Chapter 7
#9.00 Motion for relief from stay TD AUTO FINANCE LLC
Docket 10
Tentative Ruling:
Petition Date: 3/20/2002 Ch: 7
Service: Proper. No opposition filed. Property: 2015 Toyota Corolla
Property Value: $10,000 (per Movant's evidence, NADA Guide) Amount Owed: $9,147.36
Equity Cushion: 8.5% Equity: $852
Delinquency: $527.94 (2 payments of $257.53)
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)
stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Saiful A. Ansary Represented By Lauren Rode
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:19-10925
Roben Saeidian
Chapter 7
#10.00 Motion RE: Objection to Claim Number 7 by Claimant Orah Pourati
fr. 2/5/20; 4/8/20
Docket 39
Tentative Ruling:
Debtor objects to Claim No. 7 filed by Creditor Orah Purati in the amount of $63,723.53. On 4.27.2020, the Creditor withdrew the Claim rendering this Motion moot [#48]. As such, this Motion is denied without prejudice.
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Roben Saeidian Represented By
Hamid Soleimanian
Trustee(s):
David Seror (TR) Represented By Elissa Miller Sulmeyer Kupetz
10:00 AM
1:19-10925
Roben Saeidian
Chapter 7
Adv#: 1:19-01090 POURATI v. Saeidian
#11.00 Status Conferencr Re: Conplaint for Non-Dischargeability and Objection to Discharge for:
- Debts Incurred through Fals Pretenses, False Representation or Actual Frad under 11 USC Sec. 523(a)(2)(A);
- Debts incurred through Conversion under 11 USC Sec. 523(a)(4);
- Debts Incurred through Willful and Malicious Injury to Property under 11 USC sec. 523(a)(6);
- Objection to Discharge under 11 USC Sec. 727(a)(5)
- Objection to Discharge under 11 USC Sec. 727(a)(s); and
- Objection to Discharge under 11 USC Sec. 727(a)(3).
fr. 11/6/19, 2/5/20; 4/8/20
Docket 1
Tentative Ruling:
This will be vacated in light of the parties' settlement. NO APPEARANCE REQUIRED. Plaintiff should submit order dismissing case.
Party Information
Debtor(s):
Roben Saeidian Represented By
Hamid Soleimanian
Defendant(s):
Roben Saeidian Pro Se
10:00 AM
CONT...
Roben Saeidian
Chapter 7
Plaintiff(s):
ORAH POURATI Represented By David Pourati Leonardo Drubach
Trustee(s):
David Seror (TR) Represented By Elissa Miller
10:00 AM
1:18-11965
Ian Jacoby
Chapter 7
Adv#: 1:18-01117 Williams v. Jacoby
#12.00 Motion Of Debtor/Defendant for Order Staying Adversary Action Pending Outcome of Garrett Williams' Appeals of (1) Order Confirming iE Inc's Chapter 11 Plan of Reorganization; and (2) Order Denying Garrett Williams Motion for Reconsideration of Order Granting iE's Motion Objectiong to Claim of Garrett Williams [Claim No. 23]
Docket 26
*** VACATED *** REASON: Moved to 1:00 p.m. per order #30. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ian Jacoby Represented By
Andrew Goodman Vincent V Frounjian
Defendant(s):
Ian Jacoby Represented By
Andrew Goodman
Plaintiff(s):
Garrett Williams Represented By Lazaro E Fernandez
Trustee(s):
Amy L Goldman (TR) Represented By Carmela Pagay Juliet Y Oh
10:00 AM
1:18-11821
Sonia D. Roman
Chapter 7
Adv#: 1:18-01110 Roman v. US Bank ELT Brazos ELA Inc. et al
#13.00 Pre-trial conference re complaint for: dischargeability of student loan
fr. 1/9/19, 8/21/19; 1/15/20; 3/11/20
Docket 1
*** VACATED *** REASON: Stip. cont. to 7/15/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Sonia D. Roman Represented By Christine A Kingston
Defendant(s):
US Bank ELT Brazos ELA Inc. Pro Se
Pennsylvania Higher Education Pro Se
Plaintiff(s):
Sonia D. Roman Represented By Christine A Kingston
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
1:14-11147
Behnam Amir-Behboubi
Chapter 7
Adv#: 1:20-01029 Amir-Behboudi v. Internal Revenue Service
#14.00 Status Conference Re: Complaint to Redetermine Tax Liability and to Determine Dischargeability
Docket 1
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
The parties should advise if any objection to a discovery cutoff of August 28, 2020 and a continued pretrial of October 7 at 11 am.
Party Information
Debtor(s):
Behnam Amir-Behboubi Represented By Stella A Havkin
Defendant(s):
Internal Revenue Service Represented By Jeremy Burkhardt
Plaintiff(s):
Behnam Amir-Behboudi Represented By John D Faucher
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
Adv#: 1:19-01123 Saucedo v. San Vicente et al
#15.00 Status Conference re: Complaint to determine dischargeability to debt pursuant to 11 U.S.C. sections 523 (a)(4) and (a)(6), and objection to discharge pursuant to sections 723 (a)(2)(A) and 727(a)(3)
fr. 12/18/19
Docket 1
Tentative Ruling:
In light of status report, this will be continued to October 7 at 11 am. Parties ar eto file a status report 2 weeks before advising of status with state court proceedings.
NO APPEARANCE REQUIRED ON MAY 13.
Party Information
Debtor(s):
Maria Estela San Vicente Represented By Michael R Totaro
Defendant(s):
Maria Estela San Vicente Pro Se
Sergio San Vicente Pro Se
Plaintiff(s):
Maria Saucedo Represented By Jesse J Thaler
11:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
Adv#: 1:19-01130 Saucedo v. San Vicente et al
#16.00 Status Conference re: Complaint to determine dischargeability of debt
fr. 1/8/20
Docket 1
Tentative Ruling:
In light of status report, this will be continued to October 7 at 11 am. Parties are to file a status report 2 weeks before advising of status with state court proceedings.
NO APPEARANCE REQUIRED ON MAY 13.
Party Information
Debtor(s):
Maria Estela San Vicente Represented By Michael R Totaro
Defendant(s):
Maria Estela San Vicente Pro Se
Sergio San Vicente Pro Se
Plaintiff(s):
Rosa Saucedo Represented By Jesse J Thaler
11:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#17.00 Status Conference RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
(1) Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19,3/11/20
Docket 21
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
11:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#18.00 Case Management Conference fr. 3/11/20
Docket 0
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
1:00 PM
1:17-10527
Sharique Ahmed Shaikh
Chapter 7
Adv#: 1:19-01016 Weil, Chapter 7 Trustee v. Shaikh
#19.00 Status Conference Re: Complaint to Avoid and Recover Fraudulent Transfers and/or Preferential Transfers
fr. 5/15/19; 5/22/19, 12/18/19, 3/11/20
Docket 4
Tentative Ruling:
On April 28, 2020, this Court entered an Order Granting Motion to Approve Compromise ("Settlement Order") [Bk. Doc. #65], pursuant to which the Court approved a settlement reached by Trustee, Defendant Ishraque Shaikh ("Ishraque"), and Debtor Sharique Ahmed Shaikh (the "Debtor"). The Trustee received the settlement payment in full, and all other conditions of settlement have been satisfied by all parties. An order was then entered dismissing this adversary with prejudice [#25].
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Sharique Ahmed Shaikh Represented By Kenumi T Maatafale
Defendant(s):
Ishraque Shaikh Pro Se
Plaintiff(s):
Diane C Weil, Chapter 7 Trustee Represented By
Jessica L Bagdanov
Trustee(s):
Diane C Weil (TR) Represented By David Seror
Jessica L Bagdanov
1:00 PM
1:17-12980
Mainstream Advertising, a California Corporation
Chapter 7
Adv#: 1:20-01028 Goldman v. Berger
#20.00 Defendant Michael Berger's Motion to Dismiss Plaintiff Amy L. Goldman's, In Her Capacity as the Chapter 7 Trustee for the Bankruptcy Estate of Mainstream Advertising, Inc., Complaint For Failure to State A Claim Pursuant to Fed.R. Civ.P. Rule 12(b)(6)
Docket 10
*** VACATED *** REASON: Cont'd to 6/10/20 per order #17. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mainstream Advertising, a Represented By Kathleen P March
Defendant(s):
Michael Berger Represented By Michael Jay Berger
Plaintiff(s):
Amy L. Goldman Represented By John P. Reitman
Trustee(s):
Amy L Goldman (TR) Represented By David B Golubchik Peter J Mastan
Anthony A Friedman John P. Reitman Jack A. Reitman
1:00 PM
1:18-11965
Ian Jacoby
Chapter 7
Adv#: 1:18-01117 Williams v. Jacoby
#21.00 Motion Of Debtor/Defendant for Order Staying Adversary Action Pending Outcome of Garrett Williams' Appeals of (1) Order Confirming iE Inc's Chapter 11 Plan of Reorganization; and (2) Order Denying Garrett Williams Motion for Reconsideration of Order Granting iE's Motion Objectiong to Claim of Garrett Williams [Claim No. 23]
Docket 26
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
There are grounds to stay this in part until the appeals are decided. The status of the action against the corporation will possibly influence how things proceed here, so we may as well wait. No prejudice is shown by waiting. The one exception is document discovery. It is likely to be the same documents from either iE or the individual debtor, and having that discovery will assist things to move along quickly once the appeals are decided. The parties should respond to all document requests, but hold off on depositions until next status conference The pretrial conference scheduled for 9/2/20 will instead be a status conference and document discovery should be complete. We will discuss the status of the appeals and the coporate case and whether deposition deicovery should proceed at that time.
Party Information
Debtor(s):
Ian Jacoby Represented By
Andrew Goodman Vincent V Frounjian
Defendant(s):
Ian Jacoby Represented By
Andrew Goodman
1:00 PM
CONT...
Ian Jacoby
Chapter 7
Plaintiff(s):
Garrett Williams Represented By Lazaro E Fernandez
Trustee(s):
Amy L Goldman (TR) Represented By Carmela Pagay Juliet Y Oh
1:00 PM
1:18-12917
Sohail Mobasseri
Chapter 7
Adv#: 1:19-01049 LendingHome Funding Corp. v. Mobasseri
#22.00 Motion for Reconsideration of Plaintiff's Motion for Summary Judgment
Docket 35
*** VACATED *** REASON: Cont'd to 6/3/20 @ 1:00 a.m. per order #42. lf
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Sohail Mobasseri Represented By Dana M Douglas
Defendant(s):
Sohail Mobasseri Represented By Dana M Douglas
M. Jonathan Hayes
Plaintiff(s):
LendingHome Funding Corp. Represented By Adam Forest
Kerry A. Moynihan
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:30 PM
1:10-19870
Melissa Mosich Miller
Chapter 11
#23.00 Motion by JP Morgan to convert case from chapter 11 to 7 or in the alternative to dismiss
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; 12/12/18, 2/27/19; 5/22/19,
7/31/19, 10/23/19, 1/29/20; 4/8/20
Docket 210
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L James Lindsey L Smith
Movant(s):
JPMorgan Chase Bank, National Represented By
Christopher M McDermott
1:30 PM
1:10-19870
Melissa Mosich Miller
Chapter 11
#24.00 Status and case management conference
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, 2/12/18, 2/27/19; 5/22/19,
7/31/19, 10/23/19, 1/29/20; 4/8/20
Docket 1
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L Rodriguez
Thursday, May 14, 2020
Hearing Room
302
9:30 AM
1:12-10231
Owner Management Service, LLC and Trustee Corps
Chapter 7
#0.00 Evidentiary Hrg. re: Motion to Disallow Claims Objection to Proof of Claim No. 38
fr. 12/4/19, 1/8/20
Docket 2317
*** VACATED *** REASON: Stip. order entered cont. to 7/16/20 @9:30am (eg)
Party Information
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 Jorge A Gaitan
Friday, May 15, 2020
Hearing Room
302
10:00 AM
1:18-12698
Green Nation Direct, Corporation
Chapter 7
#1.00 Motion for (1) Approval of Substantive Consolidation of N.R.G Investment Group with Debtor's Estate; and (2) Authority to Pursue Avoidance Actions.
fr. 4/29/20, 5/5/20
Docket 249
Debtor(s):
*** VACATED *** REASON: Cont'd to 6/25/20 at 10:00 per ord. #264. lf Party Information
Green Nation Direct, Corporation Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Jeffrey S Kwong
Edward M Wolkowitz
Monday, May 18, 2020
Hearing Room
302
9:30 AM
1:19-11422
Joe Kearney
Chapter 13
#0.00 Trial - Day 2
Motion to Disallow Claims OF PATRICIA LEUPOLD (CLAIM # 8-1) Filed by Debtor Joe Kearney (Aronson, Robert)
Docket 37
Debtor(s):
*** VACATED *** REASON: Per order #82. lf
Party Information
Joe Kearney Represented By
Robert M Aronson
Movant(s):
Joe Kearney Represented By
Robert M Aronson Robert M Aronson Robert M Aronson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
8:30 AM
1:20-10003
Bradley M Ditzel and Kelly L Ditzel
Chapter 7
#0.01 Pro se Reaffirmation Agreement
with Ford Motor Credit Company LLC (2017 Ford Focus)
Docket 15
*** VACATED *** REASON: Moved to 6/16/20. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Bradley M Ditzel Pro Se
Joint Debtor(s):
Kelly L Ditzel Pro Se
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
1:14-13455
Nicolasa Martinez
Chapter 13
#56.00 Trustee Motion To Dismiss Case Due to Expiration of the Plan (AMENDED)
fr. 4/28/20
Docket 87
*** VACATED *** REASON: Ntc. of w/drawal filed 5/6/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Nicolasa Martinez Represented By James B Smith
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-13751
Mike Ginzburg and Natasha Ginzburg
Chapter 13
#57.00 Trustee's Motion to Dismiss Case (Plan Expiration) fr. 11/19/19; 1/28/20, 4/28/20
Docket 74
*** VACATED *** REASON: Ntc. of w/drawal filed 5/6/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Mike Ginzburg Represented By Joshua L Sternberg
Joint Debtor(s):
Natasha Ginzburg Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-14576
Anita Marie Dominguez
Chapter 13
#58.00 Opposition to The Bank of New York's Response to Ntoce of Final Cure Payment
Docket 87
*** VACATED *** REASON: Withdrawal filed Doc. #94.
Tentative Ruling:
On February 13, 2020, the Trustee filed a Notice of Final Cure Mortgage Payment, which indicated that the $45,982.53 amount required to cure the default in the claim has been paid in full.
On March 5, 2020, the Bank of New York Mellon (BoNYM) filed a Response to Notice of Final Cure Payment. BoNYM agrees that the Debtor paid in full the amount required to cure the prepetition default on its claim, but states that the Debtor is not current in all postpetition payments in the amount of $9,900.34.
Twenty days later, on March 25, 2020, the Debtor attorney, Raffy M. Boulgourjian, filed an Opposition to the BoNYM’s Response.
The Debtor’s attorney then withdrew his Opposition on May 11, 2020. TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Anita Marie Dominguez Represented By
Raffy M Boulgourjian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15605
Rolando Chavez and Irma Chavez
Chapter 13
#59.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr/ 8/20/19, 10/22/19,11/19/19, 2/25/20, 4/28/20
Docket 34
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #40. lf Tentative Ruling:
Party Information
Debtor(s):
Rolando Chavez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Irma Chavez Represented By
Rebecca Tomilowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10822
Tracey Lynne Baumert
Chapter 13
#60.00 Trustee's Motion To Dismiss Case for Failure to Submit All Tax Refunds
fr. 3/31/20
Docket 125
Tentative Ruling:
fr. 3/31/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Tracey Lynne Baumert Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10822
Tracey Lynne Baumert
Chapter 13
#61.00 Trustee's Motion To Dismiss Case for Failure to Submit All Tax Refunds fr. 3/31/20
Docket 125
*** VACATED *** REASON: Duplicate to 60.
Tentative Ruling:
Party Information
Debtor(s):
Tracey Lynne Baumert Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12928
Theodore Douglas BECK and Susan Marjorie BECK
Chapter 13
#62.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 75
Tentative Ruling:
Debtors oppose asserting that they will be current before or on the hearing date. Debtors fell behind because of financial struggles, which was compounded by COVID-19 situation.
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Theodore Douglas BECK Represented By
R Grace Rodriguez
Joint Debtor(s):
Susan Marjorie BECK Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-13123
Buenaventura Marquez
Chapter 13
#63.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19; 1/28/20; 3/31/20
Docket 26
*** VACATED *** REASON: Cont. to 8/25/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Buenaventura Marquez Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-13123
Buenaventura Marquez
Chapter 13
#64.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19; 1/28/20; 3/31/20
Docket 26
*** VACATED *** REASON: Duplicate to 63.
Tentative Ruling:
Party Information
Debtor(s):
Buenaventura Marquez Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10194
Heliodoro Navarro
Chapter 13
#65.00 Motion RE: Objection to Claim Number 7 by Claimant Internal Revenue Service
Docket 98
Tentative Ruling:
Heliodoro Navarro (the "Debtor") filed a bankruptcy petition on January 21, 2016. On January 19, 2018, the Department of the Treasury - Internal Revenue Service (the "IRS") filed a proof of claim, which is unsecured in the amount of $16,269.77 (the "Claim") for taxes. On April 24, 2020, the Debtor filed an objection to the IRS Claim (the "Objection to Claim").
Under 11 U.S.C. § 502(a), a claim or interest, proof of which is filed under 11 U.S.C. § 501, is deemed allowed, unless a party in interest objects. Additionally, a properly executed and filed proof of claim "shall constitute prima facie evidence of the validity and amount of the claim." 11 U.S.C. § 3001(f). A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶3001.05[2].
When a party in interest objects to a creditor's claim, the bankruptcy court shall determine the amount of such claim as of the date of the filing of the petition. 11 U.S.C. § 502(b). Post-petition conduct cannot justify disallowing a proof of claim. In re Flanagan, 503 F.3d 171, 178-79 (2d Cir. 2007). An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c).
To defeat a claim, a debtor must present sufficient evidence to "show facts tending to defeat
11:00 AM
CONT...
Heliodoro Navarro
Chapter 13
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. "The objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992).
"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.
Attached to the Claim is Form 410, which indicates a $15,137.58 unsecured priority claim and a $1,132.19 unsecured general claim. Form 410 itemizes the taxpayer ID number, kind of tax, tax period, date of tax assessment, tax due, and interest. The Claim is legally sufficient and prima facie valid. The burden now shifts to Debtor to present evidence sufficient to defeat the Claim.
The Claim indicates an unsecured priority portion in the amount of $15,137.58. The Debtor argues that this amount is not valid because the IRS did not file the Claim in conformity with Official Bankruptcy Form 10 in violation of Rule 3001(c). Specifically, the Claim allegedly does not include a statement itemizing the total amount of the debt, including principal and other charges. In re Vann, 321 B.R. 734 (Bankr. W.D. Wash. 2005).
The Claim indicates the tax period, tax assessment date, amount of tax due, and interest charged. Contrary to the Debtor’s assertions, the Claim provides an itemization of the basis for the taxes assessed.
Second, most courts adopt the view that § 502 provides the exclusive grounds to disallow a claim. In re Dove Nation, 318 B.R. 147, 150 (8th Cir. BAP 2004)(followed by Heath v. Am. Express Travel Related Servs. Co. (In re Heath), 331 B.R. 424, 435 (9th Cir. BAP 2005)). Under the majority rule, a party seeking to disallow a claim must allege a substantive basis under § 502(b). Section 502(b) enumerates nine grounds on which a proof of claim may be disallowed. Sears v. Sears (In re Sears), 863 F.3d 973, 979 (8th Cir. 2017). In the Ninth and Eight Circuits, a failure to file documents is not among the bases for disallowing a claim under § 502(b). (In re Sears), 863 F.3d at 979; In re Heath, 331 B.R. at 435 ("Noncompliance with Rule 3001(c) is not one of the statutory grounds for disallowance"). The Debtor’s arguments that the Claim does not conform with Bankruptcy Form 10 and violates Rule
11:00 AM
CONT...
Heliodoro Navarro
Chapter 13
3001(c) is not enough to invalidate the Claim.
The Debtor next argues that the Creditor’s evidence is inconsistent with 11 U.S.C. § 507(a) (8). The Debtor appears to advance the argument that the taxes assessed do not meet the definition of a priority income (non-excise) tax under § 507(a)(8).
Section 507 lists the claims that have priority. Section 507(a)(8)(A)(i) indicates that allowed unsecured claims of governmental units hold priority, but only to the extent such claims are for "a tax on or measured by income or gross receipts for a taxable year ending on or before the date of the filing of the petition – for which a return, if required, is last due, including extensions, after three years before the date of the filing of the petition…" 11 U.S.C. § 507(a)(8)(A)(i).
The Claim indicates that the tax assessed for 2011 is for "WT-FICA" and for 2012, 2013, 2014, and 2015 are for "Income." In addition, the Debtor filed his petition on January 21, 2016 and these taxes were due before the petition date. The Claim therefore does not violate this portion of § 507(a)(8)(A)(i).
The Debtor then quotes a hanging paragraph under § 507(a)(8) but does not provide any analysis. Section 507(a)(8) provides that:
"An otherwise applicable time period specified in this paragraph shall be suspended for any period during which a governmental unit is prohibited under applicable nonbankruptcy law from collecting a tax as a result of a request by the debtor for a hearing and an appeal of any collection action taken or proposed against the debtor, plus 90 days; plus any time during which the stay of proceedings was in effect in a prior case under this title or during which collection was precluded by the existence of 1 or more confirmed plans under this title, plus 90 days."
Debtor does not explain how this section of the Bankruptcy Code would defeat the Claim.
The Debtor contends that the IRS erroneously classified $12,826.23 of the $15,137.58 amount as an unsecured priority claim because the Debtor allegedly owes no money to the IRS for tax years 2011, 2013, 2014, and 2015. Attached to the Objection to Claim are a series of "Account Transcripts." [Objection to Claim, p. 18-22]. The "Account Balance" for years 2011, 2014, and 2015 all indicate a zero balance and "-2,756.20" for year 2013.
11:00 AM
CONT...
Heliodoro Navarro
Chapter 13
This evidence is sufficient to defeat the claimed amount for tax years 2011, 2013, 2014, and 2015. The burden now reverts to the IRS 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)).
As to tax year 2012, the Debtor has not provided sufficient evidence to defeat this portion of the Claim.
The Debtor requests this court to "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title" under 11 U.S.C. § 105(a). The Debtor has allegedly overpaid the IRS $6,673.78 under the Chapter 13 plan. [Objection to Claim, Ex. 3]. The IRS also levied $2,000 on the Debtor’s bank account around year 2014 and 2015 and garnished $11,413 in Social Security benefits from year 2018 to the present. The Debtor has allegedly paid the IRS a sum of $17,775 towards his alleged income tax liability.
It should be noted that the notice was sent by mail, so the IRS may not have received the mail because of the COVID-19 pandemic. Due process requires an opportunity for a hearing appropriate to the nature of the case. Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306 (1950). Notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Id. Given the pandemic situation where buildings are being evacuated and employees are working from home, mail notice may not be sufficient notice.
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Heliodoro Navarro Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10348
Jim K. Nikolopoulos and Ayarpi Nikolopoulos
Chapter 13
#66.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment Pursuant to 11 USC Sec. 1329(a) and the Percentage to be
Paid to Unsecured Creditors or, in the Alternative, Dismissing the Chapter 13 Petition Due to Debtrors' Failure to Make Debtors' Best Efforts to Repay Creditors Pursuant to 11 USC Sec. 1307(c)(6)
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20
Docket 55
Tentative Ruling:
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20
Nothing new filed since the last hearing. TELEPHONIC APPEARANCE REQUIRED Unless Trustee stipulates to continue.
Party Information
Debtor(s):
Jim K. Nikolopoulos Represented By Scott D Olsen
Joint Debtor(s):
Ayarpi Nikolopoulos Represented By Scott D Olsen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12201
Andrea Beckham
Chapter 13
#67.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/22/19, 12/17/19; 1/28/20; 3/30/20
Docket 42
Tentative Ruling:
fr. 10/22/19, 12/17/19; 1/28/20; 3/30/20
Since the last hearing, the Debtor and U.S. Bank have entered into an APO. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Andrea Beckham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12613
Susan Griffin
Chapter 13
#68.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 11/19/19; 1/28/20, 2/25/20; 3/31/20
Docket 50
Tentative Ruling:
fr. 11/19/19; 1/28/20, 2/25/20; 3/31/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Susan Griffin Represented By
Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12648
Fernando Benitez
Chapter 13
#69.00 Motion RE: Objection to Claim Number 4 by Claimant North American Savings Bank, F.S.B..
fr. 4/28/20
Docket 37
*** VACATED *** REASON: Cont'd to 6/23/20 at 11:00 a.m. per order #47. lf
Tentative Ruling:
Party Information
Debtor(s):
Fernando Benitez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11159
Levia Blane Arbuckle
Chapter 13
#70.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20; 3/31/20
Docket 110
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #147. lf Tentative Ruling:
fr. 1/28/20; 3/31/20
An order granting Debtor’s motion to modify has been entered. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Levia Blane Arbuckle Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11387
Haroutiun Papazian
Chapter 13
#71.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 1/28/20; 3/31/20
Docket 50
Tentative Ruling:
fr. 1/28/20; 3/31/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Haroutiun Papazian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11995
Priscilla Jeanette Bueno
Chapter 13
#72.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20
Docket 58
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #63. lf Tentative Ruling:
fr. 3/31/20
Debtor opposes stating that she will file a motion to modify or tender fund to cure the delinquency. Debtor filed a declaration supporting her opposition. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Priscilla Jeanette Bueno Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11995
Priscilla Jeanette Bueno
Chapter 13
#73.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20,4/28/20
Docket 55
*** VACATED *** REASON: Cont'd to 6/23/20 at 11:00 Tentative Ruling:
fr. 12/17/19, 2/25/20,4/28/20
Debtor opposes and states that Debtor provided the Trustee with 2018 and 2017 income tax returns by uploading them on the Trustee’s Website on December 2, 2019. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Priscilla Jeanette Bueno Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12329
Barbara Jean Woodard-Cox
Chapter 13
#74.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 1/28/20; 3/31/20
Docket 70
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #78. lf Tentative Ruling:
Party Information
Debtor(s):
Barbara Jean Woodard-Cox Represented By Barry E Borowitz Michael E Clark
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10143
Mayra Hernandez
Chapter 13
#75.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. , 4/28/20
Docket 56
Tentative Ruling:
fr. 4/28/20
The Trustee and Debtor have entered into a stipulation to suspend 3 plan payments and to extend the plan by 3 months because Debtor has experienced a decrease in income due to COVID-19. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Mayra Hernandez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#76.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20
Docket 45
*** VACATED *** REASON: Cont. to 6/23/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Marvin Eleid Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10551
Joaquin Martinez
Chapter 13
#77.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/24/19, 11/19/19, 12/17/19; 1/28/20; 3/31/20
Docket 68
Tentative Ruling:
fr. 9/24/19, 11/19/19, 12/17/19; 1/28/20; 3/31/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Joaquin Martinez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10671
Yuriy Sharonov
Chapter 13
#78.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20; 3/31/20
Docket 37
Tentative Ruling:
fr. 12/17/19; 1/28/20; 3/31/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Yuriy Sharonov Represented By Vahe Khojayan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10891
Hamid Farkhondeh and Mary Dadyan
Chapter 13
#79.00 Application for Compensation following dismissal for Stella A Havkin, Debtor's Attorney
Period: 6/29/2018 to 2/25/2020,
Fee: $19507.50, Expenses: $489.94.
Docket 122
Tentative Ruling:
Period: 6/29/2018 to 2/25/2020, Fee: $19507.50, Expenses: $489.94
Laaly objection is as to value of services and priority over other creditors. Services were necessary at the time they were rendered; they were reasonable, given the extent of the objections counsel was required to respond to. As an aside, the debt limit issue could have been raised at the outset of the case, saving a lot of fees and time. And this was not the attorney responsible for filing the case originally. The Code allows for fees even when a case is dismissed. The debtor's attorney fees are given administrative priority over unsecured creditors. These objections are not well taken. Counsel sought to work out a resolution, and would have had there not been a scorched earth approach to this litigation by creditor's counsel and her clients. Opposition overruled, trustee may pay fees to debtor's counsel.
Party Information
Debtor(s):
Hamid Farkhondeh Represented By Stella A Havkin Stella Rafiei
Joint Debtor(s):
Mary Dadyan Represented By Stella A Havkin Stella Rafiei
11:00 AM
CONT...
Trustee(s):
Hamid Farkhondeh and Mary Dadyan
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12253
Sonia Figueroa
Chapter 13
#80.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 95
Tentative Ruling:
Debtor opposes stating that she will file a motion to modify or suspend plan payments to cure the delinquency. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Sonia Figueroa Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12323
Ruben Lepe, Jr. and Lucy Ivette Salazar
Chapter 13
#81.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
Docket 56
*** VACATED *** REASON: Withdrawal filed by Trustee Doc. #58. lf Tentative Ruling:
Party Information
Debtor(s):
Ruben Lepe Jr. Represented By Tamar Terzian
Joint Debtor(s):
Lucy Ivette Salazar Represented By Tamar Terzian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12957
Arturo Gutierrez
Chapter 13
#82.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20, 4/28/20
Docket 37
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #46.
Tentative Ruling:
Party Information
Debtor(s):
Arturo Gutierrez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10861
Tonya Latrice Gould
Chapter 13
#83.00 Motion RE: Objection to Claim Number 11 by Claimant Montana Bail Bond Inc.
Docket 54
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Tonya Latrice Gould Represented By Kahlil J McAlpin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10861
Tonya Latrice Gould
Chapter 13
#84.00 Motion RE: Objection to Claim Number 12 by Claimant Indiana Lumermens Mutual Insurance Company.
Docket 55
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Tonya Latrice Gould Represented By Kahlil J McAlpin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11301
Robert Benjamin Sautter
Chapter 13
#85.00 Motion for Order Determining Value of Collateral [11 U.S.C. § 506(a), FRBP 3012]: 3859 Sherwood
Place, Sherman Oaks, CA 91423
fr. 7/30/19, 9/24/19; 11/19/19; 1/28/20; 3/10/20; 3/31/20
Docket 18
Tentative Ruling:
fr. 7/30/19, 9/24/19; 11/19/19; 1/28/20; 3/10/20; 3/31/20
No appraisal filed. TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Robert Benjamin Sautter Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#86.00 Motion RE: Objection to Claim Number 9 by Claimant STARR TAXMAN.
fr. 3/31/20,4/28/20
Docket 72
Tentative Ruling:
Gary Alan Kurtz (the "Debtor") filed chapter 13 on August 27, 2019. The deadline to file claims in Debtor’s case was November 5, 2019. On this date, Debtor’s estranged spouse, Starr Taxman (the "Claimant"), filed a timely claim for $15,000,0000. Claim No.
7-1. On January 1, 2020, the Claimant filed an objection to Debtor’s chapter 13 plan confirmation. On this same day, the Claimant amended Claim No. 7-1 to $5,457,891.73. [Claim No. 7-2]. On November 5, 2019, the Claimant also timely filed Claim No. 8-1, which duplicates Claim No. 7-1. On January 1, 2020, the Claimant filed an amended claim to Claim No. 8-1, changing the claimed amount to $14,865,508.09. (Claim No. 8-2).
On January 10, 2020, the Claimant filed Claim No. 9-1, which indicates a claimed amount of $5,487,893.73. Also, on January 10, 2020, the Claimant filed Claim No. 10 with a claimed amount of $14,865,508.09, which is an amount identical to Claim No. 8-2. This ruling addresses the Debtor’s objection to Claim Nos. 9-1 and 10 (the "Claims").
The Debtor amended his plan on March 25, 2020 ("First Amended Plan") and filed an objection to the Claims on March 3, 2020. At the March 31, 2020 hearing, the court set a deadline for the Claimant to file a response by April 17, 2020 and for the Debtor to file a reply by April 28, 2020. The Claimant has not filed a response. Rather, she contacted the courtroom deputy by phone on May 13 stating that she was ill and needed more time to respond. We will discuss at the hearing whether an extension may be granted to respond to objections to Claims 7-1 and 8-1.
Under 11 U.S.C. § 502(a), a claim or interest, proof of which is filed under 11 U.S.C.
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
§ 501, is deemed allowed, unless a party in interest objects. Additionally, a properly executed and filed proof of claim "shall constitute prima facie evidence of the validity and amount of the claim." 11 U.S.C. § 3001(f). A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶3001.05[2].
When a party in interest objects to a creditor's claim, the bankruptcy court shall determine the amount of such claim as of the date of the filing of the petition. 11U.S.C.S. § 502(b). Post-petition conduct cannot justify disallowing a proof of claim. An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c).
To defeat a claim, a debtor must present sufficient evidence to "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. "The objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992). "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 Debtor objects to the Claims on similar grounds as his objection to Claim Nos.
7-1 and 7-2. The Debtor adds to his objection, however, that the Claims should be
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
disallowed as late-filed and duplicative of Claim No. 7-1.
The deadline for filing claims was November 5, 2019. The Claims were filed on January 10, 2020. The Claims were filed late. Rule 3002 requires the timely filing of claims. 11 U.S.C. § 3002. A late filed claim is not properly filed under 11 U.S.C. § 501. Gullatt v.
United States (In re Gullat), 169 B.R. 385, 387 (Bank. M.D. Tenn. 1994). And a bankruptcy court may disallow a claim for different reasons, including for the late filing of the claim. Spokane Law Enforcement Fed. Credit Union v. Barker, 1194 (9th Cir. 2016). Rule 9006, in conjunction with Rule 3002(c), precludes the filing of an untimely proof of claim in chapter 7 and chapter 13 cases, except in very limited circumstances. Rule 9006(b)(3)("The court may enlarge the time for taking action under Rules…3002(c),…only to the extent and under the conditions stated in those rules…"); Spokane Law Enforcement Fed. Credit Union v. Barker (In re Barker), No. MT-13-1393-JuKuPa, 2014 Bankr. LEXIS 1233, at *8 (9th Cir. BAP March 28, 2014).
Claim Nos. 9-1 and 10 are thus disallowed for untimely filing. Claims 7 and 8 will be discussed separately.
Objection SUSTAINED. DEBTOR TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#87.00 Motion RE: Objection to Claim Number 5 by Claimant KRYCLER, ERVIN, TAUBMAN & KAMINSKY.
fr. 3/31/20, 4/28/20
Docket 74
Tentative Ruling:
On October 21, 2019, Krycler, Ervin, Taubman & Kaminsky (the "Claimant") timely filed and properly served notice of Claim No. 5-1, which is a $6,557.50 unsecured claim (the "Claim"). On March 4, 2020, Gary Alan Kurtz (the "Debtor") filed an objection to the Claim (the "Motion"). The Claimant opposed the Motion with a declaration by Michael J. Krycler ("Krycler Declaration") and the Debtor replied ("Reply").
The Claim indicates that its basis is for "Forensic accounting services re dissolution per retainer agreement." The Debtor objects based on insufficient detail, that it is greater than the $5,000 retainer agreed to, that insufficient documents are attached, that the work exceeded the scope of what he outlined and that it is submitted by a person who has no standing to make a claim.
Under 11 U.S.C. § 502(a), a claim or interest, proof of which is filed under 11 U.S.C.
§ 501, is deemed allowed, unless a party in interest objects. Additionally, a properly executed and filed proof of claim "shall constitute prima facie evidence of the validity and amount of the claim." 11 U.S.C. § 3001(f). A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶3001.05[2].
When a party in interest objects to a creditor's claim, the bankruptcy court shall determine the amount of such claim as of the date of the filing of the petition. 11U.S.C.S. § 502(b). An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c).
To defeat a claim, a debtor must "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. "The objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992). "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.
Discussion
The Claimant timely filed and properly served notice of the Claim. It is in writing and makes a demand on the Debtor’s estate for $6,557.50. The Claim is supported by facts that the Claimant performed forensic accounting services for the Debtor. Exhibits including an accounts receivable ledger and billing records are attached to the Claim. This Claim is prima facie valid.
Debtor argues that the Claim should be disallowed because it failed to attach all bills in violation of Bankruptcy Rule 3001(c)(1). Rule 3001(c)(1) states that when a claim or an interest in a debtor’s property securing the claim is based on a writing, the original or a copy
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
of the writing must be filed with the claim. Fed. R. Bankr. P. 3001(c); T. Jones, Inc. v. Simmons (In re Simmons), No. WW-04-1344-PST, 2005 Bankr. LEXIS 2954, at *14 (9th Cir. BAP March 31, 2005).
Most courts adopt the view that § 502 provides the exclusive grounds to disallow a claim. In re Dove Nation, 318 B.R. 147, 150 (8th Cir. BAP 2004)(followed by Heath v. Am. Express Travel Related Servs. Co. (In re Heath), 331 B.R. 424, 435 (9th Cir. BAP 2005)). Under the majority rule, a party seeking to disallow a claim must allege a substantive basis under § 502(b). Section 502(b) enumerates nine grounds on which a proof of claim may be disallowed. Sears v. Sears (In re Sears), 863 F.3d 973, 979 (8th Cir. 2017). In the Ninth and Eight Circuits, a failure to file documents is not among the bases for disallowing a claim under § 502(b). (In re Sears), 863 F.3d at 979; In re Heath, 331 B.R. at 435 ("Noncompliance with Rule 3001(c) is not one of the statutory grounds for disallowance").
Debtor relies on the contrary view from the Tenth Circuit’s decision in Kirkland finding that a bankruptcy court properly disallowed a claim because the creditor did not conform substantially to the appropriate Official Form as required by Fed. R. Bankr. P. 3001(a). In re Kirkland, 572 F.3d 838, 840-41 (10th Cir. 2009). Official Form 10 required a claimant to "[attach redacted copies of any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments, mortgages, and security agreements." Fed. R. Bankr. P. Official Form
10. Form 10 also required a claimant to explain if the documents are not available. Id.
Kirkland is not controlling and its facts are starkly different. In Kirkland, the creditor failed to produce a single document to support its proof of claim or to explain the absence of evidentiary support. In re Kirkland, 572 F.3d at 840-41. The Tenth Circuit therefore concluded that the creditor failed to present "prima facie evidence of the validity and amount of the claim." Id. at 841. By contrast, here, Creditor attached extensive documentation to its proof of claim and reply. Where a creditor supports the proof of claim with attached exhibits, it is sufficient prima facie evidence of the claim although "not precisely in the manner contemplated by the rules." In re Sears, 863 F.3d at 980.
The Ninth Circuit in Heath explained why it follows the majority view. First, the Ninth Circuit looked to the plain language of sections 501(a), 502(a), and 502(b) and concluded that noncompliance with Rule 3001(c) is not one of the statutory grounds to disallow a claim. In re Heath, 331 B.R. at 435. Second, the Ninth Circuit reasoned that the claims allowance process does not violate due process because the process is designed to be speedy and inexpensive; the purpose of Rule 3001(f) is to allow the proof of claim to act like
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
a verified complaint and have an independent evidentiary effect; and a proof of claim has more weight than an evidentiary pleading because it is signed under penalty of perjury. Id. The creditor’s failure to provide supporting documents in violation of Rule 3001(c)(1) is not a basis to disallow a claim under § 502(b). The Claim’s validity is not defeated by this objection.
The Debtor also argues that the Claimant performed work outside the scope of what he agreed to pay for and that he does not owe the Claimant anything after having already paid a $5,000 retainer. [Motion p. 5]. The Debtor’s attorney, Jeffrey Hoffer, also filed a declaration in response to the Claimant’s opposition and declaration ("Hoffer Declaration"). Hoffer also asserts the claimant’s work went beyond the scope of what was authorized. They both argue that debtor is also only responsible for 90% of the bill. They allege that phone conferences were held with Ms. Taxxman and her counsel where they were left out and did not authorize the work those parties requested. They also point to the document requests as excessive and not necessary for the required scope of work.
Other evidence submitted by the Claimant is an "Accounts Receivable Ledger" indicating a credit of $5,000, which represents the amount the Debtor paid, and $6,557.50 as the "Balance." [Motion, p. 12]. Also attached to the Motion is a "Document Inventory," a grid of bank accounts reviewed, and a detailed time sheet which reflects the hours billed. This document shows $12,070.50 in "Invoices," $5,000 received, and a $7,070.50 "Amount Due." [Motion, p. 6].
The Debtor has not refuted that the work was done, but raises an issue of what was actually authorized. Claimant’s Declaration attaches a copy of an agreement executed on November 25, 2018 to retain the services of Krycler, Ervin, Taubman & Kaminsky (the "Retainer Agreement"). [Krycler Declaration, p. 5]. The Retainer Agreement is signed by Nicholas Salick, Jeffrey Hoffer, Starr Taxman, and Gary Kurtz. [Id., p. 7]. The Retainer Agreement specifically states: "…This retainer is not intended to be an estimate for the total cost of the work to be performed, nor has an estimate been given…" [Krycler Declaration ¶ 5]. The Claimant declares that the accounting firm’s assignment would include a valuation of law practice and a report of income available for spousal support. Krycler disagrees with the scope of work described by debtor. [Krycler Declaration ¶ 6].
The agreement and scope of the work seem to be supported by the documentation submitted by claimant, but there is a dispute over what was agreed to that needs to be resolved. Both sides have a right to cross examine the other’s declarants. If the parties wish to do so, a video evidentiary hearing on zoom can be arranged. Given the amount in
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
dispute, the court advises an attempt between the parties to see if this can be resolved before the date set for the hearing.
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#88.00 Motion RE: Objection to Claim Number 10 by Claimant STARR TAXMAN.
fr. 3/31/20, 4/28/20
Docket 73
Tentative Ruling:
Gary Alan Kurtz (the "Debtor") filed chapter 13 on August 27, 2019. The deadline to file claims in Debtor’s case was November 5, 2019. On this date, Debtor’s estranged spouse, Starr Taxman (the "Claimant"), filed a timely claim for $15,000,0000. Claim No.
7-1. On January 1, 2020, the Claimant filed an objection to Debtor’s chapter 13 plan confirmation. On this same day, the Claimant amended Claim No. 7-1 to $5,457,891.73. [Claim No. 7-2]. On November 5, 2019, the Claimant also timely filed Claim No. 8-1, which duplicates Claim No. 7-1. On January 1, 2020, the Claimant filed an amended claim to Claim No. 8-1, changing the claimed amount to $14,865,508.09. (Claim No. 8-2).
On January 10, 2020, the Claimant filed Claim No. 9-1, which indicates a claimed amount of $5,487,893.73. Also, on January 10, 2020, the Claimant filed Claim No. 10 with a claimed amount of $14,865,508.09, which is an amount identical to Claim No. 8-2. This ruling addresses the Debtor’s objection to Claim Nos. 9-1 and 10 (the "Claims").
The Debtor amended his plan on March 25, 2020 ("First Amended Plan") and filed an objection to the Claims on March 3, 2020. At the March 31, 2020 hearing, the court set a deadline for the Claimant to file a response by April 17, 2020 and for the Debtor to file a reply by April 28, 2020. The Claimant has not filed a response. Rather, she contacted the courtroom deputy by phone on May 13 stating that she was ill and needed more time to respond. We will discuss at the hearing whether an extension may be granted to respond to objections to Claims 7-1 and 8-1.
Under 11 U.S.C. § 502(a), a claim or interest, proof of which is filed under 11 U.S.C.
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
§ 501, is deemed allowed, unless a party in interest objects. Additionally, a properly executed and filed proof of claim "shall constitute prima facie evidence of the validity and amount of the claim." 11 U.S.C. § 3001(f). A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶3001.05[2].
When a party in interest objects to a creditor's claim, the bankruptcy court shall determine the amount of such claim as of the date of the filing of the petition. 11U.S.C.S. § 502(b). Post-petition conduct cannot justify disallowing a proof of claim. An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c).
To defeat a claim, a debtor must present sufficient evidence to "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. "The objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992). "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 Debtor objects to the Claims on similar grounds as his objection to Claim Nos.
7-1 and 7-2. The Debtor adds to his objection, however, that the Claims should be
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
disallowed as late-filed and duplicative of Claim No. 7-1.
The deadline for filing claims was November 5, 2019. The Claims were filed on January 10, 2020. The Claims were filed late. Rule 3002 requires the timely filing of claims. 11 U.S.C. § 3002. A late filed claim is not properly filed under 11 U.S.C. § 501. Gullatt v.
United States (In re Gullat), 169 B.R. 385, 387 (Bank. M.D. Tenn. 1994). And a bankruptcy court may disallow a claim for different reasons, including for the late filing of the claim. Spokane Law Enforcement Fed. Credit Union v. Barker, 1194 (9th Cir. 2016). Rule 9006, in conjunction with Rule 3002(c), precludes the filing of an untimely proof of claim in chapter 7 and chapter 13 cases, except in very limited circumstances. Rule 9006(b)(3)("The court may enlarge the time for taking action under Rules…3002(c),…only to the extent and under the conditions stated in those rules…"); Spokane Law Enforcement Fed. Credit Union v. Barker (In re Barker), No. MT-13-1393-JuKuPa, 2014 Bankr. LEXIS 1233, at *8 (9th Cir. BAP March 28, 2014).
Claim Nos. 9-1 and 10 are thus disallowed for untimely filing. Claims 7 and 8 will be discussed separately.
Objection SUSTAINED. DEBTOR TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#89.00 Motion RE: Objection to Claim Number 8 by Claimant STARR TAXMAN.
fr. 3/31/20,4/28/20
Docket 71
Tentative Ruling:
See analysis under claim 7. Claimant should advise if claim 8 is intended to substitute for claim 7. It is largely duplicative, but adds detail.
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#90.00 Motion RE: Objection to Claim Number 7 by Claimant STARR TAXMAN.
fr. 3/31/20, 4/28/20
Docket 70
Tentative Ruling:
Gary Alan Kurtz (the "Debtor") filed for chapter 13 bankruptcy on August 27, 2019. The deadline to file claims in the Debtor’s bankruptcy case was November 5, 2019. On this date, the Debtor’s estranged spouse, Star Taxman (the "Claimant"), filed a timely claim for
$15,000,0000. [Claim No. 7-1]. On this same day, the Claimant amended Claim No. 7-1 to a claimed amount of $5,457,891.73 (the "Claim"). [Claim No. 7-2]. Bankruptcy courts generally allow amendments to a proof of claim where the purpose is to (1) cure a defect in the claim as originally filed; (2) describe the claim with greater particularity; or (3) plead a new theory of recovery on the facts set forth in the original claim. United States v. International Horizons, Inc. (In re International Horizons, Inc.), 751 F.2d 1213, 1216 (11th Cir. 1985). The court will therefore allow the amendment.
On November 5, 2019, the Claimant also filed Claim No. 8-1, which duplicates Claim No. 7-1. On January 1, 2020, the Claimant filed an amended claim to Claim No. 8-1, changing the claimed amount to $14,865,508.09. (Claim No. 8-2).
On January 10, 2020, the Claimant filed Claim No. 9-1, which indicates a claimed amount of $5,487,893.73. and Claim No. 10 with a claimed amount of $14,865,508.09, which is an amount identical to Claim No. 8-2. These claims have been disallowed as late. This tentative will discuss Claim Nos. 7-1 and 7-2.
On March 23, 2020, Debtor filed an objection to Claim Nos. 7-1 and 7-2 (the "Motion"). At the March 31, 2020 hearing, the court set a deadline for the Claimant to file a response by April 17, 2020 and for the Debtor to file a reply by April 28, 2020. The Claimant has not filed a response. She called the courtroom deputy on May 13, 2020, one month
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
after her response was due to say she is ill and would like more time to respond.
Under 11 U.S.C. § 502(a), a claim or interest, proof of which is filed under 11 U.S.C.
§ 501, is deemed allowed, unless a party in interest objects. Additionally, a properly executed and filed proof of claim "shall constitute prima facie evidence of the validity and amount of the claim." 11 U.S.C. § 3001(f). A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶3001.05[2].
When a party in interest objects to a creditor's claim, the bankruptcy court shall determine the amount of such claim as of the date of the filing of the petition. 11U.S.C.S. § 502(b). Post-petition conduct cannot justify disallowing a proof of claim. An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c).
To defeat a claim, a debtor must present sufficient evidence to "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. "The objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992). "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.
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
Discussion
The Claimant’s Claim is prima facie valid under Rule 3001 because the Claimant properly and timely filed a proof of claim in writing and made a demand for $5,457,891.73 on the Debtor’s bankruptcy estate. The Claim is also supported by numerous documents, including the following:
A "Proof of Claim Index" showing computations of separate claims by LJG Family Trust and Creditor under different scenarios where Debtor may be responsible for certain charges. The computations include line items for the real property mortgage, attorney’s fees and costs; homeowner’s insurance; home maintenance and improvements; homeowner’s association dues; a fountain pen collection; artworks; watch collection; past due support, children medical, educational, and other children’s expenses; professional legal & CPA fees; among other things.
A "Declaration of Trust" for the LJG Family Trust showing that the trust was signed and executed on September 8, 2004 by Debtor as settlor and trustee and Creditor, also as settlor and trustee. The "Property of the Trust Estate" is indicated as 2103 Kenwyn Court, Topanga, California 90290 (the "Topanga Property"). The Claim also attaches an adjustable rate note for the same property in the amount of $875,000 signed by Debtor and Creditor individually and as trustees of the LJG Family Trust.
A computation of mortgage taxes and an email indicating a payment history of taxes paid on the real property.
A statement from Bank of America indicating the mortgage principal, payments, and balance on the real property.
A check paid for $12,311.57 on April 1, 2011 to reinstate the mortgage.
Annual property tax bills for years 2008, 2009, 2010, 2011, 2013, 2014, 2017, 2018,
and 2019.
Creditor’s typed statement that she used $20,000 in separate property as down payment on a house located at 7740 Sale Avenue, West Hills, California.
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
A summary of Creditor’s separate property home insurance payments totaling approximately $30,000.
A summary of Creditor’s payments to home improvements totaling approximately
$693,544.
A summary of Creditor’s payments to homeowner’s association dues of $43,135.67 for August 2009 to October 2019 for the Topanga Property.
Creditor’s typed statement stating that a Mercedes Benz automobile is community property and requesting the court to order an appraisal.
Creditor’s typed statement stating that a comic book collection is community property and requesting the court to order an appraisal. Creditor asserts that the comic collection can sell for six to seven figures.
Creditor’s typed statement stating that she owns 50% of the comic book collection, fountain pen and pen collection, watches, a trumpet and saxophone, books, among other things.
Typed statements about Debtor’s law practice, which Creditor expects to receive
$1,000,000; artwork collection; retirement accounts.
A stock portfolio in BlackRock indicating a market value of approximately $585,000.
A summary of past due support payments for years 2009 through 2019.
The burden shifted to the Debtor to present evidence sufficient to defeat the Claim.
The Debtor objects to the Claim on the following grounds:
The Claim fails to state a claim with sufficient detail and specificity as to make it comprehensible;
The Claim fails to attach sufficient documents to prove that a debt is owed in violation of Rule 3007(d)(5);
The Claim fails to state a valid debt owed to the claimant, namely the LJG Family Trust;
The Creditor has no standing or authority to raise claims against the Debtor, who is a co- trustee;
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
The Claim does not state a valid basis for a claim as to Paragraph 7.
The Claim does not state a valid basis for a claim as to Paragraph 8 because it fails to include the attachment required by Rule 3001(c) in violation of Rule 3007(d)(6)
The Claim does not state a valid basis for a claim as to Paragraph 9 because it fails to substantiate that any part of the claim is secured, fails to file a Mortgage Proof of Claim attachment as required under the "Real estate" section, and fails to attach any documents evidencing perfection of a security interest as required in the "Basis for perfection" section in violation of Rule 3007(d)(6)
The Claim does not establish a basis for a secured claim because the "Basis for perfection" section states "Settlement," which does not establish a security interest
The Claim does not state a valid basis for a claim as to Paragraph 12, "Domestic support obligations" because a trust cannot be owed domestic support obligations as a matter of law
The Claim does not state a valid basis for a claim as to Paragraph 12, "Up to $3,025 of deposits…" because the instant trust, which was established solely for the purpose of holding title to real estate for estate planning purposes, cannot be owed funds identified in this section
The Claim does not state a valid basis for a claim as to Paragraph 12, "Wages, salaries or commission…" because the instant trust, which was established solely to hold title to real estate for estate planning purposes, cannot be owed funds identified in this section.
The Claim does not state a valid basis for a claim as to Paragraph 12, "Taxes or penalties owed to governmental units…" because the instant Trust, which was established solely to hold title to real estate for estate planning purposes, cannot be owed funds identified in this section, and Claimant is not a governmental unit. [This section did not apply to Claim No 7-2 because it was left blank].
Specifically, the Debtor alleges that it is unclear whether the Claimant filed the Claim in her individual capacity or as trustee for the LJG Family Trust. On the signature page of Claim No 7-2, the Claimant wrote her name, "Star Taxman" and indicated her title as, "Trustee for LJG Family Trust" and under Company indicated, "as Plaintiff/Creditor/Trustee/Settlor." [Claim No. 7-2, p. 3].
Is the Claimant filing the Claim in her individual capacity and/or as the trustee for
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
the LJG Family Trust?
The Debtor’s main contention is that the Claim should be disallowed under 11 U.S.C.
§ 502 because the Claim does not attach supporting documents, which allegedly violate Rule 3001(c)(1). Rule 3001(c)(1) states that when a claim or an interest in a debtor’s property securing the claim is based on a writing, the original or a copy of the writing must be filed with the claim. Fed. R. Bankr. P. 3001(c); T. Jones, Inc. v. Simmons (In re Simmons), No. WW-04-1344-PST, 2005 Bankr. LEXIS 2954, at *14 (9th Cir. BAP March 31, 2005).
The Claim indicates that it is secured by $1,900,000 in assets, including: (1) real property; (2) a motor vehicle; and (3) Debtor’s law office, which is shown as community property. The unsecured amount of the Claim is indicated as $3,557,891.73 for a total claim of $5,457,891.73. [Claim No. 7-2, p. 2]. The Claim also indicates entitlement to priority under 11 U.S.C. § 507(a) of (1) $36,658.82 for domestic support obligations; (2)
$3,025.00 for purchase, lease, or rental of property or services for personal, family, or household use; and (3) $13,650.00 for wages, salaries, or commissions earned within 180 days before the bankruptcy petition is filed, or the debtor’s business ends, whichever is earlier. [Id., p. 3].
Most courts adopt the "exclusive view" that § 502 provides the exclusive grounds to disallow a claim. In re Dove Nation, 318 B.R. 147, 150 (8th Cir. BAP 2004)(followed by Heath v. Am. Express Travel Related Servs. Co. (In re Heath), 331 B.R. 424, 435 (9th Cir. BAP 2005)). Under the majority rule, a party seeking to disallow a claim must allege a substantive basis under § 502(b). Section 502(b) enumerates nine grounds on which a proof of claim may be disallowed. Sears v. Sears (In re Sears), 863 F.3d 973, 979 (8th Cir. 2017).
In the Ninth and Eight Circuits, a failure to file documents is not among the bases for disallowing a claim under § 502(b). (In re Sears), 863 F.3d at 979; In re Heath, 331 B.R. at
435 ("Noncompliance with Rule 3001(c) is not one of the statutory grounds for disallowance").
The debtor relies on the Tenth Circuit’s ruling in Kirkland, which found that a bankruptcy court properly disallowed a claim because the creditor did not conform substantially to the appropriate Official Form as required by Fed. R. Bankr. P. 3001(a). In re Kirkland, 572 F.3d 838, 840-41 (10th Cir. 2009). Official Form 10 required a claimant to "[attach redacted copies of any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts,
11:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
judgments, mortgages, and security agreements." Fed. R. Bankr. P. Official Form 10. Form 10 also required a claimant to explain if the documents are not available. Id.
Kirkland is not controlling and the facts in Kirkland are starkly different. In Kirkland, the creditor failed to produce a single document to support its proof of claim or to explain the absence of evidentiary support. In re Kirkland, 572 F.3d at 840-41. The Tenth Circuit therefore concluded that the creditor failed to present "prima facie evidence of the validity and amount of the claim." Id. at 841. By contrast, here, Creditor attached numerous documents to her proof of claim as listed above. Where a creditor supports the proof of claim with attached exhibits, it is sufficient prima facie evidence of the claim although "not precisely in the manner contemplated by the rules." In re Sears, 863 F.3d at 980.
The Ninth Circuit’s decision in Heath controls. The Ninth Circuit explained why it followed the majority view. First, the Ninth Circuit looked to the plain language of sections 501(a), 502(a), and 502(b) and concluded that noncompliance with Rule 3001(c) is not one of the statutory grounds to disallow a claim. In re Heath, 331 B.R. at 435. Second, the Ninth Circuit reasoned that the claims allowance process does not violate due process because the process is designed to be speedy and inexpensive; the purpose of Rule 3001(f) is to allow the proof of claim to act like a verified complaint and have an independent evidentiary effect; and a proof of claim has more weight than an evidentiary pleading because it is signed under penalty of up to $500,000 or up to five years in prison, or both, for fraudulent claims. Id. The creditor’s failure to provide supporting documents in violation of Rule 3001(c)(1) is not a basis to disallow a claim under § 502(b).
The Debtor provides a list of other arguments but provides no law and analysis. Neither the Debtor’s position nor the Claimant’s is clear. Has the family court made a division of property? Is either side relying on a clear division of assets or DSO?
The Claimant indicates that all or part of the Claim is secured. If a creditor claims that its debt is secured, the proof of claim must be accompanied by evidence that the security interest has been perfected. Fed. R. Bankr. P. 3001(d); T. Jones, Inc. v. Simmons (In re Simmons), BAP No. WW-04-1344-PST, 2005 Bankr. LEXIS 2954, at *14 (9th Cir. BAP
March 31, 2005). The Claimant is instructed to provide evidence of a security interest.
This Motion will not be decided at this hearing and will be discussed further. TELEPHONIC APPEARANCE REQUIRED
Party Information
11:00 AM
CONT...
Debtor(s):
Gary Alan Kurtz
Chapter 13
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12264
Hrayer Chouchanian
Chapter 13
#91.00 Motion to Disallow Claims 10 filed by Alexander S. Alexandrov with proof of service
Docket 38
Tentative Ruling:
On February 5, 2020, Alexander S. Alexandrov (the "Claimant") filed a claim for $5,094 for an "L.A. Superior [Court] Judgment [] (Damages to Auto)" (the "Claim"). [Claim No. 10]. On April 1, 2020, Hrayer Chouchanian (the "Debtor") filed a motion to disallow the claim of Alexander S. Alexandrov (the "Motion"). The Debtor argues that the Claim (1) is not secured as indicated; (2) does not provide sufficient documentary support; and (3) is filed late. The Claimant did not oppose this objection.
Under 11 U.S.C. § 502(a), a claim or interest, proof of which is filed under 11 U.S.C.
§ 501, is deemed allowed, unless a party in interest objects. Additionally, a properly executed and filed proof of claim "shall constitute prima facie evidence of the validity and amount of the claim." 11 U.S.C. § 3001(f). A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶3001.05[2].
An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c). To defeat a claim, a debtor must present sufficient evidence to "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. "The objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992).
11:00 AM
CONT...
Hrayer Chouchanian
Chapter 13
The Claim indicates that it is not secured, so the Debtor’s objection that the claim should be treated as unsecured is correct. [Claim No. 10-1, p. 8].
The Debtor next argues that the Claim should be disallowed because it was filed late. The deadline for filing claims was November 19, 2019. The Claim was filed on February 5, 2020. It is filed late. Rule 3002 requires the timely filing of claims. 11 U.S.C. § 3002. A bankruptcy court may disallow a claim for different reasons, including for the late filing of the claim. Spokane Law Enforcement Fed. Credit Union v. Barker, 1194 (9th Cir. 2016). Rule 9006, in conjunction with Rule 3002(c), precludes the filing of an untimely proof of claim in chapter 7 and chapter 13 cases, except in very limited circumstances. Rule 9006(b)(3)("The court may enlarge the time for taking action under Rules…3002(c),…only to the extent and under the conditions stated in those rules…"); Spokane Law Enforcement Fed. Credit Union v. Barker (In re Barker), No. MT-13-1393-JuKuPa, 2014 Bankr. LEXIS 1233, at * 8 (9th Cir. BAP March 28, 2014). The claim is thus disallowed for untimely filing.
Objection SUSTAINED. NO APPEARANCE REQURIED. DEBTOR TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Hrayer Chouchanian Represented By Tamar Terzian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10329
Gregg P Stickeler
Chapter 13
#92.00 Motion for Order Determining Value of Collateral
Docket 15
Tentative Ruling:
Service: Proper. No opposition filed Personal Property: 2015 Hyundai Accent
First lien: $7,062 (Wells Fargo Dealer Services)
Fair market value: $5,828 (Edmunds Appraisal Report)
Debtor proposes to bifurcate the claim into a secured portion of $5,828 and an unsecured portion of $1,234.
The hanging paragraph after 11 U.S.C. § 1325(a)(9) prohibits bifurcation of a creditor’s claim that is secured by a vehicle into a secured claim and an unsecured claim and provides that:
"For purposes of paragraph (5)…11 USCS § 506…shall not apply to a claim described in that paragraph if the creditor has a purchase money security interest securing the debt that is the subject of the claim, the debt was incurred within the 910-day period preceding the date of the filing of the petition, and the collateral for that debt consists of a motor vehicle (as defined in 49 USCS § 30102) acquired for the personal use of the debtor, or if collateral for that debt consists of any other thing of value, if the debt was incurred during the 1-year period preceding that filing."
The Bankruptcy Credit Report indicates that Debtor incurred this debt on December 2016. Debtor filed his bankruptcy petition on February 11, 2020. The debt was not incurred within the 910-day period, so that lien can be bifurcated.
Disposition: GRANT.
APPEARANCES WAIVED.
Debtor(s):
Party Information
Gregg P Stickeler Represented By Elena Steers
11:00 AM
CONT...
Trustee(s):
Gregg P Stickeler
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:12-19998
Process America, Inc.
Chapter 11
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
#1.00 Status conference re complaint for: damages and equitable relief
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, 6/26/19
9/21/18, 10/31/18; 12/12/18, 2/27/19; 3/13/19; 12/11/19, 1/29/20
2/26/20; 3/25/20
Docket 1
Debtor(s):
*** VACATED *** REASON: Cont. to 6/2/20 @11am (eg) Party Information
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
CONT...
Process America, Inc.
Chapter 11
Like Zebra, LLC Pro Se
Stripe Entertainment Group, Inc. Pro Se
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
U.S. Trustee(s):
United States Trustee (SV) Pro Se
10:00 AM
1:15-11904
Christa Franck Bretz
Chapter 13
#2.00 Motion for relief from stay
U.S. BANK TRUST NATIONAL ASSO. fr. 4/1/20
Docket 100
*** VACATED *** REASON: Cont'd to 6/2/20 @10:00 a.m. per order #105. lf
Party Information
Debtor(s):
Christa Franck Bretz Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11080
Rafael Huerta
Chapter 13
#3.00 Motion for relief from stay BAYVIEW LOAN SERVICING, LLC
Docket 39
Debtor(s):
*** VACATED *** REASON: Cont'd to 6/2/20 at 10:00 per order #42. lf Party Information
Rafael Huerta Represented By William G Cort
Movant(s):
Bayview Loan Servicing, LLC Represented By Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11427
Lecia Kay Westerman
Chapter 13
#4.00 Motion for relief from Stay HSBC BANK USA
Docket 54
Debtor(s):
*** VACATED *** REASON: Cont'd to 6/2/20 per order #57. lf
Party Information
Lecia Kay Westerman Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12605
Ramin Ghamsari
Chapter 13
#5.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO.
Docket 31
Debtor(s):
*** VACATED *** REASON: Cont'd to 6/2/20 per order #33. lf
Party Information
Ramin Ghamsari Represented By Michael Okayo
Movant(s):
U.S. Bank National Association, as Represented By
Kirsten Martinez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:12-10231
Owner Management Service, LLC and Trustee Corps
Chapter 7
#6.00 Motion RE: Objection to Claim Number 28 by Claimant Susan Ferguson
fr. 11/20/19, 1/15/20, 4/1/20
Docket 2311
Debtor(s):
*** VACATED *** REASON: cont. to 6/24/20 @ 11am (eg) Party Information
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 Jorge A Gaitan
11:00 AM
1:15-14124
Ignacio Ramirez
Chapter 11
Adv#: 1:20-01017 Ramirez v. CitiMortgage, Inc., a corporation et al
#7.00
Status Conference Re: Complaint for
Declaratory Relief Regarding the Bindingness of Confirmed Chapter 11 Plan;
Injunctive or other Equitable Relief fr. 4/15/20
Docket 1
Debtor(s):
*** VACATED *** REASON: Cont'd to 7/1/20 at 11:00 per Stip Ord #21. lf Party Information
Ignacio Ramirez Represented By
Anthony Obehi Egbase Crystle Crystle Lindsey Clarissa D Cu
Robert Rosvall
W. Sloan Youkstetter
Defendant(s):
CitiMortgage, Inc., a corporation Pro Se Nationstar Mortgage, LLC, a limited Pro Se
U.S. Bank Trust, N.A., a corporation Pro Se DOES 1-10, Inclusive Pro Se
Plaintiff(s):
Ignacio Ramirez Represented By
Anthony Obehi Egbase
11:00 AM
1:19-10727
Mary Kristin Burak
Chapter 13
Adv#: 1:19-01082 Coha et al v. Burak
#8.00 Status Conference Re: Complaint Objectiong to Discharge of Debtor based Upon False Pretenses, False Representations, Actual Fraud.
fr. 9/18/19; 12/11/19
Docket 1
Debtor(s):
*** VACATED *** REASON: Order cont. to 6/2/20 @11am (eg)
Party Information
Mary Kristin Burak Represented By
R Grace Rodriguez
Defendant(s):
Mary Kristin Burak Pro Se
Plaintiff(s):
Loretta M Coha Represented By James W Bates
Equity Title Company Represented By James W Bates
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-11904
Christa Franck Bretz
Chapter 13
#1.00 Motion for relief from stay
U.S. BANK TRUST NATIONAL ASSO. fr. 4/1/20, 5/20/20
Docket 100
Matter Notes:
NONE LISTED -
Tentative Ruling:
This hearing was continued from 4/1/20 so that the parties could discuss an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion? APPEARANCE REQUIRED.
4-1-20 TENTATIVE BELOW
Ch. 13 Petition Date: 05/29/2015 Plan Confirmed on 03/09/2016.
Service: Proper. Opp. filed on 03/16/2020. Property: 7718 Hatton Place, Reseda, CA 91335 Property Value: $440,000 (per debtor’s schedules) Amount Owed: $231,849.67
Equity Cushion: 47% Equity: $208,150.33
Post-Petition Delinquency: $25,503.06 (2 payments of $1828.54 and 11 payments of $1846.53 less suspense of $17.73).
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 12 (declare Debtor borrower under Cal. Civ. Code § 2920.5(c)(2) (C)). Movant alleges that it received last postpetition payment on or about
10:00 AM
CONT...
Christa Franck Bretz
Chapter 13
01/24/2020.
Debtor opposes, asserting that they wish to enter into an APO with Movant to cure their arrears. Have the parties had an opportunity to discuss an APO?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Christa Franck Bretz Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-14044
Ahmad Heidari and Nafiseh Alamdar Heidari
Chapter 13
#2.00 Motion for relief from stay
U.S. BANK TRUST NATONAL ASSOC.
Docket 117
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 12/10/2015 Chapter: 13 (confirmed 9/7/2016)
Service: Proper (co-debtor served). Opposition filed. Property: 11111 Viking Avenue, Los Angeles, CA 91326 Property Value: $755,000 (per debtor’s schedules) Amount Owed: $634,119.73
Equity Cushion: 8.0% Equity: $120,880.27
Post-Petition Delinquency: $21,146.63
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); 7 (waiver of the 4001(a)(3) stay); 12 (Debtor is a borrower for purposes of Cal. Civ. Code. 2923.5); and 13 (if stay not granted, order APO).
Debtors oppose and request a six month continuance to provide time to enter into a six-month forbearance, or alternatively, a dismissal of this Motion or a shorter continuance to provide time to work out an APO.
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Ahmad Heidari Represented By Steven A Alpert
10:00 AM
CONT...
Ahmad Heidari and Nafiseh Alamdar Heidari
Chapter 13
Joint Debtor(s):
Nafiseh Alamdar Heidari Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-10083
Griselda Renteria
Chapter 13
#3.00 Motion for relief from stay CSMC2018-RPL8 Trust
Docket 73
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 1/12/2016
Chapter: 13 (plan confirmed 6/30/2016) Service: Proper. Late opposition filed.
Property: 11341 Glenoaks Blvd., Pacoima, CA 91331-1623 Property Value: $330,000 (per debtor’s schedules)
Amount Owed: $332,127.09 Equity Cushion: 0.0% Equity: N/A
Post-Petition Delinquency: $7,068.76 (4 late payments of $1,773.18 each)
Movant requests relief under 11 U.S.C. § 362(d)(1), with the specific relief under paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 7 (waiver of the 4001(a)(3) stay). Movant alleges that the last payment received was on or about 1/29/2020.
Debtor opposes the Motion, explaining that her income was reduced because of the COVID-19 restrictions and requests to cure any deficiency in an APO. Have the parties had an opportunity to discuss an APO?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Griselda Renteria Represented By Kevin T Simon
10:00 AM
CONT...
Trustee(s):
Griselda Renteria
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#4.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION
fr. 12/11/19, 1/29/20; 2/26/520, 4/1/20; 4/29/20,
6/3/20 (moved)
Docket 74
Matter Notes:
NONE LISTED -
Tentative Ruling:
This hearing has been continued since 12/11/19 because Debtor asserted that Creditor was not applying payments properly. At a previous hearing on 2/26/20, the parties explained that they had resolved the accounting and that Debtor was three payments behind. At the April 1 hearing, the parties were negotiating an APO to cure the three payments. On May 4, 2020, Debtor filed a Request for 180-day Mortgage Forbearance Due to COVID-19 Pandemic. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
12/11/19 TENATIVE BELOW
Petition Date: 6/19/17
Chapter 13 plan confirmed: 11/14/17
Service: Proper; co-debtor served. Opposition filed. Property: 18795 Kenya St. Northridge, CA 91326
Property Value: $900,000 (per Debtor's declaration ISO Opposition) Amount Owed: $631,126
Equity: $268,874
Post-Petition Delinquency: $8,228.36 (3 payments of $2,836.14; less suspense balance of $280.06)
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 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay).
10:00 AM
CONT...
Linda Akerele Alele
Chapter 13
Debtor opposes the Motion, arguing that Movant has been misapplying payments, making it seem as if there is a delinquency when there is not. Debtor contends that she has made more payments than have been accounted for in the Motion. Have the parties had an opportunity to discuss the accounting?
Party Information
Debtor(s):
Linda Akerele Alele Pro Se
Movant(s):
U.S. Bank National Association, as Represented By
Josephine E Salmon Arnold L Graff Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11080
Rafael Huerta
Chapter 13
#5.00 Motion for relief from stay BAYVIEW LOAN SERVICING, LLC
fr. 5/20/20
Docket 39
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 4/27/2018
Chapter: 13 (plan confirmed 10/5/2018) Service: Proper. Opposition filed.
Property: 6319 Elmer Avenue, North Hollywood, CA 91606 Property Value: $504,308 (per debtor’s schedules)
Amount Owed: $381,132.64 Equity Cushion: 16.0% Equity: $123,175
Post-Petition Delinquency: $12,185.71 (5 late payments of $1,647.88 and 3 late payments of $1,695.75)
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); 7 (waiver of the 4001(a)(3) stay); and 13 (if stay not granted, order APO).
Debtor opposes and proposes to pay $3,000 up front towards pre-petition arrears and to enter into an APO.
Is the Movant amenable to an APO? TELEPHONIC APPEARANCE REQUIRED.
Party Information
10:00 AM
CONT...
Debtor(s):
Rafael Huerta
Chapter 13
Rafael Huerta Represented By William G Cort
Movant(s):
Bayview Loan Servicing, LLC Represented By Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11265
Stephanie Joyce Moore
Chapter 13
#6.00 Motion for relief from stay
NISSAN MOTOR ACCEPTANCE CORP.
fr. 5/6/20
Docket 62
*** VACATED *** REASON: Resolved per APO (ECF doc. 65) - hm Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephanie Joyce Moore Represented By Michael E Clark Barry E Borowitz
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10322
Louis Vargas
Chapter 13
#7.00 Motion for relief from stay
BAYVIEW LOAN SERVICING, LLC
Docket 58
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 2/12/2019
Chapter: 13 (plan confirmed 10/18/2019) Service: Proper. Opposition filed.
Property: 21635 Arcos Drive, Woodland Hills, CA 91364 Property Value: $912,857 (per debtor’s schedules) Amount Owed: $17,422.66 (per abstract of judgment) Equity Cushion: 90.0%
Equity: $912,857.00
Post-Petition Delinquency: N/A
Movant is a judgment creditor and holder of a recorded abstract of judgment. Movant requests relief under 11 U.S.C. § 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 4 (no stay in effect); 5 (annul stay); and 10 (relief binding & effective for 180 days against any debtor).
DENY relief under paragraphs 4 (no stay in effect) and 5 (annul stay) because the Court cannot retroactively annul the automatic stay. See Roman Catholic Archdiocese of San Juan, Puerto Rico v. Yali Acevedo Feliciano, 140 S.Ct. 696 (per curiam, Feb. 24, 2020). If Movant wishes to proceed with its request to annul the stay, the Court will set a briefing schedule to consider whether Acevedo controls here.
Debtor opposes stating that (1) more payments have been made to Movant than the Motion accounts for; and (2) Debtor intends to enter into an APO.
Is the Movant amenable to entering into an APO?
10:00 AM
CONT...
Louis Vargas
Chapter 13
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Louis Vargas Represented By
Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10828
Anna Barseghian
Chapter 7
#8.00 Motion to Extend Deadlines Set Forth in Order Granting Trustee's Motion to Approve Compromise of Controversy.
Docket 48
Matter Notes:
NONE LISTED -
Tentative Ruling:
The Trustee filed a Motion to Sell Real Property. A court order (1) provided a Buyer 60 days to close escrow by May 2, 2020; (2) set Debtor's deadline to close escrow to June 1, 2020 via a Substitute Buyer; (3) required Debtor, Debtor's husband, and all other occupants to vacate the Property by July 1, 2020 if a substitute buyer failed to close escrow by June 1, 2020.
Debtor now seeks a 90-day extension to the deadline (the "Motion") because the Buyer will be unable to close escrow due to the COVID-19 pandemic affecting his income. A Substitute Buyer allegedly intends to purchase the Property as soon as the Substitute Buyer returns to work. [Letter of Intent, Motion Ex. B]. Debtor states that she is proactively searching for other substitute buyers.
The Trustee opposes stating that (1) Debtor has not paid the mortgage, property taxes or insurance on the Property since April 1, 2019 to the detriment of the Estate; and (2) a Sale Motion is set for hearing on June 10, 2020 to sell the Property to a third party for $675,000 (per am. motion to sell, doc. 59).
The Trustee prefers to sell to the third party as opposed to Debtor's Substitute Buyer because: (1) there is no evidence that the Substitute Buyer is credit worthy to obtain a mortgage, has the money to make a down payment, has made an initial deposit or will become employed at any date certain in the future; (2) there is no evidence by declaration, sale agreement or otherwise that the Substitute Buyer has definitely committed to the sale; and (3) Debtor had well over 6 months to find a creditworthy buyer and failed, to the Estate's detriment.
TELEPHONIC APPEARANCE REQUIRED.
Party Information
10:00 AM
CONT...
Debtor(s):
Anna Barseghian
Chapter 7
Anna Barseghian Represented By Aris Artounians
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
10:00 AM
1:19-10836
Melissa D Kurtz
Chapter 13
#9.00 Motion for relief from stay
MOUNTAIN GLEN II CONDOMINIUM HOA
Docket 55
*** VACATED *** REASON: Resolved per APO (ECF doc. 60) - hm Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Melissa D Kurtz Represented By Kevin T Simon
Movant(s):
Mountain Glen II Condominium Represented By
Alexander G Meissner Bonni S Mantovani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10940
Laurie Francene Kinzer
Chapter 13
#10.00 Motion for relief from stay
TOWN & COUNTRY HOMEOWNERS ASSOC., INC.
fr. 4/29/20, 6/2/20 (Moved)
Docket 45
Matter Notes:
NONE LISTED -
Tentative Ruling:
This hearing was continued from 4/29/20 so that the parties could discuss whether an APO may resolve the relief from stay, and whether a consensual resolution of the attorney fee issue may be found. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED.
4-29-20 TENTATIVE BELOW
Petition Date: 04/17/2019
Ch: 13; confirmed on 7/22/2019 Service: Proper. Opp. filed
Property: 5800 Kanan Road Unit #272 Agoura Hills, CA 91301 Property Value: $ $350,000 (per debtor’s schedules)
Amount Owed: $ Total Claim=$28,718.38 (doc 45-3); Mortgagor U.S Trust Bank Owed $203,317.31.
Equity Cushion: n/a Equity: n/a
Post-Petition Delinquency: $6,892.50 (5 payments of $393.80 + Attorneys Fees of $2,040.45 + various late charges)
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 (waiver of the 4001(a)(3)
10:00 AM
CONT...
Laurie Francene Kinzer
Chapter 13
stay); 7 (law enforcement may evict); 8 (relief under 362(d)(4)); and 9 (relief binding & effective for 180 days against any debtor). Movant alleges that since the petition date, Debtor has continually failed to pay its monthly homeowner association dues to Movant. Movant also argues that there are grounds for in rem and extraordinary relief because of multiple filings by Debtor done to hinder, delay, and defraud creditors.
Debtor opposes the Motion, arguing that Movant has unfairly included attorneys’ fees from a separate state court action in calculating its post- petition debt. Debtor filed this bankruptcy petition on 4/17/2019, yet Movant charged attorneys’ fees for state court proceedings on four separate occasions—while the stay was in effect. Debtor wishes to cure any delinquency via an APO.
Movant has filed a Reply that asserts that the court appearances were not in violation of the automatic stay because they were mere Case Management Conferences to advise the state court whether the Automatic Stay was still in effect.
Debtor has had two previous filings, a chapter 7 from 2014 that was closed before discharge was entered, and another chapter 13 in 2016 that was dismissed for failure to make plan payments 1.5 years after a plan was confirmed. On this record, the Court does not find that Debtor's filing history are grounds for in rem relief under 362(d)(4).
If Movant intends to add to their claim the cost of attorney's fees in connection with this Motion, the Court will review the fees sought for reasonableness, as they are being sought against a debtor and will be paid from her estate. The Court will consider whether to award reasonable attorney fees and costs to Movant, if a declaration is filed, simultaneously with lodged order, attesting to the amount of fees and costs incurred on account of this motion.
Have the parties had an opportunity to discuss whether this matter can be resolved consensually via APO?
TELEPHONIC APPEARANCE REQUIRED
Party Information
10:00 AM
CONT...
Debtor(s):
Laurie Francene Kinzer
Chapter 13
Laurie Francene Kinzer Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11427
Lecia Kay Westerman
Chapter 13
#11.00 Motion for relief from Stay HSBC BANK USA
fr. 5/20/20
Docket 54
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 6/7/2019
Chapter: 13 (plan confirmed on 10/18/2019) Service: Proper. Opposition filed.
Property: 13342 Barbara Ann Street, North Hollywood, CA 91605 Property Value: $660,295.00 (per debtor’s schedules)
Amount Owed: $653,389.87 Equity Cushion: 0.0% Equity: $6,906
Post-Petition Delinquency: $16,440.48 (4 late payments of $3,782.47 each)
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); 7 (waiver of the 4001(a)(3) stay); and 13 (if stay not granted, order APO).
Debtors opposes stating that (1) he has been greatly impacted financially by the COVID-19 pandemic and that he is requesting a forbearance agreement with the Movant; and (2) the Property is necessary for an effective reorganization because it is Debtor's primary residence.
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Lecia Kay Westerman Represented By
10:00 AM
CONT...
Trustee(s):
Lecia Kay Westerman
Kevin T Simon
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11618
Sidney Jay Levin and Patricia Elizabeth Levin
Chapter 7
#12.00 Amended Motion for relief from stay WILMINGTON SAVINGS FUND SOCIETY
Docket 34
Matter Notes:
NONE LISTED -
Tentative Ruling:
A discharge was entered in this chapter 7 case on 10/21/2019, thereby terminating the automatic stay under 11 U.S.C. 362(c)(2)(C). No request for annulment or in rem relief was made. The motion is therefore DENIED as moot.
NO APPEARANCE REQUIRED. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Sidney Jay Levin Represented By Charles Shamash
Joint Debtor(s):
Patricia Elizabeth Levin Represented By Charles Shamash
Movant(s):
Wilmington Savings Fund Society, Represented By
Sean C Ferry
Trustee(s):
Diane C Weil (TR) Pro Se
10:00 AM
1:19-11758
Aram Setrak Ohanesian
Chapter 13
#13.00 Motion for relief from stay
TOYOTA LEASE TRUST AS SERVICE BY TOYOTA MOTOR CREDIT CORP.
fr.4/8/20; 4/29/20, 6/3/20 (Moved)
Docket 22
Matter Notes:
NONE LISTED -
Tentative Ruling:
This hearing was continued from 4/8/20 and 4/29/20, so that the parties could discuss curing the delinquency via an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
4-8-2020 Tentative Below
Petition Date: 4/15/19
Ch.13 confirmed on 10/18/19 Service: Proper. Opposition filed. Property: 2017 LEXUS RX350
Property Value: $ 20,350 (per debtor’s schedules) Amount Owed: $ 38,658.89
Equity Cushion: n/a (lease) Equity: n/a (lease)
Post-Petition Delinquency: $1,600 (2 post-petition payments of $550 and 1 post-petition payment of $500).
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)(3) stay). Movant alleges that the last payment of $600 was received on or about 1/6/2020.
10:00 AM
CONT...
Aram Setrak Ohanesian
Chapter 13
Debtor opposes the motion and wishes to enter an APO with Movant.
Party Information
Debtor(s):
Aram Setrak Ohanesian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12276
Irma Kaarina Hiltunen
Chapter 13
#14.00 Motion for relief from stay
WILMINGTON SAVINGS FUND sOCIETY
fr. 6/3/20 (moved)
Docket 32
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 9/11/2019
Chapter: 13 (plan confirmed 12/6/2019)
Service: Proper (co-debtor served). No opposition filed. Property: 20402 Lanark Street, Los Angeles, CA 91306 Property Value: $572,000 (per debtor’s schedules) Amount Owed: $375,585.46
Equity Cushion: 26.0% Equity: $196,415
Post-Petition Delinquency: $10,126.26 (4 late payments of $2,694.94 each)
Disposition: GRANT relief under 11 U.S.C. § 362(d)(1). GRANT relief under 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 13 (if stay not granted, order APO).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Irma Kaarina Hiltunen Represented By William G Cort
10:00 AM
CONT...
Movant(s):
Irma Kaarina Hiltunen
Chapter 13
WILMINGTON SAVINGS FUND Represented By
Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12355
Dang Ly Phuong
Chapter 13
#15.00 Motion for relief from stay
WILMINGTON TRUST, NATIONAL ASSO.
Docket 49
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 9/18/2019
Chapter: 13 (plan confirmed 12/6/2019) Service: Proper. No opposition filed.
Property: 8165 Tunney Avenue, Reseda, CA 91335 Property Value: $581,034 (per debtor’s schedules) Amount Owed: $442,247.52
Equity Cushion: 16.0% Equity: $138,787
Post-Petition Delinquency: $7,290.11 (2 late payments of $3,041.78 each)
Disposition: GRANT requested relief under 11 U.S.C. § 362(d)(1), with specific relief requested under 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.
Party Information
Debtor(s):
Dang Ly Phuong Represented By Kevin T Simon
Movant(s):
Wilmington Trust, National Represented By Nancy L Lee
10:00 AM
CONT...
Trustee(s):
Dang Ly Phuong
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12605
Ramin Ghamsari
Chapter 13
#16.00 Motion to vacate dismissal
Docket 37
Matter Notes:
NONE LISTED -
Tentative Ruling:
On 11/7/19, Debtor was dismissed w/ 180-day bar because of repeat filing within the year, after not appearing at the OSC hearing held on 11/6/19. On February 10, 2020, Debtor filed a Motion to Reopen Chapter 13 Case. On February 20, 2020, the Court entered an Order Granting the Motion to Reopen Case but the Order contained language related to t"reinstatement" of the case, not reopening the case under § 350. Debtor then attempted to renotice the 341(a) meeting & moved to impose a stay in the dismissed case. Those were rejected by the Clerk's office staff. The Court then entered an Amended Reopen Order on February 20, 2020, clarifying that the case was open but still dismissed.
Thereafter, two RFS were filed related to a property in Bakersfield (doc. 28) and a property in Costa Mesa (doc. 31) in the dismissed but reopened case. The RFS Movant on the Costa Mesa Property (6/2/2020, cal. no. 17) asserts grounds for in rem relief because the borrower, David Michael Weisman, transferred the Costa Mesa Property to this Debtor and Ernest Martinez, without authorization and for no consideration.
Debtor contends that since reopening of the case, he has negotiated with all creditors, including Citizens One Bank, the IRS, and the FTB to resolve or settle accounts outside of bankruptcy. Debtor wishes to continue with the Chapter 13 case and begin making payments to settle debts and moves the court for an order vacating dismissal under FRBP 9024 and Fed. R. Civ. P. 60(b).
Creditors Citizens Bank, the IRS, and the FTB were not properly served. TELEPHONIC APPEARANCE REQUIRED
Party Information
10:00 AM
CONT...
Debtor(s):
Ramin Ghamsari
Chapter 13
Ramin Ghamsari Represented By Michael Okayo
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12605
Ramin Ghamsari
Chapter 13
#17.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO. fr. 5/20/20
Docket 31
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 10/16/2019
Chapter: 13 (not confirmed). No opposition filed. Service: Proper (co-debtors served).
Property: 2039 Irvine Avenue, Costa Mesa, CA 92627 Property Value: N/A (per debtor’s schedules)
Amount Owed: $1,457,715.62 Equity Cushion: 0.0%
Equity: N/A
Post-Petition Delinquency: $22,292.30 (5 late payments of $4,458.46 each)
Movant alleges cause for relief under 362(d)(4) due to the filing of Debtor's bankruptcy petition as part of a scheme to delay, hinder, or defraud creditors, which involved the transfer of all or part ownership of, or other interest in, the Property without the consent of Movant or court approval.
Disposition: GRANT requested relief under 11 U.S.C. § 362(d)(1). GRANT specific relief under 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); 9 (relief under 362(d)(4)); 12 (Debtor is a borrower for purposes of Cal. Civ. Code. 2923.5); and 13 (if stay not granted, order APO).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT
10:00 AM
CONT...
Ramin Ghamsari
Chapter 13
HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Ramin Ghamsari Represented By Michael Okayo
Movant(s):
U.S. Bank National Association, as Represented By
Kirsten Martinez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12798
Jonathan Emrys
Chapter 13
#18.00 Motion for relief from stay WELLS FARGO BANK, N.A.
Docket 29
*** VACATED *** REASON: Withdrawal filed - Doc #31. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jonathan Emrys Represented By Stephen Parry
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-13021
Peter Clayton Purcell
Chapter 13
#19.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOC. fr, 4/29/20, 6/3/20 (moved)
Docket 22
Matter Notes:
NONE LISTED -
Tentative Ruling:
This hearing was continued from 4-29-20 because Debtor tendered an additional payment to Movant and so that the parties could discuss an APO for any remaining deficiency. Nothing has been filed since the last hearing. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
4-29-20 TENTATIVE BELOW
Ch. 13 Petition Date: 12/04/2019. Plan Confirmed on 03/19/2020. Service: Proper. Opposition filed.
Property: 7210 Darnoch Way, West Hills, CA 91307-1801 Property Value: $688,000 (per debtor’s schedules) Amount Owed: $599,257.50
Equity Cushion: 12.0% Equity: $88.742.5
Post-Petition Delinquency: $5,011.81 (3 payments of $2,496.06 less suspense of $2,476.37)
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); 6 (termination of co-debtor stay); and 7 (waiver of the 4001(a)(3) stay). Movant alleges that it last received payment on 02/28/2020.
10:00 AM
CONT...
Peter Clayton Purcell
Chapter 13
Debtor opposes the Motion, arguing that he is post-petition current and that Movant has not applied his payments. Have the parties had an opportunity to discuss the accounting?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Peter Clayton Purcell Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-13069
Kenneth Lee Altbush
Chapter 13
#20.00 Motion for relief from stay US BANK TRUST NA
fr. 6/3/20 (Moved)
Docket 54
*** VACATED *** REASON: Resolved per APO (doc. 61) - hm Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Kenneth Lee Altbush Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Movant(s):
U.S. Bank Trust NA as trustee of the Represented By
Lemuel Bryant Jaquez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10213
Afsaneh Doost
Chapter 7
#21.00 Motion to Dismiss Case Pursuant to
11 U.S.C. § 707(b)(3)(A) With a One-Year Bar to Refiling Pursuant to 11 U.S.C. §§ 105(a) and 349(a)
fr. 6/3/20 (moved)
Docket 21
Matter Notes:
NONE LISTED -
Tentative Ruling:
U.S. Trustee moves for dismissal of this case with a one-year bar to refiling.
U.S. Trustee argues that the timing of the filing of this case in relationship to the scheduled foreclosure sale of Debtor's real property, the history of failed bankruptcies, and Debtor’s repeated failure to appear at his § 341(a) meeting and respond to the U.S. Trustee’s request for information, support a finding that this case has been filed in order to improperly obtain protection from the Bankruptcy Code and to buy time with no intent to reorganize the Debtor’s debts.
Service proper. No opposition filed. Motion GRANTED; the case is dismissed pursuant to § 707(b)(3)(A).
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Afsaneh Doost Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:20-10443
Gilbert J Gonzaga and Chona Sangco Chua Gonzaga
Chapter 7
#22.00 Motion for relief from stay LEAH HAGEN
Docket 17
*** VACATED *** REASON: cont. to 6/10/10 @ 10am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Gilbert J Gonzaga Represented By Kevin T Simon
Joint Debtor(s):
Chona Sangco Chua Gonzaga Represented By Kevin T Simon
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:20-10499
Gina Kodzic
Chapter 7
#23.00 Motion for relief from stay
ACAR LEASING LTD
DBA GM FINANCIAL LEASEING
Docket 13
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 2/29/2020 Chapter: 7
Service: Proper. No opposition filed. Property: 2017 Chevy Malibu Property Value: Leased Vehicle Amount Owed: $17,744.44
Equity Cushion: N/A leased vehicle Equity: $0.00.
Post-Petition Delinquency: $432.23
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.
Party Information
Debtor(s):
Gina Kodzic Represented By
Karen Ware
10:00 AM
CONT...
Movant(s):
Gina Kodzic
Chapter 7
ACAR Leasing LTD d/b/a GM Represented By Sheryl K Ith
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:20-10586
Anna Barseghyan
Chapter 7
#24.00 Motion for relief from stay
DAIMLER TRUST
Docket 18
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 3/10/2020 Chapter: 7
Service: Proper. No opposition filed. Property: 2018 Mercedes Benz Property Value: Leased Vehicle Amount Owed: $51,266
Equity Cushion: N/A Equity: N/A
Post-Petition Delinquency: $51,266
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.
Party Information
Debtor(s):
Anna Barseghyan Represented By
Rabin J Pournazarian
10:00 AM
CONT...
Trustee(s):
Anna Barseghyan
Chapter 7
Amy L Goldman (TR) Pro Se
10:00 AM
1:20-10726
Jonathan Edward Guzman
Chapter 7
#25.00 Motion for relief from stay TD AUTO FINANCE LLC
fr. 6/3/20 (moved)
Docket 10
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 3/31/2020 Chapter: 7
Service: Proper. No opposition filed. Property: 2016 Chevy Silverado
Property Value: $24,170 (per debtor’s schedules) Amount Owed: $32,066.42
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $3,950.25
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.
Party Information
Debtor(s):
Jonathan Edward Guzman Represented By Danny K Agai
10:00 AM
CONT...
Movant(s):
Jonathan Edward Guzman
Chapter 7
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
1:12-19998
Process America, Inc.
Chapter 11
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
#26.00 Status conference re complaint for: damages and equitable relief
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, 6/26/19
9/21/18, 10/31/18; 12/12/18, 2/27/19; 3/13/19; 12/11/19, 1/29/20
2/26/20; 3/25/20; 5/20/20
Docket 1
Matter Notes:
NONE LISTED -
Tentative Ruling:
Tigrent has settled with defendants Kim Ricketts, Keith Phillips and Gwendolyn Phillips, and has dismissed each of these defendants from this action. In February 2020, Tigrent filed a SR, explaining that it is engaged in discussions with defendant Craig Rickard regarding a potential negotiated resolution of the adversary proceeding. Nothing has been filed since the last hearing. What is the status of this adversary proceeding?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Process America, Inc. Represented By Ron Bender
John-patrick M Fritz
11:00 AM
CONT...
Process America, Inc.
Chapter 11
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
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
U.S. Trustee(s):
United States Trustee (SV) Pro Se
11:00 AM
1:19-10726
Victoria Kristin Burak
Chapter 7
Adv#: 1:19-01111 Coha et al v. Burak
#26.01 Adversary Status Conference
Docket 12
Matter Notes:
- NONE LISTED -
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Victoria Kristin Burak Represented By
R Grace Rodriguez
Defendant(s):
Victoria Kristin Burak Represented By
R Grace Rodriguez
Plaintiff(s):
Loretta M Coha Represented By James W Bates
Equity Trust Company, Custodian Represented By
James W Bates
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:19-10727
Mary Kristin Burak
Chapter 13
Adv#: 1:19-01082 Coha et al v. Burak
#27.00 Status Conference Re: Complaint Objectiong to Discharge of Debtor based Upon False Pretenses, False Representations, Actual Fraud.
fr. 9/18/19; 12/11/19; 5/20/20
Docket 1
Matter Notes:
- NONE LISTED -
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Mary Kristin Burak Represented By
R Grace Rodriguez
Defendant(s):
Mary Kristin Burak Pro Se
Plaintiff(s):
Loretta M Coha Represented By James W Bates
Equity Title Company Represented By James W Bates
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:18-12917
Sohail Mobasseri
Chapter 7
Adv#: 1:19-01049 LendingHome Funding Corp. v. Mobasseri
#28.00 Motion for Reconsideration of Plaintiff's Motion for Summary Judgment
fr. 5/13/20, 6/3/20 (moved),
Docket 35
Matter Notes:
- NONE LISTED -
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Property Specialists Group, Inc. ("PSG") is a Nevada corporation. PSG documents dated in 2014 indicate Sohail Mobasseri ("Debtor" or "Defendant") as the president and secretary of PSG. In 2015, LendingHome Funding Corp. ("LendingHome" or "Plaintiff") loaned $961,200 ("Loan") to PSG. The Loan was secured by a deed of trust against a real property located at 15229 Hesby Street, Sherman Oaks, California ("Hesby Property"). Debtor signed the Loan documents as PSG’s president and personally guaranteed the Loan
In 2017, attorney Dana Douglas ("Douglas") filed a voluntary chapter 11 petition on behalf of PSG, which Debtor signed as PSG's president. PSG listed three properties in its schedules: (1) the Hesby Property; (2) 28045 Promontory Lane, Valencia, California ("Valencia Property"); and (3) 5460 White Oak Ave., #
6-205, Encino, California ("White Oak Property"). Debtor signed the PSG Schedules and Statement of Financial Affairs ("SOFA") as president and declared the information true and correct. Later, the bankruptcy court dismissed the PSG bankruptcy case because of a stipulation between PSG and the United States Trustee.
At the time of filing its petition, Plaintiff contends that PSG held title to at least four additional parcels of real property. These properties are each located at: (1) 27648 Ron Ridge Drive, Santa Clarita, California ("Santa Clarita Property"); (2) 9570 Olive Street, Temple City, California ("Temple City Property"); (3) 27503 Nike Lane, Canyon Country, California ("Canyon Country Property"); and (4) 18721 Hatteras
1:00 PM
CONT...
Sohail Mobasseri
Chapter 7
Street, Unit 10, Tarzana, California ("Tarzana Property"). Plaintiff alleges that PSG held title to these properties on its petition date but did not list these properties on its schedules. In addition, Plaintiff asserts that PSG did not disclose various lawsuits to which it was a party, including a lawsuit it filed against HSBC Mortgage, which pertained to the Temple City Property. Plaintiff argues that Debtor was aware of the Temple City lawsuit and signed a declaration that was filed in September 2015. In October 2017, LendingHome conducted a foreclosure sale of the Hesby Property, which left a $166,853.38 deficiency balance. The deficiency balance remains unpaid and owing under Debtor’s guaranty.
On December 5, 2018 Douglas filed a chapter 7 bankruptcy petition on behalf of Debtor. Debtor also filed his Schedules, a Statement of Financial Affairs ("SOFA"), and a Statement of Related Cases. Debtor signed the Petition, Schedules, SOFA, Statement of Related Cases, and declared the information true and correct.
On April 30, 2019, LendingHome filed an adversary complaint against Debtor ("Complaint"). On June 1, 2019, Debtor, by his counsel, filed an Answer to the complaint. Ad. ECF doc. 7. Debtor characterizes the Answer as a "general denial" and states that the substance of the Answer was not discussed with him, nor was he served with the Answer.
On July 17, 2019, a status conference was held for this adversary proceeding. Kerry Moynihan appeared telephonically for Plaintiff; no appearance was made on behalf of Debtor. Debtor’s counsel, however, did file an Amended Answer on July 17, 2019 which contained detailed admissions and denials of the allegations, largely relating to the earlier PSG bankruptcy. Ad. ECF doc. 9. The Amended Answer was not served on Debtor.
On November 21, 2019, LendingHome filed a motion for partial summary judgment ("MSJ") as to its first, second, and third claim for relief. Debtor was not personally served, nor was an opposition filed on his behalf. On January 8, 2020, the Court held a hearing on the MSJ, at which no appearance was made on behalf of Debtor. No opposition being offered by Defendant at the hearing, the Court granted the MSJ and adopted its tentative ruling thereon. Ad. ECF doc. 15. A Judgment Denying Debtor’s Discharge under § 727(a) was entered on January 21, 2020 (the "727 Judgment," ad. ECF doc. 21). After summary judgment was granted, Douglas stipulated with Plaintiff to dismiss the Fourth Cause of Action as unnecessary because of the 727 Judgment. Ad. ECF doc. 17.
1:00 PM
CONT...
Sohail Mobasseri
On February 4, 2020. Defendant, via his new counsel, filed an appeal with
Chapter 7
the Bankruptcy Appellate Panel of the Ninth Circuit (the "BAP"). On April 1, 2020, Defendant filed this Motion for an Indicative Ruling, requesting that the Court grant relief under FRBP 8008(a)(3) to "state that [it] would grant the motion if the court where the appeal is pending remands for that purpose, or state that the motion raises a substantial issue." If granted, Debtor states that he will promptly advise the BAP of that ruling.
Standard
Under Rule 60, the moving party is not permitted to revisit the merits of the underlying order; instead, grounds for reconsideration require a showing that events subsequent to the entry of the judgment make its enforcement unfair or inappropriate, or that the party was deprived of a fair opportunity to appear and be heard. United Student Funds, Inc. v. Wylie (In re Wylie), 349 B.R. 204, 209 (B.A.P. 9th Cir. 2006). Under Rule 60, the court may relieve a party from an order for:
mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
the judgment is void;
the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; and
any other reason that justifies relief.
Fed. R. Civ. P. 60(b). In general, the burden of proof is on the party bringing a Rule 60(b) motion. See In re Gonzalez, 2019 WL 1495729 (Bankr. C.D. Cal. March 29, 2019).
A Rule 60(b) motion for reconsideration is timely if brought within a reasonable time and if based on grounds (1), (2), or (3) enumerated above, then no more than a year after entry of the order. Fed. R. Civ. P. 60(c).
The Ninth Circuit has held that relief under Rule 60(b)(6) is appropriate if he shows "extraordinary circumstances which prevented or rendered him unable to prosecute[his case]." Martella v. Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th Cir.1971); see also Pioneer
1:00 PM
CONT...
Sohail Mobasseri
Chapter 7
Investment Servs. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 393 (1993). "The party must demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the prosecution or defense of the action in a proper fashion." Delay v. Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007) (quoting Community Dental Services v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002)).
In the Ninth Circuit, a client is ordinarily chargeable with his counsel's negligent acts. Clients are "considered to have notice of all facts known to their lawyer-agent." Community Dental Services v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002), citing Ringgold Corp. v. Worrall, 880 F.2d 1138, 1141–42 (9th Cir.1989). In Community Dental v. Tani, the Ninth Circuit held that where the client has demonstrated gross negligence on the part of his counsel, a default judgment against the client may be set aside pursuant to Rule 60(b) (6). Tani, 282 F.3d at 1170. In so holding, the Ninth Circuit explained that, in civil cases, courts have traditionally used the phrase "gross negligence" to signify a greater, and less excusable, degree of negligence, and have required parties alleging gross negligence to establish the existence of a more serious violation of the actor's duty. Id.
Defendant argues that "extraordinary circumstances" exist here to reconsider the 727 Judgment, as he alleges that his attorney, Dana Douglas, was grossly negligent in her representation of him in both this adversary and the bankruptcy. Defendant explained in his declaration that his primary language is Farsi and his understanding of English is "very poor." Decl. of Sohail Mobasseri ISO Reconsideration (the "Mobasseri Decl.), ¶2. Debtor contends that his business associate Sean Cohen, whom he met in 2014 and whom he alleges was the person who manufactured Defendant’s interest in PSG, advised him to file bankruptcy for his credit card debt. Id. at ¶ 18.
Defendant claims that Cohen also paid Douglas’ fees. Id. Defendant then explained that he was not aware of the filing of this adversary complaint until August 2019, when he asked Douglas why his case was not complete. Id. at
¶ 20. Defendant further contends that Douglas did not inform him of the emails Plaintiff and Trustee sent to her, that Douglas did not mention to him the requests for admission, and that he used Google Translation to understand the emails Douglas did send. Id. at ¶ 21. Defendant also included as an exhibit to his Motion a copy of a translation of the 341(a) meeting that he alleges shows deficiencies in how the trustee’s questions were translated into Farsi. Decl. of Jon Hayes ISO Reconsideration, Ex. E.
1:00 PM
CONT...
Sohail Mobasseri
Plaintiff, in opposing the Reconsideration, argues that Douglas was
Chapter 7
active in this case and does not appear to have abandoned her client. See Opposition, 2:10 – 3:28; 4:23-26. In fact, after the summary judgment motion was granted, Douglas, seemingly on behalf of Defendant, stipulated to dismiss the Fourth Cause of Action as unnecessary because of the 727 Judgment. Id.; see also ad. ECF doc. 17. Plaintiff argues that Defendant cannot show that circumstances beyond his control prevented him from proceeding with the prosecution or defense of this adversary because, even if Defendant was ignorant facts asserted in the summary judgment motion regarding PSG, he was so by his own willful ignorance. Plaintiff maintains this pattern of willful ignorance is present in Defendant’s dealings with not only Douglas, but also Mr. Cohen and Mr. Brifman (PSG’s attorney).
Defendant notes that the myriad actions taken by Douglas that were described by Plaintiff seem to have been undertaken without his knowledge or consent. Defendant asserts that Douglas filed his personal case without ever meeting with him, did not review his schedules or anything else with him, and only had him sign one piece of paper for the PSG bankruptcy. Defendant claims to have met Douglas for the first time at the § 341(a) meeting of creditors. Defendant maintains that Douglas’ conflict in representing PSG and him, as well as her inability to communicate with Defendant because of the language difficulties (as well as her apparent disinterestedness in communicating with him) highlights the extraordinary circumstances presented here. Defendant seeks an opportunity to give testimony as to his knowledge and lack of intent, and to have the matter resolved on its merits.
The Court finds that Defendant has shown extraordinary circumstances beyond his control that prevented him from putting forth a proper defense. Douglas’ marked lack of communication with her client, Defendant, while facing a dispositive motion to wholly deny his discharge presents the type of gross negligence necessary to establish a grave violation of Counsel’s duty. While she may have taken actions in this adversary, the assertions in Defendant’s declaration show that Douglas’ failure to communicate coupled with her advising Debtor that "everything would be fine" and that "she would take care of it" while stipulating to relief after the 727 Judgment was entered support Debtor’s argument that Douglas was deliberately misleading him, thereby depriving him of his opportunity to take action to defend himself. Rule 60(b)(6) should be "liberally applied" "to accomplish justice." Hammer v. Drago, et al. (In re Hammer), 940 F.2d 524, 525 (9th Cir. 1991). At the same time, Rule 60(b)(6) should be "used
1:00 PM
CONT...
Sohail Mobasseri
Chapter 7
sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." International Fibercom, 506 F.3d 933, 941 (9th Cir. 2007)(internal citations omitted).
For the reasons stated above, the Court finds that there are grounds to reconsider its granting of the MSJ and entry of the 727 Judgment.
Therefore, Defendant’s Motion for an Indicative Ruling is GRANTED under FRBP 8008(a)(3).
Party Information
Debtor(s):
Sohail Mobasseri Represented By Dana M Douglas
Defendant(s):
Sohail Mobasseri Represented By Dana M Douglas
M. Jonathan Hayes
Plaintiff(s):
LendingHome Funding Corp. Represented By Adam Forest
Kerry A. Moynihan
Trustee(s):
David Keith Gottlieb (TR) Pro Se
9:30 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#1.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION
fr. 12/11/19, 1/29/20; 2/26/520, 4/1/20; 4/29/20
Docket 74
Debtor(s):
*** VACATED *** REASON: Moved to 6/2/20 at 10:00 per Ord. #97. lf Party Information
Linda Akerele Alele Pro Se
Movant(s):
U.S. Bank National Association, as Represented By
Josephine E Salmon Arnold L Graff Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-10940
Laurie Francene Kinzer
Chapter 13
#2.00 Motion for relief from stay
TOWN & COUNTRY HOMEOWNERS ASSOC., INC.
fr. 4/29/20
Docket 45
Debtor(s):
*** VACATED *** REASON: Moved to 6/2/20 @ 10:00 per Ord. #51. lf Party Information
Laurie Francene Kinzer Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-11758
Aram Setrak Ohanesian
Chapter 13
#3.00 Motion for relief from stay
TOYOTA LEASE TRUST AS SERVICE BY TOYOTA MOTOR CREDIT CORP.
fr.4/8/20; 4/29/20
Docket 22
Debtor(s):
*** VACATED *** REASON: Moved to 6/2/20 at 10:00 per Ord. #28. lf Party Information
Aram Setrak Ohanesian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-13021
Peter Clayton Purcell
Chapter 13
#4.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOC. fr, 4/29/20
Docket 22
Debtor(s):
*** VACATED *** REASON: Moved to 6/2/20 at 10:00 per Ord. #27. lf Party Information
Peter Clayton Purcell Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12276
Irma Kaarina Hiltunen
Chapter 13
#5.00 Motion for relief from stay
WILMINGTON SAVINGS FUND sOCIETY
Docket 32
Debtor(s):
*** VACATED *** REASON: Moved to 6/2/20 at 10:00 per ord. #34. lf Party Information
Irma Kaarina Hiltunen Represented By William G Cort
Movant(s):
WILMINGTON SAVINGS FUND Represented By
Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-13069
Kenneth Lee Altbush
Chapter 13
#6.00 Motion for relief from stay US BANK TRUST NA
Docket 54
Debtor(s):
*** VACATED *** REASON: Moved to 6/2/20 per order #56. lf
Party Information
Kenneth Lee Altbush Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Movant(s):
U.S. Bank Trust NA as trustee of the Represented By
Lemuel Bryant Jaquez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10213
Afsaneh Doost
Chapter 7
#7.00 Motion to Dismiss Case Pursuant to
11 U.S.C. § 707(b)(3)(A) With a One-Year Bar to Refiling Pursuant to 11 U.S.C. §§ 105(a) and 349(a)
Docket 21
Debtor(s):
*** VACATED *** REASON: Moved to 6/2/20 at 10:00 per Ord. #25 - lf.
Party Information
Afsaneh Doost Pro Se
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:20-10726
Jonathan Edward Guzman
Chapter 7
#8.00 Motion for relief from stay TD AUTO FINANCE LLC
Docket 10
Debtor(s):
*** VACATED *** REASON: Moved to 6/2/20 @ 10:00 per Ord. #13. lf Party Information
Jonathan Edward Guzman Represented By Danny K Agai
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Amy L Goldman (TR) Pro Se
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#9.00 Motion to Dismiss Adversary Proceeding
Docket 59
Debtor(s):
*** VACATED *** REASON: Moved to 6/24/20 at 1:00 p.m. - hm
Party Information
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards Arnold L Graff
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Valerie J Schratz
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#10.00 Motion to set aside RE: Entry of Default
Docket 56
Debtor(s):
*** VACATED *** REASON: Moved to 6/24/20 at 1:00 p.m. - hm
Party Information
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards Arnold L Graff
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Valerie J Schratz
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:18-12917
Sohail Mobasseri
Chapter 7
Adv#: 1:19-01049 LendingHome Funding Corp. v. Mobasseri
#11.00 Motion for Reconsideration of Plaintiff's Motion for Summary Judgment
fr. 5/13/20
Docket 35
Debtor(s):
*** VACATED *** REASON: Moved to 6/2/20 at 1:00 p.m. - hm
Party Information
Sohail Mobasseri Represented By Dana M Douglas
Defendant(s):
Sohail Mobasseri Represented By Dana M Douglas
M. Jonathan Hayes
Plaintiff(s):
LendingHome Funding Corp. Represented By Adam Forest
Kerry A. Moynihan
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:14-13823
Rumio Sato
Chapter 13
#1.00 Motion for relief from stay SPECIALIZED LOAN SERVICING LLC.
Docket 218
Tentative Ruling:
Petition Date: 8/14/2014 Ch.13; confirmed on 2/17/2015
Service: Proper. No opposition filed.
Property: 28598 Kristin Lane, Highland, CA 92346 Property Value: $
Amount Owed: $ 587,209.06 Equity Cushion: 0.0%
Equity: $0.00.
Post-Petition Delinquency: $119,671.40 (48 payments of $2,494.45)
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); 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 an adversary proceeding 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 ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
Party Information
10:00 AM
CONT...
Debtor(s):
Rumio Sato
Chapter 13
Rumio Sato Represented By
Peter M Lively
Movant(s):
Specialized Loan Servicing LLC Represented By
Kirsten Martinez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-10507
Amjad Shaktah
Chapter 13
#2.00 Motion for relief from stay LAKEVIEW LOAN SERVICING, LLC.
Docket 119
Tentative Ruling:
Petition Date: 2/23/2016
Ch. 13; confirmed on 8/31/2016
Service: Proper; Co-Debtor Thomas Jarrod Michael served. Opposition filed. Property: 6513 Landfair Drive, Bakersfield, CA 93309
Property Value: unk. Amount Owed: $258,366.79 Equity Cushion: unk.
Equity: unk.
Post-Petition Delinquency: $16,991.00 (10 payments of $1,699.10)
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); 7 (waiver of the 4001(a)(3) stay), and 9 (relief under 362(d) (4).
On 2/23/16, Debtor filed the current Chapter 13 bankruptcy petition. Movant seeks to terminate the automatic stay and alleges that Debtor's petition is furthering a scheme to delay, hinder, and defraud creditors because Debtor has received an ownership interest in the Property without the consent of Movant or court approval.
On July 19, 2019, the original borrower, Fares Subeh ("Borrower") quitclaimed his interest in the Property to Debtor and Thomas Jarrod Michael as Joint Tenants with rights of survivorship. Since Debtor has received an interest in Property, no payments have been received by Movant
Thus, Movant wishes to terminate the stay in the current case and foreclose on the property.
Debtor opposes the Motion and argues that he is not engaged in a scheme to defraud
10:00 AM
CONT...
Amjad Shaktah
Chapter 13
Movant, but rather is a victim of fraud himself. Debtor argues that he paid Borrower
$4,000 as a down payment in consideration of the Quitclaim Deed. Debtor agreed to pay monthly mortgage payments to Borrower, who then would pay Movant. Debtor alleges that he paid a monthly mortgage payment of $1,000 to Borrower who was supposed to pay Movant, yet Borrower failed to do so and has left the country. (See Opposition, Exhibit D). Thus, Debtor believes that he has been defrauded by Borrower. Debtor seeks an APO. Is movant amenable?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Amjad Shaktah Represented By Kevin T Simon
Movant(s):
Lakeview Loan Servicing, LLC Represented By Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-13236
Francisco Montes and Elizabeth F Montes
Chapter 13
#3.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION
Docket 91
Tentative Ruling:
Petition Date: 11/09/2016 Ch.13; confirmed on 04/17/17
Service: Proper. Opposition filed.
Property: 18500 Mayall Street, Unit E, Northridge, CA 91324 Property Value: $386,000
Amount Owed: $203,513.08 Equity Cushion: 47.3% Equity: $182,486.92
Post-Petition Delinquency: $13,585.77 (6 payments of $1,575.00 + 3 payments of
$1,621.12 + advances of $750 less suspense balance of $1,477.99).
Movant alleges that the last payment of $1,625.00 was received was on or about 3/12/2020.
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 terminated); and 7 (waiver of the 4001(a)(3) stay).
Debtors oppose the motion and argue that having to move will incur additional costs which will impact their ability to fund their Plan. Debtors seek a six-month APO.
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Francisco Montes Represented By Elena Steers
10:00 AM
CONT...
Francisco Montes and Elizabeth F Montes
Chapter 13
Joint Debtor(s):
Elizabeth F Montes Represented By Elena Steers
Movant(s):
US Bank National Association Represented By Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10322
Louis Vargas
Chapter 13
#4.00 Motion for relief from stay LORI MINTZER
Docket 61
Tentative Ruling:
Petition Date: 2/12/2019
Ch.13; confirmed on 10/18/2019
Service: Proper. Opposition and Reply filed.
Property: 21635 Arcos Drive, Woodland Hills, CA 91364 Property Value: $912,857.00
Amount Owed: $ 35,740.43
Equity Cushion: 0.0% (2 deeds of trust encumber the Property) Equity: $0.00.
Post-Petition Delinquency:
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 4 (confirmation that no stay is in effect); 5 (the stay is annulled) and 7 (waiver of the 4001(a)(3) stay).
DENY relief under paragraphs 4 (no stay in effect) and 5 (annul stay) because the Court cannot retroactively annul the automatic stay. See Roman Catholic Archdiocese of San Juan, Puerto Rico v. Yali Acevedo Feliciano, 140 S.Ct. 696 (per curiam, Feb. 24, 2020). If Movant wishes to proceed with its request to annul the stay, the Court will set a briefing schedule to consider whether Acevedo controls here.
On 11/28/12, Movant obtained a money judgment against Debtor for $17,422.66. No payments have been made on the judgment and the current balance is $35,740.43. Movant alleges bad faith on the part of Debtor for failing to list Movant on his Schedules. Also, there are two deeds of Trust on the Property. Movant is delinquent on the first deed of trust (worth $619,455.55) to Bayview Loan Servicing and the parties are currently seeking an APO. Movant alleges that the second deed of trust
10:00 AM
CONT...
Louis Vargas
Chapter 13
(worth $412,000.00), held by Prescott Forbes Equity Group ("Prescott Holding") is not valid because Debtor is also the President of Prescott Holding.
Debtor denies that this bankruptcy case was filed in bad faith and states that he inadvertently omitted Movant's claim from his schedules. Debtor argues that the property is necessary for an effective reorganization because it is his principal residence where he resides with his family.
Given that Debtor failed to notify this Creditor--so that he was not provided for in the Chapter 13 plan--a sufficient APO must be figured out or relief from stay seems justified.
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Louis Vargas Represented By
Michael Jay Berger
Movant(s):
Lori Mintzer Represented By
Elsa M Horowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12205
Mauricio Nunez
Chapter 13
#5.00 Motion for relief from stay FREEDOM MORTGAGE CORP.
fr. 5/6/20
Docket 31
*** VACATED *** REASON: Resolved per APO (doc.36)-rc Tentative Ruling:
Party Information
Debtor(s):
Mauricio Nunez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12335
Emil Torosian and Lusine Balyan
Chapter 13
#6.00 Motion for relief from stay BMO HARRIS BANK N.A.
Docket 39
Tentative Ruling:
Petition Date: 09/16/2019
Chapter: 13; confirmed on 2/13/2020 Service: Proper. No opposition filed. Property: 2019 Utility 53' Dry Van Trailer
Property Value: $ 23,000 (per debtor’s schedules) Amount Owed: $ 27,144.00
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $2,319.17 (3 payments of $760.34 and 1 late charge of
$38.02)
Movant alleges that the last payment of $760.35 was received on or about 3/4/2020. Debtor is Guarantor of Loan and Security Agreement between Movant and Arm Trans Express, Inc.
GRANT relief under 11 U.S.C. 362(d)(1) and (d)(2), with specific 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.
Party Information
Debtor(s):
Emil Torosian Represented By Aris Artounians
Joint Debtor(s):
Lusine Balyan Represented By
10:00 AM
CONT...
Movant(s):
Emil Torosian and Lusine Balyan
Aris Artounians
Chapter 13
BMO HARRIS BANK N.A. Represented By
Raffi Khatchadourian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12619
Jean Francois Valero and Susan Wilkins Valero
Chapter 13
#7.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOCIATION
Docket 37
Tentative Ruling:
This case was dismissed on 5/21/2020, so the stay expired on that same day under 362(c)(2)(B). As Movant does not request extraordinary or in rem relief due to allegations of bad faith, this Motion is DENIED as moot.
MOVANT TO LODGE ORDER IN ACCORDANCE WITH THIS RULING WITHIN 7 DAYS. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Jean Francois Valero Represented By Lionel E Giron
Joint Debtor(s):
Susan Wilkins Valero Represented By Lionel E Giron
Movant(s):
U.S. Bank National Association, as Represented By
Robert P Zahradka
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12812
Morsheda Jhumur Hosain
Chapter 7
#8.00 Motion for relief from stay
RESIDENTIAL MORTGAGE LOAN TRUST
Docket 61
*** VACATED *** REASON: Voluntary Dismissal of Contested matter (doc.72) -rc
Tentative Ruling:
Party Information
Debtor(s):
Morsheda Jhumur Hosain Pro Se
Movant(s):
Residential Mortgage Loan Trust Represented By
Lemuel Bryant Jaquez
Trustee(s):
Nancy J Zamora (TR) Represented By Anthony A Friedman
10:00 AM
1:19-13113
Avetis Dzhigryan
Chapter 13
#9.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
Docket 22
Tentative Ruling:
Petition Date: 12/16/2019 Ch.13; not confirmed.
Service: Proper. Opposition filed.
Property: 6418 Beck Avenue, Los Angeles, CA 91606 Property Value: $ 711,000.00
Amount Owed: $ 164,184.90; Senior lien holder owed $301,673.00 Equity Cushion: 34.5%
Equity: $245,142.10
Post-Petition Delinquency: $5,530.32 ( 4 payments of $1,113.71 + 1 payment of
$1,075.39)
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); 7 (waiver of the 4001(a)(3) stay); and 12 (debtor defined as borrower.
Debtor opposes the motion, and disputes the total amount owed to Creditor. Debtor wishes to enter an APO.
TELEPHONIC APPEARANCES REQUIRED
Party Information
Debtor(s):
Avetis Dzhigryan Represented By Aris Artounians
Movant(s):
The Bank of New York Mellon f/k/a Represented By
Austin P Nagel
10:00 AM
CONT...
Trustee(s):
Avetis Dzhigryan
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10443
Gilbert J Gonzaga and Chona Sangco Chua Gonzaga
Chapter 7
#10.00 Motion for relief from stay LEAH HAGEN
fr. 6/2/20
Docket 17
Tentative Ruling:
TELEPHONIC APPEARANCES REQUIRED
Party Information
Debtor(s):
Gilbert J Gonzaga Represented By Kevin T Simon
Joint Debtor(s):
Chona Sangco Chua Gonzaga Represented By Kevin T Simon
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#11.00 Chpater 7 Trustee's Motion for Approval of Compromise by and Among Chapter 7 Trustee, Brent Berry and Susan Ferguson
Docket 2402
Tentative Ruling:
Service proper. No opposition filed. Having reviewed the Motion to Approve Compromise, the Court finds that the compromise is reasonable and in the best interest of the estate. The Motion is GRANTED
TRUSTEE TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 6/10/20.
Party Information
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 Jorge A Gaitan Robyn B Sokol
10:00 AM
1:18-12461
Melvyn Starkman
Chapter 7
#12.00 Trustee's Final Report and Applications for Compensation and Deadline to Object
Docket 33
Tentative Ruling:
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 6-10-20.
Party Information
Debtor(s):
Melvyn Starkman Represented By David S Hagen
Trustee(s):
Diane C Weil (TR) Pro Se
10:00 AM
1:19-10828
Anna Barseghian
Chapter 7
#13.00 Amended Trustee's Motion to (i) Sell Real Property Free and Clear of Liens. (ii) For Turnover of Real Property and (iii) Turnover of Personal Property
Docket 59
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Movant(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
10:00 AM
1:19-12322
M Shah Dental Inc
Chapter 7
#14.00 First Interim Application for Payment of Fees and Reimbursement of Expenses of Margulies Faith, LLP
Period: 10/17/2019 to 4/30/2020,
Fee: $112,780.50, Expenses: $960.60.
Docket 100
Tentative Ruling:
Service proper. Having reviewed the First Interim Application for Allowance of Fees and Reimbursement of Costs, the Court finds that the fees and costs were necessary and reasonable with the 20% holdback provided for in the Stipulation filed by the U.S. Trustee (ECF doc. 110). The Application is approved as stipulated.
APPLICANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 6-10-20.
Party Information
Debtor(s):
M Shah Dental Inc Represented By Shirlee L Bliss
Trustee(s):
Nancy J Zamora (TR) Represented By Noreen A Madoyan Jeremy Faith
10:00 AM
1:19-12322
M Shah Dental Inc
Chapter 7
#15.00 First Interim Fee Application of Chapter 7 Trustee for Approval of Compensation and Reimbursement of Expenses
Docket 90
Tentative Ruling:
Service proper. Having reviewed the First Interim Application for Allowance of Fees and Reimbursement of Costs, the Court finds that the fees and costs were necessary and reasonable with the 20% holdback provided for in the Stipulation filed by the U.S. Trustee (ECF doc. 110). The Application is approved as stipulated.
APPLICANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 6-10-20.
Party Information
Debtor(s):
M Shah Dental Inc Represented By Shirlee L Bliss
Movant(s):
Nancy J Zamora (TR) Represented By Noreen A Madoyan Jeremy Faith
Trustee(s):
Nancy J Zamora (TR) Represented By Noreen A Madoyan Jeremy Faith
10:00 AM
1:19-12322
M Shah Dental Inc
Chapter 7
#15.01 Application For Compensation and Reimbursement of Expenses of Grobstein Teeple LLP as Accountants For the Chapter 7 Trustee
Period: 10/30/2019 to 4/30/2020, Fee: $56,042.00, Expenses: $51.00.
Docket 99
Tentative Ruling:
Service proper. Having reviewed the First Interim Application for Allowance of Fees and Reimbursement of Costs, the Court finds that the fees and costs were necessary and reasonable with the 20% holdback provided for in the Stipulation filed by the U.S. Trustee (ECF doc. 110). The Application is approved as stipulated.
APPLICANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 6-10-20.
Party Information
Debtor(s):
M Shah Dental Inc Represented By Shirlee L Bliss
Trustee(s):
Nancy J Zamora (TR) Represented By Noreen A Madoyan Jeremy Faith
10:00 AM
1:19-12322
M Shah Dental Inc
Chapter 7
#15.02 Application for Compensation for Dr. Timothy J Stacy DNP , Period: 10/29/2019 to 5/8/2020, Fee: $8067.50, Expenses: $0.00.
Docket 98
Tentative Ruling:
Service proper. 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, as provided for in the Stipulation filed by the U.S. Trustee (ECF doc. 104). The Application is approved as stipulated.
APPLICANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 6-10-20.
Party Information
Debtor(s):
M Shah Dental Inc Represented By Shirlee L Bliss
Trustee(s):
Nancy J Zamora (TR) Represented By Noreen A Madoyan Jeremy Faith
10:00 AM
1:20-10402
Suheil Takriti
Chapter 7
#16.00 Order Show Cause re: Dismissal for non-payment of installment filing fees
Docket 13
Tentative Ruling:
Debtor filed Ch. 7 pro se petition on 02/21/20. Debtor lists 12711 Moore St., #108 Studio City, CA 91604 as his residence. Three notices have been given to show cause re dismissal for failure to comply with rule 1006(B) installments.
Prior BK cases
07-10107: Pro Se Chapter 7 petition filed by Suheil Takriti. Case closed and Debtor given Discharge on 07/05/2007.
06-10957: Pro Se Chapter 7 petition filed by Suheil Takriti. Case closed and dismissed without discharge for fail to file Financial Management Course Certificate.
Party Information
Debtor(s):
Suheil Takriti Pro Se
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
1:12-19998
Process America, Inc.
Chapter 11
#17.00 Status and case management conference
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,
1/23/19; 3/13/19, 6/26/19; 12/11/19; 4/8/20
Docket 1
*** VACATED *** REASON: Order granting Final Decree Entered 6/5/2020-rc
Tentative Ruling:
- NONE LISTED -
Party Information
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
1:15-13495
Picture Car Warehouse Inc
Chapter 11
#18.00 Post confirmation status conference
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, 8/8/18, 3/6/19, 8/21/19; 12/11/19
Docket 1
Tentative Ruling:
Having considered the Status Report, the Court finds cause to continue the status conference to December 9, at 11:00 AM. Debtor to give notice of Continue Status Conference.
NO APPEARANCE REQUIRED ON JUNE 10.
Party Information
Debtor(s):
Picture Car Warehouse Inc Represented By Carolyn A Dye
11:00 AM
1:16-11598
Farideh Warda
Chapter 11
#19.00 U.S. Trustee Motion to dismiss or convert case fr. 4/1/20
Docket 271
*** VACATED *** REASON: OUST filed a withdrawal - doc. #279. lf Tentative Ruling:
Party Information
Debtor(s):
Farideh Warda Pro Se
11:00 AM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#20.00 Status Conference re: First Amended Complaint fr. 8/29/18, 10/3/18; 10/10/2018, 2/6/19, 11/13/19
Docket 3
*** VACATED *** REASON: Cont'd to 9/9/20 @1:00 p.m. per Ord #125. lf
Tentative Ruling:
Party Information
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
Defendant(s):
Razmik Aslanjan Represented By
Raffy M Boulgourjian
Hamlet Betsarghez Pro Se
Helen Minassian Pro Se
Allen Melikian Pro Se
Kellzi Family Trust Pro Se
Zaven Kellzi Pro Se
Sonia Kellzi Pro Se
Alexander Usmanov Represented By Eamon Jafari
Natalia Usmanova Represented By Eamon Jafari
Mkrtchyan Investments, LP Pro Se
11:00 AM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
Greg Mkrchyan Pro Se
Neelam J. Savla Pro Se
Puja J. Savla Pro Se
Anjana S. Sura Pro Se
Arthur Nagapetyan Pro Se
Robert Askar Pro Se
Eva Askar Pro Se
AMERICAN FUNDERS CORP. Pro Se
Does 1-10, Inclusive Pro Se
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
1:18-11538
Momentum Development LLC
Chapter 7
Adv#: 1:19-01129 Weil v. The Pyramid Center, Inc.
#21.00 Status Conference re: Amended Complaint to Avoid Fraudulent Transfers fr. 1/15/20, 2/5/20, 3/4/20
Docket 9
Tentative Ruling:
Discovery cut-off (all discovery to be completed*): 10/30/20
Expert witness designation deadline (if necessary): at pretrial if not stipulated to beforehand
Case dispositive motion filing deadline (MSJ; 12(c)): Are any contemplated? Pretrial conference: 12/2/20 at 11 am
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference): 11/18/20
*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.
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
11:00 AM
CONT...
Momentum Development LLC
Chapter 7
requirement will be recognized by the Court.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Party Information
Debtor(s):
Momentum Development LLC Represented By
Michael H Raichelson
Defendant(s):
The Pyramid Center, Inc. Represented By
Michael H Raichelson
Plaintiff(s):
Diane Weil Represented By
David Seror Jorge A Gaitan
Trustee(s):
Diane C Weil (TR) Represented By David Seror Jorge A Gaitan
1:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
#22.00 Trustee's Final Report and Application for Compensation fr. 10/23/19, 1/29/20
Docket 199
*** VACATED *** REASON: Moved to be heard at 2pm (eg) Tentative Ruling:
This matter will be called at 1:00 p.m., to be heard with related matters.
APPEARANCES WAIVED AT 11:00 A.M.
Party Information
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
1:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
Adv#: 1:19-01041 Lipel v. Davis et al
#23.00 Status Conferencere re: First Amended Complain fr. 7/31/19; 8/28/19, 11/13/19, 1/29/20, 1/29/20
Docket 9
*** VACATED *** REASON: Moved to be heard at 2pm (eg) Tentative Ruling:
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler
Defendant(s):
Lesly Davis Represented By
Talin Keshishian
BRUTZKUS, GUBNER, Represented By Talin Keshishian
Plaintiff(s):
Vadim A Lipel Represented By
Blake J Lindemann
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
1:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
Adv#: 1:19-01041 Lipel v. Davis et al
#24.00 Motion of Plaintiff for Partial Summary Judgment on Count IV of The Second Amended Complaint
Docket 61
*** VACATED *** REASON: Moved to be heard at 2pm (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler Blake J Lindemann
Defendant(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Jorge A Gaitan
22845 Sparrowdell, LLC dba PBOG Represented By
Richard Burstein Talin Keshishian Jorge A Gaitan
Lesly Davis Represented By
Talin Keshishian Richard Burstein Jorge A Gaitan
BRUTZKUS, GUBNER, Represented By Talin Keshishian Richard Burstein Jorge A Gaitan
1:00 PM
CONT...
Vadim A Lipel
Chapter 7
Plaintiff(s):
Vadim A Lipel Represented By
Blake J Lindemann
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
1:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
Adv#: 1:19-01041 Lipel v. Davis et al
#25.00 Motion to Dismiss Adversary for lack of subject matter jurisdiction or, alternatively based on abstention.
Docket 73
*** VACATED *** REASON: Moved to be heard at 2pm (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler Blake J Lindemann
Defendant(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Jorge A Gaitan
22845 Sparrowdell, LLC dba PBOG Represented By
Richard Burstein Talin Keshishian Jorge A Gaitan
Lesly Davis Represented By
Talin Keshishian Richard Burstein Jorge A Gaitan Tommy Q Gallardo
BRUTZKUS, GUBNER, Represented By Talin Keshishian Richard Burstein Jorge A Gaitan
Tommy Q Gallardo
1:00 PM
CONT...
Vadim A Lipel
Chapter 7
Plaintiff(s):
Vadim A Lipel Represented By
Blake J Lindemann
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
1:00 PM
1:17-12980
Mainstream Advertising, a California Corporation
Chapter 7
Adv#: 1:20-01027 Goldman v. Bibi et al
#26.00 Status Conference re: Complaint for avoidance and recovery of avoidable transfer, 11 u.s.c. section 544, 547, 548, 550; Declaratory relief; Turnover breach of fiduciary duty; Preliminary and Permanent Injuction; Disallowance of proof of claim; Equitable subordination of claim.
fr. 5/6/20
Docket 1
Tentative Ruling:
Discovery cut-off (all discovery to be completed*):_11/30/20
Expert witness designation deadline (if necessary):set at P/T if needed
Case dispositive motion filing deadline (MSJ; 12(c)):file in time to be heard at P/T Pretrial conference:12/16/20 at 11 am
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) - 12/2/20
Party Information
Debtor(s):
Mainstream Advertising, a Represented By Kathleen P March
Defendant(s):
Danny Bibi Pro Se
Shahla Mishkanin Pro Se
Iraj Khoshnood Pro Se
Monetize.com, inc. Pro Se
1:00 PM
CONT...
Mainstream Advertising, a California Corporation
Chapter 7
Ad.com Interactive Media Inc. Pro Se
Plaintiff(s):
Amy L. Goldman Represented By John P. Reitman
Trustee(s):
Amy L Goldman (TR) Represented By David B Golubchik Peter J Mastan
Anthony A Friedman John P. Reitman Jack A. Reitman
1:00 PM
1:17-12980
Mainstream Advertising, a California Corporation
Chapter 7
Adv#: 1:20-01028 Goldman v. Berger
#27.00 Defendant Michael Berger's Motion to Dismiss Plaintiff Amy L. Goldman's, In Her Capacity as the Chapter 7 Trustee for the Bankruptcy Estate of Mainstream Advertising, Inc., Complaint For Failure to State A Claim Pursuant to Fed.R. Civ.P. Rule 12(b)(6)
fr. 5/13/20
Docket 10
Tentative Ruling:
The Trustee’s general allegations are that Mainstream Advertising, Inc. ("Mainstream") was created in or around April 2005 by Iraj Khoshnood ("Khoshood") and his wife, Shala Mishkanin ("Mishkanin"). At all relevant times, Mishkanin was Mainstream’s sole shareholder of record and President and/or Chief Executive Officer and generally operated Mainstream. Khoshood and Mishkanin’s son, Danny Bibi ("Bibi") was Mainstream’s de facto or de jure Vice President. Bibi owned and controlled other businesses, including Monetize.com, Inc. ("Monetize") and its subsidiary, Admedia.com, Inc. ("Admedia").
On November 8, 2017, creditor Moniker Online Services, LLC ("Moniker") commenced an involuntary bankruptcy proceeding against Mainstream. On March 7, 2018, the court entered an order for relief under Chapter 7 and appointed the Trustee on March 7, 2018. Defendant Michael Berger ("Berger") was Mainstream’s counsel during part of its time in bankruptcy. At the §341(a) meeting, Berger stated that he did not work for Bibi, Admedia, or Monetize, but only for Mainstream. Berger eventually withdrew from his representation of Mainstream.
On August 8, 2019, Berger filed a complaint in the Los Angeles County Superior Court for, inter alia, breach of contract against Mainstream, Bibi, Admedia, and Monetize (Berger v. Bibi, et. al., Los Angeles Superior Court Case No.
19STLC07386). On September 5, 2019, Berger filed a first amended complaint
1:00 PM
CONT...
Mainstream Advertising, a California Corporation
Chapter 7
("Berger FAC") in state court [Motion Ex. 1]. In the Berger FAC, Berger alleged that Bibi, Mainstream, Admedia, and Monetize are alter-egos of each other.
Berger did not disclose to the Trustee that he had commenced and was prosecuting the state court action. He also did not obtain relief from stay to prosecute the action.
Plaintiff Amy L. Goodman is the Chapter 7 Trustee (the "Trustee") for Mainstream’s bankruptcy estate (the "Estate".) The Trustee filed an adversary complaint on March 6, 2020 (the "Complaint"). The Complaint asserts four claims against Berger: (1) for the turnover of estate property under 11 U.S.C. § 542(a); (2) to avoid post-petition transfers under 11 U.S.C. § 549; (3) to recover avoided transfers under 11 U.S.C. § 550(a)(1) and (a)(2); and (4) for breach of fiduciary duty. On April 20, 2020, Berger filed a motion to dismiss the Complaint (the "Motion"). The Trustee filed an opposition (the "Opposition") and Berger replied (the "Reply").
Legal Standard
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the allegations 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).
In Ashcroft v. Iqbal, 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 that allows the
1:00 PM
CONT...
Mainstream Advertising, a California Corporation
Chapter 7
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. 556 U.S. 662, 678 (2009)(citations and internal quotation marks omitted).
The allegations of the complaint, along with other materials properly before the court on a motion to dismiss, can establish an absolute bar to recovery. See Weisbuch v. County of Los Angeles, 119 F.3d 778, 783 n. 1 (9th Cir. 1997)("If the pleadings establish facts compelling a decision one way, that is as good as if depositions and other expensively obtained evidence on summary judgment establishes the identical facts."). While the court generally must not consider materials outside the complaint, the court may consider exhibits submitted with the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.
1987). A court may also consider judicially noticed matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
First Claim for Relief
Under 11 U.S.C. § 542(a), any property of a bankruptcy estate held by any entity must be turned over to the trustee. 11 U.S.C. § 542(a); Henkel v. Frese, Hansen, Anderson, Hueston, & Whitehead, P.A. (In re Newgent Golf, Inc.), 402
B.R. 424, 435 (Bankr. S.D.Fla. 2009). The bankruptcy estate is comprised of "all legal or equitable interests of the debtor in property as of the commencement of the case…" 11 U.S.C. § 541(a)(1); United States v. Whiting Pools, Inc., 462 U.S. 198, 203 (1983).
In the Complaint, the Trustee alleges that Berger must turn over "his client files for Mainstream," which are property of the estate [Complaint ¶ 15]; that the "files are critical to the proper administration of the Estate" [Id. ¶ 16]; and that Berger currently possesses the Mainstream Files [Complaint ¶ 18]. The typical turnover issues of how the Trustee can use, sell or lease the property, or whether the alleged property of the estate is of inconsequential value or benefit to the estate are not particularly relevant with files that are needed for full administration of the estate. The question is more whether the files are those belonging to the Estate.
The Trustee also seeks "all documents including communications involving Bibi,
1:00 PM
CONT...
Mainstream Advertising, a California Corporation
Chapter 7
his mother, his father, and any other employee or representative of the debtor," but the Trustee has alleged no facts to show how such documents are property of the estate. [Opposition p. 7]. The Trustee’s first claim cannot include any files that are not Mainstream’s, but it is not clear whether this additional category is Mainstream’s files or not. It is certainly plausible that they are, given that Berger states he only represented Mainstream.
As a practical matter, there should not be such litigation over such a basic matter. While Mr. Berger may want an order to ensure he is not challenged later by new counsel, there is just no dispute that the Trustee has a right to any files of the Estate. This is the type of issue where a stipulation and order can easily be worked out. If there are certain files where there is a dispute as to whether they are Estate files, the description of such or the documents themselves can be submitted under seal, and the court can decide the narrow class of files in dispute. If there is no doubt that certain files belong to Mainstream, turn those over.
As only further factual discovery would tell whether the files in dispute belong to the Estate, the complaint is plausible on its face and the motion to dismiss this cause of action is denied.
Second & Third Claim for Relief
The Trustee’s second and third claims are (1) for the avoidance of transfers allegedly made to Berger under 11 U.S.C. § 549(a); and (2) for the recovery of the avoided transfer under 11 U.S.C. §§ 550(a)(1) and (a)(2).
A central policy of the Bankruptcy Code is equality of distribution among creditors of equal rank. Begier v. Internal Revenue Serv., 496 U.S. 53, 58 (1990). In furtherance of this policy, section 549(a) of the Bankruptcy Code provides that a bankruptcy trustee may avoid a transfer of property by an estate that occurs after the commencement of a bankruptcy case and is not authorized by bankruptcy law or by the court. 11 U.S.C. § 549(a).
To avoid a transfer under § 549(a), a plaintiff must prove that (1) the property of the estate (2) was transferred (3) after the filing of a petition, and that such
1:00 PM
CONT...
Mainstream Advertising, a California Corporation
Chapter 7
transfer (4) was not authorized by the Bankruptcy Code or the bankruptcy court. 11 U.S.C. § 549(a); Pardo v. Pacificare of Tex., Inc. (In re APF Co.), 264 B.R. 344, 359-60 (Bankr. Del. 2001). For a transfer to be avoided under § 549(a), it must be a transfer of "property of the estate." 11 U.S.C. § 549(a). "Property of the estate" is defined by the Bankruptcy Code as "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1).
The transfer of funds by a third party for the specific purpose of paying the debtor’s obligation to an existing creditor is not preferential if the third party is merely substituted as creditor, and the debtor’s assets and net obligations otherwise remain the same. Musso v. Brooklyn Navy Yard Dev. Corp. (In re Westchester Tank Fabricators), 207 B.R. 391, 397 (Bankr. E.D.N.Y. 1997) (citations omitted). Funds transferred by a third party under these circumstances are deemed to be "earmarked", and not property of the estate because their transfer did not diminish the amount available for distribution to the estate’s creditors. Id. at 397 (citations omitted). A determination of whether a transfer was earmarked depends on whether the debtor had control over the use of the funds to evince an interest in the property, and whether the transfer diminished the pool of assets which would have been available to creditors. Id. at 398 (citations omitted).
The Trustee’s complaint alleges the following:
After the commencement of the bankruptcy, in or around November 2017 to March 2018, Bibi directed and caused Mainstream to transfer $400,000 to Monetize. [Complaint ¶ 13, 22].
On March 14, 2018, Monetize then allegedly transferred a $25,922 portion of the $400,000 to Berger to pay his attorney’s fees for representing Mainstream. [Id. ¶ 13].
The transfers specifically include $10,000 on March 14, 2019; $922 on March 19, 2018; and $15,000 on May 1, 2018. [Id. ¶ 22](the "Postpetition
1:00 PM
CONT...
Mainstream Advertising, a California Corporation
Transfers").
Chapter 7
The Postpetition Transfers made to Monetize as the initial transferee conferred no value on Mainstream at the time those transfers were made. [Complaint ¶ 23].
On July 29, 2018, Berger filed an amended Compensation of Attorney for Debtor showing that he was paid by Monetize a $10,000 retainer, plus
$39,339.64 in fees, and was owed an additional $7,500. [Case No.
17-12980, Dkt. No. 112]. Berger filed this Compensation Disclosure as counsel for Mainstream.
Berger argues that if Monetize had funds in its account(s) sufficient to pay the
$25,922 paid to Berger, then it cannot be said that a portion of the $400,000 was used to pay him. [Reply p. 6]. Berger further argues that the Trustee states no facts that the Monetize post-petition payments were withdrawn from the same bank account where the $400,000 was purportedly deposited or from a separate bank account. Moreover, Berger asserts that the $25,922 was for post-petition debt paid by a third party, Monetize. [Reply p. 6-7].
In a motion to dismiss, this court must construe the complaint in the light most favorable to the Trustee and accept all well-pleaded factual allegations as true. The Trustee has alleged here that the $25,922 is connected to the $400,000 transferred to Monetize from Mainstream. Moreover, given that that "Berger only represented Mainstream" and not Monetize [Reply p. 7], this court can reasonably infer that the $25,922 is from the $400,000 Mainstream transfer. The defense that the funds were from a different souce is best left to discovery and a summary judgment motion since the theory is at least plausible.
The real crux of the problem with the allegations is the trustee’s theory on what was authorized and whether there was good faith. With respect to the recovery of those transfers, the Complaint has alleged that (i) Berger is a subsequent transferee and (ii) did not take the transfers for value, in good faith, and without knowledge of the avoidability of the transfers. Id. ¶¶ 23-24.
1:00 PM
CONT...
Mainstream Advertising, a California Corporation
Chapter 7
The Trustee alleges the following facts that pertain to whether the transfers were authorized by the Bankruptcy Code or the bankruptcy court:
Berger was to be paid from the Estate pursuant to a fee application approved by the Court. [Complaint ¶ 13].
Berger did not file an application or motion under any code section to authorize any compensation from the estate in violation of §§ 328 and 330. [Complaint ¶ 13-14].
Section 327(a) permits the employment of "professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons," to assist in conduct bankruptcy proceedings. 11 U.S.C. § 327(a).
Section 328(a) governs the "terms and conditions" of "the employment of a professional person under section 327". 11 U.S.C. § 328(a). Berger was properly employed by the debtor and did indeed perform significant legal work on debtor’s behalf. The law is well-settled that an attorney for a Chapter 7 debtor need not obtain court approval for his employment. See In re Corbi, 149 B.R. 325, 331 (EDNY 1993), citing 2 Collier on Bankruptcy, ¶327.07.
The Trustee has not shown and it is questionable that Berger was required to file a fee application under Rule 2016. "Section 327(a) does not require the entry of an order approving the employment of counsel for a debtor in a chapter 7 case. This is a negative implication drawn from the language of the section." Compensation, Employment and Appointment of Trustees and Professionals In Bankruptcy Cases, ¶ 1.04, Collier’s 2019.)
There are also no allegations that Berger knew or how he would know that the transfers came from Mainstream originally. This is a case against Berger, not Bibi. It is also not clearly alleged or explained how Monetize was adverse to the Debtor, especially at the time berger represented the debtor. The allegations simply do not show that there was no value given or that there was no good faith.
1:00 PM
CONT...
Mainstream Advertising, a California Corporation
Chapter 7
As such, the motion to dismiss is granted as to these claims.
Fourth Claim for Relief: Breach of Fiduciary Duty
To state a claim for breach of fiduciary duty against a former attorney, a complaint must allege sufficient facts to show that: (1) the attorney acted on behalf of a party whose interests were adverse to a plaintiff in connection with the attorney’s representation of that plaintiff (or the attorney knowingly acted against his or her client’s interest in connection with the representation of that client); (2) the plaintiff did not give informed consent to the attorney’s conduct; (3) the plaintiff was harmed; and (4) the attorney’s conduct was a substantial factor in causing the plaintiff’s harm. Judicial Council of California Civil Jury Instructions (2020), CACI Nos. 4102, 4106.
The Trustee alleges that Berger breached his fiduciary duty to Mainstream by, among other things: (1) representing Bibi, Monetize, and Admedia, who have interests adverse to Mainstream; and (2) stating to the bankruptcy court that he only represented Mainstream, and not Bibi, Monetize, or Admedia, when he in fact represented all four persons/entities per his allegations in Berger v. Bibi et. al. that Mainstream, Bibi, Monetize, and Admedia were all alter-egos of each other.
Facts established by pleadings as judicial admissions is a concession to the truth of those facts. Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746; see Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271. However, not every factual allegation in a complaint automatically constitutes a judicial admission. Barsegian v. Kessler & Kessler (2013) 215 Cal. App. 4th 446, 451. A fact is a judicial admission if the parties stipulate to the fact; a party admits a fact propounded by the other party in discovery in a request for admission; or a party admits in an answer to a complaint or cross-complaint. Barsegian, 215 Cal.App.4th at 451. [Complaint ¶ 29]. The Trustee’s
1:00 PM
CONT...
Mainstream Advertising, a California Corporation
Chapter 7
allegations that Berger represented Mainstream, Monetize, Bibi, and Admedia by alleging that they are alter-egos of each other in the state court complaint are not sufficient to show a judicial admission. More facts are needed to allege a breach of fiduciary duty.
The Trustee also alleges that Berger breached his fiduciary duty by (1) accepting payment from a third party (the Postpetition Payments) as compensation for services rendered to Mainstream; and (2) accepting the Postpetition Payments in violation of 11 U.S.C. §§ 328 and 330. [Complaint ¶ 29]. Counsel is permitted to accept payment from a third party as long as there is no conflict of interest. As stated above, the complaint also does not clearly allege any violation of §§ 328 and 330. The Trustee does not provide facts to show how Berger was acting on behalf of Monetize by allegedly accepting the transfers or whether Berger acted knowingly in accepting the transfer against Mainstream’s interest. The first and second elements for a breach of fiduciary claim is not satisfied.
The Trustee appears to make an independent argument for breach of fiduciary duty based on the allegation that Berger intentionally violated the automatic stay by suing his former client, Mainstream for allegedly failing to pay attorney’s fees in Berger v. Bibi, et. al. without seeking relief from the court or informing the Trustee of that litigation [Complaint ¶ 12, Ex. 1].
Assuming that the stay was violated, it is not clear how violating the automatic stay after representation was terminated breaches Berger’s fiduciary duty. In the Complaint, the Trustee alleges that Berger eventually withdrew from his representation of Mainstream. [Complaint ¶ 11]. And on August 8, 2019, Berger filed the complaint in state court against Mainstream, Bibi, Admedia, and Monetize. [Complaint ¶ 12]. So, it appears that Berger had already withdrawn from representing Mainstream before allegedly violating the automatic stay. As such, the court cannot reasonably infer that Berger’s actions were adverse to Mainstream’s in connection with his representation of Mainstream or Berger knowingly acted against his client’s interest in connection with the representation
1:00 PM
CONT...
Mainstream Advertising, a California Corporation
Chapter 7
of that client.
Because the Trustee’s facts are not sufficient to satisfy the plausibility standard, the Trustee’s claim for punitive damages also cannot survive this dismissal motion.
Leave to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure requires courts to "freely give leave [to amend] when justice so requires." Fed. R. Civ. Pro. 15(a)(2). "Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Polich v. Burlington Northern, Inc., 942 F.2d 1467, 1472 (9th Cir. 1991). "[L]eave to amend should be granted unless the district court ‘determines that the pleading could not possibly be cured by the allegation of other facts.’" United States v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001)(citation omitted).
The Motion is GRANTED and the Trustee is granted leave to amend the Complaint.
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Mainstream Advertising, a Represented By Kathleen P March
Defendant(s):
Michael Berger Represented By Michael Jay Berger
1:00 PM
CONT...
Mainstream Advertising, a California Corporation
Chapter 7
Plaintiff(s):
Amy L. Goldman Represented By John P. Reitman
Trustee(s):
Amy L Goldman (TR) Represented By David B Golubchik Peter J Mastan
Anthony A Friedman John P. Reitman Jack A. Reitman
1:00 PM
1:17-12980
Mainstream Advertising, a California Corporation
Chapter 7
Adv#: 1:20-01028 Goldman v. Berger
#28.00 Status Conference re: Complaint for Turnover Avoidance and Recover of Postpetition Transfers; and Breach of Fiduciary Duty.
fr. 5/6/20
Docket 1
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Mainstream Advertising, a Represented By Kathleen P March
Defendant(s):
Michael Berger Pro Se
Plaintiff(s):
Amy L. Goldman Represented By John P. Reitman
Trustee(s):
Amy L Goldman (TR) Represented By David B Golubchik Peter J Mastan
Anthony A Friedman John P. Reitman Jack A. Reitman
2:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
#29.00 Trustee's Final Report and Application for Compensation fr. 10/23/19, 1/29/20
Docket 199
Tentative Ruling:
The hearings shall take place using Zoom for Government, a service that provides simultaneous audioconference and videoconference capabilities. The service is free to participants. Participants may connect to the videoconference through an Internet browser by entering the Videoconference URL shown below, as well as the meeting ID and password, when prompted.
Videoconference URL: https://cacb.zoomgov.com/j/1607756316 Meeting ID: 160 775 6316
Password: 645114
If a participant is unable to send and receive audio through his/her computer, the audio of the hearing may be accessed by telephone using the following audio conference information:
Audioconference Tel. No.: 1-669-254-5252 OR 1-646-828-7666
Meeting ID: 160 775 6316
Password: 645114
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall
2:00 PM
CONT...
Vadim A Lipel
Reem J Bello
Chapter 7
2:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
Adv#: 1:19-01041 Lipel v. Davis et al
#30.00 Motion to Dismiss Adversary for lack of subject matter jurisdiction or, alternatively based on abstention.
Docket 73
Tentative Ruling:
ZoomGov or Telephonic Appearance Required
See tentative ruling for #31
Debtor(s):
Party Information
Vadim A Lipel Represented By Douglas D Kappler Blake J Lindemann
Defendant(s):
Lesly Davis Represented By
Talin Keshishian Richard Burstein Jorge A Gaitan Tommy Q Gallardo
BRUTZKUS, GUBNER, Represented By Talin Keshishian Richard Burstein Jorge A Gaitan
Tommy Q Gallardo
Nancy J Zamora, Chapter 7 Trustee Represented By
Jorge A Gaitan
22845 Sparrowdell, LLC dba PBOG Represented By
Richard Burstein
2:00 PM
CONT...
Vadim A Lipel
Talin Keshishian Jorge A Gaitan
Chapter 7
Plaintiff(s):
Vadim A Lipel Represented By
Blake J Lindemann
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
2:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
Adv#: 1:19-01041 Lipel v. Davis et al
#31.00 Motion of Plaintiff for Partial Summary Judgment on Count IV of The Second Amended Complaint
Docket 61
Tentative Ruling:
On April 19, 2010, Plaintiff retained Defendants to file a bankruptcy petition. On June 2, 2010, Defendants filed a Chapter 7 Bankruptcy petition on Plaintiff’s behalf: In re Vadim Lipel, Case No. 1:10-16648 MT (the "Bankruptcy Case"). After examining Plaintiff at the section 341(a) meetings of creditors in the Case, Trustee administered assets disclosed in Debtor's schedules and disclosed during the initial and continued meetings of creditors. After the Trustee's Final Report and Final Account were filed in the Case on April 8 and September 21, 2016, respectively, the Court closed the case on September 27, 2016.
Plaintiff then filed a claim in arbitration before the Hon. Richard Stone ("Judge Stone" or "Arbitrator") asserting that the conduct and advice of Defendants concerning the filing and prosecution of a bankruptcy case without properly evaluating that by prosecuting the case resulted in a certain tax liability not being discharged (the "Tax Debt"). On May 22, 2019, Plaintiff filed a second amended demand for arbitration before Judge Stone.
In August 2018, the United States Trustee ("UST") filed a motion to reopen the Case based on the Trustee's declaration regarding a claim for professional liability (the "Claim") against Debtor's former counsel, Lesly Davis, that existed on the Petition Date. The Claim was stated to be property of the Estate that Debtor did not disclose in his schedules, at the meetings of creditors, or at any time before the Court closed the case.
On August 28, 2018, the Court entered its order reopening the case and directing the UST to appoint a chapter 7 trustee. On August 29, 2018, the UST appointed Trustee as chapter 7 trustee in the case. Trustee negotiated with 22845 Sparrowdell LLC dba PBOG, an asset purchase agreement (the "APA") that Trustee and PBOG’s managing member, Steven
2:00 PM
CONT...
Vadim A Lipel
Chapter 7
T. Gubner, executed in October 2018. The assets were described in the Sale Motion to include the Estate’s interest in the "claim for professional liability against Debtor’s former counsel including, but not limited to that certain arbitration complaint in the action styled Vadim Lipel v. Lesley Davis and Brutzkus Gubner Rozansky Seror Weber LLP together with any and all other related legal or equitable claims, defenses, actions, demands, rights, damages, remedies, expenses, and compensation whatsoever." The Assets also included any and all other undisclosed, unscheduled and/or unadministered claims, rights and interest of the Estate. Thereafter the Trustee filed a Motion for Order approving sale of the Assets, subject to overbid, on October 17, 2018 (the "Sale Motion"). On November 13, 2018, the Court entered an "Order Approving Trustee’s Sale of Assets" (the "Sale Order").
On April 16, 2019, Debtor filed a Complaint for declaratory relief seeking orders from the Bankruptcy Court related to the Sale Order. An amended complaint was filed on May 22, 2019. Thereafter, Plaintiff moved for summary judgment on all claims for relief. On January 29, 2020, after considering the pleadings and the oral argument made at the hearing, the Court, finding that Plaintiff was entitled to a judgment as a matter of law, granted summary judgment on his claim for declaratory relief that the Sale Order only transferred the whatever interest the Estate had, not Debtor’s interest, in any Pre-Petition Malpractice Claims. The Court also granted summary judgment on his claim for declaratory relief that his prosecution of any prepetition malpractice claim was not barred by the Sale Order. Ad. ECF doc. 68 & 70.
In the tentative ruling for the hearing on the summary judgment, the Court took no position on the merits of the Malpractice Action or what accrued pre- or post-petition, if anything. On February 21, 2020, Debtor filed his second amended complaint, seeking a determination of Declaratory Relief that Any Malpractice Claims Accrued against the Defendants Post-Petition and Are Not Property of the Estate. Ad. ECF doc. 64. Plaintiff has moved for summary judgment on this claim for relief. In response, Defendants filed a Motion to Dismiss under FRCP 12(b), now arguing that the Court does not have subject matter jurisdiction to determine when the malpractice action accrued or, in the alternative, that the Court should abstain from deciding the matter. The Court will consider both
2:00 PM
CONT...
Vadim A Lipel
Chapter 7
motions below.
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). 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 nonmoving party must show more than "the mere existence of some alleged factual dispute… the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The court must view the evidence in the light most favorable to the nonmoving party. Tolan v. Cotton, 572 U.S. 650, 656-57 (2014). Summary judgment must not be granted if "a reasonable juror, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s favor." James River Ins.
Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008). 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).
The Court has subject matter jurisdiction to determine what is property of the estate under 11 U.S.C. § 541
Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, and may enter appropriate orders and judgments. 28 U.S.C. § 157(b)(1). Here, the Court has the jurisdiction to determine the discreet issue of whether the Alleged Malpractice Claim is property of the estate.
At the oral argument on January 29, 2020, after the Court ruled that the Alleged
2:00 PM
CONT...
Vadim A Lipel
Chapter 7
Malpractice Action was not include in the Sale Order, Counsel for BG argued that the bankruptcy court must determine what is property of the estate, and not leave that to the arbitrator in the Malpractice Action.
I note that the Court approved the final report, but I think that now we have an additional asset that has not been administered, given the Court’s ruling that it was not sold. And that asset is this pre-petition malpractice claim and I think that still belongs with the bankruptcy estate, since as the Court indicated in its tentative, it did not sell it -- or did not approve a sale of that asset. So that asset remains with the Trustee and the Court – the Court’s comment at that portion of the interim ruling is that these matters are best left -- or better left -- to the mediator.
I think, your Honor, that it’s this Court that needs to determine what the property of the estate consists of and not the mediator -- or it should be an arbitrator -- but certainly not a third party. I think this Court is required to determine what the assets of the estate include, and I think in that regard, the Court has exclusive jurisdiction to rule on what are the assets and what is the property of the estate. I don’t think that responsibility or jurisdiction can be asserted by anyone else.
So, in that regard, I think that given the Court’s rulings that there is an unadministered asset that remains to be administered, and that it is this Court that should determine the nature and extent, if you will, of that asset.
Tr. of Hr’g on Motion for Summary Judgment, 3:2-3:25, ad. ECF doc. 77
While determination of what is property of a bankruptcy estate arises under the Bankruptcy Code, the federal judges look to state law or other applicable non-bankruptcy law to make the determination of interests in property. Butner v. United States, 440 U.S. 48 (1979).
The Malpractice Claims Are Not Property of the Estate
When a bankruptcy petition is filed, an "estate" is created, consisting of all of the
2:00 PM
CONT...
Vadim A Lipel
Chapter 7
debtor's interests, both legal and equitable, in all property, both tangible and intangible. 11
U.S.C. § 541(a); Hillis Motors, Inc. v. Hawaii Auto. Dealers' Ass'n, 997 F.2d 581, 585 (9th Cir.1993). Thereafter, the property of the estate is distinct from the property of the debtor. Property acquired post-petition by the debtor does not enter the estate; it remains the separate property of the debtor. Suter v. Goedert, 396 B.R. 535, 540-541 (D. Nev. 2008). "The party seeking to include property in the estate bears the burden of showing that the item is property of the estate." MacKenzie v. Neidorf (In re Neidorf), 534 B.R. 369, 372 (B.A.P. 9th Cir. 2015) (citing Seaver v. Klein-Swanson (In re Klein-Swanson), 488 B.R. 628, 633 (8th Cir. BAP 2013)).
In general, causes of action existing at the time the bankruptcy petition is filed are considered property of the estate. Sierra Switchboard Co. v. Westinghouse Elec. Corp. (In re Sierra Switchboard), 789 F.2d 705, 707 (9th Cir.1986) (citing Whiting Pools, 462 U.S. 198, 205 & n. 9 (1983)). The primary dispute is whether Plaintiff’s alleged malpractice claim is property of his bankruptcy estate. In support of summary judgment, Plaintiff asserts that the alleged malpractice claim is not property of the estate because he contends that the claim accrued postpetition. Defendants proffer the same arguments as the Motion to Dismiss regarding subject matter jurisdiction and assert that any malpractice claim would have accrued prepetition and is thus property of the estate.
The Court finds that the Alleged Malpractice Claims did not accrue prepetition and therefore are not property of the estate. As the Ninth Circuit has explained: "To determine when a cause of action accrues, and therefore whether it accrued pre-bankruptcy and is an estate asset, the Court looks to state law." Boland v. Crum (In re Brown), 363 B.R. 591, 605 (Bankr.D.Mont.2007) (citing Cusano v. Klein, 264 F.3d 936 (9th Cir. 2001)).
In California, "generally, a cause of action accrues, and the statute of limitation begins to run, when a suit may be maintained. Ordinarily this is when the wrongful act is done and the obligation or the liability arises, but it does not accrue until the party owning it is entitled to begin and prosecute an action thereon. In other words, a cause of action accrues upon the occurrence of the last element essential to the cause of action." Howard Jarvis Taxpayers Assn. v. City of La Habra, 25 Cal.4th 809, 815 (Cal. 2001) (citations and
2:00 PM
CONT...
Vadim A Lipel
Chapter 7
internal quotation marks omitted). Therefore, if a claim "could have been brought," it has accrued. Cusano v. Klein, at 947; Goldstein v. Stahl (In re Goldstein), 526 B.R. 13, 21 (B.A.P. 9th Cir. 2015).
In California, attorneys are liable for malpractice in accordance with general principles of tort liability. Budd v. Nixen, 6 Cal. 3d 195, 200, 491 P.2d 433, 436 (1971) (superseded by statute on other grounds). The elements of a cause of action for professional negligence are:
(1) the duty of the professional to use such skill, prudence, and diligence as
other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.
If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence. Hence, until the client suffers appreciable harm as a consequence of his attorney’s negligence, the client cannot establish a cause of action for malpractice.
Id. (internal citations omitted).
Count IV of the SAC requests a declaratory judgment that the Alleged Malpractice Claim arose post-petition as a matter of law because the harm to Debtor did not occur until postpetition. Defendants argue that the Alleged Malpractice Claim accrued prepetition because Debtor alleged that BG committed malpractice by failing to correctly calculate the
2:00 PM
CONT...
Vadim A Lipel
Chapter 7
date on which to file the chapter 7 case in order to discharge the IRS debt. Defendants point to the original arbitration complaint filed by Debtor in the malpractice arbitration to support their contention that the Alleged Malpractice Claim accrued prepetition, wherein Debtor alleged that BG filed his Chapter 7 petition on June 2, 2010, which was filed too early, thereby "destroying [Lipel’s] ability to discharge the IRS Debt."
Defendants cite Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A. v. Alvarez (In re Alvarez), 224 F.3d 1273, 1278 (11th Cir. 2000) for the proposition that a malpractice claim based upon an attorney’s misguided commencement of a bankruptcy petition is property of the estate. Defendants’ reliance upon Alvarez is misplaced in this context. In Alvarez, the attorney ignored his client’s instructions to file a Chapter 11 petition and filed a Chapter 7 petition instead. In determining that Alvarez’s malpractice claims arose prepetition, the Court reasoned that Alvarez suffered harm at the moment the Chapter 7 petition was filed. The court explained that at the moment of filing, Alvarez’s property interests vested in the estate, rather than remaining under his control as would have been the case had the attorney filed a Chapter 11 petition as Alvarez had intended. See Alvarez, 224 F.3d at 1277 ("Alvarez’s loss of ownership and control of his assets upon the bankruptcy filing constitutes a significant and tangible change which obviously caused harm to him. No one would suggest that the victim of a conversion is not harmed when deprived of ownership and control of an asset."). Here, by contrast, the damage (liability) to Plaintiff did not manifest until May 2017, when Debtor learned that the IRS was asserting that the Tax Debt had not been discharged, after the IRS contacted him and demanded payment of the Tax Debt.
Plaintiff contends that postpetition acts such as Defendants filing of Schedule E evidencing Debtor’s liability to the IRS; advice to Debtor after the emergency bankruptcy petition was filed that the IRS debt would be dischargeable in bankruptcy; and the omission of not letting the case result in a Clerk’s dismissal constitutes malpractice. There were two months between the Petition Date and the date that Debtor had new counsel substitute into the bankruptcy case. Unlike the debtor in Segal v. Rochelle, 382 U.S. 375 (1966), who had an existing interest in the tax refunds on the petition date, Debtor had no prepetition right or entitlement to commence a malpractice action against Defendants because under
2:00 PM
CONT...
Vadim A Lipel
Chapter 7
California law, without damages, no cause of action existed prepetition. Although it was possible that Debtor would suffer damages based on the petition having been filed too soon for the Tax Debt to be discharged, that possibility had no value on the petition date. As of the date of the petition, the only injury to Plaintiff was contingent and speculative.
Therefore, no claim for breach of professional duty existed upon the petition date, given that "the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence." Budd, 6 Cal. 3d at 200; see also Krohn v. Glaser (In re Glaser), 2019 WL 1075613 (B.A.P. 9th Cir. March 5, 2019) (J. Kurtz, J. Taylor, J. Brand)(holding that under analogous Nevada law, a chapter 7 debtor's damages as to advice concerning the dischargeability of debt does not occur until post-petition, and so the legal malpractice claim was not property of the estate). Any damages caused by the alleged malpractice were suffered by Debtor entirely postpetition.
Defendants go on to argue that there is no post-petition malpractice claim because the malpractice alleged by Debtor (that BG should have dismissed the bankruptcy case and then refiled) was settled between Debtor and his other former bankruptcy counsel. On August 5, 2010 (just over two months after the filing of the Chapter 7 petition), BG substituted out of the Bankruptcy Case and Douglas D. Kappler ("Kappler") substituted in as Debtor’s new counsel of record. Defendants contend that the post-petition malpractice alleged by Debtor was against Kappler, not BG because it ceased to represent Debtor and was replaced by Kappler well over a year before the Bankruptcy Case was closed.
The Court has been very careful to not to tread into the merits of the Alleged Malpractice Claim; those issues are properly before the Arbitrator. There was a two-month period postpetition in which BG continued to represent Debtor that is presumably not covered by the settlement with Kappler. The Court need not weigh in on issues related to the apportionment of damages as relates to the postpetition conduct of Kappler and BG respectively, if the Arbitrator ultimately finds that malpractice occurred. Having found that the Alleged Malpractice Claim is not property of the bankruptcy estate, the facts behind why certain decisions were made and when, and why certain actions were or were not taken, is not within the purview of this Court’s jurisdiction.
2:00 PM
CONT...
Vadim A Lipel
For the reasons stated above, the Court finds that Alleged Malpractice Claim
Chapter 7
accrued post-petition and is not property of the Estate. There are no genuine issue of material fact and Plaintiff is entitled to summary judgment as a matter of law on Count IV of the SAC.
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler Blake J Lindemann
Defendant(s):
Lesly Davis Represented By
Talin Keshishian Richard Burstein Jorge A Gaitan
BRUTZKUS, GUBNER, Represented By Talin Keshishian Richard Burstein Jorge A Gaitan
Nancy J Zamora, Chapter 7 Trustee Represented By
Jorge A Gaitan
22845 Sparrowdell, LLC dba PBOG Represented By
Richard Burstein Talin Keshishian Jorge A Gaitan
Plaintiff(s):
Vadim A Lipel Represented By
Blake J Lindemann
Trustee(s):
Nancy J Zamora (TR) Represented By
2:00 PM
CONT...
Vadim A Lipel
Lei Lei Wang Ekvall Reem J Bello
Chapter 7
2:00 PM
1:10-16648
Vadim A Lipel
Chapter 7
Adv#: 1:19-01041 Lipel v. Davis et al
#32.00 Status Conferencere re: First Amended Complain fr. 7/31/19; 8/28/19, 11/13/19, 1/29/20, 1/29/20
Docket 9
Tentative Ruling:
The hearings shall take place using Zoom for Government, a service that provides simultaneous audioconference and videoconference capabilities. The service is free to participants. Participants may connect to the videoconference through an Internet browser by entering the Videoconference URL shown below, as well as the meeting ID and password, when prompted.
Videoconference URL: https://cacb.zoomgov.com/j/1607756316 Meeting ID: 160 775 6316
Password: 645114
If a participant is unable to send and receive audio through his/her computer, the audio of the hearing may be accessed by telephone using the following audio conference information:
Audioconference Tel. No.: 1-669-254-5252 OR 1-646-828-7666
Meeting ID: 160 775 6316
Password: 645114
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler
Defendant(s):
Lesly Davis Represented By
2:00 PM
CONT...
Vadim A Lipel
Talin Keshishian
Chapter 7
BRUTZKUS, GUBNER, Represented By Talin Keshishian
Plaintiff(s):
Vadim A Lipel Represented By
Blake J Lindemann
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
10:00 AM
1:19-11659
Nicolas Mendez Rodriguez
Chapter 7
#0.01 Status Conference Re: Motion to Avoid Lien Judicial
Lien under section 522(f) (Berta Hernandez and Jose Eduardo Hernandez- Hlnojosa)
fr. 12/11/19, 4/3/20
Docket 44
Tentative Ruling:
APPEARANCE REQUIRED. Parties should be prepared to discuss dates for an evidentiary hearing to determine whether debtor is eligible for the exemptions claimed.
The court will issue a ruling on the value of 10576 Tamarack ave, Pacoima CA before the evidentiary hearing based on the stipulation received.
A hearing must be held to resolve the remaining issues.
The court would like to know from each party what their video and audio capabilities and access are. The hearing can be held by zoom and will be free for participants if all have access to appropriate technology.
Party Information
Debtor(s):
Nicolas Mendez Rodriguez Represented By Steven A Simons
Trustee(s):
David Seror (TR) Pro Se
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:20-01022 Jones v. Levin
#1.00 Motion of Plaintiff for Injunction Prohibiting Defendant John Levin from Prosecuting Claims Against Debtor
10:00 AM
CONT...
John Gordon Jones
of Alter Ego Relationship with Non-Debtor Entities or Otherwise Continuing Litigation Against Plaintiff in State Court
Chapter 7
Docket 23
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Levin Represented By
Michael Jay Berger
Plaintiff(s):
John Gordon Jones Represented By
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
8:30 AM
1:19-12994
Carlos Gutierrez-Garcia
Chapter 7
#1.00 Reaffirmation Agreement with Toyota Motor Credit Corporation
Docket 13
Matter Notes:
You will not be permitted to be physically present in the courtroom. You may connect to the videoconference by entering the Videoconference URL shown below into an internet browser on a computer, tablet or smartphone, and entering the meeting ID and password, when prompted:
Video Connection https://cacb.zoomgov.com/j/1618518158 Meeting ID: 161 851 8158
Password: 751332
Telephone Connection US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 851 8158
Password: 751332
Public Counsel, a pro bono legal organization has prepared an informational video explaining the reaffirmation hearing process. The video is available online in both English and Spanish. You are strongly encouraged to watch the video before the reaffirmation hearing.
English: http://www.publiccounsel.org/video?id=0113 Spanish: http://www.publiccounsel.org/video?id=0114
Tentative Ruling:
Petition date: 11/30/19
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 Toyota Tacoma
8:30 AM
CONT...
Carlos Gutierrez-Garcia
Chapter 7
Debtor’s valuation of property (Sch. B): $25,000 Amount to be reaffirmed: $25,397
APR: 2.9% (fixed)
Contract terms: $484.97 per month for 57 months Monthly Income (Schedule I): $5,986.24
Monthly expenses: (Schedule J): $7,093 Disposable income: <$1,106.76>
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 he has reduced his monthly expenses to be able to afford this payment. It appears that this payment is reflected in Sch. J as a $470 per month expense.
Debtor has a right to rescind agreement anytime prior to discharge, or until May 10, 2020, whichever is later.
Party Information
Debtor(s):
Carlos Gutierrez-Garcia Represented By Gregory Grigoryants
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
1:19-13098
Wade Foote
Chapter 7
#2.00 Pro se Reaffirmation Agreement with Ally Bank
Docket 18
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Petition date: 12/13/19
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 Audi A4
Debtor’s valuation of property (Sch. B): $10,500 Amount to be reaffirmed: $7,578.25
APR: 6.24% (fixed)
Contract terms: $182.45 per month for 46 months Monthly Income (Schedule I): $900.00
Monthly expenses: (Schedule J): $2,943.74 Disposable income: <$2,043.74>
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 has increased post-petition & this payment is listed on Sch. J. Debtor also explains that he is the co-signer for this vehicle's financing.
Debtor has a right to rescind agreement anytime prior to discharge, or until May 3, 2020,
8:30 AM
CONT...
Wade Foote
Chapter 7
whichever is later.
Party Information
Debtor(s):
Wade Foote Represented By
Michael Jay Berger
Trustee(s):
Nancy J Zamora (TR) Pro Se
8:30 AM
1:20-10003
Bradley M Ditzel and Kelly L Ditzel
Chapter 7
#3.00 Pro se Reaffirmation Agreement
with Ford Motor Credit Company LLC
Docket 15
Matter Notes:
You will not be permitted to be physically present in the courtroom. You may connect to the videoconference by entering the Videoconference URL shown below into an internet browser on a computer, tablet or smartphone, and entering the meeting ID and password, when prompted:
Video Connection https://cacb.zoomgov.com/j/1618518158 Meeting ID: 161 851 8158
Password: 751332
Telephone Connection US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 851 8158
Password: 751332
Public Counsel, a pro bono legal organization has prepared an informational video explaining the reaffirmation hearing process. The video is available online in both English and Spanish. You are strongly encouraged to watch the video before the reaffirmation hearing.
English: http://www.publiccounsel.org/video?id=0113 Spanish: http://www.publiccounsel.org/video?id=0114
Tentative Ruling:
Petition date: 1/2/2020
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 Focus
8:30 AM
CONT...
Bradley M Ditzel and Kelly L Ditzel
Chapter 7
Debtor’s valuation of property (Sch. B): $12,324 Amount to be reaffirmed: $12,482.38
APR: 5.99% (fixed)
Contract terms: $266.43 per month for 54 months Monthly Income (Schedule I): $5,845
Monthly expenses: (Schedule J): $5,715 Disposable income: $130.00
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?
Debtors explain that their income will increase from "periodic overtime." This payment is listed on Sch. J as $235 per month.
Debtor has a right to rescind agreement anytime prior to discharge, or until June 8, 2020, whichever is later.
Party Information
Debtor(s):
Bradley M Ditzel Pro Se
Joint Debtor(s):
Kelly L Ditzel Pro Se
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
1:20-10003
Bradley M Ditzel and Kelly L Ditzel
Chapter 7
#4.00 Reaffirmation Agreement
with Ford Motor Credit Company LLC
Docket 16
Matter Notes:
You will not be permitted to be physically present in the courtroom. You may connect to the videoconference by entering the Videoconference URL shown below into an internet browser on a computer, tablet or smartphone, and entering the meeting ID and password, when prompted:
Video Connection https://cacb.zoomgov.com/j/1618518158 Meeting ID: 161 851 8158
Password: 751332
Telephone Connection US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 851 8158
Password: 751332
Public Counsel, a pro bono legal organization has prepared an informational video explaining the reaffirmation hearing process. The video is available online in both English and Spanish. You are strongly encouraged to watch the video before the reaffirmation hearing.
English: http://www.publiccounsel.org/video?id=0113 Spanish: http://www.publiccounsel.org/video?id=0114
Tentative Ruling:
Petition date: 1/2/2020
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: 2019 Ford Escape
8:30 AM
CONT...
Bradley M Ditzel and Kelly L Ditzel
Chapter 7
Debtor’s valuation of property (Sch. B): $14,000 Amount to be reaffirmed: $17,301.15
APR: 1.90% (fixed)
Contract terms: $273.38 per month for 66 months Monthly Income (Schedule I): $5,845
Monthly expenses: (Schedule J): $5,715 Disposable income: $130.00
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?
Debtors explain that their income will increase from "periodic overtime." This payment is listed on Sch. J as $275 per month.
Debtor has a right to rescind agreement anytime prior to discharge, or until June 8, 2020, whichever is later.
Party Information
Debtor(s):
Bradley M Ditzel Pro Se
Joint Debtor(s):
Kelly L Ditzel Pro Se
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
1:20-10023
Daniel Joseph McGuire
Chapter 7
#5.00 Pro se Reaffirmation Agreement with Nationstar Mortgage LLC d/b/a Mr. Cooper
Docket 15
Matter Notes:
You will not be permitted to be physically present in the courtroom. You may connect to the videoconference by entering the Videoconference URL shown below into an internet browser on a computer, tablet or smartphone, and entering the meeting ID and password, when prompted:
Video Connection https://cacb.zoomgov.com/j/1618518158 Meeting ID: 161 851 8158
Password: 751332
Telephone Connection US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 851 8158
Password: 751332
Public Counsel, a pro bono legal organization has prepared an informational video explaining the reaffirmation hearing process. The video is available online in both English and Spanish. You are strongly encouraged to watch the video before the reaffirmation hearing.
English: http://www.publiccounsel.org/video?id=0113 Spanish: http://www.publiccounsel.org/video?id=0114
Tentative Ruling:
Petition date: 1/7/2020
Was Reaffirmation Agreement filed w/in 60 days of the conclusion of the 1st 341(a) meeting as required by LBR 4008-1? No. The period provided for under LBR 4008-1 expired on 4/4/2020, but the reaffirmation agreement was filed on 4/8/2020.
Discharge?: No
8:30 AM
CONT...
Daniel Joseph McGuire
Chapter 7
Property: 21438 Dumetz Rd. Woodland Hills, CA Debtor’s valuation of property (Sch. B): $385,000 Amount to be reaffirmed: $314,490
APR: 4.125% (fixed)
Contract terms: $2,036.55 per month for 425 months Monthly Income (Schedule I): $4,968
Monthly expenses: (Schedule J): $5,976.43 Disposable income: <$1,007.59>
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 seek additional employment and reduce expenses to afford this payment. Debtor's mortgage payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until March 21, 2020, whichever is later.
Party Information
Debtor(s):
Daniel Joseph McGuire Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
1:20-10172
Shedireck Delshay Turner, Jr
Chapter 7
#6.00 Pro se Reaffirmation Agreement with Carvana LLC
Docket 11
*** VACATED *** REASON: Notice of Rescission of Reaffirmation Agreement filed 4/23/20 - jc
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Shedireck Delshay Turner Jr Pro Se
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
1:20-10258
Louis W. Cantillo
Chapter 7
#7.00 Pro se Reaffirmation Agreement with Ford Motor Credit Company
Docket 15
Matter Notes:
You will not be permitted to be physically present in the courtroom. You may connect to the videoconference by entering the Videoconference URL shown below into an internet browser on a computer, tablet or smartphone, and entering the meeting ID and password, when prompted:
Video Connection https://cacb.zoomgov.com/j/1618518158 Meeting ID: 161 851 8158
Password: 751332
Telephone Connection US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 851 8158
Password: 751332
Public Counsel, a pro bono legal organization has prepared an informational video explaining the reaffirmation hearing process. The video is available online in both English and Spanish. You are strongly encouraged to watch the video before the reaffirmation hearing.
English: http://www.publiccounsel.org/video?id=0113 Spanish: http://www.publiccounsel.org/video?id=0114
Tentative Ruling:
Petition date: 1/31/2020
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 T250 Transit Van
8:30 AM
CONT...
Louis W. Cantillo
Chapter 7
Debtor’s valuation of property (Sch. B): $20,000 Amount to be reaffirmed: $23,148.39
APR: 6.99% (fixed)
Contract terms: $615.46 per month for 42 months Monthly Income (Schedule I): $2,037
Monthly expenses: (Schedule J): $2,710 Disposable income: <$673>
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 is receiving help from his family members to make this payment. This payment is not reflected in Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until June 17, 2020, whichever is later.
Party Information
Debtor(s):
Louis W. Cantillo Represented By Ali R Nader
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
1:20-10268
Angel Landeros Barajas
Chapter 7
#8.00 Pro se Reaffirmation Agreement with American Honda Finance Corp.
Docket 12
Matter Notes:
You will not be permitted to be physically present in the courtroom. You may connect to the videoconference by entering the Videoconference URL shown below into an internet browser on a computer, tablet or smartphone, and entering the meeting ID and password, when prompted:
Video Connection https://cacb.zoomgov.com/j/1618518158 Meeting ID: 161 851 8158
Password: 751332
Telephone Connection US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 851 8158
Password: 751332
Public Counsel, a pro bono legal organization has prepared an informational video explaining the reaffirmation hearing process. The video is available online in both English and Spanish. You are strongly encouraged to watch the video before the reaffirmation hearing.
English: http://www.publiccounsel.org/video?id=0113 Spanish: http://www.publiccounsel.org/video?id=0114
Tentative Ruling:
Petition date: 2/3/2020
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
8:30 AM
CONT...
Angel Landeros Barajas
Chapter 7
Debtor’s valuation of property (Sch. B): $13,562 Amount to be reaffirmed: $16,512.48
APR: 1.90% fixed
Contract terms: $470.56 per month for 37 months Monthly Income (Schedule I): $3,061.34
Monthly expenses: (Schedule J): $3,700 Disposable income: <$638.66>
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 is not making the payments on this vehicle. A signed declaration attached to the reaffirmation agreement indicates that Maria del Rocio de Jesus Luna has been making, and will continue to make, the payments for this vehicle.
Debtor has a right to rescind agreement anytime prior to discharge, or until May 25, 2020, whichever is later.
Party Information
Debtor(s):
Angel Landeros Barajas Pro Se
Trustee(s):
Nancy J Zamora (TR) Pro Se
8:30 AM
1:20-10735
Shirley A. Cabico
Chapter 7
#9.00 Pro se Reaffirmation Agreement with TD Auto Finance LLC
Docket 12
Matter Notes:
You will not be permitted to be physically present in the courtroom. You may connect to the videoconference by entering the Videoconference URL shown below into an internet browser on a computer, tablet or smartphone, and entering the meeting ID and password, when prompted:
Video Connection https://cacb.zoomgov.com/j/1618518158 Meeting ID: 161 851 8158
Password: 751332
Telephone Connection US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 851 8158
Password: 751332
Public Counsel, a pro bono legal organization has prepared an informational video explaining the reaffirmation hearing process. The video is available online in both English and Spanish. You are strongly encouraged to watch the video before the reaffirmation hearing.
English: http://www.publiccounsel.org/video?id=0113 Spanish: http://www.publiccounsel.org/video?id=0114
Tentative Ruling:
Petition date: 4/1/2020
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: 2019 Toyota RAV-4
8:30 AM
CONT...
Shirley A. Cabico
Chapter 7
Debtor’s valuation of property (Sch. B): $23,084 Amount to be reaffirmed: $26,422.88
APR: 8.24% fixed
Contract terms: $490 per month for 66 months Monthly Income (Schedule I): $7,751.49 Monthly expenses: (Schedule J): $7,742 Disposable income: $9.49
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 this payment. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until July 6, 2020, whichever is later.
Party Information
Debtor(s):
Shirley A. Cabico Represented By
R Grace Rodriguez
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
1:20-10772
Claire Frances V Juarez
Chapter 7
#10.00 Reaffirmation Agreement with Logix Federal Credit Union
Docket 9
Matter Notes:
You will not be permitted to be physically present in the courtroom. You may connect to the videoconference by entering the Videoconference URL shown below into an internet browser on a computer, tablet or smartphone, and entering the meeting ID and password, when prompted:
Video Connection https://cacb.zoomgov.com/j/1618518158 Meeting ID: 161 851 8158
Password: 751332
Telephone Connection US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 851 8158
Password: 751332
Public Counsel, a pro bono legal organization has prepared an informational video explaining the reaffirmation hearing process. The video is available online in both English and Spanish. You are strongly encouraged to watch the video before the reaffirmation hearing.
English: http://www.publiccounsel.org/video?id=0113 Spanish: http://www.publiccounsel.org/video?id=0114
Tentative Ruling:
Petition date: 4/15/2020
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 Highlander
8:30 AM
CONT...
Claire Frances V Juarez
Chapter 7
Debtor’s valuation of property (Sch. B): $ Amount to be reaffirmed: $19,500
APR: 3.64% fixed
Contract terms: $545.51 per month for 47 months Monthly Income (Schedule I): $3,428
Monthly expenses: (Schedule J): $3,365 Disposable income: $63.00
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 this payment. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until July 11, 2020, whichever is later.
Party Information
Debtor(s):
Claire Frances V Juarez Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
1:14-15589
Henry Guzman
Chapter 13
#28.00 Trustee's Motion to Dismiss Case
Docket 89
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Henry Guzman Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10079
Judy Marie Napolitano
Chapter 13
#29.00 Trustee's Motion to Dismiss Case
Docket 86
*** VACATED *** REASON: Cont'd to 9/22/20 @ 11:00 a.m.
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Judy Marie Napolitano Represented By Robert Reganyan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10336
Alicia Quezada - Escobar
Chapter 13
#30.00 Trustee's Motion to Dismiss Case
Docket 42
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Alicia Quezada - Escobar Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10398
Jose Luis Banuelos and Maria L. Tejada
Chapter 13
#31.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19, 2/25/20; 3/31/20
Docket 63
*** VACATED *** REASON: cont'd to 8/25/20 @ 11:00.
Tentative Ruling:
Party Information
Debtor(s):
Jose Luis Banuelos Represented By Leonard Pena
Joint Debtor(s):
Maria L. Tejada Represented By Leonard Pena
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10797
Marshall Gregory Hetson
Chapter 13
#32.00 Trustee's Motion to Dismiss Case (Plan Expiration)
Docket 90
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #103. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Marshall Gregory Hetson Represented By
Glenn Ward Calsada
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10822
Tracey Lynne Baumert
Chapter 13
#33.00 Trustee's Motion To Dismiss Case for Failure to Submit All Tax Refunds
fr. 3/31/20; 5/19/20
Docket 125
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Tracey Lynne Baumert Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11072
Humberto Delgadillo Garcia
Chapter 13
#34.00 Trustee's Motion to Dismiss Case
Docket 163
*** VACATED *** REASON: Cont. to 9/22/20 @ 11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Humberto Delgadillo Garcia Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12928
Theodore Douglas BECK and Susan Marjorie BECK
Chapter 13
#35.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 5/19/20
Docket 75
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #90. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Theodore Douglas BECK Represented By
R Grace Rodriguez
Joint Debtor(s):
Susan Marjorie BECK Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14101
Carlita Smith
Chapter 13
#36.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20; 3/31/20
Docket 60
*** VACATED *** REASON: Cont. to 9/22/20 @ 11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Carlita Smith Represented By
Lauren Rode
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10194
Heliodoro Navarro
Chapter 13
#37.00 Motion RE: Objection to Claim Number 7 by Claimant Internal Revenue Service
fr. 5/19/20
Docket 98
*** VACATED *** REASON: Cont'd to July 21, 2020, at 11 a.m., per stipulation - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Heliodoro Navarro Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10348
Jim K. Nikolopoulos and Ayarpi Nikolopoulos
Chapter 13
#38.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment Pursuant to 11 USC Sec. 1329(a) and the Percentage to be
Paid to Unsecured Creditors or, in the Alternative, Dismissing the Chapter 13 Petition Due to Debtrors' Failure to Make Debtors' Best Efforts to Repay Creditors Pursuant to 11 USC Sec. 1307(c)(6)
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20
Docket 55
*** VACATED *** REASON: Cont'd to 8/25/20 @ 11:00.
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jim K. Nikolopoulos Represented By Scott D Olsen
Joint Debtor(s):
Ayarpi Nikolopoulos Represented By Scott D Olsen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12201
Andrea Beckham
Chapter 13
#39.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/22/19, 12/17/19; 1/28/20; 3/30/20; 5/19/20
Docket 42
*** VACATED *** REASON: Cont. to 8/25/20 @ 11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Andrea Beckham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12648
Fernando Benitez
Chapter 13
#40.00 Motion RE: Objection to Claim Number 4 by Claimant North American Savings Bank, F.S.B..
fr. 4/28/20, 5/19/20
Docket 37
Tentative Ruling:
In light of NASVB's need to reconcile the payment history, this matter will be continued to July 21 at 11:00 am. The supplemental declaration should be filed by July 14.
NO Appearance on June 23 required.
Party Information
Debtor(s):
Fernando Benitez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10353
Annette Sanders-Wright
Chapter 13
#41.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20, 4/28/20
Docket 51
*** VACATED *** REASON: Cont. to 8/25/20 @ 11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Annette Sanders-Wright Represented By Dana C Bruce
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10479
Felipe Rosas
Chapter 13
#42.00 Trustee Motion to Dismiss for Failure to Submit All Tax Refunds
fr. 2/25/20
Docket 42
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. 46. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Felipe Rosas Represented By
Mark M Sharf
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10811
Daniel Mora
Chapter 13
#43.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20, 2/25/20; 3/31/20
Docket 38
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Daniel Mora Represented By
Axel H Richter
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#44.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/24/19, 11/19/19; 1/28/20; 3/31/20
Docket 138
*** VACATED *** REASON: Cont. to 8/25/20 @ 11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
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
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#45.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20; 3/31/20
Docket 151
*** VACATED *** REASON: Cont. to 8/25/20 @ 11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
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
1:17-11804
Eduardo N Trillo, Jr. and Maritess Biglangawa Trillo
Chapter 13
#46.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20; 3/31/20, 4/28/20
Docket 58
Tentative Ruling:
On 5/1/20, the chapter 13 trustee filed comments recommending approval of Debtors Motion to Modify Plan, with the suspension of 9.3 payments rather than the 8 proposed by Debtor, to maintain feasibility & 100% payout.
Does the proposed Motion to Modify, with the recommended 9.3 payments suspended, resolve this motion?
TELEPHONIC appearance required, unless Trustee stipulates to continue.
Party Information
Debtor(s):
Eduardo N Trillo Jr. Represented By Elena Steers
Joint Debtor(s):
Maritess Biglangawa Trillo Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11995
Priscilla Jeanette Bueno
Chapter 13
#47.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20,4/28/20; 5/19/20
Docket 55
*** VACATED *** REASON: Cont'd to 8/25/20 @ 11:00.
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Priscilla Jeanette Bueno Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10143
Mayra Hernandez
Chapter 13
#48.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. , 4/28/20; 5/19/20
Docket 56
*** VACATED *** REASON: Ntc. of w/drawal filed 6/10/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mayra Hernandez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#49.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20
Docket 45
*** VACATED *** REASON: Cont. to 8/25/20 @ 11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Marvin Eleid Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10891
Hamid Farkhondeh and Mary Dadyan
Chapter 13
#50.00 Trustee's Application for Instructions from the Court for Direction Concerning the Distribution of Funds Pursuant to Local Bankruptcy
Rule 3015-(q)(6)
Docket 131
*** VACATED *** REASON: Per order entered docket no. 136 - hm Tentative Ruling:
Resolved by previous order and this is vacated.
Party Information
Debtor(s):
Hamid Farkhondeh Represented By Stella A Havkin Stella Rafiei
Joint Debtor(s):
Mary Dadyan Represented By Stella A Havkin Stella Rafiei
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12473
Stephen Anthony Cook
Chapter 13
#51.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20; 3/31/20
Docket 56
*** VACATED *** REASON: Cont. to 9/22/20 @ 11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen Anthony Cook Represented By Lauren Rode
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10040
Yoonah Mason
Chapter 13
#52.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20
Docket 72
*** VACATED *** REASON: Cont. to 8/25/20 @ 11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Yoonah Mason Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10664
Bridget G Moran Smith
Chapter 13
#53.00 Motion RE: Objection to Claim Number 3 by Claimant U.S. Bank, National Association, et al. c/o PHH Mortgage Corporation, its Successors and/or Assigns.
fr. 7/30/19; 8/20/19; 10/22/2019; 12/17/19, 2/25/20, 4/28/20
Docket 26
*** VACATED *** REASON: Cont. to 8/25/20 @ 11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Bridget G Moran Smith Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10781
Daniel Correa
Chapter 13
#54.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20, 4/28/20
Docket 32
Tentative Ruling:
On June 17, 2020, the Court entered an Order Approving Stipulation between Debtor and Trustee to Suspend Plan Payments (ECF doc. 39 & 40), which provides for suspension of three payments for April, May, and June 2020.
Does the Stipulation resolve the issues related to this Motion?
TELEPHONIC APPEARANCE REQUIRED, unless Trustee agrees to a continuance.
Party Information
Debtor(s):
Daniel Correa Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10789
Carmen Ivy Garcia-Torres
Chapter 13
#55.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20, 4/28/20
Docket 47
Tentative Ruling:
Party Information
Debtor(s):
Carmen Ivy Garcia-Torres Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10789
Carmen Ivy Garcia-Torres
Chapter 13
#55.01 Motion under Local Bankruptcy Rule 3015-1
(n) and (w) to modify plan or suspend plan payments
Docket 61
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Carmen Ivy Garcia-Torres Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11081
Noel Dia and Imee Dia
Chapter 13
#56.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 3/31/20
Docket 22
*** VACATED *** REASON: Ntc. of w/drawal filed 6/22/20 (eg) Tentative Ruling:
On April 23, 2020, the Court entered an Order Granting Motion to Modify or
Suspend Plan Payments (ECF doc. 30). Does the Order Granting MOMOD resolve the issues related to this Motion?
TELEPHONIC APPEARANCE REQUIRED, unless Trustee agrees to a continuance.
Party Information
Debtor(s):
Noel Dia Represented By
Rabin J Pournazarian
Joint Debtor(s):
Imee Dia Represented By
Rabin J Pournazarian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12952
Richard Lopez
Chapter 13
#57.00 Motion RE: Objection to Claim Number 4 by Claimant The Bank of New York Mellon c/o Specialized Loan Servicing, LLC with request for valuation of security, payment of fully secured claims, and modification of undersecured claims.
fr. 3/31/20, 4/28/20
Docket 25
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
The motion tovalue will be resolved first
Party Information
Debtor(s):
Richard Lopez Represented By James Studer
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12952
Richard Lopez
Chapter 13
#58.00 Motion for Setting Property Value of residence at 8816 Valjean Ave., North Hills, CA for determining wholly unsecured junior lien claim of The Bank of
New York Mellon fka The Bank of New York as Indenture Trustee c/o Specialized Loan Servicing LLC
fr. 4/28/20
Docket 19
Tentative Ruling:
Secured creditor has not filed its formal appraisal and nothing has been filed for this continued hearing. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
4-28-20 TENTATIVE BELOW
Service: Proper. Opposition filed.
Property: 8816 Valjean Ave., North Hills, CA (the "Property")
Fair market value: $465,000 per Debtor’s certified appraisal and declaration First lien: $513,281.03 (Select Portfolio Servicing, LLC)
Second lien: $92,138.39 (BoNYM/Specialized Loan Servicing LLC)
Debtor Richard Lopez ("Movant") asserts that (1) the secured portion of the first lien is $465,000 and the unsecured portion is $48,281.03; and (2) the secured portion of the second lien is $0 and the unsecured portion is $92,138.
The court takes judicial notice of Movant’s documents in support of this Motion pursuant to Rule 201 of the Federal Rules of Evidence.
Secured Creditor, The Bank of New York Mellon ("BoNYM") opposes and contends that the value of the Property is $1,150,000 based on a broker price opinion.
BoNYM requests to continue the hearing to provide it time to obtain a verified appraisal.
Debtor replied stating that BoNYM proposed the $1,150 valuation in bad faith because BoNYM did not submit evidence that it inspected the home, obtained a verified appraisal, and used the appropriate market comparables.
11:00 AM
CONT...
Debtor(s):
Richard Lopez
Party Information
Chapter 13
Richard Lopez Represented By James Studer
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#59.00 Motion To Compel Broadcast Music, Inc. To Remit Pre-Petition and Post-Petition Earned Royalties To Debtor
Docket 48
*** VACATED *** REASON: Order cont. to 7/21/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#60.00 Motion To Compel Atlantic Recording Corporation dba Warner Music Group To Remit Pre-Petition and Post-Petition Earned Royalties To Debtor
Docket 49
*** VACATED *** REASON: Order cont. to 7/21/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#61.00 Motion RE: Objection to Claim Number 5 by Claimant Melissa M. Buchman
Docket 50
*** VACATED *** REASON: Order cont. to 7/21/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#62.00 Motion RE: Objection to Claim Number 7 by Claimant Melissa Pearcy
Docket 56
*** VACATED *** REASON: Order cont. to 7/21/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#63.00 Motion RE: Objection to Claim Number 10
by Claimant Department of the Treasury/Internal Revenue Service.
Docket 61
*** VACATED *** REASON: Cont. to 7/21/20 @ 11am (eg Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13095
Ben Byuzand Militonyan
Chapter 13
#64.00 Motion RE: Objection to Claim Number 7 by Claimant Parts Authority Metro, LLC,
A California Limited Liability Company.
Docket 46
*** VACATED *** REASON: Matter moved to 1pm (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ben Byuzand Militonyan Represented By
Kristine Theodesia Takvoryan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13157
Juan Maldonado Bastida
Chapter 13
#65.00 Motion to Avoid Junior Lien fr. 4/28/20
Docket 34
Tentative Ruling:
Opposition filed by Secured Creditor BSI Financial in advance of the 4/28 hearing was withdrawn on 5/18/20. As no opposition is pending, the Court will grant the Motion. Debtor's amended plan and schedule A/B, filed after the withdrawal, provides for a value of $505,222 while the Motion requested a finding of value at $476,000. On which value will Debtor's reorganization be based?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Juan Maldonado Bastida Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10480
Eliachar Elliott Mamann
Chapter 13
#66.00 Trustee's Objection to Homestead Exemption
Docket 15
Tentative Ruling:
Trustee opposes Debtor's attempt to exempt 100% of the fair market value in two checking accounts, $20,005.29 under C.C.P. 704.070 and $6,950 under
C.C.P. 704.080 because Debtor has not provided evidence that the funds are exempt under these sections.
Trustee also opposes Debtor's attempt to exempt $170,000 in in a private retirement account under C.C.P. 704.115(a)(1) and (a)(2) because Debtor has not provided evidence that the funds are exempt under these sections.
In response, Debtor explained that he amended his Schedule C to remove the exemption under 704.070 in the two checking accounts. Debtor contends, however, that he has submitted bank statements to show that his monthly Social Security income is deposited into one of the accounts and the funds therein are exempt under 704.080.
Debtor also argues that his Private Retirement Trust is exempt pursuant to
C.C.P. § 704.115(a)(1) & (2) and (b). Debtor contends that the exemption does not require that the Private Retirement Trust be ERISA qualified. Debtor explains that he is employed through his business, Apex Window Treatments, which is sole proprietorship. Through that sole proprietorship, Debtor created a Private Retirement Plan as allowed under C.C.P. §704.115(a)(1). The assets of that plan consist of an annuity which is payable on account of the age of Debtor. Debtor explains that the plan was created for retirement purposes, as Debtor is 71 years old and his only retirement assets are social security of $585 per month and the Private Retirement Trust. Debtor argues that the Private Retirement Trust is exempt because it was created by the employer, in this case a sole proprietorship, for the benefit of the Debtor. DeMassa v. McIntyre (In re McIntyre), 74 F.3d 186 (9th Cir. 1996); Salameh
v. Tarsadia Hotel, 2015 US Dist. Lexis 14008 (S.D. Cal. 2015). Debtor maintains that under 704.115(a)(1), the entire plan is exempt if the criteria for
11:00 AM
CONT...
Eliachar Elliott Mamann
Chapter 13
self-employed plans is applied because the plan is exempt to the extent that it is reasonably necessary for Debtor’s support. It is Debtor's position that the entire amount is necessary for his support. The only asset of the plan is an annuity which is payable on account of the age of the Debtor and therefore the annuity would be independently exempt under 704.100.
Does the evidence provided by Debtor in support of his response resolve Trustee's Objection?
TELEPHONIC APPEARANCE REQUIRED, unless Trustee and the parties stipulate otherwise
Party Information
Debtor(s):
Eliachar Elliott Mamann Represented By William E. Winfield
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10666
Martha Delatorre
Chapter 13
#67.00 Motion RE: Objection to Claim Number 1 by Claimant HSAM.
Docket 28
Tentative Ruling:
Debtor filed her chapter 13 petition on March 20, 2020. On April 2, 2020, creditor HSAM filed a proof of claim in the amount of $5,956.86 for “medical treatment” Proof of Claim no. 1, (the “HSAM PoC”). Attached to the HSAM PoC is a copy of a bankruptcy invoice in the name of Martha Gonzalez listing various charges for 2016 and 2018.
Debtor objects to the HSAM PoC, contending that there is no evidence to support that this is Debtor's personal debt, as there is no contract to show that she is liable as the name on the bill is "Martha Gonzalez." Without more, Debtor argues that Claim #1 fails to establish prima facie validity.
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 (B.A.P. 9th Cir. 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
11:00 AM
CONT...
Martha Delatorre
Chapter 13
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.
Service proper on address listed on proof of claim as the address to which notices should be sent. No response filed.
Objection SUSTAINED. Debtor to lodge order within 7 days. NO APPEARANCE REQUIRED ON 6/23/20
Party Information
Debtor(s):
Martha Delatorre Represented By Kenneth H J Henjum
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10666
Martha Delatorre
Chapter 13
#68.00 Motion RE: Objection to Claim Number 2 by Claimant TMobile
Docket 29
Tentative Ruling:
Debtor filed her chapter 13 petition on March 20, 2020. On April 2, 2020, creditor T-Mobile filed a proof of claim in the amount of $1,421.33 for “goods sold & services rendered” Proof of Claim no. 2-1, . Attached to the Claim 2-1 was a Statement of Account in the name of Martha Delatorre for an account opened in February 2014 with the last payment date of 10/9/2019 (the "T- Mobile PoC").
Debtor objects to the T-Mobile PoC, contending that there is no evidence to support that this is Debtor's personal debt, as there is no contract to show that she is liable for this debt. Without more, Debtor argues that Claim #2-1 fails to establish prima facie validity.
On May 12, 2020, T-Mobile filed an amended proof of claim (the “T-Mobile Am. PoC”) asserting the same amount owed. Attached to the T-Mobile Am. PoC is a complete bill for the period ending June 2019, which includes a complete breakdown of the charges for both the cell phone services as well as the lease payments on Samsung and iPhones, as well as two pair of Beats earphones.
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.
11:00 AM
CONT...
Martha Delatorre
Chapter 13
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 (B.A.P. 9th Cir. 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.
Service proper on address listed on proof of claim as the address to which notices should be sent. 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, Debtor’s objection is not adequate to defeat this claim, as amended, because the evidence attached to the T-Mobile Am. PoC is sufficient to overcome Debtor's pro forma objection.
Objection overruled. Debtor to lodge order within 7 days. NO APPEARANCE REQUIRED ON 6/23/20
Party Information
Debtor(s):
Martha Delatorre Represented By Kenneth H J Henjum
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10666
Martha Delatorre
Chapter 13
#69.00 Motion RE: Objection to Claim Number 8,9 by Claimant Jeffeson Capital Systems, LLC.
Docket 34
Tentative Ruling:
Debtor filed her chapter 13 petition on March 20, 2020. On May 26, 2020, creditor Jefferson Capital filed two proofs of claim, Claim 8-1 in the amount of
$331.66 for “telecom” Proof of Claim no. 8-1, (the “Jefferson PoC 8”) and Claim 9-1 in the amount of $1,060.05 for “telecom” Proof of Claim no. 9-1, (the “Jefferson PoC 9”). Attached to the Jefferson PoC 8 is a copy of a "Proof of Claim and an Account Stated" reflecting that the original creditor was "Verizon Wireless" for an account opened in February 2014 and charged off in July 2014, as well as a copy of a past due bill dated July 27, 2014, sent to Debtor at the address listed on this bankruptcy. Attached to the Jefferson PoC 9 is a copy of a "Proof of Claim and an Account Stated" reflecting that the original creditor was "Verizon Wireless" for an account opened in January 2014 and charged off in June 2014, as well as a copy of a past due bill dated June 24, 2014, sent to Debtor at the address listed on this bankruptcy.
Debtor objects to the both the Jefferson PoC 8 and the Jefferson PoC 9, arguing that the underlying debts are stale, as they are more than six years old and therefore unenforceable. Debtor further contends that there is no evidence to support that this is Debtor's personal debt, as there is no contract to show that she is liable.
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.
11:00 AM
CONT...
Martha Delatorre
Chapter 13
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 (B.A.P. 9th Cir. 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.
Service proper on address listed on proof of claim as the address to which notices should be sent. No response filed. 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.
While Claimant included sufficient evidence to show that it was this Debtor who was liable for the debts on which these claims are based, Debtor’s objection that the debts are unenforceable under CA law as beyond the statute of limitations is SUSTAINED.
Objection SUSTAINED. Debtor to lodge order within 7 days. NO APPEARANCE REQUIRED ON 6/23/20
Party Information
Debtor(s):
Martha Delatorre Represented By Kenneth H J Henjum
11:00 AM
CONT...
Trustee(s):
Martha Delatorre
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12264
Alicia Butterfield
Chapter 13
#69.01 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20
Docket 64
Tentative Ruling:
Party Information
Debtor(s):
Alicia Butterfield Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
12:00 PM
1:19-12155
Gary Alan Kurtz
Chapter 13
#70.00 Motion RE: Objection to Claim Number 7 by Claimant STARR TAXMAN.
fr. 3/31/20, 4/28/20; 5/19/20
Docket 70
Tentative Ruling:
PRIOR TENTATIVE BELOW
Gary Alan Kurtz (the "Debtor") filed for chapter 13 bankruptcy on August 27, 2019. The deadline to file claims in the Debtor’s bankruptcy case was November 5, 2019. On this date, the Debtor’s estranged spouse, Star Taxman (the "Claimant"), filed a timely claim for
$15,000,0000. [Claim No. 7-1]. On this same day, the Claimant amended Claim No. 7-1 to a claimed amount of $5,457,891.73 (the "Claim"). [Claim No. 7-2]. Bankruptcy courts generally allow amendments to a proof of claim where the purpose is to (1) cure a defect in the claim as originally filed; (2) describe the claim with greater particularity; or (3) plead a new theory of recovery on the facts set forth in the original claim. United States v. International Horizons, Inc. (In re International Horizons, Inc.), 751 F.2d 1213, 1216 (11th Cir. 1985). The court will therefore allow the amendment.
On November 5, 2019, the Claimant also filed Claim No. 8-1, which duplicates Claim No. 7-1. On January 1, 2020, the Claimant filed an amended claim to Claim No. 8-1, changing the claimed amount to $14,865,508.09. (Claim No. 8-2).
On January 10, 2020, the Claimant filed Claim No. 9-1, which indicates a claimed amount of $5,487,893.73. and Claim No. 10 with a claimed amount of $14,865,508.09, which is an amount identical to Claim No. 8-2. These claims have been disallowed as late. This tentative will discuss Claim Nos. 7-1 and 7-2.
On March 23, 2020, Debtor filed an objection to Claim Nos. 7-1 and 7-2 (the "Motion"). At the March 31, 2020 hearing, the court set a deadline for the Claimant to file a response by April 17, 2020 and for the Debtor to file a reply by April 28, 2020. The Claimant
12:00 PM
CONT...
Gary Alan Kurtz
Chapter 13
has not filed a response. She called the courtroom deputy on May 13, 2020, one month after her response was due to say she is ill and would like more time to respond.
Under 11 U.S.C. § 502(a), a claim or interest, proof of which is filed under 11 U.S.C. § 501, is deemed allowed, unless a party in interest objects. Additionally, a properly executed and filed proof of claim "shall constitute prima facie evidence of the validity and amount of the claim." 11 U.S.C. § 3001(f). A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶3001.05[2].
When a party in interest objects to a creditor's claim, the bankruptcy court shall determine the amount of such claim as of the date of the filing of the petition. 11U.S.C.S. § 502(b). Post-petition conduct cannot justify disallowing a proof of claim. An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c).
To defeat a claim, a debtor must present sufficient evidence to "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. "The objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992). "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.
12:00 PM
CONT...
Gary Alan Kurtz
Chapter 13
Discussion
The Claimant’s Claim is prima facie valid under Rule 3001 because the Claimant properly and timely filed a proof of claim in writing and made a demand for $5,457,891.73 on the Debtor’s bankruptcy estate. The Claim is also supported by numerous documents, including the following:
A "Proof of Claim Index" showing computations of separate claims by LJG Family Trust and Creditor under different scenarios where Debtor may be responsible for certain charges. The computations include line items for the real property mortgage, attorney’s fees and costs; homeowner’s insurance; home maintenance and improvements; homeowner’s association dues; a fountain pen collection; artworks; watch collection; past due support, children medical, educational, and other children’s expenses; professional legal & CPA fees; among other things.
A "Declaration of Trust" for the LJG Family Trust showing that the trust was signed and executed on September 8, 2004 by Debtor as settlor and trustee and Creditor, also as settlor and trustee. The "Property of the Trust Estate" is indicated as 2103 Kenwyn Court, Topanga, California 90290 (the "Topanga Property"). The Claim also attaches an adjustable rate note for the same property in the amount of $875,000 signed by Debtor and Creditor individually and as trustees of the LJG Family Trust.
A computation of mortgage taxes and an email indicating a payment history of taxes paid on the real property.
A statement from Bank of America indicating the mortgage principal, payments, and balance on the real property.
A check paid for $12,311.57 on April 1, 2011 to reinstate the mortgage.
Annual property tax bills for years 2008, 2009, 2010, 2011, 2013, 2014, 2017, 2018, and
2019.
Creditor’s typed statement that she used $20,000 in separate property as down payment on a house located at 7740 Sale Avenue, West Hills, California.
12:00 PM
CONT...
Gary Alan Kurtz
Chapter 13
A summary of Creditor’s separate property home insurance payments totaling approximately $30,000.
A summary of Creditor’s payments to home improvements totaling approximately
$693,544.
A summary of Creditor’s payments to homeowner’s association dues of $43,135.67 for August 2009 to October 2019 for the Topanga Property.
Creditor’s typed statement stating that a Mercedes Benz automobile is community property and requesting the court to order an appraisal.
Creditor’s typed statement stating that a comic book collection is community property and requesting the court to order an appraisal. Creditor asserts that the comic collection can sell for six to seven figures.
Creditor’s typed statement stating that she owns 50% of the comic book collection, fountain pen and pen collection, watches, a trumpet and saxophone, books, among other things.
Typed statements about Debtor’s law practice, which Creditor expects to receive
$1,000,000; artwork collection; retirement accounts.
A stock portfolio in BlackRock indicating a market value of approximately $585,000.
A summary of past due support payments for years 2009 through 2019.
The burden shifted to the Debtor to present evidence sufficient to defeat the Claim.
The Debtor objects to the Claim on the following grounds:
The Claim fails to state a claim with sufficient detail and specificity as to make it comprehensible;
The Claim fails to attach sufficient documents to prove that a debt is owed in violation of Rule 3007(d)(5);
The Claim fails to state a valid debt owed to the claimant, namely the LJG Family Trust;
The Creditor has no standing or authority to raise claims against the Debtor, who is a co- trustee;
12:00 PM
CONT...
Gary Alan Kurtz
Chapter 13
The Claim does not state a valid basis for a claim as to Paragraph 7.
The Claim does not state a valid basis for a claim as to Paragraph 8 because it fails to include the attachment required by Rule 3001(c) in violation of Rule 3007(d)(6)
The Claim does not state a valid basis for a claim as to Paragraph 9 because it fails to substantiate that any part of the claim is secured, fails to file a Mortgage Proof of Claim attachment as required under the "Real estate" section, and fails to attach any documents evidencing perfection of a security interest as required in the "Basis for perfection" section in violation of Rule 3007(d)(6)
The Claim does not establish a basis for a secured claim because the "Basis for perfection" section states "Settlement," which does not establish a security interest
The Claim does not state a valid basis for a claim as to Paragraph 12, "Domestic support obligations" because a trust cannot be owed domestic support obligations as a matter of law
The Claim does not state a valid basis for a claim as to Paragraph 12, "Up to $3,025 of deposits…" because the instant trust, which was established solely for the purpose of holding title to real estate for estate planning purposes, cannot be owed funds identified in this section
The Claim does not state a valid basis for a claim as to Paragraph 12, "Wages, salaries or commission…" because the instant trust, which was established solely to hold title to real estate for estate planning purposes, cannot be owed funds identified in this section.
The Claim does not state a valid basis for a claim as to Paragraph 12, "Taxes or penalties owed to governmental units…" because the instant Trust, which was established solely to hold title to real estate for estate planning purposes, cannot be owed funds identified in this section, and Claimant is not a governmental unit. [This section did not apply to Claim No 7-2 because it was left blank].
Specifically, the Debtor alleges that it is unclear whether the Claimant filed the Claim in her individual capacity or as trustee for the LJG Family Trust. On the signature page of Claim No 7-2, the Claimant wrote her name, "Star Taxman" and indicated her title as, "Trustee for LJG Family Trust" and under Company indicated, "as Plaintiff/Creditor/Trustee/Settlor." [Claim No. 7-2, p. 3].
Is the Claimant filing the Claim in her individual capacity and/or as the trustee for the
12:00 PM
CONT...
Gary Alan Kurtz
Chapter 13
LJG Family Trust?
The Debtor’s main contention is that the Claim should be disallowed under 11 U.S.C.
§ 502 because the Claim does not attach supporting documents, which allegedly violate Rule 3001(c)(1). Rule 3001(c)(1) states that when a claim or an interest in a debtor’s property securing the claim is based on a writing, the original or a copy of the writing must be filed with the claim. Fed. R. Bankr. P. 3001(c); T. Jones, Inc. v. Simmons (In re Simmons), No. WW-04-1344-PST, 2005 Bankr. LEXIS 2954, at *14 (9th Cir. BAP March 31, 2005).
The Claim indicates that it is secured by $1,900,000 in assets, including: (1) real property; (2) a motor vehicle; and (3) Debtor’s law office, which is shown as community property. The unsecured amount of the Claim is indicated as $3,557,891.73 for a total claim of $5,457,891.73. [Claim No. 7-2, p. 2]. The Claim also indicates entitlement to priority under 11 U.S.C. § 507(a) of (1) $36,658.82 for domestic support obligations; (2) $3,025.00 for purchase, lease, or rental of property or services for personal, family, or household use; and (3) $13,650.00 for wages, salaries, or commissions earned within 180 days before the bankruptcy petition is filed, or the debtor’s business ends, whichever is earlier. [Id., p. 3].
Most courts adopt the "exclusive view" that § 502 provides the exclusive grounds to disallow a claim. In re Dove Nation, 318 B.R. 147, 150 (8th Cir. BAP 2004)(followed by Heath v. Am. Express Travel Related Servs. Co. (In re Heath), 331 B.R. 424, 435 (9th Cir. BAP 2005)). Under the majority rule, a party seeking to disallow a claim must allege a substantive basis under § 502(b). Section 502(b) enumerates nine grounds on which a proof of claim may be disallowed. Sears v. Sears (In re Sears), 863 F.3d 973, 979 (8th Cir. 2017).
In the Ninth and Eight Circuits, a failure to file documents is not among the bases for disallowing a claim under § 502(b). (In re Sears), 863 F.3d at 979; In re Heath, 331 B.R. at 435 ("Noncompliance with Rule 3001(c) is not one of the statutory grounds for disallowance").
The debtor relies on the Tenth Circuit’s ruling in Kirkland, which found that a bankruptcy court properly disallowed a claim because the creditor did not conform substantially to the appropriate Official Form as required by Fed. R. Bankr. P. 3001(a). In re Kirkland, 572 F.3d 838, 840-41 (10th Cir. 2009). Official Form 10 required a claimant to "[attach redacted copies of any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments, mortgages, and security agreements." Fed. R. Bankr. P. Official Form 10. Form 10 also required a claimant to explain if the documents are not available. Id.
12:00 PM
CONT...
Gary Alan Kurtz
Chapter 13
Kirkland is not controlling and the facts in Kirkland are starkly different. In Kirkland, the creditor failed to produce a single document to support its proof of claim or to explain the absence of evidentiary support. In re Kirkland, 572 F.3d at 840-41. The Tenth Circuit therefore concluded that the creditor failed to present "prima facie evidence of the validity and amount of the claim." Id. at 841. By contrast, here, Creditor attached numerous documents to her proof of claim as listed above. Where a creditor supports the proof of claim with attached exhibits, it is sufficient prima facie evidence of the claim although "not precisely in the manner contemplated by the rules." In re Sears, 863 F.3d at 980.
The Ninth Circuit’s decision in Heath controls. The Ninth Circuit explained why it followed the majority view. First, the Ninth Circuit looked to the plain language of sections 501(a), 502(a), and 502(b) and concluded that noncompliance with Rule 3001(c) is not one of the statutory grounds to disallow a claim. In re Heath, 331 B.R. at 435. Second, the Ninth Circuit reasoned that the claims allowance process does not violate due process because the process is designed to be speedy and inexpensive; the purpose of Rule 3001(f) is to allow the proof of claim to act like a verified complaint and have an independent evidentiary effect; and a proof of claim has more weight than an evidentiary pleading because it is signed under penalty of up to $500,000 or up to five years in prison, or both, for fraudulent claims. Id. The creditor’s failure to provide supporting documents in violation of Rule 3001(c)(1) is not a basis to disallow a claim under § 502(b).
The Debtor provides a list of other arguments but provides no law and analysis. Neither the Debtor’s position nor the Claimant’s is clear. Has the family court made a division of property? Is either side relying on a clear division of assets or DSO?
The Claimant indicates that all or part of the Claim is secured. If a creditor claims that its debt is secured, the proof of claim must be accompanied by evidence that the security interest has been perfected. Fed. R. Bankr. P. 3001(d); T. Jones, Inc. v. Simmons (In re Simmons), BAP No. WW-04-1344-PST, 2005 Bankr. LEXIS 2954, at *14 (9th Cir. BAP March 31, 2005). The Claimant is instructed to provide evidence of a security interest.
This Motion will not be decided at this hearing and will be discussed further. TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Gary Alan Kurtz Represented By
12:00 PM
CONT...
Trustee(s):
Gary Alan Kurtz
Stephen L Burton
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
12:00 PM
1:19-12155
Gary Alan Kurtz
Chapter 13
#71.00 Motion RE: Objection to Claim Number 8 by Claimant STARR TAXMAN.
fr. 3/31/20,4/28/20; 5/19/20
Docket 71
Tentative Ruling:
See analysis under claim 7. Claimant should advise if claim 8 is intended to substitute for claim 7. It is largely duplicative, but adds detail.
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:19-13095
Ben Byuzand Militonyan
Chapter 13
#72.00 Motion RE: Objection to Claim Number 7 by Claimant Parts Authority Metro, LLC,
A California Limited Liability Company.
Docket 46
Tentative Ruling:
Debtor owns and operates Ben’s Auto Parts. He purchases auto parts from wholesale distributors, such as Parts Authority Metro, and supplies the auto parts directly to the consumer. Prior to the Petition Date, on or about June 5, 2019, Parts Authority Metro filed an action against Debtor in Superior Court (the “State Court Action”) alleging that the Debtor owed $348,269.99 in debt which it broke down into three distinct debts: (1) $168,000 remaining debt on a “Promissory Note”; (2) $114,609 unpaid invoices on the “Payoff Account”; and (3) $65,660 unpaid invoices on the “Buying Account”. The State Court Action was not adjudicated because Debtor filed bankruptcy. Debtor's objection is premised on his argument that Debtor has made a substantial amount of payments that are not reflected in the Proof of Claim.
With respect to the Promissory Note, Debtor explains that he entered into a promissory note on October 1, 2015 with Metropolitan Automotive Warehouse (the “Promissory Note”) whereby he promised to pay
$512,654.84 by making monthly payments of $5,000 with the final payment due on April 1, 2024. At the time the State Court Action commenced, Debtor contends that he had paid off over two-thirds of the debt in less than half the life of the debt with five (5) years remaining to pay off the balance of
$168,000. Furthermore, the Promissory Note was secured by a security agreement, giving Metropolitan Automotive Warehouse a security interest in all inventory held by Ben’s Auto Parts (the “Security Agreement”). This Security Agreement is the basis of a UCC-1 filing with the California Secretary of State. In addition to making the monthly payments as outlined above, Debtor claims that he turned over to Parts Authority Metro approximately
$200,000 worth of inventory in repayment of the debt. Decl. of Militonyan, Ex.
2. Debtor maintains that the ledger provided by Claimant underestimates the value of the total credit as $160,784.93 and that, to date, no credit has been
1:00 PM
CONT...
Ben Byuzand Militonyan
Chapter 13
applied to the debt, and no mention of this credit was made in Claimant’s Claim.
With respect to the Payoff Account, Debtor argues that he paid off the account well before the State Court Action commenced, having made payments totaling $114,007.67 and does not owe a balance on this account. Decl. of Militonyan, Ex.3. As to the Buying Account, Debtor contends that he has been making payments on this account in the ordinary course of business totaling $58,883.11 and owes a balance of less than $7,000. Decl. of Militonyan, Ex. 4. Accordingly, Debtor requests that Parts Authority Metro’s Claim be disallowed, as Claimant has failed to provide evidence to substantiate the full amount of the debt asserted in its Claim. Additionally, the Debtor requests that the Claimant provide a full accounting and credit him for all payments/credits made.
Parts Authority opposes the Motion, arguing that the balance on the promissory note was accelerated for nonpayment and thus the entire
$165,000 is due and payable now. Parts Authority points out that Debtor seems to acknowledge that he owes a secured balance of $168,000 on the Promissory Note. Decl. of Militonyan, ¶ 5. It also asserts that the balance on the Payoff Account is $114,609.59. as no payment has been made on the Payoff Account since September 29, 2018. Lastly, Parts Authority disputes Debtor's explanation of how the Buying Account is credited and his assertion that he is due credits that would reduce the amount owed. Parts Authority explains that it agreed to take back product and credit Debtor's Buying Account for the amount he had paid, less a 15% restocking charge. Bauby Decl. ISO Opposition. Parts Authority contends that Debtor returned product in the amount of $171,315.21 and credited Debtor's account $160,784.93 (the value, less the 15% restocking charge).
The parties should be prepared to discuss if this contested matter requires an evidentiary hearing to resolve these accounting issues, or whether the parties would prefer a continuance to attempt to resolve the issues consensually.
TELEPHONIC APPEARANCE REQUIRED.
Party Information
1:00 PM
CONT...
Debtor(s):
Ben Byuzand Militonyan
Chapter 13
Ben Byuzand Militonyan Represented By
Kristine Theodesia Takvoryan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-11762
Christopher Michael Niblett
Chapter 13
#1.00 Motion for relief from stay
BROKET SOLUTIONS, INC., DBA NEW AMERICAN FUNDING
fr. 4/29/20; 5/13/20
Docket 55
Tentative Ruling:
Continued from 4/29/20; 5/13/20
Debtor payed Movant $6200 and is still working on APO for the rest. Nothing has been filed since the last hearing (5/13/20). What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Christopher Michael Niblett Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-11904
Christa Franck Bretz
Chapter 13
#2.00 Motion for relief from stay
U.S. BANK TRUST NATIONAL ASSO. fr. 4/1/20, 5/20/20, 6/2/20
Docket 100
Tentative Ruling:
Continued from 4/1/20; 6/2/20
This hearing was continued from 6/2/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion? TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Christa Franck Bretz Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-14044
Ahmad Heidari and Nafiseh Alamdar Heidari
Chapter 13
#3.00 Motion for relief from stay
U.S. BANK TRUST NATONAL ASSOC. fr. 6/2/20
Docket 117
Tentative Ruling:
Continued from 6/2/20
This hearing was continued from 6/2/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion? TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Ahmad Heidari Represented By Steven A Alpert
Joint Debtor(s):
Nafiseh Alamdar Heidari Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-10083
Griselda Renteria
Chapter 13
#4.00 Motion for relief from stay CSMC2018-RPL8 Trust
fr. 6/2/20
Docket 73
*** VACATED *** REASON: Resolved per APO (doc.76)-rc Tentative Ruling:
Party Information
Debtor(s):
Griselda Renteria Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-10316
Edwin Alvarez Hernandez
Chapter 13
#5.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
Docket 40
*** VACATED *** REASON: Movant's atty filed a withdrawal - Doc #47. lf
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Edwin Alvarez Hernandez Represented By Barry E Borowitz
Movant(s):
THE BANK OF NEW YORK Represented By Jacky Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11159
Levia Blane Arbuckle
Chapter 13
#6.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST
fr. 5/13/20
Docket 132
Tentative Ruling:
Continued from 5/13/20
This hearing was continued from 5/13/20 so that the parties could work on an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion? TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Levia Blane Arbuckle Represented By Kevin T Simon
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry Keith Labell Eric P Enciso
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11995
Priscilla Jeanette Bueno
Chapter 13
#7.00 Motion for relief from stay
NATIONSTAR MORTGAGE LLC DBA MR. COOPER
Docket 64
*** VACATED *** REASON: Cont'd to 7/22/20 @ 10:00 a.m. per order #69. lf
Tentative Ruling:
Ch. 13 Petition Date: 07/26/2017 Plan confirmed 11/14/2017
Service: Proper; co-debtor served No opposition filed. Property: 15956 Vincennes St., North Hills, CA 91343-2923 Property Value: $500,000 (per debtor’s schedules)
Amount Owed: $308,083.24 Equity Cushion: 38.4% Equity: $191,916.76
Post-Petition Delinquency: $5,342.55 (3 payments of $1,957.23, less suspense of $529.14)
Movant alleges that the last partial payment received was on or about 4/21/2020.
Disposition: GRANT under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3(a) (Movant permitted to engage in loss mitigation activities); and 7 (relief from 4001(a)(3) relief from stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Priscilla Jeanette Bueno Represented By
10:00 AM
CONT...
Trustee(s):
Priscilla Jeanette Bueno
Matthew D. Resnik Roksana D. Moradi-Brovia
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10407
John Nha Vu
Chapter 13
#8.00 Motion for relief from stay
U.S. BANK, NATIONAL ASSO.
Docket 67
*** VACATED *** REASON: Resolved per APO (doc.71)-rc Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
John Nha Vu Represented By
Jeffrey J Hagen
Movant(s):
U.S. Bank, National Association, as Represented By
Jacky Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10781
Daniel Correa
Chapter 13
#9.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST COMPANY
Docket 36
Tentative Ruling:
Ch. 13 Petition Date: 04/02/2019 Plan confirmed 07/22/2019
Service: Proper. Opposition filed 6/11/2020 Property: 8101 Etiwanda Ave, Reseda, CA 91335 Property Value: $490,000 (per debtor’s schedules) Amount Owed: $369,282.52
Equity Cushion: 24.6% Equity: $120,717.48
Post-Petition Delinquency: $7,167.74 (3 payments of $1,922.58 plus $1,400 post-petition advances)
Movant alleges that the last partial payment received was on or about 10/15/2019. Movant requests relief under 11 U.S.C. 362(d)(1) with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3(a) (Movant permitted to engage in loss mitigation activities); and 7 (relief from 4001(a)(3) relief from stay).
Debtor opposes the motion because the property is necessary for effective reorganization. Debtor wishes to enter an APO to catch up on post-petition arrears. Is Movant amenable to an APO?
TELEPHONIC APPEARANCES REQUIRED.
Party Information
Debtor(s):
Daniel Correa Represented By Elena Steers
10:00 AM
CONT...
Trustee(s):
Daniel Correa
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10940
Laurie Francene Kinzer
Chapter 13
#10.00 Motion for relief from stay
TOWN & COUNTRY HOMEOWNERS ASSOC., INC.
fr. 4/29/20, 6/2/20 (Moved), 6/2/20
Docket 45
Tentative Ruling:
Continued from 4/29/20; 6/2/20
This hearing was continued from 6/2/20 so that the parties could work on an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion? TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Laurie Francene Kinzer Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11758
Aram Setrak Ohanesian
Chapter 13
#11.00 Motion for relief from stay
TOYOTA LEASE TRUST AS SERVICE BY TOYOTA MOTOR CREDIT CORP.
fr.4/8/20; 4/29/20, 6/3/20 (Moved), 6/2/20
Docket 22
*** VACATED *** REASON: Resolved per APO (doc. 30)-rc Tentative Ruling:
Party Information
Debtor(s):
Aram Setrak Ohanesian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12917
Maurice Vasquez
Chapter 13
#12.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO. fr. 4/1/20, 5/6/20
Docket 26
Tentative Ruling:
Continued from 4/1/20; 5/6/20
This case was dismissed on 6/17/20, so the stay expired on that same day under 362(c)(2)(B). As Movant does not request extraordinary or in rem relief due to allegations of bad faith, this Motion is DENIED as moot.
MOVANT TO LODGE ORDER IN ACCORDANCE WITH THIS RULING WITHIN 7 DAYS. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Maurice Vasquez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10037
Andrew Blas Lorenzo
Chapter 13
#13.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO fr. 5/13/20
Docket 35
Tentative Ruling:
Continued from 5/13/20
This hearing was continued from 5/13/20 so that the parties could work on an APO to resolve this matter. Debtor requested for mortgage forbearance due to the COVID-19 pandemic for 180 days (doc 40). Movant agrees to forbearance agreement (doc.41).
Due to the forbearance agreement, the Court finds cause to continue the hearing to September 10, at 10:00 AM.
NO APPEARANCE REQUIRED
Party Information
Debtor(s):
Andrew Blas Lorenzo Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10097
Fay Moss-Mervis
Chapter 13
#14.00 Motion for relief from stay WELLS FARGO BANK, N.A.
Docket 20
Tentative Ruling:
Ch. 13 Petition Date: 01/15/2020
Service: Proper. Co-Borrower served. No opposition filed. Property: 2014 Ford Fusion
Property Value: $0 Amount Owed: $7,756.94 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $808.40 (1 payment of $51.02 and 3 payments of
$252.26)
Movant alleges that the last partial payment received was on or about 5/31/2019. Movant regained possession pre-petition on 09/24/19
Disposition: GRANT under 11 U.S.C. 362(d)(1), with specific relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 5 (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.
Party Information
Debtor(s):
Fay Moss-Mervis Represented By David S Hagen
10:00 AM
CONT...
Movant(s):
Fay Moss-Mervis
Chapter 13
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10558
Armen Saroyan
Chapter 13
#15.00 Motion for relief from stay JPMORGAN CHASE BANK, N.A.
Docket 27
Tentative Ruling:
Ch. 13 Petition Date: 03/08/2020 Service: Proper. No opposition filed. Property: 2016 Mazda CX5
Property Value: $0 (per debtor’s schedules) Amount Owed: $16,074.80
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $0
Movant alleges that the last partial payment received was on or about 03/06/2020 and the lease matured on or around 04/15/2020. Movant regained possession of the property on or around 04/07/2020.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 3 (no stay in effect); 5 ( 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.
Party Information
Debtor(s):
Armen Saroyan Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
CONT...
Armen Saroyan
Chapter 13
10:00 AM
1:10-10209
R.J. Financial, Inc.
Chapter 7
Adv#: 1:18-01029 Seror v. Abalkhad et al
#16.00 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, 9/12/18, 7/17/19; 9/11/19, 12/11/19, 4/1/20
Docket 47
*** VACATED *** REASON: Cont'd per stip to 10/7/2020 at 11 a.m. - hm Tentative Ruling:
- NONE LISTED -
Party Information
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
10:00 AM
CONT...
R.J. Financial, Inc.
Daniel J McCarthy
Chapter 7
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
10:00 AM
CONT...
R.J. Financial, Inc.
Rosendo Gonzalez
Chapter 7
10:00 AM
1:12-10229
C.M. Meiers Company, Inc.
Chapter 11
Adv#: 1:14-01042 Sharp v. Essex Insurance Company
#17.00 Status conference re complaint for: 1- declaratory relief
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, 9/26/18, 2/6/19; 4/8/19
5/15/19; 2/26/20
Docket 1
Tentative Ruling:
Cont. fr. 5/15/19; 2/26/20
Having reviewed the 6/10/20 Status Report (doc. 239), this status conference will be continued to August 19, 2020 at 10:00 a.m. At that time, the Parties should provide the Court with any update on the Ninth Circuit's decision.
NO APPEARANCE REQUIRED
Party Information
Debtor(s):
C.M. Meiers Company, Inc. Pro Se
Defendant(s):
Essex Insurance Company Pro Se
Plaintiff(s):
Bradley D Sharp Represented By
10:00 AM
CONT...
Trustee(s):
C.M. Meiers Company, Inc.
Larry W Gabriel
Chapter 11
Bradley D. Sharp (TR) Represented By David Gould Stanley H Shure Larry W Gabriel
U.S. Trustee(s):
United States Trustee (SV) Pro Se
10:00 AM
1:19-11927
Vardui Vanessa Aleksanyan
Chapter 7
#18.00 Trustee's Final Report and Applications for Compensation
Docket 42
Tentative Ruling:
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.
Party Information
Debtor(s):
Vardui Vanessa Aleksanyan Represented By Keith S Dobbins
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#18.01 Motion for order authorizing the use of the leased premises for religious service events pursuant to section 363 of the Bankruptcy Code.
Docket 81
*** VACATED *** REASON: Order Cont. to 6/29/20 @10am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#18.02 Motion to Extend Exclusivity Period for Filing a Chapter 11 Plan and Disclosure Statement
Docket 83
*** VACATED *** REASON: Order Cont. to 6/29/20 @10am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
11:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
#19.00 Scheduling and Case Management Conference and Filing of Monthly Reports
fr. 11/6/19
Docket 31
*** VACATED *** REASON: Duplicate to matter #32.01. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Maria Estela San Vicente Represented By Thomas B Ure
11:00 AM
1:14-14747
Tony Servera Company, Inc.
Chapter 11
#20.00 Status and Case Management Conference
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, 9/26/18, 2/6/19, 6/26/19, 8/21/19, 12/18/19
Docket 1
*** VACATED *** REASON: This case was dismissed on 4/9/2020. -rc Tentative Ruling:
Party Information
Debtor(s):
Tony Servera Company, Inc. Represented By Steven R Fox
W. Sloan Youkstetter
11:00 AM
1:16-11985
Samuel James Esworthy
Chapter 11
#21.00 Post Confirmattion status conference
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, 6/26/19, 9/18/19, 12/18/19; 2/11/20, 3/4/20
Docket 1
Tentative Ruling:
fr. 3/4/20
This matter was continued from 3/4/20. As of 6/16/20, Nothing has been filed since the 2/26/20 Status Report. Debtor anticipates the only matter left is a Motion for Final Decree. Why has this not been filed yet?
What is the status of this case?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Samuel James Esworthy Represented By
M. Jonathan Hayes
11:00 AM
1:19-11422
Joe Kearney
Chapter 11
#22.00 Status Conference Re:
Motion to Disallow Claims of Patricia Leupold (claim # 8-1) fr. 10/22/19, 12/17/19, 3/4/20
Docket 37
Tentative Ruling:
On 3/4/20, Partial Summary Judgment was granted in Favor of Plaintiff's Eighth Cause of Action ("Disgorgement Claim"). There are 8 remaining causes of action. The 6/24/20 hearing is a Status Conference regarding the remaining Claims Objection. The parties were to discuss mediation in the interim. Nothing has been filed since 3/4/20 concerning the status of the remaining claims.
TELEPHONIC APPERANCE REQUIRED
Party Information
Debtor(s):
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
Movant(s):
Joe Kearney Represented By
Robert M Aronson Robert M Aronson Robert M Aronson Robert M. Aronson Robert M. Aronson Robert M. Aronson
11:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
#23.00 Debtor's Disclosure Statement Describing Chapter 11 Plan of Reorganization
Docket 81
Tentative Ruling:
STANDARD
References: In re A.C. Williams, 25 B.R. 173 (Bankr. N.D. Ohio 1982); See also In re Metrocraft, 39 B.R. 567 (Bankr. N.D.Ga. 1984); § 1125
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).
"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).
Courts have developed lists of relevant factors for the determination of adequate disclosure. E.g., In re A.C. Williams, supra.
There is no set list of required elements to provide adequate information per se. A case may arise where previously enumerated factors are not sufficient to provide adequate information. Conversely, a case may arise where previously enumerated factors are not required to provide adequate information. In re Metrocraft Pub. Services, Inc., 39 B.R. 567 (Bankr. N.D.Ga. 1984). "Adequate information" is a flexible concept that permits the degree of disclosure to be tailored to the particular situation, but there is an irreducible minimum, particularly as to how the plan will be implemented. In re Michelson, 141 B.R. 715, 718-19 (Bankr. E.D.Cal. 1992).
11:00 AM
CONT...
Maria Estela San Vicente
Chapter 11
The court should determine what factors are relevant and required in light of the facts and circumstances surrounding each particular case. In re East Redley Corp., 16 B.R. 429 (Bankr. E.D.Pa. 1982).
LBR 3017-1(a) requires at least 36 days notice to all parties in interest. FRBP 3017(a) provides that the disclosure statement be served by mail as required under FRBP 2002(b)
Disclosure not sufficient as it does not contain adequate information:
On pages 7-8 of the Disclosure Statement, Debtor lists Chase Bank as a Class 1b, (2nd dot) creditor. The Disclosure Statement states that Chase has a lien on Debtor's principal place of residence. Apparently, the creditor stopped sending statements to Debtor for years and Debtor has been unable to verify the existence of the lien and disputes this lien. Debtor proposes to pay nothing to this purported lienholder and may initiate an adversary proceeding to ensure permanent removal of the lien from the property. The Disclosure Statement does not list the amount disputed by Chase.
Under the Metrocraft standard, this is not adequate to provide a reasonable investor with enough information to make a decision on the proposed plan of reorganization. Investors and creditors do not know the extent to which Debtor may be liable--possibly effecting their right to payments under the plan.
Moreover, it appears that Debtor has not made any showing that JP Morgan Chase, as an FDIC-insured institution (See FDIC.Org), was properly served under Fed. R. Bankr. P. 7004(h). This section provides:
Service on an insured depository institution (as defined in section 3 of the Federal Deposit Insurance Act) in a contested matter or adversary proceeding shall be made by certified mail addressed to an officer of the institution unless--
the institution has appeared by its attorney, in which case the attorney shall be served by first class mail;
the court orders otherwise after service upon the institution
11:00 AM
CONT...
Maria Estela San Vicente
Chapter 11
by certified mail of notice of an application to permit service on the institution by first class mail sent to an officer of the institution designated by the institution; or
the institution has waived in writing its entitlement to service by certified mail by designating an officer to receive service.
Here, Chase has not appeared by its attorney, nor waived in writing Chase's entitlement to certified mail. Chase was merely served at its P.O. box . Thus, the service does not comply with 7004(h).
TELEPHONIC APPERANCE REQUIRED
Party Information
Debtor(s):
Maria Estela San Vicente Represented By Thomas B Ure
11:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
#23.01 Scheduling and Case Management Conference and Filing of Monthly Reports
fr. 11/6/19
Docket 31
Tentative Ruling:
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Maria Estela San Vicente Represented By Thomas B Ure
11:00 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#24.00 Motion RE: Objection to Claim Number 28 by Claimant Susan Ferguson
fr. 11/20/19, 1/15/20, 4/1/20; 5/20/20
Docket 2311
*** VACATED *** REASON: Matter resolved per 9019 motion, doc. 2402
- hm Tentative Ruling:
NONE LISTED -
Party Information
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 Jorge A Gaitan Robyn B Sokol
Trustee(s):
David Seror (TR) Represented By Richard Burstein Michael W Davis David Seror
11:00 AM
CONT...
Owner Management Service, LLC
David Seror (TR) Steven T Gubner Reagan E Boyce Jessica L Bagdanov Reed Bernet
Talin Keshishian Jorge A Gaitan Robyn B Sokol
Chapter 7
11:00 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#25.00 Motion by Chapter 7 Trustee to: (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 Proceeds Pursuan to 11 U.S.C. sections 363(b) and (f); (2) Approve Overbid Procedures;
(3) Determine that Buyer is Entitled to Protection Pursuant to 11 U.S.C. Section 363(m)
Docket 2406
Tentative Ruling:
Having considered the Motion to Sell and Wells Fargo Bank's response, the Court finds that Trustee has shown a sufficient business reason for the sale, that the sale is in the best interest of the estate, i.e., it is fair and reasonable, that it has been given adequate marketing, that it has been negotiated and proposed in good faith, and that it is an ‘arms- length’ transaction. The Sale and overbid procedure are approved on the terms proposed in the Motion. MOTION GRANTED.
TELEPHONIC APPEARANCE REQUIRED; TRUSTEE TO LODGE ORDER WITHIN 7 DAYS
Party Information
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
11:00 AM
CONT...
Trustee(s):
Owner Management Service, LLC
Reed Bernet Talin Keshishian Jorge A Gaitan Robyn B Sokol
Chapter 7
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 Jorge A Gaitan Robyn B Sokol
11:00 AM
1:19-10828
Anna Barseghian
Chapter 7
Adv#: 1:19-01083 Zamora, Chapter 7 Trustee v. Baron et al
#26.00 Status Conference Re: Compliant for Avoidance of Transfer; Recovery of Avoided Transfer; Determination of Value, Priority, Extent and Validity of Lien; Declaratory Relief; Quiet Title; To Remove Cloud on Title; and Injunction
fr. 9/18/19, 11/6/19, 1/8/20; 4/8/20
Docket 1
*** VACATED *** REASON: Order entered cont. to 8/19/20 @ 11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Defendant(s):
Van Baron Pro Se
Does 1-20 Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Wesley H Avery
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
11:00 AM
1:19-10828
Anna Barseghian
Chapter 7
Adv#: 1:19-01084 Zamora, Chapter 7 Trustee v. Barseghian
#27.00 Status Conference Re: Complaint for Denial of Discharge.
fr. 9/18/19, 11/6/19, 1/8/20; 4/8/20
Docket 1
*** VACATED *** REASON: Continued to 8/19/20 at 11:00 AM-rc Tentative Ruling:
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Defendant(s):
Anna Barseghian Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Wesley H Avery
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#28.00 Motion to Dismiss Adversary Proceeding fr. 6/3/20
Docket 59
Tentative Ruling:
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.
Party Information
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards Arnold L Graff
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Valerie J Schratz
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
1:00 PM
CONT...
David B. Rosen
Chapter 11
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#29.00 Status Conferece re: First Amended Complaint for:
Declaratory Relief
Injuctive Relief for Violation of Automatic Stay
Extent, Validity or Priority of Claim or Interest
Turnover of Property of the Estate
Contempt for Violation of Court Order
Violation of California Penal Code section 470 and Commercial Code section 3-420 for wrongful alteration and Conversion of a Negotiable Instrument
Negligence in the Handling and Management of Debtor's Account.
Attorney fees and costs. fr. 5/6/20
Docket 32
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
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 Chase Bank NA a National Banking Pro Se
Nationstar Mortgage, aka Mr. Pro Se
1:00 PM
CONT...
David B. Rosen
Chapter 11
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#30.00 Motion for Default Judgment fr. 5/6/20
Docket 47
Tentative Ruling:
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.
Party Information
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards Arnold L Graff
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Jared D Bissell
JPMORGAN CHASE BANK, N.A. Represented By
Mary H Haas
1:00 PM
CONT...
David B. Rosen
Chapter 11
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#31.00 Motion to set aside RE: Entry of Default fr. 6/3/20
Docket 56
Tentative Ruling:
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.
Party Information
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards Arnold L Graff
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Valerie J Schratz
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
1:00 PM
CONT...
David B. Rosen
Chapter 11
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:19-11292
Mani Mukherjee
Chapter 7
Adv#: 1:19-01104 Uddin et al v. Mukherjee
#32.00 Motion For Summary Judgment
Docket 12
Tentative Ruling: Service
Service not proper as Debtor was not served individually as required under LBR 9013-1(d), made applicable by LBR 7056-1(a)
Facts
In October 2015, plaintiffs Zohir and Delwara Uddin ("Plaintiffs") and debtor Manoj Mukherjee ("Debtor" or "Defendant") entered into a contract to demolish the existing structure and build a new home on Plaintiffs’ property at 22702 Leonora Drive, Woodland Hills, CA 91367 (RJN ex 1 "Exhibit B"). Pursuant to the agreement, Plaintiffs were to pay a sum total of four hundred thousand dollars ($400,000) to Debtor, who agreed to commence work on October 9, 2015 and complete the construction by January 23, 2016.
Between October 2015 and May 2017, Debtor furnished labor, services, equipment, and material for the project. While Debtor claimed to have been duly licensed by the Contractors State License Board (License #450270) at the time he entered into the agreement with the Plaintiffs, Debtor was later found by the state court to be unlicensed as a matter of law during the entirety of the project at issue. Ruling on Bifurcated Trial, RJN Ex. 3 (the "Feb. 13 Ruling"), internal p. 18. Plaintiffs claim that they themselves have neither ever held a California contractor’s license nor new of the requirements for one to properly hold the license. Plaintiffs claim to have relied on representations made by Debtor. (Uddin Decl. ¶¶ 8-9)
On June 30, 2017, Plaintiffs filed a complaint (Case No. LC105883) against Manoj Mukherjee, an individual, Mani Mukherjee & Associates, Inc., a California corporation, and Raminder Singh, an individual (collectively, "Defendants") alleging
1:00 PM
CONT...
Mani Mukherjee
Chapter 7
causes of action including (1) Breach of Contract; (2) Breach of Implied Covenant of Good Faith & Fair Dealing; (3) Professional Negligence; (4) Fraud; (5) Disgorgement;
(6) Negligent Infliction of Emotional Distress; (7) Breach of Implied Covenant to Perform Work in a Good and Competent Manner.
On October 16, 2017, Plaintiffs filed an Amended First-Amended Complaint for Damages, adding an eighth cause of action for (8) Slander of Title. Debtor filed a cross-complaint seeking compensation for the services performed.
The matter came on for a bench trial on various dates between December 2018 and April 2019, in Department W of the Los Angeles County Superior Court, Van Nuys Courthouse with the Honorable Virginia Keeny, presiding.
The first phase of trial concerned exclusively the issue of whether Debtor and Defendant Raminder Singh were licensed contractors. Following the presentation of evidence, the Court found that because Debtor failed to maintain workers’ compensation insurance at all times and allowed unlicensed persons to perform construction work on the project from the outset until the completion of the project, Debtor’s license was suspended, as a matter of law, during the entirety of the project. Feb. 13 Ruling, internal p. 18. Consequently, Plaintiffs were entitled to disgorgement of the entire amount paid to Debtor in the amount of $332,600.00 under Business and Professions Code §7031(b), and that Plaintiffs were entitled to a judgment of
$219,000.00 against Mani Mukherjee & Associates, Inc. Id. at p. 19. Debtor also was barred from seeking compensation for services performed. Id..
On April 02, 2019 and before the second phase of trial, per agreement of the parties and by order of the state court, Plaintiffs’ fourth cause of action for fraud was dismissed without prejudice. RJN, Ex. 7. Trial resumed on April 03, 2019 and the parties reached a stipulated judgment on the four causes of action (Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, Negligence, and Breach of Implied Covenant to Perform Work in a Good and Competent Manner). As to each cause of action, the court entered judgment for Plaintiffs for only nominal damages of
$100 on each of the stipulated causes of action. RJN, Ex. 4, internal p. 3-4.
The court moved to the liability phase on Plaintiffs’ claim to punitive damages on their causes of action for Professional Negligence and Slander of Title. On April 9,
1:00 PM
CONT...
Mani Mukherjee
Chapter 7
2019, the Superior Court heard evidence and testimony and determined that "[t]he court does not find through clear and convincing evidence that Manoj Mukherjee has engaged in conduct which constitutes malice." RJN, Ex. 9 (the "Apr. 9 Minute Order"). The State Court also found credible Mr. Mukherjee’s testimony that while he allowed the use of an unlicensed contractor to work on the project, he did this with full knowledge of the Plaintiffs and at the request of the Plaintiffs. Id. Plaintiffs’ claim for punitive damages was denied. Id.
On May 23, 2019, Debtor filed a bankruptcy petition under chapter 7. Debtor’s assets were $828,575.00 or less and his liabilities were over $1,481,887.64. Plaintiffs dispute this fact as they have not been able to take any post-judgment discovery as to Debtor’s financial condition. Pls.’ Statement of Genuine Issues of Material Fact, p.
10. On June 20, 2019, judgment was entered against Debtor and in favor of Plaintiffs in the amount of $333,000.00. RJN, Ex. 4. The judgment is now final and non- appealable.
On August 30, 2019, Plaintiffs filed the complaint objecting to discharge of debt under 11 U.S.C. §523(a)(2) and (a)(6) commencing this adversary action (the "Complaint"). On October 1, 2019, Debtor filed his answer to the Complaint, alleging among other affirmative defenses, that the matters raised in the adversary are subject to the doctrine of res judicata and barred from repeated adjudication.
Debtor moves for summary judgment on grounds that the debt owed to Plaintiffs was not obtained by false pretenses, false representation, or actual fraud under 11 U.S.C. §523(a)(2)(A), or by willful or malicious injury by the Debtor under 11 U.S.C. §523(a)(6). Debtor argues that the state court judgment in favor of Plaintiffs provides the operative adjudicated facts necessary for finding that Debtor is entitled to a discharge, and that relitigation of those claims is precluded by the doctrine of res judicata. Alternatively, Debtor seeks summary adjudication on the 11 U.S.C. §523(a) (2)(A) fraud claim on a theory of issue preclusion. Further, Debtor argues that the uncontroverted facts demonstrate no genuine issue of fact exists and that Debtor is consequently entitled to summary judgment.
Standard
Summary judgment shall be granted "if the movant shows that there is no
1:00 PM
CONT...
Mani Mukherjee
Chapter 7
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FRCP 56(a); see also FRBP 7056. The moving party must show that a fact cannot be disputed by citing to "materials in the record, including depositions documents, electronically stored information, affidavits or declarations, stipulations… or other materials…" FRCP(c)(1)(A).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. Id. at
324. The nonmoving party must show more than "the mere existence of some alleged factual dispute… the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The court must view the evidence in the light most favorable to the nonmoving party. Tolan v. Cotton, 572
U.S. 650, 656-57 (2014). Summary judgment must not be granted if "a reasonable juror, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s favor." James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008). However, the evidence offered by the parties must be believable. See Scott v. Harris, 550 U.S. 372, 380-81 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id.
Analysis
Res Judicata
As a preliminary matter, the doctrine of res judicata is inapplicable to the instant case. Under 28 U.S.C. §1334(a), federal district courts possess original and exclusive jurisdiction over cases arising under title 11. Debtor’s argument for claim preclusion is likely without merit because Plaintiffs’ current causes of action under 11
U.S.C. §523(a)(2)(A) and 11 U.S.C. §523(a)(6) have not and could not have been previously litigated between the parties in state court.
The Supreme Court in Brown v. Felsen confirmed this reasoning, holding that
res judicata has no preclusive effect on dischargeability issues in bankruptcy
1:00 PM
CONT...
Mani Mukherjee
Chapter 7
proceedings. Brown v. Felsen, 442 U.S. 127 (1979). "It would be inconsistent with the philosophy of the 1970 amendments to adopt a policy of res judicata which takes these §17 questions away from bankruptcy courts and forces them back into state courts." Brown, 443 U.S. at 136. The Supreme Court explained that the congressional intent behind those amendments was to commit dischargeability issues to the jurisdiction of the bankruptcy court, that giving finality to state court rulings on §17 questions would have an undercutting effect. Id. at 135.
Issue Preclusion & Nondischargeability
Debtor alternatively requests summary adjudication on Plaintiffs’ nondischargeability claim under 11 U.S.C. §523(a)(2)(A), principally arguing that the issue of fraud was decided finally and on the merits in the parties’ prior state court proceeding.
Debtor cites a Ninth Circuit decision holding that "[T]he full faith and credit requirement of §1738 compels a bankruptcy court in a §523(a)(2)(A) nondischargeability proceeding to give collateral estoppel effect to a prior state court judgment." Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 801 (9th Cir.
1995). The same court has held that if the issue of fraud has been litigated in state court, the state court judgment would preclude relitigation of the same issue in the bankruptcy court in discharge proceedings. In re Nourbakhsh, 67 F.3d at p. 801. In determining the preclusive effect of a state court judgment, a federal court must apply that state’s law of issue preclusion. Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir. 2001). California courts apply issue preclusion to prevent "relitigation of issues argued and decided in prior proceedings." Lucido v. Superior Court, 51 Cal. 3d 335, 341 (Cal. 1990)(en banc).
For issue preclusion to apply under California law, there are five threshold requirements: "First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. Lucido, 51 Cal.
1:00 PM
CONT...
Mani Mukherjee
Chapter 7
3d at 341. California further places an additional limitation on issue preclusion: courts may give preclusive effect to a judgment "only if application of preclusion furthers the public policies underlying the doctrine." In re Harmon, 250 F.3d at 1245 (citing Lucido, 51 Cal.3d at 342-43, 272 Cal.Rptr. 767, 795 P.2d 1223).
Fraud under § 523(a)(2)(A)
Debtor contends that the undisputed facts from the State Court record establish that Plaintiffs cannot prove all of the elements under §523(a)(2)(A), and so there is no genuine issue of fact to be determined at trial.
For a debt to be nondischargeable under 11 U.S.C. §523(a)(2)(A), the creditor must establish: (1) that the debtor made a representation; (2) the debtor knew at the time the representation was false; (3) the debtor made the representation with the intention and purpose of deceiving the creditor; (4) the creditor relied on the representation; and (5) the creditor sustained damage as the proximate result of the representation. Apte v. Japra (In re Apte), 96 F.3d 1319, 1322 (9th Cir. 1996). These requirements are equivalent to a California state claim for fraud (see Engalla v.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974).
In their Complaint against discharge under §523(a)(2)(A), Plaintiffs allege that Debtor "knowingly, intentionally, and willfully made misrepresentations to the Plaintiffs." Complaint, p. 11. Plaintiffs allege these misrepresentations were that Debtor was a duly licensed contractor in the state of California with the knowledge, ability, expertise and experience to perform and/or oversee the work called for in the agreement, and that Debtor’s contractor’s license was in good standing and that he had the knowledge and ability to comply with all laws applicable to this project. Id. at 11-12.
Plaintiffs and Debtor disagree on whether the fraud issue was actually litigated in the state court proceeding, and whether the issue was finally decided on the merits. Debtor maintains that the issue of fraud was actually litigated in the prior proceeding. Debtor contends that in assessing the Plaintiffs’ punitive damages claim, the state court did evaluate and find that Plaintiffs failed to establish by clear and convincing evidence that Debtor committed fraud, because Plaintiffs were fully aware that the contractors were unlicensed and required that they be used. Apr. 9 Minute Order.
1:00 PM
CONT...
Mani Mukherjee
Chapter 7
Debtor argues that there was simply no misrepresentation on his part on which to base a fraud claim. Debtor points out that, while Plaintiffs had the chance to prove their claims in the Superior Court action, they did not even testify in support of their claims. It was the lack of evidence that stopped Plaintiffs from further litigating the issue, according to Defendant.
Plaintiffs’ arguments center on the fact that no final judgment was rendered on their cause of action for fraud because they chose to dismiss it without prejudice prior to the second phase of trial. RJN, Ex. 7. Further, because the first phase of the bifurcated trial concerned only the issue of licensure, Plaintiffs argue that fraud was not at issue. The record reflects, however, that Plaintiffs did offer evidence at the April 9 trial on punitive damages. Apr. 9 Minute Order. Plaintiffs arguments seem to conflate the concepts of claim and issue preclusion. In In re Go Global, Inc., the Bankruptcy Appellate Panel of the Ninth Circuit (the "BAP") explained that:
[C]laim preclusion applies to preclude an entire second suit that is based on the same set of facts and circumstances as the first suit, while issue preclusion ... applies to prevent relitigation of only a specific issue that was decided in a previous suit between the parties, even if the second suit is based on different causes of action and different circumstances.
In re Go Global, 2016 WL 6901265 (B.A.P. 9th Cir.. Nov. 22, 2016)(citing Five Star Capital Corp. v. Ruby, 194 P.3d 709, 713–14 (Nev. 2008) (en banc), as modified by Weddell v. Sharp, 350 P.3d 80, 81–86 (Nev. 2015)). The Court will properly give preclusive effect to factual findings made by the state court.
An award of punitive damages may be appropriate if a breach is a result of malice, oppression, or fraud. See Cal. Civ. Code ("C.C.P.) § 3294. C.C.P. § 3294 provides for the recovery of punitive damages in non-contract breach civil cases. Each finding supplies an independent basis for a punitive damages award under C.C.P. § 3294. See Coll. Hosp. Inc. v. Super. Ct., 8 Cal.4th 704, 721 (Cal. 1994).
C.C.P. § 3294 provides statutory definitions of these terms. "Malice" is defined as either: (1) conduct that the defendant intends to cause injury to the plaintiff
1:00 PM
CONT...
Mani Mukherjee
Chapter 7
("Intentional Malice"); or (2) despicable conduct carried on by the defendant with a willful and conscious disregard of the rights or safety of others ("Despicable Malice").
C.C.P. § 3294(c)(1). "Oppression" means "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights." Id. § 3294(c)(2). And, "fraud" refers to "an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury." Id. § 3294(c)(3).
Only "intentional malice," see Brandstetter v. Derebery (In re Derebery), 324
B.R. 349, 356 (Bankr.C.D.Cal. 2005), and fraud expressly require an intent to cause injury. In re Plyam, 530 B.R. 456, 465 (B.A.P. 9th Cir. 2015). As a result, only those findings satisfy the § 523(a)(6) willfulness requirement for the purposes of issue preclusion. Id. Conversely, "despicable malice" and "oppression", which arise from acts in conscious disregard of another's rights or safety, fail to satisfy the requisite state of mind for § 523(a)(6) willfulness. Id.
Fraud was included as a consideration in the state court’s Apr. 9 Minute Order. There, the Superior Court found that Plaintiff did not establish that Debtor committed fraud, defined under C.C.P. § 3294(c)(3) as "an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury." The Superior Court finding was based on the credible testimony of Debtor that Plaintiffs were aware of the unlicensed status of the Debtor and the contractors, and even specifically requested the use of such unlicensed contractors. Apr. 9 Minute Order. The Superior Court "found credible Mr.
Mukherjee’s testimony that while he allowed the use of an unlicensed contractor to work on the project, he did this with full knowledge of the Plaintiffs and at the request of Plaintiffs." Id. Plaintiffs are precluded from asserting otherwise.
The issue of whether Debtor committed fraud was actually litigated as each party was present and represented at the April 9 trial, and the state court took evidence from Debtor and Plaintiffs before making its determination. It was necessary for the state court to decide whether Debtor committed fraud as the statute applied is written in the disjunctive. Under C.C.P. § 3294, each finding (malice, oppression, or fraud) supplies an independent basis for a punitive damages award. The credibility findings
1:00 PM
CONT...
Mani Mukherjee
Chapter 7
described above that were made by the state court are preclusive in this adversary proceeding.
Defendant has met his burden of showing "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. at 325. The burden therefore shifts to the Plaintiffs "to designate specific facts showing that there is a genuine issue for trial." Sluimer v. Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010). "To carry this burden, the non-moving party must do more than simply show that there is some metaphysical doubt as to the material facts. . .The mere existence of a scintilla of evidence ... will be insufficient; there must be evidence on which the jury could reasonably find for the non-moving party." Id. (internal citation omitted).
Plaintiffs arguments that the competing declarations between themselves and Debtor at present establish a triable issue of fact are not sufficient to meet the burden shifted when a non-moving party responds to a summary judgment motion. Further, Plaintiffs’ allegations regarding Debtor’s knowing misrepresentation and intent to deceive are not supported by additional evidence. Plaintiffs argument that because they did not need to present the relevant evidence in state court, they did not does not hold water at this stage of the litigation. While that may have been their procedural position in the state court proceedings, here Plaintiffs had a duty to oppose a summary judgment with evidence to support their contention that a triable issue of fact remains. Federal Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ Fed.R.Civ.P. 56(c); Fed.R.Bankr.P. 7056. "The district judge is not required to comb the record to find some reason to deny a motion for summary judgment." Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988).
a. Strict Liability under §7031(b)
The state court’s findings that Debtor did not misrepresent his licensed status at the time the contract was signed and that his good faith was shown when remedying the violations bolster Debtor’s argument for summary judgment on Plaintiffs’ §523(a) (2)(A) claim. Such misrepresentations are not required for a finding under the strict liability standard applied by California Business & Professions Code ("B & P") §
1:00 PM
CONT...
Mani Mukherjee
Chapter 7
7031(b).
An award under B & P Code §7031(b) does not necessarily constitute a nondischargeable debt within the meaning of 11 U.S.C. §523(a)(2)(A). Ghomeshi v. Sabban (In re Sabban), 384 B.R. 1 (9th Cir.BAP2008). A debtor’s liability for a debt must flow from his or her fraud. Cohen v. De La Cruz, 523 U.S. 213 (1998). Because the B & P Code §7031(b) is "neutral as to fraudulent intent and was enacted to deter unlicensed contractors from offering their services for pay," an award under §7031(b) does not necessarily arise from the debtor’s fraudulent representations as required under §523(a)(2)(A). In re Sabban, 384 B.R. at 7. Even if a creditor had known about the debtor’s unlicensed status, the creditor still could have obtained an award under B & P Code §7031(b). Id. Such an award, the court in Sabban concluded, can be unrelated to the debtor’s fraud and could have been granted in the absence of justifiable reliance. Id. at 6.
The State court chose to approve the parties’ agreement to judgment of nominal and statutory damages against Debtor, as the fraud cause of action was dismissed without prejudice before it could be considered. RJN, Ex. 4. Further, the issue of Debtor’s lack of fraudulent intent and good faith in remedying his suspensions was ruled on by the state court in both the Feb. 13 Ruling and the Apr. 9 Minute Order. Feb. 13 Ruling, p. 17; Apr. 9 Minute Order.
For the reasons stated above, this Court finds that there is no genuine issue of material fact to be tried with regard to Plaintiffs’ §523(a)(2)(a) claim and so Defendant is entitled to judgment as a matter of law.
No Genuine Issue of Material Fact under §523(a)(6)
Under 11 U.S.C. §523(a)(6), debts for a willful and malicious injury are excepted from discharge in bankruptcy. Plaintiffs alleged in their Complaint under § 523(a)(6) that Debtor acted with "willful and conscious disregard for the rights of Plaintiffs and/or to with the intent to injure Plaintiffs and/or in reckless and conscious disregard of Plaintiffs’ rights." Complaint, p. 13. Plaintiffs’ theory for nondischargeability under §523(a)(6) is encompassed in paragraphs 48 and 49 of the Complaint:
1:00 PM
CONT...
Mani Mukherjee
Debtor "deliberately and intentionally engaged in a wrongful act where he intentionally induced Plaintiffs to pay or direct payment of funds under false pretenses, knowing that he would not perform his or his company’s obligations and would file bankruptcy instead."
"Moreover, he deliberately and intentionally made fraudulent promises to Plaintiffs, which Debtor never intended to honor. Instead, [Defendant] intended to abscond with Plaintiff’s funds and, if caught, file bankruptcy or otherwise avoid repayment and/or disgorgement based upon Plaintiffs’ claims against him."
Chapter 7
Complaint, ¶ 48-49.
Debtor responds that, under Plaintiffs’ expansive rationale, every bankruptcy proceeding, which necessarily affects a creditor’s ability to collect on a debt, would be subject to non-discharge under §523(a)(6). Debtor cites Kawaahau v. Geiger, 523
U.S. 57 (1998), in which the Supreme Court held that §523(a)(6) does not apply to those debts arising from unintentionally inflicted injuries. Debtor explains that the word "willful" in (a)(6) modifies the word "injury," indicating that non- dischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to an injury. Debtor distinguishes that intentional torts generally require that the actor intend "the consequences of an act", not simply "the act itself." Id. at p. 61-62.
Debtor points out that the debt in question arises from §7031(b), a strict liability statute for which intent is not a consideration. Judicial Council of Cal. v. Jacobs Facilities, Inc., 239 Cal.App.4th 882, 897 (2015). Debtor highlights how the state court judgment rendered against him alone is no indication of willful or malicious intent. In the Apr. 9 Minute Order, the state court did not find that Debtor "engaged in conduct which constitutes malice." Apr. 9 Minute Order. The court also did not find Debtor’s conduct to be "oppressive" under the circumstances. Id. As stated above, the court also did not find that Debtor committed fraud. Id. Given the findings made by the state court, Debtor maintains that there is no genuine issue of material fact to be tried with regard to Plaintiffs’ §523(a)(6) claim.
Plaintiffs allege triable issues of fact which they argue must be presented to the
1:00 PM
CONT...
Mani Mukherjee
Chapter 7
Court. Plaintiffs, however, miss the import of the state court’s findings in the Apr. 9 Minute Order. The court found credible Debtor’s testimony that he allowed the use of unlicensed contractors with the full knowledge of Plaintiffs and at the request of Plaintiffs. Apr. 9 Minute Order. The state court also found that Plaintiffs did not establish by clear and convincing evidence that Debtor has engaged in conduct which constitutes malice. Id. The court also found that Plaintiffs had not established by clear and convincing evidence that Defendant committed fraud. (RJN ex. 9 "Apr. 9 Minute Order") The court also found, as a matter of fact, that Debtor had a valid license at the time of the agreement. (Feb. 13 Ruling on Bifurcated Trial, p. 16) Again, the cause of action alleging fraud was dismissed without prejudice prior to the presentation of any evidence on that matter.
Plaintiffs’ argument for nondischargeability under §523(a)(6) appears a bit stretched. The thrust of Plaintiffs’ theory is that the Debtor intended to defraud Plaintiffs from the beginning and maintained bankruptcy as an option to fall back on. As far as the record indicates, however, Plaintiffs have not offered any evidence to counter the state court findings or show why the state court findings should not be preclusive in this adversary matter. Plaintiffs conjecture of a greater scheme by Defendant involving willful and malicious injury will not suffice at summary judgment.
The Ninth Circuit has repeatedly recognized that "a simple breach of contract is not the type of injury addressed by §523(a)(6)" and held that "an intentional breach of contract is excepted from discharge under §523(a)(6) only when it is accompanied by malicious and willful tortious conduct." In re Riso, 978 F.2d 1151, 1154 (9th Cir. 1992). The Superior Court having found Debtor not to have acted with malice, the remainder of Plaintiffs’ claim essentially sounds in breach of contract and fraud.
These two injuries, standing alone, do not warrant protection under §523(a)(6). "Where a particular matter is specifically dealt with in one part of the Bankruptcy Code, that specific provision will govern over more general provisions in the Bankruptcy Code." See Law v. Segal, 574 U.S. 415, 421 (2014). Plaintiffs fraud claims were more appropriately brought, and resolved, under §523(a)(2)(A) .
Public Policy
The California Supreme Court identified the following three policies
1:00 PM
CONT...
Mani Mukherjee
Chapter 7
underlying the doctrine of collateral estoppel: "preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation." Baldwin, 249 F.3d at 919-920. In many jurisdictions, this requires that the party "against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue." D'Arata v. N.Y. Cent. Mut. Fire Ins. Co., 564 N.E. 2d 634, 636 (1990). Lucido, 795 P.2d at 1225;
Vandenberg v. Superior Court, 982 P.2d 229, 237 (1999).
Because a debtor whose debt is declared nondischargeable under §523(a) continues to bear the financial burden that drove the debtor into bankruptcy in the first place, §523 stands in tension with the fundamental bankruptcy goal of providing debtors with a "fresh start." In re Sanderson, 723 F.3d 1094 (9th Cir. 2013). For this reason, §523(a) is narrowly construed against the objecting creditor and in favor of the debtor. In re Betancourt, BAP No. CC–14–1010–KiKuDa, 2015 WL 3500322 (B.A.P. 9th Cir., Jun. 3rd, 2015). Based on the record, Plaintiffs had a full and fair opportunity to litigate the fraud and malicious conduct issues. Plaintiffs were represented at the both portions of the trial and presented evidence for consideration by the state court.
Moreover, the principles of federalism underlying Full Faith and Credit would be undermined should this Court relitigate the question of whether Defendant engaged in fraudulent, malicious, or oppressive conduct. In the present context, application of issue preclusion promotes judicial economy and conserves judicial resources because this Court will not have to hold a trial to determine issues that were already decided and confirmed by the Superior Court. Lastly, under the circumstances presented by this case, application of issue preclusion will protect Defendant from repetitive litigation because Plaintiff was represented by counsel and had a full and fair opportunity to litigate the issues in the state court proceedings
Conclusion
For the reasons stated above, Defendant’s Motion for Summary Judgment is GRANTED as to Plaintiffs’ claims under 11 U.S.C. §523(a)(2)(A) and 11 U.S.C. § 523(a)(6).
Party Information
Debtor(s):
Mani Mukherjee Represented By
1:00 PM
CONT...
Mani Mukherjee
Armen Shaghzo
Chapter 7
Defendant(s):
Mani Mukherjee Represented By Armen Shaghzo
Plaintiff(s):
Zohir Uddin Represented By
Mazyar H Mazarei
Delwara Uddin Represented By Mazyar H Mazarei
Trustee(s):
Nancy J Zamora (TR) Represented By Peter J Mastan
Dinsmore & Shohl llP
1:00 PM
1:19-11292
Mani Mukherjee
Chapter 7
Adv#: 1:19-01104 Uddin et al v. Mukherjee
#33.00 Status Conference re: Complaint objecting to Discharge of debt under 11 U.S.C. section 523 (a)(2) and (a)(6)
fr. 10/23/19, 3/11/20
Docket 1
Tentative Ruling:
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Mani Mukherjee Represented By Armen Shaghzo
Defendant(s):
Mani Mukherjee Pro Se
Plaintiff(s):
Zohir Uddin Represented By
Mazyar H Mazarei
Delwara Uddin Represented By Mazyar H Mazarei
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
1:19-13099
Marshall Scott Stander
Chapter 7
Adv#: 1:20-01025 Rob Kolson Creative Productions, Inc. v. Stander
#34.00 Motion to Dismiss Adversary Proceeding and Complaint Objecting to Debtor's Discharge Pursuant to Bankruptcy code sec. 727.
Docket 7
*** VACATED *** REASON: Case reassigned to Judge Mund. Hearing continued to 7/21/20 at 11:00 AM Courtroom 303.
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Marshall Scott Stander Represented By Leslie A Cohen
Defendant(s):
Marshall Scott Stander Represented By Leslie A Cohen
Plaintiff(s):
Rob Kolson Creative Productions, Represented By
Lane M Nussbaum
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
1:19-13099
Marshall Scott Stander
Chapter 7
Adv#: 1:20-01025 Rob Kolson Creative Productions, Inc. v. Stander
#35.00 Status Conference Re: Complaint Objecting to Discharge Pursuant to Section 727 of
the Bankruptcy Code. fr. 5/6/20
Docket 1
*** VACATED *** REASON: Case reassigned to Judge Mund. Hearing continued to 7/21/20 at 11:00 AM Courtroom 303.
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Marshall Scott Stander Represented By Leslie A Cohen
Defendant(s):
Marshall Scott Stander Pro Se
Plaintiff(s):
Rob Kolson Creative Productions, Represented By
Lane M Nussbaum
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
1:19-13099
Marshall Scott Stander
Chapter 7
Adv#: 1:20-01011 Rob Kolson Creative Productions, Inc. v. Stander et al
#36.00 Motion to Dismiss Adversary Proceeding
Docket 12
*** VACATED *** REASON: Adversary vol. dismissed by Plaintiff (doc. 17) - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Marshall Scott Stander Represented By Leslie A Cohen
Defendant(s):
Marshall Scott Stander Represented By Leslie A Cohen
Rita L. McKenzie Represented By Leslie A Cohen
Marianne Stander Represented By Leslie A Cohen
Jackie R. Stander Represented By Leslie A Cohen
The Stander Group, Inc. Represented By Leslie A Cohen
Plaintiff(s):
Rob Kolson Creative Productions, Represented By
Lane M Nussbaum
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
CONT...
Marshall Scott Stander
Chapter 7
1:00 PM
1:19-13099
Marshall Scott Stander
Chapter 7
Adv#: 1:20-01011 Rob Kolson Creative Productions, Inc. v. Stander et al
#37.00 Status Conference re Complaint to set aside fraudulent transfers; Constructive Trust Equitable Lien, Reverse Alter Ego Liability and Declaratory Relief and for Damages
fr. 4/1/20, 5/6/20
Docket 1
*** VACATED *** REASON: Adversary vol. dismissed by Plaintiff (doc. 17) - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Marshall Scott Stander Represented By Leslie A Cohen
Defendant(s):
Marshall Scott Stander Pro Se
Rita L. McKenzie Pro Se
Marianne Stander Pro Se
Jackie R. Stander Pro Se
The Stander Group, Inc. Pro Se
Plaintiff(s):
Rob Kolson Creative Productions, Represented By
Lane M Nussbaum
Trustee(s):
David Keith Gottlieb (TR) Pro Se
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19
Docket 21
*** VACATED *** REASON: Stip. order cont. to 8/31, 9/1, 9/2 and 9/3/20 (eg)
Tentative Ruling:
Proposed claim bar date:
Objections to claims deadline:
Avoidance actions deadline:
Proposed disclosure statement filing deadline:
Proposed disclosure statement hearing:
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Party Information
9:30 AM
CONT...
Debtor(s):
Hawkeye Entertainment, LLC
Chapter 11
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:00 AM
1:18-12698
Green Nation Direct, Corporation
Chapter 7
#2.00 Motion for (1) Approval of Substantive Consolidation of N.R.G Investment Group with Debtor's Estate; and (2) Authority to Pursue Avoidance Actions.
fr. 4/29/20, 5/5/20, 5/15/20
Docket 249
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Green Nation Direct, Corporation Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Jeffrey S Kwong
Edward M Wolkowitz
10:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#3.00 Evidentiary Hearing Re: Motion RE: Objection to Claim Number 5 by Claimant KRYCLER, ERVIN, TAUBMAN
& KAMINSKY.
fr. 3/31/20, 4/28/20
Docket 74
Tentative Ruling:
On October 21, 2019, Krycler, Ervin, Taubman & Kaminsky (the "Claimant") timely filed and properly served notice of Claim No. 5-1, which is a $6,557.50 unsecured claim (the "Claim"). On March 4, 2020, Gary Alan Kurtz (the "Debtor") filed an objection to the Claim (the "Motion"). The Claimant opposed the Motion with a declaration by Michael J. Krycler ("Krycler Declaration") and the Debtor replied ("Reply").
The Claim indicates that its basis is for "Forensic accounting services re dissolution per retainer agreement." The Debtor objects based on insufficient detail, that it is greater than the $5,000 retainer agreed to, that insufficient documents are attached, that the work exceeded the scope of what he outlined and that it is submitted by a person who has no standing to make a claim.
Under 11 U.S.C. § 502(a), a claim or interest, proof of which is filed under 11 U.S.C. § 501, is deemed allowed, unless a party in interest objects. Additionally, a properly executed and filed proof of claim "shall constitute prima facie evidence of the validity and amount of the claim." 11 U.S.C. § 3001(f). A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶3001.05[2].
10:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
When a party in interest objects to a creditor's claim, the bankruptcy court shall determine the amount of such claim as of the date of the filing of the petition. 11U.S.C.S. § 502(b). An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c).
To defeat a claim, a debtor must "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. "The objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992). "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.
Discussion
The Claimant timely filed and properly served notice of the Claim. It is in writing and makes a demand on the Debtor’s estate for $6,557.50. The Claim is supported by facts that the Claimant performed forensic accounting services for the Debtor. Exhibits including an accounts receivable ledger and billing records are attached to the Claim. This Claim is prima facie valid.
Debtor argues that the Claim should be disallowed because it failed to attach all bills in violation of Bankruptcy Rule 3001(c)(1). Rule 3001(c)(1) states that when a claim or an interest in a debtor’s property securing the claim is based on a writing, the original or a copy of the writing must be filed with the claim. Fed. R. Bankr. P. 3001(c); T. Jones, Inc. v. Simmons (In re Simmons), No. WW-04-1344-PST, 2005 Bankr. LEXIS 2954, at *14 (9th Cir.
10:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
BAP March 31, 2005).
Most courts adopt the view that § 502 provides the exclusive grounds to disallow a claim. In re Dove Nation, 318 B.R. 147, 150 (8th Cir. BAP 2004)(followed by Heath v. Am. Express Travel Related Servs. Co. (In re Heath), 331 B.R. 424, 435 (9th Cir. BAP 2005)). Under the majority rule, a party seeking to disallow a claim must allege a substantive basis under § 502(b). Section 502(b) enumerates nine grounds on which a proof of claim may be disallowed. Sears v. Sears (In re Sears), 863 F.3d 973, 979 (8th Cir. 2017). In the Ninth and Eight Circuits, a failure to file documents is not among the bases for disallowing a claim under
§ 502(b). (In re Sears), 863 F.3d at 979; In re Heath, 331 B.R. at 435 ("Noncompliance with Rule 3001(c) is not one of the statutory grounds for disallowance").
Debtor relies on the contrary view from the Tenth Circuit’s decision in Kirkland finding that a bankruptcy court properly disallowed a claim because the creditor did not conform substantially to the appropriate Official Form as required by Fed. R. Bankr. P. 3001(a). In re Kirkland, 572 F.3d 838, 840-41 (10th Cir. 2009). Official Form 10 required a claimant to "[attach redacted copies of any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments, mortgages, and security agreements." Fed. R. Bankr. P. Official Form
10. Form 10 also required a claimant to explain if the documents are not available. Id.
Kirkland is not controlling and its facts are starkly different. In Kirkland, the creditor failed to produce a single document to support its proof of claim or to explain the absence of evidentiary support. In re Kirkland, 572 F.3d at 840-41. The Tenth Circuit therefore concluded that the creditor failed to present "prima facie evidence of the validity and amount of the claim." Id. at 841. By contrast, here, Creditor attached extensive documentation to its proof of claim and reply. Where a creditor supports the proof of claim with attached exhibits, it is sufficient prima facie evidence of the claim although "not precisely in the manner contemplated by the rules." In re Sears, 863 F.3d at 980.
The Ninth Circuit in Heath explained why it follows the majority view. First, the Ninth Circuit looked to the plain language of sections 501(a), 502(a), and 502(b) and concluded that noncompliance with Rule 3001(c) is not one of the statutory grounds to disallow a claim. In re Heath, 331 B.R. at 435. Second, the Ninth Circuit reasoned that the claims allowance process does not violate due process because the process is designed to be speedy and inexpensive; the purpose of Rule 3001(f) is to allow the proof of claim to act like a verified complaint and have an independent evidentiary effect; and a proof of claim has more weight than an evidentiary pleading because it is signed under penalty of perjury. Id. The creditor’s
10:00 AM
CONT...
Gary Alan Kurtz
Chapter 13
failure to provide supporting documents in violation of Rule 3001(c)(1) is not a basis to disallow a claim under § 502(b). The Claim’s validity is not defeated by this objection.
The Debtor also argues that the Claimant performed work outside the scope of what he agreed to pay for and that he does not owe the Claimant anything after having already paid a $5,000 retainer. [Motion p. 5]. The Debtor’s attorney, Jeffrey Hoffer, also filed a declaration in response to the Claimant’s opposition and declaration ("Hoffer Declaration"). Hoffer also asserts the claimant’s work went beyond the scope of what was authorized. They both argue that debtor is also only responsible for 90% of the bill. They allege that phone conferences were held with Ms. Taxxman and her counsel where they were left out and did not authorize the work those parties requested. They also point to the document requests as excessive and not necessary for the required scope of work.
Other evidence submitted by the Claimant is an "Accounts Receivable Ledger" indicating a credit of $5,000, which represents the amount the Debtor paid, and $6,557.50 as the "Balance." [Motion, p. 12]. Also attached to the Motion is a "Document Inventory," a grid of bank accounts reviewed, and a detailed time sheet which reflects the hours billed. This document shows $12,070.50 in "Invoices," $5,000 received, and a $7,070.50 "Amount Due." [Motion, p. 6].
The Debtor has not refuted that the work was done, but raises an issue of what was actually authorized. Claimant’s Declaration attaches a copy of an agreement executed on November 25, 2018 to retain the services of Krycler, Ervin, Taubman & Kaminsky (the "Retainer Agreement"). [Krycler Declaration, p. 5]. The Retainer Agreement is signed by Nicholas Salick, Jeffrey Hoffer, Starr Taxman, and Gary Kurtz. [Id., p. 7]. The Retainer Agreement specifically states: "…This retainer is not intended to be an estimate for the total cost of the work to be performed, nor has an estimate been given…" [Krycler Declaration ¶ 5]. The Claimant declares that the accounting firm’s assignment would include a valuation of law practice and a report of income available for spousal support. Krycler disagrees with the scope of work described by debtor. [Krycler Declaration ¶ 6].
The agreement and scope of the work seem to be supported by the documentation submitted by claimant, but there is a dispute over what was agreed to that needs to be resolved. Both sides have a right to cross examine the other’s declarants. If the parties wish to do so, a video evidentiary hearing on zoom can be arranged. Given the amount in dispute, the court advises an attempt between the parties to see if this can be resolved before the date set for the hearing.
TELEPHONIC APPEARANCE REQUIRED
10:00 AM
CONT...
Debtor(s):
Gary Alan Kurtz
Party Information
Chapter 13
Gary Alan Kurtz Represented By Stephen L Burton
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Friday, June 26, 2020
Hearing Room
302
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19, 6/25/20
Docket 21
*** VACATED *** REASON: Stip. order cont. to 8/31, 9/1, 9/2 and 9/3/20 (eg)
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
(1) Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19, 6/26/20
Docket 21
*** VACATED *** REASON: Stip. order cont. to 8/31, 9/1, 9/2 and 9/3/20 (eg)
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#2.00 Motion for order authorizing the use of the leased premises for religious service events pursuant to section 363 of the Bankruptcy Code.
fr. 6/24/20
Docket 81
Matter Notes:
Time: Jun 29, 2020 10:00 AM Pacific Time (US and Canada)
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Tentative Ruling:
Smart Capital LLC ("Smart Capital") owns the real property located at 618 South Spring Street, Los Angeles, California (the "Property"). The Property consists of a twelve-story building, commonly known as the Pacific Stock Exchange Building. On July 27, 2009, Smart Capital leased this building to Debtor/Debtor-In-Possession Hawkeye Entertainment LLC (the "Lease"). The Lease covers the first four floors and a portion of the basement of the building (the "Premises").
Debtor filed a bankruptcy petition in 2013 (the "Prior Bankruptcy Case"). There,
10:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
Debtor sought to assume the Lease. The landlord at the time was Smart Capital’s affiliate and predecessor-in-interest, New Vision Horizon, LLC, which opposed the assumption. The parties eventually resolved that dispute. As part of that resolution, the parties amended the Lease, and Smart Capital approved Hawkeye’s sublease to
W.E.R.M. Investments, LLC ("WERM"). As a subtenant, WERM operates an entertainment venue. WERM is managed by Adi McAbian, who is the sole member of Debtor Hawkeye. The court approved that settlement agreement in the Prior Bankruptcy Case and later closed the Prior Bankruptcy Case.
In August 2019, Debtor filed a chapter 11 bankruptcy case. Shortly after filing the case, Debtor filed a Motion to Assume the Lease. Smart Capital opposed. Since then, COVID-19 has struck the United States. Because WERM operates the Premises as an entertainment venue—it has been forced to shut down to comply with public health orders.
In May 2020, this Court heard Debtor’s Motion to Withhold Rent Payments to Smart Capital due to COVID-19. Smart Capital opposed that Motion because of a Force Majeure clause that allocated the risk to Debtor and required Debtor to continue to pay rent.
Debtor’s current motion is asking to "Use the Leased Premises for Religious Purposes" to meet its rent obligations. Specifically, Debtor wishes to lease the Premises to The Fearless Church ("Fearless"), a religious group that "worships hard, and rocks out harder" and potentially to another religious group.
Smart Capital opposes the Motion on four grounds: (1) the Motion requires an adversary proceeding; (2) the Lease does not permit religious services on the Property;
(3) opening the Property to religious gatherings exposes Smart Capital to potential COVID-19 liability; and (4) the Lease provides no benefit to the Estate. None of these are sufficient to deny the debtor’s ordinary use of the property for these purposes.
The Motion Does Not Require an Adversary Proceeding
Smart Capital asserts that per Federal Rule of Bankruptcy Procedure 7001, this Motion should be brought as an Adversary Hearing because it requests injunctive or equitable relief. This is not so. It is appropriate for Debtor to bring this Motion
10:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
pursuant to 11 U.S.C. § 363(c)(1) and in the alternative § 363(b)(1). Section 363(c)(1) authorizes a debtor-in-possession ("DIP") to enter into transactions in the ordinary course of business without notice or a hearing. Aalfs v. Wirum (In re Straightline Invs.), 218 F.3d 1070, 1073 (9th Cir. 2003). Such transactions allow the DIP to "use, sell, or lease" property of the estate. 11 U.S.C. § 363(c)(1). A notice or a hearing is not required for transactions in the ordinary course of business to allow businesses to continue daily operations without being burdened with constantly seeking court approval for minor transactions. See In re HLC Properties, Inc., 55 B.R. 685, 686 (Bankr. N.D. Tex. 1985). If a transaction is not in the ordinary course of business, notice and a hearing is required. 11 U.S.C. § 363(b)(1). At issue is whether Debtor may allow Fearless to hold religious events on the Premises as part of Debtor’s ordinary course of business. Smart Capital’s position, citing Automationsolutions, Int’l, LLC, 274 B.R. 527, 529 (Bankr. N.D.Cal. 2002), is inapplicable in this situation (and not binding on this court.). There is no adjustment of the existing property rights, but the need to seek a comfort order in order to carry on business without interruption. Where a party is unsure whether a transaction is in the ordinary course of business, "it is advisable to comply with the notice and hearing requirement of section 363(b) "
Collier on Bankruptcy P 363.03 (16th 2020). Here, Debtor followed this advice.
Whether the Lease Permits Religious Services on the Property
Smart Capital argues that its Lease agreement with Debtor restricts use of the Premises "solely for the operation of a nightclub, restaurant, entertainment venue and related lawful business along with the storage use." Opposition, 5:22-24. Since 2013, Debtor has allowed Fearless to hold events on the Premises. Motion at 8:5-15. Fearless "write[s] praise and worship songs that break the mold and push the boundaries of music, and that allows people to experience the supernatural power of Jesus Christ." Id. at 7:22-24.
A transaction is in the ordinary course of business if it satisfies the (1) horizontal dimension test; and (2) vertical dimension test. In re Dant & Russel, Inc., 853 F.2d 700, 704 (9th Cir. 1998). The horizontal test asks whether the transaction "is of a type that similar businesses would engage in as ordinary business." Id. at 704. The
10:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
vertical test reviews the transaction from the perspective of the creditor, asking whether the proposed transaction was foreseeable to that creditor. See Id. at 705. A postpetition transaction is foreseeable to the creditor if the debtor commonly engaged in similar transactions prepetition. Id.
Debtor is correct that "the use of the Premises for Religious Events falls within the ordinary business of the Debtor … ," Motion, 11:24-26, both as a function of the terms of the lease and the commonly used horizontal and vertical tests.
Horizontal Test
Applying the horizontal test, the use of the Premises to hold Fearless events is of a type that similar businesses would engage in. Debtor provides a statement by Fearless that states, "All of the hard work, late nights, and the unloading and loading into different venues every week was what God had planned for a season, but a huge blessing came when Exchange LA [Premises], a club in the heart of downtown LA, invited us to hold weekly services at their venue." It appears other similar venues in the region have held Fearless events. Religious entertainment, while religious, is still within the concept of entertainment or a related lawful use. A venue set up for music and dancing is rationally likely to also be used by a religious group that seeks a musical, more active type service. The horizontal test is met.
Vertical Test
The vertical test is even more compelling. Smart Capital presents nothing to dispute that a course of conduct developed over the years whereby the debtor treated "entertainment venue" as including the kind of entertainment services provided by Fearless without objection from anyone. Smart Capital objected to Debtor allowing Fearless to use the Premises solely prior to Debtor filing chapter 11 in 2019. Prior to Smart Capital objecting in 2019, there was a period of five or six years where Fearless held religious events on Premises. Until the dispute giving rise to this case arose, this was an ordinary use by Debtor.
10:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
363(b)(1)
Section 363(b)(1) authorizes the trustee or DIP to use, sell or lease property of the estate other than in the ordinary course of business, provided notice and an opportunity for a hearing are given. The debtor must articulate a "business justification" to use property outside the ordinary course of business. In re Walter, 83
B.R. 14, 19-20 (B.A.P. 9th Cir. 1988) (citing In re Continental Air Lines, Inc., 780 F.2d 1223, 1226 (5th Cir. 1986). Even if this were not in the ordinary course of business, the Debtor has articulated a satisfactory business justification for allowing Fearless to use its Premises.
The governmental restrictions imposed on Debtor’s business due to COVID-19 have hit business such as Debtor’s hard. Debtor’s business as an entertainment venue has remained closed subject to the lifting of governmental regulations. Smart Capital has refused to abate the rent due to a Force Majeure clause in the Lease. Now, Smart Capital seeks to deprive Debtor of using the Premises to generate income, while at the same time asking for rent. Debtor’s proposal of holding Fearless events give Debtor another avenue to stay afloat and meet its rent obligations to Smart Capital. Because the "plain text [of 363(b)] is generalized and sweeping; so long as the bankruptcy court approves a proposed transaction… nearly any ‘use, sale, or lease’ of property is permitted." In re Clarr Cellars LLC, 2020 Bank. LEXIS 682, *7-8 (Bankr. E.D. Wash. March 13, 2020).
COVID-19 and other Regulatory Concerns
Smart Capital’s argument that opening up the Premises can lead Smart Capital to being sued if patrons get COVID-19 is insufficient to deny the Debtor the use of the premises for which it is paying rent. As long as Debtor complies with reopening restrictions, then there is nothing to complain about. As with anything, a Debtor should comply with applicable laws, and there is nothing in this record to indicate that Debtor is not doing so. As the Debtor stated, "if the Landlord’s purported liability concerns are adopted and applied to other locations, it will effectively prevent every business in America from operating for an indefinable period of time regardless of state, city and local reopening and operating authorization."
Similarly, Smart Capital’s concern that Debtor will not be in compliance with the CUB and the requirements to notify the LAPD are mere speculation. This appears not
10:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
to have been an issue for many years, and there is no reason to believe the Debtor will not operate lawfully. The fear that an unusually lively and rock music religious service will cause problems in a commercial area on a Sunday morning appears manufactured to squeeze the Debtor out of business during this pandemic.
Additionally, Smart Capital cites no legal basis for restricting a tenant’s lawful use of a property simply because of a speculative future fear of liability. That issue was resolved already by entering into a lease.
WERM and Benefit to the Estate
The argument by Smart Capital that the Lease provides no benefit to the estate is also baseless. The Lease is the Debtor’s most valuable asset and is the reason why Debtor filed Ch. 11 and wishes to assume the lease. The fact that Debtor uses WERM to conduct its business does not change that. The Debtor’s passing the funds through from WERM is a sufficient basis to benefit the estate.
Debtor may use the Premises by holding Fearless and similar religious events, subject to any applicable regulations required for reopening or other regular operations.
The Motion is GRANTED.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#3.00 Motion to Extend Exclusivity Period for Filing a Chapter 11 Plan and Disclosure Statement
fr. 6/24/20
Docket 83
Matter Notes:
Time: Jun 29, 2020 10:00 AM Pacific Time (US and Canada)
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Meeting ID: 160 834 5390
Password: 734040 One tap mobile
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Dial by your location
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Tentative Ruling:
Service proper. No objections filed. Having reviewed the Motion to Extend Exclusivity and finding cause, Debtor’s exclusivity Period is (1) extended from July 20, 2020 through the Extended Plan Exclusivity Period of October 16, 2020, and (2) the Solicitation Exclusivity Period is extended from September 21, 2020 through the Extended Solicitation Period of December 16, 2020.
DEBTOR TO LODGE ORDER WITHIN 7 DAYS.
Party Information
10:00 AM
CONT...
Debtor(s):
Hawkeye Entertainment, LLC
Chapter 11
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Tuesday, June 30, 2020
Hearing Room
302
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
(1) Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19, 6/26/20, 6/29/20
Docket 21
*** VACATED *** REASON: Stip. order cont. to 8/31, 9/1, 9/2 and 9/3/20 (eg)
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:00 AM
1:15-14098
Vartkes Kassardjian
Chapter 13
#1.00 Motion for relief from stay
HSBC BANK USA, TRUSTEE FOR SEQUOIA MORTGAGE
Docket 125
Tentative Ruling:
Ch. 13 Petition Date: 12/17/2015 Plan confirmed 03/07/2018
Service: Proper. Opposition filed 06/17/2020
Property: 11200 Canby Avenue, Northridge, CA 91326 Property Value: $675,000 (per debtor’s schedules) Amount Owed: $754,826.23
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $11,446.48 (3 payments of $3,398.90, less suspense of $2,419.12).
Movant alleges that the last partial payment was made on or around 01/21/2020.
Movant requests relief under 11 U.S.C. 362(d)(1) with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3(a) (Movant permitted to engage in loss mitigation activities); and 7 (relief from 4001(a)(3) stay).
Debtor opposes the motion and argues that on or around 03/25/2020 Debtor requested a 3-month forbearance due to COVID-19 and did not hear back.
TELEPHONIC APPEARANCE REQUIRED.
Party Information
10:00 AM
CONT...
Debtor(s):
Vartkes Kassardjian
Chapter 13
Vartkes Kassardjian Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12812
Morsheda Jhumur Hosain
Chapter 7
#2.00 Motion for relief from stay SYED HOSAIN
Docket 74
Tentative Ruling:
Ch. 7 Petition Date: 11/07/2019 Service: Proper. No opposition filed. Movant: Petitioner
Relief Sought to: Pursue Pending Litigation
Litigation Information
Case Name: Hosain v. Hosain (Docket #17STFL05539) Court/Agency: Superior Court of the State of California, County of Los Angeles
Date Filed: 10/04/2017 Trial Start Date: 09/22/2020
Action Description: Dissolution of marriage without minor children
Grounds Nondischargeable X Mandatory Abstention X
Non-BK Claims Best Resolved in Non-BK Forum X
Movant seeks relief from the stay to permit an action for a dissolution of marriage.
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.
10:00 AM
CONT...
Debtor(s):
Morsheda Jhumur Hosain
Party Information
Chapter 7
Morsheda Jhumur Hosain Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Anthony A Friedman
10:00 AM
1:20-10425
Jose Roberto Mendoza
Chapter 13
#3.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO.
Docket 22
Tentative Ruling:
Ch. 13 Petition Date: 02/24/2020
Service: Not proper; senior mortgagee not served. No opposition filed. Property: 8025 Bellingham Avenue, Los Angeles, CA 91605
Property Value: $525,000 (per debtor’s schedules)
Amount Owed: $240,569.06; $427,000 owed to senior mortgagee Equity Cushion: 0%
Equity: $0
Post-Petition Delinquency: $2,960.28 (3 payments of $986.76)
Disposition: DENY under 11 U.S.C. 362(d)(1). DENY relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3(a) (Movant permitted to engage in loss mitigation activities); 6 (co-debtor stay); and 7 (waiver of 4001(a)(3) stay). Motion is denied because service is not proper.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Jose Roberto Mendoza Represented By William G Cort
Movant(s):
U.S. Bank National Association, as Represented By
Kirsten Martinez
10:00 AM
CONT...
Trustee(s):
Jose Roberto Mendoza
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10850
Guillermo Villalobos Orozco
Chapter 7
#4.00 Motion for relief from stay
AMERICREDIT FINANCIAL SERVICES, dba GM FINANCIAL
Docket 9
Tentative Ruling:
Ch. 7 Petition Date: 05/02/2020 Service: Proper. No opposition filed. Property: 2019 Toyota Corolla Property Value: N/A Lease
Amount Owed: $20,866.43 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $0
Movant alleges that the last partial payment was received on or about 02/24/2020. Debtor filed a statement of intention that indicates that the Debtor intends to surrender the property.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested 2(proceed under applicable non-bankruptcy law); and 6 (waiver of 4001(a)(3) stay). Under (d2), movant alleges that Debtor has no equity and property is not necessary to an effective reorganization.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Guillermo Villalobos Orozco Represented By
Marc C Rosenberg
10:00 AM
CONT...
Trustee(s):
Guillermo Villalobos Orozco
Chapter 7
Amy L Goldman (TR) Pro Se
10:00 AM
1:19-10322
Louis Vargas
Chapter 13
#4.01 Motion for relief from stay LORI MINTZER
fr. 6/10/20
Docket 61
Tentative Ruling:
Continued from 06/10/20
This hearing was continued from 06/10/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Louis Vargas Represented By
Michael Jay Berger
Movant(s):
Lori Mintzer Represented By
Elsa M Horowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11057
Wyatt Austin Miller
Chapter 13
#4.02 Motion Imposing a Stay or Continuing the Automatic Stay
Docket 12
Tentative Ruling:
Ch. 13 Petition Date: 6/12/2020 Service: Proper. No opposition filed.
On June 12th 2020, Debtor filed this Chapter 13 case. Debtor has two previous bankruptcy cases that were dismissed. The first dismissed case was chapter 13 filed in California Central Bankruptcy on 03/21/2018 and dismissed on 05/14/2020 because Debtor failed to make all plan payments. Debtor mistakenly believed that his vehicle payments were included in his plan payments, but they were not. The second dismissed case was chapter 7 filed in California Central Bankruptcy on 09/07/2017 with a standard discharge on 12/27/2017.
Debtor now moves for an order continuing the automatic stay as to Toyota Credit Motor Corporation. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case pursuant to 11 U.S.C. 362(c)(3) because the prior dismissal was a case not refiled under chapter 7 and because Debtor plans to pay Toyota the full retail value of the vehicle.
Furthermore, Debtor contends that he will be able to remain post-petition current because his financial situation has become more stable since the dismissal. Now, Debtor holds two jobs and has recently moved and pays substantially less rent than when in his Prior Bankruptcy Case.
MOTION GRANTED.
NO APPERANCE REQUIRED
Party Information
Debtor(s):
Wyatt Austin Miller Represented By Devin Sawdayi
10:00 AM
CONT...
Movant(s):
Wyatt Austin Miller
Chapter 13
Wyatt Austin Miller Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10913
Magdalena Salas
Chapter 7
#5.00 Motion for relief from stay
SANTANDER CONSUMER USA, inc
CHRYSLER CAPITAL as Servicer
Docket 10
Tentative Ruling:
Ch. 7 Petition Date: 05/15/2020 Service: Proper. No opposition filed. Property: 2017 Dodge Charger Property Value: N/A Lease
Amount Owed: $23,617.99 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $0 ($3,146 in arrears)
Movant alleges that payments have not been made per the contract (last partial payment was made on or around 10/21/2019), the lease matured on 04/08/2020 and the vehicle has not been returned nor has the Debtor exercised the purchase option per the contract. Movant alleges it was contacted by the Debtor on 05/26/2020 and was informed that the vehicle was involved in a total loss, but Movant has not had any communication with the insurance company.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 2 (proceed under applicable non-bankruptcy law); 6 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
10:00 AM
CONT...
Debtor(s):
Magdalena Salas
Chapter 7
Magdalena Salas Represented By Brian Nomi
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:17-13341
Castillo I Partnership
Chapter 11
#6.00 Motion for relief from stay
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
Docket 268
Tentative Ruling:
Petition Date: 12/18/17
Chapter 11 plan confirmed: 3/23/20 Service: Proper. Opposition filed.
Property: 11733 Castillo Ln., Northridge, CA 91326
Property Value: $750,000 (per debtor’s confirmed plan, ECF doc.225) Amount Owed: $135,247
Post-Petition Delinquency: no payments provided for in Confirmed Plan
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); 7 (waiver of the 4001(a)(3) stay); and (9) relief under 362(d)(4). Movant alleges cause for relief because post-confirmation payments are not being paid.
Movant also requests in rem relief, arguing that Debtor, who is not the borrower for the loan, has repeatedly utilizing the court system, including having filed this bankruptcy case, in an attempt to obtain title to the home free and clear of encumbrances and avoid any payment on this valid loan that pre- dates its ownership of the Property. Movant seeks relief to proceed with foreclosure of its lien against the Property.
Movant explains that Debtor is not the borrower on the loan obligation, which it contends is secured by a lien; but, as stated in multiple filings by Debtor, Debtor acquired title to the Property subject to Movant’s secured lien interest. See ECF doc. 225 & 227. On or about February 14, 2014, Debtor filed a complaint in Los Angeles County Superior Court, Case No. LC101320, entitled Castillo I Partnership v. Mortgage Electronic Registration System, et al. (the “2014 LASC Lawsuit”). Debtor filed a First Amended Complaint on September 26, 2014, seeking to remove cloud on title, for quiet title, for slander of title, and for declaratory relief, with the ultimate goal of invalidating
10:00 AM
CONT...
Castillo I Partnership
Chapter 11
Movant’s lien. See Motion, Ex. 6. A Motion for Summary Judgment in the Initial Lawsuit was filed by Movant on July 9, 2015. The Motion was granted, and the Court entered Judgment against Debtor on October 28, 2015. See Motion, Ex. 7.
On February 21, 2019, Debtor filed an Adversary Proceeding, case no. 1:19- ap-01013-MT, in this bankruptcy case against Movant and others, seeking to remove liens against the Property including Movant’s lien. Irrespective of the ruling in the 2014 LASC Lawsuit, Debtor initially refused to dismiss the Adversary Proceeding against Movant, which forced Movant to file a Motion to Dismiss. Before the hearing on the Motion to Dismiss was heard, however, Debtor dismissed Movant from the Adversary Proceeding. Ad. ECF doc. 74, Dec. 30, 2019.
Debtor argues in opposition that Debtor’s Plan was confirmed on March 23, 2020, and so the automatic stay, at least as to the Castillo Property and Movant's lien, terminated on that date. Under 11 U.S.C. 362(c)(1) and 1141(b), the automatic stay terminates upon plan confirmation at least as to property subject to a pre-petition lien, which revests in Debtor upon confirmation. Additionally, Debtor points out that the Plan expressly provides that MERS is free to foreclose and its lien is unimpaired by the Plan. E.g., Plan, Doc 225, p. 10, lns. 13 - 20; p. 11, lns. 22 - 25. Debtor's plan provides, "Debtor does not intend or propose to make any payment to the holder of this deed of trust, and its Claim is therefore deemed impaired, but all rights of such holder/Secured Creditor if any (e.g., to foreclose if in default), shall not be affected by the Plan."
Movant maintains that it is far from clear under applicable law and the Plan whether it may simply foreclose upon its lien because the Confirmed Plan provides for another lien related to the Castillo Property, on which Debtor apparently is to make payments. The Plan also mentions Movant’s lien, but is vague as to its handling other than not providing for any payments there. The Plan also mentions the now-dismissed Adversary Proceeding but the Plan does not explain the effect of Debtor's voluntary dismissal of the adversary proceeding as to Movant’s lien, i.e., is Movant's asserted lien now outside of the Plan provisions? Movant points out that 11 U.S.C. §1141 contains exceptions to the general rule of stay termination upon plan confirmation, and
10:00 AM
CONT...
Castillo I Partnership
Chapter 11
states that any creditor of Debtor is bound by the Plan, whether or not the claim is impaired. Given the foregoing, Movant argues that it is unclear whether the Castillo Property remains property of the estate and/or if the automatic stay is terminated as to Movant’s lien or the secured property.
The Court agrees that the Confirmed Plan is vague as to the status of Movant's lien on the Castillo Property post-petition. Additionally, 11 U.S.C. § 362(c)(2) states that, unless subsection (c)(2) applies, the stay remains in place until the case is closed, dismissed, or an applicable discharge granted. None of these events seems applicable here, thus there remains a question whether the automatic stay still applies. For the forgoing reasons, the Court finds cause to grant the Motion for Relief.
APPEARANCE REQUIRED
Debtor(s):
Party Information
Castillo I Partnership Represented By
Mark E Goodfriend
10:00 AM
1:17-13341
Castillo I Partnership
Chapter 11
#7.00 Application for Compensation Final Fees and/or Expenses.
Docket 271
Tentative Ruling:
Service proper. Objection filed by US Trustee on June 17, 2020 (ECF doc. 275). Having reviewed the Final Fee Application for Allowance of Fees and Reimbursement of Costs, the Court finds that the fees and costs were necessary and reasonable, as provided for in the Stipulation Between United States Trustee and Law Offices of Mark Goodfriend Regarding Voluntary Reduction in Fees (ECF doc.
277) and are approved as stipulated:
$55,879 in fees; $125 in costs.
APPLICANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON JULY 1, 2020.
Party Information
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
10:00 AM
1:20-10443
Gilbert J Gonzaga
Chapter 7
Adv#: 1:20-01048 Hagen-Olson v. Gonzaga et al
#8.00 Status Conference re: Complaint to determine dischargeability
Docket 1
Tentative Ruling:
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 and conferred and have reached an impasse with regard to the particular issue.
10:00 AM
CONT...
Gilbert J Gonzaga
Chapter 7
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.
Party Information
Debtor(s):
Gilbert J Gonzaga Represented By Kevin T Simon
Defendant(s):
Gilbert J Gonzaga Pro Se
Chona Sangco Chua Gonzaga Pro Se
GCNJ Global Enterprises, Inc. Pro Se
GCNJ Enterprises, Inc. Pro Se
Fantastic Sams Newbury LLP Pro Se
Joint Debtor(s):
Chona Sangco Chua Gonzaga Represented By Kevin T Simon
Plaintiff(s):
Leah Kathleen Hagen-Olson Represented By Bret G Anderson
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:10-16912
Carlos D Orozco and Delmy Orozco
Chapter 7
#9.00 Motion to Reopen Chapter 7 Case
Docket 28
Tentative Ruling:
Service proper. No opposition filed. Having reviewed Debtors' Motion to Reopen Chapter 7 case to file a motion to avoid lien under 522(f), the Court finds grounds to reopen the case and the Motion is GRANTED.
MOVANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON JULY 1, 2020.
Party Information
Debtor(s):
Carlos D Orozco Represented By Donald E Iwuchuku
Joint Debtor(s):
Delmy Orozco Represented By Donald E Iwuchuku
Trustee(s):
David R Hagen (TR) Pro Se
11:00 AM
1:16-13077
David Saghian
Chapter 7
Adv#: 1:18-01039 Weil, Chapter 7 Trustee v. Saghian et al
#10.00 Motion to Order Remedies for David Saghian's and Parvaneh Saghian's Fraudulent Misappropriations of Rent and Order Confirming that Avraham Shemuelian has Managerial Control of One Nation Equities Liberty LLC
Docket 72
*** VACATED *** REASON: Resolved - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
David Saghian Pro Se
Defendant(s):
David Saghian Pro Se
Parvaneh Saghian Represented By Masoud Masjedi
Plaintiff(s):
Diane C. Weil, Chapter 7 Trustee Represented By
David Seror Jessica L Bagdanov Talin Keshishian
Trustee(s):
Diane C Weil (TR) Represented By Michael G D'Alba Eric P Israel David Seror
Jessica L Bagdanov
11:00 AM
1:15-14124
Ignacio Ramirez
Chapter 11
Adv#: 1:20-01017 Ramirez v. CitiMortgage, Inc., a corporation et al
#11.00 Status Conference Re: Complaint for
Declaratory Relief Regarding the Bindingness of Confirmed Chapter 11 Plan;
Injunctive or other Equitable Relief fr. 4/15/20, 5/20/20
Docket 1
Tentative Ruling:
There have been two stipulations to dismiss two of the defendants (Citi Mortgage on 3/17/20 and US Bank on 5/27/20)
The U.S. Bank Stipulation [Doc. 23] mention Nationstar having received and transferred its interest in the claim. There is no indication on the docket, however, about whether Plaintiff dismissed Nationstar Mortgage, LLC.
What is the status of the Complaint, as relates to Nationstar? TELEPHONIC APPEARANCE REQUIRED on 7/1/2020
Party Information
Debtor(s):
Ignacio Ramirez Represented By
Anthony Obehi Egbase Crystle Crystle Lindsey Clarissa D Cu
Robert Rosvall
W. Sloan Youkstetter
Defendant(s):
CitiMortgage, Inc., a corporation Pro Se Nationstar Mortgage, LLC, a limited Pro Se
11:00 AM
CONT...
Ignacio Ramirez
Chapter 11
U.S. Bank Trust, N.A., a corporation Pro Se DOES 1-10, Inclusive Pro Se
Plaintiff(s):
Ignacio Ramirez Represented By
Anthony Obehi Egbase
9:30 AM
1:18-12698
Green Nation Direct, Corporation
Chapter 7
#0.01 Motion for (1) Approval of Substantive Consolidation of N.R.G Investment Group with Debtor's Estate; and (2) Authority to Pursue Avoidance Actions.
fr. 4/29/20, 5/5/20, 5/15/20; 6/25/20
Docket 249
*** VACATED *** REASON: Order entered approval of motion 7/7/20 (eg)
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Green Nation Direct, Corporation Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Jeffrey S Kwong
Edward M Wolkowitz
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#1.00 Pre-Trial Status Conference re: Complaint
fr. 8/29/18, 2/20/19, 6/26/19; 9/11/19, 12/4/19,
4/1/20, 5/1/20
Docket 1
Tentative Ruling:
Having reviewed the docket for this case and finding that Defendant has a Summary Judgment Motion set for hearings on Oct. 2, 2019, this status conference is continued to Oct. 2, 2019, at 1:00 p.m.
APPEARANCE WAIVED ON 9/11/19.
Party Information
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
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#1.01 Motion in Limine of Defendant John Gordon Jones to Suppress Evidence and Strike Sham, Irrelevant Matter in Plaintiff's Proposed Joint Pre-Trial Stipulation of 06/24/20
Docket 259
Tentative Ruling:
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 telephonic appearances are required.
Calls to the Court to check the status of tentative rulings are not permitted.
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Gordon Jones Represented By
Michael Worthington
Plaintiff(s):
John Levin, M.D. Represented By Michael Jay Berger
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:20-01022 Jones v. Levin
#2.00 Motion of Plaintiff for Injunction Prohibiting Defendant John Levin from Prosecuting Claims Against Debtor of Alter Ego Relationship with Non-Debtor Entities or Otherwise Continuing Litigation Against Plaintiff in State Court
fr. 6/11/20
Docket 23
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
The long factual history between the parties has been detailed in previous rulings and is truncated here for clarity. See Notice of Tentative Ruling re Motion for Summary Judgment, ad. ECF doc. 224. On March 18, 2010, creditor John Levin ("Levin") obtained a judgment against debtor John G. Jones ("Debtor") for
$446,027.40, plus pre-judgment interest of $11,297.77 (the "State Court Judgment"). Complaint, Ex. 1 (ad. ECF doc. 1).
On March 21, 2018, Debtor filed a voluntary chapter 7 petition. On June 22, 2018, Levin filed an adversary complaint against Debtor, asserting claims for nondischargeability under 11 U.S.C. § 523(a)(2)(b) and for denial of discharge under § 727(a), et seq., claiming that Debtor’s bankruptcy schedules and other required case commencement documents contained false statements about his assets and the valuation of his scheduled assets. Discharge Complaint 1:18-
ap-01075-MT, 5:7-6:13. Levin also alleged that Debtor understated his income by paying personal expenses through his company, Corporate Distributions, and that he has not satisfactorily explained the loss of assets or the deficiency of his assets. Id. at 5:3-5:6; 6:14-7:2. On July 26, 2018, Debtor filed his answer to the Discharge Complaint.
Thereafter, protracted battles about the scope of discovery ensued, with competing motions to compel deposition filed by Levin and motions for protective
10:00 AM
CONT...
John Gordon Jones
Chapter 7
orders and motions to quash filed by Debtor. Ultimately, Summary Judgment was granted in favor of Debtor as to the claim under § 523 but was denied as to the
§ 727(a) claims.
Levin then requested relief under 11 U.S.C. 362(d)(1) to lift the stay for the limited purpose of renewing a State Court judgment against Debtor, which Levin believes may expire in April 2020, and to amend the judgment to add Debtor’s wholly owned, non-debtor entities, Corporate Distributions, Inc. and Worldwide Computer, Inc. (the "NDEs"). Debtor opposed and argued that he needs the stay to research the history of payments and credits to his account with Levin concerning the State Court judgment. Debtor alleged making payments to Levin that were not properly credited and that he would be severely prejudiced if the stay were lifted.
At the hearing on the relief from stay motion, held on November 6, 2019, the Court granted relief from stay to Levin to file the motion to renew judgment in the state court. The Court clarified that it would not be litigating the amount of the credits and how any payments were allocated. As to Debtor’s arguments that Levin has not provided a breakdown of how payments were allocated between principal and interest, the Court explained
So, I will grant relief from stay just to file the motion to renew the judgment and you two can argue over the amounts. I think you should send it over by email in advance because there’s no reason you can’t -- I mean, there’s really been an inability to just talk numbers on each side which has shocked me in this case. Two of you can sit down and you can say, I’m going to file a motion -- or send everybody an email, this amount, these credits, credited here. And Mr. Worthington should be able to get back and say, no, it’s this amount, credited here or fine. And that -- that’s math and you can explain where you’re getting it from. That shouldn’t really be much litigation.
Tr. of Hr’g on Motion for Relief from Stay, ECF doc. 90, 20:5-16.
The Court then permitted the parties to submit additional briefing on the issue of whether Levin’s motion to add the NDEs implicates Debtor’s automatic stay and continued the hearing to February 5, 2020.
At the continued hearing on February 5, 2020, after considering the briefs and oral arguments, the Court ruled that Debtor’s stay under § 362 did not extend to
10:00 AM
CONT...
John Gordon Jones
Chapter 7
his NDEs. The Court’s adopted tentative ruling was filed on the docket on February 10, 2020 ("RFS Ruling," bankr. ECF doc. 95). The Order Granting Relief from Stay on the terms explained in the RFS Ruling was entered on March 4, 2020 (the "RFS Order," bankr. ECF doc. 98).
On February 20, 2020, Debtor filed this adversary proceeding seeking an injunction against Levin to prevent his going forward with state court litigation against the NDEs owned by Debtor (the "Injunction Complaint," 20-01022). Debtor did not move for a preliminary injunction at that time.
On April 14, 2020, Debtor filed a Motion for Injunction in the bankruptcy case (bankr. ECF doc. 124), seeking an injunction against Levin to prevent him from continuing his state court litigation as to the NDEs. On April 16, 2020, the Court entered an Order Denying Without Prejudice the Motion for Injunction, explaining that such relief must be sought in this adversary under FRBP 7001.
On March 23, 2020, Levin filed a Motion to Dismiss the Injunction Complaint under FRBP 12(b)(6). After considering the briefing and hearing oral argument, on April 29, 2020, the Court denied Levin’s motion to dismiss the Injunction Complaint. Thereafter, on May 20, 2020, Debtor filed a motion for preliminary injunction. Levin opposes the motion for preliminary injunction.
Standard for Preliminary Injunction:
In order to obtain a preliminary injunction under Fed. R. Civ. P. 65 ("Rule 65"), incorporated by reference in Fed. R. Bankr. P. 7065, Plaintiff must establish that: 1) it is likely to succeed on the merits; 2) it is likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in its favor; and 4) that an injunction is in the public interest. Winter v. Natural Resources Defense Counsel, Inc., 555 U.S. 7, 20 (2008); Munaf v. Geren, 553 U.S. 674, 689-90 (2008).
A preliminary injunction is an "extraordinary and drastic remedy" that should not be awarded as of right. Munaf v. Geren, 553 U.S. 689; Winter, 555 U.S. 26.
The moving party bears the burden of persuasion to show that it is entitled to relief by a clear showing. 11A Federal Practice and Procedure § 2948 (Wright, Miller and Kane 2d 1995); Winter, 555 U.S. 22. The burdens at the preliminary injunction stage track the burdens at trial. Gonzales v. O Centrol Espirita Uniao de Vegetal, 546 U.S. 418, 429 (U.S. 2006). Once the moving party has carried its burden of showing a likelihood of success on the merits, the burden shifts to the non-moving party to show a likelihood that its affirmative defense will succeed. Perfect 10, Inc. v.
10:00 AM
CONT...
John Gordon Jones
Chapter 7
Amazon.com, Inc., 508 F.3d 1146, 1158 (9th Cir. 2007).
Courts have granted injunctions under § 105(a) to protect non-debtors where certain actions would interfere with, deplete or adversely affect property of the bankruptcy estate or diminish the debtor’s ability to formulate a plan of reorganization. See Solidus Networks, Inc. v. Excel Innovations, Inc., (In re Excel Innovations, Inc.), 502 F.3d 1086, 1089 (9th Cir. 2007); Rinard v. Positive Invs., Inc. (In re Rinard), 451 B.R. 12, 24 (Bankr. C.D. Cal. 2011); Casner v. Chase Manhattan Mortg. Corp. (In Re Casner), 302 B.R. 695, 702-3 (Bankr. E.D. Cal. 2003).
Preliminary injunctions are to be granted sparingly to enjoin actors not covered by the automatic stay. In re American Hardwoods, Inc., 885 F.2d621, 625 (9th Cir. 1989). This does not prohibit limited time injunctions.
In the bankruptcy context the likelihood of success prong of the preliminary injunction standard does not necessarily entail a determination of the likely outcome of the state court proceeding that Debtor seeks to enjoin. For example, in Chapter 11 cases, where the objective of the request for injunction is to prevent state court litigation from negatively impacting the debtor's ability to reorganize, courts often define the likelihood of success prong of the preliminary injunction standard in terms of the probability of a successful reorganization. In re Excel Innovations, 502 F.3d at 1095. In adopting this standard, one court explained:
The Bankruptcy Code is designed to achieve either a reorganization or a fresh start, and 105 injunctions may be issued only as ‘necessary or appropriate to carry out the provisions of this title.’ 11 U.S.C. § 105. It makes sense to adopt a preliminary injunction standard with these principles in mind.
In re United Health Care Organization, 210 B.R. 228, 233 (S.D.N.Y.1997).
Here, Debtor filed a Chapter 7 case in which no reorganization is sought, so the probability of a successful reorganization cannot be used as a measure of the likelihood of success. In Archambault v. Hershman (In re Archambault), 174 B.R.
923 (Bankr.W.D.Mich.1994), the bankruptcy court applied preliminary injunction standards in a Chapter 7 case in which the debtor sought to enjoin the prosecution of state court litigation against a third party allegedly liable with the debtor on a debt, and suggested that the "‘likelihood of success on the merits' factor must be analyzed as to the possible success of the litigation which the debtor seeks to enjoin as well as the effect of that litigation on the debtor's fresh start." Archambault, 174 B.R. at 934 (emphasis added).
10:00 AM
CONT...
John Gordon Jones
Chapter 7
The parties disagree as to whether Debtor is likely to prevail in the State Court Action. Debtor believes that the documentary evidence of the course of dealings with Levin will show that the debt that was the basis for the State Court Judgment is far lower than was awarded in the State Court Judgment. Levin, for his part, argues that Debtor’s dealings with his NDEs show that the NDEs are Debtor’s alter egos and thus he cannot show likelihood of success on the merits. These arguments miss the importance of the fresh start. In the Chapter 7 context, as suggested by Archambault, the furtherance of the Bankruptcy Code's fresh start objective also bears on the Court's determination of Debtor’s likelihood of success.
A fundamental purpose driving the bankruptcy system is to "relieve the honest debtor from the weight of oppressive indebtedness, and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes." Williams v. U.S. Fidelity & Guaranty Co., 236 U.S. 549, 554–555 (1915) (citations omitted). To carry out those provisions, it is appropriate that debtors, if reasonably possible, be afforded an opportunity for a meaningful determination on the merits of non-dischargeability claims against them. Here, Debtor has already prevailed as to Levin’s § 523(a)(2) claim, giving weight to his argument that he has demonstrated likelihood of success on the merits.
With these principles in mind, with regard to the likelihood of success prong of the preliminary injunction standard, it makes sense to require Debtor to demonstrate a reasonable likelihood that they will be deprived of a fresh start without a meaningful determination on the merits of Levin’s remaining § 727(a) claims against him if no injunction is issued. Debtor explained that, under their current financial condition, he may be forced to proceed without counsel in the State Court Action, if his current counsel is unable to continue to forebear his fees. Debtor contends that he will suffer irreparable harm in the without the issuance of an injunction because he would be forced to proceeded pro se in the State Court Action to a litigated judgment. If forced to defend the alter ego claims that seek to pierce the corporate veil and to reach him personally, there is a reasonable likelihood Debtor would be deprived of a meaningful determination on the merits of Levin’s
§ 727(a) claims.
If Debtor is unable to defend against the alter ego actions and the State Court issues a default judgment that the NDEs are Debtor’s alter ego, Levin would likely seek preclusive effect in this form for any factual finding made by the State Court. In other words, if this Court were presented with findings by the State Court as relates to alter ego, Levin may try to use collateral estoppel principles to establish
10:00 AM
CONT...
John Gordon Jones
Chapter 7
facts to support his denial of discharge action under 11 U.S.C. §§ 727(a)(2)(A); (a) (4)(A) and (a)(5) based on a judgment obtained in the State Court Action. On the other hand, should Debtor prevail in the State Court Action, he will still have to relitigate related factual issues in this adversary proceeding. It is clear from the pleadings and arguments in this case thus far that the factual basis of the denial of discharge action also form the basis of Levin’s claim for alter ego against the NDEs. Discovery as between Levin and the NDEs would proceed in the State Court Action, discovery that would seem to be largely duplicative of the discovery in this adversary proceeding. There would also be the risk of inconsistent rulings on discovery issues by the State Court and this Court.
Public policy is in favor of allowing debtors a fair opportunity to emerge from their financial difficulties with a fresh start is served by setting a trial in the adversary proceeding sooner, rather than later, and providing a forum for adjudication of the issues in which Debtor can afford counsel. Public policy also favors judicial economy and minimizing expense for the parties to the litigation. The most efficient use of judicial resources and the most economical way to resolve the pending litigation between the parties, is to hold the § 727(a) trial before any State Court proceeding on the alter ego claims. The result the Court envisions will "maximize protection and minimize prejudice" to both parties.
Under this standard, the Court finds that Debtor has demonstrated a sufficient likelihood of success, both as to the possible success of the state court litigation as well as the effect of that litigation on Debtor's fresh start. If Debtor prevails in the § 727(a) against him, discharge will be entered and any personal liability against Debtor that may be sought by Levin in piercing the corporate veils of the NDEs can be decided without affecting his discharge. If, on the other hand, Levin prevails, there will be no discharge to prevent him from exercising his state law rights against both Debtor and any of the NDEs against which he can obtain a judgment. Proceeding in this manner will avoid or mitigate the need for expensive duplicative discovery in the State Court Action and this adversary proceeding and minimize the risk of inconsistent rulings in the two actions.
Debtor has met his burden to show facts that there is a likelihood of success on the merits and that the litigation will have a deleterious on his fresh start, that he is likely to suffer irreparable harm in the absence of injunctive relief, that the balance of equities tips in its favor; and that an brief, time-limited injunction is in the public interest.
The Court can and will fashion relief to mitigate the harm to both parties by
10:00 AM
CONT...
John Gordon Jones
Chapter 7
issuing a time-limited injunction simply holding off on the Superior Court proceedings until the discharge trial is complete. The Court is scheduled to review the parties’ Pretrial Stipulation on July 10, 2020, and trial can be scheduled fairly quickly therafter. Given the continued impact of the COVID-19 closures on the California Superior Courts, it is clear that this Court can likely conduct a trial on the remaining
§§ 727(a) claims before the State Court can hear the alter ego claims against the NDEs.
Motion GRANTED.
Debtor(s):
Party Information
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Levin Represented By
Michael Jay Berger
Plaintiff(s):
John Gordon Jones Represented By
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:20-01022 Jones v. Levin
#3.00 Status Conference re: Petition for injuction prohibiting creditor join Levin, M.D. from
legal action aganst Non-Bankrupt Corporation entities fr. 4/29/20
Docket 1
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Levin Pro Se
Plaintiff(s):
John Gordon Jones Represented By
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
9:30 AM
1:12-10231
Owner Management Service, LLC and Trustee Corps
Chapter 7
#1.00 Motion for relief from stay WELLS FARGO BANK, N.A.
fr. 9/18/19, 11/20/19, 3/4/20; 5/13/20
Docket 2284
Tentative Ruling:
On 6/24/20, the Court Approved Trustee's Motion to sell the Property to HMO Properties. This Relief from Stay Motion is therefore DENIED as moot.
NO APPEARANCE REQUIRED. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
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 Jorge A Gaitan
10:00 AM
1:14-13823
Rumio Sato
Chapter 13
#2.00 Motion for relief from stay
WILMINGTON TRUST NATIONAL ASSO.
Docket 220
Tentative Ruling:
Petition Date: 08/14/14
Ch. 13; confirmed on 2/17/15 Service: Proper. No opposition filed.
Property: 2967 West Split Mountain Lane, San Bernardino CA, 92407 Property Value: n/a
Amount Owed: n/a Equity Cushion: n/a Equity: n/a
Post-Petition Delinquency: $70,145 (35 payments of $2,045 less suspense balance of $1,442.38)
Movant alleges cause for relief under 362(d)(4) due to transfers of ownership in Property without Movant’s consent. The Court has reviewed the history of this Debtor's case and it appears that Debtor is progressing in this chapter 13 case in good faith, i.e., Debtor has been performing under his chapter13 plan since it was confirmed on February 17, 2015. Furthermore, Debtor's case has several of these unrelated motions filed, to which Debtor has responded that he is not involved in the transfers and does not claim any interest in other real properties. See ECF doc. 138. Based on the history of Debtor's case, it does not appear that Debtor Sato was involved in the alleged scheme.
Disposition: GRANT 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 terminated) 7 (waiver of the 4001(a)(3) stay); 9 (relief under 362(d)(4), with no finding of bad faith as to this Debtor.
10:00 AM
CONT...
Rumio Sato
Chapter 13
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.
Party Information
Debtor(s):
Rumio Sato Represented By
Peter M Lively
Movant(s):
Wilmington Trust, National Represented By Austin P Nagel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-11803
George Richard Gonzales and Martha Lucia Gonzales
Chapter 13
#3.00 Motion for relief from stay
DEUTSCHE BANK TRUST COMPANY
Docket 101
Tentative Ruling:
Petition Date: 5/21/15
Ch. 13; confirmed on 8/4/15
Service: Proper. Co-debtor served. Opposition filed. Property: 14674 Hiawatha Street, Los Angeles, CA 91345 Property Value: $574,567.00
Amount Owed: $ 394,503.97 Equity Cushion: 31.3% Equity: $186,063.00.
Post-Petition Delinquency: $67,413 (11 payments of $3,171.20 + 11 payments of
$3,162.50 less suspense balance of $2,257.57)
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 terminated) and 7 (waiver of the 4001(a)(3) stay).
Debtors oppose the Motion and dispute the arrears listed in the Motion. Movant states that it received payments of $3,170 and $3,175 in January 2020 and March 2020, but such payments are not reflected in the accounting report. (RFS, Exhibit 1 and 2).
Debtors wish to enter an APO. Is movant amenable to APO? TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
George Richard Gonzales Represented By
Michelle A Marchisotto Michael Smith
Craig K Streed
10:00 AM
CONT...
George Richard Gonzales and Martha Lucia Gonzales
Sundee M Teeple
Chapter 13
Joint Debtor(s):
Martha Lucia Gonzales Represented By
Michelle A Marchisotto Michael Smith
Craig K Streed Sundee M Teeple
Movant(s):
Deutsche Bank National Trust Represented By April Harriott Seth Greenhill Sean C Ferry Eric P Enciso
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12596
Lynne Suzanne Boyarsky
Chapter 13
#4.00 Motion for relief from stay CITIBANK, N.A.
fr. 9/11/19, 10/16/19, 12/4/19, 1/15/20, 4/1/20, 5/13/20
Docket 64
Tentative Ruling:
Continued from 5/13/20. This hearing has been continued several times, the last by stipulation. Nothing has been filed since the last stipulation. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Lynne Suzanne Boyarsky Represented By Matthew D Resnik
Movant(s):
Citibank, N.A. Represented By Robert P Zahradka
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-10222
Maria Audelia Navarro
Chapter 13
#5.00 Motion for relief from stay
COLONY COVE I HOMEOWNERS ASSOCIATION
Docket 66
Tentative Ruling:
Petition Date: 1/25/18
Ch.13; confirmed on 10/05/2018
Service: Proper on Debtor. Opposition filed. Senior lienholder (Deutsche) not served
Property: 8333 Columbus Ave, Unit #2, North Hills, CA 91343 Property Value: $348,943
Amount Owed: $ $22,594.76; senior mortgage owed $288,705.25 Equity Cushion: 10.8%
Equity: $37,643.49
Post-Petition Delinquency: $5,991.60 (17 payments of $330.00 + 2 payments of
$288.60 less suspense $255.60)
Movant (HOA) requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 7 (waiver of the 4001(a)(3) stay). Movant requests relief to pursue a judgment against debtor for dues owed, alleging that the last payment of $30 was received was on or about 6/06/2019.
Debtor opposes the Motion and argues Movant is in breach of their CC&R agreement. Debtor argues that (1) dues abated until repairs are made; (2) Movant has not properly applied payments. Debtor seeks APO for any deficiency.
This Motion is CONTINUED to August 19, 2020 at 10:00 am, to allow Movant to properly serve the Motion under Rule 4001. Movant to File Amended Proof of Service before July 28, 2020 for the Motion to be considered on its merits at the continued hearing.
10:00 AM
CONT...
Maria Audelia Navarro
Chapter 13
NO APPEARANCE REQUIRED on July 15, 2020
Party Information
Debtor(s):
Maria Audelia Navarro Represented By Donald E Iwuchuku
Movant(s):
Colony Cove I Homeowners Represented By Reilly D Wilkinson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12957
Arturo Gutierrez
Chapter 13
#6.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION
Docket 50
*** VACATED *** REASON: Settled per stip (doc. 55)-rc Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Arturo Gutierrez Represented By Kevin T Simon
Movant(s):
U.S. Bank National Association, as Represented By
Kirsten Martinez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10322
Louis Vargas
Chapter 13
#7.00 Motion for relief from stay BAYVIEW LOAN SERVICING, LLC
fr. 6/2/20
Docket 58
Tentative Ruling:
Cont from 6/2/20
This matter was continued from 6/2/20 so that the parties could discuss an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Louis Vargas Represented By
Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10566
Demetrio Camacho and Rosario Lua
Chapter 13
#8.00 Motion for relief from stay FORD MOTOR CREDIT CO
Docket 40
Tentative Ruling:
Petition Date: 03/11/2019
Chapter: 13; confirmed on 08/15/2019 Service: Proper. No opposition filed. Property: 2018 Ford Fusion
Property Value: $16,179.00 Amount Owed: $ 24,200.90 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $914.96 (2 payments of $457.48)
Movant alleges that the last payment of $457.48 was received on or about 03/20/2020.
Motion GRANTED under 11 U.S.C. 362(d)(1). GRANT relief relief requested in paragraph 2 (proceed under applicable non-bankruptcy law) and 6 (waiver of 4001(a)
stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Demetrio Camacho Represented By Kevin Tang
Joint Debtor(s):
Rosario Lua Represented By
Kevin Tang
10:00 AM
CONT...
Movant(s):
Demetrio Camacho and Rosario Lua
Chapter 13
Ford Motor Credit Company LLC Represented By
Sheryl K Ith Jennifer H Wang
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11651
Scott Andrew Lifschitz
Chapter 7
#9.00 Motion for relief from stay WELLS FARGO BANK
Docket 29
Tentative Ruling:
Petition Date: 7/3/2019 Chapter: 7
Service: Proper. Co-debtor served. No opposition filed. Property: 2011 Lexus GX460
Property Value: $15,400.00(per debtor’s schedules) Amount Owed: $18,557.49
Equity Cushion: N/A Equity: N/A
Post-Petition Delinquency:
Movant regained possession of the Property on 11/6/2019
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.
Party Information
Debtor(s):
Scott Andrew Lifschitz Represented By John D Faucher
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Joseph C Delmotte
10:00 AM
CONT...
Trustee(s):
Scott Andrew Lifschitz
Chapter 7
Diane C Weil (TR) Pro Se
10:00 AM
1:19-11916
Ada E Renderos Velasquez
Chapter 13
#10.00 Motion for relief from stay IMPAC MORTGAGE CORP.
Docket 34
Tentative Ruling:
Petition Date: 07/30/2019 Ch.13; confirmed on 11/12/2019
Service: Proper. Opposition filed.
Property: 19772 Buckeye Meadow Lane, Los Angeles, CA 91326 Property Value: $807,500
Amount Owed: $ 677,922.46 Equity Cushion: 16%
Equity: $129,577.54.
Post-Petition Delinquency: $15,607.75 (3 payments of $4,525.76 + advances of
$1,215.00 + atty fees of $1,231.00 less suspense balance of $412.53)
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). Movant alleges that the last payment of $4,505.25 was received was on or about 2/25/2020.
Debtor opposes the Motion and argues that the Property is necessary for an effective reorganization because the Debtor and her family live in the Property. Debtor states that the mortgage company is willing to enter a forbearance agreement and enter an APO. What is the status of this Motion?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Ada E Renderos Velasquez Represented By Ali R Nader
10:00 AM
CONT...
Movant(s):
Ada E Renderos Velasquez
Chapter 13
IMPAC Mortgage Corp. dba Represented By
Erin M McCartney
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11927
Vardui Vanessa Aleksanyan
Chapter 7
#11.00 Motion for relief from stay Toyota Motor Credit Corp.
Docket 45
Tentative Ruling:
Petition Date: 7/31/2019 Chapter: 7
Service: Proper. No opposition filed. Property: 2015 Toyota Camry Property Value: $11,950.00
Amount Owed: $12,745.92 Equity Cushion: N/A Equity: N/A
Post-Petition Delinquency: $3,355.33 (11 payments of $305.03) Movant regained possession of the Property on 10/22/2019.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2). GRANT relief requested in paragraph 6 (proceed under applicable non-bankruptcy law) and 10 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Vardui Vanessa Aleksanyan Represented By Keith S Dobbins
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
10:00 AM
CONT...
Trustee(s):
Vardui Vanessa Aleksanyan
Chapter 7
Nancy J Zamora (TR) Pro Se
10:00 AM
1:19-13113
Avetis Dzhigryan
Chapter 13
#12.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
fr. 6/10/20
Docket 22
Tentative Ruling:
Continued from 06/10/20
This hearing was continued from 06/10/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Avetis Dzhigryan Represented By Aris Artounians
Movant(s):
The Bank of New York Mellon f/k/a Represented By
Austin P Nagel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10172
Shedireck Delshay Turner, Jr
Chapter 7
#13.00 Motion for relief from stay Carvana, LLC
Docket 21
Tentative Ruling:
Ch. 7 Petition Date: 01/24/2020 Service: Proper. No opposition filed. Property: 2017 Nissan Altima
Property Value: $14,673 (per NADA valuation in Exhibit 3) Amount Owed: $18,352.31
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $0
Movant alleges that the last payment was received on or around 02/28/2020 and that Debtor has $1,401 in arrears.
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.
Party Information
Debtor(s):
Shedireck Delshay Turner Jr Pro Se
Movant(s):
Carvana, LLC Represented By
Lemuel Bryant Jaquez
10:00 AM
CONT...
Trustee(s):
Shedireck Delshay Turner, Jr
Chapter 7
David Seror (TR) Pro Se
10:00 AM
1:20-10433
Nadia Wendy Zubieta
Chapter 13
#14.00 Motion for relief from stay
NISSAN MOTOR ACCEPTACE CORP
Docket 22
Tentative Ruling:
Ch. 13 Petition Date: 02/25/2020
Service: Proper; co-debtor served. Opposition filed 06/25/2020. Property: 2018 Nissan Sentra
Property Value: $9,020 Amount Owed: $25,095.31 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $1,637.60 (3 payments of $536.92) +$26.84 in late charges)
Movant alleges that post-petition payments due on contract have not been paid.
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested under paragraph 2 (proceed under applicable non-bankruptcy law), 5 (co-debtor stay), and 6 (waiver of 4001(a)(3) stay).
Debtor has been impacted financially by COVID-19 and requests a repayment agreement from the movant. Debtor would like to work out an APO. Is Movant amenable?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Nadia Wendy Zubieta Represented By Kevin T Simon
10:00 AM
CONT...
Movant(s):
Nadia Wendy Zubieta
Chapter 13
Nissan Motor Acceptance Represented By Austin P Nagel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10943
Karyn Lee McDowell and Michael Keith McDowell
Chapter 7
#15.00 Motion for relief from stay
THE GOLDEN 1 CREDIT UNION
Docket 9
Tentative Ruling:
Ch. 7 Petition Date: 05/20/2020 Service: No opposition filed.
Property: 2017 Nissan Altima
Property Value: $10,208 (per blue book valuation) Amount Owed: $22,039.29
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $0
Movant alleges that Debtor’s last payment was received on or around 02/03/2020 and that Debtor has $1,358.01 in pre-petition arrears. Movant alleges that Debtor has filed a statement of intention that indicates the Debtor intends to surrender the Property and that the property is not necessary for an effective reorganization.
Disposition: GRANT under 11 U.S.C. 362(d)(1) and (d)(2), with specific 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.
Party Information
Debtor(s):
Karyn Lee McDowell Represented By Mark T Jessee
10:00 AM
CONT...
Karyn Lee McDowell and Michael Keith McDowell
Chapter 7
Joint Debtor(s):
Michael Keith McDowell Represented By Mark T Jessee
Movant(s):
The Golden 1 Credit Union Represented By Rebecca M Wicks
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:20-10953
Juan M Gonzalez
Chapter 13
#16.00 Motion for relief from stay PS FUNDING, Inc.
Docket 22
Tentative Ruling:
Ch. 13 Petition Date: 05/22/2020; pro se debtor
Service: Proper; junior lien holders served. No opposition filed. Property: 1222 West 39th Street, Los Angeles, CA 90037 Property Value: $3,500,000 (per expert declaration in Exhibit 1)
Amount Owed: $ 3,717,876.74 ($536,324.59 in accrued interest; $12,400 in late charges; $ 69,152.15 in attorney’s fees)
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $3,717,876.74 (2 missed payments; all due and payable)
PS Funding (“Movant”) holds the 1st Deed of Trust on Property. Movant alleges that Juan Gonzalez (“Debtor”) filed the current bankruptcy in bad faith. There is a prior bankruptcy filed by Carlyle Assets (“Borrower”) concerning the Property that was dismissed on June 24, 2020. The prior bankruptcy was filed on April 13, 2020, a day before the scheduled Trustee sale of the Property--April 14, 2020. In that case, the Court granted relief from stay, holding that “based on the present, uncontroverted record, the Court finds that this petition was filed in bad faith to delay and impair Movant’s attempts to foreclose upon the Property.” See Case No: 20-13627 (doc. 17).
After obtaining relief from stay, Movant resumed its foreclosure efforts and on the date of foreclosure received notice from Debtor of the instant chapter 13 case. Debtor submitted notice of the instant bankruptcy case with an unrecorded grant deed purporting to transfer a 1% interest in the property to Debtor. Movant alleges that Debtor has not scheduled Movant's claim or the Property in his schedules or chapter 13 plan.
10:00 AM
CONT...
Juan M Gonzalez
Chapter 13
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 (relief from co-debtor stay); 7 (waiver of the 4001(a)(3) stay); and 9 (relief under 362(d)(4), noting that the Court cannot make a finding that Debtor was involved in the alleged scheme.
DENY relief under paragraph 4 (no stay in effect) because the Court cannot retroactively annul an automatic stay. See Roman Catholic Archdiocese of San Juan, Puerto Rico v. Yali Acevedo Feliciano, 140 S.Ct. 696 (per curiam, Feb. 24, 2020). If Movant wishes to proceed with its request to annul the stay, the Court will set a briefing schedule to consider whether Acevedo controls here.
DENY relief under paragraph 11 (binding and effective relief in any future case against any future debtor), as such injunctive relief must be sought in an adversary proceeding under FRBP 7001.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Juan M Gonzalez Pro Se
Movant(s):
PS Funding, Inc. Represented By Andrew Still Eric S Pezold
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11013
Golamreza Nasiri
Chapter 7
#17.00 Motion for relief from stay The Golden 1 Credit Union
Docket 9
Tentative Ruling:
Ch. 7 Petition Date: 06/03/2020 Service: Proper. No opposition filed. Property: 2019 Honda Clarity
Property Value: $22,392.00 (per bluebook valuation) Amount Owed: $ 40,538.16
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $0
Movant alleges that the last payment received was on or around 11/22/2019 and that Debtor has $3,644.46 in pre-petition arrears. Movant alleges that Debtor has filed a statement of intention to surrender the property, Debtor has no equity in the property, and the property is not necessary for effective reorganization.
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.
Party Information
Debtor(s):
Golamreza Nasiri Represented By
Hamid Soleimanian
10:00 AM
CONT...
Movant(s):
Golamreza Nasiri
Chapter 7
Golden 1 Credit Union Represented By Rebecca M Wicks
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:18-12113
Lida Platt
Chapter 7
#18.00 Trustee's Final Report and Applications for Compensation
Docket 64
Tentative Ruling:
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.
Party Information
Debtor(s):
Lida Platt Represented By
David A Tilem
Trustee(s):
David Keith Gottlieb (TR) Represented By
D Edward Hays Laila Masud
10:00 AM
1:19-10498
Robert Nadler
Chapter 7
#19.00 Trustee's Final Report and Applications for Compensation
Docket 64
Tentative Ruling:
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.
Party Information
Debtor(s):
Robert Nadler Represented By
Eric Bensamochan
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:20-10535
Hixme Insurance Solutions, Inc.
Chapter 7
#20.00 Motion by Chapter 7 Trustee To:
Approve Sale of Certain Personal Property of Estate Free and Clear of Liens, Claims, Interests and Encumbrances with Liens, Claims, Interests, and Encumbrances, to Attach to Proceeds Pursuant to
11 u.S.C. Sec. 363(b) and (f);
Approve Overbid Procedures;
Determine that Buyer is Entitled to Proteciton Pursuant to 11 U.S.C. Sec. 363(m);
Docket 23
Tentative Ruling:
Trustee moves for authority to sell the estate's interest in Debtor’s assets consisting of rights to all technology, intellectual property etc., associated with Debtor’s developed technology platform—Hixme.com (the "Property") to Sureco Health and Life Insurance Agency, Inc. ("Buyer") for a purchase price of $15,000, subject to overbid. Any overbidder must submit a deposit of $20,000 to the Trustee. The initial overbid must be for at least $20,000 and subsequent overbids must be made in minimum increments of $5,000.
Service proper. No opposition filed.
Motion GRANTED. APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hixme Insurance Solutions, Inc. Represented By Keith S Dobbins
Movant(s):
David Seror (TR) Represented By
10:00 AM
CONT...
Trustee(s):
Hixme Insurance Solutions, Inc.
Robyn B Sokol
Chapter 7
David Seror (TR) Represented By Robyn B Sokol
10:00 AM
1:09-16565
David Schwartzman
Chapter 11
#21.00 Post confirmation status conference
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;
8/1/18; 3/6/19, 8/21/19, 12/18/19, 1/8/20
Docket 1
Tentative Ruling:
Having reviewed Debtor’s Post-Confirmation Status Report (doc. 423), the Court finds cause to continue this post-confirmation status conference to January 6, 2021, at 10:00 a.m. Debtor to give notice of the continued status conference.
NO APPEARANCE REQUIRED ON 07/15/2020
Party Information
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
11:00 AM
1:18-11821
Sonia D. Roman
Chapter 7
Adv#: 1:18-01110 Roman v. US Bank ELT Brazos ELA Inc. et al
#22.00 Pre-trial conference re complaint for: dischargeability of student loan
fr. 1/9/19, 8/21/19; 1/15/20; 3/11/20; 5/13/20
Docket 1
*** VACATED *** REASON: Stip. cont. to 9/9/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Sonia D. Roman Represented By Christine A Kingston
Defendant(s):
US Bank ELT Brazos ELA Inc. Pro Se
Pennsylvania Higher Education Pro Se
Plaintiff(s):
Sonia D. Roman Represented By Christine A Kingston
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:19-01142 PCB Debt LLC v. Lee
#23.00 Status Conference Re: First Amended Complaint to Revoke Defendant's Discharge under 11 USC Sec. 727
Docket 31
*** VACATED *** REASON: Cont'd to 8/19/20 @11:00 per order #30- 2nd Amended Complaint filed
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Albert Lee Represented By
M Teri Lim
Defendant(s):
Albert Lee Represented By
Kurt Ramlo
Plaintiff(s):
PCB Debt LLC Represented By George T Busu James E Till
Bryan King Sheldon
Trustee(s):
David Keith Gottlieb (TR) Represented By Howard Camhi Peter A Davidson
11:00 AM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:19-01142 PCB Debt LLC v. Lee
#24.00 Status Conference re: Complaint to revoke discharge under 11 U.S.C. section 727
fr. 2/5/20, 3/11/20
Docket 1
*** VACATED *** REASON: Status conference moot, as am. complaint filed 4/13/20 (doc. 23) - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Albert Lee Represented By
M Teri Lim
Defendant(s):
Albert Lee Pro Se
Plaintiff(s):
PCB Debt LLC Represented By George T Busu James E Till
Bryan King Sheldon
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:19-12134
Mehrnaz Fotoohi
Chapter 7
Adv#: 1:19-01143 Irani v. Fotoohi
#25.00 Status Conference re: Complaint for Non-dischargeability of debt pursuant to 11 U.S.C. section 523(a)(6) &
11 U.S.C. section 727(a)(2)(A),(3),(4)&(5)
fr. 2/5/20
Docket 1
Tentative Ruling:
On April 6, 2020, this Court granted Plaintiff’s Motion for Partial Summary Judgment on Plaintiff’s Second Claim for Relief, finding that Debtor’s conduct resulted in willful and malicious injury to Plaintiff under 11 U.S.C. 523(a)(6)— totaling $22,957.56 (the “Judgment”). The Judgment was deemed non- dischargeable by Defendant pursuant to 523(a)(6).
Still remaining are Plaintiff’s 1st, 3rd, 4th, 5th, and 6th claims for relief. No status report was filed since the last hearing. What is the status of this case?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Mehrnaz Fotoohi Represented By Fari B Nejadpour
Defendant(s):
Mehrnaz Fotoohi Pro Se
Plaintiff(s):
Karin Irani Represented By
Sanaz S Bereliani
11:00 AM
CONT...
Trustee(s):
Mehrnaz Fotoohi
Chapter 7
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:19-12434
Walter Ernesto Aleman Olmedo
Chapter 7
Adv#: 1:20-01049 Goldman v. Aleman et al
#26.00 Status Conference Re: Trustee's Compliant for: 1 - Avoidance of Actual Fraudulent Transfer (11 U.S.C. Sec. 548(a)(1)(A));
- Avoidance of Constructive Fraudulent Transfer Sec. 548(a)(1)(B);
- Avoidance of Actual Fraudulent Transfer Under Applicable California Law (Cal. Civ. Code Sections 3439.04(a)(1) and 3439.07 and 11 USC Sec. 544(b));
- Avoidance of Constructive Fraudulent Transfer Under Applicable California Law (Cal. Civ. Code Sections 3439.05 and 3439.07 and 11 USC Sec. 544(b));
- Recovery of Avoided Transfer (11 USC Sec. 550(a)); and
- Preservation of Avoided Transfer (11 USC Sec. 551)
Docket 1
*** VACATED *** REASON: Cont'd to September 9, 2020, at 1:00 p.m. per stipulation (ECF doc. 11) - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Walter Ernesto Aleman Olmedo Represented By
Navid Kohan
Defendant(s):
Oscar Aleman Pro Se
Marisol Vega Aleman Pro Se
11:00 AM
CONT...
Walter Ernesto Aleman Olmedo
Chapter 7
Aleman Signs, Inc. Pro Se
Plaintiff(s):
Amy L Goldman Represented By Leonard Pena
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
9:30 AM
1:12-10231
Owner Management Service, LLC and Trustee Corps
Chapter 7
#1.00 Evidentiary Hrg. re: Motion to Disallow Claims Objection to Proof of Claim No. 38
fr. 12/4/19, 1/8/20; 5/14/20
Docket 2317
*** VACATED *** REASON: Stip. cont. to 8/28/20 @ 9:30am (eg) Tentative Ruling:
Chicago's evidence must be subjected to cross examination and the claims
objections turned into a contested matter as they have come forward with a colorable claim. They have not, however, provided sufficient evidence of why they did not file the claim sooner, so the question of what priority any claim might have should perhaps be resolved first
Party Information
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 Jorge A Gaitan
2:00 PM
1:19-11659
Nicolas Mendez Rodriguez
Chapter 7
#2.00 Status Conference Re: Motion to Avoid Lien Judicial
Lien under section 522(f) (Berta Hernandez and Jose Eduardo Hernandez- Hlnojosa)
fr. 12/11/19, 4/3/20, 6/11/20
Docket 44
Tentative Ruling:
APPEARANCE REQUIRED. Parties should be prepared to discuss dates for an evidentiary hearing to determine whether debtor is eligible for the exemptions claimed.
The court will issue a ruling on the value of 10576 Tamarack ave, Pacoima CA before the evidentiary hearing based on the stipulation received.
A hearing must be held to resolve the remaining issues.
The court would like to know from each party what their video and audio capabilities and access are. The hearing can be held by zoom and will be free for participants if all have access to appropriate technology.
Party Information
Debtor(s):
Nicolas Mendez Rodriguez Represented By Steven A Simons
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1612590995
Meeting ID: 161 259 0995 Password: 4kQ41E
Telephone Conference Lines: 1 (669) 254-5252 or 1 (646) 828-7666
Meeting ID: 161 259 0995
Password: 564224
Docket 0
Tentative Ruling:
11:00 AM
CONT... Chapter
NONE LISTED -
11:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 By Zoom
Case Management Conference fr. 3/11/20; 5/13/20
Docket 0
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
11:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#2.00 By Zoom
Status Conference RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
(1) Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19,3/11/20; 5/13/20
Docket 21
Tentative Ruling:
Joint Status report filed. Both parties indicate they are amenable to mediation. Both parties still have depositions to conduct. Smart Capital wishes to have a Pre-Trial Conference while Debtor does not.
ZoomGov APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By
11:00 AM
CONT...
Hawkeye Entertainment, LLC
Sandford L. Frey
Chapter 11
11:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#3.00 Ex Parte Application for an Order Allowing for Service of Subpoena upon Secretary of State
Docket 101
*** VACATED *** REASON: Ntc. of w/drawal filed 7/16/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
8:30 AM
1:00-00000 Chapter
#0.00 PLEASE NOTE:
THE 8:30 A.M. REAFFIRMATION CALENDAR WILL BE HEARD BY JUDGE KAUFMAN BY ZOOM ONLY.
THE CHAPTER 13 CALENDAR STARTING AT 9:30 A.M. WILL BE HEARD BY JUDGE TIGHE VIA COURT CALL.
Docket 0
Tentative Ruling:
NONE LISTED -
8:30 AM
1:19-12769
Melissa Dolores Flanigan
Chapter 7
#0.01 Reaffirmation Agreement with Logix Federal Credit union
You will not be permitted to be physically present in the courtroom.
All appearances for the July 21, 2020 calendar will be via Zoom and not via Court Call. All parties participating in these hearings may connect from the zoom link listed below. This service is free of charge. You may participate using a computer or telephone.
Join by Computer
Meeting URL: https://cacb.zoomgov.com/j/1617683051
Meeting ID: 161 768 3051
Password: 937978
Join by Telephone
For higher quality, dial a number based on your current location.
Dial: US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 768 3051
Password: 937978
Docket 1
Tentative Ruling:
Petition date: 10-31-19; Reopened 6-12-20
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 Nissan Sentra
8:30 AM
CONT...
Melissa Dolores Flanigan
Chapter 7
Debtor’s valuation of property (Sch. B): $6,000 Amount to be reaffirmed: $9,731.47
APR: 2.99%
Contract terms: $231.77 per month for 46 months Monthly Income (Schedule I): $1,600
Monthly expenses: (Schedule J): $2,875 Disposable income: <$1,275>
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 mother is helping her with the payments. This payment is listed in Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until 8-29-2020, whichever is later.
Party Information
Debtor(s):
Melissa Dolores Flanigan Represented By Ali R Nader
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
1:20-10578
Karyn Kristy
Chapter 7
#0.02 Pro se Reaffirmation Agreement with JPMorgan Chase Bank, N.A.
You will not be permitted to be physically present in the courtroom.
All appearances for the July 21, 2020 calendar will be via Zoom and not via Court Call. All parties participating in these hearings may connect from the zoom link listed below. This service is free of charge. You may participate using a computer or telephone.
Join by Computer
Meeting URL: https://cacb.zoomgov.com/j/1617683051
Meeting ID: 161 768 3051
Password: 937978
Join by Telephone
For higher quality, dial a number based on your current location.
Dial: US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 768 3051
Password: 937978
Docket 15
Tentative Ruling:
Petition date: 3-10-2020
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 Mazda 3
8:30 AM
CONT...
Karyn Kristy
Chapter 7
Debtor’s valuation of property (Sch. B): $9,817 Amount to be reaffirmed: $12,512.05
APR: 6.39% (fixed)
Contract terms: $301.60 per month for 47 months Monthly Income (Schedule I): $2,673.54
Monthly expenses: (Schedule J): $2,810 Disposable income: <$136.46>
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, since her bankruptcy, her expenses have decreased and she can now afford her car payment. This payment is listed in Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until August 19, 2020, whichever is later.
Party Information
Debtor(s):
Karyn Kristy Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
1:20-10636
Brian Daniel Posantes
Chapter 7
#0.03 Reaffirmation Agreement with Toyota Motor Credit Corporation
You will not be permitted to be physically present in the courtroom.
All appearances for the July 21, 2020 calendar will be via Zoom and not via Court Call. All parties participating in these hearings may connect from the zoom link listed below. This service is free of charge. You may participate using a computer or telephone.
Join by Computer
Meeting URL: https://cacb.zoomgov.com/j/1617683051
Meeting ID: 161 768 3051
Password: 937978
Join by Telephone
For higher quality, dial a number based on your current location.
Dial: US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 768 3051
Password: 937978
Docket 12
Tentative Ruling:
Petition date: 3/17/2020
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 Scion
8:30 AM
CONT...
Brian Daniel Posantes
Chapter 7
Debtor’s valuation of property (Sch. B): $15,000 Amount to be reaffirmed: $9,553.08
APR: 3.65% (fixed)
Contract terms: $295.69 per month for 34 months Monthly Income (Schedule I): $2,781.52
Monthly expenses: (Schedule J): $2,862 Disposable income: <$70.48>
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 co-signed this vehicle for his sister and that she is responsible for making the payments. This payment is not listed on Sch. J
Debtor has a right to rescind agreement anytime prior to discharge, or until August 25, 2020, whichever is later.
Party Information
Debtor(s):
Brian Daniel Posantes Represented By
Michael H Colmenares
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
1:20-10735
Shirley A. Cabico
Chapter 7
#0.04 Pro se Reaffirmation Agreement with TD Auto Finance LLC
fr. 6/16/20
You will not be permitted to be physically present in the courtroom.
All appearances for the July 21, 2020 calendar will be via Zoom and not via Court Call. All parties participating in these hearings may connect from the zoom link listed below. This service is free of charge. You may participate using a computer or telephone.
Join by Computer
Meeting URL: https://cacb.zoomgov.com/j/1617683051
Meeting ID: 161 768 3051
Password: 937978
Join by Telephone
For higher quality, dial a number based on your current location.
Dial: US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 768 3051
Password: 937978
Docket 12
Tentative Ruling:
Petition date: 4/1/2020
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
8:30 AM
CONT...
Shirley A. Cabico
Chapter 7
Property: 2019 Toyota RAV-4
Debtor’s valuation of property (Sch. B): $23,084 Amount to be reaffirmed: $26,422.88
APR: 8.24% fixed
Contract terms: $490 per month for 66 months Monthly Income (Schedule I): $7,751.49 Monthly expenses: (Schedule J): $7,742 Disposable income: $9.49
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 this payment. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until July 6, 2020, whichever is later.
Party Information
Debtor(s):
Shirley A. Cabico Represented By
R Grace Rodriguez
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
1:20-11016
Daniel Shea Klein
Chapter 7
#0.05 Reaffirmation Agreement Between Debtor and Fifth Third Bank N.A.
You will not be permitted to be physically present in the courtroom.
All appearances for the July 21, 2020 calendar will be via Zoom and not via Court Call. All parties participating in these hearings may connect from the zoom link listed below. This service is free of charge. You may participate using a computer or telephone.
Join by Computer
Meeting URL: https://cacb.zoomgov.com/j/1617683051
Meeting ID: 161 768 3051
Password: 937978
Join by Telephone
For higher quality, dial a number based on your current location.
Dial: US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 768 3051
Password: 937978
Docket 8
Tentative Ruling:
Petition date: 6/3/2020
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
Debtor’s valuation of property (Sch. B): $19,693
8:30 AM
CONT...
Daniel Shea Klein
Chapter 7
Amount to be reaffirmed: $31,869.56 APR: 6.49% (fixed)
Contract terms: $531.91 per month for 71 months Monthly Income (Schedule I): $2,762.42
Monthly expenses: (Schedule J): $2,702.91 Disposable income: $59.51
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 he will make this payment. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until August 30, 2020, whichever is later.
Party Information
Debtor(s):
Daniel Shea Klein Represented By Daniel King
Trustee(s):
David Seror (TR) Pro Se
9:30 AM
1:15-14044
Ahmad Heidari and Nafiseh Alamdar Heidari
Chapter 13
#0.01 Motion for relief from stay
U.S. BANK TRUST NATONAL ASSOC. fr. 6/2/20; 6/24/20
Docket 117
*** VACATED *** REASON: Resolved per stipulation, ECF doc. 121 - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ahmad Heidari Represented By Steven A Alpert
Joint Debtor(s):
Nafiseh Alamdar Heidari Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-11904
Christa Franck Bretz
Chapter 13
#36.01 Motion for relief from stay
U.S. BANK TRUST NATIONAL ASSO. fr. 4/1/20, 5/20/20, 6/2/20
Docket 100
*** VACATED *** REASON: Resolved per Order, ECF doc. 110 - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Christa Franck Bretz Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:13-17737
Pella Parker
Chapter 13
#38.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 8/20/19, 10/22/19, 12/17/19; 1/28/20; 3/31/20
Docket 115
*** VACATED *** REASON: cont. to 10/27/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Pella Parker Represented By
Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15455
Sirous Salem
Chapter 13
#39.00 Trustee's Motion to Dismiss Case Due to Expiration of the Plan.
fr. 3/31/20
Docket 72
*** VACATED *** REASON: cont. to 9/22/20 @11am (eg) Tentative Ruling:
Debtor opposes and declares that he filed his 2008 to 2013 tax returns and is
working with the Franchise Tax Board. Debtor believes he will not owe taxes once the FTB receives and processes his tax returns. Debtor requests to continue.
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Sirous Salem Represented By
William J Smyth Stephen S Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15487
Verjineh Isagholian
Chapter 13
#40.00 Trustee's Motion to Dismiss Case due to Expiration of Plan
fr. 3/31/20
Docket 53
*** VACATED *** REASON: Trustee filed a w/drawal - Doc. #59. lf Tentative Ruling:
Party Information
Debtor(s):
Verjineh Isagholian Represented By Aris Artounians
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10822
Tracey Lynne Baumert
Chapter 13
#41.00 Trustee's Motion To Dismiss Case for Failure to Submit All Tax Refunds
fr. 3/31/20; 5/19/20; 6/23/20
Docket 125
*** VACATED *** REASON: Vol. Dismissed by Trustee on 6/25/20 (doc.148) - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Tracey Lynne Baumert Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11035
David W. McFarland
Chapter 13
#42.00 Trustee's Motion to Dismiss Case
Docket 77
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #81. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
David W. McFarland Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11162
Steven Sandler
Chapter 13
#43.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19; 1/28/20; 3/31/20
Docket 98
*** VACATED *** REASON: cont. to 9/22/20 @11am (eg) Tentative Ruling:
fr. 1/28/20
The last hearing was continued. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Steven Sandler Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12070
Bernice Holtz Hart
Chapter 13
#44.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20, 4/28/20
Docket 48
*** VACATED *** REASON: cont. to 12/15/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Bernice Holtz Hart Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10194
Heliodoro Navarro
Chapter 13
#45.00 Motion RE: Objection to Claim Number 7 by Claimant Internal Revenue Service
fr. 5/19/20; 6/23/20
Docket 98
*** VACATED *** REASON: continued to August 25, 2020 at 11:00 am per stip-rc
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Heliodoro Navarro Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11164
Bennie James Hildreth
Chapter 13
#46.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20
Docket 49
Tentative Ruling:
Debtor acknowledges falling behind on plan installments but explains that he can bring the plan current before the hearing. If Trustee has not dismissed the case before the hearing, Debtor requests to continue to give him the opportunity to bring plan installments current. TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Bennie James Hildreth Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12085
Arthur H. Song
Chapter 13
#47.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 10/22/19, 12/17/19; 1/28/20, 2/25/20; 3/30/20, 4/28/20
Docket 34
*** VACATED *** REASON: w/drawn filed 7/16/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Arthur H. Song Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12264
Alicia Butterfield
Chapter 13
#48.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20; 6/23/20
Docket 64
*** VACATED *** REASON: Converted to Ch. 7 on 7/13/20 (doc. 78) - hm Tentative Ruling:
Party Information
Debtor(s):
Alicia Butterfield Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12613
Susan Griffin
Chapter 13
#49.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 11/19/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20
Docket 50
*** VACATED *** REASON: cont. to 8/25/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Susan Griffin Represented By
Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12648
Fernando Benitez
Chapter 13
#50.00 Motion RE: Objection to Claim Number 4 by Claimant North American Savings Bank, F.S.B..
fr. 4/28/20, 5/19/20; 6/23/20
Docket 37
Tentative Ruling:
The Notice of Mortgage Payment Change seems to be resolved, but not the unnecessary charge for insurance or proper interest. When will NASB file an amended claim?
Party Information
Debtor(s):
Fernando Benitez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13055
Mark David Cave
Chapter 13
#51.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20; 3/31/20
Docket 107
*** VACATED *** REASON: cont. to 9/22/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mark David Cave Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13250
Robert Michael Martinez
Chapter 13
#52.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19, 2/25/20, 4/28/20
Docket 93
*** VACATED *** REASON: cont. to 9/22/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Robert Michael Martinez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13393
Carmen Avellanosa
Chapter 13
#53.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20
Docket 70
*** VACATED *** REASON: cont. to 8/25/20 @11am (eg) Tentative Ruling:
Debtor's Motion to Modify or Suspend Plan Payments (doc. 77) was granted
on July 10, 2020 (doc. 80). Does the Order Granting the MOMOD resolve this Motion to Dismiss?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Carmen Avellanosa Represented By
D Justin Harelik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10021
Nelson Humberto Pinto
Chapter 13
#54.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 1/28/20; 3/31/20
Docket 105
Tentative Ruling:
Appearance required unless trustee stipulates to continue to work things out.
Party Information
Debtor(s):
Nelson Humberto Pinto Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10297
Felix Ray Wright
Chapter 13
#55.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 12/17/19, 2/25/20,4/28/20
Docket 145
*** VACATED *** REASON: cont. to 9/22/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Felix Ray Wright Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11380
Maria Magdalena Carmona
Chapter 13
#56.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 2/25/20; 3/31/20
Docket 78
*** VACATED *** REASON: Ntc. of w/drawal filed 7/15/20 (eg) Tentative Ruling:
fr. 2/25/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Maria Magdalena Carmona Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11387
Haroutiun Papazian
Chapter 13
#57.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 1/28/20; 3/31/20; 5/19/20
Docket 50
*** VACATED *** REASON: cont. to 8/25/20 @11am (eg) Tentative Ruling:
fr. 1/28/20; 3/31/20
TELEPHONIC APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Haroutiun Papazian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#58.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 7/30/19, 9/24/19, 11/19/19, 12/17/19, 2/25/20, 4/28/20
Docket 50
Tentative Ruling:
Bank of America and debtor were exploring a loan modification. What is the status?
Party Information
Debtor(s):
Linda Akerele Alele Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11732
Anthony Antoniello and Tamara Marie Antoniello
Chapter 13
#59.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 12/17/19, 2/25/20, 4/28/20
Docket 93
Tentative Ruling:
Appearance required unless trustee stipulates to continuance
Party Information
Debtor(s):
Anthony Antoniello Represented By Kevin T Simon
Joint Debtor(s):
Tamara Marie Antoniello 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
1:17-11804
Eduardo N Trillo, Jr. and Maritess Biglangawa Trillo
Chapter 13
#60.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20; 3/31/20, 4/28/20; 6/23/20
Docket 58
*** VACATED *** REASON: cont. to 8/25/20 @11am (eg) Tentative Ruling:
Does the Order granting MOMOD (doc. 70), suspending 9.3 payments,
resolve this motion?
TELEPHONIC appearance required, unless Trustee stipulates to continue.
Party Information
Debtor(s):
Eduardo N Trillo Jr. Represented By Elena Steers
Joint Debtor(s):
Maritess Biglangawa Trillo Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13047
Brenda Leigh Worden-Jones
Chapter 13
#61.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 3/31/20
Docket 31
*** VACATED *** REASON: w/drawn filed (eg) Tentative Ruling:
Party Information
Debtor(s):
Brenda Leigh Worden-Jones Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13196
Isaac Nessim Azoulay
Chapter 13
#62.00 Motion under Local Bankruptcy Rule 3015-1 (n) and (w) to modify plan or suspend plan payments
fr. 4/28/20
Docket 64
Tentative Ruling:
Appearance required unless Trustee stipulates to continue
Party Information
Debtor(s):
Isaac Nessim Azoulay Represented By Steven L Bryson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#63.00 Motion under Local Bankruptcy Rule 3015-1 (n) and (w) to modify plan or suspend plan payments
fr. 12/17/19; 1/28/20, 2/25/20, 4/28/20
Docket 89
*** VACATED *** REASON: cont. to 9/22/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#64.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20, 2/25/20, 4/28/20
Docket 85
*** VACATED *** REASON: cont. to 9/22/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11512
Donna Mapile
Chapter 13
#65.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All
Tax Refunds
fr. 12/17/19; 1/28/20, 2/25/20
Docket 33
*** VACATED *** REASON: Ntc. of w/d filed 7/9/20 (eg) Tentative Ruling:
Cont’d. fr. 1.28.2020
The 1.28.2020 hearing was continued. APPEARANCE REQUIRED unless Trustee stipulates to continue.
Party Information
Debtor(s):
Donna Mapile Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11703
Fredy A. Caballero
Chapter 13
#66.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 4/28/20
Docket 53
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #65. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Fredy A. Caballero Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11806
Maria Heredia
Chapter 13
#67.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20
Docket 63
Tentative Ruling:
Appearance required unless Trustee stipulates to continue
Party Information
Debtor(s):
Maria Heredia Represented By Erika Luna
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11944
Sara Hinojosa and Jesus Hinojosa
Chapter 13
#68.00 Motion RE: Objection to Claim Number 10 by Claimant LVNV Funding, LLC.
Docket 45
*** VACATED *** REASON: Withdrawal filed - Doc. #48. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Sara Hinojosa Represented By
R Grace Rodriguez
Joint Debtor(s):
Jesus Hinojosa Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12016
Gregory Bernard Walker and Brenda Yvonne Walker
Chapter 13
#69.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 6/25/19, 7/30/19; 8/20/19, 10/22/19, 12/17/19, 2/25/20 3/31/20
Docket 60
*** VACATED *** REASON: Withdrawal filed by the Trustee - Doc. #78. lf
Tentative Ruling:
Appearance required unless Trustee stipulates to continue
Party Information
Debtor(s):
Gregory Bernard Walker Represented By Thomas B Ure
Joint Debtor(s):
Brenda Yvonne Walker Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12737
Craig A. Lapiner
Chapter 13
#70.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 3/31/20
Docket 89
*** VACATED *** REASON: cont. to 10/27/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Craig A. Lapiner Represented By Eliza Ghanooni
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-13035
Rolando M Rodriguez
Chapter 13
#71.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20;3/31/20
Docket 34
Tentative Ruling:
Appearance required unless Trustee stipulates to continue
Party Information
Debtor(s):
Rolando M Rodriguez Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10003
Edwin E. Vidanez
Chapter 13
#72.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20; 3/31/20
Docket 25
*** VACATED *** REASON: cont. to 9/22/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Edwin E. Vidanez Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10789
Carmen Ivy Garcia-Torres
Chapter 13
#73.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20, 4/28/20; 6/23/20
Docket 47
*** VACATED *** REASON: cont. to 9/22/20 @11am (eg) Tentative Ruling:
On July 8, 2020, the Court entered an Order Granting Motion to Modify or
Suspend Plan Payments (ECF doc. 68). Does the MOMOD Order resolve this Motion?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Carmen Ivy Garcia-Torres Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10789
Carmen Ivy Garcia-Torres
Chapter 13
#74.00 Motion under Local Bankruptcy Rule 3015-1
(n) and (w) to modify plan or suspend plan payments
fr. 6/23/20
Docket 61
*** VACATED *** REASON: Order Granting Motion to Modify entered 7/8/2020 (doc. 68) - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Carmen Ivy Garcia-Torres Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10861
Tonya Latrice Gould
Chapter 13
#75.00 Motion RE: Objection to Claim Number 11 by Claimant Montana Bail Bond Inc.
fr. 5/19/20
Docket 54
Tentative Ruling:
On November 11, 2008, Montana Bail Bonds, Inc. ("Creditor" or "Montana") posted a bond in the amount of $315,000.00 for Rodney Jackson, son of Tonya Latrice Gould ("Debtor"). Debtor alleges that the bond agreement called for a flat rate fee premium of $31,500.00 and that Creditor told Debtor that there would be no interest. The bail bond agreement submitted by Creditor, however, specifies that Debtor is to pay Creditor $31,500 per annum for the bond. Claim 11-1, p. 5. The Indemnitor Checklist portion of the agreement shows that Debtor acknowledged her responsibility to pay the amount of the bail premium every year, in advance hereafter, until the surety is legally discharged from all liability on the bonds posted. Id., p. 6.
Debtor was charged $31,500 for the 1st year in November 12, 2008, $31,500 for the second year in November 12, 2009 for the renewal of the premium, and
$31,500 for the third year in November 12, 2010 for renewal of the premium. Creditor also charged Debtor a number of fees listed in Creditor’s claim itemization.
On January 25, 2011, Creditor surrendered the bond at the Debtor’s son’s court date. On the same date, the bond was exonerated by the Los Angeles Superior Court. Objection to Claim, Ex. 2.
On April 11, 2019, Debtor filed a bankruptcy petition under chapter 13. On June 20, 2019, Creditor filed Claim 11-1, a secured claim in the amount of $93,872.16 for Breach of Bail Bond Agreement. To its Proof of Claim, Creditor attached the Bail Bond Application, the Bail Agreement, an Indemnitor/Guarantor Checklist, a Deed of Trust, an Itemization of the balance owed after credit provided, and a Mortgage Proof of Claim form. Claim 11-1, pp. 4-10.
11:00 AM
CONT...
Tonya Latrice Gould
Claim 12-1, separately filed by the Indiana Lumbermens Mutual Insurance
Chapter 13
Company ("Indiana"), is a related claim seeking repayment for the same debt as Claim 11-1. While the two claims are identical in amount, the claims are based on separate agreements. Claim 11-1 arises out of debt caused by Debtor’s alleged breach of the Bail Bond Agreement, whereas Claim 12-1 is Indiana’s attempt, as surety to the Bail Agreement, to seek repayment for breach of the Deed of Trust’s provision in Debtor’s failure to pay the fees incurred by Montana. Supplemental Opp’n, pp. 4-5.
Standard
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. LR 3007-1.
Per 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. In re Heath, 331 B.R. at 435, 437-38. 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. Under In re Campbell, 336 B.R. 430 (B.A.P. 9th Cir. 2005), 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.
"The court, after notice and a hearing, shall determine the amount of such claim… as of the date of the filing of the petition, and shall allow such claim, except to the extent that – (1) such claim is unenforceable against debtor and the property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unliquidated." 11 U.S.C. §502(b).
11:00 AM
CONT...
Tonya Latrice Gould
Chapter 13
An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP §3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR §3007-1(c).
Should objection be taken, the objector is then called upon to produce evidence and show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves. But the ultimate burden of persuasion is always on the claimant. Thus, it may be said that the proof of claim is some evidence as to its validity and amount. It is strong enough to carry over a mere formal objection without more. 3 L. King, Collier on Bankruptcy § 502.02, at 502–22 (15th ed. 1991).
California Code of Regulations §2090 Surrender of Arrestee to Custody; Return of Premiums
Debtor objects to Creditor’s claim principally on grounds that the amount due stated in Creditor’s Proof of Claim is erroneous. 11 U.S.C. §502(b)(1). Debtor argues that Creditor’s claim has already been paid in full, but for the Creditor’s inclusion of fees, refundable premiums, and other charges that were not authorized by Debtor and that are not permitted by law.
Debtor argues that Creditor was required to return all premium paid for the bond, because the Creditor surrendered the arrestee to custody prior to the time specified in the undertaking of the bail bond for the appearance of the arrestee. Debtor relies on California Code of Regulations §2090, which states in pertinent part:
"No bail licensee shall surrender an arrestee to custody prior to the time specified in the undertaking of bail or the bail bond for the appearance of the arrestee, or prior to any other occasion when the presence of the arrestee in court is lawfully required, without returning all premium paid for such undertaking or bond; except that when as the result of judicial action, information concealed or misrepresented by the arrestee or other reasonable cause, any one of which was material to the hazard
11:00 AM
CONT...
Tonya Latrice Gould
assumed, and the licensee can show that the hazard was substantially increased, then the bail licensee may retain incurred out of pocket expenses permitted to be charged by Section 2081 (c) and (d)." [emphasis added]
Chapter 13
10 CCR §2090 Surrender of Arrestee to Custody; Return of Premiums
Debtor’s argument oversimplifies the statute. Debtor seems to argue that returning the arrestee to custody automatically entitles Debtor to a refund of premiums. Section 2090 is not a vehicle through which payors of bail bond premiums can have their payments returned simply because the arrestee has been returned to custody. The legislative purpose behind this provision is to temper a bonding company's virtually unlimited power to surrender a defendant by providing a remedy for the potential abuse of that power. People v. Smith, (1986) 182 Cal.App.3d 1212, 1216-1217. The determination of refundability always rests on whether there had been such abuse of power, devoid of good cause.
Even assuming that Debtor premised her argument on an allegation that Creditor’s Jan 25, 2011 surrender of the arrestee was without good cause, Debtor’s argument is still unsupported by evidence. When a defendant has been surrendered, the court shall advise the defendant of the authority of the court, as provided in § 1300(b) of the Penal Code, to order the return of the premium paid by the defendant or other person, or any part of it. Penal Code §1300(a)(3). §1300(b) provides "…if the court determines that good cause does not exist for the surrender of a defendant, it may, in its discretion, order the bail or the depositor to return to the defendant or other person who has paid the premium or any part of it, all of the money so paid or any part of it." Penal Code §1300(b).
Creditor points out that the authority in §1300 for the court to consider return of the premium applies only where the surety has surrendered the defendant to custody without good cause. Penal Code §1300 does not explicitly define good cause, other than as failure to appear or violation of a court order. A trial court, however, may exercise broad discretion in finding good cause for a defendant’s surrender. Section 1300 does not limit a determination of good cause to an inquiry of whether a defendant has appeared in, and complied with, the orders of the particular department or division of the court in which the defendant was surrendered. Further, under the
11:00 AM
CONT...
Tonya Latrice Gould
Chapter 13
statute, failure to appear and noncompliance with a court order are not the sole events which may give rise to good cause for surrender. Absent those violations, other circumstances may also trigger good cause. People v. Smith, 182 Cal.App.3d at 1222.
Debtor’s objection includes a letter from the Department of Insurance advising Debtor of the refundability rules of California Code of Regulations §2090. Objection to Claim, Ex. 2. Debtor appears to rely on this document to allude that that Creditor’s surrender was without good cause. Debtor, however, has not provided evidence with regard to whether the Superior Court ordered the return of premium. In fact, neither party has provided evidence to clarify the matter. Under Penal Code §1300(a)(3), the Superior Court would have ordered a return had it found an absence of good cause. A significant question of fact remains, then, as to whether Creditor surrendered the arrestee to custody with or without good cause. All questions of premium refundability and objection to claim rest on this central query. Without evidence, such as an order from the Superior Court, the merits of this objection cannot be resolved.
Amount of the Claim
Debtor argues that "the bond agreement called for a flat rate fee premium of
$31,500.00 and Debtor was told by Montana that there would be no interest added to the total because the law only allows them to charge 10% of the bond total. Debtor also contends that on October 27, 2010, Creditor added a $31,500.00 renewal charge, which was not agreed to.
Creditor argues that bail is an insurance contract with a premium covering a particular period, that all charges were warranted pursuant to the bail agreement acknowledged and signed by the parties. Proof of Claim, pp. 5-6. Debtor was charged
$31,500 for the 1st year in November 12, 2008, $31,500 for the second year in November 12, 2009 for the renewal of the premium, and $31,500 for the third year in November 12, 2010 for renewal of the premium. Id. Creditor notes that courts have recognized that insurance premiums are paid for a certain period of coverage and are fully earned when that coverage period has elapsed. Generally, insurance premiums are required to be paid at the beginning of the coverage period. Installment plans for insurance premiums are like a loan. Mary Ruth Escobedo v. Estate of Danny G. Snider, 60 Cal. Rptr. 2d 722; In re Insurance Installment Fee Cases, (2012) 211 Cal. App. 5th 1395; Interinsurance Exchange of the Automobile Club v. Superior Court,
11:00 AM
CONT...
Tonya Latrice Gould
Chapter 13
(2007) 148 Cal. App. 4th 1218.
Creditor notes that its claim includes Debtor’s signed acknowledgements in the Indemnitor/Guarantor Checklist, a portion of the Bail Agreement. Debtor’s signature is in fact printed beside paragraphs stipulating to Creditor’s terms, acknowledging that "…Finance charges are compounded on unpaid balanced on the 30th day of each month at a rate of ten percent per annum…" and that Debtor is "required to pay the amount of the bail premium every year, in advance hereafter, until the surety is legally discharged from all liability on the bonds posted." Claim 11-1, p.
6. The checklist also provides for a 1% late fee on all scheduled payments not received within five days of the due date. It is unclear on what evidence Debtor’s objection may be based.
The parties should be prepared to discuss whether further briefing or an evidentiary hearing is required on the issues of (1) the circumstances of the surrender of Debtor’s son; and (2) whether the amount of the Claim is appropriately calculated.
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Tonya Latrice Gould Represented By Kahlil J McAlpin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10861
Tonya Latrice Gould
Chapter 13
#76.00 Motion RE: Objection to Claim Number 12 by Claimant Indiana Lumermens Mutual Insurance Company.
fr. 5/19/20
Docket 55
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
See Tentative Ruling for cal. no. 75
Party Information
Debtor(s):
Tonya Latrice Gould Represented By Kahlil J McAlpin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11301
Robert Benjamin Sautter
Chapter 13
#77.00 Motion for Order Determining Value of Collateral [11 U.S.C. § 506(a), FRBP 3012]: 3859 Sherwood
Place, Sherman Oaks, CA 91423
fr. 7/30/19, 9/24/19; 11/19/19; 1/28/20; 3/10/20; 3/31/20; 5/19/20
Docket 18
*** VACATED *** REASON: Resolved per Stipulation (ECF doc. 64 & 66)
- hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Robert Benjamin Sautter Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11916
Ada E Renderos Velasquez
Chapter 13
#78.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 4/28/20
Docket 31
*** VACATED *** REASON: cont. to 10/27/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ada E Renderos Velasquez Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12112
Deborah Rose Sanders
Chapter 13
#79.00 Motion to Avoid JUNIOR LIEN with PNC Bank, National Association fr. 11/19/19; 1/28/20; 3/31/20, 4/28/20
Docket 29
*** VACATED *** REASON: Ntc. of w/drawaal of Motion filed 6/4/20 (eg) Tentative Ruling:
fr. 3/31/20
PNC Bank filed an amended supplemental opposition ("Supplemental Opposition"). PNC Bank explains that its certified interior appraisal values the Property at $355,000 (Supplemental Opposition Ex. 1, 2) and that the first lien is only $184,616.82 (Claim #16-1).
In contrast, Debtor’s September 25, 2019 certified appraisal only values the Property at $180,000, which is a $175,000 difference from PNC Bank’s appraisal.
Would the parties be willing to stipulate to a schedule of filing written critiques of the other side’s appraisal report in lieu of an evidentiary hearing? The court would be willing to have argument either in written form or telephonically following the submission of both appraisals and both critiques. TELEPHONIC APEARANCE REQUIRED.
Party Information
Debtor(s):
Deborah Rose Sanders Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12138
Bruno Alain Rosenthal
Chapter 13
#80.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 4/28/20
Docket 33
*** VACATED *** REASON: cont. to 9/22/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Bruno Alain Rosenthal Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12207
Sahin Sultana
Chapter 13
#81.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 3/31/20
Docket 43
Tentative Ruling:
Appearance required unless trustee stipulates to continue
Party Information
Debtor(s):
Sahin Sultana Represented By Allan S Williams
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#82.00 Application for Compensation for Michael F Chekian, Debtor's Attorney, Period: 1/7/2020 to 5/20/2020, Fee: $6,525.00, Expenses: $145.65.
Docket 72
Tentative Ruling:
Service proper. Having reviewed the Application for Compensation and Reimbursement of Costs, the objection filed by the M. Buchman/ M. Pearcy parties, and Debtor’s counsel’s reply, the Court finds that the fees and costs are reasonable for litigating two claim objections and two motions to compel, given that the skill involved in resolving these issues involve crossover issues of bankruptcy and family law. It is proper to allow an administrative expense claim to be paid before unsecured claims. See 11 U.S.C. §§ 503(b)(2); 507(a)(2). The Application is approved as requested.
APPLICANT TO LODGE ORDER WITHIN 7 DAYS. TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#83.00 Motion To Compel Atlantic Recording Corporation dba Warner Music Group To Remit Pre-Petition and Post-Petition Earned Royalties To Debtor
fr. 6/23/20
Docket 49
*** VACATED *** REASON: Cont'd to 8/25/20 at 11:00 a.m. (ECF doc. 91)- hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#84.00 Motion To Compel Broadcast Music, Inc. To Remit Pre-Petition and Post-Petition Earned Royalties To Debtor
fr. 6/23/20
Docket 48
*** VACATED *** REASON: Cont'd to 8/25/20 at 11:00 a.m. (ECF doc. 92)- hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#85.00 Motion RE: Objection to Claim Number 5 by Claimant Melissa M. Buchman
fr. 6/23/20
Docket 50
*** VACATED *** REASON: Cont'd to 8/25/20 at 11 a.m. - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#86.00 Motion RE: Objection to Claim Number 7 by Claimant Melissa Pearcy
fr. 6/23/20
Docket 56
*** VACATED *** REASON: Cont'd to 8/25/20 at 11 a.m. - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#87.00 Motion RE: Objection to Claim Number 10
by Claimant Department of the Treasury/Internal Revenue Service.
fr. 6/23/20
Docket 61
*** VACATED *** REASON: Ntc. of w/d filed 5/28/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10480
Eliachar Elliott Mamann
Chapter 13
#88.00 Trustee's Objection to Homestead Exemption fr. 6/23/20
Docket 15
Tentative Ruling:
Trustee opposes Debtor's attempt to exempt 100% of the fair market value in two checking accounts, $20,005.29 under C.C.P. 704.070 and $6,950 under
C.C.P. 704.080 because Debtor has not provided evidence that the funds are exempt under these sections.
Trustee also opposes Debtor's attempt to exempt $170,000 in in a private retirement account under C.C.P. 704.115(a)(1) and (a)(2) because Debtor has not provided evidence that the funds are exempt under these sections.
In response, Debtor explained that he amended his Schedule C to remove the exemption under 704.070 in the two checking accounts. Debtor contends, however, that he has submitted bank statements to show that his monthly Social Security income is deposited into one of the accounts and the funds therein are exempt under 704.080.
Debtor also argues that his Private Retirement Trust is exempt pursuant to
C.C.P. § 704.115(a)(1) & (2) and (b). Debtor contends that the exemption does not require that the Private Retirement Trust be ERISA qualified. Debtor explains that he is employed through his business, Apex Window Treatments, which is sole proprietorship. Through that sole proprietorship, Debtor created a Private Retirement Plan as allowed under C.C.P. §704.115(a)(1). The assets of that plan consist of an annuity which is payable on account of the age of Debtor. Debtor explains that the plan was created for retirement purposes, as Debtor is 71 years old and his only retirement assets are social security of $585 per month and the Private Retirement Trust. Debtor argues that the Private Retirement Trust is exempt because it was created by the employer, in this case a sole proprietorship, for the benefit of the Debtor. DeMassa v. McIntyre (In re McIntyre), 74 F.3d 186 (9th Cir. 1996); Salameh
11:00 AM
CONT...
Eliachar Elliott Mamann
Chapter 13
v. Tarsadia Hotel, 2015 US Dist. Lexis 14008 (S.D. Cal. 2015). Debtor maintains that under 704.115(a)(1), the entire plan is exempt if the criteria for self-employed plans is applied because the plan is exempt to the extent that it is reasonably necessary for Debtor’s support. It is Debtor's position that the entire amount is necessary for his support. The only asset of the plan is an annuity which is payable on account of the age of the Debtor and therefore the annuity would be independently exempt under 704.100.
Does the evidence provided by Debtor in support of his response resolve Trustee's Objection?
TELEPHONIC APPEARANCE REQUIRED, unless Trustee and the parties stipulate otherwise
Party Information
Debtor(s):
Eliachar Elliott Mamann Represented By William E. Winfield
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10626
Jose Barrios
Chapter 13
#89.00 Motion to Avoid Lien Junior Lien with Deutsche Bank National Trust Company, as certificate trusteee on behalf of Bosco Credit II Trust Series 2010-1
Docket 31
*** VACATED *** REASON: Resolved per Stipulation re Motion to Avoid Lien on Principal Residence (ECF doc. 36) - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jose Barrios Represented By
Jaime A Cuevas Jr.
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-13236
Francisco Montes and Elizabeth F Montes
Chapter 13
#1.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION
fr. 6/10/20
Docket 91
*** VACATED *** REASON: Resolved per APO (doc. 94)-rc Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Francisco Montes Represented By Elena Steers
Joint Debtor(s):
Elizabeth F Montes Represented By Elena Steers
Movant(s):
US Bank National Association Represented By Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11159
Levia Blane Arbuckle
Chapter 13
#2.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST
fr. 5/13/20; 6/24/20
Docket 132
*** VACATED *** REASON: Resolved per APO (doc. 154) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Levia Blane Arbuckle Represented By Kevin T Simon
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry Keith Labell Eric P Enciso
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11995
Priscilla Jeanette Bueno
Chapter 13
#3.00 Motion for relief from stay
NATIONSTAR MORTGAGE LLC DBA MR. COOPER
fr. 6/24/20
Docket 64
*** VACATED *** REASON: Withdrawal was filed - doc. #70. lf Tentative Ruling:
Party Information
Debtor(s):
Priscilla Jeanette Bueno Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11080
Rafael Huerta
Chapter 13
#4.00 Motion for relief from stay BAYVIEW LOAN SERVICING, LLC
fr. 5/20/20, 6/2/20
Docket 39
*** VACATED *** REASON: Parties have stipulated to APO (doc. 44)-rc Tentative Ruling:
Party Information
Debtor(s):
Rafael Huerta Represented By William G Cort
Movant(s):
Bayview Loan Servicing, LLC Represented By Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10566
Demetrio Camacho and Rosario Lua
Chapter 13
#5.00 Motion for relief from stay.
DEUTSCHE BANK NATIONAL TRUST CO
Docket 42
Tentative Ruling:
Petition Date: 3/11/19 Ch.13; confirmed on 8/15/19
Service: Proper. Co-Debtor served. No opposition filed. Property: 13682 Judd Street, Pocoima, CA 91331 Property Value: $ 546,000 (per debtor’s schedules) Amount Owed: $ 328,556.80
Equity Cushion: 40.0% Equity: $217,443.2.
Post-Petition Delinquency: $9,076.33 (3 payments of $1,587.44 + 1 payment of
$2,760.01)
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). Movant alleges that the last payment of $1,578.44 was received on or about 2/25/20.
There appears to be sufficient equity to protect Movant's claim & a small delinquency. Have the parties discussed whether this delinquency can be cured via APO?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Demetrio Camacho Represented By Kevin Tang
10:00 AM
CONT...
Demetrio Camacho and Rosario Lua
Chapter 13
Joint Debtor(s):
Rosario Lua Represented By
Kevin Tang
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Erin Elam
Christopher Giacinto
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10781
Daniel Correa
Chapter 13
#6.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST COMPANY
fr. 6/24/20
Docket 36
Tentative Ruling:
Continued from 6/24/20
This hearing was continued from 6/24/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Daniel Correa Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11165
Mercedes R. Morales
Chapter 13
#7.00 Motion for relief from stay
WILMINGTON SAVINGS FUND SOCIETY FSB CHRISTIANA TRUST
Docket 39
Tentative Ruling:
Petition Date: 05/10/2019
Ch. 13, confirmed on 01/02/2020 Service: Proper. No opposition filed.
Property: 15117 Oro Grand St. Sylmar, CA 91342 Property Value: $536,000
Amount Owed: $409,330.08 Equity Cushion: 24% Equity: $126,669.92
Post-Petition Delinquency: $8,228.63 (3 payments of $3,572.23 + $1,031.00 in attorney’s fees less suspense account or partially paid balance of
$3,519.06)
Movant alleges that postpetition mortgage payments due on the note secured by a deed of trust on the Property have not been made to Movant.
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).
There appears to be sufficient equity to protect Movant's claim & a small delinquency. Have the parties discussed whether this delinquency can be cured via APO?
TELEPHONIC APPEARANCE REQUIRED
Party Information
10:00 AM
CONT...
Debtor(s):
Mercedes R. Morales
Chapter 13
Mercedes R. Morales Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12276
Irma Kaarina Hiltunen
Chapter 13
#8.00 Motion for relief from stay
WILMINGTON SAVINGS FUND sOCIETY
fr. 6/3/20 (moved), 6/2/20
Docket 32
Tentative Ruling:
Continued from 6/2/20
This hearing was continued from 6/2/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Irma Kaarina Hiltunen Represented By William G Cort
Movant(s):
WILMINGTON SAVINGS FUND Represented By
Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10089
Carlos Ricardo Fernandez and Evelyn Mansilla Fernandez
Chapter 7
#9.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON TRUST CO.
Docket 51
Tentative Ruling:
Petition Date: 01/14/2020
Ch 13 filed; converted to ch. 7 on 01/29/20 Service: Proper. No opposition filed.
Property: 18622 Brasilia Drive, Porter Ranch, CA 91326 Property Value: $755,438.00
Amount Owed: $747,103.09 + ($7,048.26 to junior lienholder) Equity Cushion: 1.10% ($8,334.91)
Equity: $1,286.65
Post-Petition Delinquency: n/a
GRANT under 11 U.S.C. 362(d)(1) and 362(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)
stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
Debtor(s):
Carlos Ricardo Fernandez Represented By Richard Grossman
Joint Debtor(s):
Evelyn Mansilla Fernandez Represented By Richard Grossman
10:00 AM
CONT...
Trustee(s):
Carlos Ricardo Fernandez and Evelyn Mansilla Fernandez
Chapter 7
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:20-10322
Jorge Andrade
Chapter 13
#10.00 Motion for relief from stay CAPITAL ONE AUTO FINANCE
Docket 47
Tentative Ruling:
Petition Date: 02/11/2020
Ch. 13; converted to ch. 7 on 03/10/2020 Service: Proper. No opposition filed.
Property: 2015 Nissan Sentra S Sedan 4D Property Value: $5,000
Amount Owed: $8,116.63 Equity Cushion: n/a Equity: n/a
Post-Petition Delinquency: $1,563.52 (4 payments of $390.88)
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.
Party Information
Debtor(s):
Jorge Andrade Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10953
Juan M Gonzalez
Chapter 13
#11.00 Motion for relief from stay
ROKIN'IT LLC THE ENTRUST GROUP, INC. FBO HAROLD WAITE
Docket 20
Tentative Ruling:
Petition Date: 05/22/2020 Ch. 13
Service: Proper. No opposition filed.
Property: 42653 Sierra Highway, Lancaster, CA 93535 Property Value: $874,686.00
Amount Owed: $1,195,144.30 Equity Cushion: n/a
Equity: n/a
Post-Petition Delinquency: $19,583.33 (1 payment)
Movant requests §362(d)(4) relief and alleges that Debtor’s filing of the bankruptcy petition was part of a scheme to delay, hinder, or defraud creditors that involved the transfer of all or part ownership of, or other interest in, the Property without the consent of Movant or court approval.
Specifically, Movant alleges Debtor claims an interest in the property apparently as the managing member of the entity owner and Borrower, Four Seasons International Group, LLC. Movant alleges that Debtor does not have any actual ownership interest in the property, and that while Debtor identifies the property as an asset of the estate in Schedule A, Debtor does not identify Movant’s loan in his schedules.
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
10:00 AM
CONT...
Juan M Gonzalez
Chapter 13
under 362(d)(4)), noting that the Court cannot make a finding that Debtor was involved in the alleged scheme.
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.
Party Information
Debtor(s):
Juan M Gonzalez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10322
Louis Vargas
Chapter 13
#11.01 Motion for relief from stay LORI MINTZER
fr. 6/10/20; 7/1/20
Docket 61
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Louis Vargas Represented By
Michael Jay Berger
Movant(s):
Lori Mintzer Represented By
Elsa M Horowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12735
Reynaldo Rene Vizcarra
Chapter 7
Adv#: 1:20-01024 Infinity Capital Funding, LLC v. Vizcarra
#12.00 Status Conference Re: Complaint to Determine Dischargeability of a Debt under 11 U.S.C. Sec. 523(a)(2) and 523(a)(6)
fr. 4/15/20
Docket 1
Tentative Ruling:
This initial status conference was continued from 4/15/20 so that the Sheriff can sell the four properties at issue. Nothing has been filed by the Attorneys. On 7/13/20, the Trustee abandoned the estate's interest in the four properties pursuant to Section 544(a). What is the status of this hearing?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Reynaldo Rene Vizcarra Represented By David R Hagen
Defendant(s):
Reynaldo Rene Vizcarra Pro Se
Plaintiff(s):
Infinity Capital Funding, LLC Represented By Diane C Stanfield
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
Adv#: 1:19-01086 Walters et al v. K&A Global Management Company, a California corpor
#13.00 Status Conference for Declaratory Relief fr. 9/18/19, 11/6/19, 2/5/20, 5/6/20
Docket 1
Tentative Ruling:
In light of the status report, this is continued to October 7, 2020 at 11 am
NO APPEARANCE REQUIRED
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
Defendant(s):
K&A Global Management Pro Se
Plaintiff(s):
James Walters Represented By Amman A Khan
Kellogg & Andelson Accountancy, Represented By
Amman A Khan
11:00 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
#14.00 Post-Confirmation Status Conference
fr. 1/12/17, 8/16/17, 11/1/17, 10/25/17, 12/13/17, 3/21/18, 1/30/19, 2/6/19, 11/6/19, 2/5/20, 5/6/20
Docket 16
Tentative Ruling:
Having reviewed the Status Conference Report filed on 7/15/20, the Court finds good cause to continue this status conference to October 7, 2020 at 11:00 AM. Debtor to give notice of continued status conference.
NO APPEARANCE REQUIRED ON 7/22/20
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
9:30 AM
1:18-13040
Eric Rodriguez
Chapter 7
Adv#: 1:19-01015 Gamm et al v. Rodriguez
#1.00 Trial - Telephonic Re: Amended Complaint to Determine Debts to be Non-Dischargeable Pursuant to Section 523(a) of the Bankruptcy Code.
fr. 7/31/19; 2/19/20; 4/29/20
Docket 11
Matter Notes:
NONE LISTED -
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Eric Rodriguez Represented By Elena Steers
Defendant(s):
Eric Rodriguez Represented By David Brian Lally
Plaintiff(s):
Veronica Gamm Represented By Frank E Marchetti
Marina Noorali Represented By Frank E Marchetti
Fredy Harrison Represented By Frank E Marchetti
9:30 AM
CONT...
Trustee(s):
Eric Rodriguez
Chapter 7
Amy L Goldman (TR) Pro Se
9:30 AM
1:18-13040
Eric Rodriguez
Chapter 7
Adv#: 1:19-01015 Gamm et al v. Rodriguez
#2.00 Order To Show Cause why this Adversary Should not be Dismissed Under
LBR-7041-1(a)
Docket 31
Matter Notes:
NONE LISTED -
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Eric Rodriguez Represented By Elena Steers David Brian Lally
Defendant(s):
Eric Rodriguez Pro Se
Plaintiff(s):
Veronica Gamm Represented By Frank E Marchetti
Marina Noorali Represented By Frank E Marchetti
Fredy Harrison Represented By Frank E Marchetti
Trustee(s):
Amy L Goldman (TR) Pro Se
4:00 PM
1:00-00000 Chapter
#2.01 The 4:00 p.m. calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1610233230
Meeting ID: 161 023 3230 Password: 1J?YZm
Telephone Conference Lines: 1 (669) 254-5252 or 1 (646) 828-7666
Meeting ID: 161 023 3230
Password: 756973
Docket 0
Matter Notes:
NONE LISTED -
4:00 PM
CONT... Chapter
Tentative Ruling:
NONE LISTED -
4:00 PM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#3.00 Tentative By Zoom
Status Conference RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19,3/11/20; 5/13/20; 7/17/20
Docket 21
Matter Notes:
NONE LISTED -
Tentative Ruling:
This status conference was continued from 7/17/20 so that the parties could work out discovery issues. The parties have not filed anything since the last hearing. What is the status?
ZoomGov APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
4:00 PM
CONT...
Movant(s):
Hawkeye Entertainment, LLC
Chapter 11
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
4:00 PM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#4.00 By Zoom
Case Management Conference fr. 3/11/20; 5/13/20, 7/17/20
Docket 0
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:00 AM
1:20-11203
Irene J. Goytia
Chapter 13
#1.00 This matter will be heard by Judge Mund.
Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate 6751 Radford Ave, North Hollywood, CA 91606 .
Docket 18
Tentative Ruling:
On July 8, 2020, Debtor filed this Chapter 13 case. Debtor has one previous bankruptcy case: the Chapter 13 case, 19-12724, was filed on October 29, 2019 and dismissed on November 26, 2019 for failure to file schedules.
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 filed a pro se bankruptcy petition and was unable to complete her schedules without the assistance of an attorney. Debtor claims that the presumption of bad faith is overcome as to all creditors per Section 362(c)(3)(C)
(i) because Debtor has retained counsel to assist her. Debtor also argues that there has been a substantial change in her financial affairs and provides a Declaration from her daughter-in-law that she will contribute $1,150.00 each month to the debtor.
U.S. Bank, a secured creditor holding a lien encumbering Debtor’s real property located at 6747 Radford Avenue, North Hollywood CA, opposes the motion, asserting that Debtor does not generate sufficient income to make the mortgage payment.
Proposed Ruling
Debtor has filed all schedules in a timely manner and has an attorney. There is only one creditor, which holds a first lien on the house. There appears to be substantial equity beyond the lien to protect the creditor if Debtor fails to make the required payments in Chapter 13.
10:00 AM
CONT...
Irene J. Goytia
The Creditor argues that the Debtor (Irene Goytia) was not the original
Chapter 13
borrower. But in this case she is the owner as the beneficiary of her deceased husband, who was the original borrower.
As to the ability to make payments, she will have a total monthly income of
$3,370 (her social security and pension as well as a $1,150 family contribution). With this she should be able to fund a plan.
This case does not have any of the indications of bad faith or of an abuse of the bankruptcy system. There were some 7 months between the dismissal of the prior case and the filing of this one. The Debtor came to title through inheritance and not a voluntary transfer. The contribution will be by the daughter-in-law, who appears to live next door, is gainfully employed, and presumably has every incentive to retain the property for her mother-in-law and that it will ultimately be inherited by the family.
In this bankruptcy case, Debtor has listed a different social security number from what was used in her last bankruptcy case. What is the proper social security number?
Grant the motion to impose the stay on all creditors until further order of the
court.
The hearing will be by phone through Court Call. If the parties stipulate to
this tentative ruling, please notify the court. The hearing will be "held" in courtroom
303. Whether or not there is a stipulation, Mr. Berger is to file a clarification as to the social security number for Ms. Goytia.
Party Information
Debtor(s):
Irene J. Goytia Represented By Michael Jay Berger
Movant(s):
10:00 AM
CONT...
Irene J. Goytia
Chapter 13
Irene J. Goytia Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
8:30 AM
1:00-00000 Chapter
#0.00 The 8:30 am Reaffirmations & Lopez 1:00 p.m. Evidentiary Hearing calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1614265039
Meeting ID: 161 426 5039 Password: 7Hz#N.
Telephone Conference Lines: 1 (669) 254-5252 or 1 (646) 828-7666
Meeting ID: 161 426 5039
Password: 930189
Docket 0
Tentative Ruling:
NONE LISTED -
8:30 AM
CONT... Chapter
8:30 AM
1:19-12769
Melissa Dolores Flanigan
Chapter 7
#1.00 Pro se Reaffirmation Agreement with TOP FINANCE COMPANY, INC.
Docket 24
Tentative Ruling:
Petition date: 10/31/19
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: 2014 Ford C-Max
Debtor’s valuation of property (Sch. B): $3,000 Amount to be reaffirmed: $5,783.84
APR: 16.99% (fixed)
Contract terms: $251.62 per month for 20 months Monthly Income (Schedule I): $1,600
Monthly expenses: (Schedule J): $2,875 Disposable income: $<1,275>
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
CONT...
Melissa Dolores Flanigan
Chapter 7
Debtor explains that her mother will help her make the payments, and that her mother drives the vehicle. This payment is listed on Sch. J
Debtor has a right to rescind agreement anytime prior to discharge, or until September 10, 2020, whichever is later.
Party Information
Debtor(s):
Melissa Dolores Flanigan Represented By Ali R Nader
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
1:20-10636
Brian Daniel Posantes
Chapter 7
#2.00 Reaffirmation Agreement with Toyota Motor Credit Corporation
fr. 7/21/20
Docket 12
Tentative Ruling:
Petition date: 3/17/2020
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 Scion FR-S
Debtor’s valuation of property (Sch. B): $15,000 Amount to be reaffirmed: $9,553.08
APR: 3.65% (fixed)
Contract terms: $295.69 per month for 34 months Monthly Income (Schedule I): $2,781.52
Monthly expenses: (Schedule J): $2,862 Disposable income: <$70.48>
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 co-signed this vehicle for his sister and that she is responsible for making the payments. This payment is not listed on Sch. J
Debtor has a right to rescind agreement anytime prior to discharge, or until August 25, 2020, whichever is later.
Party Information
8:30 AM
CONT...
Debtor(s):
Brian Daniel Posantes
Chapter 7
Brian Daniel Posantes Represented By
Michael H Colmenares
Trustee(s):
David Keith Gottlieb (TR) Pro Se
8:30 AM
1:20-10750
Luis Elizarraraz and Maria E Elizarraraz
Chapter 7
#3.00 Reaffirmation Agreement with
Nissan Motor Acceptance Corporation
Docket 14
Tentative Ruling:
Petition date: April 7, 2020
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 Maxima
Debtor’s valuation of property (Sch. B): $0.00 (debtor states that Michelle Elizarraraz has possession)
Amount to be reaffirmed: $20,788.64 APR: 5.44% (fixed)
Contract terms: $399.71 per month for 53 months Monthly Income (Schedule I): $2,360
Monthly expenses: (Schedule J): $3,261 Disposable income: <$901>
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
8:30 AM
CONT...
Luis Elizarraraz and Maria E Elizarraraz
Chapter 7
rebuttable presumption of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
Debtor stated on Sch. B that Michelle Elizarraraz has possession and makes the payments. This payment is not listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until September 8, 2020, whichever is later.
Party Information
Debtor(s):
Luis Elizarraraz Represented By
Michael H Colmenares
Joint Debtor(s):
Maria E Elizarraraz Represented By
Michael H Colmenares
Trustee(s):
Nancy J Zamora (TR) Pro Se
8:30 AM
1:20-10937
Adele Rita Sylvester
Chapter 7
#4.00 Pro se Reaffirmation Agreement
with Toyota Motor Credit Corporation
Docket 12
Tentative Ruling:
Petition date: May 20, 2020
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 Toyota Prius
Debtor’s valuation of property (Sch. B): $7,500 Amount to be reaffirmed: $16,024.23
APR: 3.99% (fixed)
Contract terms: $378.67 per month for 44 months Monthly Income (Schedule I): $3,533.20
Monthly expenses: (Schedule J): $3,509 Disposable income: $24.20
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
8:30 AM
CONT...
Adele Rita Sylvester
Chapter 7
will be able to afford the payments in Part D? This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until September 15, 2020, whichever is later.
Party Information
Debtor(s):
Adele Rita Sylvester Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
1:20-11016
Daniel Shea Klein
Chapter 7
#5.00 Reaffirmation Agreement Between Debtor and Fifth Third Bank N.A. fr. 7/21/20
Docket 8
Tentative Ruling:
Petition date: 6/3/2020
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
Debtor’s valuation of property (Sch. B): $19,693 Amount to be reaffirmed: $31,869.56
APR: 6.49% (fixed)
Contract terms: $531.91 per month for 71 months Monthly Income (Schedule I): $2,762.42
Monthly expenses: (Schedule J): $2,702.91 Disposable income: $59.51
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 he will make this payment. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until August 30, 2020, whichever is later.
Party Information
8:30 AM
CONT...
Debtor(s):
Daniel Shea Klein
Chapter 7
Daniel Shea Klein Represented By Daniel King
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
1:20-11178
Jennifer W. Lee
Chapter 7
#6.00 Pro se Reaffirmation Agreement with Toyota Motor Credit Corporation
Docket 8
Tentative Ruling:
Petition date: July 3,2020
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: 2019 Lexus NX300
Debtor’s valuation of property (Sch. B): $25,470 Amount to be reaffirmed: $29,339.52
APR: 2.9% (fixed)
Contract terms: $578.30 per month for 54 months Monthly Income (Schedule I): $6,594.90
Monthly expenses: (Schedule J): $6,572.30 Disposable income: $22.60
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
CONT...
Jennifer W. Lee
Chapter 7
This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until September 30, 2020, whichever is later.
Party Information
Debtor(s):
Jennifer W. Lee Represented By
R Grace Rodriguez
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
1:19-12952
Richard Lopez
Chapter 13
#7.00 ZOOM Evidentiary Hearing
re:Motion for Setting Property Value of residence at 8816 Valjean Ave., North Hills, CA for determining wholly unsecured junior lien claim of The Bank of
New York Mellon fka The Bank of New York as Indenture Trustee c/o Specialized Loan Servicing LLC
fr. 4/28/20; 6/23/20
Docket 19
Tentative Ruling:
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 by ZoomGov are required.
Calls to the Court to check the status of tentative rulings are not permitted.
4-28-20 TENTATIVE BELOW
Service: Proper. Opposition filed.
Property: 8816 Valjean Ave., North Hills, CA (the "Property")
Fair market value: $465,000 per Debtor’s certified appraisal and declaration First lien: $513,281.03 (Select Portfolio Servicing, LLC)
Second lien: $92,138.39 (BoNYM/Specialized Loan Servicing LLC)
Debtor Richard Lopez ("Movant") asserts that (1) the secured portion of the first lien is $465,000 and the unsecured portion is $48,281.03; and (2) the secured portion of the second lien is $0 and the unsecured portion is $92,138.
The court takes judicial notice of Movant’s documents in support of this Motion pursuant to Rule 201 of the Federal Rules of Evidence.
Secured Creditor, The Bank of New York Mellon ("BoNYM") opposes and contends that the value of the Property is $1,150,000 based on a broker price opinion.
1:00 PM
CONT...
Richard Lopez
Chapter 13
BoNYM requests to continue the hearing to provide it time to obtain a verified appraisal.
Debtor replied stating that BoNYM proposed the $1,150 valuation in bad faith because BoNYM did not submit evidence that it inspected the home, obtained a verified appraisal, and used the appropriate market comparables.
Party Information
Debtor(s):
Richard Lopez Represented By James Studer
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-11803
George Richard Gonzales and Martha Lucia Gonzales
Chapter 13
#1.00 Motion for relief from stay
DEUTSCHE BANK TRUST COMPANY
fr. 7/15/20
Docket 101
Tentative Ruling:
Continued from 07/15/20
This hearing was continued from 07/15/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
George Richard Gonzales Represented By
Michelle A Marchisotto Michael Smith
Craig K Streed Sundee M Teeple
Joint Debtor(s):
Martha Lucia Gonzales Represented By
Michelle A Marchisotto Michael Smith
Craig K Streed Sundee M Teeple
Movant(s):
Deutsche Bank National Trust Represented By April Harriott
10:00 AM
CONT...
Trustee(s):
George Richard Gonzales and Martha Lucia Gonzales
Seth Greenhill Sean C Ferry Eric P Enciso
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:15-14171
Albert Hakakha
Chapter 13
#2.00 Motion for relief from stay AMWEST FUNDING CORP
Docket 255
Tentative Ruling:
Ch. 13 Petition Date: 12/24/15 Plan confirmed: 11/17/16
Service: Proper. Co-debtor served. No opposition filed.
Property: 5955 Topeka Drive Los Angeles, CA 91356 (Tarzana Area) Property Value: $590,000 (per debtor’s schedules)
Amount Owed: $ $427,669.17 (including $50,122.97 accrued interest,
$1,910.06 late charges, $5,339.29 costs, and $42,947.75 advances) Equity Cushion: 0.0%
Equity: $0
Post-Petition Delinquency: $91,825.05 (37 payments of $2,534.71, less suspense $1,959.22)
Movant seeks relief under 11 U.S.C. 362(d)(1) and in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (co-debtor stay) and 7 (waiver of the 4001(a)(3) stay).
Movant claims post-petition mortgage payments due on the note secured by a deed of trust have not been made. Movant alleges that the last partial payment was received on or around 04/24/18.
In opposition, Debtor contends that he is near the end of the Chapter 13 case and plans to pay at least $50,000 of the post-petition delinquency in a lump sum, and seeks to refinance or modify the loan. Debtor claims that the property is necessary for an effective reorganization because Debtor and his children live in the household. Debtor requests a continuance to work on an APO for the mortgage payments. Is Movant amenable?
TELEPHONIC APPEARANCE REQUIRED
10:00 AM
CONT...
Debtor(s):
Albert Hakakha
Party Information
Chapter 13
Albert Hakakha Represented By Nathan Berneman David Brian Lally
Movant(s):
AmWest Funding, Corp., and its Represented By
Christina J Khil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-11795
Juan Rocha
Chapter 13
#3.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO.
Docket 72
Tentative Ruling:
Ch. 13 Petition Date: 06/17/16 Plan confirmed: 04/17/17
Service: Proper. No opposition filed.
Property: 11560 Haynes Street Los Angeles, CA 91606 Property Value: $603,000 (per debtor’s schedules)
Amount Owed: $570,619.93 (including $5,382.08 accrued interest, $2,961.75 costs, $8,532.52 advances, less suspense $102.69)
Equity Cushion: 5.4% Equity: $32,380.07
Post-Petition Delinquency: $9,743.97 (5 payments of $1,877.11, $400 advances, less suspense $41.58)
Movant claims that interest in the property is not adequately protected and that post-petition mortgage payments due on the note secured by a deed of trust have not been made. Movant alleges that the last partial payment was made on or around 03/02/20.
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.
Party Information
Debtor(s):
Juan Rocha Represented By
10:00 AM
CONT...
Movant(s):
Juan Rocha
Tawni Takagi
Chapter 13
U.S. Bank National Association Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-13648
Lisa Marie Payne
Chapter 13
#4.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
Docket 55
Tentative Ruling:
Ch. 13 Petition Date: 12/30/16 Plan confirmed: 05/09/17
Service: Proper. No opposition filed.
Property: 10220 De Soto Avenue Unit 13 Chatsworth, California 91311 Property Value: $292,819.00 (per debtor’s schedules)
Amount Owed: $46,636.47 (including $2,610.30 accrued interest, $900 costs, less suspense $439.53)
Equity Cushion: 57.6%
Equity: $168,692.53 (two junior liens; Green Willow, $7,490; PennyMac
$70,000)
Post-Petition Delinquency: $7,042.58 (13 payments of varying amounts, $900 advances, less suspense $382.29)
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). Movant claims that interest in the property is not adequately protected and that post-petition mortgage payments due on the note secured by a deed of trust have not been made. Movant alleges that last partial payment was made on or around 05/05/20. There appears to be sufficient equity to protect Movant's claim.
Debtor claims that since the Motion was filed, she has made an additional payment of $1,000 on 07/08/20 to the Movant and has provided her attorney with a cashier's check in the amount of $6,042.58. Debtor contends that she is now current on payments. Do these payments resolve the asserted delinquency?
TELEPHONIC APPEARANCE REQUIRED.
10:00 AM
CONT...
Debtor(s):
Lisa Marie Payne
Party Information
Chapter 13
Lisa Marie Payne Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#5.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION
fr. 12/11/19, 1/29/20; 2/26/520, 4/1/20; 4/29/20,
6/3/20 (moved), 6/2/20
Docket 74
Tentative Ruling:
Continued from 06/02/20
At the last hearing on 06/02/20, Creditor promised to work out accounting issues regarding plan payments. Debtor’s request for 180-Day Mortgage Forbearance due to the COVID-19 pandemic. Payments are to resume 10/01/20. What is the status of this motion?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Linda Akerele Alele Pro Se
Movant(s):
U.S. Bank National Association, as Represented By
Josephine E Salmon Arnold L Graff Angie M Marth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12349
Jenny Jeannette Everett
Chapter 13
#6.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOCIATION
Docket 54
Tentative Ruling:
Ch. 13 Petition Date: 09/01/17 Plan confirmed: 12/18/17
Service: Proper. Opposition filed on 08/03/20. Property: 13130 Pasha Street, Sylmar, CA 91342 Property Value: $495,464 (per debtor’s schedules)
Amount Owed: $404,173.97 (including $6,416.64, $930 costs, $4,269.25 advances, less suspense $2,671.70)
Equity Cushion: 18.4% Equity: $91,290.02
Post-Petition Delinquency: $4,472.06 (3 payments of $1,890.69, less suspense $1,200.01)
Movant claims post-petition mortgage payments due on the note secured by a deed of trust have not been made. Movant alleges that the last partial payment was received on or around 06/25/20. Additionally, Movant claims that it has incurred attorney fees and costs in the amount of $1,231 as a result of this Motion, and these costs are recoverable under the Note and Deed of Trust.
Movant requests relief under 11 U.S.C. 362(d)(1) and as listed in paragraphs 2 (proceed under non-bankruptcy law); 3 (Movant permitted to engage in loss mitigation activities); 6 (co-debtor stay) and 7 (waiver of the 4001(a)(3) stay).
Debtor claims to have made more payments that are not accounted for in the Motion. Debtor asserts that the property is necessary for reorganization because it is the Debtor’s primary residence. Debtor would like to enter a repayment agreement to cure any remaining delinquency. Is Movant amenable to an APO?
10:00 AM
CONT...
Jenny Jeannette Everett
Chapter 13
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Jenny Jeannette Everett Represented By Kevin T Simon
Movant(s):
U.S. Bank National Association Represented By Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-10222
Maria Audelia Navarro
Chapter 13
#7.00 Motion for relief from stay
COLONY COVE I HOMEOWNERS ASSOCIATION
fr. 7/15/20
Docket 66
Tentative Ruling:
Continued from 07/15/20
This Motion was continued to allow the Movant to properly serve the Motion under Rule 4001. Movant to File Amended Proof of Service before 07/28/20 for the Motion to be considered on its merits. The Notice of Motion was amended 07/24/20 and senior mortgagee properly served.
Movant (HOA) requested relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 7 (waiver of the 4001(a)(3) stay). Movant requested relief to pursue a judgment against debtor for dues owed, alleging that the last payment of $30 was received was on or about 6/06/2019.
Debtor opposed the Motion and argued Movant is in breach of their CC&R agreement. Debtor argues that dues abated until repairs are made and Movant has not properly applied payments. Debtor seeks APO for any deficiency.
TELEPHONIC APPEARANCE REQUIRED.
Tentative from 7/15 below Petition Date: 1/25/18
Ch.13; confirmed on 10/05/2018
Service: Proper on Debtor. Opposition filed. Senior lienholder (Deutsche) not served
10:00 AM
CONT...
Maria Audelia Navarro
Chapter 13
Property: 8333 Columbus Ave, Unit #2, North Hills, CA 91343 Property Value: $348,943
Amount Owed: $ $22,594.76; senior mortgage owed $288,705.25 Equity Cushion: 10.8%
Equity: $37,643.49
Post-Petition Delinquency: $5,991.60 (17 payments of $330.00 + 2 payments of $288.60 less suspense $255.60)
Movant (HOA) requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 7 (waiver of the 4001(a)(3) stay). Movant requests relief to pursue a judgment against debtor for dues owed, alleging that the last payment of $30 was received was on or about 6/06/2019.
Debtor opposes the Motion and argues Movant is in breach of their CC&R agreement. Debtor argues that (1) dues abated until repairs are made; (2) Movant has not properly applied payments. Debtor seeks APO for any deficiency.
This Motion is CONTINUED to August 19, 2020 at 10:00 am, to allow Movant to properly serve the Motion under Rule 4001. Movant to File Amended Proof of Service before July 28, 2020 for the Motion to be considered on its merits at the continued hearing.
NO APPEARANCE REQUIRED on July 15, 2020
Party Information
Debtor(s):
Maria Audelia Navarro Represented By Donald E Iwuchuku
Movant(s):
Colony Cove I Homeowners Represented By Reilly D Wilkinson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
CONT...
Maria Audelia Navarro
Chapter 13
10:00 AM
1:18-12868
David Allen Skibo
Chapter 13
#8.00 Motion for relief from stay
ACAR LLEASING LTD
DBA GM FINANCIAL LEASING
Docket 30
*** VACATED *** REASON: Resolved per APO (doc. 34) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
David Allen Skibo Represented By
Ramiro Flores Munoz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10322
Louis Vargas
Chapter 13
#9.00 Motion for relief from stay LORI MINTZER
fr. 6/10/20; 7/1/20; 7/22/20
Docket 61
*** VACATED *** REASON: Settled per Stipulation (doc. 72)-rc Tentative Ruling:
Party Information
Debtor(s):
Louis Vargas Represented By
Michael Jay Berger
Movant(s):
Lori Mintzer Represented By
Elsa M Horowitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10322
Louis Vargas
Chapter 13
#10.00 Motion for relief from stay BAYVIEW LOAN SERVICING, LLC
fr. 6/2/20, 7/15/20
Docket 58
*** VACATED *** REASON: Settled per stip (dpc 78)-rc Tentative Ruling:
Party Information
Debtor(s):
Louis Vargas Represented By
Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11427
Lecia Kay Westerman
Chapter 13
#11.00 Motion for relief from Stay HSBC BANK USA
fr. 5/20/20, 6/2/20
Docket 54
Tentative Ruling:
Continued from 05/20/20, 06/02/20
This matter was continued from 06/02/20 so the parties could discuss a 9- month APO. Nothing has been filed since the last hearing. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED.
Tentative from 6/2/20 Petition Date: 6/7/2019
Chapter: 13 (plan confirmed on 10/18/2019) Service: Proper. Opposition filed.
Property: 13342 Barbara Ann Street, North Hollywood, CA 91605 Property Value: $660,295.00 (per debtor’s schedules)
Amount Owed: $653,389.87 Equity Cushion: 0.0% Equity: $6,906
Post-Petition Delinquency: $16,440.48 (4 late payments of $3,782.47 each)
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); 7 (waiver of the 4001(a)(3) stay); and 13 (if stay not granted, order APO).
Debtors opposes stating that (1) he has been greatly impacted financially by the COVID-19 pandemic and that he is requesting a forbearance agreement with the Movant; and (2) the Property is necessary for an effective reorganization because it is Debtor's primary residence.
TELEPHONIC APPEARANCE REQUIRED.
10:00 AM
CONT...
Debtor(s):
Lecia Kay Westerman
Party Information
Chapter 13
Lecia Kay Westerman Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11758
Aram Setrak Ohanesian
Chapter 13
#12.00 Motion for relief from stay TOYOTA MOTOR CREDIT CORP
Docket 34
Tentative Ruling:
Ch. 13 Petition Date: 07/15/19 Plan confirmed: 10/18/19
Service: Proper. No opposition filed. Property: 2017 Lexus RX 350
Property Value: $20,350.00 (per debtor’s schedules) Amount Owed: $33,413.29.
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $33,413.29 (1 payment)
Movant claims that its interest is not protected by an adequate equity cushion, the FMV of the property is declining, proof of insurance regarding the property has not been provided to Movant, and the lease matured on 07/07/20.
Movant states that post-petition payments are not being made to Movant to protect Movant's interest against FMV decline, and the last partial payment was made on or around 05/27/20. On August 14, 2020, Debtor filed a non- opposition to this Motion.
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.
Party Information
10:00 AM
CONT...
Debtor(s):
Aram Setrak Ohanesian
Chapter 13
Aram Setrak Ohanesian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12260
Irene Elizabeth Franklin
Chapter 13
#13.00 Motion for relief from stay
NATIONSTAR HECM ACQUISITION TRUST 2018-1
Docket 29
Tentative Ruling:
Ch. 13 Petition Date: 09/09/19 Plan confirmed: 12/09/19
Service: Proper. No opposition filed.
Property: 22656 Miranda Street, Woodland Hills, CA 91367
Property Value: $668,400 (per residential appraisal) $500,000 (per debtor's schedules)
Amount Owed: $459,422.18 (including $1,836.95, $453.79 MIP, $190 costs,
$20 advances)
Equity Cushion: 8.12% Equity: $40,577.82
Post-Petition Delinquency: $3,123 (1 payment of $2,092.00 + $1,031.00 attorneys’ fees)
Movant alleges that interest in the property is not adequately protected and that post-petition mortgage payments due on the note secured by a deed of trust have not been made.
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 argues there will be prejudice if Movant is granted relief and seeks to enter an APO for the delinquent amount. There appears to be sufficient equity to protect Movant's claim and a small delinquency. Have the parties discussed whether this delinquency can be cured via APO?
TELEPHONIC APPEARANCE REQUIRED.
10:00 AM
CONT...
Debtor(s):
Irene Elizabeth Franklin
Party Information
Chapter 13
Irene Elizabeth Franklin Represented By
Hasmik Jasmine Papian
Movant(s):
Nationstar HECM Acquisition Trust Represented By
Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-13113
Avetis Dzhigryan
Chapter 13
#14.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
fr. 6/10/20, 7/15/20
Docket 22
Tentative Ruling:
Continued from 06/10/20, 7/15/20
This hearing was continued from 07/15/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Avetis Dzhigryan Represented By Aris Artounians
Movant(s):
The Bank of New York Mellon f/k/a Represented By
Austin P Nagel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10425
Jose Roberto Mendoza
Chapter 13
#15.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO. fr. 7/1/20
Docket 22
Tentative Ruling:
Continued from 07/01/20
This matter was continued from July 1, 2020 so Movant could properly serve senior lienholder. Proof of service was filed on July 14, 2020, showing senior lienholder Arvest was properly served. No further response filed. Motion to be GRANTED per the terms of the July 1, 2020 tentative ruling, below.
7-1-2020 TENTATIVE RULING BELOW
Ch. 13 Petition Date: 02/24/2020 Service: Proper. No opposition filed.
Property: 8025 Bellingham Avenue, Los Angeles, CA 91605 Property Value: $525,000 (per debtor’s schedules)
Amount Owed: $240,569.06; $427,000 owed to senior mortgagee Equity Cushion: 0%
Equity: $0
Post-Petition Delinquency: $2,960.28 (3 payments of $986.76)
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); and 7 (waiver of 4001(a)(3) stay).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
10:00 AM
CONT...
Debtor(s):
Jose Roberto Mendoza
Chapter 13
Jose Roberto Mendoza Represented By William G Cort
Movant(s):
U.S. Bank National Association, as Represented By
Kirsten Martinez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10433
Nadia Wendy Zubieta
Chapter 13
#16.00 Motion for relief from stay
NISSAN MOTOR ACCEPTACE CORP
fr. 7/15/20
Docket 22
*** VACATED *** REASON: Resolved per APO - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Nadia Wendy Zubieta Represented By Kevin T Simon
Movant(s):
Nissan Motor Acceptance Represented By Austin P Nagel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11063
Joby John Harte
Chapter 7
#17.00 Motion for relief from stay
FINANCIAL SERVICES VEHICLE TRUST
Docket 10
Tentative Ruling:
Ch. 7 Petition Date: 06/15/20 Service: Proper. No opposition filed.
Property: 2019 BMW Z4 sDrive30i Roadster 2D Property Value: $42,238 (per Movant’s pricing report) Amount Owed: $52,736.69
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $4,833.03 (monthly payments of $733.29)
Movant claims that its interest in the property is not adequately protected. Movant regained property post-petition on or around 02/27/20 and states that the last partial payment was received on or around 12/04/19. Movant claims that Debtor has no equity and the property is not necessary for an effective reorganization.
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.
Party Information
Debtor(s):
Joby John Harte Represented By Henry Glowa
10:00 AM
CONT...
Movant(s):
Joby John Harte
Chapter 7
Financial Services Vehicle Trust Represented By
Marjorie M Johnson
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:20-11077
Alexa Lynn Graham
Chapter 7
#18.00 Motion for relief from stay DAIMLER TRUST
Docket 10
Tentative Ruling:
Ch. 7 Petition Date: 06/17/20 Service: Proper. No opposition filed.
Property: 2018 Mercedes-Benz G63W4 Property Value: N/A
Amount Owed: $180,055.23 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $180,055.23 (monthly payment of $2,877.70)
Movant claims that its interest in the property is not adequately protected, proof of insurance has not been provided to Movant, and monthly payments have not been received. Movant alleges that the last partial payment was received on or around 08/17/19.
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.
Party Information
Debtor(s):
Alexa Lynn Graham Represented By Kian Mottahedeh
10:00 AM
CONT...
Trustee(s):
Alexa Lynn Graham
Chapter 7
Nancy J Zamora (TR) Pro Se
10:00 AM
1:20-11112
Nathan Daneshrad
Chapter 13
#19.00 Motion for relief from stay DAIMLER TRUST
Docket 18
Tentative Ruling:
Ch. 13 Petition Date: 06/24/20 Service: Proper. No opposition filed.
Property: 2017 Mercedes-Benz C300W Property Value: N/A
Amount Owed: $51,946.11 Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: N/A
Movant states that it regained possession of the property on 06/04/20 (prepetition). Movant alleges that prepetition payments have not been made and the last partial payment was made on or around 09/26/19. Movant claims that it is not provided for in Debtor’s Ch. 13 plan.
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.
Party Information
Debtor(s):
Nathan Daneshrad Represented By Devin Sawdayi
10:00 AM
CONT...
Movant(s):
Nathan Daneshrad
Chapter 13
Daimler Trust Represented By
Sheryl K Ith
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:14-13029
Brian D Presley
Chapter 7
#20.00 Trustee's Final Report and Applications for Compensation
Docket 162
Tentative Ruling:
Service proper. US Trustee filed a limited objection on July 6, 2020, requesting a reduction in the statutory fees of $1,319.32. Having reviewed the Trustee's Final Report and the US Trustee Objection, the Court finds that $1,259.12 for fees and requested costs are reasonable, after applying the requested $100 reduction of the statutory fees. The Trustee's Final Report is approved, per this tentative ruling.
APPEARANCES WAIVED ON 8/19/2020.
Party Information
Debtor(s):
Brian D Presley Represented By Gary R Wallace
Trustee(s):
Diane C Weil (TR) Pro Se
10:00 AM
1:18-12564
Mark Hakman
Chapter 7
#21.00 Trustee's Final Report and Application for Compensation and Deadline to Objection
Trustee:
David Seror
Attoreny for Trustee: Robert Hessling
Accountant for Trustee: LEA Accounting, LLP
Docket 34
Tentative Ruling:
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 8/19/2020.
Party Information
Debtor(s):
Mark Hakman Represented By Lior Katz
Trustee(s):
David Seror (TR) Represented By Robert A Hessling
10:00 AM
1:19-11938
Saul Cortez and Maria Cortez
Chapter 7
#22.00 Trustee's Final Report and Applications for Compensation and Deadline to Object
Docket 31
Tentative Ruling:
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 8-19-2020.
Party Information
Debtor(s):
Saul Cortez Represented By
Susan Jill Wolf
Joint Debtor(s):
Maria Cortez Represented By
Susan Jill Wolf
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:19-12296
Armine Amy Eritsian
Chapter 7
#23.00 Trustee's Final Report and Applications for Compensation
Docket 41
Tentative Ruling:
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 8-19-2020.
Party Information
Debtor(s):
Armine Amy Eritsian Represented By Varand Gourjian
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:12-10229
C.M. Meiers Company, Inc.
Chapter 11
Adv#: 1:14-01042 Sharp v. Essex Insurance Company
#24.00 Status conference re complaint for: 1- declaratory relief
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, 9/26/18, 2/6/19; 4/8/19
5/15/19; 2/26/20; 6/24/20
Docket 1
Tentative Ruling:
The Court has reviewed the Status Reports filed in advance of this status conference, ad. ECF docs 241 and 242. Chapter 11 Trustee Sharp indicates that Evanston has satisfied the judgment in full. Does the payment by Evanston resolve this adversary complaint? What is the status of this matter?
TELEPHONIC APPEARANCE REQUIRED
Party Information
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
CONT...
Trustee(s):
C.M. Meiers Company, Inc.
Chapter 11
Bradley D. Sharp (TR) Represented By David Gould Stanley H Shure Larry W Gabriel
U.S. Trustee(s):
United States Trustee (SV) Pro Se
10:00 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#25.00 Motion to Disallow Claims Motion for:
(1) Order Disallowing Claim 44-1 in the Alternative, an Order Estimating the Value of Proof of Claim No. 44-1
Docket 2423
Tentative Ruling:
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.
Having considered the Objection to Claim and the Opposition filed by Kim, the
10:00 AM
CONT...
Owner Management Service, LLC
Chapter 7
Claim is disallowed because it is vague and ambiguous. The Claim fails due to a lack of evidence and support, as there is no explanation of the legal theory under which Kim may enforce the Claim against the Consolidated Debtors or their property. Because there is no more explanation given other than that listed on the Proof of Claim itself, “Debtor fraudulently took ownership to creditor’s property" nor is there evidence to support the claim, prima facie validity does not attach to the Claim.
Objection SUSTAINED. TELEPHONIC APPERANCE REQUIRED.
Party Information
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 Jorge A Gaitan Robyn B Sokol
10:00 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#26.00 Motion for: (1) Order Disallowing Claim 42-6 filed
on Behalf of the Los Angeles County Treasurer & Tax Collector; or, (2) in the Alternative, an Order Estimating the Value of Proof of Claim No. 42-6 filed on Behalf of the Los Angeles County Treasurer & Tax Collector at
$1.00 for All Purposes
Docket 2433
*** VACATED *** REASON: Ntc. of w/drawal filed 8/5/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
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 Jorge A Gaitan Robyn B Sokol
11:00 AM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:19-01142 PCB Debt LLC v. Lee
#27.00 Status Conference Re: Second Amended Complaint to Revoke Defendant's Discharge under 11 USC Sec. 727
Docket 31
Tentative Ruling:
Discovery cut-off (all discovery to be completed*): May 27, 2021 Expert witness designation deadline (if necessary): done at P/T Case dispositive motion filing deadline (MSJ; 12(c)): July 21, 2021 Pretrial conference: September 1, 2021, at 111:00 a.m.
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) : August 18, 2020
*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
CONT...
Albert Lee
Chapter 7
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.
Party Information
Debtor(s):
Albert Lee Represented By
M Teri Lim
Defendant(s):
Albert Lee Represented By
Kurt Ramlo
Plaintiff(s):
PCB Debt LLC Represented By George T Busu James E Till
Bryan King Sheldon
Trustee(s):
David Keith Gottlieb (TR) Represented By Howard Camhi Peter A Davidson Byron Z Moldo
11:00 AM
1:19-10828
Anna Barseghian
Chapter 7
Adv#: 1:19-01083 Zamora, Chapter 7 Trustee v. Baron et al
#28.00 Status Conference Re: Compliant for Avoidance of Transfer; Recovery of Avoided Transfer; Determination of Value, Priority, Extent and Validity of Lien; Declaratory Relief; Quiet Title; To Remove Cloud on Title; and Injunction
fr. 9/18/19, 11/6/19, 1/8/20; 4/8/20; 6/24/20
Docket 1
*** VACATED *** REASON: Dismissed per Order, 8/17/2020 - hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Defendant(s):
Van Baron Pro Se
Does 1-20 Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Wesley H Avery
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
11:00 AM
1:19-10828
Anna Barseghian
Chapter 7
Adv#: 1:19-01084 Zamora, Chapter 7 Trustee v. Barseghian
#29.00 Status Conference Re: Complaint for Denial of Discharge.
fr. 9/18/19, 11/6/19, 1/8/20; 4/8/20; 6/24/20
Docket 1
*** VACATED *** REASON: Cont'd to 10/28/2020 at 11:00 a.m. - hm Tentative Ruling:
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Defendant(s):
Anna Barseghian Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Wesley H Avery
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
11:00 AM
1:20-10069
Shawn Sharon Melamed
Chapter 7
Adv#: 1:20-01046 Mazakoda, Inc. v. Melamed et al
#30.00 Status conference re: complaint objecting to discharge pursuant to 11 U.S.C. sec 727(3)(3), 727(a)(4)(A);
727(a)(4)(D). and 727(a)(5)
fr. 6/17/20; 7/8/20; 7/15/20
Docket 1
Tentative Ruling:
Discovery cut-off (all discovery to be completed*): March 15, 2021 Expert witness designation deadline (if necessary): at P/T
Case dispositive motion filing deadline (MSJ; 12(c)): April 2, 2021 Pretrial conference: April 14, 2021 at 11:00 a.m.
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) : March 31, 2021
*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
CONT...
Shawn Sharon Melamed
Chapter 7
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.
Party Information
Debtor(s):
Shawn Sharon Melamed Represented By Giovanni Orantes
Defendant(s):
Shawn Sharon Melamed Pro Se
Jenous Tootian Pro Se
Joint Debtor(s):
Jenous Tootian Represented By Giovanni Orantes
Plaintiff(s):
Mazakoda, Inc. Represented By Scott E Gizer
Trustee(s):
Amy L Goldman (TR) Represented By Scott E Gizer
11:00 AM
1:20-10329
Gregg P Stickeler
Chapter 13
#31.00 Motion to Avoid Lien Judicial Lien with Bank of America, N.A
Docket 21
*** VACATED *** REASON: Debtor's atty filed a withdrawal - Doc. #33. lf
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Gregg P Stickeler Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11292
Mark Handel
Chapter 11
#32.00 Post Confirmation Status Conference
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; 10/24/18; 4/3/19
7/17/19; 12/11/19; 4/8/20
Docket 1
Tentative Ruling:
Having considered Debtor's post-confirmation status report, ECF doc. 225, the Court finds cause to continue this status conference to October 14, 2020, at 10:30 a.m. Debtor to give notice of continued status conference.
APPEARANCES WAIVED ON 8/19/2020
Party Information
Debtor(s):
Mark Handel Represented By
David L. Neale
John-Patrick M Fritz
9:30 AM
1:19-11659
Nicolas Mendez Rodriguez
Chapter 7
#1.00 Status Conference re Evidentiary for Motion to Avoid Lien Judicial
Lien under section 522(f) (Berta Hernandez and Jose Eduardo Hernandez- Hlnojosa)
fr. 12/11/19, 4/3/20, 6/11/20; 7/16/20
Docket 44
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Nicolas Mendez Rodriguez Represented By Steven A Simons
Trustee(s):
David Seror (TR) Pro Se
9:30 AM
1:16-13077
David Saghian
Chapter 7
Adv#: 1:18-01039 Weil, Chapter 7 Trustee v. Saghian et al
#2.00 TRIAL - DAY 1
Pre-Trial Conference re: Complaint for
1- Declaratory Relief; 2 - Accounting; 3 - Turnover; 4 - Avoidance and Recovery of Transfers; and
5 - Revocation of Discharge
fr. 6/6/18; 5/8/19, 5/15/19, 9/11/19, 12/11/19, 2/26/20,
5/6/20
Docket 1
*** VACATED *** REASON: Dismissed (ECF doc. 81) - hm Tentative Ruling:
- NONE LISTED -
Party Information
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
Friday, August 21, 2020
Hearing Room
302
9:30 AM
1:16-13077
David Saghian
Chapter 7
Adv#: 1:18-01039 Weil, Chapter 7 Trustee v. Saghian et al
#1.00 TRIAL - DAY 2
Pre-Trial Conference re: Complaint for
1- Declaratory Relief; 2 - Accounting; 3 - Turnover; 4 - Avoidance and Recovery of Transfers; and
5 - Revocation of Discharge
fr. 6/6/18; 5/8/19, 5/15/19, 9/11/19, 12/11/19, 2/26/20,
5/6/20
Docket 1
*** VACATED *** REASON: Dismissed (ECF doc. 81) - hm Tentative Ruling:
- NONE LISTED -
Party Information
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
8:00 AM
1:00-00000 Chapter
#0.00 You will not be permitted to be physically present in the courtroom.
Docket 0
Tentative Ruling:
- NONE LISTED -
11:00 AM
1:19-11288
Ronald Harris Gladle
Chapter 13
#27.01 Amended Motion to Avoid Lien JUNIOR LIEN with Wells Fargo Bank, N.A.
2nd TD on 22344 Burton Street, Canoga Park, CA 91304
fr. 7/30/19, 9/24/19, 10/22/19; 1/28/20, 2/25/20, 4/28/20
Docket 74
*** VACATED *** REASON: Withdrawn 8/20/2020 (doc. 95) - hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Ronald Harris Gladle Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-12566
Gabriel Rufus and Shirley Rufus
Chapter 13
#28.00 Trustee's Motion to Dismiss Case Due to Expiration of Plan
fr. 2/25/20, 4/28/20
Docket 79
*** VACATED *** REASON: Cont'd to 10/27/20 @11:00 a.m.
Tentative Ruling:
Party Information
Debtor(s):
Gabriel Rufus Represented By Devin Sawdayi
Joint Debtor(s):
Shirley Rufus Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-12567
Terry Byrd Pitt
Chapter 13
#29.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns fr. 8/20/19, 10/22/19, 12/17/19, 2/25/20, 4/28/20
Docket 34
*** VACATED *** REASON: Cont'd to 10/27/20 @ 11:00 a.m.
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Terry Byrd Pitt Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15223
Saul O Aviles
Chapter 13
#30.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns fr. 8/20/19, 12/17/19, 4/28/20
Docket 65
*** VACATED *** REASON: Cont. to 12/15/20 @ 11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Saul O Aviles Represented By
Eric C Morris
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10398
Jose Luis Banuelos and Maria L. Tejada
Chapter 13
#31.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19, 2/25/20; 3/31/20; 6/23/20
Docket 63
*** VACATED *** REASON: Cont. to 10/27/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Jose Luis Banuelos Represented By Leonard Pena
Joint Debtor(s):
Maria L. Tejada Represented By Leonard Pena
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11823
Karapet Dermendjian and Anait Dermendjian
Chapter 13
#32.00 Objection to Trustee's Notice of Intent to Obtain Discharge
Docket 81
*** VACATED *** REASON: Objection to Trustee's Notice of Intent was withdrawn (ECF doc. 84) - hm
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Karapet Dermendjian Represented By Aris Artounians
Joint Debtor(s):
Anait Dermendjian Represented By Aris Artounians
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-13123
Buenaventura Marquez
Chapter 13
#33.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19; 1/28/20; 3/31/20; 5/19/20
Docket 26
*** VACATED *** REASON: Cont. to 12/15/20 @ 11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Buenaventura Marquez Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14044
Ahmad Heidari and Nafiseh Alamdar Heidari
Chapter 13
#33.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 125
*** VACATED *** REASON: Cont. to 9/22/20 @11am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Ahmad Heidari Represented By Steven A Alpert
Joint Debtor(s):
Nafiseh Alamdar Heidari Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10125
Ben Diep
Chapter 13
#34.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 123
*** VACATED *** REASON: Cont'd to 11/17/20 @ 11:00 a.m.
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Ben Diep Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10194
Heliodoro Navarro
Chapter 13
#35.00 Motion RE: Objection to Claim Number 7 by Claimant Internal Revenue Service
fr. 5/19/20; 6/23/20; 7/21/20
Docket 98
*** VACATED *** REASON: Ntc. of w/drawal filed 7/23/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Heliodoro Navarro Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10348
Jim K. Nikolopoulos and Ayarpi Nikolopoulos
Chapter 13
#36.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment Pursuant to 11 USC Sec. 1329(a) and the Percentage to be
Paid to Unsecured Creditors or, in the Alternative, Dismissing the Chapter 13 Petition Due to Debtrors' Failure to Make Debtors' Best Efforts to Repay Creditors Pursuant to 11 USC Sec. 1307(c)(6)
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20; 6/23/20
Docket 55
*** VACATED *** REASON: Cont'd to 9/22/20 @11:00 a.m.
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Jim K. Nikolopoulos Represented By Scott D Olsen
Joint Debtor(s):
Ayarpi Nikolopoulos Represented By Scott D Olsen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10898
Jacqueline Desiree Landaeta Alvarez
Chapter 13
#37.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 141
*** VACATED *** REASON: Cont'd to 10/27/20 @ 11:00 a.m.
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Jacqueline Desiree Landaeta Alvarez Represented By
Matthew D. Resnik Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12201
Andrea Beckham
Chapter 13
#38.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/22/19, 12/17/19; 1/28/20; 3/30/20; 5/19/20; 6/23/20
Docket 42
*** VACATED *** REASON: Cont. to 10/27/20 @ 11am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Andrea Beckham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12613
Susan Griffin
Chapter 13
#39.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 11/19/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20, 7/21/20
Docket 50
*** VACATED *** REASON: Cont. to 10/27/20 @11am (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Susan Griffin Represented By
Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13393
Carmen Avellanosa
Chapter 13
#40.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20, 7/21/20
Docket 70
*** VACATED *** REASON: Nt. of w/drawal filed 7/23/20 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Carmen Avellanosa Represented By
D Justin Harelik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13547
John Stanley Mekrut
Chapter 13
#40.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 48
*** VACATED *** REASON: Cont. to 10/27/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
John Stanley Mekrut Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13620
Jose V. Gomez
Chapter 13
#41.00 Motion RE: Objection to Claim Number 3 by Claimant Express Cash Flow, LLC.
Docket 60
Tentative Ruling:
Debtor objects to the amount of the debt asserted in the claim, arguing that the amount of the claim is $5,900 rather than the $11,068 asserted in the claim. Debtor, listed as "agent" on a real estate sales contract attached to the claim, contends that the subject escrow failed to close and was cancelled, and so the $5,900 portion of the claim for "closing extension fees" is erroneously charged. Debtor moves to have Claim 3-2 allowed as a general unsecured claim in the amount of $5,900.
Service proper per address listed on proof of claim. No response filed. Objection SUSTAINED. Debtor to lodge order within 7 days.
NO APPEARANCE REQUIRED ON 8/25/20
Party Information
Debtor(s):
Jose V. Gomez Represented By Stephen Parry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10032
Michael Klapsis and Marina Klapsis
Chapter 13
#42.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20, 4/28/20
Docket 36
*** VACATED *** REASON: Cont. to 9/22/20 @ 11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Michael Klapsis Represented By Devin Sawdayi
Joint Debtor(s):
Marina Klapsis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10032
Michael Klapsis and Marina Klapsis
Chapter 13
#43.00 Motion under Local Bankruptcy Rule 3015-1 (n) and
(w) to modify plan or suspend plan payments
Docket 39
*** VACATED *** REASON: Cont. to 9/22/20 @ 11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Michael Klapsis Represented By Devin Sawdayi
Joint Debtor(s):
Marina Klapsis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10353
Annette Sanders-Wright
Chapter 13
#44.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20, 4/28/20; 6/23/20
Docket 51
*** VACATED *** REASON: Cont. to 9/22/20 @ 11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Annette Sanders-Wright Represented By Dana C Bruce
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10811
Daniel Mora
Chapter 13
#45.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20, 2/25/20; 3/31/20; 6/23/20
Docket 38
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #52. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Daniel Mora Represented By
Axel H Richter
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10999
Hovanes Antoine Osmanian and Violet Khachikyan
Chapter 13
#46.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 156
*** VACATED *** REASON: Cont'd to 12/15/20 @ 11:00 a.m.
Tentative Ruling:
NONE LISTED -
Party Information
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
1:17-11130
Monet R Davis
Chapter 13
#47.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20; 3/31/20, 4/28/20
Docket 32
*** VACATED *** REASON: Cont. to 9/22/20 @ 11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Monet R Davis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11130
Monet R Davis
Chapter 13
#48.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 4/28/20
Docket 36
*** VACATED *** REASON: Cont. to 10/27/20 @ 11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Monet R Davis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11267
Irma Villalpando
Chapter 13
#48.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 134
*** VACATED *** REASON: Cont. to 10/27/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Irma Villalpando Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#49.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/24/19, 11/19/19; 1/28/20; 3/31/20; 6/23/20
Docket 138
*** VACATED *** REASON: Cont. to 9/22/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
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
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#50.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20; 3/31/20; 6/23/20
Docket 151
*** VACATED *** REASON: Cont. to 9/22/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
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
1:17-11387
Haroutiun Papazian
Chapter 13
#51.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 1/28/20; 3/31/20; 5/19/20, 7/21/20
Docket 50
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Haroutiun Papazian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11804
Eduardo N Trillo, Jr. and Maritess Biglangawa Trillo
Chapter 13
#52.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20; 3/31/20, 4/28/20; 6/23/20, 7/21/20
Docket 58
*** VACATED *** REASON: Cont. to 9/22/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Eduardo N Trillo Jr. Represented By Elena Steers
Joint Debtor(s):
Maritess Biglangawa Trillo Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11995
Priscilla Jeanette Bueno
Chapter 13
#53.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20,4/28/20; 5/19/20; 6/23/20
Docket 55
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Priscilla Jeanette Bueno Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12102
Arman Tombakian
Chapter 13
#54.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 74
*** VACATED *** REASON: Cont. to 10/27/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Arman Tombakian Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13047
Brenda Leigh Worden-Jones
Chapter 13
#55.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 37
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Brenda Leigh Worden-Jones Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10018
Betty D Frey
Chapter 13
#55.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 90
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #97. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Betty D Frey Represented By
Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10023
Gennady Aleksandrovsky
Chapter 13
#56.00 Trustee's Motion to Dismiss Case Trustee Motion for Failure to Submit All Tax Returns
fr. 12/17/19, 4/28/20
Docket 57
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #67. lf Tentative Ruling:
Party Information
Debtor(s):
Gennady Aleksandrovsky Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10407
Jose Galindo, Jr
Chapter 13
#57.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20, 2/25/20, 4/28/20
Docket 49
*** VACATED *** REASON: Cont'd to 10/27/20 @ 11:00 a.m.
Tentative Ruling:
Party Information
Debtor(s):
Jose Galindo Jr Represented By Karine Karadjian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#58.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20; 6/23/20
Docket 45
*** VACATED *** REASON: Cont. to 9/22/20 @11am (eg) Tentative Ruling:
Party Information
Debtor(s):
Marvin Eleid Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11550
Andrea L Cervantes
Chapter 13
#58.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 42
*** VACATED *** REASON: Cont. to 9/22/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Andrea L Cervantes Represented By Stephen S Smyth William J Smyth
Andrew Edward Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12253
Sonia Figueroa
Chapter 13
#59.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 5/19/20
Docket 95
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Sonia Figueroa Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10040
Yoonah Mason
Chapter 13
#60.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20; 6/23/20
Docket 72
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #99. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Yoonah Mason Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10322
Louis Vargas
Chapter 13
#61.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 70
*** VACATED *** REASON: Cont. to 10/27/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Louis Vargas Represented By
Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10664
Bridget G Moran Smith
Chapter 13
#62.00 Motion RE: Objection to Claim Number 3 by Claimant U.S. Bank, National Association, et al. c/o PHH Mortgage Corporation, its Successors and/or Assigns.
fr. 7/30/19; 8/20/19; 10/22/2019; 12/17/19, 2/25/20, 4/28/20; 6/23/20
Docket 26
*** VACATED *** REASON: Cont. to 10/27/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Bridget G Moran Smith Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10836
Melissa D Kurtz
Chapter 13
#63.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 68
*** VACATED *** REASON: Cont'd to 11/17/20 @ 11:00 a.m.
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Melissa D Kurtz Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11281
Mary Helen Robertson
Chapter 13
#64.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 36
*** VACATED *** REASON: Cont. to 11/17/20 @11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mary Helen Robertson Represented By Randolph L Neel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11288
Ronald Harris Gladle
Chapter 13
#65.00 Amended Motion to Avoid Lien JUNIOR LIEN with Wells Fargo Bank, N.A.
2nd TD on 22344 Burton Street, Canoga Park, CA 91304
fr. 7/30/19, 9/24/19, 10/22/19; 1/28/20, 2/25/20, 4/28/20
Docket 74
*** VACATED *** REASON: Duplicate of 27.01 - lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ronald Harris Gladle Represented By Matthew D Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11611
Dov Kladnov
Chapter 13
#66.00 Application for Compensation for Shalem Shem-Tov,
Period: 7/1/2019 to 3/26/2020, Fee: $2500, Expenses: $.
Docket 55
Tentative Ruling:
The second $2500 application (ECF doc. 55) appears to be a duplicate of the Application that was approved in an order entered May 12, 2020 (ECF doc.
46 and 54). If the Application (doc. 55) isn't a duplicate, no detail is provided to support the application. It is denied unless counsel wishes it continued to provide an actual schedule of work performed.
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Dov Kladnov Represented By
Shalem Shem-Tov
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12205
Mauricio Nunez
Chapter 13
#67.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 41
*** VACATED *** REASON: Cont'd to 9/22/20 @ 11:00 a.m.
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mauricio Nunez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12257
Armine Yeghiazarian
Chapter 13
#68.00 Motion to Avoid Junior Lien on Principal Residence [11 U.S.C. § 506(d)
Docket 46
Tentative Ruling:
Service: Proper
Property Address: 4825 Sancola Ave., North Hollywood, CA 91601 First trust deed: $865,787.94
Second trust deed (to be avoided): $73,378.78 Fair market value per appraisal: $745,000
Disposition: GRANTED.
APPEARANCE IS WAIVED. If written or oral opposition is presented at the hearing, the motion may be continued to the next Chapter 13 calendar.
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.
Party Information
Debtor(s):
Armine Yeghiazarian Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10480
Eliachar Elliott Mamann
Chapter 13
#69.00 Trustee's Objection to Homestead Exemption fr. 6/23/20, 7/21/20
Docket 15
*** VACATED *** REASON: Cont. to 9/22/20 @11am (eg) Tentative Ruling:
On 6/17/2020, Trustee filed a reply in which she asserted that if the funds
transferred to Debtor's "Private Retirement Trust" were not previously in a qualified retirement account, then the transfer may be a preference under §
548. Trustee requested that Debtor provide an explanation and evidence as to the source of the funds and the timing of the purchase of the annuity.
Has the Trustee received any response from Debtor as to the questions raised in her Reply?
TELEPHONIC APPEARANCE REQUIRED on 8/25/2020 6-23-20 TENTATIVE BELOW:
Trustee opposes Debtor's attempt to exempt 100% of the fair market value in two checking accounts, $20,005.29 under C.C.P. 704.070 and $6,950 under
C.C.P. 704.080 because Debtor has not provided evidence that the funds are exempt under these sections.
Trustee also opposes Debtor's attempt to exempt $170,000 in in a private retirement account under C.C.P. 704.115(a)(1) and (a)(2) because Debtor has not provided evidence that the funds are exempt under these sections.
In response, Debtor explained that he amended his Schedule C to remove the exemption under 704.070 in the two checking accounts. Debtor contends, however, that he has submitted bank statements to show that his monthly Social Security income is deposited into one of the accounts and the funds therein are exempt under 704.080.
Debtor also argues that his Private Retirement Trust is exempt pursuant to
11:00 AM
CONT...
Eliachar Elliott Mamann
Chapter 13
C.C.P. § 704.115(a)(1) & (2) and (b). Debtor contends that the exemption does not require that the Private Retirement Trust be ERISA qualified. Debtor explains that he is employed through his business, Apex Window Treatments, which is sole proprietorship. Through that sole proprietorship, Debtor created a Private Retirement Plan as allowed under C.C.P. §704.115(a)(1). The assets of that plan consist of an annuity which is payable on account of the age of Debtor. Debtor explains that the plan was created for retirement purposes, as Debtor is 71 years old and his only retirement assets are social security of $585 per month and the Private Retirement Trust. Debtor argues that the Private Retirement Trust is exempt because it was created by the employer, in this case a sole proprietorship, for the benefit of the Debtor. DeMassa v. McIntyre (In re McIntyre), 74 F.3d 186 (9th Cir. 1996); Salameh
v. Tarsadia Hotel, 2015 US Dist. Lexis 14008 (S.D. Cal. 2015). Debtor maintains that under 704.115(a)(1), the entire plan is exempt if the criteria for self-employed plans is applied because the plan is exempt to the extent that it is reasonably necessary for Debtor’s support. It is Debtor's position that the entire amount is necessary for his support. The only asset of the plan is an annuity which is payable on account of the age of the Debtor and therefore the annuity would be independently exempt under 704.100.
Does the evidence provided by Debtor in support of his response resolve Trustee's Objection?
TELEPHONIC APPEARANCE REQUIRED, unless Trustee and the parties stipulate otherwise
Party Information
Debtor(s):
Eliachar Elliott Mamann Represented By William E. Winfield
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10575
Laura Alfaro
Chapter 13
#70.00 Application of Attorney for Debtor for Additional Fees and Related Expenses in a Pending Chapter 13 Case Subject to a Rights and Responsibilities Agreement (RARA)
Fee: $950.00, Expenses: $0.00.
Docket 31
Tentative Ruling:
Service proper. Having reviewed the Fee Application, Trustee's response, and Debtor's declaration in support of the Application, the Court finds that the fees and costs were reasonable for the amount of work done, and is inclined to approve the Application.
Trustee may appear and present argument, or stipulate to no appearance with Counsel.
Party Information
Debtor(s):
Laura Alfaro Represented By
Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-11245
Carlos R Moyano and Rosa E. Moyano
Chapter 13
#71.00 Motion to Avoid Lien Junior Lien with Indymac Bank, FSB/CIT Bank, N.A
Docket 12
*** VACATED *** REASON: Cont'd per stipulation to 9/22/20 at 11 a.m. - hm
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Carlos R Moyano Represented By Nathan A Berneman
Joint Debtor(s):
Rosa E. Moyano Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#72.00 Debtor's Motion To Sell Personal Property
(Separate Property Performer Neighboring Rights Royalties).
Docket 122
Tentative Ruling:
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 telephonic appearances are required.
Calls to the Court to check the status of tentative rulings are not permitted.
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#73.00 Motion RE: Objection to Claim Number 11 by Claimant Law Offices of Cole Sheridan.
Docket 104
Tentative Ruling:
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 telephonic appearances are required.
Calls to the Court to check the status of tentative rulings are not permitted.
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#74.00 Motion To Compel Broadcast Music, Inc. To Remit Pre-Petition and Post-Petition Earned Royalties To Debtor
fr. 6/23/20, 7/21/20
Docket 48
*** VACATED *** REASON: Ntc. of dismissal filed 8/10/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#75.00 Motion To Compel Atlantic Recording Corporation dba Warner Music Group To Remit Pre-Petition and Post-Petition Earned Royalties To Debtor
fr. 6/23/20, 7/21/20
Docket 49
*** VACATED *** REASON: Ntc. of dimissal filed 8/10/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#76.00 Motion RE: Objection to Claim Number 5 by Claimant Melissa M. Buchman
fr. 6/23/20, 7/21/20
Docket 50
*** VACATED *** REASON: Ntc. of Dismissal filed 8/10/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#77.00 Motion RE: Objection to Claim Number 7 by Claimant Melissa Pearcy
fr. 6/23/20, 7/21/20
Docket 56
*** VACATED *** REASON: Ntc. of Dismissal filed 8/10/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:30 AM
1:19-13095
Ben Byuzand Militonyan
Chapter 13
#78.00 Motion RE: Objection to Claim Number 7 by Claimant Parts Authority Metro, LLC,
A California Limited Liability Company. fr. 6/23/20
Docket 46
Tentative Ruling:
Telephonic appearance required
6-23-20 TENTATIVE BELOW
Debtor owns and operates Ben’s Auto Parts. He purchases auto parts from wholesale distributors, such as Parts Authority Metro, and supplies the auto parts directly to the consumer. Prior to the Petition Date, on or about June 5, 2019, Parts Authority Metro filed an action against Debtor in Superior Court (the “State Court Action”) alleging that the Debtor owed $348,269.99 in debt which it broke down into three distinct debts: (1) $168,000 remaining debt on a “Promissory Note”; (2) $114,609 unpaid invoices on the “Payoff Account”; and (3) $65,660 unpaid invoices on the “Buying Account”. The State Court Action was not adjudicated because Debtor filed bankruptcy. Debtor's objection is premised on his argument that Debtor has made a substantial amount of payments that are not reflected in the Proof of Claim.
With respect to the Promissory Note, Debtor explains that he entered into a promissory note on October 1, 2015 with Metropolitan Automotive Warehouse (the “Promissory Note”) whereby he promised to pay
$512,654.84 by making monthly payments of $5,000 with the final payment due on April 1, 2024. At the time the State Court Action commenced, Debtor contends that he had paid off over two-thirds of the debt in less than half the life of the debt with five (5) years remaining to pay off the balance of
$168,000. Furthermore, the Promissory Note was secured by a security agreement, giving Metropolitan Automotive Warehouse a security interest in all inventory held by Ben’s Auto Parts (the “Security Agreement”). This Security Agreement is the basis of a UCC-1 filing with the California Secretary
11:30 AM
CONT...
Ben Byuzand Militonyan
Chapter 13
of State. In addition to making the monthly payments as outlined above, Debtor claims that he turned over to Parts Authority Metro approximately
$200,000 worth of inventory in repayment of the debt. Decl. of Militonyan, Ex.
2. Debtor maintains that the ledger provided by Claimant underestimates the value of the total credit as $160,784.93 and that, to date, no credit has been applied to the debt, and no mention of this credit was made in Claimant’s Claim.
With respect to the Payoff Account, Debtor argues that he paid off the account well before the State Court Action commenced, having made payments totaling $114,007.67 and does not owe a balance on this account. Decl. of Militonyan, Ex.3. As to the Buying Account, Debtor contends that he has been making payments on this account in the ordinary course of business totaling $58,883.11 and owes a balance of less than $7,000. Decl. of Militonyan, Ex. 4. Accordingly, Debtor requests that Parts Authority Metro’s Claim be disallowed, as Claimant has failed to provide evidence to substantiate the full amount of the debt asserted in its Claim. Additionally, the Debtor requests that the Claimant provide a full accounting and credit him for all payments/credits made.
Parts Authority opposes the Motion, arguing that the balance on the promissory note was accelerated for nonpayment and thus the entire
$165,000 is due and payable now. Parts Authority points out that Debtor seems to acknowledge that he owes a secured balance of $168,000 on the Promissory Note. Decl. of Militonyan, ¶ 5. It also asserts that the balance on the Payoff Account is $114,609.59. as no payment has been made on the Payoff Account since September 29, 2018. Lastly, Parts Authority disputes Debtor's explanation of how the Buying Account is credited and his assertion that he is due credits that would reduce the amount owed. Parts Authority explains that it agreed to take back product and credit Debtor's Buying Account for the amount he had paid, less a 15% restocking charge. Bauby Decl. ISO Opposition. Parts Authority contends that Debtor returned product in the amount of $171,315.21 and credited Debtor's account $160,784.93 (the value, less the 15% restocking charge).
The parties should be prepared to discuss if this contested matter requires an evidentiary hearing to resolve these accounting issues, or whether the parties
11:30 AM
CONT...
Ben Byuzand Militonyan
Chapter 13
would prefer a continuance to attempt to resolve the issues consensually.
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Ben Byuzand Militonyan Represented By
Kristine Theodesia Takvoryan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
12:00 PM
1:19-12952
Richard Lopez
Chapter 13
#79.00 Motion RE: Objection to Claim Number 4 by Claimant The Bank of New York Mellon c/o Specialized Loan Servicing, LLC with request for valuation of security, payment of fully secured claims, and modification of undersecured claims.
fr. 3/31/20, 4/28/20; 6/23/20
Docket 25
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
The motion to value will be resolved first
Party Information
Debtor(s):
Richard Lopez Represented By James Studer
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10566
Demetrio Camacho and Rosario Lua
Chapter 13
#1.00 Motion for relief from stay.
DEUTSCHE BANK NATIONAL TRUST CO
fr. 7/22/20
Docket 42
Debtor(s):
*** VACATED *** REASON: Moved to 8/27/20 at 10:00 per Order #47 - lf.
Party Information
Demetrio Camacho Represented By Kevin Tang
Joint Debtor(s):
Rosario Lua Represented By
Kevin Tang
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Erin Elam
Christopher Giacinto
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10781
Daniel Correa
Chapter 13
#2.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST COMPANY
fr. 6/24/20; 7/22/20
Docket 36
Debtor(s):
*** VACATED *** REASON: Moved to 8/27/20 at 10:00 per Order #42 - lf.
Party Information
Daniel Correa Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11165
Mercedes R. Morales
Chapter 13
#3.00 Motion for relief from stay
WILMINGTON SAVINGS FUND SOCIETY FSB CHRISTIANA TRUST
fr. 7/22/20
Docket 39
Debtor(s):
*** VACATED *** REASON: Moved to 8/27/20 at 10:00 per Order #42. lf Party Information
Mercedes R. Morales Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12791
Menco Pacific, Inc.
Chapter 11
#4.00 Post-Confirmation Status Conference
fr. 10/25/17, 12/13/17, 3/21/18; 3/28/18, 6/6/18; 11/7/18; 12/18/18, 2/20/19; 6/6/19/ 7/16/19; 8/8/19, 10/2/19; 12/11/19,
3/11/20
Docket 0
*** VACATED *** REASON: Moved to 8/27/20 at 11:00 per Order #522 - lf.
Party Information
Debtor(s):
Menco Pacific, Inc. Represented By Jeffrey S Shinbrot
11:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#5.00 Post-Confirmation Status Conference and Scheduling and Case Management Conference
fr. 2/6/19, 3/13/19; 4/3/19; 6/17/19; 6/24/19, 7/18/19 12/11/19, 3/11/20
Docket 1
Debtor(s):
*** VACATED *** REASON: Moved to 8/27/20 at 11:00 per order #181. lf Party Information
PB-1, LLC Represented By
Jeffrey S Shinbrot
8:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1608567744
Meeting ID: 160 856 7744 Password: G42DX#
Telephone Conference Lines: 1 (669) 254-5252 or 1 (646) 828-7666
Meeting ID: 160 856 7744
Password: 742252
Docket 0
Tentative Ruling:
8:00 AM
CONT... Chapter
NONE LISTED -
10:00 AM
1:19-10566
Demetrio Camacho and Rosario Lua
Chapter 13
#1.00 Motion for relief from stay.
DEUTSCHE BANK NATIONAL TRUST CO
fr. 7/22/20, 8/26/20
Docket 42
Tentative Ruling:
This hearing was continued from July 22, 2020, so that Debtors had an opportunity to apply for a loan modification, or negotiate an APO. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED.
7-22-20 TENTATIVE BELOW
Petition Date: 3/11/19 Ch.13; confirmed on 8/15/19
Service: Proper. Co-Debtor served. No opposition filed. Property: 13682 Judd Street, Pacoima, CA 91331 Property Value: $ 546,000 (per debtor’s schedules) Amount Owed: $ 328,556.80
Equity Cushion: 40.0% Equity: $217,443.2.
Post-Petition Delinquency: $9,076.33 (3 payments of $1,587.44 + 1 payment of
$2,760.01)
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). Movant alleges that the last payment of $1,578.44 was received on or about 2/25/20.
There appears to be sufficient equity to protect Movant's claim & a small delinquency. Have the parties discussed whether this delinquency can be cured via APO?
Party Information
10:00 AM
CONT...
Debtor(s):
Demetrio Camacho and Rosario Lua
Chapter 13
Demetrio Camacho Represented By Kevin Tang
Joint Debtor(s):
Rosario Lua Represented By
Kevin Tang
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Erin Elam
Christopher Giacinto
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10781
Daniel Correa
Chapter 13
#2.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST COMPANY
fr. 6/24/20; 7/22/20
Docket 36
Tentative Ruling:
This hearing was continued from 7/22/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion? TELEPHONIC APPEARANCE REQUIRED.
6-24-20 TENTATIVE BELOW
Ch. 13 Petition Date: 04/02/2019 Plan confirmed 07/22/2019
Service: Proper. Opposition filed 6/11/2020 Property: 8101 Etiwanda Ave, Reseda, CA 91335 Property Value: $490,000 (per debtor’s schedules) Amount Owed: $369,282.52
Equity Cushion: 24.6% Equity: $120,717.48
Post-Petition Delinquency: $7,167.74 (3 payments of $1,922.58 plus $1,400 post-petition advances)
Movant alleges that the last partial payment received was on or about 10/15/2019. Movant requests relief under 11 U.S.C. 362(d)(1) with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3(a) (Movant permitted to engage in loss mitigation activities); and 7 (relief from 4001(a)(3) relief from stay).
Debtor opposes the motion because the property is necessary for effective reorganization. Debtor wishes to enter an APO to catch up on post-petition arrears. Is Movant amenable to an APO?
10:00 AM
CONT...
Debtor(s):
Daniel Correa
Party Information
Chapter 13
Daniel Correa Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11165
Mercedes R. Morales
Chapter 13
#3.00 Motion for relief from stay
WILMINGTON SAVINGS FUND SOCIETY FSB CHRISTIANA TRUST
fr. 7/22/20, 8/26/20
Docket 39
Tentative Ruling:
This hearing was continued from 7/22/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion? TELEPHONIC APPEARANCE REQUIRED.
7-22-20 TENTATIVE BELOW
Petition Date: 05/10/2019
Ch. 13, confirmed on 01/02/2020 Service: Proper. No opposition filed.
Property: 15117 Oro Grand St. Sylmar, CA 91342 Property Value: $536,000
Amount Owed: $409,330.08 Equity Cushion: 24% Equity: $126,669.92
Post-Petition Delinquency: $8,228.63 (3 payments of $3,572.23 + $1,031.00 in attorney’s fees less suspense account or partially paid balance of
$3,519.06)
Movant alleges that postpetition mortgage payments due on the note secured by a deed of trust on the Property have not been made to Movant.
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)
10:00 AM
CONT...
Mercedes R. Morales
Chapter 13
stay).
There appears to be sufficient equity to protect Movant's claim & a small delinquency. Have the parties discussed whether this delinquency can be cured via APO?
Party Information
Debtor(s):
Mercedes R. Morales Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11203
Emily R. Kohlbrenner
Chapter 13
#4.00 Motion for relief from stay MECHANICS BANK
Docket 40
*** VACATED *** REASON: Resolved per APO (doc. 45) - hm Tentative Ruling:
Party Information
Debtor(s):
Emily R. Kohlbrenner Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10480
Eliachar Elliott Mamann
Chapter 13
#5.00 Motion for relief from stay, Non-Bankruptcy Forum
NICHOLAS GARCIA V. LISA KRITZELL, ELIACHAR ELLIOT MAMANN
Docket 27
Tentative Ruling:
Petition Date: 02/28/20 Ch. 13
Service: Proper.
Movant: Nicholas Garcia
Relief Sought to: Pursue Pending Litigation _X
Commence Litigation
Pursue Insurance
Litigation Information
Other
Case Name: Nicholas Garcia v. Lisa Kritzell, Eliachar Elliott Mann, and Does 1 through 50.
Court/Agency: Superior Court of the State of California, County of Los Angeles Date Filed: 9/12/2019
Trial Start Date: 3/11/21
Action Description: Personal Injury/Negligence case involving the alleged misuse of a rifle that caused serious injuries to the Plaintiff.
Grounds
Bad Faith X
Claim is Insured
Claim Against 3rd Parties X
Nondischargeable Mandatory Abstention Non-BK Claims Best Resolved in Non-BK Forum X_Other: The movant's claim is a personal injury claim. The co- defendant, Lisa Kritzell, is asserting the stay pursuant to 11 U.S.C. § 1301 even though the underlying claim isn't a consumer debt pursuant to 11 U.S.C. § 101(8).
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in
10:00 AM
CONT...
Eliachar Elliott Mamann
Chapter 13
paragraphs 2 (proceed under non-bankruptcy law); 4 (termination of co-debtor stay of 1301(a)); 5 (waiver of the 4001(a)(3) stay); 6 (order binding in any bankruptcy case commenced by or against the Debtor for a period of 180 days); 7 (order binding and effective on any future bankruptcy case, no matter who the debtor maybe, without further notice).
Movant seeks recovery primarily from third parties and agrees that the stay will remain in effect as to enforcement of any resulting judgment against the Debtor or bankruptcy estate, except that Movant will retain the right to file a proof of claim under 11 U.S.C. § 501 and/or an adversary complaint under 11 U.S.C. § 523 or § 727 in this bankruptcy case. Further, this is a general negligence/personal injury action which could be more expeditiously resolved in the Superior Court of California.
Additionally, the movant alleges that the bankruptcy case was filed in bad faith. The Movant is the only creditor, or one of very few, listed on the schedules and the timing of the filling of the bankruptcy petition indicates it was intended to delay or interfere with the State Court action – the debtor filed one month after filing a general denial in the State Court case. Furthermore, the Debtor’s bankruptcy has been used as a basis for the co-defendant Lisa Kritzell to avoid depositions.
Debtor opposes relief from stay and argues that the co-debtor stay applies because the debt is considered "consumer debt." The Debtor alleges that the bankruptcy case was not filed in bad faith; rather, the primary purpose of the bankruptcy filing was to establish a payment plan. Finally, the Debtor asserts the litigation in the State Court is unnecessary, burdensome and expensive to the Debtor even if the litigation is primarily directed against Lisa Kritzell. The Movant responded to the Debtor’s opposition and seeks to strike the Debtor’s response because the Debtor lacks standing to oppose on behalf of Lisa Kritzell. The Movant is insistent that the co-debtor stay is inapplicable, that the bankruptcy case was filed in bad faith, and that the claims can be most efficiently litigated in the State Court.
Tentative Ruling:
For the co-debtor stay to apply, two conditions must be met: the debt involved must be a consumer debt; and the co-debtor must be an individual. 11 U.S. Code § 1301(a). Section 101(8) of the Bankruptcy Code defines a consumer debt as "debt incurred by an individual primarily for a personal, family, or household purpose." Debts arising
10:00 AM
CONT...
Eliachar Elliott Mamann
Chapter 13
from tort liability judgements do not fit within §101(8)’s definition of a consumer debt. Tinajero v. Zavala (In re Tinajero), 2020 WL 4673235 (9th Cir. BAP 2020); In re Marshalek, 158 B.R. 704, 707 (Bankr. N.D. Ohio 1993). Since the underlying debt in question arises from a negligence/personal injury action, the debt is not considered a consumer debt and not co-debtor stay is in effect.
According to the Debtor’s Schedules E/F there are only three creditors with outstanding balances, the largest creditor being the Movant (the total outstanding balance to creditors is $37,430.00 and Nicholas Garcia accounts for $30,000.00 of the total). Additionally, the Debtor filed this bankruptcy case a month after filing a general denial in the State Court case. Finally, the Debtor’s opposition makes clear that there is no intention of wanting to liquidate the Movant’s claim. Accordingly, the bankruptcy case was filed in bad faith to delay the State Court case.
The Bankruptcy Court does not have core jurisdiction to liquidate or estimate contingent or unliquidated personal injury tort claims against the estate. 28 U.S. Code
§ 157(b)(2)(B). There is a clear congressional policy that exists to give state law claimants a right to have claims heard in state court. See 28 U.S.C. § 1334(c).
Additionally, the Movant has a right to a jury trial that is reserved under 28 U.S. Code
§ 1411(a), and the Bankruptcy Court cannot conduct a jury trial without special designation by the District Court and with express consent of the parties. 28 U.S. Code § 157(e). Considering there is already a pending action in the State Court which can efficiently liquidate the damages on the Movant’s personal injury/negligence claim without the hurdles imposed by the Bankruptcy Code, the Court believes that the non-bankruptcy action can be tried more expeditiously in the State Court.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraphs 2 (proceed under non-bankruptcy law); 4 (termination of co-debtor stay of 1301(a)); 5 (waiver of the 4001(a)(3) stay); 6 (order binding in any bankruptcy case commenced by or against the Debtor for a period of 180 days).
DENY request for relief under paragraph 7 (order binding and effective on any future bankruptcy case, no matter who the debtor maybe, without further notice), as such relief requires an adversary complaint under FRBP 7001.
REMOTE APPEARANCE REQUIRED
10:00 AM
CONT...
Debtor(s):
Eliachar Elliott Mamann
Party Information
Chapter 13
Eliachar Elliott Mamann Represented By William E. Winfield
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10601
Bobby Jugueta Carlos and Queen Zara Carlos
Chapter 13
#6.00 Motion for relief from stay KIA MOTORS FINANCE
Docket 23
Tentative Ruling:
Petition Date: 03/12/20 Plan Confirmed: 06/05/20
Service: Proper. No Objection.
Property: 2015 Kia Soul (VIN # KNDJP3A50F7192242)
Property Value: $7,800 (per Debtor’s schedules) Amount Owed: $5,864.64 (per Movant’s declaration) Equity Cushion: 24%
Equity: $1,935.36
Post-Petition Delinquency: $1,650 (5 payments of $330.00)
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 6 (waiver of the 4001(a)(3) stay). Movant alleges that its’ interest in the Property is not adequately protected because the Debtors have not provided the Movant with proof of insurance regarding the Property and have not kept current on post- petition payments.
Disposition: GRANT under 11 U.S.C. 362(d)(1). GRANT relief requested in paragraph 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.
Party Information
Debtor(s):
Bobby Jugueta Carlos Represented By
10:00 AM
CONT...
Bobby Jugueta Carlos and Queen Zara Carlos
James G. Beirne
Chapter 13
Joint Debtor(s):
Queen Zara Carlos Represented By James G. Beirne
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:10-14553
Anatoliy Kouzine
Chapter 7
#7.00 Motion to Set Aside, Vacate, and Reconsider the Order to Show Cause Why Lev Yasnogorodsky and Counsel Should Not Be held in Civil Contempt and
Sanctioned For Failing to Remedy Continuing Violations of the Discharge Injunction and Automatic Stay
Docket 32
*** VACATED *** REASON: Cont'd to 9/2/2020 at 10:30 a.m. - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Anatoliy Kouzine Represented By Elena Steers
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:19-11741
Christian M. Alvarez
Chapter 7
#8.00 Trustee's Final Report and Applications for Compensation
Docket 30
Tentative Ruling:
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 8-27-2020.
Party Information
Debtor(s):
Christian M. Alvarez Represented By
R Grace Rodriguez
Trustee(s):
Amy L Goldman (TR) Pro Se
10:30 AM
1:16-13077
David Saghian
Chapter 7
#8.01 Motion for Issuance of Order to Show Cause re Contempt Against Avraham Shemuelian for Willful Violation of Court Orders
Docket 123
Tentative Ruling:
ZOOMGOV APPEARANCE REQUIRED.
The trustee's evidentiary objections will be sustained.
The opposition is adding terms to the sale order that were never part of the sale. On what basis does it do so?
Party Information
Debtor(s):
David Saghian Pro Se
Trustee(s):
Diane C Weil (TR) Represented By Michael G D'Alba Eric P Israel David Seror
Jessica L Bagdanov
10:30 AM
1:18-11545
Ian Ellis Silber and Jane Ellen Silber
Chapter 11
#9.00 First Interim Application by Resnik Hayes Moradi LLP,
General Bankruptcy Counsel for the Debtor, for Allowance
of Fees and Reimbursement of Costs for the Period June 3, 2019 Through June 21, 2020 Fee: $35,853.00, Expenses: $77.65.
Docket 151
*** VACATED *** REASON: Moved to 11:00 a.m. per order #156. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ian Ellis Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia Joyce Owens
Joint Debtor(s):
Jane Ellen Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
11:00 AM
1:19-12485
Alisa Khachatryan
Chapter 7
Adv#: 1:20-01064 United States Trustee (SV) v. Khachatryan
#10.00 Status Conference re: Complaint objecting to discharge
Docket 1
Tentative Ruling:
Discovery cut-off (all discovery to be completed*): November 23, 2020
Expert witness designation deadline (if necessary): to be decided later
Case dispositive motion filing deadline (MSJ; 12(c)): File before pretrial stipulation is due
Pretrial conference: January 13, 2021, at 11:00 a.m.
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference) : December 30, 2020
*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
CONT...
Alisa Khachatryan
Chapter 7
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.
Party Information
Debtor(s):
Alisa Khachatryan Represented By Aidan Butler
Defendant(s):
Alisa Khachatryan Pro Se
Plaintiff(s):
United States Trustee (SV) Represented By Katherine Bunker
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:16-12791
Menco Pacific, Inc.
Chapter 11
#11.00 Post-Confirmation Status Conference
fr. 10/25/17, 12/13/17, 3/21/18; 3/28/18, 6/6/18; 11/7/18; 12/18/18, 2/20/19; 6/6/19/ 7/16/19; 8/8/19, 10/2/19; 12/11/19,
3/11/20
Docket 0
Tentative Ruling:
ZOOMGOV APPEARANCE REQUIRED.
Party Information
Debtor(s):
Menco Pacific, Inc. Represented By Jeffrey S Shinbrot
11:00 AM
1:18-11545
Ian Ellis Silber and Jane Ellen Silber
Chapter 11
#12.00 Ch. 11 Scheduling and Case Management Conference
Docket 0
Tentative Ruling:
Deadlines proposed by debtors are fine
Party Information
Debtor(s):
Ian Ellis Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia Joyce Owens
Joint Debtor(s):
Jane Ellen Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
11:00 AM
1:18-11545
Ian Ellis Silber and Jane Ellen Silber
Chapter 11
#12.01 First Interim Application by Resnik Hayes Moradi LLP,
General Bankruptcy Counsel for the Debtor, for Allowance
of Fees and Reimbursement of Costs for the Period June 3, 2019 Through June 21, 2020 Fee: $35,853.00, Expenses: $77.65.
Docket 151
Tentative Ruling:
Service proper. No objections filed. Having reviewed the First Interim 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 8-27-2020.
Party Information
Debtor(s):
Ian Ellis Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia Joyce Owens
Joint Debtor(s):
Jane Ellen Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
11:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#13.00 Post-Confirmation Status Conference and Scheduling and Case Management Conference
fr. 2/6/19, 3/13/19; 4/3/19; 6/17/19; 6/24/19, 7/18/19 12/11/19, 3/11/20, 8/26/20
Docket 1
Tentative Ruling:
ZOOMGOV APPEARANCE REQUIRED.
Party Information
Debtor(s):
PB-1, LLC Represented By
Jeffrey S Shinbrot
1:00 PM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#13.01 Motion to Withdraw as Defendant's Counsel
Docket 287
Tentative Ruling:
REMOTE APPEARANCE REQUIRED
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Gordon Jones Represented By
Michael Worthington
Plaintiff(s):
John Levin, M.D. Represented By Michael Jay Berger
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
1:00 PM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:20-01022 Jones v. Levin
#13.02 Motion to Withdraw as Attorney by Michael Worthington
Docket 45
Tentative Ruling:
REMOTE APPEARANCE REQUIRED
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Levin Represented By
Michael Jay Berger
Plaintiff(s):
John Gordon Jones Represented By
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
2:00 PM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#14.00 Tentative By Zoom
Status Conference RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19,3/11/20; 5/13/20; 7/17/20, 7/23/20
Docket 21
Tentative Ruling:
Motions on file provide most of status. Can be continued to 9/9 at 10:30 am to be heard with other motions if no need to discuss any issues today. Will keep all on calendar in case a hearing is needed, but it appears that most issues can wait until 9/9
ZoomGov APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
2:00 PM
CONT...
Movant(s):
Hawkeye Entertainment, LLC
Chapter 11
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
2:00 PM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#15.00 Motion of Debtor and Debtor-In-Possession for an Order Pursuant to Section 7037 of the Bankruptcy Code Compelling Third-Party Peter Gonzalez to Produce Documents and attend Deposition
Docket 116
Tentative Ruling:
No opposition. GRANTED
Debtor(s):
Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
2:00 PM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#16.00 Motion of Debtor and Debtor-In-Possession for an Order Pursuant to Section 7037 of the Bankruptcy Code Compelling Third-Party Timothy Kim to Produce Documents and Attend Deposition
Docket 117
Tentative Ruling:
No opposition. GRANTED
Debtor(s):
Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Monday, August 31, 2020
Hearing Room
302
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19; 6/25/20
Docket 21
Debtor(s):
*** VACATED *** REASON: Trial continued to 10/13/20 - 10/16/20 - hm Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Tuesday, September 1, 2020
Hearing Room
302
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
(1) Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19, 6/25/20; 6/26/20
Docket 21
Debtor(s):
*** VACATED *** REASON: Trial continued to 10/13/20 - 10/16/20 - hm Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
8:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1608196397
Meeting ID: 160 819 6397 Password: 8m9Xqp
Telephone Conference Lines: 1 (669) 254-5252 or 1 (646) 828-7666
Meeting ID: 160 819 6397
Password: 156569
Docket 0
8:00 AM
CONT... Chapter
Tentative Ruling:
NONE LISTED -
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
(1) Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19, 6/26/20
Docket 21
*** VACATED *** REASON: Trial continued to 10/13/20 - 10/16/20 - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:00 AM
1:17-12885
Karen Marcy Santos Pham
Chapter 13
#2.00 Motion for relief from stay WELLS FARGO BANK, N.A.
Docket 62
*** VACATED *** REASON: Resolved per APO - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Karen Marcy Santos Pham Represented By Michael Jay Berger
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-10021
Michael David Kemper
Chapter 13
#3.00 Motion for relief from stay WELLS FARGO BANK N.A.
Docket 65
Tentative Ruling:
Petition Date: 1/4/2018
Chapter 13 plan confirmed: 8/24/2018 Service: Proper. Opposition filed.
Property: 10151 Montgomery Ave., Los Angeles (North Hills), CA 91343 Property Value: $585,000 (per debtor’s schedules)
Amount Owed: $287,163 Equity Cushion: 51% Equity: $297,837
Post-Petition Delinquency: $8,202.62 (three payments of $2,267.54, plus post- petition advances of $1,400)
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 it received for this claim was for
$8,917.31, received on or about 3/6/2020.
Debtor opposes the Motion, stating that he sent a payment of $5,000 to Movant as a partial cure. Debtor explains that his sign making business has been negatively affected by the COVID-19 pandemic (after an initial surge to create COVID signage) and he is marketing to new businesses to increase his income. Debtor wishes to enter into an APO to cure any remaining deficiency.
There appears to be a large equity cushion here - have the parties discussed whether any remaining deficiency can be cured by an APO?
REMOTE APPEARANCE REQUIRED
10:00 AM
CONT...
Debtor(s):
Michael David Kemper
Party Information
Chapter 13
Michael David Kemper Represented By John B Laing
Movant(s):
Wells Fargo Bank , N.A. Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11965
Ian Jacoby
Chapter 7
Adv#: 1:18-01117 Williams v. Jacoby
#4.00 Pre trial conference re complaint for: willful and malicious injury
fr. 1/9/19, 10/23/19, 1/15/20; 3/11/20
Docket 1
Tentative Ruling:
The parties should explain whether any issues with a discovery cutoff* of December 18, 2020.
Pretrial conference will be set for March 31, 2021 at 11 am Are any case dispositive motions planned?
All discovery disputes should be resolved before the discovery cut off date Plaintiff to submit a scheduling order
*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.
PLAINTIFF TO LODGE SCHEDULING ORDER CONTAINING THESE PROVISIONS WITHIN 7 DAYS.
Party Information
Debtor(s):
Ian Jacoby Represented By
Andrew Goodman Vincent V Frounjian
Defendant(s):
Ian Jacoby Pro Se
10:00 AM
CONT...
Ian Jacoby
Chapter 7
Plaintiff(s):
Garrett Williams Represented By Lazaro E Fernandez
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:19-13095
Ben Byuzand Militonyan
Chapter 13
#4.01 Motion RE: Objection to Claim Number 7 by Claimant Parts Authority Metro, LLC,
A California Limited Liability Company. fr. 6/23/20; 8/25/20
Docket 46
Tentative Ruling:
ZoomGov appearance required on 9-2-2020
6-23-20 TENTATIVE BELOW
Debtor owns and operates Ben’s Auto Parts. He purchases auto parts from wholesale distributors, such as Parts Authority Metro, and supplies the auto parts directly to the consumer. Prior to the Petition Date, on or about June 5, 2019, Parts Authority Metro filed an action against Debtor in Superior Court (the “State Court Action”) alleging that the Debtor owed $348,269.99 in debt which it broke down into three distinct debts: (1) $168,000 remaining debt on a “Promissory Note”; (2) $114,609 unpaid invoices on the “Payoff Account”; and (3) $65,660 unpaid invoices on the “Buying Account”. The State Court Action was not adjudicated because Debtor filed bankruptcy. Debtor's objection is premised on his argument that Debtor has made a substantial amount of payments that are not reflected in the Proof of Claim.
With respect to the Promissory Note, Debtor explains that he entered into a promissory note on October 1, 2015 with Metropolitan Automotive Warehouse (the “Promissory Note”) whereby he promised to pay $512,654.84 by making monthly payments of $5,000 with the final payment due on April 1, 2024. At the time the State Court Action commenced, Debtor contends that he had paid off over two-thirds of the debt in less than half the life of the debt with five (5) years remaining to pay off the balance of $168,000. Furthermore, the Promissory Note was secured by a security agreement, giving Metropolitan Automotive Warehouse a security interest in all inventory held by Ben’s Auto Parts (the “Security Agreement”). This Security Agreement is the basis of a UCC-1 filing
10:00 AM
CONT...
Ben Byuzand Militonyan
Chapter 13
with the California Secretary of State. In addition to making the monthly payments as outlined above, Debtor claims that he turned over to Parts Authority Metro approximately $200,000 worth of inventory in repayment of the debt. Decl. of Militonyan, Ex. 2. Debtor maintains that the ledger provided by Claimant underestimates the value of the total credit as $160,784.93 and that, to date, no credit has been applied to the debt, and no mention of this credit was made in Claimant’s Claim.
With respect to the Payoff Account, Debtor argues that he paid off the account well before the State Court Action commenced, having made payments totaling
$114,007.67 and does not owe a balance on this account. Decl. of Militonyan, Ex.3. As to the Buying Account, Debtor contends that he has been making payments on this account in the ordinary course of business totaling $58,883.11 and owes a balance of less than $7,000. Decl. of Militonyan, Ex. 4. Accordingly, Debtor requests that Parts Authority Metro’s Claim be disallowed, as Claimant has failed to provide evidence to substantiate the full amount of the debt asserted in its Claim. Additionally, the Debtor requests that the Claimant provide a full accounting and credit him for all payments/credits made.
Parts Authority opposes the Motion, arguing that the balance on the promissory note was accelerated for nonpayment and thus the entire $165,000 is due and payable now. Parts Authority points out that Debtor seems to acknowledge that he owes a secured balance of $168,000 on the Promissory Note. Decl. of Militonyan, ¶ 5. It also asserts that the balance on the Payoff Account is
$114,609.59. as no payment has been made on the Payoff Account since September 29, 2018. Lastly, Parts Authority disputes Debtor's explanation of how the Buying Account is credited and his assertion that he is due credits that would reduce the amount owed. Parts Authority explains that it agreed to take back product and credit Debtor's Buying Account for the amount he had paid, less a 15% restocking charge. Bauby Decl. ISO Opposition. Parts Authority contends that Debtor returned product in the amount of $171,315.21 and credited Debtor's account $160,784.93 (the value, less the 15% restocking charge).
The parties should be prepared to discuss if this contested matter requires an evidentiary hearing to resolve these accounting issues, or whether the parties
10:00 AM
CONT...
Ben Byuzand Militonyan
Chapter 13
would prefer a continuance to attempt to resolve the issues consensually.
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Ben Byuzand Militonyan Represented By
Kristine Theodesia Takvoryan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10457
Lidia Ovando Aguila
Chapter 13
#5.00 Motion for relief from stay PINGORA LOAN SERVICING, LLc
Docket 38
Tentative Ruling:
Petition Date: 2/26/2020 Chapter: 13
Service: Proper. Conditional non-opposition filed. Property: 1716 Crossroads St., Chula Vista, CA 91915 Property Value: not listed on Debtor's schedules Amount Owed: $771,808.92
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 alleges that this bankruptcy is the fifth case to have affected its foreclosure sale of this real property.
Debtor filed a conditional non-opposition, in which she explains that she has no interest in this real property and does not oppose relief from stay. She does, however, oppose any finding of bad faith on her part.
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), with no findng of bad faith as to this Debtor).
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
10:00 AM
CONT...
Lidia Ovando Aguila
Chapter 13
MOVANT IS ORDERED TO SERVE A COPY OF THE ENTERED ORDER ON THE ORIGINAL BORROWER AT THE ADDRESS OF THE AFFECTED PROPERTY.
Party Information
Debtor(s):
Lidia Ovando Aguila Represented By Dana M Douglas
Movant(s):
Pingora Loan Servicing, LLC, and Represented By
Christina J Khil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:30 AM
1:10-14553
Anatoliy Kouzine
Chapter 7
#5.01 Motion to Set Aside, Vacate, and Reconsider the Order to Show Cause Why Lev Yasnogorodsky and Counsel Should Not Be held in Civil Contempt and
Sanctioned For Failing to Remedy Continuing Violations of the Discharge Injunction and Automatic Stay
fr. 8/27/20
Docket 32
Tentative Ruling:
On July 27, 2007, Yasnogorodsky filed Los Angeles Superior Court Case No. BC382156 entitled Yasnogorodsky v. Kouzine. The State Court granted judgment (the "Initial in favor of the Yasnogorodsky and against the Debtor for $132,575.81. Movants’ Ex. D & E. The Abstract of Judgment related to the Initial Judgment was issued and was later recorded on March 25, 2009. Movants’ Ex. F. On November 4, 2009, Yasnogorodsky commenced an action against the Debtor and Marina Drabkin for violation of the California Uniform Fraudulent Transfer Act (the "Fraudulent Transfer Action"). Thereafter, the Debtor filed a Chapter 7 Bankruptcy on April 19, 2010. Yasnogorodsky and his counsel (collectively the "Movants") were not notified of the bankruptcy petition.
The Fraudulent Transfer Action was reduced to judgment in favor of the Movant for a sum of $136,778.51. Movant’s Ex. G. The Abstract of Judgment for the Fraudulent Transfer Action was issued and later recorded on June 9, 2010. Movant’s Ex. H. The Debtor received her discharge from bankruptcy on August 16, 2010. On January 27, 2020, the Debtor filed a motion for sanctions for violation of the automatic stay and violation of discharge injunction against the Movants. Docket No. 25. The Movant’s counsel received a copy of the Debtor’s motion, but the motion was never scheduled for a hearing. On March 6, 2020, the Order to Show Cause ("OTSC") the Movant and his counsel should not be held in civil contempt and sanctioned for failing to remedy continuing violation of the discharge injunct and automatic stay is issued. The Movants never received the OTSC. The Court conducted a hearing on the OTSC on April 1, 2020 and the order granting the OTSC was entered. Again, the Movants never received a copy
10:30 AM
CONT...
Anatoliy Kouzine
Chapter 7
of the order granting the OTSC. On April 21, 2020, the Debtor’s counsel filed the Statement of Attorney’s Fees and Costs. Docket No. 31.
On June 9, 2020, Movants filed a Motion to Set Aside, Vacate, and Reconsider the Order to Show Cause, (the "Motion to Reconsider," ECF doc. 32). Thereafter, the Court set a briefing schedule and a hearing on the Motion for Reconsideration.
Legal Standard
Under Rule 60, the moving party is not permitted to revisit the merits of the underlying order; instead, grounds for reconsideration require a showing that events subsequent to the entry of the judgment make its enforcement unfair or inappropriate, or that the party was deprived of a fair opportunity to appear and be heard. Wylie, 349 B.R. 204, 209 (B.A.P. 9th Cir. 2006). Under Rule 60, the court may relieve a party from an order for:
mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
the judgment is void;
the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; and
any other reason that justifies relief. Fed. R. Civ. P. 60(b).
A Rule 60(b) motion for reconsideration is timely if brought within a reasonable time and if based on grounds (1), (2), or (3) enumerated above, then no more than a year after entry of the order. Fed. R. Civ. P. 60(c).
Analysis
The Movants seek to set aside the OTSC and the Movants’ motion should be
10:30 AM
CONT...
Anatoliy Kouzine
Chapter 7
deemed an opposition to the OTSC and Debtor’s motion for sanctions; or in the alternative, provide the Movants with an opportunity to file an opposition to the OTSC and Debtor’s motion for sanctions. The Movants assert that the first time they received notice of OTSC hearing and order the OTSC was in an email on June 1, 2020. The Movants wants an opportunity to be heard, which they argue has been denied to them due to lack of notice. Additionally, the Movants assert they have meritorious defenses to the underlying issues in the OTSC and Debtor’s motion for sanctions which include: (1) allegations that the Debtor has used the courts to defraud creditors; (2) the movants had no knowledge or notice of the Debtor’s bankruptcy case when the Fraudulent Transfer Action’s Abstract was issued and recorded; and (3) there are several bases for why the lien should not be voided.
The Debtor does not object to the Movants’ arguments about them not receiving notice of the OTSC hearing according to the BNC. Debtor denies that there was any intent to defraud the Movants as to the notice issue. Debtor also denies that it has used the courts to defraud the Movants and asserts that the recording of a judgment lien after the filing of a bankruptcy petition is void.
Here, the Movants argue that there was a surprise that stemmed from the OTSC hearing and subsequent order granting the OTSC because they lacked notice. According to the Movants’ motion for reconsideration, the Movants received, or at least one of them received, the Debtor’s motion for sanctions for violation of the automatic stay and violation of discharge injunction and request for an OTSC. Pursuant to LBR 9021-(b)&
there are no hearings on these motions and the Movants had 7 days to file an opposition to the OTSC and failed to do so.
Nevertheless, once the OTSC was issued, the Debtor had a duty to serve the Movants per LBR 9021-1(e), which the Debtor failed to do. The BNC Certifications of Notice for the OTSC (Docket No. 28) and for the order granting the OTSC (Docket No 30) show that the Movants had not been served. Without being properly notified of the OTSC hearing, the Movants were deprived of the opportunity to argue against a finding of contempt. Accordingly, the Court finds cause under Rule 60(b) for vacating the order granting the OTSC.
The Motion for Reconsideration is GRANTED and the OSC (ECF doc 29) is VACATED. The Court will set a briefing schedule and hearing on the Motion for OSC
10:30 AM
CONT...
Anatoliy Kouzine
Chapter 7
(ECF doc. 25). APPEARANCE REQUIRED
Party Information
Debtor(s):
Anatoliy Kouzine Represented By Elena Steers
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:20-01066 DAVID K. GOTTLIEB, CHAPTER 7 TRUSTEE v. Montgomery et al
#6.00 Status Conference Re: Complaint to Avoid and Recover Fraudulent Transfers,
for Declaratory Relief, and for Constructive Trust
Docket 1
*** VACATED *** REASON: continued to October 7, 2020 per stip. (doc 8)-rc
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Albert Lee Represented By
M Teri Lim
Defendant(s):
Jodi Pais Montgomery Pro Se
David Berrent Pro Se
Plaintiff(s):
DAVID K. GOTTLIEB, CHAPTER Represented By
Jivko Tchakarov
Trustee(s):
David Keith Gottlieb (TR) Represented By Howard Camhi Peter A Davidson Byron Z Moldo
8:00 AM
1:00-00000 Chapter
#0.00 This calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1600677231
Docket 0
8:00 AM
CONT... Chapter
Tentative Ruling:
NONE LISTED -
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19, 6/26/20, 6/29/20
Docket 21
*** VACATED *** REASON: Trial continued to 10/13/20 - 10/16/20 - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
2:00 PM
1:19-11659
Nicolas Mendez Rodriguez
Chapter 7
#2.00 ZOOM HEARNG RE:Evidentiary for Motion to Avoid Lien Judicial
Lien under section 522(f) (Berta Hernandez and Jose Eduardo Hernandez- Hlnojosa)
fr. 12/11/19, 4/3/20, 6/11/20; 7/16/20
Docket 44
Tentative Ruling:
APPEARANCE BY ZOOMGOV REQUIRED
Party Information
Debtor(s):
Nicolas Mendez Rodriguez Represented By Steven A Simons
Trustee(s):
David Seror (TR) Pro Se
8:00 AM
1:00-00000 Chapter
#0.00 You will not be permitted to be physically present in the courtroom.
Docket 0
Tentative Ruling:
NONE LISTED -
10:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 Motion of Smart Capital Investments for An Order Pursuant to Section 7037 of the Bankruptcy Code Compelling W.E.R.M. Investments, LLC to Produce Documents and Attend and Answer Questions at Additional Day of Deposition
Docket 142
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#2.00 Motion By Subtenant, W.E.R.M. Investments, LLC For Protective Order Related to Certain Financial Information and Trade Secrets Pursuant to
FED R.CIV.P.26(C)(7) (Incorporated By FED.R. BANKR.P. 9014 and 7026)
Docket 144
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
8:00 AM
1:00-00000 Chapter
#0.00 This calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1604528749
Docket 0
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#1.00 Pre-Trial Status Conference re: Complaint
fr. 8/29/18, 2/20/19, 6/26/19; 9/11/19, 12/4/19, 4/1/20, 5/1/20, 7/10
Docket 1
Party Information
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
9:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1615536757
9:00 AM
CONT... Chapter
Docket 0
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
9:30 AM
1:18-10222
Maria Audelia Navarro
Chapter 13
#1.00 Motion for relief from stay
COLONY COVE I HOMEOWNERS ASSOCIATION
fr. 7/15/20, 8/19/20
Docket 66
Matter Notes:
NONE LISTED -
Tentative Ruling:
Continued from 07/15/20
This Motion was continued to allow the Movant to properly serve the Motion under Rule 4001. Movant to File Amended Proof of Service before 07/28/20 for the Motion to be considered on its merits. The Notice of Motion was amended 07/24/20 and senior mortgagee properly served.
Movant (HOA) requested relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 7 (waiver of the 4001(a)(3) stay). Movant requested relief to pursue a judgment against debtor for dues owed, alleging that the last payment of $30 was received was on or about 6/06/2019.
Debtor opposed the Motion and argued Movant is in breach of their CC&R agreement. Debtor argues that dues abated until repairs are made and Movant has not properly applied payments. Debtor seeks APO for any deficiency.
TELEPHONIC APPEARANCE REQUIRED.
Tentative from 7/15 below Petition Date: 1/25/18
9:30 AM
CONT...
Maria Audelia Navarro
Chapter 13
Ch.13; confirmed on 10/05/2018
Service: Proper on Debtor. Opposition filed. Senior lienholder (Deutsche) not served
Property: 8333 Columbus Ave, Unit #2, North Hills, CA 91343 Property Value: $348,943
Amount Owed: $ $22,594.76; senior mortgage owed $288,705.25 Equity Cushion: 10.8%
Equity: $37,643.49
Post-Petition Delinquency: $5,991.60 (17 payments of $330.00 + 2 payments of $288.60 less suspense $255.60)
Movant (HOA) requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 7 (waiver of the 4001(a)(3) stay). Movant requests relief to pursue a judgment against debtor for dues owed, alleging that the last payment of $30 was received was on or about 6/06/2019.
Debtor opposes the Motion and argues Movant is in breach of their CC&R agreement. Debtor argues that (1) dues abated until repairs are made; (2) Movant has not properly applied payments. Debtor seeks APO for any deficiency.
This Motion is CONTINUED to August 19, 2020 at 10:00 am, to allow Movant to properly serve the Motion under Rule 4001. Movant to File Amended Proof of Service before July 28, 2020 for the Motion to be considered on its merits at the continued hearing.
NO APPEARANCE REQUIRED on July 15, 2020
Party Information
Debtor(s):
Maria Audelia Navarro Represented By Donald E Iwuchuku
Movant(s):
Colony Cove I Homeowners Represented By Reilly D Wilkinson
9:30 AM
CONT...
Trustee(s):
Maria Audelia Navarro
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-13113
Avetis Dzhigryan
Chapter 13
#2.00 Motion for relief from stay
THE BANK OF NEW YORK MELLON
fr. 6/10/20, 7/15/20, 8/19/20
Docket 22
*** VACATED *** REASON: Resolved by Order Granting APO Docket No. 33 -tkm
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Avetis Dzhigryan Represented By Aris Artounians
Movant(s):
The Bank of New York Mellon f/k/a Represented By
Austin P Nagel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-11417
Farshid Tebyani
Chapter 13
#3.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST
Docket 88
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 5/10/2016
Chapter 13 plan confirmed: 3/9/2017 Service: Proper. No opposition filed.
Property: 8466 Hillcroft Dr., West Hills, CA 91307
Property Value: $1,850,000 (per debtor’s amended schedules, ECF doc. 37) Amount Owed: $606,983.71 (2nd DoT)
Equity Cushion: 37% (1st DoT = $407,199, held by Wilmington Trust, assuming
8% Cost of Sale) Equity: $835,817.29
Post-Petition Delinquency: $12,366.84 (4 payments of $3,821.93, less suspense account balance of $2,920.88)
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 for this claim was for
$10,000 on or about 4/9/2020.
There appears to be a large equity cushion here - have the parties discussed whether any deficiency can be cured by an APO?
APPEARANCE REQUIRED
Party Information
10:00 AM
CONT...
Debtor(s):
Farshid Tebyani
Chapter 13
Farshid Tebyani Represented By Devin Sawdayi
Movant(s):
Deutsche Bank National Trust Represented By April Harriott Michael S Kogan Seth Greenhill Keith Labell Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-10811
Daniel Mora
Chapter 13
#4.00 Motion for relief from stay
WILMINGTON SAVINGS FUND SOCIETY
Docket 49
*** VACATED *** REASON: Resolved by order granting APO Docket 56– tkm
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Daniel Mora Represented By
Axel H Richter
Movant(s):
Wilmington Savings Fund Society, Represented By
Robert P Zahradka
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-11777
Cindy Lee Harris
Chapter 13
#5.00 Opposition to Declaration of Specialized Loan Servicing LLC Re: Default Under Adequate Protection Order; Request for Entry of Order Granting Relief from Stay
Docket 92
*** VACATED *** REASON: Withdrawal was filed - Doc #92. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Cindy Lee Harris Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12596
Lynne Suzanne Boyarsky
Chapter 13
#6.00 Motion for relief from stay CITIBANK, N.A.
fr. 9/11/19, 10/16/19, 12/4/19, 1/15/20, 4/1/20, 5/13/20, 7/15/20
Docket 64
*** VACATED *** REASON: Ntc. of w/drawal filed 9/3/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
Continued from 7/15/20.
This hearing has been continued several times, the last by stipulation. Nothing has been filed since the last stipulation. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Lynne Suzanne Boyarsky Represented By Matthew D Resnik
Movant(s):
Citibank, N.A. Represented By Robert P Zahradka
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11994
Raul Eduardo Melgar Castillo
Chapter 13
#6.01 Motion for relief from stay WELL FARGO BANK
Docket 43
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Raul Eduardo Melgar Castillo Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10594
Shahin Motallebi
Chapter 13
#7.00 Motion for relief from stay MOJGAN BOODAIE
Docket 78
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 3/14/2019 Chapter: 13
Service: Proper. No opposition filed. Movant: Mojgan Boodaie
Relief Sought to: Pursue Pending Litigation XX Commence Litigation
Litigation Information
Pursue Insurance
Other
Case Name: Mojgan Boodaie v. Shahin Motallebi Court/Agency: LA Superior Court, Santa Monica Div. Date Filed: 1/17/2020
Judgment Entered: n/a Trial Start Date: unk.
Action Description: post-petition unauthorized use of Attorney Client Trust account funds (breach of contract; misrepresentation)
Grounds
Bad Faith Claim is Insured Claim Against 3rd Parties
Nondischargeable
Mandatory Abstention XX Non-BK Claims Best Resolved in Non-BK Forum XX
Other: Movant contends that the alleged events occurred post-petition and that if she obtains a judgment, Movant will not seek remedies againstthe estate property (if Debtor's plan is confirmed)
10:00 AM
CONT...
Shahin Motallebi
Chapter 13
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.
Party Information
Debtor(s):
Shahin Motallebi Represented By Matthew D. Resnik
Movant(s):
Mojgan Boodaie Represented By Charles Shamash David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11757
Larry Mark Gotlieb
Chapter 13
#8.00 Motion for relief from stay US BANK TRUST N.A.
Docket 64
*** VACATED *** REASON: Resolved Per Order Granting APO 68– tkm Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Larry Mark Gotlieb Represented By Kenneth H J Henjum
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11916
Ada E Renderos Velasquez
Chapter 13
#9.00 Motion for relief from stay IMPAC MORTGAGE CORP.
fr. 7/15/20
Docket 34
Matter Notes:
NONE LISTED -
Tentative Ruling:
This hearing was continued from 7-15-2020 so that the parties could discuss whether an APO could be negotiated. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
7-15-2020 TENTATIVE BELOW
Petition Date: 07/30/2019 Ch.13; confirmed on 11/12/2019
Service: Proper. Opposition filed.
Property: 19772 Buckeye Meadow Lane, Los Angeles, CA 91326 Property Value: $807,500
Amount Owed: $ 677,922.46 Equity Cushion: 16%
Equity: $129,577.54.
Post-Petition Delinquency: $15,607.75 (3 payments of $4,525.76 + advances of
$1,215.00 + atty fees of $1,231.00 less suspense balance of $412.53)
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). Movant alleges that the last payment of $4,505.25 was received was on or about 2/25/2020.
Debtor opposes the Motion and argues that the Property is necessary for an effective reorganization because the Debtor and her family live in the Property. Debtor states that the mortgage company is willing to enter a forbearance agreement and enter an
10:00 AM
CONT...
Ada E Renderos Velasquez
Chapter 13
APO. What is the status of this Motion?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Ada E Renderos Velasquez Represented By Ali R Nader
Movant(s):
IMPAC Mortgage Corp. dba Represented By
Erin M McCartney
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12276
Irma Kaarina Hiltunen
Chapter 13
#10.00 Motion for relief from stay
WILMINGTON SAVINGS FUND sOCIETY
fr. 6/3/20 (moved), 6/2/20; 7/22/20
Docket 32
Matter Notes:
NONE LISTED -
Tentative Ruling:
Continued from 7/22/20
This hearing was continued from 7/22/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion?
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Irma Kaarina Hiltunen Represented By William G Cort
Movant(s):
WILMINGTON SAVINGS FUND Represented By
Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-13095
Ben Byuzand Militonyan
Chapter 13
#10.01 Motion RE: Objection to Claim Number 7 by Claimant Parts Authority Metro, LLC,
A California Limited Liability Company. fr. 6/23/20; 8/25/20, 9/2/20
Docket 46
Matter Notes:
NONE LISTED -
Tentative Ruling:
ZoomGov appearance required on 9-2-2020
6-23-20 TENTATIVE BELOW
Debtor owns and operates Ben’s Auto Parts. He purchases auto parts from wholesale distributors, such as Parts Authority Metro, and supplies the auto parts directly to the consumer. Prior to the Petition Date, on or about June 5, 2019, Parts Authority Metro filed an action against Debtor in Superior Court (the “State Court Action”) alleging that the Debtor owed $348,269.99 in debt which it broke down into three distinct debts: (1) $168,000 remaining debt on a “Promissory Note”; (2) $114,609 unpaid invoices on the “Payoff Account”; and (3) $65,660 unpaid invoices on the “Buying Account”. The State Court Action was not adjudicated because Debtor filed bankruptcy. Debtor's objection is premised on his argument that Debtor has made a substantial amount of payments that are not reflected in the Proof of Claim.
With respect to the Promissory Note, Debtor explains that he entered into a promissory note on October 1, 2015 with Metropolitan Automotive Warehouse (the “Promissory Note”) whereby he promised to pay $512,654.84 by making monthly payments of $5,000 with the final payment due on April 1, 2024. At the time the State Court Action commenced, Debtor contends that he had paid off over two-thirds of the debt in less than half the life of the debt with five
(5) years remaining to pay off the balance of $168,000. Furthermore, the Promissory Note was secured by a security agreement, giving Metropolitan
10:00 AM
CONT...
Ben Byuzand Militonyan
Chapter 13
Automotive Warehouse a security interest in all inventory held by Ben’s Auto Parts (the “Security Agreement”). This Security Agreement is the basis of a UCC-1 filing with the California Secretary of State. In addition to making the monthly payments as outlined above, Debtor claims that he turned over to Parts Authority Metro approximately $200,000 worth of inventory in repayment of the debt. Decl. of Militonyan, Ex. 2. Debtor maintains that the ledger provided by Claimant underestimates the value of the total credit as
$160,784.93 and that, to date, no credit has been applied to the debt, and no mention of this credit was made in Claimant’s Claim.
With respect to the Payoff Account, Debtor argues that he paid off the account well before the State Court Action commenced, having made payments totaling $114,007.67 and does not owe a balance on this account. Decl. of Militonyan, Ex.3. As to the Buying Account, Debtor contends that he has been making payments on this account in the ordinary course of business totaling $58,883.11 and owes a balance of less than $7,000. Decl. of Militonyan, Ex. 4. Accordingly, Debtor requests that Parts Authority Metro’s Claim be disallowed, as Claimant has failed to provide evidence to substantiate the full amount of the debt asserted in its Claim. Additionally, the Debtor requests that the Claimant provide a full accounting and credit him for all payments/credits made.
Parts Authority opposes the Motion, arguing that the balance on the promissory note was accelerated for nonpayment and thus the entire
$165,000 is due and payable now. Parts Authority points out that Debtor seems to acknowledge that he owes a secured balance of $168,000 on the Promissory Note. Decl. of Militonyan, ¶ 5. It also asserts that the balance on the Payoff Account is $114,609.59. as no payment has been made on the Payoff Account since September 29, 2018. Lastly, Parts Authority disputes Debtor's explanation of how the Buying Account is credited and his assertion that he is due credits that would reduce the amount owed. Parts Authority explains that it agreed to take back product and credit Debtor's Buying Account for the amount he had paid, less a 15% restocking charge. Bauby Decl. ISO Opposition. Parts Authority contends that Debtor returned product in the amount of $171,315.21 and credited Debtor's account $160,784.93 (the value, less the 15% restocking charge).
10:00 AM
CONT...
Ben Byuzand Militonyan
Chapter 13
The parties should be prepared to discuss if this contested matter requires an evidentiary hearing to resolve these accounting issues, or whether the parties would prefer a continuance to attempt to resolve the issues consensually.
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Ben Byuzand Militonyan Represented By
Kristine Theodesia Takvoryan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10474
Dewayne Anthony Brady
Chapter 13
#11.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION
Docket 25
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 2/27/2020
Chapter 13 plan confirmed: 6/5/2020 Service: Proper. Opposition filed.
Property: 10317 Steven Pl., Chatsworth, CA 91311 Property Value: $749,711 (per debtor’s schedules) Amount Owed: $997,790.35
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $12,370.57 (3 payments of $4,150.89; less suspense balance of $82.10)
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 the Motion should be denied as he has applied for a "Mortgage Assistance Streamline Modification" with Movant and a trial period plan was offered & accepted.
Does Debtor's perfomance under a trial period plan resolve the issues raised in this Motion?
APPEARANCE REQUIRED
10:00 AM
CONT...
Debtor(s):
Dewayne Anthony Brady
Party Information
Chapter 13
Dewayne Anthony Brady Represented By Allan S Williams
Movant(s):
U.S. BANK NATIONAL Represented By Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11063
Joby John Harte
Chapter 7
#12.00 Motion for relief from stay RICARDO RENE GARCIA JR.
Docket 15
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 6/15/2020 Chapter: 7
Service: Proper. NO Opposition filed. Movant: Ricardo Garcia, Jr.
Relief Sought to: Pursue Pending Litigation XX Commence Litigation
Litigation Information
Pursue Insurance
Other
Case Name: Gacia v.Harte, et al. Court/Agency: Los Angeles Superior Court Date Filed: 9/10/2019
Judgment Entered: n/a
Trial Start Date: 4/19/2021
Action Description: Childhood sexual abuse; gender violence; IIED; NIED; gross negligence; negligent retention & supervision
Grounds
Bad Faith Claim is Insured Claim Against 3rd Parties XXX
Nondischargeable XXX 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
10:00 AM
CONT...
Joby John Harte
Chapter 7
against enforcement against property of the estate); and 3 (binding & effective relief against Debtor for 180 days.
DENY relief requested in paragraph 7 (binding and effective relief on anyone in any future case) 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.
Party Information
Debtor(s):
Joby John Harte Represented By Henry Glowa
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#13.00 Motion of Debtor and Debtor-In Possession for an Order Pursuant to Section 364(c) of
the Bankruptcy Code Authorizing Post-Petition Financing on a Permanent Basis
Docket 126
Matter Notes:
NONE LISTED -
Tentative Ruling:
Zoom.gov appearance required.
On August 21, 2020, Hawkeye Entertainment LLC, ("DIP") filed a bankruptcy petition under Chapter 11 of the Bankruptcy Code to protect its lease agreement for real property located at 618 South Spring Street, Los Angeles, CA (commonly known as the Pacific Stock Exchange Building). According to the lease agreement, the DIP is entitled to us the first four floors and the basement of the building, which in turn the DIP subleases to W.E.R.M. Investments, LLC ("WERM"). WERM uses the property to host various large-scale events.
Since the outbreak of the Covid-19 pandemic, all events that WERM had scheduled have been canceled. Given the fact that WERM’s business model revolves around large gatherings of people it is unlikely that these events will return to pre- Covid 19 levels anytime soon. Despite the difficulties that the DIP and WERM have faced with Covid-19, the DIP has been current with rent payments to Smart Capital Investments, LLC ("Smart Capital").
To ensure some financial security during this time, the DIP has filed this motion to approve DIP financing under section 364(c). The DIP sought and obtained a SBA disaster loan for $125,000.00. According to the DIP’s reply brief, the funds are currently in the DIP account awaiting the Court to approve the motion and if the motion is denied then the funds will be returned to the SBA. The interest rate for the loan is 3.75% per annum and will commence twelve (12) months from the date of the DIP Note, principal and interest installment payments will be $731.00 per month with
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
the balance of principle and interest due and payable thirty (30) years from the date of the DIP Note. Since the loan’s principle is greater than $25,000.00, the loan is to be secured by the Debtor’s personal property assets.
Section 364
The trustee or debtor in possession can obtain unsecured credit as an administrative expense pursuant to either 11 U.S.C. § 364(a) or 11 U.S.C. § 364(b). If the trustee is unable to obtain unsecured credit on an administrative expense basis, then § 364(c) provides three different incentives that a trustee can offer lenders to induce them to extend postpetition credit. See In re Sun Runner Marine, 945 F.2d 1089, 1092 (9th Cir. 1991). Specifically, section 364(c)(2) provides that "the court, after notice and a hearing, may authorize the obtaining of credit or the incurring of debt -- . . . (2) secured by a lien on property of the estate that is not otherwise subject to a lien." Section 364(c)(2) requires a debtor to obtain the bankruptcy court's authorization before incurring secured debt. Thompson v. Margen (In re McConville), 110 F.3d 47, 50 (9th Cir 1997).
Here the DIP seeks authorization to obtain a SBA disaster loan pursuant to Section 364(c). This loan will be secured by a lien on the DIP’s personal property. To obtain financing under Section 364(c) the DIP needs to show that it is unable to obtain credit on an unsecured credit or as an administrative expense. In support of the DIP’s motion, Adi McAbian’s declaration states that "based on discussions with several loan brokers, it does not appear that postpetition on an unsecured or super- priority basis is available, particularly on the terms as favorable as those offered by the SBA." Given the highly favorable terms laid out in the SBA’s loan, it is likely that Adi McAbian’s declaration is accurate that no credit on substantially similar terms could be obtained either as an unsecured line of credit or as an administrative expense claim. It appears however that the DIP has obtained the funds without first getting this Court’s approval but is planning on returning the funds if approval is not obtained. The court will overlook this unusual sequence, given the current complexities of SBA lending.
Smart Capital first opposes the motion arguing that the DIP cannot obtain SBA financing while the DIP is in bankruptcy or that the DIP’s bankruptcy already puts the DIP in default of the proposed agreement. Small Business Administrative Standard Operating Procedure for Disaster Assistance Program, SOP 50 30 9 does not
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
preclude applicants who have previously or currently are in the process of reorganization from receiving assistance. Section 5.9 of SOP 50 30 9 provides:
Applicants (home or business) who have previously filed for bankruptcy, or are currently in the process of reorganization are not automatically precluded from receiving assistance.
The provisions referred to by Smart Capital in its opposition to the DIP’s motion can only be interpreted to mean that a party that subsequently files for bankruptcy after entering into an agreement with the SBA puts the party in default. Since the DIP is already in a bankruptcy case prior to entering into this loan agreement, these provisions do not put the DIP in default. Accordingly, the DIP is eligible in obtaining a SBA disaster relief loan.
Smart Capital’s next argument for opposing the DIP’s motion refers to one of the conditions in the SBA Loan that the DIP attests to not being delinquent more than 60 days with regards to a Court order. Smart Capital argues that the court order in question is the DIP’s previous confirmed plan of reorganization in its’ former bankruptcy case (Case No. 1:13-bk-16307). When the DIP filed a motion to close its’ previous bankruptcy case on April 27, 2017, it informed the Court that it estimated the remaining plan payments would be made over a two-year period. As of this date several unsecured creditors in that former case have outstanding balances and have filed claims in this case for the remainder owed to them.
The provision addressing the treatment of unsecured creditors in the previous bankruptcy confirmed plan states that unsecured claims would be paid after administrative and priority claims were full paid and paid in an amount determined at the discretion of the reorganized debtor based on cash flow and profitability. (See, Case No. 1:13-bk-16307, Docket No. 343, Pages 40-41). Due to the amount of professional fees that were incurred in the previous bankruptcy case it is likely that the unsecured creditors received less than they would have based on the availability of cash flow and profitability being lower. Since the language in the treatment allows for leeway on how it was to pay unsecured creditors based on profitability and cash flow, the Court is persuaded that the DIP’s previous confirmed plan does not run afoul to the conditions in the SBA loan agreement.
Smart Capital’s next rationale for opposing the DIP’s motion relates to
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
language in the agreement. Smart Capital argues that the language is so broad that it appears to require the SBA to consent to payment of Smart Capital, and any transfer of an interest in the lease. The DIP Credit Agreement and DIP Security Agreement state that perfection is governed under the Uniform Commercial Code (UCC). These agreements also define "Collateral" as "all tangible and intangible personal property." The creation or transfer of an interest in a real estate lease is not governed by the UCC. See Lovelady v. Bryson Escrow, Inc., 32 Cal. Rptr. 2d 371 (Cal. App. 1994) (finding that security interests in real estate leases were not governed by the Uniform Commercial Code). The Court is satisfied that the SBA loan being entered does not adversely impact Smart Capital as to its interest in the lease.
As to the argument about the DIP needing to obtain SBA approval to pay rent on the lease, the Security Agreement does cover the DIP’s accounts. The Security Agreements provides that the DIP can "collect and use amounts due on accounts and other rights to payment arising or created in the ordinary course of business, until notified otherwise by Security Party in writing or by electronic communication." According to the language, the DIP can use funds without the SBA’s approval for payments that arise in the ordinary course of business. A lease payment would be a cost that would be considered to arise in the ordinary course of business. The language at the end of the agreement states that the SBA can require consent to pay costs that arise in the ordinary course of business after notifying the DIP; however, nothing suggests that the SBA will exercise this right at the current time. Smart Capital’s interest in the lease and right to payment are not threatened and the SBA is unlikely to jeopardize its own payment by causing the DIP to be evicted.
Finally, Smart Capital’s concerns that the loan proceeds cannot go towards paying the lease are unfounded. The Credit Agreement provides that the "[b]orrower will use all the proceeds of this Loan solely as working capital to alleviate economic injury caused by disaster occurring in the month of January 31, 2020." Working capital is a broad term that refers to capital that a company can readily use for day-to- day operations. This certainly include paying a lease.
The motion will be GRANTED.
Party Information
10:30 AM
CONT...
Debtor(s):
Hawkeye Entertainment, LLC
Chapter 11
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#14.00 Motion filed Jointly by Debtor and Debtor-In- Possession and Subtenant, W.E.R.M, Investments, LLC for Order Authorizing the Use of the Leased Premises for Virtual Music Events and Film Shoots Pursuant to the Lease and/or Section 363 of the Bankruptcy Code
Docket 130
Matter Notes:
NONE LISTED -
Tentative Ruling:
Zoom.gov apperance required.
On August 21, 2020, Hawkeye Entertainment LLC, ("DIP") filed a bankruptcy petition under Chapter 11 of the Bankruptcy Code to protect its’ lease in real property located at 618 South Spring Street, Los Angeles, CA (commonly known as the Pacific Stock Exchange Building). According to the lease agreement, the DIP is entitled to use the first four floors and the basement of the building, which in turn the DIP subleases to W.E.R.M. Investments, LLC ("WERM"). WERM uses the property to host various large-scale events.
The restrictions placed on public gatherings as a result of the Covid-19 pandemic have prevented WERM from hosting events and the building is not actively being used by the DIP or WERM to generate income. Recently, the DIP and WERM filed a motion seeking Court approval to use the building for religious service events in the ordinary course of its business and/or pursuant to section 363 of the Bankruptcy Code (Docket No. 81) ("Religious Event Motion"). The Court authorized the use of the property for religious service events and entered an order on July 17, 2020 (Docket No. 108). Although the Court authorized the use of the property to hold religious events, recent regulations have prevented these religious services from occurring at the property.
To make use of the unused property, the DIP and WERM have arranged for
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
virtual events and related filming to begin taking place at the property. The DIP and WERM believe that these types of events would be considered ordinary use of the property and do not need the Court’s approval prior to hosting them at the property. To that end, the DIP and WERM filed this joint motion seeking the Court’s approval. Smart Capital objects.
Section 363’s horizontal and vertical tests:
11 U.S.C. § 363(b)(1) provides, in pertinent part: "The trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate." The Bankruptcy Code does not provide a definition of the important term "ordinary course of business." Two tests have emerged for determining whether a transaction is within the ordinary course of business for purposes of § 363(c) -- the vertical dimension, or creditor's expectation, test, and the horizontal dimension test. Burlington N. R.R. Co. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 704 (9th Cir. 1988). If both tests are satisfied, the court must conclude that the challenged transaction occurred in the debtor's ordinary course of business. Id. at 705; see also Credit Alliance Corp. v. Idaho Asphalt Supply, Inc. (In re Blumer), 95 B.R. 143, 147 & n.4 (B.A.P. 9th Cir. 1988) (stating that "the Ninth Circuit has determined that a transaction which meets both the 'horizontal' and 'vertical' dimension tests is in the ordinary course of business…").
The vertical dimension, or creditor's expectation test, views the disputed transaction 'from the vantage point of a hypothetical creditor and inquires whether the transaction subjects a creditor to economic risks of a nature different from those he accepted when he decided to extend credit.'" In re Dant & Russell, Inc., 853 F.2d at 705. In determining whether the transaction meets the vertical dimension test, courts often look to the debtor's prepetition business practices. Aalfs v. Wirum (In re Straightline Invs.), 525 F.3d 870, 879 (9th Cir. 2008).
Under the horizontal dimension test, the question is "whether the postpetition transaction is of a type that other similar businesses would engage in as ordinary business." In re Dant & Russell, Inc., 853 F.2d at 704 (citations omitted). For example, "raising a crop would not be in the ordinary course of business for a widget manufacturer because that is not a widget manufacturer's ordinary business." Johnston v. First St. Cos. (In re Waterfront Cos., Inc.), 56 B.R. 31, 35 (Bankr. D. Minn. 1985). The purpose of the horizontal test is " 'to assure that neither the debtor nor the creditor
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
[did] anything abnormal to gain an advantage over other creditors . . ." In re Dant & Russell, Inc., 853 F.2d at 704
Here the lease provides at paragraph 1.17 for the premises to be used as an "entertainment venue" and for "related lawful business". Pursuant to the terms laid out in Section 5 of the sublease, WERM is not allowed to operate the property for anything other than a night club, gallery and general office space. While the parties disagree as the meaning of these provisions it is undisputed that the DIP and WERM used the property to film prepetition. Filming was something the DIP and WERM were involved with prepetition and the parties should have anticipated that filming would continue post-petition. Further, the use of the property by WERM as a dance venue, and for music events, such as concerts and DJ events has been going on since 2009 and the inception of the sublease. Converting such events to ones held virtually does not change the character of the event. It simply allows events to occur that would have been prohibited by the "no gathering" laws in effect in California and locally. Using this property for streaming and filming purposes satisfies the vertical test.
One of the positive aspects this Covid-19 pandemic has shown us has been the ingenuity and creativity of the human spirt. No place is that truer than the entertainment industry. Musicians have performed live concerts through streaming services and television stations, and movies that were set to hit the theaters instead redirected and went directly to streaming platforms. Streaming and filming live performances are just one of the ways the entertainment industry has adapted to the pandemic; other adaptations include socially distant concerts and the resurgence of drive through movie theaters. For a large indoor venue designated as an entertainment venue, streaming and filming is the only viable entertainment related option available at this time. Since the entertainment industry has leaned in on streaming services in the last few months, recording and streaming events have become the "new normal" and a growing trend for this industry. The use of the property to film and stream events satisfies the horizontal test under the reasonable expectations of people in this industry. Accordingly, the Court finds that filming and streaming are considered uses of the property in the ordinary course of business.
Assuming, arguendo, that the use of the property for streaming and filming were considered not in the ordinary course of business, the Court could still approve such a use after notice and a hearing. Right now, this property is not being used to conduct any events, there is no end in sight as to the pandemic restrictions pertaining
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
to large indoor public events, and there is no revenue being generated. After the DIP and WERM sought and obtained this Court’s approval in the Religious Event Motion, the restrictions regarding large religious gatherings changed, and the property could no longer be used to host church services. Considering the ongoing restrictions, the use of the property to film or stream events maybe only way to generate funds and make use of an otherwise vacant property. Even if the benefit to the estate is merely making enough to pay the rent, or contribute something to the rent payment, it is better than the alternative. Outside of the argument that streaming live events and filming are against the terms of the lease, Smart Capital is unable to cite one valid reason justifying why the property should sit vacant during this time instead of being used to generate some form of income. Accordingly, the Court would still allow the property to be used to film and stream events even if these events were not deemed in the ordinary course of business.
Adversary Objection
Similar to the Religious Events Motion, Smart Capital asserts that this motion is nothing more than a comfort order seeking equitable relief. As such, this should be brought by way of an Adversary Proceeding in accordance to Federal Rule of Bankruptcy Procedure 7001. Smart Capital’s reliance on In Re Automationsolutions Int’l, L.L.C. 274 B.R. 527 (Bankr. N.D. Cal 2002) is inapplicable in this context. Unlike in Automationsolutions, the issues necessary for the Court to make this determination pursuant to Section 363 of the Bankruptcy Code are properly before this Court, and the only party with an objection to the relief requested has been afforded due process. There is no alteration of the parties’ property interests being sought. Here the DIP properly brought the motion pursuant to Section 363 of the Bankruptcy Code seeking Court approval of the use of the Premises for Virtual Events and Filming after notice and a hearing. The Court overrules this objection in Smart Capital’s opposition.
Sublease or License Issue
Smart Capital’s argument that the DIP seeks the approval of an assignment or sublease is unfounded. A lease (or sublease) is an agreement that grants to the tenant the rights of exclusive possession and use of the real property for a specified period time, thus creating a possessory estate in real property. Howard v. County of Amador, 269 Cal. Rptr. 807, 813 (Cal. App. 1990). A license, in contrast, gives authority to a
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
licensee to perform an act or acts on the property of another pursuant to the express or implied permission of the owner. Golden West Baseball Co. v. City Anaheim, 31 Cal. Rptr. 2d 378, 394 (Cal. App. 1994). "Whether an agreement for the use of property constitutes a license or a lease generally is determined by the nature of the possession granted. If the contract gives exclusive possession of the premises against all the world, including the owner, it is a lease; if it merely confers a privilege to occupy the premises under the owner, it is a license." Qualls v. Lake Berryessa Enters., 91 Cal. Rptr. 2d 143, 147 (Cal. App. 1999).
The proposed agreement that the DIP and WERM have entered appears to be a license for a party to use the property to film and not a sublease or an assignment of the exclusive rights to the property. Nothing in the lease or California law prohibits the DIP and WERM from granting a license to use the property. The Court is willing to include language in the order clarifying this point to ensure the protection in Smart Capital’s interests and rights.
The DIP’s and WERM’s joint motion to use the property for streaming live events and filming pursuant to 11 U.S.C. § 363 is GRANTED.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#14.01 Status Conference RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19,3/11/20; 5/13/20; 7/17/20, 7/23/20, 8/27/20
Docket 21
Matter Notes:
NONE LISTED -
Tentative Ruling:
Motions on file provide most of status. Can be continued to 9/9 at 10:30 am to be heard with other motions if no need to discuss any issues today. Will keep all on calendar in case a hearing is needed, but it appears that most issues can wait until 9/9
ZoomGov APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:30 AM
CONT...
Movant(s):
Hawkeye Entertainment, LLC
Chapter 11
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
11:00 AM
1:17-13341
Castillo I Partnership
Chapter 11
#15.00 Scheduling and case management conference
fr. 1/17/18, 6/13/18, 8/29/18; 12/2/18; 12/12/18; 4/3/19 5/15/19, 8/21/19, 10/23/19, 11/6/19, 11/13/19, 3/4/20
Docket 1
Matter Notes:
NONE LISTED -
Tentative Ruling:
Post-conf. status conferene to be set, cal . no. 12
Party Information
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
11:00 AM
1:17-13341
Castillo I Partnership
Chapter 11
Adv#: 1:19-01013 Castillo I Partnership v. MORTGAGE ELECTRONIC REGISTRATION
#16.00 Status Conference re: Complaint for 1) Cancellation of Written Instruments; 2) Quiet Title and 3) Declaratory Relief
fr. 5/15/19, 8/21/19, 11/6/19, 11/13/19, 3/4/20
Docket 3
Matter Notes:
NONE LISTED -
Tentative Ruling:
The following parties were dismissed from this adversary:
Nationstar, 4/19/19, doc. 10
MERS, 12/30/2018, doc. 74
Who is left on the defendant's side for this adversary? Should this adversary be closed?
Party Information
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
Defendant(s):
MORTGAGE ELECTRONIC Pro Se
Bayview Financial Trading Group Pro Se M&T Mortgage Corp. Pro Se
Bayview Loan Servicing LLC Pro Se
Nationstar Mortgage, LLC Pro Se
Benjamin Kolodaro Pro Se
11:00 AM
CONT...
Castillo I Partnership
Chapter 11
Nily Kolodaro Pro Se
Plaintiff(s):
Castillo I Partnership Represented By
Mark E Goodfriend
11:00 AM
1:18-11821
Sonia D. Roman
Chapter 7
Adv#: 1:18-01110 Roman v. US Bank ELT Brazos ELA Inc. et al
#17.00 Pre-trial conference re complaint for: dischargeability of student loan
fr. 1/9/19, 8/21/19; 1/15/20; 3/11/20; 5/13/20; 7/15/20
Docket 1
*** VACATED *** REASON: Stipulated judgment entered 8-6-20 (doc. 37) - hm
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Sonia D. Roman Represented By Christine A Kingston
Defendant(s):
US Bank ELT Brazos ELA Inc. Pro Se
Pennsylvania Higher Education Pro Se
Plaintiff(s):
Sonia D. Roman Represented By Christine A Kingston
Trustee(s):
Amy L Goldman (TR) Pro Se
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#18.00 JP Morgan Chase Bank, N.A.'s Motion to Dismiss First Amended Complaint
Docket 91
*** VACATED *** REASON: Cont'd to 9/24/2020 at 1:00 p.m. - hm Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards Arnold L Graff
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Joseph E Addiego
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
1:00 PM
CONT...
Movant(s):
David B. Rosen
Chapter 11
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#19.00 Motion to Compel Appearance and Production of Documents re Firooz Payan at Depostion
fr. 4/1/20, 5/6/20
Docket 112
*** VACATED *** REASON: Stip. cont. to 10/7/20 @1pm (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
Defendant(s):
Anjana S. Sura Pro Se
Puja J. Savla Pro Se
Does 1-10, Inclusive Pro Se
AMERICAN FUNDERS CORP. Pro Se
Eva Askar Pro Se
Robert Askar Pro Se
Arthur Nagapetyan Pro Se
Neelam J. Savla Pro Se
Greg Mkrchyan Pro Se
Mkrtchyan Investments, LP Pro Se
1:00 PM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
Natalia Usmanova Represented By Eamon Jafari
Alexander Usmanov Represented By 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 Jorge A Gaitan
1:00 PM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#20.00 Motion to Compel Appearance and Production of Documents re Alliance Funding Group, Inc's Custodian of Records Compel Appearance of Person Most Knowledgeable at Deposition
fr. 4/1/20, 5/6/20
Docket 111
*** VACATED *** REASON: Stip. cont. to 10/7/20 @1pm (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
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
1:00 PM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
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
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 Jorge A Gaitan
1:00 PM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#21.00 Status Conference re: First Amended Complaint
fr. 8/29/18, 10/3/18; 10/10/2018, 2/6/19, 11/13/19, 6/10/20
Docket 3
*** VACATED *** REASON: Stip. cont. to 10/7/20 @1pm (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
APPEARANCE REQUIRED.
The parties should indicate whether any opposition to a deadline to complete mediation of April 17, 2020
Pretrial would be June 10 at 11 am
Party Information
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
Defendant(s):
Sonia Kellzi Pro Se
Alexander Usmanov Represented By Eamon Jafari
Natalia Usmanova Represented By Eamon Jafari
Mkrtchyan Investments, LP Pro Se
Greg Mkrchyan Pro Se
Neelam J. Savla Pro Se
Puja J. Savla Pro Se
1:00 PM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
Anjana S. Sura Pro Se
Arthur Nagapetyan Pro Se
Robert Askar Pro Se
Eva Askar Pro Se
AMERICAN FUNDERS CORP. Pro Se
Does 1-10, Inclusive 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
1:00 PM
1:19-12434
Walter Ernesto Aleman Olmedo
Chapter 7
Adv#: 1:20-01049 Goldman v. Aleman et al
#22.00 Motion to Dismiss Adversary Proceeding
Docket 7
Matter Notes:
NONE LISTED -
Tentative Ruling:
Procedural and Factual Background:
On September 26, 2019, Walter Ernesto Aleman Olmedo (the "Debtor"), commenced a voluntary chapter 7 bankruptcy case (Case No. 1:19-bk-12434-MT). Shortly thereafter, Amy Goldman (the "Plaintiff") was appointed the Chapter 7 Trustee of the Debtor’s bankruptcy estate. On May 5, 2020, the Plaintiff commenced this adversary proceeding (Case No. 1:20-ap-01049-MT) against Oscar Aleman, Aleman Signs, Inc. (collectively the "Defendants"). The Debtor and Defendants are related.
The complaint alleges that the Debtor had an interest in two parcels of real property: (1) 3148 Marbella Lane, Palmdale, CA 93550 (the "Marbella Property") and
5757 Katrina Place, Palmdale, CA 93552 (the "Katrina Property"). Around December 13, 2017, the Debtor sold the Marbella Property to a bona fide purchaser for $144,639.49 and gave the proceeds to the Defendants. Around March 23, 2018, the Debtor transferred his interest in the Katrina Property to the Defendants by way of a quick claim deed. The Plaintiff alleges that the Debtor transferred these assets and received less than reasonably equivalent value in exchange. Thus, the claims of relief sought by the Plaintiff are (1) avoidance of an actual fraudulent transfer under 11
U.S.C. §548(a)(1)(A) and Cal. Civ. Code § §3439.04 & 3439.09. and (2) Avoidance of Constructive Fraudulent Transfer §548(a)(1)(B) and Cal. Civ. Code § §3439.05 and 3439.09.
The Defendants dispute the narrative advanced by the Plaintiff and assert their own version of events. According to the Defendants, the Debtor and one of the
1:00 PM
CONT...
Walter Ernesto Aleman Olmedo
Chapter 7
Defendants, Oscar Aleman, the brother of the Debtor, were previously business partners. The alleged arrangement between the two was that the Debtor would place his name on title to the business properties (the Marbella Property and Katrina Property) and Oscar Aleman would provide the financial backing. Since Oscar Aleman put in most of the financial support the Debtor was to handle the upkeep and daily maintenance for the property. Oscar Aleman asserts he discovered the Debtor was hiding or stealing assets and other dishonest behavior related to their business dealings. As a result, Oscar Aleman demanded payment for the labor and financial backing he placed on the two properties and severed the business relationship. According to the Defendants, the Debtor transferred the property at issue to the Defendants as a form of repayment. The Defendants believe the complaint fails to allege any facts that acknowledge the business relationship between the parties and fails to establish Debtor’s financial status at the time of the transfer.
On June 5, 2020, the Defendants filed a motion dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Plaintiff filed opposition on August 27, 2020. On September 2, 2020, the Defendants filed a reply to the Plaintiff’s opposition.
Standard for Motion to Dismiss Under Rule 12(b)(6):
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).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
1:00 PM
CONT...
Walter Ernesto Aleman Olmedo
Chapter 7
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).
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 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 679. 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 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. Courts should assume the veracity of the 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).
In this case, the Defendants’ Motion to Dismiss alleges that Plaintiff’s complaint does not contain factual allegations enough to support any of the claims of relief. The Plaintiff’s claims included in the complaint are discussed below under the framework of Rule 12(b)(6).
Avoidance of Actual Fraudulent Transfer claims under 11 U.S.C. §548(a)(1)(A) and Cal. Civ. Code §3439
Section 548(a)(1)(A) of the Code states:
The trustee may avoid any transfer (including any transfer to or for the
1:00 PM
CONT...
Walter Ernesto Aleman Olmedo
Chapter 7
benefit of an insider under an employment contract) of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily —
made such transfer or incurred such obligation with the actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; . . . .
Section 548(a)(1)(A) requires a showing of actual intent to hinder, delay or defraud creditors. It is uncommon for a party to an allegedly fraudulent transfer to knowingly admit that it was their intention to hinder, delay or defraud creditors, so, “actual intent is usually inferred from the circumstances surrounding the transfer.” Sharp v. Roscoe’s Intellectual Props. LLC (In re East Coast Foods, Inc), 2017 Bankr. LEXIS 2410 (Bankr. C.D. Cal. 2017). Some of the common indicators of fraudulent intent as to a transfer include:
(1) actual or threatened litigation against the debtor; (2) a purported transfer of all or substantially all of the debtor's property; (3) insolvency or other unmanageable indebtedness on the part of the debtor; (4) a special or close relationship between the debtor and the transferee; (5) retention by the debtor of the property involved in the putative transfer.
Acequia, Inc. v. Clinton (In re Acequia, Inc.), 34 F.3d 800, 805-06 (9th Cir. 1994).
Section 548(a)(1)(A)’s state law equivalent, the Uniform Fraudulent Transfer Act ("UFTA"), is codified in Cal. Civ. Code § 3439 et seq. A transfer of assets made by a debtor is fraudulent “if the debtor made the transfer (1) with an actual intent to hinder, delay, or defraud any creditor, or (2) without receiving reasonably equivalent value in return, and either (a) was engaged in or about to engage in a business or transaction for which the debtor's assets were unreasonably small, or (b) intended to, or reasonably believed, or reasonably should have believed, that he or she would incur debts beyond his or her ability to pay as they became due.” Kirkeby v. Superior Court of Orange County, 93 P.3d 395, 399, 15 Cal. Rptr. 3d 805, 809 (2004). In determining actual intent several factors to consider including but not limited to whether the transfer was to an insider and whether the transfer was of substantially all of the debtor’s assets. Cal. Civ. Code. §3439.04(b).
1:00 PM
CONT...
Walter Ernesto Aleman Olmedo
Chapter 7
The Defendants’ move to dismiss the actual fraud transfer claims under 11
U.S.C. §548(a)(1)(A) and Cal. Civ. Code §3439. The Defendants argue that the Plaintiff fails to allege facts that go towards any of the parties’ intent and there is only one boilerplate reference to the Debtor’s intent contained in the complaint. According to the Defendants, the Plaintiff has not alleged sufficient facts that show there was actual intent to hinder, delay, or defraud creditors.
The only parties’ intent that is analyzed under the Bankruptcy Code and the UFTA is Debtor’s intent. Any other parties’ intent is not relevant to this analysis. The Defendants’ argument that there is only a boilerplate reference to the Debtor’s intent and no facts are plead in the complaint that there was an actual intent to hinder, delay, or defraud is unpersuasive. Here, the Plaintiff’s complaint raised allegations that the Debtor transferred $144,639.49 in cash and his interest in the Katrina Property to the Defendants. Additionally, the Plaintiff alleges that Debtor transferred this property to people and entities that could be considered insiders (his brother, sister-in-law, and their business). The purpose of a Rule 12(b)(6) motion to dismiss is to weed out complaints that either lack any legal grounds for relief or do not have the enough facts that support a legal claim. The Plaintiff’s complaint specifically alleges two "badges of fraud" which can be used to show actual intent of the Debtor to defraud creditors. The Plaintiff has asserted several legal theories for relief and has plead enough factual allegations to support these theories. Accordingly, the avoidance of actual fraudulent transfer claims under 11 U.S.C. §548(a)(1)(A) and Cal. Civ. Code §3439 survive the motion to dismiss.
Avoidance of Constructive Fraudulent Transfer §548(a)(1)(B) and Cal. Civ. Code § § 3439.05 and 3439.09
To prove a claim for constructive fraudulent conveyance under 11 U.S.C. § 548(a)(1)(B), a plaintiff must show that (1) the transfer involved property of the debtor; (2) the transfer was made within two years of the filing of the bankruptcy petition; (3) the debtor did not receive reasonably equivalent value in exchange for the property transferred; and (4)(a) the debtor was insolvent at the time of the transfer or was made insolvent by the transfer or (b) the transfer was to an insider under an employment contract and not in the ordinary course of business. 11 U.S.C. § 548(a) (1)(B); see also In re United Energy Corp., 944 F.2d 589, 594 (9th Cir. 1991).
1:00 PM
CONT...
Walter Ernesto Aleman Olmedo
Similarly, under Cal. Civ. Code §§ 3439.05 and 3439.07, a constructively
Chapter 7
fraudulent transfer requires that the debtor made the transfer without receiving reasonably equivalent value in exchange and the debtor: (1) was engaged or about to engage in a business or transaction for which the debtor's remaining assets were unreasonably small in relation to the business or transaction, or (2) intended to incur or believed (or reasonably should have believed) that it would incur debts beyond its ability to repay, or (3) was insolvent at the time, or was rendered insolvent by the transfer or obligation. Aceituno v. Vowell (In re Intelligent Direct Mktg.), 518 B.R. 579, 587 (E.D. Cal. 2014).
The Defendants are correct that the complaint merely quotes the language used in § 548(a)(1)(B) and Cal. Civ. Code §§ 3439.05 without substantiating them with facts. Courts do not generally apply the heightened pleading standard of Rule 9(b) to constructive fraud claims. The 1849 Condominiums Assoc., Inc. v. Bruner, 2010 WL 2557711(E.D. Cal. 2010), citing Cendant Corp. v. Shelton, 474 F.Supp.2d 377, 380 (D. Conn. 2007). Rule 9(b) is inapplicable because constructive fraud claims “are not based on actual fraud but instead rely on the debtor’s financial condition and the sufficiency of the consideration provided by the transferee.” In re Careamerica, Inc., 409 B.R. 737, 755-56 (Bankr. E.D.N.C. 2009). Still, a constructive fraud claim must satisfy Rule 8(a) and contain sufficient facts to establish that the claim is plausible. Plaintiff should, accordingly, allege any facts that deal with whether the Debtor was insolvent, or on the brink of insolvency, after the transfer took place.
The first three elements under 11 U.S.C. § 548(a)(1)(B) are directly addressed in the complaint. The Plaintiff alleges that the property was owned by the Debtor, that the transfer occurred within two years of the filing and the Debtor did not receive reasonably equivalent value for the property conveyed to the Defendants. Similarly, the first element under Cal. Civ. Code §3439.05 has been directly alleged in the complaint. The complaint does state that the Plaintiff believes the Debtor was insolvent at the time; however, the complaint does not specifically allege facts as to the Debtor’s insolvency at the time of the transfer. "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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007). There are no direct allegations made in the complaint specifically addressing the issue of the Debtor’s insolvency, although there are overtones regarding the Debtor’s insolvency throughout the complaint. The timing of the transfer and the amount of property transferred out of the Debtor’s ownership
1:00 PM
CONT...
Walter Ernesto Aleman Olmedo
Chapter 7
can infer that these large transactions could have left the Debtor insolvent or on the verge of insolvency. The allegations in the Plaintiff’s complaint should not inferentially address each of the elements required under these causes of actions; there should be specific factual allegations to overcome the Rule 12(b)(6) motion to dismiss as to the constructive fraudulent transfer claims under 11 U.S.C. § 548(a)(1)
and Cal. Civ. Code §3439.05. While the additional allegations need not be extensive, it is important for Plaintiff’s theory of the case to be clear, given the defenses Defendant seems to be planning on raising.
Leave to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure states that "[t]he court should freely
give leave [to amend] when justice so requires." F.R.Civ.P. 15(a)(2).23 If a complaint lacks facial plausibility, a court must grant leave to amend unless it is clear that the complaint’s deficiencies cannot be cured by amendment. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). Here, it appears the complaint may be amended to sufficiently address these concerns.
For the reasons articulated above, the Defendants’ motion to dismiss is DENIED in part and GRANTED in part with leave to amend within 30 days of the hearing.
Party Information
Debtor(s):
Walter Ernesto Aleman Olmedo Represented By
Navid Kohan
Defendant(s):
Oscar Aleman Represented By Mykhal N Ofili
Marisol Vega Aleman Represented By Mykhal N Ofili
Aleman Signs, Inc. Represented By Mykhal N Ofili
1:00 PM
CONT...
Walter Ernesto Aleman Olmedo
Chapter 7
Plaintiff(s):
Amy L Goldman Represented By Leonard Pena
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
1:00 PM
1:19-12434
Walter Ernesto Aleman Olmedo
Chapter 7
Adv#: 1:20-01049 Goldman v. Aleman et al
#23.00 Status Conference Re: Trustee's Compliant for: 1 - Avoidance of Actual Fraudulent Transfer (11 U.S.C. Sec. 548(a)(1)(A));
- Avoidance of Constructive Fraudulent Transfer Sec. 548(a)(1)(B);
- Avoidance of Actual Fraudulent Transfer Under Applicable California Law (Cal. Civ. Code Sections 3439.04(a)(1) and 3439.07 and 11 USC Sec. 544(b));
- Avoidance of Constructive Fraudulent Transfer Under Applicable California Law (Cal. Civ. Code Sections 3439.05 and 3439.07 and 11 USC Sec. 544(b));
- Recovery of Avoided Transfer (11 USC Sec. 550(a)); and
- Preservation of Avoided Transfer (11 USC Sec. 551)
fr. 7/15/20 (stip)
Docket 1
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Walter Ernesto Aleman Olmedo Represented By
Navid Kohan
1:00 PM
CONT...
Walter Ernesto Aleman Olmedo
Chapter 7
Defendant(s):
Oscar Aleman Pro Se
Marisol Vega Aleman Pro Se
Aleman Signs, Inc. Pro Se
Plaintiff(s):
Amy L Goldman Represented By Leonard Pena
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
8:30 AM
1:19-12769
Melissa Dolores Flanigan
Chapter 7
#1.00 Pro se Reaffirmation Agreement with TOP FINANCE COMPANY, INC.
fr. 8/18/20
You will not be permitted to be physically present in the courtroom.
All appearances for the September 15, 2020 calendar will be via Zoom and not via Court Call. All parties participating in these hearings may connect from the zoom link listed below. This service is free of charge. You may participate using a computer or telephone.
Join by Computer
Meeting URL: https://cacb.zoomgov.com/j/1615737120
Meeting ID: 161 573 7120
Password: 589256
Join by Telephone
For higher quality, dial a number based on your current location. Dial:
US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 573 7120
Password: 589256
Docket 24
Tentative Ruling:
Petition date: 10/31/19
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: 2014 Ford C-Max
8:30 AM
CONT...
Melissa Dolores Flanigan
Chapter 7
Debtor’s valuation of property (Sch. B): $3,000 Amount to be reaffirmed: $5,783.84
APR: 16.99% (fixed)
Contract terms: $251.62 per month for 20 months Monthly Income (Schedule I): $1,600
Monthly expenses: (Schedule J): $2,875 Disposable income: $<1,275>
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 mother will help her make the payments, and that her mother drives the vehicle. This payment is listed on Sch. J
Debtor has a right to rescind agreement anytime prior to discharge, or until September 10, 2020, whichever is later.
Party Information
Debtor(s):
Melissa Dolores Flanigan Represented By Ali R Nader
Trustee(s):
Amy L Goldman (TR) Pro Se
1:20-10636
Brian Daniel Posantes
Chapter 7
8:30 AM
CONT...
Brian Daniel Posantes
Chapter 7
#2.00 Reaffirmation Agreement with Toyota Motor Credit Corporation
fr. 7/21/20; 8/18/20
You will not be permitted to be physically present in the courtroom.
All appearances for the September 15, 2020 calendar will be via Zoom and not via Court Call. All parties participating in these hearings may connect from the zoom link listed below. This service is free of charge. You may participate using a computer or telephone.
Join by Computer
Meeting URL: https://cacb.zoomgov.com/j/1615737120
Meeting ID: 161 573 7120
Password: 589256
Join by Telephone
For higher quality, dial a number based on your current location. Dial:
US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 573 7120
Password: 589256
Docket 12
Tentative Ruling:
Petition date: 3/17/2020
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 Scion FR-S
Debtor’s valuation of property (Sch. B): $15,000 Amount to be reaffirmed: $9,553.08
APR: 3.65% (fixed)
8:30 AM
CONT...
Brian Daniel Posantes
Chapter 7
Contract terms: $295.69 per month for 34 months Monthly Income (Schedule I): $2,781.52
Monthly expenses: (Schedule J): $2,862 Disposable income: <$70.48>
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 co-signed this vehicle for his sister and that she is responsible for making the payments. This payment is not listed on Sch. J
Debtor has a right to rescind agreement anytime prior to discharge, or until August 25, 2020, whichever is later.
Party Information
Debtor(s):
Brian Daniel Posantes Represented By
Michael H Colmenares
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:20-11074
Victor Diaz, Jr.
Chapter 7
#3.00 Pro se Reaffirmation Agreement Between Debtor & Schools Federal Credit Union
You will not be permitted to be physically present in the courtroom.
All appearances for the September 15, 2020 calendar will be via Zoom and not via Court Call. All parties participating in these hearings may connect from the zoom link listed below. This service is free of charge. You may participate using a computer or telephone.
8:30 AM
CONT...
Victor Diaz, Jr.
Join by Computer
Meeting URL: https://cacb.zoomgov.com/j/1615737120
Meeting ID: 161 573 7120
Password: 589256
Join by Telephone
For higher quality, dial a number based on your current location. Dial:
Chapter 7
US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 161 573 7120
Password: 589256
Docket 11
Tentative Ruling:
Petition date: 6/16/2020
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 Volkswagon GTI
Debtor’s valuation of property (Sch. B): $13,324 Amount to be reaffirmed: $17,742.34
APR: 3.99% (fixed)
Contract terms: $321.37 per month for approx. 56 months Monthly Income (Schedule I): $2,922.11
Monthly expenses: (Schedule J): $2,899. Disposable income: $23.11
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
CONT...
Victor Diaz, Jr.
Chapter 7
of undue hardship. Did Debtor explain how he/she will be able to afford the payments in Part D?
No explanation is provided. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until October 14, 2020, whichever is later.
Party Information
Debtor(s):
Victor Diaz Jr. Represented By
R Grace Rodriguez
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:18-13040
Eric Rodriguez
Chapter 7
Adv#: 1:19-01015 Gamm et al v. Rodriguez
#1.00 Trial - Telephonic Re: Amended Complaint to Determine Debts to be Non-Dischargeable Pursuant to Section 523(a) of the Bankruptcy Code.
fr. 7/31/19; 2/19/20; 4/29/20, 7/23/20
Docket 11
Matter Notes:
NONE LISTED -
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Eric Rodriguez Represented By Elena Steers
Defendant(s):
Eric Rodriguez Represented By David Brian Lally
Plaintiff(s):
Veronica Gamm Represented By Frank E Marchetti
Marina Noorali Represented By Frank E Marchetti
Fredy Harrison Represented By Frank E Marchetti
10:00 AM
CONT...
Trustee(s):
Eric Rodriguez
Chapter 7
Amy L Goldman (TR) Pro Se
10:00 AM
1:19-11422
Joe Kearney
Chapter 11
#1.00 Evidentiary Objections and Motion to Strike Portions of Direct Examination of Patricia Leupold in support of Patricia Leupold's Claim (#8-1)
Docket 142
Debtor(s):
*** VACATED *** REASON: Continued to 9/25/20 @ 10am (eg)
Party Information
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
10:00 AM
1:19-11422
Joe Kearney
Chapter 11
#2.00 Motion to exclude testimony of Leupolds expert, Andrew Gillespie
Docket 143
Debtor(s):
*** VACATED *** REASON: Continued to 9/25/20 @ 10am (eg)
Party Information
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
10:00 AM
1:19-11422
Joe Kearney
Chapter 11
#3.00 Status Conference Re:
Motion to Disallow Claims of Patricia Leupold (claim # 8-1) fr. 10/22/19, 12/17/19, 3/4/20; 6/24/20
Docket 37
Debtor(s):
*** VACATED *** REASON: Continued to 9/25/20 @ 10am (eg)
Party Information
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
Movant(s):
Joe Kearney Represented By
Robert M Aronson Robert M Aronson Robert M Aronson Robert M. Aronson Robert M. Aronson Robert M. Aronson
8:00 AM
1:00-00000 Chapter
#0.00 You will not be permitted to be physically present in the courtroom.
Docket 0
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
11:00 AM
1:14-15455
Sirous Salem
Chapter 13
#39.00 Trustee's Motion to Dismiss Case Due to Expiration of the Plan.
fr. 3/31/20, 7/21/20
Docket 72
*** VACATED *** REASON: Withdrawal filed by Trsutee - doc. #75. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Sirous Salem Represented By
William J Smyth Stephen S Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10079
Judy Marie Napolitano
Chapter 13
#40.00 Trustee's Motion to Dismiss Case fr. 6/23/20
Docket 86
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Judy Marie Napolitano Represented By Robert Reganyan
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11072
Humberto Delgadillo Garcia
Chapter 13
#41.00 Trustee's Motion to Dismiss Case fr. 6/23/20
Docket 163
*** VACATED *** REASON: Cont'd to 12/15/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Humberto Delgadillo Garcia Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11162
Steven Sandler
Chapter 13
#42.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19; 1/28/20; 3/31/20, 7/21/20
Docket 98
*** VACATED *** REASON: Ntc. of withdrawal filed 9/4/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Steven Sandler Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12524
Guillermo Martinez
Chapter 13
#43.00 Trustee's Motion to Dismiss Case due to Failure to submit Tax Refunds
Docket 45
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #49. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Guillermo Martinez Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14044
Ahmad Heidari and Nafiseh Alamdar Heidari
Chapter 13
#44.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/25/20
Docket 125
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #134. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ahmad Heidari Represented By Steven A Alpert
Joint Debtor(s):
Nafiseh Alamdar Heidari Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14101
Carlita Smith
Chapter 13
#45.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20; 3/31/20; 6/23/20
Docket 60
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Carlita Smith Represented By
Lauren Rode
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10348
Jim K. Nikolopoulos and Ayarpi Nikolopoulos
Chapter 13
#46.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment Pursuant to 11 USC Sec. 1329(a) and the Percentage to be
Paid to Unsecured Creditors or, in the Alternative, Dismissing the Chapter 13 Petition Due to Debtrors' Failure to Make Debtors' Best Efforts to Repay Creditors Pursuant to 11 USC Sec. 1307(c)(6)
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20; 6/23/20; 8/25/20
Docket 55
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Jim K. Nikolopoulos Represented By Scott D Olsen
Joint Debtor(s):
Ayarpi Nikolopoulos Represented By Scott D Olsen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12648
Fernando Benitez
Chapter 13
#47.00 Motion RE: Objection to Claim Number 4 by Claimant North American Savings Bank, F.S.B..
fr. 4/28/20, 5/19/20; 6/23/20, 7/21/20
Docket 37
*** VACATED *** REASON: Continued to 10/27/2020 at 11 a.m. - hm Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Fernando Benitez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13055
Mark David Cave
Chapter 13
#48.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20; 3/31/20, 7/21/20
Docket 107
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Mark David Cave Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13250
Robert Michael Martinez
Chapter 13
#49.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 12/17/19, 2/25/20, 4/28/20, 7/21/20
Docket 93
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #141. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Robert Michael Martinez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10021
Nelson Humberto Pinto
Chapter 13
#50.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 110
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Nelson Humberto Pinto Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10032
Michael Klapsis and Marina Klapsis
Chapter 13
#51.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20, 4/28/20; 8/25/20
Docket 36
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Michael Klapsis Represented By Devin Sawdayi
Joint Debtor(s):
Marina Klapsis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10032
Michael Klapsis and Marina Klapsis
Chapter 13
#52.00 Motion under Local Bankruptcy Rule 3015-1 (n) and
(w) to modify plan or suspend plan payments fr. 8/25/20
Docket 39
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Michael Klapsis Represented By Devin Sawdayi
Joint Debtor(s):
Marina Klapsis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10095
Georg Bruno Ehlert
Chapter 13
#53.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 117
*** VACATED *** REASON: Cont'd to 10/27/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Georg Bruno Ehlert Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10297
Felix Ray Wright
Chapter 13
#54.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 12/17/19, 2/25/20,4/28/20, 7/21/20
Docket 145
*** VACATED *** REASON: Cont'd to 10/27/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Felix Ray Wright Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10353
Annette Sanders-Wright
Chapter 13
#55.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20, 4/28/20; 6/23/20; 8/25/20
Docket 51
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Annette Sanders-Wright Represented By Dana C Bruce
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10382
Darrell Marion Alexander
Chapter 13
#56.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 46
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Darrell Marion Alexander Represented By Arthur H Lampel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10883
Martin Rios
Chapter 13
#57.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 55
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Martin Rios Represented By
William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11120
Jennifer H. Nguyen
Chapter 13
#58.00 Motion to dismiss case for failure to make plan payments
Docket 65
*** VACATED *** REASON: Cont'd to 10/27/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jennifer H. Nguyen Represented By Rob R Nichols
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11130
Monet R Davis
Chapter 13
#59.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20; 3/31/20, 4/28/20; 8/25/20
Docket 32
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Monet R Davis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#60.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/24/19, 11/19/19; 1/28/20; 3/31/20; 6/23/20; 8/25/20
Docket 138
*** VACATED *** REASON: Cont'd to 10/27/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
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
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#61.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20; 3/31/20; 6/23/20; 8/25/20
Docket 151
*** VACATED *** REASON: Vol. dismissed by T'ee (doc. 171) - hm Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
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
1:17-11404
Jose Rodriguez Garcia
Chapter 13
#61.01 Application for Compensation for Donna R Dishbak, Debtor's Attorney,
Period: 6/14/2017 to 9/11/2020, Fee: $16,160.00,
Expenses: $53.39.
Docket 87
Matter Notes:
NONE LISTED -
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Fees seems appropriate but counsel should address the "lien" issue raised by trustee. Does the fact that the case may be ready to go to discharge change the trustee's position at all?
Party Information
Debtor(s):
Jose Rodriguez Garcia Represented By Donna R Dishbak
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11804
Eduardo N Trillo, Jr. and Maritess Biglangawa Trillo
Chapter 13
#62.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20; 3/31/20, 4/28/20; 6/23/20, 7/21/20; 8/25/20
Docket 58
*** VACATED *** REASON: Cont'd to 10/27/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Eduardo N Trillo Jr. Represented By Elena Steers
Joint Debtor(s):
Maritess Biglangawa Trillo Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11995
Priscilla Jeanette Bueno
Chapter 13
#63.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20,4/28/20; 5/19/20; 6/23/20; 8/25/20
Docket 55
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Priscilla Jeanette Bueno Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12329
Barbara Jean Woodard-Cox
Chapter 13
#64.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 87
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Barbara Jean Woodard-Cox Represented By Barry E Borowitz Michael E Clark
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13031
Marilyn Rafanan Jones
Chapter 13
#65.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 117
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Marilyn Rafanan Jones Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#66.00 Motion under Local Bankruptcy Rule 3015-1 (n) and (w) to modify plan or suspend plan payments
fr. 12/17/19; 1/28/20, 2/25/20, 4/28/20, 7/21/20
Docket 89
*** VACATED *** REASON: Cont'd to 12/15/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#67.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20, 2/25/20, 4/28/20, 7/21/20
Docket 85
*** VACATED *** REASON: Cont'd to 12/15/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#68.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20; 6/23/20; 8/25/20
Docket 45
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Marvin Eleid Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11550
Andrea L Cervantes
Chapter 13
#69.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/25/20
Docket 42
*** VACATED *** REASON: Cont'd to 10/27/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Andrea L Cervantes Represented By Stephen S Smyth William J Smyth
Andrew Edward Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12453
Mark Anthony Rivera
Chapter 13
#69.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 41
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Mark Anthony Rivera Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12473
Stephen Anthony Cook
Chapter 13
#70.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20; 3/31/20; 6/23/20
Docket 56
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen Anthony Cook Represented By Lauren Rode
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12549
Moshe Cohen
Chapter 13
#71.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 78
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Moshe Cohen Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12617
Brittney Danielle Jacobs
Chapter 13
#72.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 55
*** VACATED *** REASON: Withdrawal filed by the Trustee - Doc. #59. lf
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Brittney Danielle Jacobs Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10003
Edwin E. Vidanez
Chapter 13
#73.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20; 3/31/20, 7/21/20
Docket 25
*** VACATED *** REASON: Cont'd to 10/27/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Edwin E. Vidanez Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10043
Douglas Henry Baylis
Chapter 13
#73.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 61
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Douglas Henry Baylis Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10108
Wilfredo Castillo and Carmen Rosa Castillo
Chapter 13
#74.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 56
*** VACATED *** REASON: Cont'd to 10/27/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Wilfredo Castillo Represented By Donald E Iwuchuku
Joint Debtor(s):
Carmen Rosa Castillo Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10130
Bonnie Kay Lopez
Chapter 13
#75.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 45
*** VACATED *** REASON: Debtor's attorney filed a withdrawal - Doc. #49. lf
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Bonnie Kay Lopez Represented By
Raj T Wadhwani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10376
Ruby Alicia Cortez
Chapter 13
#76.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 27
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Ruby Alicia Cortez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10457
Gerardo Melendez and Maribel Melendez
Chapter 13
#77.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 82
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Gerardo Melendez Represented By Shai S Oved
Joint Debtor(s):
Maribel Melendez Represented By Shai S Oved
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10590
Samira Mojabi
Chapter 13
#78.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 30
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #40. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Samira Mojabi Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10781
Daniel Correa
Chapter 13
#79.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20, 4/28/20; 6/23/20
Docket 32
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Daniel Correa Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10789
Carmen Ivy Garcia-Torres
Chapter 13
#80.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20, 4/28/20; 6/23/20, 7/21/20
Docket 47
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #70. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Carmen Ivy Garcia-Torres Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10800
Edgar Roberto Salazar
Chapter 13
#81.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 58
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Edgar Roberto Salazar Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10805
Debbie Ann Ko
Chapter 13
#82.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 51
*** VACATED *** REASON: Converted to 7 9-4-2020 (doc. 56) - hm Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Debbie Ann Ko Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10861
Tonya Latrice Gould
Chapter 13
#83.00 Motion RE: Objection to Claim Number 11 by Claimant Montana Bail Bond Inc.
fr. 5/19/20, 7/21/20
Docket 54
Matter Notes:
NONE LISTED -
Tentative Ruling:
On November 11, 2008, Montana Bail Bonds, Inc. ("Creditor" or "Montana") posted a bond in the amount of $315,000.00 for Rodney Jackson, son of Tonya Latrice Gould ("Debtor").
Debtor alleges that the bond agreement called for a flat rate fee premium of
$31,500.00 and that Creditor told Debtor that there would be no interest. The bail bond agreement submitted by Creditor, however, specifies that Debtor is to pay Creditor $31,500 per annum for the bond. Claim 11-1, p. 5. The Indemnitor Checklist portion of the agreement shows that Debtor acknowledged her responsibility to pay the amount of the bail premium every year, in advance hereafter, until the surety is legally discharged from all liability on the bonds posted. Id., p. 6.
Debtor was charged $31,500 for the 1st year in November 12, 2008, $31,500 for the second year in November 12, 2009 for the renewal of the premium, and
$31,500 for the third year in November 12, 2010 for renewal of the premium. Creditor also charged Debtor a number of fees listed in Creditor’s claim itemization. On January 25, 2011, Creditor surrendered the bond at the Debtor’s son’s court date. On the same date, the bond was exonerated by the Los Angeles Superior Court. Objection to Claim, Ex. 2.
On April 11, 2019, Debtor filed a bankruptcy petition under chapter 13. On June 20, 2019, Creditor filed Claim 11-1, a secured claim in the amount of $93,872.16 for Breach of Bail Bond Agreement. To its Proof of Claim, Creditor attached the Bail
11:00 AM
CONT...
Tonya Latrice Gould
Chapter 13
Bond Application, the Bail Agreement, an Indemnitor/Guarantor Checklist, a Deed of Trust, an Itemization of the balance owed after credit provided, and a Mortgage Proof of Claim form. Claim 11-1, pp. 4-10.
Claim 12-1, separately filed by the Indiana Lumbermens Mutual Insurance Company ("Indiana"), is a related claim seeking repayment for the same debt as Claim 11-1. While the two claims are identical in amount, the claims are based on separate agreements. Claim 11-1 arises out of debt caused by Debtor’s alleged breach of the Bail Bond Agreement, whereas Claim 12-1 is Indiana’s attempt, as surety to the Bail Agreement, to seek repayment for breach of the Deed of Trust’s provision in Debtor’s failure to pay the fees incurred by Montana. Supplemental Opp’n, pp. 4-5.
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. LR 3007-1.
Per 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. In re Heath, 331 B.R. at 435, 437-38. 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. Under In re Campbell, 336 B.R. 430 (B.A.P. 9th Cir. 2005), 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.
"The court, after notice and a hearing, shall determine the amount of such claim… as of the date of the filing of the petition, and shall allow such claim, except to the extent that – (1) such claim is unenforceable against debtor and the property of the debtor, under any agreement or applicable law for a reason other than because
11:00 AM
CONT...
Tonya Latrice Gould
Chapter 13
such claim is contingent or unliquidated." 11 U.S.C. §502(b).
An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP §3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR §3007-1(c).
Should objection be taken, the objector is then called upon to produce evidence and show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves. But the ultimate burden of persuasion is always on the claimant. Thus, it may be said that the proof of claim is some evidence as to its validity and amount. It is strong enough to carry over a mere formal objection without more. 3 L. King, Collier on Bankruptcy § 502.02, at 502–22 (15th ed. 1991).
Analysis
Debtor objects to Creditor’s claim principally on grounds that the amount due stated in Creditor’s Proof of Claim is erroneous. 11 U.S.C. §502(b)(1). Debtor argues that Creditor’s claim has already been paid in full, but for the Creditor’s inclusion of fees, refundable premiums, and other charges that were not authorized by Debtor and that are not permitted by law.
Debtor argues that Creditor was required to return all premium paid for the bond, because the Creditor surrendered the arrestee to custody prior to the time specified in the undertaking of the bail bond for the appearance of the arrestee. Debtor relies on California Code of Regulations §2090, which states in pertinent part:
"No bail licensee shall surrender an arrestee to custody prior to the time specified in the undertaking of bail or the bail bond for the appearance of the arrestee, or prior to any other occasion when the presence of the arrestee in court is lawfully required, without returning all premium paid for such undertaking or bond; except that when as the result of judicial action, information concealed or misrepresented by the arrestee or other reasonable cause, any one of which was material to the hazard
11:00 AM
CONT...
Tonya Latrice Gould
assumed, and the licensee can show that the hazard was substantially increased, then the bail licensee may retain incurred out of pocket expenses permitted to be charged by Section 2081 (c) and (d)." [emphasis added]
Chapter 13
10 CCR §2090 Surrender of Arrestee to Custody; Return of Premiums
Debtor’s argument oversimplifies the statute. Debtor seems to argue that returning the arrestee to custody automatically entitles Debtor to a refund of premiums. Section 2090 is not a vehicle through which payors of bail bond premiums can have their payments returned simply because the arrestee has been returned to custody. The legislative purpose behind this provision is to temper a bonding company's virtually unlimited power to surrender a defendant by providing a remedy for the potential abuse of that power. People v. Smith, (1986) 182 Cal.App.3d 1212, 1216-1217. The determination of refundability always rests on whether there had been such abuse of power, devoid of good cause.
Debtor’s objection included a letter from the Department of Insurance advising Debtor of the refundability rules of California Code of Regulations §2090. Objection to Claim, Ex. 2. Debtor appears to rely on this document to allude that that Creditor’s surrender was without good cause. Debtor, however, did not provided evidence with regard to whether the Superior Court ordered the return of premium.
After the initial hearing on the Objection to Claim, the Court ordered further briefing as to whether Creditor surrendered the arrestee to custody with or without good cause, as questions of premium refundability and objection to claim rested on this central query, as well as Debtor’s basis for objecting to the calculation of the amount of the claim.
On September 8, 2020, Creditor filed a supplemental response, providing additional documentary evidence and explaining that Debtor’s son was surrendered to custody after Debtor failed to pay her mortgage. When Creditor was notified that a notice of default was recorded by the lender in January 25, 2011, it contacted Debtor because the equity in the real property that secured the bond was eroding. Decl. of Sal Chamsi ISO Creditor’s Supplemental Response (the "Chamsi Decl.), ¶ 19-20.
Creditor states that because Debtor informed it that she was unable to pay the
11:00 AM
CONT...
Tonya Latrice Gould
Chapter 13
mortgage, Creditor informed her that she and/or other relatives would have to make available additional collateral to secure the bond or Debtor’s son would have to be surrendered to the court. Id. at ¶ 21. When Debtor contacted Creditor one week later, she informed it that she was unable to provide additional collateral to support the bond. Detbor’s son was surrendered to custody on or about January 25, 2011. Id. at
¶¶ 24-25.
Under Nevada law, good cause for surrendering a defendant back to custody includes "a material change in the collateral posted by the defendant or one acting on his or her behalf." NAC § 697.550 2(d); Chamsi Decl., Ex. D. Debtor did not file a brief in response to the evidence offered by Creditor. Thus, under Nevada law, it appears that the surrender of Debtor’s son was for "good cause."
Debtor further argued that "the bond agreement called for a flat rate fee premium of $31,500.00 and Debtor was told by Montana that there would be no interest added to the total because the law only allows them to charge 10% of the bond total. Debtor also contends that on October 27, 2010, Creditor added a $31,500.00 renewal charge, which was not agreed to.
Creditor argues that bail is an insurance contract with a premium covering a particular period, that all charges were warranted pursuant to the bail agreement acknowledged and signed by the parties. Proof of Claim, pp. 5-6. Debtor was charged
$31,500 for the 1st year in November 12, 2008, $31,500 for the second year in November 12, 2009 for the renewal of the premium, and $31,500 for the third year in November 12, 2010 for renewal of the premium. Id. Creditor notes that courts have recognized that insurance premiums are paid for a certain period of coverage and are fully earned when that coverage period has elapsed. Generally, insurance premiums are required to be paid at the beginning of the coverage period. Installment plans for insurance premiums are like a loan. Mary Ruth Escobedo v. Estate of Danny G. Snider, 60 Cal. Rptr. 2d 722; In re Insurance Installment Fee Cases, (2012) 211 Cal. App. 5th 1395; Interinsurance Exchange of the Automobile Club v. Superior Court, (2007) 148 Cal. App. 4th 1218.
Creditor notes that its claim includes Debtor’s signed acknowledgements in the Indemnitor/Guarantor Checklist, a portion of the Bail Agreement. Debtor’s signature is in fact printed beside paragraphs stipulating to Creditor’s terms,
11:00 AM
CONT...
Tonya Latrice Gould
Chapter 13
acknowledging that "…Finance charges are compounded on unpaid balanced on the 30th day of each month at a rate of ten percent per annum…" and that Debtor is "required to pay the amount of the bail premium every year, in advance hereafter, until the surety is legally discharged from all liability on the bonds posted." Claim 11-1, p.
6. The checklist also provides for a 1% late fee on all scheduled payments not received within five days of the due date.
After giving Debtor credit for payments she has made and after itemization of the premium balance remaining and other expenses incurred, Creditor asserts that there was a balance owed prior to the filing of the petition of $93,872.15. Therefore, it maintains that the amounts stated in claims No. 11 and 12 are appropriately calculated, as provided in the Itemization attached to the Proof(s) of Claim. Again, Debtor did not file a brief in response to the evidence offered by Creditor.
For the reasons stated above, Debtor’s objection was not supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim. Thus, Debtor’s Objection does not raise a legal or factual ground to disallow the claim, and is OVERRULED.
TELEPHONIC APPEARANCE REQUIRED. CREDITOR TO LODGE ORDER IN ACCORANCE WITH THIS RULING WITHIN 7 DAYS.
Party Information
Debtor(s):
Tonya Latrice Gould Represented By Kahlil J McAlpin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10861
Tonya Latrice Gould
Chapter 13
#84.00 Motion RE: Objection to Claim Number 12 by Claimant Indiana Lumermens Mutual Insurance Company.
fr. 5/19/20, 7/21/20
Docket 55
Matter Notes:
NONE LISTED -
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
See Tentative Ruling for cal. no. 83.
Party Information
Debtor(s):
Tonya Latrice Gould Represented By Kahlil J McAlpin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11159
Craig Huxley
Chapter 13
#85.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 37
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Craig Huxley Represented By
Shai S Oved
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11753
Oleg Meerovich
Chapter 13
#86.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 42
*** VACATED *** REASON: Withdrawal filed by Trsutee - doc. #53. [jj] Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Oleg Meerovich Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11964
Hazel M Renderos
Chapter 13
#87.00 Motion RE: Objection to Claim Number 3
by Claimant Los Angeles County Treasurer and Tax Collector fr. 3/31/20
Docket 0
*** VACATED *** REASON: Cont'd to 10/27/20 at 11:00 a.m. (doc. 67) - hm
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Hazel M Renderos Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12138
Bruno Alain Rosenthal
Chapter 13
#88.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 4/28/20, 7/21/20
Docket 33
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Bruno Alain Rosenthal Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12205
Mauricio Nunez
Chapter 13
#89.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20
Docket 41
*** VACATED *** REASON: Cont'd to 10/27/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mauricio Nunez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12207
Sahin Sultana
Chapter 13
#90.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 3/31/20, 7/21/20
Docket 43
Matter Notes:
NONE LISTED -
Tentative Ruling:
Appearance required unless trustee stipulates to continue
Party Information
Debtor(s):
Sahin Sultana Represented By Allan S Williams
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12260
Irene Elizabeth Franklin
Chapter 13
#91.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 32
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Irene Elizabeth Franklin Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12560
Amanda Espinosa
Chapter 13
#92.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 29
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #36. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Amanda Espinosa Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12717
Laura Pena
Chapter 13
#93.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 38
*** VACATED *** REASON: Withdrawal file by Trustee - Doc. #44. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Laura Pena Represented By
Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12874
Anne Dorothy Renzo
Chapter 13
#94.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 30
*** VACATED *** REASON: Cont'd to 10/27/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Anne Dorothy Renzo Represented By Peter M Lively
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12874
Anne Dorothy Renzo
Chapter 13
#94.01 Motion under Local Bankruptcy Rule 3015-1 (n) and (w) to modify plan or suspend plan payments
Docket 32
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Anne Dorothy Renzo Represented By Peter M Lively
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13002
Stephen E. Pearcy
Chapter 13
#95.00 Motion For Sanctions as against debtor and his counsel
jointly and severally, pursuant to rule 9011 of The Federal Rule of Bankruptcy Procedure and Local Bankruptcy Rule 9011-3
Docket 142
Matter Notes:
NONE LISTED -
Tentative Ruling:
Background:
On February 1, 2012, Stephen Pearcy ("Debtor") and Melissa Pearcy ("MP") filed a dissolution of marriage in the Los Angeles Superior Court ("Family Law Action"). On June 25, 2019, the Debtor was found guilty of numerous counts of contempt for non-payment of temporary spousal support to MP. Subsequently, MP filed an order to show cause and affidavit of contempt as against the Debtor, as a result of the Debtor failing to make additional spousal support. In order to delay the Family Law Action and stop the possibility of being placed in jail the Debtor filled this bankruptcy case under chapter 13 of the Bankruptcy Code on December 3, 2019.
On February 11, 2020, MP and MP’s counsel, Melissa Buchman ("MB"), filed an objection to the Debtor’s proposed plan and argued that there were several critical omissions and errors made in the Debtor’s scheduled. At the continued confirmation hearing on August 25, 2020, the Court dismissed the case for being over the Ch. 13 debt limit. The Court found that the Debtor purposefully understated certain liabilities in order to manipulate the schedules so that he could file under Ch. 13 of the Bankruptcy Code and placed a 180-day bar on the Debtor from refiling. The Court also found that the purpose for filing this bankruptcy case was to thwart the Family Law Action. The Court maintained jurisdiction to decided motions for sanctions. On August 28, 2020, the Court entered the order dismissing the case.
On August 26, 2020, MP an MB filed this motion for sanctions under Federal Rule of Bankruptcy Procedure 9011(c) against the Debtor and the Debtor’s counsel for $29,269.34. On September 8, 2020, the Debtor and Debtor’s counsel filed
11:00 AM
CONT...
Stephen E. Pearcy
Chapter 13
opposition to the motion. Legal Standard:
A bankruptcy court may award attorneys' fees and costs as a sanction under authority of Bankruptcy Rule 9011. DeVille v. Cardinale (In re Deville), 280 B.R. 483, 494 (9th Cir. BAP 2002). While a bankruptcy court can award fees and costs, Rule 9011 is "an extraordinary remedy, one to be exercised with extreme caution." Operating Engineers Pension Trust v. A-C Co., 859 F.2d 1336, 1345 (9th Cir. 1988). The purpose of Rule 9011 is designed to encourage counsel to avoid groundless filing or pleadings filed for improper purposes, primarily through the imposition of sanctions. Rule 9011 (c) provides that reasonable attorneys' fees may be awarded as a sanction only upon "motion":
A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.
Fed. R. Bankr. P. 9011 (c)(2)
A motion for sanctions is further described, in relevant part, in Rule 9011 (c)
(1)(A):
A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 7004. The motion for sanctions may not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected, except that this limitation shall not apply if the conduct alleged is the filing of a petition in violation of subdivision (b). . . .
Fed. R. Bankr. P. 9011 (c)(1)(A).
11:00 AM
CONT...
Stephen E. Pearcy
Chapter 13
FRBP 9011(c)(1) requires a 21 day "safe harbor" period before a motion for sanctions can be filed with the court. "Parties who ask for sanctions under this rule are not permitted to circumvent the safe harbor by waiting until it is too late to withdraw or correct the offending matter." Barber v. Miller, 146 F.3d 707, 710-11 (9th Cir. 1998). A party seeking sanctions cannot deprive the party that sanctions are being sought from the opportunity to escape sanctions by withdrawal or correction. Polo Bldg. Grp., Inc. v. Rakita (In re Shubov), 253 B.R. 540, 545 (B.A.P. 9th Cir. 2000).
The imposition of [Rule 9011] sanctions…requires only a showing of objectively unreasonable conduct. Miller v. Cardinale (In re DeVille), 361 F.3d 539, 549 (9th Cir. 2004) (quoting Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 616 (3d Cir. 1991). "[A] finding of bad faith is not required. Davis v. Alexander (In re High Speed Music, Inc.), 2007 Bankr. LEXIS 4545 (Bankr. C.D. Cal. 2007). Moreover, "[i]n determining whether sanctions are warranted… [the court] must consider both frivolousness and improper purpose on a sliding scale, where the more compelling the showing as to one element, the less decisive need be the showing as to the other." In re Silberkraus, 336 F.3d 864, 870 (9th Cir. 2003).
Analysis:
Here, MP and MB notified the Debtor and Debtor’s counsel two separate times regarding two separate issues which forms the basis for MP’s and MB’s motion for sanctions. The first notification was sent on May 15, 2020, by way of a letter and the actions believed to warrant sanctions were objections to proofs of claims. Docket No. 156, Ex. A. The second notification was emailed to Debtor’s counsel on July 17, 2020 and asked that the entire bankruptcy case to be dismissed. Docket No. 142, Ex.
B. Both notifications satisfy the 21-day safe harbor period prior to the filing of the motion for sanctions because the motion was filed with the Court on August 26, 2020. Docket No. 142. The Debtor and Debtor’s counsel withdrew the objections to the proofs of claims prior to the MP and MB filing this motion for sanctions. Docket No. 126 & 127. The Court rendered its’ ruling dismissing the bankruptcy case the day before the motion for sanctions was filed and an order dismissing the bankruptcy case was entered two days after the motion for sanctions was filed.
Article III limits federal court’s jurisdiction to "cases or controversies." See Public Utils. Comm'n v. Federal Energy Regulatory Comm'n, 100
11:00 AM
CONT...
Stephen E. Pearcy
Chapter 13
F.3d 1451, 1458 (9th Cir. 1996) ("The jurisdiction of federal courts depends on the existence of a 'case or controversy' under Article III of the Constitution.") A party must maintain a live controversy through all stages of the litigation process. See Di Giorgio v. Lee (In re Di Giorgio), 134 F.3d 971, 974 (9th Cir. 1998) ("To qualify for adjudication in federal court, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.") If an action or a claim loses its character as a live controversy, then the action or claim becomes "moot," and the federal courts lack jurisdiction to resolve the underlying dispute. See Ruiz v. City of Santa Maria, 160 F.3d 543, 549 (9th Cir. 1998).
The procedural facts here closely parallel In re Gonzalez, 2019 Bankr. LEXIS 3269 *7 (Bankr. C.D. Cal. 2019). In Gonzalez, a Ch. 7 Trustee filed a motion seeking sanctions against a pro se party pursuant to FRBP 9011. The Trustee requested that the pro se party strike and dismiss two adversary proceedings (2:19-ap-01126-RK & 2:18-ap-01371-RK). Case 2:19-ap-01126-RK was dismissed a month prior to the Court hearing the Trustee’s motion for sanctions. Case 2:18-ap-01371-RK was dismissed as it pertained to the Trustee in a memorandum decision the day after the Court heard argument on the Trustee’s motion for sanctions. The Court in Gonzalez found that the Trustee’s request for fees as it pertained to striking and dismissing the two adversary proceedings were moot. Id. *11.
MP’s and MB’s motion for sanctions was filed the day after the Court rendered its ruling dismissing the Debtor’s bankruptcy case from the bench. An order dismissing the case pursuant to the Court’s ruling was entered two days after the motion for sanctions was filed. In Gonzalez the Court took the motion for sanctions under advisement, rendered its ruling to dismiss the causes of action against Trustee, and then found the motion for sanctions as to striking and dismissing the adversary action as it pertains to the Trustee to be moot. Here, this Court rendered its ruling to dismiss the case prior to the motion for sanctions being filed and an order dismissing the case occurred prior to the Court adjudicating the motion for sanctions. The Court is convinced In re Gonzalez strongly supports the notion that MP’s and MB’s motion for sanctions is hereby moot.
After the Court dismissed the case at the hearing on August 25, 2020, the Court commented that it retained jurisdiction to preside over this motion for sanctions. Unfortunately, "[t] he doctrine of mootness, which is embedded in Article
11:00 AM
CONT...
Stephen E. Pearcy
Chapter 13
III's case or controversy requirement, requires that an actual, ongoing controversy exist at all stages of federal court proceedings." Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011) (citing Burke v. Barnes, 479 U.S. 361, 363, 107 S. Ct. 734, 93 L. Ed. 2d 732 (1987)). This "case or controversy" requirement is jurisdictional and cannot be waived. City of L.A. v. Cty. of Kern, 581 F.3d 841, 845 (9th Cir. 2009). There is no longer a case or controversy here because the underlying case has been dismissed and nothing can allow this Court to adjudicate this motion at this time. A finding of mootness here does not inhibit the Creditor’s counsel from seeking fees or sanctions in another forum.
Disposition:
Deny MP’s and MB’s motion for sanctions pursuant to FRBP 9011(c) as
moot.
Zoom. Gov Appearance Required.
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13009
Edward V. Marquez and Elva Marquez
Chapter 13
#96.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 46
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Edward V. Marquez Represented By Joshua L Sternberg
Joint Debtor(s):
Elva Marquez Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13021
Peter Clayton Purcell
Chapter 13
#97.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 37
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Peter Clayton Purcell Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13061
Madeleine De Bois
Chapter 13
#98.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 24
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Madeleine De Bois Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13135
Nicole Tanice Shepherd
Chapter 13
#99.00 Motion to Allow Claim 7 "Late" Filed be Deemed Timely Filed
Docket 56
Matter Notes:
NONE LISTED -
Tentative Ruling:
Trinity Financial Services ("Trinity") filed this motion to extend the time to file a proof of claim under FRBP 3002 and FRBP 9006(b). The applicable rule for extension of time to file a proof of claim is FRBP 3002(c).
Rule 9006(b)(1) allows for the enlargement of time, as stated by Trinity, but FRBP 9006(b)(3) specifically states that the court may only enlarge time for taking action under FRBP 3002(c) to the extent and under the condition stated in that rule. FRBP 3002(c) lists several exceptions to the general claims bar date. However, none of these exceptions appear to be applicable to Movant's circumstances. See In re Calderon, 2013 WL 5797616, at *5 (B.A.P. 9th Cir. Oct. 28, 2013)("The bankruptcy court lacks any equitable power to enlarge the time for filing a POC unless one of the six situations in Rule 3002(c) exists. None apply to this case.
Further, the excusable neglect standard set forth in Rule 9006(b)(3) does not apply to permit the court to extend the time for filing a POC under Rule 3002(c)").
Trinity has not articulated any grounds for this court to extend the deadline to file a proof of claim. A creditor does not need the court's permission to file a proof of claim; however, such a claim might be subject to disallowance under
§ 502(b)(9). The motion is DENIED.
TELEPHONIC APPEARANCE WAIVED for 9/22/20
Party Information
Debtor(s):
Nicole Tanice Shepherd Represented By
11:00 AM
CONT...
Trustee(s):
Nicole Tanice Shepherd
Matthew D. Resnik
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10037
Andrew Blas Lorenzo
Chapter 13
#100.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 43
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Andrew Blas Lorenzo Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10480
Eliachar Elliott Mamann
Chapter 13
#101.00 Trustee's Objection to Homestead Exemption fr. 6/23/20, 7/21/20; 8/25/20
Docket 15
Matter Notes:
NONE LISTED -
Tentative Ruling:
On 6/17/2020, Trustee filed a reply in which she asserted that if the funds transferred to Debtor's "Private Retirement Trust" were not previously in a qualified retirement account, then the transfer may be a preference under §
548. Trustee requested that Debtor provide an explanation and evidence as to the source of the funds and the timing of the purchase of the annuity.
Has the Trustee received any response from Debtor as to the questions raised in her Reply?
TELEPHONIC APPEARANCE REQUIRED on 9/22/2020 6-23-20 TENTATIVE BELOW:
Trustee opposes Debtor's attempt to exempt 100% of the fair market value in two checking accounts, $20,005.29 under C.C.P. 704.070 and $6,950 under
C.C.P. 704.080 because Debtor has not provided evidence that the funds are exempt under these sections.
Trustee also opposes Debtor's attempt to exempt $170,000 in in a private retirement account under C.C.P. 704.115(a)(1) and (a)(2) because Debtor has not provided evidence that the funds are exempt under these sections.
In response, Debtor explained that he amended his Schedule C to remove the exemption under 704.070 in the two checking accounts. Debtor contends, however, that he has submitted bank statements to show that his monthly Social Security income is deposited into one of the accounts and the
11:00 AM
CONT...
Eliachar Elliott Mamann
Chapter 13
funds therein are exempt under 704.080.
Debtor also argues that his Private Retirement Trust is exempt pursuant to
C.C.P. § 704.115(a)(1) & (2) and (b). Debtor contends that the exemption does not require that the Private Retirement Trust be ERISA qualified. Debtor explains that he is employed through his business, Apex Window Treatments, which is sole proprietorship. Through that sole proprietorship, Debtor created a Private Retirement Plan as allowed under C.C.P. §704.115(a)(1). The assets of that plan consist of an annuity which is payable on account of the age of Debtor. Debtor explains that the plan was created for retirement purposes, as Debtor is 71 years old and his only retirement assets are social security of $585 per month and the Private Retirement Trust. Debtor argues that the Private Retirement Trust is exempt because it was created by the employer, in this case a sole proprietorship, for the benefit of the Debtor. DeMassa v. McIntyre (In re McIntyre), 74 F.3d 186 (9th Cir. 1996); Salameh
v. Tarsadia Hotel, 2015 US Dist. Lexis 14008 (S.D. Cal. 2015). Debtor maintains that under 704.115(a)(1), the entire plan is exempt if the criteria for self-employed plans is applied because the plan is exempt to the extent that it is reasonably necessary for Debtor’s support. It is Debtor's position that the entire amount is necessary for his support. The only asset of the plan is an annuity which is payable on account of the age of the Debtor and therefore the annuity would be independently exempt under 704.100.
Does the evidence provided by Debtor in support of his response resolve Trustee's Objection?
TELEPHONIC APPEARANCE REQUIRED, unless Trustee and the parties stipulate otherwise
Party Information
Debtor(s):
Eliachar Elliott Mamann Represented By William E. Winfield
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10946
Ingrid Lorena Asturias
Chapter 13
#102.00 Trustee's Objection to Debtor's Homestead Exemption
Docket 26
*** VACATED *** REASON: Withdrawal filed by Trustee - Doc. #29. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ingrid Lorena Asturias Represented By Anerio V Altman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-11046
Norvard Tavadjian
Chapter 13
#103.00 Trustee's Objection to Debtor's Homestead Exemption
Docket 21
Matter Notes:
NONE LISTED -
Tentative Ruling:
Debtor's reliance on Spiegler, Ginsberg & Ladner v. Appel, 10 Cal App 4th 1814 (1992) seems to settle the matter. Exemption seems permissible.
Party Information
Debtor(s):
Norvard Tavadjian Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-11245
Carlos R Moyano and Rosa E. Moyano
Chapter 13
#104.00 Motion to Avoid Lien Junior Lien with Indymac Bank, FSB/CIT Bank, N.A
fr. 8/25/20
Docket 12
*** VACATED *** REASON: Cont'd to 10/27/20 @ 11:00 a.m. per order #30. lf
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Carlos R Moyano Represented By Nathan A Berneman
Joint Debtor(s):
Rosa E. Moyano Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11597
Dalton Roberto Toledo and Sanci Beth Solis
Chapter 13
#105.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 30
*** VACATED *** REASON: Cont'd to 11/17/20 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Dalton Roberto Toledo Represented By Michael E Clark
Joint Debtor(s):
Sanci Beth Solis Represented By Michael E Clark
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1601384325
Docket 0
9:00 AM
CONT... Chapter
Tentative Ruling:
NONE LISTED -
9:30 AM
1:19-11165
Mercedes R. Morales
Chapter 13
#1.00 Motion for relief from stay
WILMINGTON SAVINGS FUND SOCIETY FSB CHRISTIANA TRUST
fr. 7/22/20, 8/26/20, 8/27/20
Docket 39
Tentative Ruling:
This hearing was continued from 8-27-20 so that the parties could discuss whether this can be resolved with an APO. Nothing has been filed since the last hearing.
What is the status of this Motion? REMOTE APPEARANCE REQUIRED
Previous tentative below Petition Date: 05/10/2019
Ch. 13, confirmed on 01/02/2020 Service: Proper. No opposition filed.
Property: 15117 Oro Grand St. Sylmar, CA 91342 Property Value: $536,000
Amount Owed: $409,330.08 Equity Cushion: 24% Equity: $126,669.92
Post-Petition Delinquency: $8,228.63 (3 payments of $3,572.23 + $1,031.00 in attorney’s fees less suspense account or partially paid balance of
$3,519.06)
Movant alleges that postpetition mortgage payments due on the note secured by a deed of trust on the Property have not been made to Movant.
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)
9:30 AM
CONT...
Mercedes R. Morales
Chapter 13
stay).
There appears to be sufficient equity to protect Movant's claim & a small delinquency. This hearing was continued from July 22, 2020, have the parties reached an APO?
Zoom.gov apperance required.
Party Information
Debtor(s):
Mercedes R. Morales Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11124
Ernesto Bernabe Bustamante, Jr. and Lucia Tabunda
Chapter 13
#2.00 Motion for relief from stay LAKEVIEW LOAN SERVICING, LLC
Docket 50
Tentative Ruling:
Petition Date: 05/01/2018 Plan Confirmed: 10/05/2018
Service: Proper. Objection filed on 09/01/2020 Property: 8601 Rivendell Court, Winnetka, CA 91306 Property Value: $ 560,000 (per debtor’s schedules) Amount Owed: $ 506,267.29 (per Movant’s declaration) Equity Cushion: 9.60%
Equity: $53,732.71
Post-Petition Delinquency: $6919.74 (1 payment of $3,842.91 and 1 payment of $3,434.87)
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); 7 (waiver of the 4001(a)(3) stay). Movant alleges that it last received a postpetition payment on or about 07/29/2020.
The Debtors oppose the motion for relief of stay and assert that they have made a payment of $3,842.91, on August 21, 2020 which would bring delinquency to $3,076.83 ($6,919.74 - $3,842.91). Further, the Debtors propose to cure the remaining delinquency by the end of the year and are willing to enter into an APO.
There appears to be some equity in this property and the Debtor has cured part of the delinquency and is willing to cure the rest within a few months. Are parties amendable to entering an APO?
Zoom.gov apperance required.
10:00 AM
CONT...
Debtor(s):
Ernesto Bernabe Bustamante, Jr. and Lucia Tabunda
Party Information
Chapter 13
Ernesto Bernabe Bustamante Jr. Represented By Jeffrey N Wishman
Joint Debtor(s):
Lucia Tabunda Bustamante Represented By Jeffrey N Wishman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11703
Fredy A. Caballero
Chapter 13
#3.00 Motion for Relief from Stay
NATIONSTAR MORTGAGE LLC dba MR. COOPER
Docket 67
Tentative Ruling:
Petition Date: 07/06/2018 Plan Confirmed: 01/03/2019
Service: Proper. Opposition filed on 9/14/20.
Property: 13219 Azores Avenue, Sylmar California 91342 Property Value: $ 580,000.00 (per debtor’s schedules)
Amount Owed: $ 597,155.62 (per Movant’s declaration); $3,789.00 to Assessor Reginal Office.
Equity Cushion: 0% Equity: $0.00
Post-Petition Delinquency: $72,232.95 (9 payments of $3,491.00, 12 months
$3,484.64, and less suspense account [$1,001.73])
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 (termination, modification or annulment of co-debtor stay); 7 (waiver of the 4001(a)(3) stay). Movant alleges that it received the last postpetition payment on or about October 31, 2018.
The Debtor opposes the Movant's motion and expressed interest in possibly entering into a loan modification directly with the mortgage company. The Debtor is significantly behind on postpetition mortgage payments and there is no equity in the real property. Are parties amendable to discussing a possible loan modification?
Zoom.gov APPEARANCE REQUIRED
Party Information
10:00 AM
CONT...
Debtor(s):
Fredy A. Caballero
Chapter 13
Fredy A. Caballero Represented By Nathan Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12716
Gloria Esperanza Vasquez
Chapter 13
#4.00 Motion for relief from stay PENNYMAC LOAN SERVICES, LLC
Docket 41
Tentative Ruling:
Petition Date: 10/28/2019 Plan Confirmed: 12/24/2019
Service: Proper. No Opposition.
Property: 8348 Tampa Ave., Northridge, CA 91324 Property Value: $ 450,000.00 (per debtor’s schedules)
Amount Owed: $ 263,308.10 (per Movant’s declaration); $106,000.00 to junior lien holder.
Equity Cushion: 17.93% Equity: $80,691.90
Post-Petition Delinquency: $13,761.65 (7 payments of $1,965.95)
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 (termination, modification or annulment of co-debtor stay); 7 (waiver of the 4001(a)(3) stay). Movant does not identify when/if the Debtor last tendered a postpetition payment.
The Court recently approved the Debtor's motion to sell the property in question for $615,000.00. The Movant filed a conditional non-opposition response to sell seeking among other things that the Movant be paid in full after the sale takes place. The order provided for the Movant's concerns and was entered on September 10, 2020. The sale of the home is much greater than the liens currently encumbered on the Property and the Movant's claim will be paid in full shortly after the sale is finalized.
Disposition: Deny the motion because the Movant is adequately protected and will receive its payment in full soon.
10:00 AM
CONT...
Gloria Esperanza Vasquez
Chapter 13
No apperance required. The Court may modify the tenative ruling at the hearing.
Party Information
Debtor(s):
Gloria Esperanza Vasquez Represented By Matthew D. Resnik Glenn Ward Calsada
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10495
Edgar Hairapetyan
Chapter 13
#5.00 Motion for relief from stay
SANTANDER CONSUMER USA, INC, dba
CHRYSLER CAPITAL as Servicer
Docket 22
Tentative Ruling:
Petition Date: 02/28/2020
Plan Confirmed: Plan has not been confirmed. Service: Proper. No Objection.
Property: 2020 Ram 1500 (VIN # 1C6SRFJT6LN123441)
Property Value: $0.00 (per Debtor’s schedules) Amount Owed: $ 55,167.50 (per Movant’s declaration) Equity Cushion: 0%
Equity: $0.00
Post-Petition Delinquency: $2,908.24 (4 payments of $727.06)
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that its’ interest in the Property is not protected adequately because the Debtor has missed postpetition payments and proof of insurance has not been provided.
Debtor's schedules state that this is a leased vehicle that the Debtor's ex- spouse directly makes monthly payments to the lessor. The Debtor is listed as the lessee in the lease agreement attached in the Movant's exhibits. With the Debtor not tendering postpetition payments and not providing proof of insurance cause exists for lifting the stay.
Disposition: Grant relief under 11 U.S.C. 362(d)(1)in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay).
No apperance required. The Court may modify the ruling at the hearing.
Party Information
10:00 AM
CONT...
Debtor(s):
Edgar Hairapetyan
Chapter 13
Edgar Hairapetyan Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11164
Zachary R. Jayson
Chapter 7
#6.00 Motion for relief from stay
BMW BANK OF NORTH AMERICA
Docket 9
Tentative Ruling:
Petition Date: 07/02/2020
Confirmation Date: Plan remains unconfirmed Service: Proper. No Objection.
Property: 2017 Mini Hardtop 2 Door Cooper S Hatchback 2D (VIN #WMWXP7C55H2C61425)
Property Value: $20,000.00 (per Debtor’s schedules) Amount Owed: $ 20,520.72 (per Movant’s declaration) Equity Cushion: 0%
Equity: $0.00
Post-Petition Delinquency: $679.90 (2 payments of $345.38)
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that its’ interest in the Property is not protected adequately because the Debtor has missed postpetition payments and the FMV has declined enough to extinguish any equity in the Property.
There appears to be no equity in the Property and the Debtor's postpetition arrearage constitutes cause for lifting the stay. Additionally, it is the Debtor's intention to surrender the Property.
Disposition: Grant relief under 11 U.S.C. 362(d)(1) in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay)
No Appearance Required.
RULING MAY BE MODIFIED AT HEARING
10:00 AM
CONT...
Debtor(s):
Zachary R. Jayson
Party Information
Chapter 7
Zachary R. Jayson Represented By Susan Salehi
Trustee(s):
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:20-11274
Yadira Reyes
Chapter 7
#7.00 Motion for relief from stay SANTANDER CONSUMER USA INC.
Docket 7
Tentative Ruling:
Petition Date: 07/21/2020
Confirmation Date: Plan remains unconfirmed. Service: Proper. No Objection.
Property: 2017 Jeep Grand Cherokee (VIN #1C4RJEBG7HC779659) Property Value: $0.00 (per Debtor’s schedules)
Amount Owed: $ 29,021.59 (per Movant’s declaration) Equity Cushion: 0%
Equity: $0.00
Post-Petition Delinquency: $0.00.
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that its’ interest in the Property is not protected adequately because the Debtor the FMV has declined enough to extinguish any equity in the Property and the Debtor has not provided proof of insurance.
There was no postpetition arrearage at the time this motion was filed however the FMV of the Property has plummeted. According to the Debtor's schedules the vehicle was totaled while the Debtor was operating it without auto- insurance. It is the Debtor's intent to surrender the Property.
Disposition: Grant relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay).
No Appearance Required.
RULING MAY BE MODIFIED AT HEARING
10:00 AM
CONT...
Debtor(s):
Yadira Reyes
Party Information
Chapter 7
Yadira Reyes Represented By
Kevin Tang
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:20-11529
Steven Ronan
Chapter 13
#8.00 Motion in Individual Case for Order Imposing
a Stay or Continuing the Automatic Stay as the Court Deems Appropriate Real Property, 19853 Partheinia Street, Northridge, CA 91324
Docket 7
Tentative Ruling:
Petition Date: 07/21/2020
Confirmation Date: Plan remains unconfirmed. Service: Proper. No Objection.
Property: 2017 Jeep Grand Cherokee (VIN #1C4RJEBG7HC779659) Property Value: $0.00 (per Debtor’s schedules)
Amount Owed: $ 29,021.59 (per Movant’s declaration) Equity Cushion: 0%
Equity: $0.00
Post-Petition Delinquency: $0.00.
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that its’ interest in the Property is not protected adequately because the Debtor the FMV has declined enough to extinguish any equity in the Property and the Debtor has not provided proof of insurance.
There was no postpetition arrearage at the time this motion was filed however the FMV of the Property has plummeted. According to the Debtor's schedules the vehicle was totaled while the Debtor was operating it without auto- insurance. It is the Debtor's intent to surrender the Property.
Disposition: Grant relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay).
No Appearance Required.
10:00 AM
CONT...
Steven Ronan
Chapter 13
RULING MAY BE MODIFIED AT HEARING
Party Information
Debtor(s):
Steven Ronan Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11536
Sonia Lopez
Chapter 13
#9.00 Motion for relief from stay ANCHOR LOANS, LP
Docket 9
Tentative Ruling:
Petition Date: 8/26/2020 Case Dismissed: 9/14/20
Service: Proper. No Opposition.
Property: 1502 West 80th Street, Los Angeles, CA 90047
Property Value: Debtor never filed schedules but the Movant values Property around $1,000,000.00
Amount Owed: $ 1,007,285.15 (per Movant’s declaration); $12,360.19 secured claim to LA County Taxes
Equity Cushion: 0%
Equity: 0
Post-Petition Delinquency: $13,761.65 (7 payments of $1,965.95)
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay); 9 (order is binding in any other case under this title purporting to affect the Property filed not later than 2 years after the date of the entry of the order by the court); 10 (order binding and effective in any bankruptcy case commenced by or against any debtor who claims any interest in the Property for a period of 180 days); 11 (order binding in any future bankruptcy case, no matter who the debtor may be without notice). The Movant alleges that this bankruptcy case was filed in bad faith. In support of this allegation the Movant notes: (1) the Movant is one of a few creditors listed in the Debtor's case, (2) other bankruptcy cases have been filed in which an interest in the Property was asserted, (3) the Debtor filed only a few case commencement documents, and (4) the Movant's borrower simply transfers interests in the Property to individuals who then file bankruptcy cases in order to take advantage of the bankruptcy automatic stay to delay, hinder, and defraud the movant. Additionally, the Debtor has not verified
10:00 AM
CONT...
Sonia Lopez
Chapter 13
whether the Property is insured or not.
The Debtor has not filed a response and on September 14, 2020, the Case was dismissed for failure to file schedules and statements. While the dismissal of the case would ordinarily render this motion to be moot, the allegations of bad faith and the Movant seeking in rem relief as to this Property permits the Court to rule on at least some portions of this motion.
There is support for the Movant's allegation that this case was filed in bad faith. First, the bare bones filing of this petition suggests that the Debtor never intended to proceed with the bankruptcy. The fact that the case was later dismissed for failure to file a statements and schedules supports this notion. Second, there was Ch 7 bankruptcy filed by the joint tenant of the Debtor in the United States Bankruptcy Court for the Eastern District of California (In re Jeffrey Davis 20-23845) that was dismissed on identically grounds two days prior to the filing of this bankruptcy case. This joint debtor case involves the same Property listed by the Debtor. Finally, the filing of the joint debtor case, August 6, 2020, occurred five days prior to a foreclosure sale of the Property. When that case was dismissed on August 24, 2020, the Debtor filed this bankruptcy petition. This suggests that the Debtor is using the automatic stay to ward off a foreclosure sale without intending to proceed with the bankruptcy case.
Disposition: Grant relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 9 (order is binding in any other case under this title purporting to affect the Property filed not later than 2 years after the date of the entry of the order by the court); 10 (order binding and effective in any bankruptcy case commenced by or against any debtor who claims any interest in the Property for a period of 180 days).
Deny request for relief under 2 (proceed under non-bankruptcy law); 7 (waiver of the 4001(a)(3) stay) as the automatic stay is no longer in effect and the issues regarding the relief of stay are now moot.
Deny request for relief under paragraph 11 (order binding in any future bankruptcy case, no matter who the debtor may be without notice), as such relief requires and adversary complaint under FRBP 7001.
10:00 AM
CONT...
Sonia Lopez
Chapter 13
No apperance required.
The Court may modify the ruling at the hearing.
Party Information
Debtor(s):
Sonia Lopez Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11537
Juan Guillermo Talavera
Chapter 13
#9.01 Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 16
Tentative Ruling:
Ch. 13 Petition Date: 8/26/2020 Service Proper. No objections.
On August 26, 2020, the Debtor filed this Chapter 13 case. The Debtor has filed three prior bankruptcy cases, only one of which was dismissed within the last year. The Debtor first filed a Ch 7 petition on January 19, 2005, and received a standard discharge on May, 02, 2005. A second Ch 7 petition was filed on April 06, 2013, and a standard discharge was issued on July 15, 2013. The third bankruptcy case was a Chapter 13 petition filed on October 24, 2014. The third bankruptcy case was dismissed on March 11, 2020, for failure to make plan payments.
The Debtor now moves for an order continuing the automatic stay as to a 2015 Honda CRV and real property located at 11300 Foothill Boulevard #70, Sylmar, CA 91342. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case pursuant to 11 U.S.C.
362(c)(3) because the Debtor's financial circumstances have improved since the dismissal of the prior case. The Debtor's declaration states that he expects his income to increase to about $7,000.00. The Property is consequential value or benefit to the estate because the Property is the Debtor's primary residence. The Debtor will continue to make regular mortgage payments to the Secured Creditor.
MOTION GRANTED. NO APPERANCE REQUIRED.
Party Information
Debtor(s):
Juan Guillermo Talavera Represented By
10:00 AM
CONT...
Trustee(s):
Juan Guillermo Talavera
Thomas B Ure
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11538
Jeffrey Arthur Craddock
Chapter 13
#10.00 Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate .
Docket 8
Tentative Ruling:
Ch. 13 Petition Date: 8/26/2020 Service Proper. No objections.
On August 26, 2020, the Debtor filed this Chapter 13 case. The Debtor had a prior Ch. 13 case that was dismissed within the last year. The previous Ch. 13 bankruptcy case was commenced on July 3, 2017, and was dismissed on April 7, 2020, for failure to make plan payments.
The Debtor now moves for an order continuing the automatic stay as to real property located at 9445 Natick Ave., North Hill, CA 91343. Debtor asserts the present case was filed in good faith notwithstanding the dismissal of the previous case pursuant to 11 U.S.C. 362(c)(3) because the prior dismissal was a case not refiled under chapter 7 and because the Debtor recently accepted a job with the United States Postal Service. According to the Debtor, he retired and was liquidating his retirement plan to repair real property for a refinance or a sale in order to pay off his creditors around the time the previous case was dismissed. Unfortunately, the repairs did not correlate into equity and the Debtor was unable to sell or refinance the Property. Additionally, the Debtor was unable to find another job. The Debtor believes that this new position allows him to fund a plan. The Property is of consequential value to the estate because the FMV is greater than all liens on the Property and the Property is the Debtor's primary residence.
MOTION GRANTED. NO APPERANCE REQUIRED.
Party Information
Debtor(s):
Jeffrey Arthur Craddock Represented By Stephen S Smyth
10:00 AM
CONT...
Trustee(s):
Jeffrey Arthur Craddock
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:30 AM
1:19-11206
Stephen K Development & Construction, Inc.
Chapter 7
#11.00 Trustee's Final Report and Applications for Compensation
Docket 30
Tentative Ruling:
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.
Party Information
Debtor(s):
Stephen K Development & Represented By David S Hagen
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
1:10-21216
Anthony Henderson
Chapter 7
Adv#: 1:20-01071 Structured Asset Sales, LLC v. Henderson et al
#12.00 Status Conference re: Complaint for 1) Declaratory Relief
2) Preliminary and Permanent Injuction; 3) Accounting; and
4) Turnover
Docket 1
Tentative Ruling:
Having considered the Joint Stipulation to Extend Defendant SoundExchange, Inc.'s Time to Respond to Initial Complaint (ECF doc. 10), the Court approves the Stipulation. This status conference is continued to Nov. 4, 2020 at 1:00 p.m., to be heard with the 12(b) motion that was also continued by the Stipulation.
Parties to lodge Order Approving the Stipulation (ECF doc. 10) within 7 days. NO APPEARANCE REQUIRED ON 9/24/20
Party Information
Debtor(s):
Anthony Henderson Represented By James A Dumas Jr
Defendant(s):
Anthony Henderson Pro Se
SoundExchange, Inc,; Pro Se
Plaintiff(s):
Structured Asset Sales, LLC Represented By Stella A Havkin
Trustee(s):
David Seror (TR) Represented By David Seror (TR) Nina Z Javan
11:00 AM
CONT...
Anthony Henderson
Richard Burstein Steven T Gubner
Chapter 7
11:00 AM
1:20-10069
Shawn Sharon Melamed
Chapter 7
Adv#: 1:20-01068 GOLDMAN v. Dardashti et al
#13.00 Status Conference Re:
Trustee's Complaint for Avoidance and Recovery of Fraudulent Transfers
Docket 1
*** VACATED *** REASON: Continued to 10/7/2020 at 1:00 p.m. - hm Tentative Ruling:
Party Information
Debtor(s):
Shawn Sharon Melamed Represented By Giovanni Orantes
Defendant(s):
Shawn Dardashti Pro Se
DOES 1 - 20, Inclusive Pro Se
Joint Debtor(s):
Jenous Tootian Represented By Giovanni Orantes
Plaintiff(s):
AMY L GOLDMAN Represented By Scott E Gizer
Trustee(s):
Amy L Goldman (TR) Represented By Scott E Gizer
11:30 AM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#14.00 Status Conferece re: First Amended Complaint for:
Declaratory Relief
Injuctive Relief for Violation of Automatic Stay
Extent, Validity or Priority of Claim or Interest
Turnover of Property of the Estate
Contempt for Violation of Court Order
Violation of California Penal Code section 470 and Commercial Code section 3-420 for wrongful alteration and Conversion of a Negotiable Instrument
Negligence in the Handling and Management of Debtor's Account.
Attorney fees and costs. fr. 5/6/20; 6/24/20
Docket 32
*** VACATED *** REASON: Moved to 1:00 p.m. lf Tentative Ruling:
NONE LISTED -
Party Information
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 Chase Bank NA a National Banking Pro Se
Nationstar Mortgage, aka Mr. Pro Se
11:30 AM
CONT...
David B. Rosen
Chapter 11
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#14.01 Status Conferece re: First Amended Complaint for:
Declaratory Relief
Injuctive Relief for Violation of Automatic Stay
Extent, Validity or Priority of Claim or Interest
Turnover of Property of the Estate
Contempt for Violation of Court Order
Violation of California Penal Code section 470 and Commercial Code section 3-420 for wrongful alteration and Conversion of a Negotiable Instrument
Negligence in the Handling and Management of Debtor's Account.
Attorney fees and costs. fr. 5/6/20; 6/24/20
Docket 32
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
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 Chase Bank NA a National Banking Pro Se
Nationstar Mortgage, aka Mr. Pro Se
1:00 PM
CONT...
David B. Rosen
Chapter 11
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#15.00 JP Morgan Chase Bank, N.A.'s Motion to Dismiss First Amended Complaint
fr. 9/9/20
Docket 91
Tentative Ruling:
Debtor David B. Rosen ("Plaintiff") filed chapter 11 on May 16, 2010.
Plaintiff filed a complaint to begin this adversary proceeding on March 5, 2018 and named the following parties as Defendants:
Wilmington Savings Fund Society FSB d/b/a Christiana Trust, not individually but as trustee for Pretium Mortgage Acquisition Trust;
Selene Finance LP
On February 5, 2020, Plaintiff also named Chase Bank (JP Morgan Chase, N.A., hereafter "Chase") and Nationstar Mortgage a/k/a Mr. Cooper ("Nationstar") as Defendants. On March 7, 2020, Plaintiff filed a First Amended Complaint (the "FAC"). Plaintiff requested the following relief in the First Amended Complaint against Chase:
Declaratory Relief concerning whether or to what extent Plaintiff is in default under his promissory note and deed of trust;
Injunctive Relief preventing Defendant from acting against Plaintiff or Plaintiff’s Residence and Violation of the Automatic Stay under 11 U.S.C.
§ 362(a) for knowingly and intentionally recording a Notice of Default;
Extent, Validity or Priority of Lien, Claim or Interest regarding Plaintiff’s Residence;
Turnover of Property of the Estate for the misappropriation of checks;
Contempt for Violation of Court Order for the misappropriation of checks;
Violation of California Penal Code § 470 and Commercial Code § 3-420 for wrongful alteration and conversion of checks;
1:00 PM
CONT...
David B. Rosen
Negligence in the handling and management of Plaintiff’s account; and
Attorney’s fees and costs pursuant to California Civil Code § 1717
Chapter 11
Background
Plaintiff alleges that on October 17, 2011 Chase filed a mortgage claim for
$705,958.58, asserting that it had a first priority security interest in Plaintiff’s real property. Plaintiff also alleges that on June 19, 2010 Chase filed an additional claim for $20,493.32 stating that it had an unsecured credit card claim against the estate. Plaintiff thereafter filed a disclosure statement and chapter 11 plan, which was confirmed on March 13, 2012.
Plaintiff asserts that he made payments on both claims to Chase, pursuant to the Court’s Confirmation Order. As to the mortgage claim, Plaintiff alleges that each month he paid contractual payments of $2,741.27 and plan payments of $1,480.72, which amount was to cure the pre-petition and post-petition default of $64,139.57. As to the credit card claim, Plaintiff alleges that he paid $2,049.33, based on a 10% payout over the 5-year term of the plan, with the remainder discharged.
Plaintiff filed a Closing Motion on November 20, 2012, to which Chase filed limited objections and alleged that the plan payments of $1,480.72 reflected the cure of pre-petition arrearages only and that the funds for monthly contractual payments collected as part of the mortgage claim should be turned over to cover post-petition, pre-confirmation contractual payments. Plaintiff asserts that these objections neither disputed the tender of plan payments amounting to $47,751.32 on the mortgage claim nor alleged that Plaintiff defaulted on the plan payments.
Plaintiff claims Chase failed to properly apply Plaintiff’s plan payments and misappropriated funds to apply towards the amount due under the mortgage claim. Deposition testimony from November 7, 2019 indicated that Chase had not properly credited Plaintiff’s plan payments to Plaintiff’s account, pursuant to the Confirmation Order. Plaintiff contends that the plan payment checks were either altered or forged. Moreover, Plaintiff states that Chase made no reference to Nationstar of Plaintiff’s bankruptcy case when loan servicing was transferred to Nationstar. Plaintiff states that Nationstar was named as a "loss payee" on an insurance policy from January 2015 to January 2016.
1:00 PM
CONT...
David B. Rosen
Chapter 11
Plaintiff contends that as a result of the misappropriation of Plaintiff’s plan payments, Plaintiff received a Notice of Default ("NOD") and Election to Sell on January 4, 2018, notwithstanding the automatic stay. From these facts, Plaintiff disputes whether and to what extent Plaintiff is in default under his promissory note and deed of trust. Plaintiff alleges that he is not in default under his promissory note, deed of trust, or payment plan. Plaintiff further alleges that he has duly tendered payments on the amount in dispute and that the total indebtedness owed to Defendants, as of January 16, 2018, is not more than $601,689.62, subject to Plaintiff turning over to Defendants the sum of $142,076.68.
Chase filed a Motion to Dismiss this Adversary Proceeding and Request for Judicial Notice on July 30, 2020. Chase counters Plaintiff’s allegations in the Motion to Dismiss (hereafter "the Motion") and responds to each of Plaintiff’s eight causes of action for declaratory relief, injunctive relief and violation of the automatic stay, claim priority, turnover of property, contempt for violation of court order, violation of penal code, negligence, and right to recover attorney’s fees and costs.
Plaintiff filed an Opposition to Chase’s Motion to Dismiss (hereafter "the Opposition") supported by Points and Authorities and a Declaration on August 26, 2020. Plaintiff opposes as to the first, second, fourth, fifth, sixth, seventh, and eighth causes of action. In the Opposition, Plaintiff concedes that the third cause of action is not applicable against Chase.
Chase filed a Reply to Plaintiff’s Opposition (hereafter "the Reply") on September 2, 2020. Chase argues that Plaintiff’s claims should be dismissed because under California law, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money. Chase further contends that most of Plaintiff’s claims are time-barred.
Standard
Motions to Dismiss Under FRCP 12(b)(6)
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
1:00 PM
CONT...
David B. Rosen
Chapter 11
made applicable to this proceeding by Rule 7012(b) of the Federal Rules of Bankruptcy Procedure, challenges the sufficiency of the allegations set forth in the complaint. The complaint must contain a "short and plain statement of the claim," which shows that the plaintiff is entitled to relief. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation omitted).
A dismissal under Rule 12(b)(6) may be appropriate when the complaint lacks a "cognizable legal theory" or "sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citation omitted).
The Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1122 (9th Cir. 2008) (citation omitted). However, the Court is not bound by conclusory statements, statements of law, or unwarranted inferences cast as factual allegations. Twombly, 550 U.S. at 555; Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994) (citations omitted).
Although "detailed factual allegations" are not required, a plaintiff must provide more than mere "labels and conclusions" or "formulaic recitation[s] of the elements of a cause of action" in order to provide grounds for relief. Twombly, 550
U.S. at 555 (2007) (citations omitted). Rather, 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 in original) (citations omitted).
In Ashcroft v. Iqbal, 556 U.S. 662, 678 (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." (internal quotation marks and citations omitted). Facial plausibility exists when the plaintiff includes "factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (citations omitted).
Under the Twombly and Iqbal standard, courts may use a two-pronged approach. First, courts should identify pleadings which are no more than "legal
1:00 PM
CONT...
David B. Rosen
Chapter 11
conclusion[s]" and therefore "not entitled to the assumption of truth." Id. at 680. (internal quotation marks and citations omitted). Legal conclusions must be supported by factual allegations. Id. at 678. Second, courts should determine whether the complaint’s factual allegations "plausibly suggest an entitlement to relief," assuming the veracity of the well-pled factual allegations. Id. at 681.
When considering a 12(b)(6) motion to dismiss, the Court generally may not consider material beyond the pleadings, Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir.1984), unless properly submitted with the complaint. Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426, 429-30 (9th Cir.1978). The Court may consider "allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (citation omitted).
Court documents filed in an underlying bankruptcy case are subject to judicial notice in related adversary proceedings. Mullis v. United States Bankr. Court, 828 F.2d 1385, 1388 (9th Cir. 1987). However, courts do not assume facts that the plaintiff has not asserted, such that the defendant has "violated . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
Analysis
Notice of the alleged breach under the Deed of Trust
Chase notes that the terms of the Deed of Trust provide that Debtor must follow a pre-dispute, notice-and-cure procedure before suing Chase for the alleged misapplication of the payments. Chase argues that Plaintiff cannot sustain this action because he did not allege compliance with this notice-and-cure procedure under the Deed of Trust.
Plaintiff disagrees with Chase’s assertion and points to paragraph 41 of the FAC, in which he alleges that "[s]ince January 2016," he "communicated and corresponded with Defendants . . . in an attempt to resolve the dispute." Plaintiff argument that Chase’s reference to the Deed of Trust is an improper introduction of extrinsic evidence at the 12(b) stage holds no weight, as the Deed of Trust is both
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David B. Rosen
Chapter 11
incorporated by reference in the FAC and properly subject to judicial notice under FRE 201.
Plaintiff did allege to have communicated and corresponded with "Defendants" in an attempt to "resolve the dispute." FAC, ¶ 41. There were, however, multiple Defendants in this case at the time the FAC was filed. The vague allegation that Plaintiff "communicated and corresponded" with some or all of the Defendants is not sufficient under the notice pleading requirements of Rule 8 because it does not put Chase on notice about what Plaintiff is alleged to have communicated to Chase before filing this lawsuit. Such a complaint, which "lump[s] together . . . multiple defendants in one broad allegation fails to satisfy [the] notice requirement of Rule 8(a)(2)." Gen-Probe, Inc. v. Amoco Corp., 926 F. Supp. 948, 961 (S.D. Cal.
1996); see also, e.g., Karim-Panahi v. Wilson, 131 F.3d 147 (9th Cir. 1997) (affirming dismissal of complaint that "failed to distinguish among defendants").
Plaintiff will be required to amend the FAC to more clearly allege the facts that demonstrate compliance with the notice-and-cure requirements of the Deed of Trust, as specifically relates to Chase.
Statute of Limitations and Affirmative Defense
When an affirmative defense is obvious on the face of a complaint, a defendant can raise that defense in a motion to dismiss. See Cedars–Sinai Med. Ctr. v. Shalala,
177 F.3d 1126, 1128–29 (9th Cir.1999) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 1357 (3d ed. 1998) ("A complaint showing that the governing statute of limitations has run on the plaintiff's claim for relief is the most common situation in which the affirmative defense appears on the face of the pleading and provides a basis for a motion to dismiss under Rule 12(b) (6). ")). Where the statute of limitations issues are apparent on the face of the
complaint, the court may, therefore, address them. See Rivera v. Peri, 735 F.3d 892, 902 (9th Cir. 2013).
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David B. Rosen
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Plaintiff alleges that sometime in January 2016, "a dispute arose with Defendants concerning the contractually due monthly payment, as well as the payment for the escrow charges." FAC, ¶ 37. Plaintiff is not clear in the FAC as to with which Defendant(s) arose a dispute over the payments. Thereafter, in February 2016, Plaintiff began to tender his mortgage payments to an account at Union Bank, established for the purpose of holding the mortgage payments until the resolution of the dispute. Id., Plaintiff also alleges that he did not discover that Chase did not properly apply his plan payments to his account until November 2019. Id. at ¶ 42.
The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 807-808 (Cal. 2005). The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have "information of circumstances to put [them] on inquiry" or if they have "the opportunity to obtain knowledge from sources open to [their] investigation." Gutierrez v. Mofid, 39 Cal.3d 892, 896–897 (Cal. 1985), quoting Sanchez v. South Hoover Hospital, 18 Cal.3d 93, 101 (Cal. 1976). In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury and are charged with knowledge of the information that would have been revealed by such an investigation. Fox v. Ethicon, 35 Cal. 4th at 808.
Chase contends that Plaintiff has not met his pleading burden regarding the allegations of when Plaintiff discovered Chase’s alleged bad conduct. "[T]o rely on the discovery rule for delayed accrual of a cause of action, a plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and
(2) the inability to have made earlier discovery despite reasonable diligence." Id. (quotations omitted). The "burden [is] on the plaintiff to show diligence, [and] and conclusory allegations will not withstand" a motion to dismiss. Id.
Assuming the truth of Plaintiff’s allegations, it is clear he alleges that the time and manner of discovery of the alleged misapplication of his plan payments was during a deposition of Nik Fox in November 2019. What is unclear, and will require amendment, is that Plaintiff does not sufficiently allege in the FAC the inability to have made earlier discovery despite reasonable diligence. These allegations regarding
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the inability to have made earlier discovery will be salient to the question of whether the statute of limitations has run because of Plaintiff’s allegation that he had been in a dispute with "Defendants" since January 2016.
Plaintiff’s First Claim for Relief – Declaratory Relief
Plaintiff’s first claim for relief is a remedy and not a cause of action.
Nonetheless, the Court will construe this cause of action as a determination of the validity of the claim and Plaintiff’s request for declaratory relief as a prayer for relief. Plaintiff desires a judicial determination that (1) Plaintiff is not in default under his promissory note, deed of trust, or payment plan; (2) Plaintiff has duly tendered payments on an amount in dispute which Defendants must credit and reduce the amount, if any, in default by those amounts; and (4) Defendants did not act in good faith to resolve the dispute.
Plaintiff seeks further judicial declarations that about the amount of the indebtedness as of January 16, 2018, and various factual determinations as to the actions of Chase. See FAC, ¶¶ 53-59. Many of the judicial declarations that Plaintiff seeks are redundant to the other causes of actions and are therefore superfluous.
Mangindin v. Wash. Mut. Bank, 637 F. Supp. 2d 700, 707-08 (N.D. Cal. 2009).
The requests for judicial determination in this Claim for Relief are dismissed with prejudice as follows, because the judicial declarations that Plaintiff seeks are commensurate with relief sought elsewhere:
¶ 54, as duplicative of the Third, Fourth, and Seventh Claims, as relates to findings regarding allegations that Chase did not properly credit and account for payments made by Plaintiff arising from the promissory note; and
¶ 55 as duplicative of the Third and Seventh Claims, as relates to findings regarding allegations that Chase did not properly credit and account for escrow charges Plaintiff alleges were unnecessary because he provided evidence of insurance and tax payments; and
¶ 56 as duplicative of the Seventh Claim; and
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David B. Rosen
¶ 57 as duplicative of the Sixth and Seventh causes of action; and
Chapter 11
Lastly, as to ¶ 58, the request for a judicial determination that Chase maintains a lien only for amounts of actual indebtedness is also dismissed without leave to amend. Plaintiff concedes that Chase no longer holds any interest in the Quedo Dr. property. Opposition, 24:5-8
Plaintiff’s Second Claim for Relief – Injunctive Relief and Violation of the Automatic Stay
Plaintiff alleges that upon filing the case, an automatic stay was in effect against the property of the estate. Plaintiff prays for injunctive relief to enjoin foreclosure of Plaintiff’s residence and for a determination that there was a violation of the automatic stay of 11 U.S.C. §362(a)(1) when the NOD was recorded. First American Title was the foreclosure trustee, and the NOD was initiated by the servicer, Selene.
Under Section 362(c)(2)(C), the automatic stay terminates as to a debtor at the time the bankruptcy case is closed, dismissed, or a discharge is granted or denied.
Under Section 362(c)(1), the automatic stay terminates as to property of the estate at the time the property is no longer property of the estate.
Plaintiff’s bankruptcy case was closed on July 3, 2013 and not reopened until February 28, 2018. Because this is an individual chapter 11 case, there was no discharge upon confirmation and a discharge has yet to issue. See 11 U.S.C. § 1141(d) (5). The automatic stay terminated as to Plaintiff on July 3, 2013, when the case was closed. Given that an order to close a chapter 11 bankruptcy case terminates the automatic stay, the NOD cannot form the basis of an automatic stay violation.
As to the 20744 Quedo Dr. Property, the automatic stay terminated on March 28, 2012, the effective date of the Third Amended Plan of Reorganization and the date on which the Quedo Dr. Property re-vested in Debtor. First Amended Plan of Reorganization, Art. VI(B); Art. VII(B), bankr. ECF doc. 73; Order Confirming First Amended Plan of Reorganization, bankr. ECF doc. 91. When the NOD was recorded after confirmation of the Amended Plan of Reorganization, the automatic stay already had terminated as a matter of law because the property was no longer property of the
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Chapter 11
bankruptcy estate, having been re-vested in Debtor on or about March 28, 2012. As a result, no violation of the automatic stay occurred at that time.
Assuming the truth of Plaintiff’s allegations, this cause of action is dismissed without leave to amend because Plaintiff cannot show a cognizable legal theory to establish that an automatic stay violation may arise under 11 U.S.C. 362(k).
Plaintiff’s Third Claim for Relief – Extent, Validity or Priority of Lien, Claim or Interest in Real Property
Plaintiff asserts that the amount owed under the promissory note and deed of trust must be adjusted due to an accounting error.
Chase argues that Plaintiff fails to allege that Chase holds a lien. Chase no longer services the loan. Given that Plaintiff concedes to this point in the Opposition, 24:5-8, this cause of action is dismissed without leave to amend.
Plaintiff’s Fourth Claim for Relief – Turnover of Property of the Estate
Plaintiff’s Fourth Claim is for turnover of property of the estate. Plaintiff alleges that Chase "misappropriated" his loan payments and "must turn over" those payments "to reduce the amount owing" under the Loan. FAC, ¶¶ 71-72. Plaintiff asserts that checks were altered and forged for the purpose of misappropriating plan payments funds towards a previously discharged debt.
11 U.S.C. § 542 provides, in relevant part, "an entity . . . in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease . . . shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate."
Chase argues that this Claim must be dismissed because Plaintiff fails to allege that the subject payments are "property" of his bankruptcy estate, as opposed to the property of Chase. Chase contends that is no dispute that Debtor owed Chase the funds he tendered, both under the Plan and under the governing Loan documents. The only dispute is over whether Chase applied those funds to the correct account, not
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Chapter 11
whether the funds were due to Chase from Plaintiff. In other words, Chase contends that once Plaintiff tendered the funds to Chase, the funds because property of Chase and ceased to be property of the estate. Chase points out that Plaintiff cites no law to support his theory that any payments a debtor makes during the pendency of a bankruptcy still constitute property of the estate, even after the debtor has transmitted payment.
Plaintiff maintains that his use of his post-petition earnings to tender payments to Chase means that Chase’s alleged misappropriation of the tendered payments was a "taking" of property of the estate because § 1115(a)(2) provides that an individual debtor’s post-petition earnings are property of the estate. Plaintiff does not, however, cite any authority for this expansive reading of §§ 541 and 1115(a)(2), or explain why the funds, after tender to Chase, retained their characterization as property of the estate. Instead, in his Opposition, Plaintiff argument morphs from explaining his theory of turnover and property of the estate to a discussion of his claim for violation of the automatic stay.
Assuming the truth of Plaintiff’s allegations, this cause of action is dismissed without leave to amend because Plaintiff cannot show a cognizable legal theory to establish turnover under 11 U.S.C. § 542.
Plaintiff’s Fifth Claim for Relief – Contempt for Violation of Court Order
Plaintiff alleges that Chase was in contempt of the Court’s Amended Confirmation Order because it was or should have been aware that the aforementioned checks should have been applied as plan payments.
Plaintiff complains that Chase should be held in contempt for violation of the Confirmation Order and Amended Confirmation Order, for not having applied his plan payments as required in the Confirmed Plan. Plaintiff, however, does not explain the under what procedural mechanism a violation of the Amended Confirmation Order is remedied, as again his analysis blends this argument with violation of the automatic stay. It does not appear that Plaintiff has a private cause of action for damages for violation of the Confirmation Order, nor did Plaintiff move for an order under § 1142(b) to enforce Chase’s compliance with the confirmed Plan. The court's contempt authority under § 105(a) is only a civil contempt authority and allows only
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Chapter 11
for civil sanctions as an appropriate remedy. In re Moreno, 479 B.R. 553, 569 (Bankr.E.D.Cal. 2012) (citing Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1192 (9th Cir. 2003) (considering contempt sanctions in context of stay violation)). Civil sanctions must either be compensatory or designed to coerce compliance. Id. (internal citation omitted).
The Court is inclined to dismiss this claim for relief with leave to amend. As Chase noted in its Motion to Dismiss, the Ninth Circuit has explained that "[c]ivil contempt is a proceeding instituted in furtherance of an existing cause of action. It merely remedies the disobedience of an injunction already entered by the court." Donovan v. Sureway Cleaners, 656 F.2d 1368, 1374 (9th Cir. 1981) (emphasis added). As Plaintiff conflates in his FAC his claim for contempt for alleged violations of the Confirmation Order and his claim for damages for alleged violations of the automatic stay, it is unclear as to whether there is authority to support a claim for relief for contempt for violation of a confirmed chapter 11 plan without a more clear explanation of the legal theory that does not involve § 362(k).
Plaintiff’s Sixth Claim for Relief – Violation of California Penal Code § 470 and Commercial Code § 3420 For Wrongful Alteration and Conversion of a Negotiable Instrument
Plaintiff argues that Chase was in violation of Cal. Penal Code § 470 when it allegedly altered checks and misappropriated plan payments.
As Chase correctly points out, Plaintiff reliance on California Penal Code
§ 470 is misplaced as there is no private right of action for criminal forgery in California. Pavlides v. Bank of Am., N.A., 2015 WL 12670487, at *5 (C.D. Cal. June 15, 2015); see also Kilgore v. Wells Fargo Home Mortgage, 2014 WL 3687494, at *4 (E.D. Cal. July 23, 2014) ("[F]orgery ... is a crime, and cannot be maintained in a civil cause of action."). Plaintiff’s only rebuttal is that Chase did not follow Local Rule 9013-2(b)(4) procedures for citing an unpublished decision. As the Court likely would have found similar authority when researching this matter, the Court waives application of LBR 9013-2(b)(4) in this matter under LBR 1001-1(d).
Under California Commercial Code § 3420:
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David B. Rosen
Chapter 11
The law applicable to conversion of personal property applies to instruments. An instrument is also converted if it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment. An action for conversion of an instrument may not be brought by (1) the issuer or acceptor of the instrument or (2) a payee or indorsee who did not receive delivery of the instrument either directly or through delivery to an agent or a copayee.
Cal. Comm. Code § 3420(a).
"Under this statute, a check is converted by a bank if (a) the bank receives the check without negotiation from a person not entitled to enforce the check, or (b) the bank obtains payment on the check for a person not entitled to receive payment." In re McMullen Oil Co., 251 B.R. 558, 569 (Bankr.C.D. Cal. 2000). The court in McMullen explained that, under Section 3420, a "bank may be liable for conversion when it permits the deposit of a check into a third party’s account without the indorsement of the payee." Id.
Chase argues that Plaintiff’s claim under Section 3420 must fail as alleged because Chase neither received the subject checks from a person not entitled to enforce them, nor obtained payment on the checks for a person not entitled to receive payment. Plaintiff did not allege that Chase permitted the deposit of his checks into a third party’s account. The claim also fails because the statute expressly prohibits an action for conversion of an instrument by "the issuer . . . of the instrument." Cal.
Comm. Code § 3420(a). As the alleged issuer, Debtor cannot bring a Section 3420 claim.
Plaintiff contends that Chase did obtain payment for a person not entitled to receive payment – itself. Plaintiff’s theory under § 3420 is that Chase’s credit card division received payments that were to be applied to the home loan division of Chase. In other words, Plaintiff’s claim for relief under § 3420 is that Chase—a single corporate entity—is both the "bank" and a separate "person" under the statute.
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Chapter 11
Chase maintains that Debtor’s statutory interpretation renders the term "person" surplusage and makes it so that a bank may be liable for conversion whenever a payment is misapplied to the wrong account.
Plaintiff provides no legal authority for his interpretation of Comm. Code
§ 3420, nor does he address the specific prohibition in that section against the alleged issuer bringing an action thereunder. Plaintiff cannot bring a Section 3420 claim.
Plaintiff’s Sixth Claim for Relief is dismissed without leave to amend.
Plaintiff’s Seventh Claim for Relief – Negligence in the Handling and Management of Debtor’s Account
Plaintiff asserts he was owed a duty of care to have his account managed properly and have his checks applied as intended. Plaintiff believes that Chase breached this duty as a servicer, and as a result of this breach, Plaintiff’s bankruptcy was extended and he was nearly prevented from refinancing his home. Thus, Plaintiff contends Chase is liable for negligent administration of Plaintiff’s account.
Plaintiff argues that Chase may be liable for negligence either under the Code of Federal Regulations or alternatively under common law. Plaintiff argues that Chase violated its duty to Plaintiff as a loan servicer under 12 C.F.R. § 1026.36(c)(1) (i). In relevant part, 12 C.F.R. § 1026.36(c)(1)(i) states that "[n]o servicer shall fail to credit a periodic payment to the consumer's loan account. " Given that Plaintiff
alleges that Chase violated 12 C.F.R. § 1026.36(c)(1)(i), Plaintiff contends that Chase is negligent per se. Elsworth v. Beech Aircraft Corp., 691 P.2d 630, 632 (Cal. 1984).
Chase contends that Plaintiff cannot sustain a cause of action for negligence related to the misapplication of payments because under California law, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money. Mazed v. JPMorgan Chase Bank, N.A., 2013 WL 12131725 (C.D. Cal. May 6, 2013); Walters v. Fidelity Mortg. of CA, 730 F. Supp. 2d 1185 (E.D. Cal. 2010). Here, because Plaintiff did not allege that Chase was acting outside the scope of its role as a lender and servicer, his claim for negligence must fail. "Liability to a borrower for negligence arises only when the lender ‘actively participates’ in the
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Chapter 11
financed enterprise beyond the domain of the usual money lender. Normal supervision of the enterprise by the lender for the protection of its security interest in loan collateral is not ‘active participation.’" Wagner v. Benson, 101 Cal. App. 3d 27, 35 (1980).
Alternatively, Plaintiff argues that Chase may be found negligent under common law and lists the factors of foreseeability, certainty, connection, moral blame, policy, burden, consequences, and risk. Parsons v. Crown Disposal Co., 936 P.2d 70, 80 (Cal. 1997) (citations omitted). Plaintiff only demonstrates that two of these factors are satisfied; Plaintiff and Chase were connected via a borrower-servicer relationship and Plaintiff’s harm was foreseeable from Chase’s conduct. Further, it has been held that a plaintiff cannot convert an alleged violation of a federal statute into a common law negligence claim. Mazed v. JPMorgan Chase Bank, N.A., 2013 WL 12131725 at
*7.
Plaintiff has not explained why he can sustain a claim against Chase for negligence for alleged violations under 12 C.F.R. § 1026.36(c)(1)(i) when the law in California does not support a claim for negligence against a financial institution where there is no allegation that the defendant was acting outside the scope of its role as a lender and service. This claim for relief is dismissed without leave to amend.
Plaintiff’s Eighth Claim for Relief – Attorney’s Fees and Costs
Plaintiff retained the Law Offices of Louis J. Esbin to represent Plaintiff in the course of this adversary proceeding and asserts that fees are awardable based on Chase’s violation of the automatic stay and negligence, pursuant to Cal. Civ. Code § 1717. Plaintiff adds that fees are mandatory under the 11 U.S.C. § 362(k)(1) remedy for violations of an automatic stay, such that attorney’s fees and costs are a mandatory part of the remedy for a violation of the automatic stay.
Cal. Civ. Code § 1717 allows the prevailing party to recover attorney’s fees under a contract. Plaintiff has not referenced under what contract he contends that
§ 1717 will be applicable, and moreover, no judicial determination has yet been made. Plaintiff must be established as the prevailing party before attorney’s fees and costs may be awarded, on a separate motion. As to Plaintiff’s argument for fees under
§ 362(k), Plaintiff must establish that Chase violated the automatic stay before
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Chapter 11
attorney’s fees and costs would be appropriate.
Chase argues for dismissal of this claim with prejudice because there is no independent cause of action for attorneys’ fees. Garau v. HSCB Bank USA, Nat'l Ass'n, 2018 WL 5906644, at *5 (C.D. Cal. Apr. 13, 2018). This Claim will be dismissed with leave to amend to allow for Plaintiff to satisfy the notice pleading standard by identifying under which contract (the Note, Deed of Trust, etc.) he believes § 1717 will be applicable.
Motion to Dismiss under Rule 12(b)(6) is
GRANTED with leave to amend as to whether Plaintiff complied with the "notice- and-cure" procedures under the Deed of Trust; and
GRANTED with leave to amend as to Plaintiff’s inability to have made earlier discovery of Chase’s alleged bad conduct, despite reasonable diligence; and GRANTED without leave to amend as to paragraphs 54; 55; 56; 57 and 58 of the first cause of action for declaratory relief;
GRANT without leave to amend as to the second cause of action for injunction and violation of the automatic stay;
GRANTED without leave to amend as to the third cause of action for claim priority; GRANTED without leave to amend as to the fourth cause of action for turnover of property of the estate;
GRANTED with leave to amend as to the fifth cause of action for contempt for violation of a court order;
GRANTED without leave to amend as to the sixth cause of action for violation of California Penal Code § 470 and Commercial Code § 3420;
GRANT without leave to amend as to the seventh cause of action for negligence; GRANT with leave to amend as to the eighth cause of action for attorney’s fees and costs.
Party Information
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards
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David B. Rosen
Arnold L Graff
Chapter 11
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Joseph E Addiego
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
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1:16-13077
David Saghian
Chapter 7
#16.00 Order to Show Cause Re: Contempt against Avraham Shemuelian for Willful Violation of Court Orders.
Docket 126
Tentative Ruling:
Background:
On June 12, 2018, the Bankruptcy Court approved the sale of the David Saghian’s ("Debtor") 1/3 interest in One Nation Equities Liberty LLC ("Liberty") to Shemuelian ("Avi") for the purchase price of $150,000.00. See Doc. #82 (the "Sale Order"). The Sale Order approved that certain purchase and sale agreement between the Trustee and Avi (the "Sale Agreement"). Avi paid the initial deposit of $10,000 to the Trustee and is obligated to complete the payment upon resolution of the prior litigation between the Trustee, the Debtor, and Parvaneh Saghian, Adv. No. 1:18- ap-01039-MT (the "Adversary Proceeding").
On June 11, 2020, the Trustee filed a Motion for Order Approving Compromise of Controversy with Debtor and Defendant Parvaneh Saghian Pursuant to Fed. R. Bankr. P. 9019, Docket No. 112, pursuant to which the Trustee sought approval of a settlement with Debtor and Parvaneh Saghian, which would resolve the Adversary Proceeding in full. On July 6, 2020, the Court entered an order approving the settlement agreement.
After several failed attempts by the Trustee to collect on the balance that the Debtor owed under the Sale Agreement, the Trustee filed a motion for issuance of an Order to Show Cause ("OSC") to compel Avi’s compliance with the Sale Order. See Docket No. 118. The Court conducted a hearing on August 27, 2020. The Court issued an OSC and conducts this hearing on September 24, 2020.
Standard:
Bankruptcy courts have the power to issue sanctions under their civil contempt authority under §105(a) and their inherent sanction authority. Price v. Lehtinen (In re
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Chapter 7
Lehtinen), 564 F.3d 1052, 1058 (9th Cir. 2009). The bankruptcy court's inherent authority differs from the court's civil contempt power under § 105(a) and the two are not interchangeable. Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1196 (9th Cir. 2003). The inherent power allows the court to sanction a broad range of conduct, unlike the civil contempt authority, which permits a court to remedy a violation of a specific order. Id. Further, unlike the civil contempt authority, a bankruptcy court must make an explicit finding of bad faith or willful misconduct before imposing sanctions under its inherent authority. In re Lehtinen, 564 F.3d at 1058.
Whether acting under its inherent authority or civil contempt authority, the bankruptcy court does not have authority to impose significant punitive damages. Id. at 1059. "Civil penalties must either be compensatory or designed to coerce compliance." Id. Actual damages, including attorney's fees incurred as a result of the noncompliant conduct, can be recovered as part of a compensatory civil contempt sanctions award. See In re Dyer, 322 F.3d at 1195. To award such sanctions, the bankruptcy court must find that actual damages flowed from the contemnor's noncompliant conduct. Id.; see also Shuffler v. Heritage Bank, 720 F.2d 1141, 1148 (9th Cir. 1983) (Compensatory contempt sanctions must be based on "actual losses sustained as a result of the contumacy.").
In a civil contempt action, the moving party has the burden of establishing "by clear and convincing evidence that the contemnors violated a specific and definite order of the court. The burden then shifts to the contemnors to demonstrate why they were unable to comply." FTC v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999). "'Civil contempt . . . consists of a party's disobedience to a specific and definite court order by failure to take all reasonable steps within the party's power to comply.'" Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006).
The real concern here though is whether this should be heard as a contempt hearing or should the Trustee commence an adversary proceeding. A matter qualifies as an "adversary proceeding," as opposed to a "contested matter," if it is included in the list given in Bankruptcy Rule 7001. Id.; see Fed. R. Bankr. P. 7001. Otherwise, it is a "contested matter." See Fed. R. Bankr. P. 9014 (a). "Contempt proceedings are not listed under Bankruptcy Rule 7001, see Fed. R. Bankr. P. 7001, and are therefore contested matters not qualifying as adversary proceedings." Barrientos v. Wells Fargo
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Chapter 7
Bank, N.A., 633 F.3d 1186, 1190 (9th Cir. 2011).
The fact that is peculiar here is the basis for the Trustee’s rational for why Avi should be held in contempt. The rational advanced by the Trustee is essentially that Avi had breached the Sale Agreement that was approved by the Court by way of the Sale Order; therefore, Avi should be held in contempt for violating the Court’s order. This is a bit different from the string of Ninth Circuit cases that have found that contempt hearings are contested matters and do not qualify for adversary proceedings. In those cases, the basis for a finding of contempt rested on grounds of violating the automatic stay or violating the discharge injunction - not what is essentially a breach of contract claim. Id.; see also In re Fagen, 559 B.R. 718 (Bankr. E.D. Cal. 2016).
In Padilla v. GMAC Mortg. Corp. (In re Padilla), 389 B.R. 409, 420-21 (Bankr. E.D. Pa. 2008), that Court provided some insight which proves helpful here. That Court found "when viewed properly in contractual terms, a creditor’s failure to act in accordance with a confirmed plan, without more, does not routinely give rise to contempt proceedings." Id. at 421. In reaching this conclusion that Court provided an analogy between a plan confirmation order and settlement agreements. "A subsequent breach of the terms of a settlement agreement that has been approved by a court to resolve outstanding litigation does not generally give rise to contempt remedies." Id. (citing Stewart v. O'Neill, 225 F. Supp. 2d 6, (D.D.C. 2002)) "The Court's endorsement of the settlement agreement does not make that document an "order", violation of which will subject a party to contempt." National Union Hosp. & Health Care Employees v. Retail, Wholesale, Dept. Store Union, 1984 U.S. Dist. LEXIS 16174 *2 (S.D.N.Y. 1984). The law is clear that a court-approved settlement agreement, without more, does not constitute such an order. Williams v. Frey, 551 F.2d 932, 934 (3d Cir. 1977) ("Even though the Stipulation, which dismissed the suit, was approved by the court, it is not a command of which defendants can be held in contempt"); Wallace Clark & Co., Inc. v. Acheson Industries, Inc., 401 F.Supp. 637, 639 (S.D.N.Y. 1975) ("A breach of the license agreement [entered into pursuant to a consent decree] does not constitute contempt of court absent an injunctive provision for its compliance.")
The Ninth Circuit has adopted a similar philosophy to those of the Second and Third Circuits, "a district court may enforce a settlement agreement "in
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David Saghian
Chapter 7
contempt proceedings for violation of a court order approving the settlement and commanding or enjoining particular conduct." TNT Marketing, Inc. v. Agresti, 796 F.2d 276, 278 (9th Cir. 1986). It is clear that an order merely approving a settlement agreement is not enough. The order must command or enjoin a particular conduct in order to be enforceable.
While the issue here is a purchase and sale agreement, not a settlement agreement, the procedures between the two agreements are similar in bankruptcy cases. Parties reach an agreement and must get the matter approved by the Court. If the Court is satisfied with the sale or settlement terms, then the Court gives the parties its’ blessing and issues an order approving of the sale and settlement agreements. In absence of case law dealing with a breach of a purchase and sale agreement in the context of contempt hearing, the Court finds the case law regarding enforcing settlement agreements in the form of contempt hearings to be analogies and applies it here.
For the Court to enforce the matter in a contempt hearing, the Sale Order needs to not only needs to approve of the Sale Agreement, but it also needs to command or enjoin a conduct. The Sales Order clearly approves of the Sale Agreement; however, the Sales Order lacks any language commanding Avi to fulfill his obligations under the Sales Agreement. Since the Sale Order lacks this language, the Sales Order does not provide for most of the contempt remedies being sought by the Trustee and cannot be enforced through a contempt hearing. The only remedy with enough language that clearly directs parties how to act is paragraph 5 which states that if the sale does not go through for any reason other than a breach then the deposit of
$10,000.00 will be non-refundable. All other remedies the Trustee seeks must be properly placed before the Court by way of an adversary proceeding.
Disposition:
Grant the Trustee the right to retain the $10,000.00 deposit.
Deny the Trustee’s request for other damages. The Trustee is not precluded from seeking breach of contract claims against Avi but must do so through an
2:00 PM
CONT...
David Saghian
adversary proceeding.
Chapter 7
Zoom.gov appearence required.
Party Information
Debtor(s):
David Saghian Pro Se
Trustee(s):
Diane C Weil (TR) Represented By Michael G D'Alba Eric P Israel David Seror
Jessica L Bagdanov
2:00 PM
1:20-11512
McClay Design & Development LLC
Chapter 7
#17.00 Order to show cause re Dismissal and why the court should not grant judgment against petitioners pursuant to 11 U.S.C. section 303
Docket 0
Tentative Ruling:
Zoom.gov appearance required.
Party Information
Debtor(s):
McClay Design & Development Pro Se
9:00 AM
1: - Chapter
#0.00 You will not be permitted to be physically present in the courtroom.
Docket 0
Courtroom Deputy:
- NONE LISTED -
Tentative Ruling:
- NONE LISTED -
10:00 AM
1:19-11422
Joe Kearney
Chapter 11
#1.00 Evidentiary Objections and Motion to Strike Portions of Direct Examination of Patricia Leupold in support of Patricia Leupold's Claim (#8-1)
fr. 9/21/20
Docket 142
Courtroom Deputy:
GRANTED IN PART AND DENIED IN PART
Tentative Ruling:
Rule 402 of the Federal Rules of Evidence declares that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority." In turn, Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." To be "relevant," evidence need not be conclusive proof of a fact sought to be proved, or even strong evidence of the same. All that is required is a "tendency" to establish the fact at issue. The Advisory Committee Notes to the 1972 Proposed Rules remind us that "[r]elevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case. "In that relation, "[t]he fact to be proved may be ultimate, intermediate, or evidentiary; it matters not, so long as it is of consequence in the determination of the action." Id.
The Debtor argues that several of the Creditor’s statements are irrelevant and should be stricken. The Court has reviewed each of these statements and is unpersuaded by this argument. Each of the Creditor’s statements touches or concerns either the Property, the Contract, the project, the work performed, and the relationship between the parties, all of which are relevant to the issues to be decided. Accordingly,
10:00 AM
CONT...
Joe Kearney
Chapter 11
the Court denies the Debtor’s motion as to this arguement.
Federal Rule of Evidence 701 allows a lay witness to offer opinions that are
"rationally based on the witness's perception," (b) "helpful" to the jury or fact finder, and (c) "not based on scientific, technical, or other specialized knowledge within the scope of" expert testimony. "Rule 701 permits lay witness not only to give factual testimony, but also to express opinions or inferences that are rationally based on the perception of the witness and helpful to a clear understanding of the witness's testimony or the determination of a fact in issue." Bernal v. Daewoo Motor Am., Inc., 2011 U.S. Dist. LEXIS 166509, *11 (D. Ariz. 2011). Lay witnesses may not offer opinion testimony "based on scientific, technical or other specialized knowledge within the scope of Rule 702." Fed. R. Evid. 701(c); see also Everest Stables, Inc. v. Canai, 2011 U.S. Dist. LEXIS 163107 (C.D. Cal. 2011) (allowing a lay witness to testify as to valuation would do exactly what Rule 701(c) prevents: circumvent Rule 702 by offering expert testimony as a lay opinion). Rule 701 assumes that "the natural characteristics of the adversary system will generally lead to an acceptable result," and weaknesses in the lay witness's testimony can be emphasized through "cross- examination and argument." Fed. R. Evid. 701 advisory committee's notes; see also United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005) (noting that "direct and cross-examination of a lay witness testifying as to his or her opinion is relied upon to verify the accuracy of the testimony").
Here the Debtor identified several statements in the Creditor’s direct examination which the Debtor feels to be considered expert testimony. These statements fall into four categories: (1) experience at cabinet shop, (2) plumbing, (3) door hinges, and (4) experience as a real estate agent. The Creditor argues that each of these statements are based off her personal experiences and in limited circumstances a lay person should be allowed to testify as an expert when their statements are based off their experiences.
As to the cabinet shop, the Creditor states that she grew up working in a cabinet shop and has substantial experience in drawing up plans for cabinets. While this may be true, the matter of drawing up cabinet plans is a technical or specialized skill that a lay person is prohibited from testifying about. The Creditor has not been qualified as an expert so for her to testify as to the cabinet plans would be to circumvent Rule 702. Similarly, the Creditor mentions that she is a licensed real estate
10:00 AM
CONT...
Joe Kearney
Chapter 11
agent and is familiar with the surrounding areas property values and what the market rate is for rental properties. The Creditor is testifying as a lay witness and to allow her to testify as valuation of rental income would be improper because she has not been qualified as an expert witness. Again, the Creditor cannot circumvent Rule 702 by saying the Creditor has personal experience in valuing the rental market. Accordingly, any statements regarding the Creditor’s expertise working on cabinets or as a real estate agent are hereby stricken from her testimony.
Additionally, testimony on in-depth plumbing matters and hinge techniques goes beyond the knowledge of a lay person and requires an expert. While a homeowner will likely have some experience as to basic plumbing and maintenance issues, the Creditor’s statements go far beyond the knowledge and experience possessed by a lay witness. The Creditor may testify as to her experiences with how the plumbing is faulty or why the hinges may not be working properly, but she cannot provide testimony as to the technical aspects. The Court is not persuaded by the Creditor’s position here and strikes these statements.
A photograph may be distorted, and thus inadmissible as a technically inaccurate representation of the scene photographed. A picture may also be inadmissible, although technically accurate, because it portrays a scene that is materially different from a scene that is relevant to one of the issues at trial. Before admitting a photograph into evidence, the trial court must find that the dangers of such distortion or wrong emphasis are sufficiently remote so that the trier of fact may consider the photographs for the purposes offered. These are principally questions of authentication. See Fed. R. Evid. 901.
Federal Rule of Evidence 901(a) requires that "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Authentication is a prerequisite to the admission of evidence, satisfied by establishing that the proferred item is in fact what it purports to be. See Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). Authentication establishes the genuineness of evidence and is a special aspect of relevancy. See id. at 773 n.7. Evidence may be authenticated by presenting testimony from an individual who has sufficient familiarity with the proffered evidence to identify the evidence and inform the court of the circumstances under which the evidence was created. See United States v. Pelisamen, 641 F.3d 399, 411 (9th Cir. 2011). In sum, the individual who
10:00 AM
CONT...
Joe Kearney
Chapter 11
authenticates the evidence seeks to convince the court that the proffered evidence is genuinely what it purports to be. See Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532-33 (9th Cir. 2011). Generally, photographs can be authenticated by the photographer who took the photograph or by an individual who saw the photographer take the photograph. See Harley v. Cty. Of Los Angeles, 2011 U.S. Dist. LEXIS 165048, *11 (C.D. Cal. 2011)("Generally, a booking photograph may be authenticated ‘by the photographer who took the booking photograph or by an individual who saw the photographer take the booking photograph…’").
Here, the Debtor argues the Creditor offers photographic exhibits and testimony about them without ever identifying who took them and when such photographs were taken. The Creditor’s declaration states that the Creditor was present when the photographs in question were taken and is familiar with the project. Docket No. 135, Paragraphs 127-129. Further, the Creditor attests that the photographs accurately reflect portray the Property. The Debtor fails to raise genuine concerns that these photographs may not accurately reflect what the Creditor says it reflects. Accordingly, this satisfies the authentication requirements for admitting photograph into evidence.
Hearsay is defined as a statement that the declarant makes outside of court that a party offers in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c). "The Confrontation Clause limits the conditions under which hearsay evidence can be admitted, but it does not bar such evidence completely." People of Territory of Guam v. Ignacio, 10 F.3d 608, 612 (9th Cir. 1993). Hearsay evidence, which is sufficiently reliable either because it falls within a 'firmly rooted hearsay exception' or is supported by 'particularized guarantees of trustworthiness,' does not violate the Confrontation Clause." Id. (quoting Idaho v. Wright, 497 U.S. 805, 816, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990)).
As a threshold matter, not every statement offered into evidence is hearsay. A statement is not hearsay if "[t]he statement is offered against an opposing party and… was made by the party in an individual or representative capacity." Fed. R. Evid. 801(d)(2)(A). Similarly, under Rule 801(d)(2)(D), "a statement made by the party's agent or servant concerning a matter within' the scope of the agency or employment, made during the existence of the relationship," is non-hearsay. Fed. R. Evid. 801(d)(2) (D); see also MGM Studios, Inc. v. Grokster, Ltd. 454 F. Supp. 2d 966, 973 (C.D.
10:00 AM
CONT...
Joe Kearney
Chapter 11
Cal. 2006).
Here the Debtor argues that the Creditor’s direct examination includes several statements that are inadmissible hearsay. The statements in question are statements that the Creditor asserts the Debtor made or made by Miguel Ramos (the Debtor’s employee). All of these statements were made in the scope of the Debtor’s contractual obligations or in the scope of employment with the Debtor. These statements appear fall under the ambit of Rule 801(d)(2) and are not considered hearsay. Accordingly, these statements are admissible.
The best evidence rule provides that the original of a "writing, recording, or photograph" is required to prove the contents thereof. Fed. R. Evid. 1002. A writing or recording includes a "mechanical or electronic recording" or "other form of data compilation." Fed. R. Evid. 1001(1). Where the rule applies, the proponent must produce the original (or a duplicate, see Fed. R. Evid. 1003) or explain its absence. Fed. R. Evid. 1002, 1004. The rule's application turns on "whether contents are sought to be proved." United States v. Bennet, 363 F.3d 947, 953 (9th Cir. 2004).
Here the operative document in question is the Contract and several statements in the Creditor’s direct examination go towards the terms of the Contract. The Debtor believes these statements are in violation of the best evidence rule because he believes the Creditor is trying to enter the terms of the contract through testimony rather than the operative document. The Court has reviewed each statement which the Debtor believes the Creditor may have violated the best evidence rule and is unpersuaded by the Debtor’s arguments. The Creditor’s statements reflect her view on the work that has not been completed or how the Debtor materially breached the terms of the Contract. Nothing suggests the Debtor is trying to enter the terms of the Contract through the backdoor of her testimony, especially when the Contract itself will likely be entered into evidence.
The parol evidence rule, as codified in the California Code of Civil Procedure section 1856 and the California Civil Code section 1625, provides that when parties enter an integrated written agreement, extrinsic evidence may not be relied upon to alter or add to the terms of the writing. Casa Herrera, Inc. v. Beydoun, 32 Cal.4th 336, 343 (2004). "An integrated agreement is a writing or writings constituting a final expression of one or more terms of an agreement." Riversisland Cold Storage, Inc. v.
10:00 AM
CONT...
Joe Kearney
Chapter 11
Fresno-Madera Production Credit Assn., 55 Cal. 4th 1169, 1174 (2013). The parol evidence rule is "founded on the principle that when the parties put all the terms of their agreement in writing, the writing itself becomes the agreement. The written terms supersede statements made during the negotiations." Id. Extrinsic evidence of the agreement's terms is thus irrelevant and cannot be relied upon. Casa at 344.
Ambiguities arise when contractual language reasonably may be susceptible to more than one interpretation based upon the offered evidence regarding the material facts. Dore v. Arnold Worldwide, Inc., 39 Cal. 4th 384, 391 (2006). Under these circumstances, trial judges, acting as gatekeepers, may take a "preliminary look" at proffered extrinsic evidence to determine ambiguity, because written words may have special meanings to the contracting parties that are not apparent on the face of the document itself. ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co. (1993) 17 Cal.App.4th 1773, 1793 [22 Cal. Rptr. 2d 206]. An agreement is not ambiguous merely because the parties (or judges) disagree about its meaning. Taken in context, words still matter. Abers v. Rounsavell, 189 Cal App. 4th 348, 358 (Cal. App. 2010).
Here there are numerous statements made by the Creditor that the Debtor believes violates the parol evidence rule. There are two problems which complicate this issue, the first is the Contract is barebones when it comes to obligations of the Debtor. The Contract lists tasks to be completed in rather broad terms and without much specificity. There are certain aspects which a restoration job would almost certainly entail for completing the main task, but the contract remains silent on. A perfect example is the issue of the installation of the microwave. The Contract provides for the installation of new cabinets however the Contract remains silent as to the issue of installing the microwave. Anyone who has ever had restoration work performed on their kitchen is aware that the installation of a microwave usually coincides with cabinet replacements – in some cases the cabinets are specifically designed a certain type of microwave. A task such as that would likely be done by the contractor performing the restoration work and because the terms of the contract are pretty barebones, the Court believes that vagueness exists in the Contract so that some of the Creditor’s statements may come in.
The second problem that complicates this issue is there appears to have been work performed outside of the scope specifically included in the Contract. It is common for
10:00 AM
CONT...
Joe Kearney
Chapter 11
contractors to perform additional work at the request of their clients after commencing the work pursuant to their contracts -sometimes it is something that is discovered during the restoration project or it could be an entirely separate issue that a client would like the an expert to fix while they are already there. That appears to have happened here. The Creditor appears to have asked the Debtor to perform additional work for which was not a part of the Contract. The perfect example is located at paragraph 156 of the Creditor’s direct examination. In that paragraph the Creditor testifies about how the Debtor refused to build an outdoor wall or never offered the Creditor a credit to plant bushes. This type of work is not provided for pursuant to the terms of the Contract; however, the Debtor may have done some work not listed in the Contract with regards to this outside area where the Creditor wanted a wall. Because this additional work performed by the Debtor is not included in the terms of the Contract and now the Creditor is making statements about the Debtor not completing this additional work, the question is whether this is adding additional terms to a finalized agreement or interpreting a vague term. The Creditor argues that because the Debtor performed work that is outside of his contractual obligations ambiguity exists. The Court is not persuaded by this argument.
If the work could fall under one of the broader categories listed in the Contract, then the Court will find an ambiguity exists because the Contract lacks specificity as to all the details that could go into completing the broader tasks. The Court will not allow whole new obligations to come in that are clearly not provided for under the Contract. The Court has reviewed each of the objections for violating the parol evidence rule and the Court will strike paragraph 156 from the Creditor’s direct examination. The other objections are overruled.
Disposition:
Grant in part Debtor’s motion to strike as to improper lay witness testimony and violation of parol evidence rule. The portions stricken from the Creditor’s direct testimony are: Paragraphs 57, 156, 217, 218, 220,221, 222, 228, 235, 250(B), 309(A),
314(A), 323(N), 327 (J), 347, 353(E), 379-381, 390-391.
Deny the rest of the Debtor’s motion to strike.
Party Information
10:00 AM
CONT...
Debtor(s):
Joe Kearney
Chapter 11
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
1:19-11422
Joe Kearney
Chapter 11
#2.00 Motion to exclude testimony of Leupolds expert, Andrew Gillespie fr. 9/21/20
Docket 143
Courtroom Deputy:
DENIED
Tentative Ruling:
Federal Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert has reliably applied the principles and methods to the facts of the case.
Rule 702 requires that the "[e]xpert testimony . . . be both relevant and reliable." United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir. 2001). Relevancy simply requires that "[t]he evidence . . . logically advance a material aspect of the
10:00 AM
CONT...
Joe Kearney
Chapter 11
party's case." Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007)
Where the testimony's "factual basis, data, principles, methods, or [its] application" is called into question, a trial judge must make a reliability determination. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (quoting Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)). The "evidentiary reliability [is] based upon scientific validity." Daubert, 509 U.S. at 590 n.9. The Court is concerned "not [with] the correctness of the expert's conclusions but the soundness of his methodology." Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). The duty falls squarely upon the district court to "act as a 'gatekeeper' to exclude junk science that does not meet Federal Rule of Evidence 702's reliability standards." Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011).
Rule 702
The first criterion of the Section 702 is that the expert testimony must be based upon sufficient facts or data. "This criterion is generally quantitative, rather than qualitative: the quantum of facts or data relied upon by the expert must be sufficient to support the opinions expressed." In re Canvas Specialty, Inc., 261 B.R. 12, 20 (Bankr.
C.D. Cal. 2001) In some instances the testimony may be inadmissible if the expert has a gross misunderstanding of the relevant facts even if the expert has sufficient data. Id. "In addition to a sufficient quantity of data, the expert must obtain the right kind of data to support the conclusions drawn." Id.
The first argument advanced by the Debtor is that Gillespie’s testimony is not based on sufficient facts. Central to this case is the Contract; how the Contract is interpreted will ultimately determine whether a breach occurred. Gillespie’s responses during his deposition revealed that he never saw the Contract prior to the Deposition. Gillespie’s direct examination reveals that he has since reviewed the Contract. Despite not reviewing the Contract prior to the deposition, Gillespie made conclusory opinions about the work performed by the Debtor and asserts that the Debtor caused over
$400,000 in damages. The Debtor’s argument is that since Gillespie did not review the Contract, he did not have sufficient facts to formulate his opinion; thereby, making Gillespie ineligible to testify. While these are valid points for cross-examination and the weight to be accorded his opinion, they do not necessarily exclude his testimony.
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#1.00 Telephonic Trial re: 727 Complaint
fr. 8/29/18, 2/20/19, 6/26/19; 9/11/19, 12/4/19, 4/1/20, 5/1/20, 7/10/20, 9/8/20
Docket 1
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED. SEE STATUS CONFERENCE NOTES.
Party Information
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
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:20-01022 Jones v. Levin
#2.00 Status Conference re: Petition for injunction prohibiting creditor join Levin, M.D. from
legal action aganst Non-Bankrupt Corporation entities fr. 4/29/20, 7/10/20
Docket 1
Tentative Ruling:
The court cannot approve a settlement waiving court ordered sanctions for a violation of a court order. These must be exempted from the settlement for it to be approved as the parties do not have authority to waive this.
Party Information
Debtor(s):
John Gordon Jones Represented By
Michael Worthington
Defendant(s):
John Levin Pro Se
Plaintiff(s):
John Gordon Jones Represented By
Michael Worthington
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
Tuesday, September 29, 2020
Hearing Room
302
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#1.00 Trial
re: Complaint
fr. 8/29/18, 2/20/19, 6/26/19; 9/11/19, 12/4/19, 4/1/20, 5/1/20, 7/10/20, 9/8/20
Docket 1
Party Information
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
8:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: : https://cacb.zoomgov.com/j/1603062937
Docket 0
8:00 AM
CONT... Chapter
Tentative Ruling:
- NONE LISTED -
11:00 AM
1:18-10828
Nazaret Kechejian
Chapter 13
#1.00 Objection to claim no. 2 by LDI Ventures, LLC.
fr. 10/23/18; 2/26/19; 8/20/19, 9/11/19; 12/11/19
Docket 38
Tentative Ruling:
This will trail resolution of the adversary. Continued to january 27, 2021 t 11 am
Party Information
Debtor(s):
Nazaret Kechejian Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:18-10828
Nazaret Kechejian
Chapter 13
Adv#: 1:18-01101 Kechejian v. Mkrchyan et al
#2.00 Pre-trial Conference Re Complaint for:
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
fr. 11/7/18; 7/31/19; 9/25/19; 12/11/19
11:00 AM
CONT...
Nazaret Kechejian
Docket 1
Chapter 13
Tentative Ruling:
Given the motion to extend discovery, it appears that the status conference is not necessary at this time. No appearance is necessary, and the court will continue this to January 27, 2021 at 11 am. If either counsel need to appear for some reason, please notify opposing counsel and the court will keep the status conference on if anyone appears.
APPEARANCES WAIVED ON 9/30/2020
Party Information
Debtor(s):
Nazaret Kechejian Represented By Stella A Havkin
Defendant(s):
Greg Mkrchyan Pro Se
Kirill Kizyuk Pro Se
Prime Capital Group, Inc., a Pro Se
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
11:00 AM
CONT...
Trustee(s):
Nazaret Kechejian
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
1:18-10828
Nazaret Kechejian
Chapter 13
Adv#: 1:18-01101 Kechejian v. Mkrchyan et al
#3.00 Motion to Extend Time for discovery completion and mediation completion date
Docket 55
*** VACATED *** REASON: Motion granted, Order ECF doc. 59 (5/5/20)
- hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Nazaret Kechejian Represented By Stella A Havkin
Defendant(s):
Greg Mkrchyan Represented By Eamon Jafari
Phantom Properties, LLC, a Nevada Represented By
Eamon Jafari
Dimitri Lioudkovski Represented By James R Felton
LDI Ventures, LLC, a California Represented By
James R Felton
Kirill Kizyuk Represented By
Eamon Jafari
Prime Capital Group, Inc., a Represented By
11:00 AM
CONT...
Nazaret Kechejian
Eamon Jafari
Chapter 13
Mkrtchyan Investments, LP, a Represented By Eamon Jafari
Arthur Aristakesyan Represented By Eamon Jafari
Plaintiff(s):
Nazaret Kechejian Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:18-12917
Sohail Mobasseri
Chapter 7
Adv#: 1:19-01049 LendingHome Funding Corp. v. Mobasseri
#4.00 Status Conference Re:
Complaint by LendingHome Funding Corp. against Sohail Mobasseri.
Docket 1
Tentative Ruling:
Having reviewed the docket for this adversary proceeding and finding that a Motion to Dismiss the 727 Action was noticed to all creditors, as required and set for hearing on 10/28/20. The Court therefore finds cause to continue this status conference to 10/28/20 at 10:30 a.m., to be considered with the Motion to Dismiss.
APPEARANCES WAIVED ON 9/30/2020
Party Information
Debtor(s):
Sohail Mobasseri Represented By Dana M Douglas
11:00 AM
CONT...
Sohail Mobasseri
Chapter 7
Defendant(s):
Sohail Mobasseri Represented By Dana M Douglas
M. Jonathan Hayes
Plaintiff(s):
LendingHome Funding Corp. Represented By Adam Forest
Kerry A. Moynihan
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:19-12727
Tacarra Sheana Carthan
Chapter 7
Adv#: 1:19-01135 Barton et al v. Carthan
#5.00 Status Conference re: Complaint for determination
of dischargeability and objection to debtors discharge fr. 1/15/20, 5/6/20
Docket 1
Tentative Ruling:
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) :
11:00 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
*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.
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.
Zoom.gov apperance required.
Debtor(s):
Party Information
Tacarra Sheana Carthan Pro Se
Defendant(s):
Tacarra Sheana Carthan Pro Se
Plaintiff(s):
Carmen Barton Pro Se
11:00 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
Anthony Carthan Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
1:19-12727
Tacarra Sheana Carthan
Chapter 7
Adv#: 1:19-01135 Barton et al v. Carthan
#6.00 Motion to compel Discovery/Production of Documents
Docket 15
Tentative Ruling:
Background:
On October 29, 2019, Tacarra Sheana Carthan (the "Defendant") filed a chapter 7 bankruptcy petition. The Defendant’s schedules were amended on November 12, 2019, and again on January 6, 2020. Docket No. 13 & 19. These amendments showed significant changes made to the Defendant’s income, expenses, and assets.
On November 14, 2019, Carmen Barton and Anthony Carthan (the "Plaintiffs") commenced an adversary proceeding against the Defendant for a determination of dischargability and objection to the Defendant’s discharge pursuant to sections 11 U.S.C. § 523(a)(5); §523(a)(6) and § 727(a)(3). Discovery is currently underway, and the Plaintiffs seek the following documents from the Defendant:
6 months of Official certified bank statements from July 2019 through December 2019 for a JP Morgan Chase checking account;
6 months of Official certified bank statements from July 2019 through December 2019 for two Bank of America checking accounts;
11:00 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
6 months of Transaction History statements from July 2019 through December 2019 for CashApp;
6 months of Transaction History statements from July 2019 through December 2019 for Wix payment processing;
All 2019 1099 miscellaneous income tax forms;
All documents and communications with Gersh Agency regarding performance rider and pay;
All documents, contracts and communication regarding pay for performances with Chelsea Handler;
All documents, contracts and communication with NBC regarding compensation and residual payments for NBC "Bring the Funny";
All documents, contracts and communication with Just for Laughs Montreal Comedy Festival regarding compensation and residual for 2018 and 2019 performances;
10). Permit the Plaintiffs to inspect the Defendant’s 2010 Toyota Highlander odometer and general condition of the vehicle.
The Plaintiffs attempted to contact the Defendant’s counsel in order to obtain these discovery requests but have been unsuccessful. See Plaintiffs’ Exhibits 2-5. The
11:00 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
Plaintiffs even subpoenaed the Defendant to produce these documents but again has not been successful. Docket No. 10; Plaintiffs’ Exhibit 1.
On February 27, 2020, the Plaintiffs filed a motion to compel the discovery and production of documents pursuant to Federal Rule of Civil Procedure 37 (a)(3). No opposition has been filed.
Standard:
The instant motion arises under Federal Rule of Civil Procedure 37(a), made applicable to bankruptcy proceedings through Federal Rule Bankruptcy Proceeding 7037(a), which authorizes a party to apply for an order to compel disclosure or discovery. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. Fed. R. Civ. P. 37(a)(2) (A); see also Soto v. City of Concord, 162 F.R.D. 603, 609 (N.D. Cal 1995). FRCP 26, made applicable to bankruptcy proceeding through FRBP 7026, provides that a party has a general duty to disclose, without awaiting a discovery request, names and contact information of individuals with discoverable information, a copy of all documents that control or may be used to support claims or defenses, computation of damages, and any applicable insurance agreement. Fed. R. Civ. P. 26(a); Fed. R. Bankr. P. 7026(a).
A party may obtain discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]" Fed. R. Civ. P. 26(b)(1). Factors to consider include "the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Id. Information need not be admissible in evidence to be discoverable. Id. However, a court "must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules" if "(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1)." Fed. R. Civ. P. 26(b)(2)(C).
11:00 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
Analysis:
The Plaintiffs attached to their motion a declaration of noncooperation and exhibits supporting their position that they have in good faith tried to resolve the discovery disputes and have either briefly spoken with the Defendant’s counsel or have never received a reply to phone messages, emails, or to the subpoena. The Court is satisfied that this satisfies the formal requirements as articulated in FRBP 7037 and Local Bankruptcy Rule 7026-1(c).
Here the Plaintiffs are seeking to compel predominately financial documents relating to the Defendant’s prepetition and postpetition financial status. The Plaintiffs’ complaint alleges that the Defendant has falsified financial information and omitted various sources of income in her schedules. The complaint identifies several revenue streams that the Defendant has failed to adequately report in her schedules, and these allegations form the basis for relief under 11 U.S.C. § 727(a)(3). These financial documents will be necessary to prove whether the Defendant had other revenue streams that were not reported or under reported and the Plaintiffs assert that discovery may lead to admissible evidence. The Court is satisfied that the financial documents being sought are relevant to this adversary proceeding and there does not appear to be any defenses that could be raised as to why these documents are privileged.
The only concern the Court has is with regards to having the Plaintiffs’ check the odometer on the 2010 Toyota Highlander and to inspect its condition. At first glance this appears to be irrelevant information; however, the vehicle was only listed on the Defendant’s second amended schedules. While it is common for a debtor to file a barebones bankruptcy petition on an emergent basis and fill in the details later, the Defendant filed amended schedules and failed to list this vehicle until the second amended schedules were filed. Considering the relief sought under 11 U.S.C. § 727(a) (3), this car has some relevance but the concern the Court has is whether there is any relevant information left that can be gathered by having the Plaintiffs inspect the vehicle or whether it is overly burdensome on the Defendant. The issue here is whether the Defendant made false statements with regards to her assets. The Plaintiffs can almost certainly use the Defendant’s schedules to show that she may have made false statements, but it is not clear what an inspection of the vehicle will produce that is relevant to the underlying issue. Even if the Plaintiffs can assert some level of
11:00 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
relevancy to the underlying case, the burden of having the Defendant submit the vehicle for an inspection greatly outweighs any relevancy argument advanced by the Plaintiffs.
Disposition:
Grant the Plaintiffs’ motion to compel all requested financial documents.
Deny the Plaintiffs’ request to inspect the condition of the Defendant’s vehicle and to view the odometer.
Zoom.gov appearance required.
Party Information
Debtor(s):
Tacarra Sheana Carthan Represented By Daniel King
Defendant(s):
Tacarra Sheana Carthan Represented By Daniel King
Plaintiff(s):
Carmen Barton Pro Se
Anthony Carthan Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
1:20-10443
Gilbert J Gonzaga
Chapter 7
Adv#: 1:20-01048 Hagen-Olson v. Gonzaga et al
#7.00 Status Conference re: Complaint to determine dischargeability
fr. 7/1/20
11:00 AM
CONT...
Gilbert J Gonzaga
Docket 1
Chapter 7
Tentative Ruling:
Having considered the Status Report filed 9/29/20, the Court will set the following dates at the status conference:
Discovery cut-off (all discovery to be completed*): 10/30/20
Expert witness designation deadline (if necessary): tbd
Case dispositive motion filing deadline (MSJ; 12(c)): needed?
Pretrial conference: 11/18/20 at 11am
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.
A failure to comply in this regard will result in a waiver of a party's discovery
11:00 AM
CONT...
Gilbert J Gonzaga
Chapter 7
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.
Party Information
Debtor(s):
Gilbert J Gonzaga Represented By Kevin T Simon
Defendant(s):
Gilbert J Gonzaga Pro Se
Chona Sangco Chua Gonzaga Pro Se
GCNJ Global Enterprises, Inc. Pro Se
GCNJ Enterprises, Inc. Pro Se
Fantastic Sams Newbury LLP Pro Se
Joint Debtor(s):
Chona Sangco Chua Gonzaga Represented By Kevin T Simon
Plaintiff(s):
Leah Kathleen Hagen-Olson Represented By Bret G Anderson
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#8.00 Status Conference RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19,3/11/20; 5/13/20; 7/17/20, 7/23/20, 8/27/20, 9/9/20
Docket 21
Tentative Ruling:
This status conference was continued from September 9, 2020 so that the Court could address any final issues prior to trial. There has been a motion in limine filed by the Debtor that is set to be heard on October 13, 2020. Are there any remaining issues that need to be addressed prior to trial?
ZoomGov APPEARANCE REQUIRED.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By
1:00 PM
CONT...
Hawkeye Entertainment, LLC
Sandford L. Frey
Chapter 11
2:00 PM
1:10-14553
Anatoliy Kouzine
Chapter 7
#9.00 Motion for Order to to show cause why Lev Yasnogorodsky
and Counsel should not be held in civil contempt and sanctioned for failing to remedy continuing violations of the discharge
injunction and automatic stay
Docket 0
Tentative Ruling:
Background:
On July 27, 2007, Yasnogorodsky (the "Creditor") filed a civil action in the Los Angeles Superior Court Case No. BC382156 entitled Yasnogorodsky v. Kouzine. The State Court granted judgment (the "Initial Judgment") in favor of the Movant and against Anatoliy Kouzine (the "Debtor") for $132,575.81 in a minute order. The Debtor transferred the title of 2463 Achilles Dr., Los Angeles, CA 90046 (the "Property") to his wife on December 19, 2008 - three days after the State Court entered its’ judgment against the Debtor. The Abstract of Judgment related to the Initial Judgment was issued and later recorded on March 25, 2009. Docket No. 32 Creditor’s Ex. F. On November 4, 2009, the Creditor commenced an action against the Debtor and his wife for violation of the California Uniform Fraudulent Transfer Act (the "Fraudulent Transfer Action"). Thereafter, the Creditor filed a Chapter 7 Bankruptcy on April 19, 2010. The Creditor and his counsel were not notified of the bankruptcy filing on the petition date.
The Fraudulent Transfer Action was reduced to judgment in favor of the Creditor for a sum of $136,778.51. The transfer of title from the Debtor to his wife was voided and on June 9, 2020, the Abstract of Judgment for the Fraudulent Transfer Action was issued and later recorded on June 14, 2010. On July 30, 2010, the Debtor amended his schedules listing the Creditor and Creditor’s counsel. Docket No. 25, Debtor’s Exhibit 5. The Debtor received a discharge from bankruptcy on August 16, 2010. The Debtor’s case is considered a no-asset chapter 7 bankruptcy case, meaning no property was able to be collected and disbursed to creditors.
On February 11, 2011, the Debtor’s wife filed her own chapter 7 bankruptcy
2:00 PM
CONT...
Anatoliy Kouzine
Chapter 7
case (2:10-bk-56517-RN). In her petition, the Debtor’s wife listed her residence as the Property. Twice the Debtor’s wife tried to avoid the judicial lien; however, both times the Court denied her motions.
On October 23, 2019, Debtor’s Counsel emailed the Creditor’s counsel seeking a release from the post-petition recorded lien. The Creditor has not released the lien and on January 27, 2020, the Debtor filed a motion for sanctions for violation of the automatic stay and violation of discharge injunction against the Movants. Docket No. 25. The Creditor filed opposition on September 16, 2020.
Standard:
Bankruptcy courts have the power to issue sanctions under their civil contempt authority under §105(a) and their inherent sanction authority. Price v. Lehtinen (In re Lehtinen), 564 F.3d 1052, 1058 (9th Cir. 2009). The bankruptcy court's inherent authority differs from the court's civil contempt power under § 105(a) and the two are not interchangeable. Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1196 (9th Cir. 2003). The inherent power allows the court to sanction a broad range of conduct, unlike the civil contempt authority, which permits a court to remedy a violation of a specific order. Id. Further, unlike the civil contempt authority, a bankruptcy court must make an explicit finding of bad faith or willful misconduct before imposing sanctions under its inherent authority. In re Lehtinen, 564 F.3d at 1058.
Whether acting under its inherent authority or civil contempt authority, the bankruptcy court does not have authority to impose significant punitive damages. Id. at 1059. "Civil penalties must either be compensatory or designed to coerce compliance." Id. Actual damages, including attorney's fees incurred as a result of the noncompliant conduct, can be recovered as part of a compensatory civil contempt sanctions award. See In re Dyer, 322 F.3d at 1195. To award such sanctions, the bankruptcy court must find that actual damages flowed from the contemnor's noncompliant conduct. Id.; see also Shuffler v. Heritage Bank, 720 F.2d 1141, 1148 (9th Cir. 1983) (Compensatory contempt sanctions must be based on "actual losses sustained as a result of the contumacy.").
In a civil contempt action, the moving party has the burden of establishing "by clear and convincing evidence that the contemnors violated a specific and definite order of the court. The burden then shifts to the contemnors to demonstrate why they
2:00 PM
CONT...
Anatoliy Kouzine
Chapter 7
were unable to comply." FTC v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999). "'Civil contempt . . . consists of a party's disobedience to a specific and definite court order by failure to take all reasonable steps within the party's power to comply.'" Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006).
Analysis:
There are two bases for sanctions sought by the Debtor: (1) violation of the automatic stay and (2) violation of the discharge injunction. The Court will address each in turn.
An act taken in violation of the automatic stay is void, not merely voidable, is well-established law in the Ninth Circuit. Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074, 1082 (9th Cir. 2000); see also Far Out Productions, Inc. v. Oskar et al., 247 F.3d 986, 995 (9th Cir. 2001). Further, "judicial proceedings in violation of the automatic stay are void." In re Gruntz at 1074 (quoting Phoenix Bond & Indemnity Co. v. Shamblin (In re Shamblin), 890 F.2d 123, 125 (9th Cir. 1989)). An action that violates the stay is still void despite a party’s lack of knowledge of the pending bankruptcy. See e.g., 40235 Washington Street Corporation v. Lusardi (In re Lusardi), 329 F.3d 1076 (9th Cir. 2003) (the Ninth Circuit deemed a county tax sale on real property void even though neither the county nor the purchaser had knowledge of the bankruptcy case).
There is no dispute that the abstract of judgment for the fraudulent transfer case was issued and recorded post-petition and done so without relief from the automatic stay. Whether the Creditor had notice or not of the Debtor’s bankruptcy case during this time period is irrelevant. Both the abstract of judgment and the recording of the abstract of judgment are void by operation of law. Any argument made by the Creditor suggesting that he had a valid lien on the property is misplaced. The second argument was that the abstract of judgment, which itself is void, was filed with the country recorder. It is not voidable but also void.
"A stay violation is willful if a creditor has knowledge of the bankruptcy filing and deliberately acts in such a way that violates the stay." Auyeung v. Christensen (In Re Auyeung), 2012 Bankr. LEXIS 6126, *13 (Bankr. E.D. Cal. 2012). As the Ninth
2:00 PM
CONT...
Anatoliy Kouzine
Chapter 7
Circuit Court of Appeals explained:
A "willful violation" does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant's actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant to whether the act was "willful" or whether compensation must be awarded.
Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir. 1989).
The two violations of the automatic stay alleged by the Debtor are the issuance of the abstract of judgment that occurred on June 9, 2010 and the recording of abstract of judgment that occurred on June 14, 2010. The Debtor’s original schedules did not include the Creditor and Creditor’s counsel. The schedules were amended to include the Creditor and Creditor’s counsel on July 30, 2010. The Creditor asserts that he had no notice of the bankruptcy case until well after the abstract was recorded. The documents on the docket support the Creditor’s position of lack of notice. Since the Creditor had no notice of automatic stay, the Creditor’s violation of the stay cannot be considered willful. The actions themselves are void but there is no willful violation of the automatic stay on the part of the Creditor.
The Debtor makes the argument that because the Creditor did not take corrective actions as to the violations of the automatic say that this constitutes as willful. The Court is unpersuaded by this argument. Here the Debtor amended his schedules on July 30, 2010, on or around that date is when the Creditor had notice of the bankruptcy case. On August 16, 2010, the case was closed, and a discharge was granted. When the case was closed the automatic stay terminated and was replaced by the discharge injunction. Given the short time frame here coupled with the fact that prior to this the Creditor had no notice of the bankruptcy petition, the Court cannot conclude that this was a willful violation of the automatic stay.
Section 524 of the Bankruptcy Code recites the effect of a discharge:
A discharge in a case under this title—
voids any judgment at any time obtained, to the extent that such judgment is a determination of the
2:00 PM
CONT...
Anatoliy Kouzine
personal liability of the debtor with respect to any debt discharged under [§ 727], 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[.]
Chapter 7
"[A] a creditor has a duty to obey the discharge injunction, which duty is a modern corollary of the venerable rule that all persons concerned in executing [void] judgments … are considered in law as trespassers." Lone Star Sec. & Video, Inc. v. Gurrola (In re Gurrola), 328 B.R. 158, 174-75 (9th Cir. BAP 2005). A violation of the discharge injunction with notice of the discharge injunction is subject to a contempt remedy under 11 U.S.C. § 105(a). Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1191-92 (9th Cir. 2003); Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir. 2002). To be subject to sanctions for violating the discharge injunction, the alleged contemnor's violation of the discharge must be "willful." Under Ninth Circuit law, a violation of the discharge injunction is willful when the alleged contemnor (1) knew that the discharge injunction applied, and (2) intended the actions that violated the discharge injunction. In re Zilog, Inc., 450 F.3d at 1007; Hardy v. United States (In re Hardy), 97 F.3d 1384, 1390 (9th Cir.1996). The burden of proof on the issue of willfulness is clear and convincing evidence. In re Zilog, Inc., 450 F.3d at 1007; Renwick v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002) ("The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court.").
Here the Creditor was placed on notice of the pending bankruptcy case on or around July 30, 2010. Further, the Creditor received a copy of the Debtor’s discharge order. Docket No. 20. The first issue that needs to be addressed is whether the Creditor knew that the discharge injunction applied.
A chapter 7 discharge discharges the debtor from all debts, unless otherwise deemed non-dischargeable, that arose prepetition. 11 U.S.C.S. § 727(b); see also Kvassay v. Kvassay (In Re Kvassay), 2019 Bankr. LEXIS 373, *16 (9th Cir. BAP
2:00 PM
CONT...
Anatoliy Kouzine
Chapter 7
2019). The Ninth Circuit ordinarily employs the "fair contemplation" test in determining when a claim arises. See, e.g., In re SNTL Corp., 571 F.3d 826, 839 (9th Cir 2009); Zilog, Inc. v. Corning (In re Zilog), 450 F.3d 996, 1000 (9th Cir. 2006); Health Servs. v. Jensen (In re Jensen), 995 F.2d 925, 930 (9th Cir. 1993). This test dictates that a claim arises when the claimant "can fairly or reasonably contemplate the claim's existence even if a cause of action has not yet accrued under nonbankruptcy law." In re SNTL Corp., 571 F.3d at 839 (citing Cool Fuel, Inc. v. Bd. of Equalization (In re Cool Fuel, Inc.), 210 F.3d 999, 1007 (9th Cir. 2000)).
Even though the claim was reduced to judgment post-petition, the claim clearly arose prepetition. This kind of debt is not automatically non-dischargeable under 11 U.S.C. § 523 and the Creditor failed to properly bring an adversary proceeding pursuant to this section seeking a determination that the debt is non- dischargeable. Any opposition and argument raised by the Creditor about the debt being non-dischargeable should have been raised in an adversary proceeding, and the timeline for filing such an action has long since passed. See FRBP 4007. Additionally, after the Creditor received notice of the bankruptcy case, a simple inquiry would have revealed that the recording of the abstract of judgment was void by operation of law. Since the Creditor never acted to properly secure his claim nor did he seek to have the debt be deemed non-dischargeable, the claim is an unsecured debt that is dischargeable under 11 U.S.C. § 524. Accordingly, the Court believes the knowledge requirement for sanctions is satisfied.
The next issue is whether the Creditor intended to cause the actions which form the basis of the violation of the discharge. Here the Creditor has protected a void lien against the Property rather vigorously even though the Creditor knew or should have known that the lien was void. Accordingly, the Court is satisfied that this element is met, and sanctions are appropriate for violating the Debtor’s discharge injunction.
As to damages, there does not appear to be any actual damages to the Debtor. Additionally, the Court is not satisfied that the Debtor has shown that this is a rare instance where punitive damages are warranted and denies that request. The only monetary compensation that is available is with regards to attorney fees and cost incurred litigating this matter. Debtors counsel has already filed a fee application, Docket No. 31, but the amount of work has since increased since this application was
2:00 PM
CONT...
Anatoliy Kouzine
Chapter 7
filed. The Court will allow Debtor’s counsel fourteen days to submit a supplemental fee application with the Court. Since the lien is void by operation of law, the Court orders the Creditor to remove the judicial lien.
Debtor’s motion and limited request for sanctions is GRANTED. The Court orders the Creditor to remove the void judicial lien against the Property and Debtor’s counsel has 14 days to submit a supplement fee application with the Court.
Deny request for punitive damages.
Zoom.gov appearance required.
Party Information
Debtor(s):
Anatoliy Kouzine Represented By Elena Steers
Trustee(s):
Nancy J Zamora (TR) Pro Se
Thursday, October 1, 2020
Hearing Room
302
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#1.00 Trial
re: Complaint
fr. 8/29/18, 2/20/19, 6/26/19; 9/11/19, 12/4/19, 4/1/20, 5/1/20, 7/10/20, 9/8/20, 9/28/20, 9/28/20
Docket 1
Party Information
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
Friday, October 2, 2020
Hearing Room
302
10:00 AM
1:18-10724
John Gordon Jones
Chapter 7
Adv#: 1:18-01075 Levin, M.D. v. Jones
#1.00 Trial
re: Complaint
fr. 8/29/18, 2/20/19, 6/26/19; 9/11/19, 12/4/19, 4/1/20, 5/1/20, 7/10/20, 9/8/20
Docket 1
Party Information
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
9:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1603785789
Docket 0
9:00 AM
CONT... Chapter
Tentative Ruling:
NONE LISTED -
9:30 AM
1:16-11417
Farshid Tebyani
Chapter 13
#1.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST
fr. 9/9/20
Docket 88
*** VACATED *** REASON: Motion Resolved by APO Tentative Ruling:
Vacated. Motion resolved by APO Docket No. 95. No apperance required
Party Information
Debtor(s):
Farshid Tebyani Represented By Devin Sawdayi
Movant(s):
Deutsche Bank National Trust Represented By April Harriott Michael S Kogan Seth Greenhill Keith Labell Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:16-11795
Juan Rocha
Chapter 13
#2.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO. fr. 8/19/20
Docket 72
*** VACATED *** REASON: Motion Resolved by APO Tentative Ruling:
VACATED. Motion resolved by APO Docket. No. 76. No Appearance required
Party Information
Debtor(s):
Juan Rocha Represented By
Tawni Takagi
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:18-10021
Michael David Kemper
Chapter 13
#3.00 Motion for relief from stay WELLS FARGO BANK N.A.
fr. 9/2/20
Docket 65
*** VACATED *** REASON: Resolved pursuant to APO Tentative Ruling:
VACATED Pursuant to APO. No Apperance Required.
Party Information
Debtor(s):
Michael David Kemper Represented By John B Laing
Movant(s):
Wells Fargo Bank , N.A. Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:18-11994
Raul Eduardo Melgar Castillo
Chapter 13
#4.00 Motion for relief from stay WELL FARGO BANK
fr. 9/9/20
Docket 43
*** VACATED *** REASON: Resolved by APO. Tentative Ruling:
Vacated. Motion resolved by APO Docket No. 50. No appearance required.
Party Information
Debtor(s):
Raul Eduardo Melgar Castillo Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-10566
Demetrio Camacho and Rosario Lua
Chapter 13
#5.00 Motion for relief from stay.
DEUTSCHE BANK NATIONAL TRUST CO
fr. 7/22/20, 8/26/20, 8/27/20
Docket 42
Tentative Ruling:
On October 6, 2020, the Court signed an order approving a loan modification. Does this resolve the RFS Motion?
APPEARANCE REQUIRED.
7-22-20 TENTATIVE BELOW
Petition Date: 3/11/19 Ch.13; confirmed on 8/15/19
Service: Proper. Co-Debtor served. No opposition filed. Property: 13682 Judd Street, Pacoima, CA 91331 Property Value: $ 546,000 (per debtor’s schedules) Amount Owed: $ 328,556.80
Equity Cushion: 40.0% Equity: $217,443.2.
Post-Petition Delinquency: $9,076.33 (3 payments of $1,587.44 + 1 payment of
$2,760.01)
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). Movant alleges that the last payment of $1,578.44 was received on or about 2/25/20.
There appears to be sufficient equity to protect Movant's claim & a small delinquency. Have the parties discussed whether this delinquency can be cured via APO?
Party Information
9:30 AM
CONT...
Debtor(s):
Demetrio Camacho and Rosario Lua
Chapter 13
Demetrio Camacho Represented By Kevin Tang
Joint Debtor(s):
Rosario Lua Represented By
Kevin Tang
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Erin Elam
Christopher Giacinto
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-10781
Daniel Correa
Chapter 13
#6.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST COMPANY
fr. 6/24/20; 7/22/20, 8/27/20
Docket 36
Tentative Ruling:
This hearing was continued from 7/22/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion? TELEPHONIC APPEARANCE REQUIRED.
6-24-20 TENTATIVE BELOW
Ch. 13 Petition Date: 04/02/2019 Plan confirmed 07/22/2019
Service: Proper. Opposition filed 6/11/2020 Property: 8101 Etiwanda Ave, Reseda, CA 91335 Property Value: $490,000 (per debtor’s schedules) Amount Owed: $369,282.52
Equity Cushion: 24.6% Equity: $120,717.48
Post-Petition Delinquency: $7,167.74 (3 payments of $1,922.58 plus $1,400 post-petition advances)
Movant alleges that the last partial payment received was on or about 10/15/2019. Movant requests relief under 11 U.S.C. 362(d)(1) with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3(a) (Movant permitted to engage in loss mitigation activities); and 7 (relief from 4001(a)(3) relief from stay).
Debtor opposes the motion because the property is necessary for effective reorganization. Debtor wishes to enter an APO to catch up on post-petition arrears. Is Movant amenable to an APO?
9:30 AM
CONT...
Debtor(s):
Daniel Correa
Party Information
Chapter 13
Daniel Correa Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-11165
Mercedes R. Morales
Chapter 13
#6.01 Motion for relief from stay
WILMINGTON SAVINGS FUND SOCIETY FSB CHRISTIANA TRUST
fr. 7/22/20, 8/26/20, 8/27/20, 9/24/20
Docket 39
Tentative Ruling:
This hearing was continued from 8-27-20 so that the parties could discuss whether this can be resolved with an APO. Nothing has been filed since the last hearing.
What is the status of this Motion? REMOTE APPEARANCE REQUIRED
Previous tentative below Petition Date: 05/10/2019
Ch. 13, confirmed on 01/02/2020 Service: Proper. No opposition filed.
Property: 15117 Oro Grand St. Sylmar, CA 91342 Property Value: $536,000
Amount Owed: $409,330.08 Equity Cushion: 24% Equity: $126,669.92
Post-Petition Delinquency: $8,228.63 (3 payments of $3,572.23 + $1,031.00 in attorney’s fees less suspense account or partially paid balance of
$3,519.06)
Movant alleges that postpetition mortgage payments due on the note secured by a deed of trust on the Property have not been made to Movant.
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)
9:30 AM
CONT...
Mercedes R. Morales
Chapter 13
stay).
There appears to be sufficient equity to protect Movant's claim & a small delinquency. This hearing was continued from July 22, 2020, have the parties reached an APO?
Zoom.gov apperance required.
Party Information
Debtor(s):
Mercedes R. Morales Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-11427
Lecia Kay Westerman
Chapter 13
#7.00 Motion for relief from Stay HSBC BANK USA
fr. 5/20/20, 6/2/20, 8/19/20
Docket 54
Tentative Ruling:
Continued from 05/20/20, 06/02/20
This matter was continued from 06/02/20 so the parties could discuss a 9- month APO. Nothing has been filed since the last hearing. What is the status of this Motion?
TELEPHONIC APPEARANCE REQUIRED.
Tentative from 6/2/20 Petition Date: 6/7/2019
Chapter: 13 (plan confirmed on 10/18/2019) Service: Proper. Opposition filed.
Property: 13342 Barbara Ann Street, North Hollywood, CA 91605 Property Value: $660,295.00 (per debtor’s schedules)
Amount Owed: $653,389.87 Equity Cushion: 0.0% Equity: $6,906
Post-Petition Delinquency: $16,440.48 (4 late payments of $3,782.47 each)
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); 7 (waiver of the 4001(a)(3) stay); and 13 (if stay not granted, order APO).
Debtors opposes stating that (1) he has been greatly impacted financially by the COVID-19 pandemic and that he is requesting a forbearance agreement with the Movant; and (2) the Property is necessary for an effective reorganization because it is Debtor's primary residence.
TELEPHONIC APPEARANCE REQUIRED.
9:30 AM
CONT...
Debtor(s):
Lecia Kay Westerman
Party Information
Chapter 13
Lecia Kay Westerman Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-11916
Ada E Renderos Velasquez
Chapter 13
#8.00 Motion for relief from stay IMPAC MORTGAGE CORP.
fr. 7/15/20, 9/9/20
Docket 34
Tentative Ruling:
This hearing was continued from 7-15-2020 so that the parties could discuss whether an APO could be negotiated. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED
7-15-2020 TENTATIVE BELOW
Petition Date: 07/30/2019 Ch.13; confirmed on 11/12/2019
Service: Proper. Opposition filed.
Property: 19772 Buckeye Meadow Lane, Los Angeles, CA 91326 Property Value: $807,500
Amount Owed: $ 677,922.46 Equity Cushion: 16%
Equity: $129,577.54.
Post-Petition Delinquency: $15,607.75 (3 payments of $4,525.76 + advances of
$1,215.00 + atty fees of $1,231.00 less suspense balance of $412.53)
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). Movant alleges that the last payment of $4,505.25 was received was on or about 2/25/2020.
Debtor opposes the Motion and argues that the Property is necessary for an effective reorganization because the Debtor and her family live in the Property. Debtor states that the mortgage company is willing to enter a forbearance agreement and enter an APO. What is the status of this Motion?
APPEARANCE REQUIRED
9:30 AM
CONT...
Debtor(s):
Ada E Renderos Velasquez
Party Information
Chapter 13
Ada E Renderos Velasquez Represented By Ali R Nader
Movant(s):
IMPAC Mortgage Corp. dba Represented By
Erin M McCartney
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-12260
Irene Elizabeth Franklin
Chapter 13
#9.00 Motion for relief from stay
NATIONSTAR HECM ACQUISITION TRUST 2018-1
fr. 8/19/20
Docket 29
Tentative Ruling:
Ch. 13 Petition Date: 09/09/19 Plan confirmed: 12/09/19
Service: Proper. No opposition filed.
Property: 22656 Miranda Street, Woodland Hills, CA 91367
Property Value: $668,400 (per residential appraisal) $500,000 (per debtor's schedules)
Amount Owed: $459,422.18 (including $1,836.95, $453.79 MIP, $190 costs,
$20 advances)
Equity Cushion: 8.12% Equity: $40,577.82
Post-Petition Delinquency: $3,123 (1 payment of $2,092.00 + $1,031.00 attorneys’ fees)
Movant alleges that interest in the property is not adequately protected and that post-petition mortgage payments due on the note secured by a deed of trust have not been made.
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 argues there will be prejudice if Movant is granted relief and seeks to enter an APO for the delinquent amount. There appears to be sufficient equity to protect Movant's claim and a small delinquency. Have the parties
9:30 AM
CONT...
Irene Elizabeth Franklin
Chapter 13
discussed whether this delinquency can be cured via APO?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Irene Elizabeth Franklin Represented By
Hasmik Jasmine Papian
Movant(s):
Nationstar HECM Acquisition Trust Represented By
Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-10545
Mario Rene Tejada
Chapter 13
#10.00 Motion for relief from stay AMERICREDIT FINANCIAL SERVICES
Docket 137
*** VACATED *** REASON: Resolved by APO Tentative Ruling:
Resolved pursuant to an APO. No apperance is required.
Party Information
Debtor(s):
Mario Rene Tejada Represented By Ali R Nader
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Mandy D Youngblood Sheryl K Ith
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-10856
Marian Woods and Timothy Woods
Chapter 13
#11.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO.
Docket 50
Tentative Ruling:
Petition Date: 4/3/2017
Chapter 13 plan confirmed: 7/28/2017 Service: Proper. No opposition filed.
Property: 11538 Honeyglen Rd., Pacoima, CA 91331 Property Value: $330,000 (per debtor’s schedules) Amount Owed: $377,664.92
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $26,726.73 (6 payments of $1,298.07; 15 payments of $1,299.36; less suspense balance of $552.09)
Movant asserts that the last payments received in December 2019 totaled
$1,327.36
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.
Party Information
Debtor(s):
Marian Woods Represented By Aalok Sikand
10:00 AM
CONT...
Marian Woods and Timothy Woods
Chapter 13
Joint Debtor(s):
Timothy Woods Represented By Aalok Sikand
Movant(s):
U.S. Bank National Association, as Represented By
Kristin A Zilberstein Merdaud Jafarnia Jennifer C Wong Nancy L Lee
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11078
David Wolfe Amper
Chapter 13
#12.00 Motion for relief from stay US BANK TRUST, NA
Docket 52
Tentative Ruling:
Petition Date: 4/27/2018
Chapter 13 plan confirmed: 11/7/2018 Service: Proper. Opposition filed.
Property: 13328 Calcutta St., Sylmar CA 91342 Property Value: $480,000 (per debtor’s schedules) Amount Owed: $191,970
Equity Cushion: 52% Equity: $288,030
Post-Petition Delinquency: $3,207.80 (3 payments of $888.95; post-petition advances of $650; less suspense balance of $109.05)
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 that the last payment of $888.95 was received on or about July 15, 2020.
Debtor opposed the Motion and requested to enter into an APO to cure any deficiency. Given the large amount of equity securing this claim, is Movant amenable to negotiating an APO?
ZOOMGOV APPEARANCE REQUIRED
Party Information
Debtor(s):
David Wolfe Amper Represented By Steven A Alpert
10:00 AM
CONT...
Movant(s):
David Wolfe Amper
Chapter 13
US Bank Trust , NA Represented By Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:20-01066 DAVID K. GOTTLIEB, CHAPTER 7 TRUSTEE v. Montgomery et al
#13.00 Status Conference Re: Complaint to Avoid and Recover Fraudulent Transfers,
for Declaratory Relief, and for Constructive Trust
fr. 9/2/20
Docket 1
*** VACATED *** REASON: Cont'd to 11/18/20 at 11:00 a.m. per order #13. lf
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Albert Lee Represented By
M Teri Lim
Defendant(s):
Jodi Pais Montgomery Pro Se
David Berrent Pro Se
Plaintiff(s):
DAVID K. GOTTLIEB, CHAPTER Represented By
Jivko Tchakarov
Trustee(s):
David Keith Gottlieb (TR) Represented By Howard Camhi Peter A Davidson Byron Z Moldo
10:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#14.00 Motion for relief from stay
SECURED CONSTRUCTION LENDERS
Docket 184
*** VACATED *** REASON: Moved to 11:00 a.m. per Order #204. lf Tentative Ruling:
Moved to the 11:00am Calendar.
Party Information
Debtor(s):
PB-1, LLC Represented By
Jeffrey S Shinbrot
Movant(s):
Secured Construction Lenders Represented By
Sonia Plesset Edwards Gwen H Ribar
Arnold L Graff
10:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#15.00 Motion for relief from stay
SECURED CONSTRUCTION LENDERS
Docket 186
*** VACATED *** REASON: Moved to 11:00 a.m. per Order #203. lf Tentative Ruling:
Moved to the 11:00am Calendar.
Party Information
Debtor(s):
PB-1, LLC Represented By
Jeffrey S Shinbrot
Movant(s):
Secured Construction Lenders Represented By
Sonia Plesset Edwards Gwen H Ribar
Arnold L Graff
10:00 AM
1:19-11915
Juan Carlos Gastelum
Chapter 13
#16.00 Motion for relief from stay
DEUSCHE BANK NATIONAL TRUST CO
Docket 28
*** VACATED *** REASON: APO entered 9/16/2020 (doc. 34) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Juan Carlos Gastelum Represented By Steven A Alpert
Movant(s):
Deutsche Bank National Trust Represented By Kirsten Martinez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12155
Gary Alan Kurtz
Chapter 13
#17.00 Motion for relief from stay TOYOTA MOTOR CREDIT CORP.
Docket 103
Tentative Ruling:
Petition Date: 8/27/2019
Chapter 13 plan confirmed: 9/18/2020 Service: Proper. No opposition filed. Property: 2017 Lexis ES 300
Property Value: LEASE - not listed on Sch. B Amount Owed: $25,171
Post-Petition Delinquency: $25,171 (lease matured)
Movant contends it regained possession of the vehicle on or about July 7 2020.
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.
Party Information
Debtor(s):
Gary Alan Kurtz Represented By Stephen L Burton
Movant(s):
Toyota Motor Credit Corporation, as Represented By
Kirsten Martinez
10:00 AM
CONT...
Trustee(s):
Gary Alan Kurtz
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12228
Misael Orlando Martinez
Chapter 13
#18.00 Motion for relief from stay NEWREZ LLC
Docket 26
Tentative Ruling:
This case was dismissed on 9/29/2020, so the stay expired on that same day under 362(c)(2)(B). As Movant does not request extraordinary or in rem relief due to allegations of bad faith, this Motion is DENIED as moot.
MOVANT TO LODGE ORDER IN ACCORDANCE WITH THIS RULING WITHIN 7 DAYS. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Misael Orlando Martinez Represented By Donald E Iwuchuku
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By
Dane W Exnowski Caren J Castle
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12735
Reynaldo Rene Vizcarra
Chapter 7
#19.00 Motion for relief from stay JPMORGAN CHASE BANK, N.A.
Docket 65
Tentative Ruling:
Petition Date: 10/30/2019 Chapter: 7
Service: Proper. No opposition filed. Property: 2017 Subaru Legacy sedan
Property Value: $20,150. (per Movant's evidence NADA Guide) Amount Owed: $19,592.52
Delinquency: $2,856.83 (8 post-petition payments of $350.53)
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.
Party Information
Debtor(s):
Reynaldo Rene Vizcarra Represented By David R Hagen
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Wendy A Locke
Trustee(s):
Diane C Weil (TR) Pro Se
10:00 AM
1:19-13095
Ben Byuzand Militonyan
Chapter 13
#20.00 Motion for relief from stay TOYOTA MOTOR CREDIT CORP.
Docket 57
Tentative Ruling:
This case was dismissed on 9/16/2020, so the stay expired on that same day under 362(c)(2)(B). As Movant does not request extraordinary or in rem relief due to allegations of bad faith, this Motion is DENIED as moot.
MOVANT TO LODGE ORDER IN ACCORDANCE WITH THIS RULING WITHIN 7 DAYS. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Ben Byuzand Militonyan Represented By
Kristine Theodesia Takvoryan
Movant(s):
Toyota Motor Credit Corporation, as Represented By
Kirsten Martinez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10040
Giovanni Garofoli
Chapter 13
#21.00 Motion for relief from stay
U.S. BANK NATIONAL ASSOCIATION
Docket 40
*** VACATED *** REASON: Resolved per APO (doc. 46) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Giovanni Garofoli Represented By
D Justin Harelik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10575
Laura Alfaro
Chapter 13
#22.00 Motion for relief from stay CAPITAL ONE AUTO FINANCE
Docket 52
*** VACATED *** REASON: Withdrawn (doc. 55) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Laura Alfaro Represented By
Matthew D. Resnik
Movant(s):
Capital One Auto Finance, a division Represented By
Marjorie M Johnson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:30 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#23.00 Chapter 7 Trustee's Motion for Approval of Compromise by and Among Chapter 7 Trustee and Chicago Title Insurance Company
Docket 2476
Tentative Ruling:
Service proper. No objections filed. Having reviewed the Motion to Approve Compromise, the Court finds that compromise is reasonable and in the best interest of creditors. Motion GRANTED.
APPLICANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 10/7/2020.
Party Information
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 Jorge A Gaitan Robyn B Sokol
10:30 AM
1:18-11760
Paul T Formanek
Chapter 7
#24.00 Trustee's Final Report and Applications for Compensation and Deadline to Object
Trustee:
Diane C. Weil
Attorney for Trustee:
Brutzkus Gubner c/o David Seror
Docket 83
Tentative Ruling:
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 10/1/2020.
Party Information
Debtor(s):
Paul T Formanek Represented By Taylor F Williams
Trustee(s):
Diane C Weil (TR) Represented By David Seror Reagan E Boyce
Jessica L Bagdanov
10:30 AM
1:18-12855
PB-1, LLC
Chapter 11
#25.00 Debtor's Motion for Order Approving Amendments to Confirmed Chapter 11 Plan [11 U.S.C. Sec.
1127(b)]
Docket 195
*** VACATED *** REASON: Moved to 11:00 a.m. per Order #205. lf Tentative Ruling:
Moved to the 11:00am Calendar.
Party Information
Debtor(s):
PB-1, LLC Represented By
Jeffrey S Shinbrot
10:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#26.00 Motion of Debtor for Fourth Order Extending the Debtors Exclusive Period to File its Plan of Reorganization and to Obtain Acceptance of its Plan
Docket 170
Tentative Ruling:
Hawkeye is seeking a fourth extension for Plan Exclusivity Period pursuant to Section 1121. Due to the evidentiary hearing set for October 13, 2020, and with Covid-19, the DIP feels it needs more time to solicit a plan. No objection has been filed. GRANT the DIP's motion.
Zoom.gov Appearance Required.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#26.01 Motion and Debtors Motion in Limine No. 1; Memorandum of Points and Authorities in Support Thereof
fr. (Moved up from) 10/13/20
Docket 178
Tentative Ruling:
On August 21, 2019, Hawkeye Entertainment LLC, ("DIP") filed a bankruptcy petition under Chapter 11 of the Bankruptcy Code to protect its’ lease in real property located at 618 South Spring Street, Los Angeles, CA (commonly known as the Pacific Stock Exchange Building). The main purpose of filing was to protect the DIP’s most valuable asset, the lease. Shortly before filling this petition Smart Capital ("Landlord") alleged that the DIP was in default of the lease for non-monetary reasons. On October 10, 2019, the DIP filed a motion to assume lease or executory contract. This matter is set for trial on October 13, 2020.
On June 6, 2019, Michael Chang ("Chang") executed a standard estoppel certificate ("Certificate") stating that the DIP was not in default under the terms of the lease. Docket No. 178, Exhibit A. On September 22, 2020, the DIP filed a motion in limine seeking to estop the landlord from offering any evidence of any allege default that occurred prior to June 6, 2019. The landlord filed an opposition on September 29, 2020.
Federal Rule of Evidence 302 provides, "[i]n a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision." California law applies here. Equitable estoppel, originally known as estoppel in pais, and also called estoppel by conduct, is simply stated. "Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it." Cal. Evid. Code,
§ 623; see also Wood v. Blaney (1895) 107 Cal. 291 [40 P. 428]. The doctrine is defensive in nature only, and "operates to prevent one [party] from taking an unfair
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
advantage of another." Peskin v. Phinney (Cal. App. 1960) 182 Cal.App.2d 632, 636 [6 Cal.Rptr. 389]. Whether there is an estoppel is chiefly a question of fact. General Motors Accept. Corp. v. Gandy (1927) 200 Cal. 284, 295 [253 P. 137].
A party asserting the doctrine of equitable estoppel has the burden of proving
that the party to be estopped was apprised of the facts, (b) that he intended, or acted in such a manner that the party asserting estoppel could reasonably believe that he intended, that his conduct would be acted on, (c) that the party asserting the estoppel was ignorant of the true state of the facts, and (d) that he relied on the conduct to his injury. Ware Supply Co. v. Sacramento Sav. & Loan Asso., (Cal. App. 1966) 246 Cal. App. 2d 398, 54 Cal. Rptr. 674.
Here the DIP argues that the Landlord should be estopped from admitting any evidence or testifying as to any breach of the lease that is alleged to have occurred before June 6, 2019. The DIP believes that all the elements of equitable estoppel have been meet. The Landlord argues that the elements of equitable estoppel have not been satisfied, in particular the intent element has not been met, and that the DIP is using this defensive doctrine offensively. The Court takes a closer look at these issues and others.
Estoppel is applicable "where the conduct of one side has induced the other to take such a position that it would be injured if the first should be permitted to repudiate its act." Brookview Condominium Owners’ Assn. v. Heltzer Enterprises – Brookview (Cal. App. 1990) 218 Cal. App. 3d 502, 512, 267 Cal. Rptr. 76.) An estoppel in pais may be found even though the person estopped did not actually intend to defraud or mislead. Lovett v. Point Loma Development Corp. (Cal. App. 1968), 266 Cal. App. 2d 70, 71 Cal. Rptr. 709. Negligence that is careless and culpable conduct is, as a matter of law, equivalent to an intent to deceive and will satisfy the element of fraud necessary to an estoppel. Varela v. Wells Fargo Bank (Cal. App. 1971), 15 Cal. App. 3d 741, 93 Cal. Rptr. 428.
The Landlord argues that the intent element has not been satisfied because the Certificate, and statements made in the Certificate, were between the Landlord and the bank. Since the statements were not made to the DIP directly, the Landlord lacked the intent required under the equitable estoppel doctrine. The Court disagrees. Paragraph 14 of the Certificate states: "Lessor is aware that buyers, lenders, and others will rely upon the statements made in this Estoppel Certificate." This suggests that the DIP is likely to rely on the statements represented by the Landlord in the Certificate. It is reasonable to infer that the DIP could be a party in privy that could rely on the
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
statements made by the Landlord. Because these representations were not limited to the bank, the Court believes that intent element has been satisfied.
The other argument heavily advanced by the Landlord is that the DIP is using a doctrine designed for defensive purposes. Outside of the general statements made by California courts about equitable estoppel being a defensive in nature the Landlord does not provide any authority as to what constitutes defensive versus offensive. Additionally, would the traditional notions of defensive vs. offensive even be applicable in this context where the DIP is seeking to assume a lease and a party objects to the assumption motion? Rather than trying to determine an equitable estoppel claim would be defensive or offensive here, the Court rests its ruling on equitable estoppel on another ground – reliance.
There can be no estoppel unless the party asserting it relied to his detriment on the conduct of the party sought to be estopped, and the existence of an estoppel is a question of fact for the trial court. Isaacson v. Oakland (Cal. App.1968), 263 Cal. App. 2d 414, 69 Cal. Rptr. 379. The doctrine of estoppel may not be invoked absent proof that the party claiming estoppel was injured by reliance on the other party’s conduct. McDonagh v. Gourneau (Cal. App. 1969), 2 Cal. App. 3d 1033, 83 Cal. Rptr. 63. The element of reliance is a critical to equitable estoppel because it goes to the very rationale for why this doctrine exists. A person may not lull another into a false sense of security by conduct causing the latter to forbear to do something which he otherwise would have done and then take advantage of the inaction caused by his own conduct. Lovett v. Point Loma Development Corp. (Cal. App. 1968), 266 Cal. App. 2d 70, 71 Cal. Rptr. 709.
The Certificate states that parties may rely on the Landlord’s representations; however, the DIP has failed to allege any facts that show the DIP actually relied on these representations. According to the DIP’s own recitation of facts in the motion to assume and supplemental memorandum submitted to the Court, once notified by the Landlord of the defaults the DIP began complying with the demands of the Landlord. See Docket No. 177 (Page 6) & Docket No. 21 (Pages 14-15). Had the DIP actually relied on the representations by the landlord, there would have been no efforts made by the DIP to make repairs or to resolve demands by the Landlord. Additionally, the timing of that this issue regarding the Certificate being raised before the Court also suggests that the DIP did not rely on the Landlord’s representations. Had the DIP truly relied on these representations, then the DIP would have almost certainly mentioned
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
this Certificate in some context prior to the filing of this motion. The DIP has failed to offer proof of how it relied on these statements and even if the DIP had proof that showed reliance it would appear to be inconsistent with the DIP’s own recitation of facts in other pleadings. Accordingly, the Court finds equitable estoppel is not applicable here.
In a brief passing the DIP also appears to argue the issue of waiver. Waiver and estoppel are two distinct and different doctrines, and rest on different legal principles. Morgan v. International Aviation Underwriters, Inc. (Cal. App. 1967), 250 Cal. App. 2d 176, 58 Cal. Rptr. 164. The elements essential to the application of the doctrines of waiver and equitable estoppel are sufficiently indicated by their definitions: Waiver is an express or implied voluntary relinquishment of a known right and depends on the intent of one party only, whereas equitable estoppel is based on the fundamental principle that one’s conduct has induced another to take such a position that he will be injured if the first party is permitted to repudiate his acts. Elliano v. Assurance Co. of America (Cal. App. 1970), 3 Cal. App. 3d 446, 83 Cal. Rptr. 509 "The pivotal issue in a claim of waiver is the intention of the party who allegedly relinquished the known legal right." DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (Cal. App. 1994) 30 Cal. App. 4th 54, 59 [35 Cal. Rptr. 2d 515]. The burden . . . is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and "doubtful cases will be decided against a waiver." Waller v. Truck Ins. Exchange, Inc. (Cal. App. 1995) 44 Cal. Rptr. 2d 370, 900 P.2d 619. The waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right. " Id. at 387. Thus, "California courts will find waiver when a party intentionally relinquishes a right or when that party's acts are so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished." Id. at 388.
Waiver requires a party to knowingly relinquishing a right. This is perhaps best illustrated by an example of a simplified breach of contract case. In this hypothetical a party to a contract misses several payments and missed payments constitutes a breach. In the event of a breach, the contract the non-breaching party could pursue relief (damages, foreclosure, ect). The non-breaching party is aware of the breach but rather than enforcing its rights under the contract the non-breaching party enters into negotiations with the breaching party trying to restructure the
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
agreement. Waiver is likely applicable in that hypothetical because the non-breaching party clearly knew its’ rights under the contract and chose not to pursue them in a timely manner. That is not exactly the case here.
The Landlord submitted this Certificate to the bank stating that the DIP was not in default of the lease agreement and then raises the issue of default later to the DIP. The problem here is these statements were directed to a third party and not towards the DIP. Had the Landlord made these representations directly to the DIP the argument for waiver would be greater but because the facts for finding waiver are not a clear cut the DIP needs substantially more proof in order to convince the Court that waiver is applicable here. The Court does not believe that the DIP met its’ burden of proof in showing why waiver is applicable in this instance. One document to a third party is not enough for the Court to find the Landlord waived its claims of default. Waiver requires that the party knew they were forgoing a right. The certificate certainly can be raised in examining Chang and does bear weight on his credibility on the default claim. Rather than precluding him from testifying, it goes to the weight of his testimony.
The DIP’s motion is DENIED. Zoom.gov Appearance Required.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
11:00 AM
1:10-10209
R.J. Financial, Inc.
Chapter 7
Adv#: 1:18-01029 Seror v. Abalkhad et al
#27.00 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, 9/12/18, 7/17/19; 9/11/19, 12/11/19, 4/1/20, 6/24/20
Docket 47
Tentative Ruling:
Continued to December 9, 2020 at 11 am. Discovery deadline extended to 11/30. Plaintiff to submit order.
Appearance waived on 10/7/20
Party Information
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
11:00 AM
CONT...
R.J. Financial, Inc.
Chapter 7
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By Daniel J McCarthy
ROMANO'S JEWELERS Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
OPEN BANK Represented By
John H Choi Tony K Kim
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
MBNM FINANCIAL, INC Represented By Daniel J McCarthy
Plaintiff(s):
David Seror Represented By
Rosendo Gonzalez
Trustee(s):
David Seror (TR) Represented By Robyn B Sokol
11:00 AM
CONT...
R.J. Financial, Inc.
Michael W Davis Travis M Daniels Rosendo Gonzalez
Chapter 7
11:00 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
#28.00 Post-Confirmation Status Conference
fr. 1/12/17, 8/16/17, 11/1/17, 10/25/17, 12/13/17, 3/21/18, 1/30/19, 2/6/19, 11/6/19, 2/5/20, 5/6/20; 7/22/20
Docket 16
Tentative Ruling:
APPEARANCE REQUIRED.
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
11:00 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
Adv#: 1:19-01086 Walters et al v. K&A Global Management Company, a California corpor
#29.00 Status Conference for Declaratory Relief fr. 9/18/19, 11/6/19, 2/5/20, 5/6/20; 7/22/20
Docket 1
*** VACATED *** REASON: Voluntary Dismissal filed - Doc. #17. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
Defendant(s):
K&A Global Management Pro Se
Plaintiff(s):
James Walters Represented By Amman A Khan
Kellogg & Andelson Accountancy, Represented By
Amman A Khan
11:00 AM
1:17-12980
Mainstream Advertising, a California Corporation
Chapter 7
Adv#: 1:20-01028 Goldman v. Berger
#30.00 Status Conference re: Complaint for Turnover Avoidance and Recover of Postpetition Transfers; and Breach of Fiduciary Duty.
fr. 5/6/20, 6/10/20
Docket 1
*** VACATED *** REASON: Dismissed 7/2/2020 - hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Mainstream Advertising, a Represented By Kathleen P March
Defendant(s):
Michael Berger Pro Se
Plaintiff(s):
Amy L. Goldman Represented By John P. Reitman
Trustee(s):
Amy L Goldman (TR) Represented By David B Golubchik Peter J Mastan
Anthony A Friedman John P. Reitman Jack A. Reitman
11:00 AM
1:18-10313
Harold H Choe
Chapter 7
Adv#: 1:20-01008 Weil v. Kim et al
#31.00 Status Conference Re: Complaint for Avoidance and Recovery of Fraudulent Transfer.
fr. 4/1/20
Docket 1
*** VACATED *** REASON: Cont'd to 1/13/21 per order #12. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Harold H Choe Represented By Young K Chang
Defendant(s):
John Kim Pro Se
Lucy Kim Pro Se
Plaintiff(s):
Diane C Weil Represented By
Anthony A Friedman
Trustee(s):
Diane C Weil (TR) Represented By Anthony A Friedman
11:00 AM
1:18-10313
Harold H Choe
Chapter 7
Adv#: 1:20-01009 Weil v. Kim et al
#32.00 Status Conference Re: Complaint
for Avoidance and Recovery of Fraudulent Transfer
fr. 4/1/20
Docket 1
*** VACATED *** REASON: Cont'd to 1/13/21 per order #16. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Harold H Choe Represented By Young K Chang
Defendant(s):
Brian Kim Pro Se
Emily Kim Pro Se
Brian's Shave Ice Two, Inc. Pro Se
Plaintiff(s):
Diane C. Weil Represented By Anthony A Friedman
Trustee(s):
Diane C Weil (TR) Represented By Anthony A Friedman
11:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#32.01 Motion for relief from stay
SECURED CONSTRUCTION LENDERS
Docket 184
Tentative Ruling:
Petition Date: 11/27/18
Plan Confirmed: 07/29/2019
Service: Proper. Opposition filed on 9/23/20.
Property: 11258 Laurie Drive, Studio City California 91604
Property Value: The Property is still under construction and the value differs greatly between the parties. According to Debtor’s Ex. A (Dkt. No. 199) the value is approximately $4,020,000.00 as is and would be worth
$6,000,000.00 once the project is complete. The Movant asserts that value of the property is valued as is $2,952,500.00. Movant’s Ex. 4 (Dkt. No. 184).
Amount Owed: $ 1,844,595.27 (per Movant’s declaration) (Movant’s first lien);
$868,105.24 Movant’s second lien, and $5,153.20 Tax Lien. Equity Cushion: 0% to 24.07%
Equity: $0 - $967,867.51
Post-Petition Delinquency: $36,570.90. (According to the confirmed plan, the Debtor was to make plan payments of $5,136.67 to the Movant. The Debtor has made two lump sum payments of $12,000.00 and $13,069.14 respectively. Other than those payments the Debtor has not made payments according to the plan).
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 (termination, modification or annulment of co-debtor stay); 7 (waiver of the 4001(a)(3) stay). Movant alleges that cause exists for lifting the stay because there is no adequate protection. The Debtor has not been making post-petition payments and there is no equity in the property.
“The confirmation of a reorganization plan terminates the automatic stay against acts that would result in the exercise of control over property of
11:00 AM
CONT...
PB-1, LLC
Chapter 11
the estate, because confirmation usually terminates, subject to provisions of plan, the existence of the estate.” Gehri v. United States (In re Gehri) 1996 Bankr. LEXIS 1254, * 6 (9th Cir. BAP); see also Hillis Motors, Inc. v. Hawaii Auto. Dealers' Ass'n, 997 F.2d 581, 587 (9th Cir. 1993). Since confirmation of a Chapter 11 plan also has the effect of discharging the debtor from all dischargeable prepetition debts pursuant to section 1141(d)(1)(A), the automatic stay dissolves upon confirmation. Bigelow v. C.I.R., 65 F.3d 127, 129 (9th Cir. 1995). Upon confirmation the automatic stay is replaced by the permanent injunction of Bankruptcy Code Section 524. In re Watson, 192 Bankr. 739, 746 (9th Cir. BAP 1996). Section 524, however, only enjoins acts to recover debts that were discharged.
Section 1142 requires a Debtor to carry out a confirmed plan, and authorizes the bankruptcy court to issue orders requiring the performance of any act that is necessary for the confirmation of the confirmed plan.
Specifically, it provides that:
Notwithstanding any otherwise applicable nonbankruptcy law, rule, or regulation relating to financial condition, the debtor and any entity organized or to be organized for the purpose of carrying out the plan shall carry out the plan and shall comply with any orders of the court.
The court may direct the debtor and any other necessary party to execute or deliver or to join in the execution or delivery of any instrument required to effect a transfer of property dealt with by a confirmed plan, and to perform any other act, including the satisfaction of any lien, that is necessary for the consummation of the plan.
"Subsection (b) implicitly contemplates a creditor, shareholder, or other party affected by the plan moving for an order which triggers the court's authority to direct a recalcitrant debtor or other party to perform acts necessary to consummate the plan." In re Harlow Properties Inc., 56 B.R. 794, 798 (9th Cir. B.A.P. 1985).
Here the Chapter 11 plan was confirmed on July 24, 2019. On that date the automatic stay ended and was replaced by the discharge injunction. Because there is no automatic stay in place this motion is procedurally improper in order to obtain relief being sought. The Movant’s debt was not discharge but rather it would be treated through the plan. If the Movant wants to obtain relief and enforce compliance, then the Movant needs to bring a motion pursuant to Section 1142.
The Movant’s reply acknowledges that no stay is in effect and appears to
11:00 AM
CONT...
PB-1, LLC
Chapter 11
modify the relief that it originally requested in their motion. The Movant now appears to seek relief in the form of compelling the Debtor to oblige to the terms of the plan. Since this is not the type of relief sought in the original motion, it would be improper to address this without properly being before the Court. The Movant needs to seek relief through the appropriate section of the Code and the Court will not entertain granting relief that was sought under an improper section of the Code. While Construction Lenders appears to have more than adequate grounds to complain about debtor’s performance here, the relief sought should be obtained properly. Accordingly, the Court denies the motion for relief of stay.
Disposition:
Deny Motion for Relief of Stay. This ruling has not preclusionary effect on any motion brought by the Movant pursuant to Section 1142.
Zoom.gov Apperance Required
Party Information
Debtor(s):
PB-1, LLC Represented By
Jeffrey S Shinbrot
Movant(s):
Secured Construction Lenders Represented By
Sonia Plesset Edwards Gwen H Ribar
Arnold L Graff
11:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#32.02 Motion for relief from stay
SECURED CONSTRUCTION LENDERS
Docket 186
Tentative Ruling:
Petition Date: 11/27/18
Plan Confirmed: 07/29/2019
Service: Proper. Opposition filed on 9/23/20.
Property: 11258 Laurie Drive, Studio City California 91604
Property Value: The Property is still under construction and the value differs greatly between the parties. According to Debtor’s Ex. A (Dkt. No. 199) the value is approximately $4,020,000.00 as is and would be worth
$6,000,000.00 once the project is complete. The Movant asserts that value of the property is valued as is $2,952,500.00. Movant’s Ex. 4 (Dkt. No. 186).
Amount Owed: $868,105.24 Movant’s second lien, $ 1,844,595.27 (per Movant’s declaration) (Movant’s first lien), and $5,153.20 Tax Lien.
Equity Cushion: 0% to 24.07% Equity: $0 - $967,867.51
Post-Petition Delinquency: $26,508.34. (According to the confirmed plan, the Debtor was to make plan payments of $2,786.60 to the Movant. The Debtor has made one payment of $6,930.86. Other than that payment the Debtor has not made any other payments according to the plan).
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 (termination, modification or annulment of co-debtor stay); 7 (waiver of the 4001(a)(3) stay). Movant alleges that cause exists for lifting the stay because there is no adequate protection. The Debtor has not been making post-petition payments and there is no equity in the property.
“The confirmation of a reorganization plan terminates the automatic stay against acts that would result in the exercise of control over property of the estate, because confirmation usually terminates, subject to provisions of
11:00 AM
CONT...
PB-1, LLC
Chapter 11
plan, the existence of the estate.” Gehri v. United States (In re Gehri) 1996 Bankr. LEXIS 1254, * 6 (9th Cir. BAP); see also Hillis Motors, Inc. v. Hawaii Auto. Dealers' Ass'n, 997 F.2d 581, 587 (9th Cir. 1993). Since confirmation of a Chapter 11 plan also has the effect of discharging the debtor from all dischargeable prepetition debts pursuant to section 1141(d)(1)(A), the automatic stay dissolves upon confirmation. Bigelow v. C.I.R., 65 F.3d 127, 129 (9th Cir. 1995). Upon confirmation the automatic stay is replaced by the permanent injunction of Bankruptcy Code Section 524. In re Watson, 192 Bankr. 739, 746 (9th Cir. BAP 1996). Section 524, however, only enjoins acts to recover debts that were discharged.
Section 1142 requires a Debtor to carry out a confirmed plan, and authorizes the bankruptcy court to issue orders requiring the performance of any act that is necessary for the confirmation of the confirmed plan.
Specifically, it provides that:
Notwithstanding any otherwise applicable nonbankruptcy law, rule, or regulation relating to financial condition, the debtor and any entity organized or to be organized for the purpose of carrying out the plan shall carry out the plan and shall comply with any orders of the court.
The court may direct the debtor and any other necessary party to execute or deliver or to join in the execution or delivery of any instrument required to effect a transfer of property dealt with by a confirmed plan, and to perform any other act, including the satisfaction of any lien, that is necessary for the consummation of the plan.
"Subsection (b) implicitly contemplates a creditor, shareholder, or other party affected by the plan moving for an order which triggers the court's authority to direct a recalcitrant debtor or other party to perform acts necessary to consummate the plan." In re Harlow Properties Inc., 56 B.R. 794, 798 (9th Cir. B.A.P. 1985).
Here the Chapter 11 plan was confirmed on July 24, 2019. On that date the automatic stay ended and was replaced by the discharge injunction. Because there is no automatic stay in place this motion is procedurally improper in order to obtain relief being sought. The Movant’s debt was not discharge but rather it would be treated through the plan. If the Movant wants to obtain relief and enforce compliance, then the Movant needs to bring a motion pursuant to Section 1142.
The Movant’s reply acknowledges that no stay is in effect and appears to modify the relief that it originally requested in their motion. The Movant now
11:00 AM
CONT...
PB-1, LLC
Chapter 11
appears to seek relief in the form of compelling the Debtor to oblige to the terms of the plan. Since this is not the type of relief sought in the original motion, it would be improper to address this without properly being before the Court. The Movant needs to seek relief through the appropriate section of the Code and the Court will not entertain granting relief that was sought under an improper section of the Code. While Construction Lenders appears to have more than adequate grounds to complain about debtor’s performance here, the relief sought should be obtained properly. Accordingly, the Court denies the motion for relief of stay.
Disposition:
Deny Motion for Relief of Stay. This ruling has not preclusionary effect on any motion brought by the Movant pursuant to Section 1142.
Zoom.gov Apperance Required.
Party Information
Debtor(s):
PB-1, LLC Represented By
Jeffrey S Shinbrot
Movant(s):
Secured Construction Lenders Represented By
Sonia Plesset Edwards Gwen H Ribar
Arnold L Graff
11:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#32.03 Debtor's Motion for Order Approving Amendments to Confirmed Chapter 11 Plan [11 U.S.C. Sec.
1127(b)]
Docket 195
Tentative Ruling:
On November 27, 2018, PB-1, LLC ("Debtor") filed a chapter 11 petition. Thereafter, on February 20, 2019, the Debtor filed its First Amended Plan, followed shortly thereafter by a Motion for Order Approving Post-Petition Financing on Priming Basis. Docket No. 33 & 40. On July 29, 2019, the Court entered Orders confirming the Debtor’s First Amended Plan and approving the Debtor’s motion for Post-Petition Financing. Docket No. 111 & 110.
There are two properties central to this bankruptcy: 1) 1128 Laurie Drive, Studio City, California 91604 ("Laurie Drive"); 2) 99 Copper Cliffs, Sedona, Arizona ("Cooper Cliffs"). The Laurie Drive property is still under construction. Construction Lender ("Creditor") is the holder of three liens against these properties: 1) 250,000.00 against Cooper Cliffs, 2) First Deed of Trust Against Laurie Drive $1,844,595.27, 3) Second Deed of Trust Against Laurie Drive $868,105.24.
On September 16, 2020, the Debtor filed a motion to amend its’ confirmed Ch. 11 plan. Docket No. 195. The Office of the United States Trustee and the Creditor have both filed oppositions to the Debtor’s Motion. Docket No. 198 & 200.
Section 1127 is the exclusive means by which to modify a plan. Thus, regardless whether a proposed modification is based on a "mutual mistake," such modification must comply with Rule 1127(b). This conclusion not only comports with a plain-text reading of Section 1127(b) (and the case law interpreting this provision), it also furthers the important policy of finality underlying the Bankruptcy Code. In re Daewoo Motor Am., Inc., 488 B.R. 418, 426-427 (C.D. Cal. 2011); see also Liquidity Solutions, Inc. v. Winn-Dixie Stores, Inc. (In re Winn-Dixie Stores, Inc.), 377 B.R. 322, 335 (M.D. Fla. 2007)
A plan may not be modified under § 1127(b) if substantial consummation has occurred. The Bankruptcy Code defines substantial consummation as: (a) transfer of all or substantially all of the property proposed by the plan to be transferred; (b) assumption by the debtor or by the successor to the debtor under the plan of the
11:00 AM
CONT...
PB-1, LLC
Chapter 11
business or of the management of all or substantially all of the property dealt with by the plan; and (c) commencement of distribution under the plan. 11 U.S.C. §1101(2).
The Debtor seeks to make two modifications to the plan. First the Debtor wants revest the Laurie Drive property back into the estate. There are unresolved claims against the Laurie Drive property and the Debtor believes that a sale via 11.
U.S.C. § 364(f) will result in the most efficient process to monetize the asset for the benefit of creditors. Second, the Debtor seeks to increase the security interest of the Creditor in lieu of making plan payments through the earlier of March 31, 2021, or close of escrow of Laurie Drive. The Debtor proposes that increasing the Creditor’s lien on the Cooper Cliffs property from $250,000.00 to $1,000,000.00. The Debtor believes that there is plenty of equity to satisfy the Creditor’s lien on the Cooper Cliffs Property. The US Trustee and the Creditor object to modify the plan because they argue that the plan has already been substantially consummated.
In clarifying the distinction between "transfers" under § 1101(2)(A) and "distributions" under § 1101(2)(C), the Ninth Circuit Court of Appeals found that transfers under subsection (2)(A) are those that are "necessary to accomplish reorganization and to shape the new financial structure of the debtor[]" and "often take place on or shortly after the effective date of a confirmed plan[.]" Rev Op Grp. v. ML Manager LLC (In re Mortgs. Ltd.), 771 F.3d 623, 628 (9th Cir. 2014). In contrast, distributions under subsection (2)(C) "are payments to creditors in satisfaction of the debtor's debts. ‘Substantial consummation’ requires completion or near completion of [transfers], but only commencement of [distributions]." Id. (citing Antiquities of Nev., Inc. v. Bala Cynwyd Corp. (In re Antiquities of Nev., Inc.), 173 B.R. 926, 929-30 (9th Cir. BAP 1994)). See also In re Stevenson, 138 B.R. 964, 967 (Bankr. D. Idaho 1992), aff'd 148 B.R. 592 (D. Idaho 1992) (noting that § 1101(2)(C) "requires only that such a distribution be commenced."). The proponent of any plan modification has the burden of proof for establishing an absence of substantial consummation. Stevenson, 138 B.R. at 967.
Here, with respect to subsection (2)(A), on the effective date of the Debtor’s First Amended Plan, which was August 28, 2019, all estate property revested in the Debtor. According to the plan, the effective date is the thirtieth day after the entry of the order confirming the Plan. Since the Debtor transferred all or substantial assets on the effective date, a substantial transfer according to Section 1127(b)(2)(A) has
11:00 AM
CONT...
PB-1, LLC
Chapter 11
occurred. Subsection (2)(B) was satisfied when the principals of the Debtor assumed management of all the property dealt with by the Plan. Subsection (2)(C) was satisfied because the principals commenced plan payments to Construction Lenders and the administrative claims of professionals were paid. The only outstanding issue is whether there has been a commencement of distributions under the terms of the plan.
The Debtor argues that commencement of distribution has not occurred here because the Debtor has only made a handful of payments to the Creditor and cites to out of circuit cases for the proposition that one-time payments does not equate to a plan being substantially consummated. The Court is not persuaded by these cases. The Court finds the case Hewlett-Packard Fin. Servs. Co. v. Alternative Graohics, Inc. (In re Alternative Graphics, Inc.) 2015 Bankr. LEXIS 3696 (9th Cir. BAP 2015) more persuasive. In that case, the reorganized Debtor assumed the business, paid tax claims, paid several administrative claims and made regular payments to the secured creditor. While the Debtor here has not made regular payments to the secured creditor, the Debtor has transferred all, or substantially all its property, additionally, the Plan states that on the effective date payment of Class 4 – the secured claim of Los Angeles County Treasurer and Tax Collector was to have occurred and administrative expenses have been paid. The Court finds that the Debtor has not met its burden of proof in showing that a plan may be modified and considering the terms of the plan and the case law it appears the plan is not eligible for a modification any way.
The plan confirmation was heard in conjunction with the DIP financing motion. Every aspect of plan confirmation was highly contested. To shift everything long after the fact when much of the plan has been consummate would be unfair and ignore the many other issues that were addressed in the confirmation hearing. The Debtor had its chance to exercise extraordinary rights. It is time to follow through rather than modify its promises.
The Debtor’s motion to modify the Ch. 11 Plan is denied.
Zoom.gov Appearance Required.
Party Information
Debtor(s):
PB-1, LLC Represented By
11:00 AM
CONT...
PB-1, LLC
Jeffrey S Shinbrot
Chapter 11
11:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#33.00 Post-Confirmation Status Conference and Scheduling and Case Management Conference
fr. 2/6/19, 3/13/19; 4/3/19; 6/17/19; 6/24/19, 7/18/19 12/11/19, 3/11/20, 8/26/20, 8/27/20
Docket 1
Tentative Ruling:
ZOOMGOV APPEARANCE REQUIRED.
Party Information
Debtor(s):
PB-1, LLC Represented By
Jeffrey S Shinbrot
11:00 AM
1:19-10726
Victoria Kristin Burak
Chapter 7
Adv#: 1:19-01111 Coha et al v. Burak
#34.00 Adversary Status Conference fr. 6/2/20
Docket 12
Tentative Ruling:
APPEARANCE REQUIRED
Debtor(s):
Party Information
Victoria Kristin Burak Represented By
R Grace Rodriguez
Defendant(s):
Victoria Kristin Burak Represented By
R Grace Rodriguez
Plaintiff(s):
Loretta M Coha Represented By James W Bates
Equity Trust Company, Custodian Represented By
James W Bates
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:19-10726
Victoria Kristin Burak
Chapter 7
Adv#: 1:19-01111 Coha et al v. Burak
#35.00 Motion To Substitute Dan Bryan Floyd, Successor Trustee Of Trust Of Loretta M. Coha In Place Of Plaintiff/Creditor Loretta M. Coha, Deceased, Pursuant To FRBP, Rule 7025
Docket 19
Tentative Ruling:
NO opposition. GRANTED. No appearance required. (Appearance still required for status conference)
Party Information
Debtor(s):
Victoria Kristin Burak Represented By
R Grace Rodriguez
Defendant(s):
Victoria Kristin Burak Represented By
R Grace Rodriguez
Plaintiff(s):
Dan Bryan Floyd Represented By James W Bates
Loretta M Coha Represented By James W Bates
Equity Trust Company, Custodian Represented By
James W Bates
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:19-10727
Mary Kristin Burak
Chapter 13
Adv#: 1:19-01082 Coha et al v. Burak
#36.00 Status Conference Re: Complaint Objectiong to Discharge of Debtor based Upon False Pretenses, False Representations, Actual Fraud.
fr. 9/18/19; 12/11/19; 5/20/20, 6/2/20
Docket 1
Tentative Ruling:
APPEARANCE REQUIRED
Debtor(s):
Party Information
Mary Kristin Burak Represented By
R Grace Rodriguez
Defendant(s):
Mary Kristin Burak Pro Se
Plaintiff(s):
Loretta M Coha Represented By James W Bates
Equity Title Company Represented By James W Bates
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10727
Mary Kristin Burak
Chapter 13
Adv#: 1:19-01082 Coha et al v. Burak
#37.00 Motion To Substitute Dan Bryan Floyd, Successor Trustee Of Trust Of Loretta M. Coha In Place Of Plaintiff/Creditor Loretta M. Coha, Deceased, Pursuant To FRBP, Rule 7025
Docket 25
Tentative Ruling:
NO opposition. GRANTED. No appearance required. (Appearance still required for status conference)
Party Information
Debtor(s):
Mary Kristin Burak Represented By
R Grace Rodriguez
Defendant(s):
Mary Kristin Burak Represented By
R Grace Rodriguez
Plaintiff(s):
Loretta M Coha Represented By James W Bates
Equity Title Company Represented By James W Bates
Dan Bryan Floyd Represented By James W Bates
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
Adv#: 1:19-01123 Saucedo v. San Vicente et al
#38.00 Status Conference re: Complaint to determine dischargeability to debt pursuant to 11 U.S.C. sections 523 (a)(4) and (a)(6), and objection to discharge pursuant to sections 723 (a)(2)(A) and 727(a)(3)
fr. 12/18/19; 5/13/20
Docket 1
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Maria Estela San Vicente Represented By Michael R Totaro
Defendant(s):
Maria Estela San Vicente Pro Se
Sergio San Vicente Pro Se
Plaintiff(s):
Maria Saucedo Represented By Jesse J Thaler
11:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
Adv#: 1:19-01130 Saucedo v. San Vicente et al
#39.00 Status Conference re: Complaint to determine dischargeability of debt
fr. 1/8/20
Docket 1
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Maria Estela San Vicente Represented By Michael R Totaro
Defendant(s):
Maria Estela San Vicente Pro Se
Sergio San Vicente Pro Se
Plaintiff(s):
Rosa Saucedo Represented By Jesse J Thaler
11:00 AM
1:19-12134
Mehrnaz Fotoohi
Chapter 7
Adv#: 1:19-01143 Irani v. Fotoohi
#40.00 Status Conference re: Complaint for Non-dischargeability of debt pursuant to 11 U.S.C. section 523(a)(6) &
11 U.S.C. section 727(a)(2)(A),(3),(4)&(5)
fr. 2/5/20, 7/15/20
Docket 1
*** VACATED *** REASON: Dismissed 9-22-20 - hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Mehrnaz Fotoohi Represented By Fari B Nejadpour
Defendant(s):
Mehrnaz Fotoohi Pro Se
Plaintiff(s):
Karin Irani Represented By
Sanaz S Bereliani
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
1:10-21216
Anthony Henderson
Chapter 7
Adv#: 1:20-01071 Structured Asset Sales, LLC v. Henderson et al
#41.00 Motion to Dismiss Adversary Complaint
Docket 3
*** VACATED *** REASON: Cont'd to 11/4/20 at 1:00 p.m. per Order #15. lf
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Anthony Henderson Represented By James A Dumas Jr
Defendant(s):
Anthony Henderson Represented By Bret D Lewis
SoundExchange, Inc,; Pro Se
Plaintiff(s):
Structured Asset Sales, LLC Represented By Stella A Havkin
Trustee(s):
David Seror (TR) Represented By David Seror (TR) Nina Z Javan Richard Burstein Steven T Gubner
1:00 PM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#42.00 Status Conference re: First Amended Complaint
fr. 8/29/18, 10/3/18; 10/10/2018, 2/6/19, 11/13/19, 6/10/20; 9/9/20
Docket 3
*** VACATED *** REASON: Cont'd to 12/2/20 at 1:00 p.m. per Order #138. lf
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
Defendant(s):
Sonia Kellzi Pro Se
Alexander Usmanov Represented By Eamon Jafari
Natalia Usmanova Represented By Eamon Jafari
Mkrtchyan Investments, LP Pro Se
Greg Mkrchyan Pro Se
Neelam J. Savla Pro Se
Puja J. Savla Pro Se
Anjana S. Sura Pro Se
Arthur Nagapetyan Pro Se
Robert Askar Pro Se
1:00 PM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
Eva Askar Pro Se
AMERICAN FUNDERS CORP. Pro Se
Does 1-10, Inclusive 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
1:00 PM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#43.00 Motion to Compel Appearance and Production of Documents re Alliance Funding Group, Inc's Custodian of Records Compel Appearance of Person Most Knowledgeable at Deposition
fr. 4/1/20, 5/6/20; 9/9/20
Docket 111
*** VACATED *** REASON: Cont'd to 12/2/20 at 1:00 p.m. per Order #138. lf
Tentative Ruling:
- NONE LISTED -
Party Information
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
1:00 PM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
Natalia Usmanova Represented By Eamon Jafari
Alexander Usmanov Represented By 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 Jorge A Gaitan
1:00 PM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#44.00 Motion to Compel Appearance and Production of Documents re Firooz Payan at Depostion
fr. 4/1/20, 5/6/20; 09/09/20
Docket 112
*** VACATED *** REASON: Cont'd to 12/2/20 at 1:00 p.m. per Order #138. lf
Tentative Ruling:
- NONE LISTED -
Party Information
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
1:00 PM
CONT...
ALLIANCE FUNDING GROUP INC.
Eamon Jafari
Chapter 7
Alexander Usmanov Represented By 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 Jorge A Gaitan
1:00 PM
1:20-10069
Shawn Sharon Melamed
Chapter 7
Adv#: 1:20-01068 GOLDMAN v. Dardashti et al
#45.00 Motion to Dismiss AdversaryPursuant to Fed R Bankr Pro 7012(b)(6), or in the Alternative for Summary Judgment
Docket 8
Tentative Ruling:
ZoomGov appearance required.
Sometime in 2004, Debtors Shawn Sharon Melamed and Jenous Tootian (collectively, "Debtors," individually as "Debtor Melamed" and "Debtor Tootian") purchased real property at 4360 Estrondo Pl., Encino CA 91436 (the "Property"). Complaint for Avoidance and Recovery of Fraudulent Transfers (the Complaint"), ¶
Trustee alleges that in the years following the purchase, Debtors incurred substantial debts and by 2012, the Property was encumbered by five liens. Id., 2:20-23. In October 2009, Steward Financial, holder of the first position deed of trust, gave notice of a trustee’s sale. Trustee contends that Debtors formed a scheme to protect their equity in the Property from their creditors. Id., 2:21-3:1. Trustee alleges that it was then that Shawn Dardashti ("Defendant") made the first offer to purchase the Property for $1.5 million. This offer was allegedly
communicated to Steward Financial by Debtor Melamed’s agent with the request that the foreclosure be postponed. Id., 3:18-19. While the sale did not happen, the foreclosure was apparently canceled or postponed. Id.
Trustee alleges that it became routine that, whenever the Property was threatened by foreclosure, Defendant would make a low offer on the Property to Debtor Melamed in order to postpone foreclosure. Id., 3:10-4:3. Trustee alleges that Defendant again made an offer on the Property in February 2012, for $1.1 million, which was accepted by Debtors (the "February 2012 Offer"). Id., 3:22-24. The February 2012 Offer named the listing agent as "Wealth Road Realty," which Trustee alleges is a d.b.a. of Rebeka Shadpour ("Shadpour"). Id., 4:1-3. The February 2012 Offer did not result in a completed sale. Id.
1:00 PM
CONT...
Shawn Sharon Melamed
Chapter 7
On or about March 2012, Farahnaz Khoshnood ("Khoshnood), whom Trustee alleges is Debtor Shawn Sharon Melamed’s aunt, purchased a deed of trust in favor of Trilfish LLC that secured the third-position lien. Id. at 2:24-16. Trustee alleges that Khoshnood was merely a "straw owner," in an arrangement where she was holding title for the benefit of Debtors. Id., 3:3-8.
After Khoshnood foreclosed on the Property in August 2012, the fourth and fifth position liens in favor of Mazakoda, Inc. and Elyas Babadjouni were "wiped out." Id., 2:27-28. Thereafter, in November 2012, Trustee alleges that Khoshnood and Debtor signed a listing agreement with Wealth Road Realty and Shadpour to list the Property at $1.15 million. Id., 4:4-6. Defendant offered $990,000 to Debtor Melamed, which Trustee alleged was rejected by the lender as a short sale because the offer was too low. Id., 4:7-16.
On or about May 9, 2014, Select Portfolio Servicing, Inc. ("SPS") sent a letter to Debtor Melamed approving a short sale of the Property at $1.15 million, on certain conditions. Id., 4:28-5:7:2. Trustee alleges that, at the time Defendant and Debtor Melamed entered into these agreements, the Property was worth substantially more than the $1.15 million sale price proposed to SPS, and that Defendant and Debtor Melamed stood to sequester substantial amounts of equity in the Property from Debtors’ creditors by short-selling the Property to Defendant. Id., 7:7-12. Trustee alleges that Defendant, who Trustee contends had assisted Debtors in the past by making offers to buy the Property when foreclosures loomed, would buy the Property in a short sale for much less than it was worth. In exchange, he would pay kickbacks to Debtors and their listing agent, give an option to Debtors (through a proxy) to repurchase the Property once the storm had passed, would sign a sham lease with the proxy to conceal Debtors’ continued presence at the Property, and would generally go along with the scheme, while receiving rental income from Debtors. Id., 4:20-27.
To effectuate the short sale, the following transactions, among others, were completed:
On or about May 30, 2014, Farahnaz Khoshnood and her husband, Roben Yomtobian, executed a grant deed
1:00 PM
CONT...
Shawn Sharon Melamed
transferring the Property to Debtor Melamed. The grant deed provided that the transfer was "A BONAFIDE GIFT GRANTOR HAS RECEIVED NO CONSIDERATION R&T 11911[.]" Id., Ex. 8.
On or about June 6, 2014, Debtor Tootian executed an interspousal transfer grant deed conveying all of her interest in the Property to Debtor Melamed. This deed likewise provided that the property was "Bonafide gift, received nothing in return R+T 11911[.]" Id., Ex. 9.
Chapter 7
Also on or about June 6, 2014, Debtor Melamed executed a grant deed conveying his interest in the Property to Defendant Shawn Dardashti. The deed provided that the documentary transfer tax was "NOT OF PUBLIC RECORD" but "computed on full value of property conveyed[.]" Id., Ex.10.
Trustee alleges that after the "sale" to Defendant was complete, a number of other transfers were made out of escrow as sham "Settlement Charges" to entities controlled by Debtors’ and Khoshnood’s families, and to entities controlled by Shadpour and her family. Id., 9:20-10:26. Trustee alleges that these sham "Settlement Charges" were a way for the parties to obtain money from the short sale over and above the monetary limits provided for in SPS’s short sale contract. Id.
On or about June 11, 2014, Trustee alleges that Defendant entered into an Option Agreement with Edwin Safaeipour, on behalf of Estrondo Place, LLC, whereby Defendant, in exchange for $50,000, granted Estrondo Place, LLC an option to repurchase the Property for $1.4 million. Id., Ex. 6. Trustee alleges that Edwin Safaeipour is the brother of Rozita Safaeipour, a.k.a. Rozita Melamed, who is married to Debtor Shawn Sharon Melamed’s brother, Edmond Melamed. In other words, Mr. Safaeipour is Shawn Sharon Melamed’s brother’s brother-in-law ("Safaeipour"). Id., 7:22-25. Trustee alleges that Safaeipour was a full-time student and did not have the financial ability to pay either the $50,000 for the option nor the contemplated $1.4 million for the Property. Id., 7:25-28. Trustee contends that this arrangement was a back-door method for Debtors to reacquire the Property should
1:00 PM
CONT...
Shawn Sharon Melamed
Chapter 7
they so desire, using their family member, Edwin Safaeipour, as a straw buyer. Id., 7:28-8:2.
Also on June 11, 2014, Defendant and Estrondo Place, LLC (by Safaeipour) entered into a Lease Agreement whereby Estrondo Place, LLC would lease the Property for $10,825 per month. Id., Ex. 7. Trustee maintains that this was a sham, as Safaeipour was a full-time student, and never had any intention or ability to pay
$10,825 per month to occupy the Property, and never did pay any rent to Defendant. Id., at 8:6-9. Rather, Trustee contends that the Lease Agreement was to conceal Debtors’ continued occupancy of the Property and payment of rent to Defendant. Id., 9-12. Trustee maintains that at all relevant times and to this day, Debtor Melamed pays rent directly Defendant. Id.
On May 25, 2018, creditor Mazakoda, Inc. filed a lawsuit against Debtors and Defendant, as well as Khoshnood and her spouse Roben Yomtobian, and Defendant’s wife Sara Dardashti, for fraudulent transfer under Cal. Civ. Code
§§ 3439.04 and 3439.05 and conspiracy, among other claims. Defendant demurred to the complaint, but Trustee contends that his demurrer was overruled in its entirety on October 18, 2018. The state court case remains pending, although stayed, in the Los Angeles County Superior Court, entitled Mazakoda, Inc. v. Shawn Sharon Melamed et al., Case No. BC707954. 41. As discovery progressed, Trustee alleges that the above facts and others came to light, and Defendant’s and Debtors’ depositions were set for the week of January 13, 2020.
On Friday, January 10, 2020, before their depositions could be taken, Debtors initiated this bankruptcy proceeding and filed a notice of bankruptcy stay as to all parties. On July 8, 2020, Trustee filed this adversary complaint seeking to set aside as fraudulent transfer the June 6, 2014 transfer of the Property from Debtor Melamed to Defendant under 11 U.S.C. § 544 and the Uniform Fraudulent Transfer Act, adopted by California as Civil Code § 3439 et seq (the "UFTA").
Rule 12(b)(6) or Rule 56
Defendant titled his motion as a "Motion to Dismiss Complaint or, in the Alternative, For Summary Judgment," and attached the State Court Complaints.
1:00 PM
CONT...
Shawn Sharon Melamed
Chapter 7
Plaintiffs opposed the motion, arguing that it is premature and requested a continuance under Federal Rule of Civil Procedure 56(d). Defendant urges us to grant its motion for summary judgment, urging us to consider the State Court Complaints to demonstrate that "Debtor either held bare legal title or otherwise lacked the requisite dominion over the Property." Motion to Dismiss, 14:24-28.
The Court will not exercise its discretion to review this motion as one under Rule 56. The depositions of the named state court defendants had not yet taken place when the bankruptcy was filed and there is no evidence i.e., declarations from either of Debtors, Defendant, Khoshnood, Safaeipour, or Shadpour filed in this case to support Defendant’s arguments. The Court cannot determine on this sparse record whether there is a genuine issue of material fact regarding what interest Debtor held in the Property at various points in time and thus summary judgment is premature at this stage.
Motion to Dismiss under Rule 12(b)
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).
"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
1:00 PM
CONT...
Shawn Sharon Melamed
Chapter 7
(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).
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 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. 550 U.S at 570 (citations and internal quotation marks omitted).
In reviewing a motion to dismiss a complaint under Rule 12(b), the Court considers only the contents of the complaint, taking as true all the allegations of material fact. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997)(internal citations omitted). In ruling on a motion to dismiss, the Court generally "may not consider any material beyond the pleadings." Id., citing Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
11 U.S.C. § 544(a)(2) incorporates by reference Cal. Civ. Code §§ 3439.01 et seq. Section 544(b) of the Bankruptcy Code allows the trustee to step into the shoes of a creditor who could, as of the date of the bankruptcy petition, avoid the transfer under state law. See In re Acequia, Inc., 34 F.3d 800, 807 (9th Cir.1994)(trustee's § 544(b) power is dependent on whether a creditor existed at the time the transfers were made that still had a viable claim against the debtor at the time the debtor filed bankruptcy). In the Complaint, Trustee does not specify under which provision of
§ 544 she is proceeding.
Section 3439.04 of the UFTA states that:
(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred if the debtor made the transfer or
1:00 PM
CONT...
Shawn Sharon Melamed
incurred the obligation as follows:
With actual intent to hinder, delay, or defraud any creditor of debtor.
Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor either:
Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction.
Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.
Chapter 7
Cal. Civ. Code § 3439.04.
The statute of limitations on both is controlled by § 3439.09, which states that a cause of action with respect to a fraudulent transfer or obligation under this chapter is extinguished unless an action to avoid that transfer or obligation is brought:
Under paragraph (1) of subdivision (a) quoted above, within "four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant.
Under paragraph (2) of subdivision (a) quoted above, within four years after the transfer was made or the obligation was incurred.
Cal. Civ. Code § 3439.09. On May 25, 2018, creditor Mazakoda, Inc. filed a lawsuit against Debtors, among others, for fraudulent transfer under Cal. Civ. Code §§ 3439.04 and 3439.05 and conspiracy, among other claims, within the applicable statute of limitations period.
Defendant argues that after Khoshnood foreclosed on the Property in March 2012, Debtor had no interest in the Property. If the property transferred was not "an interest in property of the debtor," Defendant maintains that it cannot be avoided.
Grimmett v. Mccloskey (In re Wardle), 2006 Bankr. LEXIS 4817 (Bankr. 9th Cir. 2006). Confusingly, to support his argument that Debtor Melamed held bare legal title, Defendant focuses on an agreement to sell the Property to Defendant that was executed on March 18, 2013 but never consummated (the "RPA"). Defendant
1:00 PM
CONT...
Shawn Sharon Melamed
Chapter 7
maintains that execution of that RPA conferred equitable title in Defendant at that time and left only bare legal title in the name Khoshnood and Debtor. Thus, the only interest transferred to Debtor on June 16, 2014 was bare legal title to the Property. Defendant argues that because Debtor held bare legal title when he transferred the Property to Defendant, Trustee cannot maintain an action to avoid the transfer.
Krommenhoek v. AMark Precious Metals, Inc. (In re Bybee), 945 F.2d 309, 315 (9th Cir. 1991). Trustee counters that California law provides that an equitable conversion does not occur where the contract terms are never satisfied. See Ocean Avenue LLC v. County of Los Angeles, 227 Cal.App.4th 334, 352 (Cal.Ct.App.
2014). Here, because the RPA was never consummated and a different contract was executed in June 2014 as a step to transfer the Property to Defendant, no equitable conversion occurred in March 2013.
Defendant also argues that California law presumes a holder of record title, like Khoshnood, to be the owner of full beneficial title. Wolfe v. Jacobson (In re Jacobson), 676 F.3d 1193, 1201 (9th Cir. 2012) quoting Cal. Evid. Code § 662. Only clear and convincing evidence can overcome this presumption. Id. "The presumption can be overcome only by evidence of an agreement or understanding between the parties that the title reflected in the deed is not what the parties intended." In re Shapow, 599 B.R. 51 (Bankr. C.D. Cal. 2019)(internal citations omitted). Trustee’s factual allegations regarding the less-than-arm’s-length foreclosure by Debtor Melamed’s aunt; Debtors’ alleged payment of all expenses, taxes, and other upkeep on the Property; Debtor’s alleged contrivance of a sham lease and option to purchase under the name of Safaeipour; that all offers and documents from SPS being in Debtor Melamed’s name; and transmission of the same allegedly coordinated him as well, are presumably aimed at showing that there was an agreement or understanding between the parties whereby Debtor Melamed transferred or moved interest in the Property among family and friends, In other words, that Khoshnood holding title to the Property after the March 2013 foreclosure does not reflect the parties’ actual intent, which is alleged to have been to allow Debtors to maintain control of the Property while shielding any equity therein from Debtors’ creditors. Whether these alleged facts, if shown to be accurate, overcome the presumption under Cal. Evid. Code § 662 is outside the scope of a 12(b) motion.
Alternatively, Defendant argues that Debtor Melamed lacked the requisite
1:00 PM
CONT...
Shawn Sharon Melamed
Chapter 7
"dominion" over the Property in the brief instant he held title the Property after receiving it from Khoshnood and then instantaneously transferring it to Defendant. Defendant explains that courts "evaluate a transaction in its entirety to make sure that their conclusions are logical and equitable." In re Bullion Reserve of North America, 922 F.2d 544, 548-49 (9th Cir. 1991) ("Bullion").
California law governs the inquiry of whether Debtors held the beneficial interest in the Property, or rather bare legal title for the benefit of the Defendant. See In re Sale Guarantee Corp., 220 B.R. 660, 664 (B.A.P. 9th Cir. 1998); see also In re Dillard, 2007 WL 3237165 at *3 (Bankr. E.D. Cal. Oct. 30, 2007) ("Whether the debtor held an equitable or beneficial interest, or held bare legal title for the benefit of the defendant, is an issue governed by California law.")
Trustee argues that under Defendant’s proffered authority, a party has dominion over a property where they are able to put the property to their "own purposes." See In re Bullion Reserve of North America, 922 F.2d 544, 549 (9th Cir. 1991). It is Trustee’s position that the only people who put the Property to their own purposes were Debtors. Trustee’s factual allegation are that Debtors used the Property as their primary residence, that they paid all expenses for its upkeep, that they received it from Khoshnood for free when the time came for Defendant to buy it, and that Khoshnood exercised no dominion at all. Trustee maintains that Debtor Melamed, not Khoshnood, made all material decisions relating to the Property and received all material benefits therefrom, and that Khoshnood’s participation, if any, was incidental.
The Ninth Circuit in Bullion explained that the "dominion" tests "requires courts to step back and evaluate a transaction in its entirety to make sure that their conclusions are logical and equitable." Bullion, 922 F.2d at 549. "[T]he general approach … applies regardless of whether a court is attempting to determine whether a debtor controlled the transferred funds it transferred to a defendant [as is the case here] or a defendant gained control over the [property] transferred to it." Bullion, 922 F.2d at 549. The Ninth Circuit clarified that it would be "inequitable" to allow recovery against an entity merely because it had "technically … received the [property] …," if the entity had "never actually controlled the [property]." Id. Here, the factual record as to the circumstances of the 2014 transfer and the effect of
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CONT...
Shawn Sharon Melamed
Chapter 7
interrelatedness of the parties over "dominion" is not yet developed, in this Court or in the State Court. The factual allegations regarding Debtor Melamed’s "dominion," i.e., that he controlled how and to whom interests in the Property were transferred, and the timeframe in which these alleged facts are to have occurred are sufficiently defined in this Complaint to survive a 12(b) motion. Defendant presents nothing to the contrary.
Defendant’s citation of Ash v. Moldo (In re Thomas) to support his argument that payments of taxes and staying on the property do not rebut the presumption under Cal. Evid. § 662 gives the case too broad an application. In Ash v. Moldo (In re Thomas), 2006 Bankr. LEXIS 4855 at p. 11 (B.A.P. 9th Cir. July 25, 2006), the transferee, the debtor’s mother, argued to the bankruptcy court that, although debtor's name was on the grant deed and trust deed for a condominium, she was the actual owner of the property at issue. Id. at *4. The transferee in Ash sought to prove that she was the actual owner of the property by providing evidence that she sometimes paid the monthly mortgage payments and covered utilities and other living expenses for her son. Id. Nevertheless, the BAP in Ash determined that the debtor’s mother’s evidence that she "sometimes" paid the mortgage and utilities was not sufficient to overcome other evidence submitted by the trustee that it was the debtor’s property. Id., (‘[t]he evidence submitted by the trustee provided support for a finding that debtor, not Ash, was the owner of the property at the time he transferred it to her). Defendant broadly argues that, if the analysis in Ash was applied here, the result would be that whatever Debtor’s rights in the Property might have been before the transfers recorded on June 16, 2014, they were no greater than those of the debtor’s mother’s in Ash. This logical jump presumes too much about what evidence may exist to rebut this presumption, in that there not nearly the same development of the factual record, here at this stage of the litigation, as there was in Ash.
The procedural posture in Ash, unlike here, shows that the the bankruptcy court ruled after a full trial, then the BAP remanded to the bankruptcy court to resolve a Rule 59 motion, upon which the bankruptcy court held an evidentiary hearing to resolve the Rule 59 motion. Ash at *1. After a trial and an evidentiary hearing, the BAP reversed the bankruptcy court’s decision. Id. An appeal was taken from there to the Ninth Circuit, who vacated the BAP decision and remanded to the
1:00 PM
CONT...
Shawn Sharon Melamed
Chapter 7
BAP to consider additional evidence. It was on this fully developed factual record that the BAP decision cited by Defendant in Ash v. Moldo was rendered. Such reliance here is too premature.
While the Court is not inclined to dismiss the complaint for the reasons argued by Defendant, an amendment may be helpful so that Trustee may explain more accurately the alleged property interest Debtor had in the Property on in June 2014. A "beneficial interest" is a mere legal conclusion to which the Court may not give any credence. In re Gilead Sciences. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). A "beneficial interest" is an undefined term that does not elucidate what interest Trustee is alleging Debtor had in the Property, i.e., possessory interest, ownership interest, etc.
Party Information
Debtor(s):
Shawn Sharon Melamed Represented By Giovanni Orantes
Defendant(s):
DOES 1 - 20, Inclusive Pro Se
Shawn Dardashti Pro Se
Joint Debtor(s):
Jenous Tootian Represented By Giovanni Orantes
Plaintiff(s):
AMY L GOLDMAN Represented By Scott E Gizer
Trustee(s):
Amy L Goldman (TR) Represented By Scott E Gizer
1:00 PM
1:20-10069
Shawn Sharon Melamed
Chapter 7
Adv#: 1:20-01068 GOLDMAN v. Dardashti et al
#46.00 Status Conference Re:
Trustee's Complaint for Avoidance and Recovery of Fraudulent Transfers
fr. 9/24/20
Docket 1
Tentative Ruling:
Party Information
Debtor(s):
Shawn Sharon Melamed Represented By Giovanni Orantes
Defendant(s):
Shawn Dardashti Pro Se
DOES 1 - 20, Inclusive Pro Se
Joint Debtor(s):
Jenous Tootian Represented By Giovanni Orantes
Plaintiff(s):
AMY L GOLDMAN Represented By Scott E Gizer
Trustee(s):
Amy L Goldman (TR) Represented By Scott E Gizer
9:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1607709863 Meeting ID: 160 770 9863
9:00 AM
CONT... Chapter
Docket 0
Tentative Ruling:
- NONE LISTED -
9:30 AM
1:19-11422
Joe Kearney
Chapter 11
#1.00 Trial - by Zoom
Re: Motion to Disallow Claims of Patricia Leupold (claim # 8-1) fr. 10/22/19, 12/17/19, 3/4/20; 6/24/20
Docket 37
*** VACATED *** REASON: Trial moved to 11/5/20 and 11/6/20.
Tentative Ruling:
VACATED. No Appearance Required.
Party Information
Debtor(s):
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
Movant(s):
Joe Kearney Represented By
Robert M Aronson Robert M Aronson Robert M Aronson Robert M. Aronson Robert M. Aronson Robert M. Aronson
9:30 AM
1:19-12727
Tacarra Sheana Carthan
Chapter 7
Adv#: 1:19-01135 Barton et al v. Carthan
#2.00 Motion to compel Discovery/Production of Documents
fr. 9/30/20
Docket 15
Tentative Ruling:
This Mattered was continued from September 30, 2020. What progress has been made with the production of documents?
Appearance required.
Background:
On October 29, 2019, Tacarra Sheana Carthan (the "Defendant") filed a chapter 7 bankruptcy petition. The Defendant’s schedules were amended on November 12, 2019, and again on January 6, 2020. Docket No. 13 & 19. These amendments showed significant changes made to the Defendant’s income, expenses, and assets.
On November 14, 2019, Carmen Barton and Anthony Carthan (the "Plaintiffs") commenced an adversary proceeding against the Defendant for a determination of dischargability and objection to the Defendant’s discharge pursuant to sections 11 U.S.C. § 523(a)(5); §523(a)(6) and § 727(a)(3). Discovery is currently underway, and the Plaintiffs seek the following documents from the Defendant:
1). 6 months of Official certified bank statements from July 2019 through December 2019 for a JP Morgan Chase checking account;
9:30 AM
CONT...
Tacarra Sheana Carthan
6 months of Official certified bank statements from July 2019 through December 2019 for two Bank of America checking accounts;
6 months of Transaction History statements from July 2019 through December 2019 for CashApp;
6 months of Transaction History statements from July 2019 through December 2019 for Wix payment processing;
All 2019 1099 miscellaneous income tax forms;
All documents and communications with Gersh Agency regarding performance rider and pay;
All documents, contracts and communication regarding pay for performances with Chelsea Handler;
All documents, contracts and communication with NBC regarding compensation and residual payments for NBC "Bring the Funny";
9) All documents, contracts and communication with Just for Laughs Montreal Comedy Festival regarding compensation and residual for 2018 and 2019 performances;
Permit the Plaintiffs to inspect the Defendant’s 2010 Toyota
Chapter 7
9:30 AM
CONT...
Tacarra Sheana Carthan
Highlander odometer and general condition of the vehicle.
The Plaintiffs attempted to contact the Defendant’s counsel in order to obtain
Chapter 7
these discovery requests but have been unsuccessful. See Plaintiffs’ Exhibits 2-5. The Plaintiffs even subpoenaed the Defendant to produce these documents but again has not been successful. Docket No. 10; Plaintiffs’ Exhibit 1.
On February 27, 2020, the Plaintiffs filed a motion to compel the discovery and production of documents pursuant to Federal Rule of Civil Procedure 37 (a)(3). No opposition has been filed.
Standard:
The instant motion arises under Federal Rule of Civil Procedure 37(a), made applicable to bankruptcy proceedings through Federal Rule Bankruptcy Proceeding 7037(a), which authorizes a party to apply for an order to compel disclosure or discovery. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. Fed. R. Civ. P. 37(a)(2) (A); see also Soto v. City of Concord, 162 F.R.D. 603, 609 (N.D. Cal 1995). FRCP 26, made applicable to bankruptcy proceeding through FRBP 7026, provides that a party has a general duty to disclose, without awaiting a discovery request, names and contact information of individuals with discoverable information, a copy of all documents that control or may be used to support claims or defenses, computation of damages, and any applicable insurance agreement. Fed. R. Civ. P. 26(a); Fed. R. Bankr. P. 7026(a).
A party may obtain discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]" Fed. R. Civ. P. 26(b)(1). Factors to consider include "the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Id. Information need not be admissible in evidence to be discoverable. Id. However, a court "must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules" if "(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has
9:30 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1)." Fed. R. Civ. P. 26(b)(2)(C).
Analysis:
The Plaintiffs attached to their motion a declaration of noncooperation and exhibits supporting their position that they have in good faith tried to resolve the discovery disputes and have either briefly spoken with the Defendant’s counsel or have never received a reply to phone messages, emails, or to the subpoena. The Court is satisfied that this satisfies the formal requirements as articulated in FRBP 7037 and Local Bankruptcy Rule 7026-1(c).
Here the Plaintiffs are seeking to compel predominately financial documents relating to the Defendant’s prepetition and postpetition financial status. The Plaintiffs’ complaint alleges that the Defendant has falsified financial information and omitted various sources of income in her schedules. The complaint identifies several revenue streams that the Defendant has failed to adequately report in her schedules, and these allegations form the basis for relief under 11 U.S.C. § 727(a)(3). These financial documents will be necessary to prove whether the Defendant had other revenue streams that were not reported or under reported and the Plaintiffs assert that discovery may lead to admissible evidence. The Court is satisfied that the financial documents being sought are relevant to this adversary proceeding and there does not appear to be any defenses that could be raised as to why these documents are privileged.
The only concern the Court has is with regards to having the Plaintiffs’ check the odometer on the 2010 Toyota Highlander and to inspect its condition. At first glance this appears to be irrelevant information; however, the vehicle was only listed on the Defendant’s second amended schedules. While it is common for a debtor to file a barebones bankruptcy petition on an emergent basis and fill in the details later, the Defendant filed amended schedules and failed to list this vehicle until the second amended schedules were filed. Considering the relief sought under 11 U.S.C. § 727(a) (3), this car has some relevance but the concern the Court has is whether there is any relevant information left that can be gathered by having the Plaintiffs inspect the vehicle or whether it is overly burdensome on the Defendant. The issue here is
9:30 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
whether the Defendant made false statements with regards to her assets. The Plaintiffs can almost certainly use the Defendant’s schedules to show that she may have made false statements, but it is not clear what an inspection of the vehicle will produce that is relevant to the underlying issue. Even if the Plaintiffs can assert some level of relevancy to the underlying case, the burden of having the Defendant submit the vehicle for an inspection greatly outweighs any relevancy argument advanced by the Plaintiffs.
Disposition:
Grant the Plaintiffs’ motion to compel all requested financial documents.
Deny the Plaintiffs’ request to inspect the condition of the Defendant’s vehicle and to view the odometer.
Zoom.gov appearance required.
Party Information
Debtor(s):
Tacarra Sheana Carthan Represented By Daniel King
Defendant(s):
Tacarra Sheana Carthan Represented By Daniel King
Plaintiff(s):
Carmen Barton Pro Se
Anthony Carthan Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
9:30 AM
1:19-12727
Tacarra Sheana Carthan
Chapter 7
Adv#: 1:19-01135 Barton et al v. Carthan
#3.00 Status Conference re: Complaint for determination
of dischargeability and objection to debtors discharge fr. 1/15/20, 5/6/20, 9/30/20
Docket 1
Tentative Ruling:
Appearance Required
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
9:30 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
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.
Zoom.gov apperance required.
Debtor(s):
Party Information
Tacarra Sheana Carthan Pro Se
Defendant(s):
Tacarra Sheana Carthan Pro Se
Plaintiff(s):
Carmen Barton Pro Se
Anthony Carthan Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
9:30 AM
1:19-11422
Joe Kearney
Chapter 11
#1.00 Trial - by Zoom
Re: Motion to Disallow Claims of Patricia Leupold (claim # 8-1) fr. 10/22/19, 12/17/19, 3/4/20; 6/24/20
Docket 37
*** VACATED *** REASON: Trial moved to 11/5/20 and 11/6/20.
Matter Notes:
- NONE LISTED -
Tentative Ruling:
On 3/4/20, Partial Summary Judgment was granted in Favor of Plaintiff's Eighth Cause of Action ("Disgorgement Claim"). There are 8 remaining causes of action. The 6/24/20 hearing is a Status Conference regarding the remaining Claims Objection. The parties were to discuss mediation in the interim. Nothing has been filed since 3/4/20 concerning the status of the remaining claims.
TELEPHONIC APPERANCE REQUIRED
Party Information
Debtor(s):
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
Movant(s):
Joe Kearney Represented By
Robert M Aronson Robert M Aronson Robert M Aronson Robert M. Aronson Robert M. Aronson Robert M. Aronson
9:30 AM
CONT...
Joe Kearney
Chapter 11
9:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1606148303 Meeting ID: 160 614 8303
Docket 0
9:00 AM
CONT... Chapter
Tentative Ruling:
- NONE LISTED -
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19; 6/25/20; 8/31/20
Docket 21
Tentative Ruling:
Proposed claim bar date:
Objections to claims deadline:
Avoidance actions deadline:
Proposed disclosure statement filing deadline:
Proposed disclosure statement hearing:
DEBTOR TO LODGE SCHEDULING ORDER WITHIN 7 DAYS OF THE INITIAL STATUS CONFERENCE
Party Information
9:30 AM
CONT...
Debtor(s):
Hawkeye Entertainment, LLC
Chapter 11
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#2.00 Motion and Debtors Motion in Limine No. 1; Memorandum of Points and Authorities in Support Thereof
Docket 178
*** VACATED *** REASON: Moved to 10/7/20 at 10:30 a.m. per Order #199. lf
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
10:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#3.00 By Zoom
Case Management Conference
fr. 3/11/20; 5/13/20, 7/17/20, 7/23/20
Docket 0
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
9:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1614653175
9:00 AM
CONT... Chapter
Docket 0
Tentative Ruling:
- NONE LISTED -
10:00 AM
1:16-10064
Jacobo Reyes
Chapter 13
#1.00 Motion for relief from stay
PARKWOOD SYLMAR HOMEOWNERS ASSO
Docket 86
*** VACATED *** REASON: Resolved per APO - hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Jacobo Reyes Represented By
Ghada Helena Philips
Movant(s):
Parkwood Sylmar Homeowners Represented By Debra L Sheppard
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:17-12226
Stephen Haskell Powers
Chapter 13
#2.00 Motion for relief from stay CITIBANK N.A.
Docket 57
Tentative Ruling:
Petition Date: 8/22/2017
Chapter 13 plan confirmed: 1/10/2018 Service: Proper. No opposition filed.
Property: 2421 Topanga Skyline Dr., Topanga, CA 90290 Property Value: $1,200,000 (per debtor’s schedules) Amount Owed: $407,886.22 (2nd DoT)
Equity Cushion: 51% Equity: $607,134.44
Post-confirmation Delinquency: $80,406.08 (27 payments ranging from between $2,985.63 to $3,031.64; post-petition advances of $750; less suspense balance of $1,239.64)
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 the last payment it received was on or about 5-31-2018 in the amount of $3,031.64.
While it appears there is adequate equity to protect this claim, no payments having been made in more than two years is sufficient to demonstrate grounds for relief from stay.
Motion GRANTED.
NO APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING.
MOVANT TO LODGE ORDER WITHIN 7 DAYS.
Party Information
10:00 AM
CONT...
Debtor(s):
Stephen Haskell Powers
Chapter 13
Stephen Haskell Powers Represented By
Raj T Wadhwani
Movant(s):
Citibank, N.A., as Trustee Represented By Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10656
Rita Patricia Monteza
Chapter 13
#3.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST CO
Docket 55
Tentative Ruling:
Petition Date: 3/21/2019
Chapter 13 plan confirmed: 7/22/2019 Service: Proper. Opposition filed.
Property: 20328 Gresham St., Winnetka, CA 91306 Property Value: $611,676 (per debtor’s schedules) Amount Owed: $493,095
Equity Cushion: 19.4% Equity: $118,581
Post-Petition Delinquency: $9,916.08 (4 payments of $2,474.13; post-petition advances of $900; less suspense balance of $880.44)
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 was on or about May 27, 2020, in the amount of $2,360.
Debtor opposes the Motion, arguing that she has made more payments than have been accounted for in the Motion. In the event that there is a delinquency remaining, Debtor requests to cure by APO. Is Movant amenable to Debtor's request to negotiate an APO?
APPEARANCE REQUIRED
Debtor(s):
Party Information
Rita Patricia Monteza Represented By Kevin T Simon
10:00 AM
CONT...
Movant(s):
Rita Patricia Monteza
Chapter 13
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11838
James Alan Ritter and Debra Michelle Ritter
Chapter 13
#4.00 Motion for relief from stay METROPOLITAN LIFE INSURANCE CO.
Docket 44
Tentative Ruling:
Petition Date: 7/21/2019
Chapter 13 plan confirmed: 10/18/2019 Service: Proper. Opposition filed.
Property: 4303 Bellaire Ave. Studio City, CA 91604 Property Value: $1,150,000 (per debtor’s schedules) Amount Owed: $940,607
Equity Cushion: 18.3% Equity: $210,000.
Post-Petition Delinquency:
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 a three-month forbearance agreement expired on 7/1/2020. Movant asserts in the Motion that the last payment received was on or about 8/25/2020, in the amount of $1,300.
Debtor opposes the Motion, arguing that there is no delinquency, as he has been performing under a Trial Period Plan Loan modification. Opp., Ex. 1. Debtor states that, under the TPP loan modification, payments of $4,775.93 commenced on September 1, 2020, and that he has made two such payments. Debtor states that his counsel attempted to have Movant withdraw this motion but was unsuccessful.
Debtor requests that the Court deny this Motion and determine that he is the prevailing party, as he wishes to reserve his rights to file a motion for recovery of reasonable attorney's fees for having to respond to this Motion.
APPEARANCE REQUIRED
10:00 AM
CONT...
Debtor(s):
James Alan Ritter and Debra Michelle Ritter
Party Information
Chapter 13
James Alan Ritter Represented By
Glenn Ward Calsada
Joint Debtor(s):
Debra Michelle Ritter Represented By
Glenn Ward Calsada
Movant(s):
Metropolitan Life Insurance Represented By
Erin M McCartney
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12079
Martin Pantoja
Chapter 13
#5.00 Motion for relief from stay
U.S. BANK TRUST NATIONAL ASSO.
Docket 90
Tentative Ruling:
Petition Date: 8/20/2019
Chapter 13 plan confirmed: 2/13/2020 Service: Proper. Opposition filed.
Property: 1731 East Alcala Dr. Santa Maria, CA 93454 Property Value: $515,333 (per debtor’s schedules)
Amount Owed: $25,092.88 (2nd DoT, contemporaneously recorded w/ 1st DoT)
Equity Cushion: 13.3% Equity: $68,378.64
Post-Petition Delinquency: $494.90 (four payments of $91.49, less suspense balance of $54.04)
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 was on or about 11/29/2019, in the amount of $100.
Debtor opposes the Motion, arguing that he has made more payments than have been accounted for in the Motion, and that there is no delinquency remaining.
APPEARANCE REQUIRED
Debtor(s):
Party Information
Martin Pantoja Represented By Matthew D. Resnik
10:00 AM
CONT...
Movant(s):
Martin Pantoja
Roksana D. Moradi-Brovia
Chapter 13
U.S. Bank Trust National Represented By Nancy L Lee
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10798
Jaclyn Rivera
Chapter 13
#6.00 Motion for relief from stay TD Auto Finance LLC
Stip for adequate prtection filed 9/25/20
Docket 33
*** VACATED *** REASON: Resolved per APO - hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Jaclyn Rivera Represented By Kevin T Simon
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11116
Patrick Noel Roskowick and Kristin Nicole Roskowick
Chapter 7
#7.00 Motion for relief from stay ACAR LEASING LTD
Docket 16
Tentative Ruling:
Petition Date: 6/25/2020 Chapter: 7
Service: Proper. No opposition filed. Property: 2017 GMC Sierra
Property Value: $0 (LEASE)
Amount Owed: $26,962.64 (amount of lease purchase option) Equity Cushion: n/a
Equity: n/a
Post-Petition Delinquency: $1,311.84 (2 payments of $655.92)
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
Party Information
Debtor(s):
Patrick Noel Roskowick Represented By
Michael H Raichelson
Joint Debtor(s):
Kristin Nicole Roskowick Represented By
Michael H Raichelson
10:00 AM
CONT...
Movant(s):
Patrick Noel Roskowick and Kristin Nicole Roskowick
Chapter 7
ACAR Leasing Ltd. d/b/a GM Represented By
Mandy D Youngblood Sheryl K Ith
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:20-11116
Patrick Noel Roskowick and Kristin Nicole Roskowick
Chapter 7
#8.00 Motion for relief from stay VW CREDIT LEASING, Ltd
Docket 20
Tentative Ruling:
Petition Date: 6/25/2020 Chapter: 7
Service: Proper. No opposition filed. Property: 2017 Audi E3
Property Value: $0 (LEASE)
Amount Owed: $34,030.80 (amount of lease purchase option) Equity Cushion: n/a
Equity: n/a
Post-Petition Delinquency: n/a
Debtors filed a Statement of Intention in this case indicating that they intended to surrender this vehicle. Movant states that they regained possession of the collateral prepetition, on May 18, 2020.
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
Party Information
Debtor(s):
Patrick Noel Roskowick Represented By
Michael H Raichelson
10:00 AM
CONT...
Patrick Noel Roskowick and Kristin Nicole Roskowick
Chapter 7
Joint Debtor(s):
Kristin Nicole Roskowick Represented By
Michael H Raichelson
Movant(s):
VW Credit Leasing, LTD. Represented By Kirsten Martinez
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:20-11196
Tadeh Ahani Avanessians
Chapter 7
#9.00 Motion for relief from stay VW CREDIT LEASING LTD.
Docket 13
Tentative Ruling:
Petition Date: July 8, 2020
Chapter: 7
Service: Proper. No opposition filed. Property: 2017 Audi A3
Property Value: not listed on debtor's schedules (LEASE) Amount Owed: $19,368 (lease purchase option)
Equity Cushion: 0.0% Equity: $0.00.
Delinquency: n/a
Movant requests 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) and 6 (waiver of 4001(a)(3) stay).
The lease matured on September 3, 2019 and Movant is alleged to have regained possession of the vehicle on or about August 21, 2019. Motion, p. 4, ¶ 4(a)(6); Decl. of Horsley ISO Motion, p.7, ¶ 5. It appears that all of the actions regarding this personal property were undertaken more than a year prior to the petition date. Aside from Movant's rights to pursue any unsecured claim it may have against Debtor, there does not appear to be anything in the facts alleged that would implicate the automatic stay as relates to this creditor.
MOTION DENIED
APPEARANCE REQUIRED—RULING MAY BE MODIFIED AT HEARING. MOVANT TO LODGE ORDER WITHIN 7 DAYS
Party Information
10:00 AM
CONT...
Debtor(s):
Tadeh Ahani Avanessians
Chapter 7
Tadeh Ahani Avanessians Represented By Sevan Gorginian
Movant(s):
VW Credit Leasing, Ltd., as serviced Represented By
Kirsten Martinez
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:20-11632
Gail S Ondaine
Chapter 7
#10.00 Motion for relief from stay
HOPE & CO REAL ESTATE LLC
Docket 12
Tentative Ruling:
Petition Date: 9/8/2020 Chapter: 7
Service: Proper. Opposition filed.
Movant: Hope & Co. Real Estate LLC (50%) and Salmoe Enterprises, LLC (50%)
Property Address: 6115 Glide Ave. Woodland Hills, CA 91367 Type of Property: residential
Occupancy: holdover after foreclosure Foreclosure Sale: 9/1/2020
UD case filed: n/a UD Judgment: n/a
Movant requests relief under 11 U.S.C. 362(d)(2), with the specific relief as requested in paragraphs 2 (proceed under non-bankruptcy law); 4 (annulment of stay): and 6 (waiver of 4001(a)(3) stay).
Debtor opposes the Motion, asserting that there is equity above the amount owed to Movant, $73,000. Debtor does not address the foreclosure sale.
The Los Angeles County Temporary Eviction Moratorium (“Moratorium”), effective March 4, 2020, through October 31, 2020, unless repealed or extended by the Los Angeles County (“County”) Board of Supervisors, places a Countywide ban on evictions for residential and commercial tenants, including mobile home space renters. Under the County’s Moratorium, tenants may not be evicted for COVID19 related nonpayment of rent, as well as no-fault reasons, nuisance, or unauthorized occupants or pets – if related to COVID-19.
10:00 AM
CONT...
Gail S Ondaine
Chapter 7
Movant does not address if the County's Moratorium would prevent its filing of an unlawful detainer complaint.
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Gail S Ondaine Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:20-11678
Alicia Quezada - Escobar
Chapter 13
#11.00 Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 11
Tentative Ruling:
On 9/16/2020, Debtor filed this chapter 13 case. Debtor had one previous bankruptcy case that was dismissed within the previous year. The First Filing, 15-10336-MT, was a chapter 13 that was filed on 2/3/2015 and dismissed on 6/26/2020 for expiration of plan, with a balance remaining on the Plan of
$10,500.
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 expiration of her plan because she fell behind on her payments when the Proof of Claim filed by Quicken Loans was approx. $10,565 more than she had anticipated and did not realize the increased amount until too late in the Plan term. Debtor also fell behind when her Debtor's son and tenant were unable to pay rent after their jobs were impacted by COVID-19. Debtor claims that there has been a substantial change in her financial affairs and she has proposed a 100% plan and will tender her post-petition mortgage payments timely. Debtor states that since the First Filing was dismissed, her son and tenant have resumed working normal hours and began paying rent again in July 2020. Debtor claims that the property is necessary for a successful reorganization because this is her primary residence, and source of income.
Service proper. No opposition filed.
MOTION GRANTED. RULING MAY BE MODIFIED AT HEARING. NO APPEARANCE REQUIRED.
DEBTOR TO LODGE ORDER WITHIN 7 DAYS.
Party Information
10:00 AM
CONT...
Debtor(s):
Alicia Quezada - Escobar
Chapter 13
Alicia Quezada - Escobar Represented By Donald E Iwuchuku
Movant(s):
Alicia Quezada - Escobar Represented By Donald E Iwuchuku Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:30 AM
1:10-19870
Melissa Mosich Miller
Chapter 11
#12.00 Second Interim Application Of Levene, Neale, Bender, Yoo & Brill L.L.P. For Approval Of Fees And Reimbursement Of Expenses
Period: 1/1/2015 to 8/31/2020, Fee: $400,924.50,
Expenses: $13,928.44.
Docket 745
Tentative Ruling:
Service proper. No objections filed. Having reviewed the 2nd Interim 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 10-14-2020.
Party Information
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L James Lindsey L Smith Jeffrey S Kwong Juliet Y Oh
10:30 AM
1:15-11292
Mark Handel
Chapter 11
#13.00 Post Confirmation Status Conference
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; 10/24/18; 4/3/19
7/17/19; 12/11/19; 4/8/20, 8/19/20
Docket 1
Tentative Ruling:
No Status Report filed as of 10/9/2020.
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Mark Handel Represented By
David L. Neale
John-Patrick M Fritz
10:30 AM
1:19-10070
Hans Javier Martin and Priscilla Romero Martin
Chapter 7
#14.00 Notice of Trustee's Fianl Report and Application for Compensation and Deadline to Object
Trustee
Nancy Zamora
Attorney for Trustee
Law Offices of Larry Simons
Accountant for Trustee LEA Accountancy, LLP
Docket 43
Tentative Ruling:
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.
TRUSTEE TO LODGE ORDER WITHIN 7 DAYS APPEARANCES WAIVED ON 10-14-2020.
Party Information
Debtor(s):
Hans Javier Martin Represented By Steven A Alpert
Joint Debtor(s):
Priscilla Romero Martin Represented By Steven A Alpert
Trustee(s):
Nancy J Zamora (TR) Represented By Larry D Simons Frank X Ruggier
10:30 AM
CONT...
Hans Javier Martin and Priscilla Romero Martin
Chapter 7
10:30 AM
1:19-12715
Ned Gilman
Chapter 7
#15.00 Trustee's Final Report and Application for Compensation and Deadline to Object
Trustee:
Amy L. Goldman
Docket 42
Tentative Ruling:
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.
TRUSTEE TO LODGE ORDER WITHIN 7 DAYS APPEARANCES WAIVED ON 10-14-2020.
Party Information
Debtor(s):
Ned Gilman Represented By
Stephen L Burton
Trustee(s):
Amy L Goldman (TR) Pro Se
10:30 AM
1:20-11063
Joby John Harte
Chapter 7
#16.00 Motion for extension of time to file a complaint objecting to discharge and/or motion to dismiss under section 707(b)
Docket 35
Tentative Ruling:
Service proper. No objections filed. Having reviewed the US Trustee's Motion to Extend Bar Date for Filing Complaint Objecting to Discharge, the Court finds cause exists for the extension of the bar date. The Motion is GRANTED.
MOVANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 10-14-2020.
Party Information
Debtor(s):
Joby John Harte Represented By Henry Glowa
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#17.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
(1) Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19, 6/25/20; 6/26/20; 9/1/20
Docket 21
Tentative Ruling:
160 614 8303
1912102MT
Please Log into Zoom.Gov using the following:
Meeting Id: 160 614 8303 Password: 1912102MT
Debtor(s):
Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
11:00 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
1:00 PM
1:20-10069
Shawn Sharon Melamed
Chapter 7
Adv#: 1:20-01046 Mazakoda, Inc. v. Melamed et al
#18.00 Motion for Judgment on the Pleadings under Rule 12(c)
Docket 15
*** VACATED *** REASON: Moved to 10/28/20 per Order #21. lf Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Shawn Sharon Melamed Represented By Giovanni Orantes
Defendant(s):
Jenous Tootian Represented By
Andrew Edward Smyth
Shawn Sharon Melamed Represented By
Andrew Edward Smyth
Joint Debtor(s):
Jenous Tootian Represented By Giovanni Orantes
Plaintiff(s):
Mazakoda, Inc. Represented By Scott E Gizer
Trustee(s):
Amy L Goldman (TR) Represented By Scott E Gizer
9:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1606148303 Meeting ID: 160 614 8303
Docket 0
Tentative Ruling:
9:00 AM
CONT... Chapter
- NONE LISTED -
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
(1) Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19, 6/26/20; 9/2/20
Docket 21
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
9:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1606148303 Meeting ID: 160 614 8303
Docket 0
9:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#1.00 TRIAL - RE: Motion of Hawkeye Entertainment, LLC,
Debtor and Debtor-in-Possession for and Order
(1) Authorizing the Assumption of non-Residential Real Property lease and Sublease, (2) Determining the Debtor and Sublessor not to be in Breach of Default, thereby Deeming them in Compliance with Bankruptcy Code Sec. 365(b)(1)(A) and Excusing the Debtor from any Additional Compliance with Sec. 365(b)(1)(B) and (C), and (3) Authorizing the
Debtor to Enter into a Revised Sublease that Amends and Extends the Sublease; or Alternatively, Extending the Time Period within which the Debtor may Assume or Reject Unexpired non-Residential Leases and Executory Contracts
fr. 11/6/19, 12/18/19, 6/26/20, 6/29/20; 9/3/20
Docket 21
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
Movant(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
8:30 AM
1:19-12769
Melissa Dolores Flanigan
Chapter 7
#1.00 Pro se Reaffirmation Agreement with TOP FINANCE COMPANY, INC. fr. 8/18/20, 9/15/20
Docket 24
Matter Notes:
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
Evidentiary Hearing
Tentative Ruling:
Continued from 8/18/20; 9/15/20
Petition date: 10/31/19
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: 2014 Ford C-Max
Debtor’s valuation of property (Sch. B): $3,000 Amount to be reaffirmed: $5,783.84
8:30 AM
CONT...
Melissa Dolores Flanigan
Chapter 7
APR: 16.99% (fixed)
Contract terms: $251.62 per month for 20 months Monthly Income (Schedule I): $1,600
Monthly expenses: (Schedule J): $2,875 Disposable income: $<1,275>
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 mother will help her make the payments, and that her mother drives the vehicle. This payment is listed on Sch. J
Debtor has a right to rescind agreement anytime prior to discharge, or until September 10, 2020, whichever is later.
Party Information
Debtor(s):
Melissa Dolores Flanigan Represented By Ali R Nader
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
1:20-11016
Daniel Shea Klein
Chapter 7
#2.00 Reaffirmation Agreement Between Debtor and Fifth Third Bank N.A. fr. 7/21/20; 8/18/20
Docket 8
Matter Notes:
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
Evidentiary Hearing
Tentative Ruling:
Continued from 7/21/20; 8/18/20:
Petition date: 6/3/2020
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
Debtor’s valuation of property (Sch. B): $19,693 Amount to be reaffirmed: $31,869.56
APR: 6.49% (fixed)
Contract terms: $531.91 per month for 71 months
8:30 AM
CONT...
Daniel Shea Klein
Chapter 7
Monthly Income (Schedule I): $2,762.42 Monthly expenses: (Schedule J): $2,702.91 Disposable income: $59.51
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 he will make this payment. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until August 30, 2020, whichever is later.
Party Information
Debtor(s):
Daniel Shea Klein Represented By Daniel King
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
1:20-11602
Alejandro Norberto Tuyu and Salina Joy Tuyu
Chapter 7
#3.00 Reaffirmation Agreement Between Debtor and San Diego County Credit Union
Docket 13
Matter Notes:
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
Evidentiary Hearing
Tentative Ruling:
Petition date: 9/3/2020
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 Dodge Challenger
Debtor’s valuation of property (Sch. B): $23,000 Amount to be reaffirmed: $29,815.42
APR: 6.65% (fixed)
Contract terms: $453.79 per month for 82 months Monthly Income (Schedule I): $4,299
Monthly expenses: (Schedule J): $5,425
8:30 AM
CONT...
Alejandro Norberto Tuyu and Salina Joy Tuyu
Chapter 7
Disposable income: <$1,126>
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. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until November 25, 2020, whichever is later.
Party Information
Debtor(s):
Alejandro Norberto Tuyu Represented By Navid Kohan
Joint Debtor(s):
Salina Joy Tuyu Represented By Navid Kohan
Trustee(s):
David Seror (TR) Pro Se
8:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1607709863 Meeting ID: 160 770 9863
8:00 AM
CONT... Chapter
Docket 0
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
10:00 AM
1:19-12727
Tacarra Sheana Carthan
Chapter 7
Adv#: 1:19-01135 Barton et al v. Carthan
#1.00 Motion to compel Discovery/Production of Documents
fr. 9/30/20, 10/8/20
Docket 15
Matter Notes:
NONE LISTED -
Tentative Ruling:
This Matter was continued from October 8, 2020. Appearance required.
Background:
On October 29, 2019, Tacarra Sheana Carthan (the "Defendant") filed a chapter 7 bankruptcy petition. The Defendant’s schedules were amended on November 12, 2019, and again on January 6, 2020. Docket No. 13 & 19. These amendments showed significant changes made to the Defendant’s income, expenses, and assets.
On November 14, 2019, Carmen Barton and Anthony Carthan (the "Plaintiffs") commenced an adversary proceeding against the Defendant for a determination of dischargability and objection to the Defendant’s discharge pursuant to sections 11 U.S.C. § 523(a)(5); §523(a)(6) and § 727(a)(3). Discovery is currently underway, and the Plaintiffs seek the following documents from the Defendant:
1). 6 months of Official certified bank statements from July 2019 through December 2019 for a JP Morgan Chase checking account;
10:00 AM
CONT...
Tacarra Sheana Carthan
6 months of Official certified bank statements from July 2019 through December 2019 for two Bank of America checking accounts;
6 months of Transaction History statements from July 2019 through December 2019 for CashApp;
6 months of Transaction History statements from July 2019 through December 2019 for Wix payment processing;
All 2019 1099 miscellaneous income tax forms;
All documents and communications with Gersh Agency regarding performance rider and pay;
All documents, contracts and communication regarding pay for performances with Chelsea Handler;
All documents, contracts and communication with NBC regarding compensation and residual payments for NBC "Bring the Funny";
9) All documents, contracts and communication with Just for Laughs Montreal Comedy Festival regarding compensation and residual for 2018 and 2019 performances;
10). Permit the Plaintiffs to inspect the Defendant’s 2010 Toyota
Chapter 7
10:00 AM
CONT...
Tacarra Sheana Carthan
Highlander odometer and general condition of the vehicle.
The Plaintiffs attempted to contact the Defendant’s counsel in order to obtain
Chapter 7
these discovery requests but have been unsuccessful. See Plaintiffs’ Exhibits 2-5. The Plaintiffs even subpoenaed the Defendant to produce these documents but again has not been successful. Docket No. 10; Plaintiffs’ Exhibit 1.
On February 27, 2020, the Plaintiffs filed a motion to compel the discovery and production of documents pursuant to Federal Rule of Civil Procedure 37 (a)(3). No opposition has been filed.
Standard:
The instant motion arises under Federal Rule of Civil Procedure 37(a), made applicable to bankruptcy proceedings through Federal Rule Bankruptcy Proceeding 7037(a), which authorizes a party to apply for an order to compel disclosure or discovery. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. Fed. R. Civ. P. 37(a)(2) (A); see also Soto v. City of Concord, 162 F.R.D. 603, 609 (N.D. Cal 1995). FRCP 26, made applicable to bankruptcy proceeding through FRBP 7026, provides that a party has a general duty to disclose, without awaiting a discovery request, names and contact information of individuals with discoverable information, a copy of all documents that control or may be used to support claims or defenses, computation of damages, and any applicable insurance agreement. Fed. R. Civ. P. 26(a); Fed. R. Bankr. P. 7026(a).
A party may obtain discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]" Fed. R. Civ. P. 26(b)(1). Factors to consider include "the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Id. Information need not be admissible in evidence to be discoverable. Id. However, a court "must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules" if "(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has
10:00 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1)." Fed. R. Civ. P. 26(b)(2)(C).
Analysis:
The Plaintiffs attached to their motion a declaration of noncooperation and exhibits supporting their position that they have in good faith tried to resolve the discovery disputes and have either briefly spoken with the Defendant’s counsel or have never received a reply to phone messages, emails, or to the subpoena. The Court is satisfied that this satisfies the formal requirements as articulated in FRBP 7037 and Local Bankruptcy Rule 7026-1(c).
Here the Plaintiffs are seeking to compel predominately financial documents relating to the Defendant’s prepetition and postpetition financial status. The Plaintiffs’ complaint alleges that the Defendant has falsified financial information and omitted various sources of income in her schedules. The complaint identifies several revenue streams that the Defendant has failed to adequately report in her schedules, and these allegations form the basis for relief under 11 U.S.C. § 727(a)(3). These financial documents will be necessary to prove whether the Defendant had other revenue streams that were not reported or under reported and the Plaintiffs assert that discovery may lead to admissible evidence. The Court is satisfied that the financial documents being sought are relevant to this adversary proceeding and there does not appear to be any defenses that could be raised as to why these documents are privileged.
The only concern the Court has is with regards to having the Plaintiffs’ check the odometer on the 2010 Toyota Highlander and to inspect its condition. At first glance this appears to be irrelevant information; however, the vehicle was only listed on the Defendant’s second amended schedules. While it is common for a debtor to file a barebones bankruptcy petition on an emergent basis and fill in the details later, the Defendant filed amended schedules and failed to list this vehicle until the second amended schedules were filed. Considering the relief sought under 11 U.S.C. § 727(a) (3), this car has some relevance but the concern the Court has is whether there is any relevant information left that can be gathered by having the Plaintiffs inspect the vehicle or whether it is overly burdensome on the Defendant. The issue here is
10:00 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
whether the Defendant made false statements with regards to her assets. The Plaintiffs can almost certainly use the Defendant’s schedules to show that she may have made false statements, but it is not clear what an inspection of the vehicle will produce that is relevant to the underlying issue. Even if the Plaintiffs can assert some level of relevancy to the underlying case, the burden of having the Defendant submit the vehicle for an inspection greatly outweighs any relevancy argument advanced by the Plaintiffs.
Disposition:
Grant the Plaintiffs’ motion to compel all requested financial documents.
Deny the Plaintiffs’ request to inspect the condition of the Defendant’s vehicle and to view the odometer.
Zoom.gov appearance required.
Party Information
Debtor(s):
Tacarra Sheana Carthan Represented By Daniel King
Defendant(s):
Tacarra Sheana Carthan Represented By Daniel King
Plaintiff(s):
Carmen Barton Pro Se
Anthony Carthan Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
8:00 AM
1:00-00000 Chapter
#0.00 You will not be permitted to be physically present in the courtroom.
Docket 0
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
11:00 AM
1:13-17737
Pella Parker
Chapter 13
#34.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 8/20/19, 10/22/19, 12/17/19; 1/28/20; 3/31/20, 7/21/20
Docket 115
*** VACATED *** REASON: Cont. to 12/15/20 @ 11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Pella Parker Represented By
Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-12566
Gabriel Rufus and Shirley Rufus
Chapter 13
#35.00 Trustee's Motion to Dismiss Case Due to Expiration of Plan
fr. 2/25/20, 4/28/20; 8/25/20
Docket 79
*** VACATED *** REASON: Cont. to 11/17/20 @ 11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Gabriel Rufus Represented By Devin Sawdayi
Joint Debtor(s):
Shirley Rufus Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-12567
Terry Byrd Pitt
Chapter 13
#36.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns fr. 8/20/19, 10/22/19, 12/17/19, 2/25/20, 4/28/20; 8/25/20
Docket 34
*** VACATED *** REASON: Cont. to 2/23/21 @ 11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Terry Byrd Pitt Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10398
Jose Luis Banuelos and Maria L. Tejada
Chapter 13
#37.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19, 2/25/20; 3/31/20; 6/23/20; 8/25/20
Docket 63
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Jose Luis Banuelos Represented By Leonard Pena
Joint Debtor(s):
Maria L. Tejada Represented By Leonard Pena
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12045
Raul P Pavia
Chapter 13
#38.00 Trustee's Motion to Dismiss Case
Docket 64
*** VACATED *** REASON: Cont. to 12/15/20 @ 11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Raul P Pavia Represented By
Eliza Ghanooni
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12150
Milton A. Martinez
Chapter 13
#39.00 Trustee's Motion to Dismiss Case due to Expiration of the Plan
Docket 84
*** VACATED *** REASON: Ntc. of w/drawal filed 10/19/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Milton A. Martinez Represented By James B Smith
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12365
Neyra Camarena
Chapter 13
#40.00 Trustee's Motion to Dismiss Case .
Docket 103
*** VACATED *** REASON: Ntc. of w/drawal filed 9/29/20 [jj] Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Neyra Camarena Represented By Todd J Roberts
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12942
Seth Eric Simon
Chapter 13
#41.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 119
*** VACATED *** REASON: Ntc. of w/drawal filed 10/19/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Seth Eric Simon Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-13421
Brian J. Comer and Jeanette Y. Comer
Chapter 13
#42.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 66
*** VACATED *** REASON: Cont. to 12/15/20 @ 11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Brian J. Comer Represented By Michael Jay Berger
Joint Debtor(s):
Jeanette Y. Comer Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10213
Larry Tyrone Lake and Irma Janet Lake
Chapter 13
#43.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 50
*** VACATED *** REASON: Voluntary dismissal of motion filed 10/22/20 (eg)
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Larry Tyrone Lake Represented By Kevin T Simon
Joint Debtor(s):
Irma Janet Lake Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10348
Jim K. Nikolopoulos and Ayarpi Nikolopoulos
Chapter 13
#44.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment Pursuant to 11 USC Sec. 1329(a) and the Percentage to be
Paid to Unsecured Creditors or, in the Alternative, Dismissing the Chapter 13 Petition Due to Debtrors' Failure to Make Debtors' Best Efforts to Repay Creditors Pursuant to 11 USC Sec. 1307(c)(6)
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20; 6/23/20; 8/25/20, 9/22/20
Docket 55
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Jim K. Nikolopoulos Represented By Scott D Olsen
Joint Debtor(s):
Ayarpi Nikolopoulos Represented By Scott D Olsen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10898
Jacqueline Desiree Landaeta Alvarez
Chapter 13
#45.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20
Docket 141
*** VACATED *** REASON: Cont. to 11/17/20 @ 11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jacqueline Desiree Landaeta Alvarez Represented By
Matthew D. Resnik Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11207
Jonel Quintela Martinez and Ivee Montalbo Martinez
Chapter 13
#46.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 60
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #64. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jonel Quintela Martinez Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Ivee Montalbo Martinez Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11417
Farshid Tebyani
Chapter 13
#47.00 Trustee's Motion to Dismiss Case .
Docket 90
*** VACATED *** REASON: Cont. to 1/26/21 @ 11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Farshid Tebyani Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12160
Hernan Alberto Orantes and Maria Del Rocio Sanchez
Chapter 13
#48.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 81
*** VACATED *** REASON: Ntc. of w/drawal filed 10/19/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
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
1:16-12201
Andrea Beckham
Chapter 13
#49.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/22/19, 12/17/19; 1/28/20; 3/30/20; 5/19/20; 6/23/20; 8/25/20
Docket 42
*** VACATED *** REASON: Cont. to 12/15/20 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Andrea Beckham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12613
Susan Griffin
Chapter 13
#50.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20, 7/21/20; 8/25/20
Docket 50
*** VACATED *** REASON: Cont. to 12/15/20 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Susan Griffin Represented By
Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12648
Fernando Benitez
Chapter 13
#51.00 Motion RE: Objection to Claim Number 4 by Claimant North American Savings Bank, F.S.B..
fr. 4/28/20, 5/19/20; 6/23/20, 7/21/20, 9/22/20
Docket 37
*** VACATED *** REASON: Cont'd per stipulation to 11/17/20 at 11:00
a.m. - hm Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Fernando Benitez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13055
Mark David Cave
Chapter 13
#52.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20; 3/31/20, 7/21/20, 9/22/20
Docket 107
*** VACATED *** REASON: Trustee fined a withdrawal - Doc. #143. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mark David Cave Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13547
John Stanley Mekrut
Chapter 13
#53.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/25/20
Docket 48
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
John Stanley Mekrut Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13648
Lisa Marie Payne
Chapter 13
#54.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 64
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Lisa Marie Payne Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10021
Nelson Humberto Pinto
Chapter 13
#55.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 1/28/20; 3/31/20, 7/21/20
Docket 105
*** VACATED *** REASON: Ntc. of w/drawal 8/26/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Nelson Humberto Pinto Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10032
Michael Klapsis and Marina Klapsis
Chapter 13
#56.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20, 4/28/20; 8/25/20, 9/22/20
Docket 36
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Michael Klapsis Represented By Devin Sawdayi
Joint Debtor(s):
Marina Klapsis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10032
Michael Klapsis and Marina Klapsis
Chapter 13
#57.00 Motion under Local Bankruptcy Rule 3015-1 (n) and
(w) to modify plan or suspend plan payments fr. 8/25/20, 9/22/20
Docket 39
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Michael Klapsis Represented By Devin Sawdayi
Joint Debtor(s):
Marina Klapsis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10095
Georg Bruno Ehlert
Chapter 13
#58.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 117
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Georg Bruno Ehlert Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10253
Allan Ray Cantero Padayao and Jenny Joan Agpoon
Chapter 13
#59.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 59
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Allan Ray Cantero Padayao Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Jenny Joan Agpoon Padayao Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10297
Felix Ray Wright
Chapter 13
#60.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 12/17/19, 2/25/20,4/28/20, 7/21/20, 9/22/20
Docket 145
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Felix Ray Wright Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10432
Luis Armando Rivas
Chapter 13
#61.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 45
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Luis Armando Rivas Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10982
Nicole Karen Lee
Chapter 13
#62.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 84
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Nicole Karen Lee Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11120
Jennifer H. Nguyen
Chapter 13
#63.00 Motion to dismiss case for failure to make plan payments
fr. 9/22/20
Docket 65
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #81. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jennifer H. Nguyen Represented By Rob R Nichols
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11130
Monet R Davis
Chapter 13
#64.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 4/28/20; 8/25/20
Docket 36
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. 46. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Monet R Davis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11130
Monet R Davis
Chapter 13
#65.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20; 3/31/20, 4/28/20; 8/25/20, 9/22/20
Docket 32
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #46. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Monet R Davis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11205
Shahla Hariri
Chapter 13
#66.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 91
*** VACATED *** REASON: Ntc. of w/drawal filed 10/26/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Shahla Hariri Represented By
Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11267
Irma Villalpando
Chapter 13
#67.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/25/20
Docket 134
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Irma Villalpando Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#68.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/24/19, 11/19/19; 1/28/20; 3/31/20; 6/23/20; 8/25/20 9/22/20
Docket 138
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
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
1:17-11387
Haroutiun Papazian
Chapter 13
#69.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 1/28/20; 3/31/20; 5/19/20, 7/21/20; 8/25/20
Docket 50
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Haroutiun Papazian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11387
Haroutiun Papazian
Chapter 13
#69.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 52
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Haroutiun Papazian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11404
Jose Rodriguez Garcia
Chapter 13
#70.00 Application for Compensation for Donna R Dishbak, Debtor's Attorney,
Period: 6/14/2017 to 9/11/2020, Fee: $16,160.00,
Expenses: $53.39. fr. 9/22/20
Docket 87
Matter Notes:
NONE LISTED -
Tentative Ruling:
On 9/23/2020, Creditors were served with notice of Debtor's counsel reques to place a lien on Debtor's property (ECF doc. 94). No written opposition was filed.
Having considered the Application and Trustee's comments in response , the Application is GRANTED.
NO APPEARANCE REQUIRED ON 10/27/2020 MOVANT TO LODGE ORDER WITHIN 7 DAYS
Party Information
Debtor(s):
Jose Rodriguez Garcia Represented By Donna R Dishbak
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11625
Linda Akerele Alele
Chapter 13
#71.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 7/30/19, 9/24/19, 11/19/19, 12/17/19, 2/25/20, 4/28/20, 7/21/20
Docket 50
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Linda Akerele Alele Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11804
Eduardo N Trillo, Jr. and Maritess Biglangawa Trillo
Chapter 13
#72.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20; 3/31/20, 4/28/20; 6/23/20, 7/21/20; 8/25/20, 9/22/20
Docket 58
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Eduardo N Trillo Jr. Represented By Elena Steers
Joint Debtor(s):
Maritess Biglangawa Trillo Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11995
Priscilla Jeanette Bueno
Chapter 13
#73.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20,4/28/20; 5/19/20; 6/23/20; 8/25/20, 9/22/20
Docket 55
*** VACATED *** REASON: Trustee fined a withdrawal - Doc. #75. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Priscilla Jeanette Bueno Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12102
Arman Tombakian
Chapter 13
#74.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20
Docket 74
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Arman Tombakian Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12329
Barbara Jean Woodard-Cox
Chapter 13
#75.00 Motion for Hardship Discharge Pursuant to 11 USC Sec. 1328(b)
Docket 91
Matter Notes:
NONE LISTED -
Tentative Ruling:
The court confirmed Debtor’s Plan on June 29, 2018 and required Debtor to pay $1,649 per month for 5 years, paying 47% to general unsecured creditors. The Plan also provided that at least $31,801 must be paid to priority an general unsecured creditors to comply with liquidation analysis."
On March 20, 2019, Debtor filed a Motion to Modify Plan, seeking to reduce the percentage from 17% to 30%, and to reduce the plan payment to $150 per month from March 2019 to February 2020. Thereafter, Debtor proposed that the payment would increase to $1,649 in March 2020 to the end of the plan term. An Order Granting the Motion to Modify was entered on April 24, 2019.
Debtor now moves for a hardship discharge, asserting that she was unable to resume the higher payments in March 2020 as she was suffering from multiple medical conditions in January 2020 and had to reduce her work hours. Decl. of Barbara Woodard-Cox ISO Motion ("Debtor Decl.", Ex. 4. Thereafter, Debtor, a school nurse employed by the LAUSD, was unable to resume even part-time work for the LAUSD when it closed in-person learning at its facilities in March 2020 due to the COVID-19 pandemic. Debtor contends that her health conditions worsened, and she was forced to retire. Id.
Legal Standard
The Bankruptcy Code allows the Debtor to request a hardship discharge under 11 USC § 1328(b):
"at any time after 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 –
11:00 AM
CONT...
Barbara Jean Woodard-Cox
Chapter 13
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 the 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 a claim of the estate if 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."
Debtor states that she has paid approximately $32,532 to fund her plan, to date. Id., Ex. 7. It is her position that, under the Confirmation Order, Debtor would need to contribute approximately $11,869.59 to meet the requirements of § 1328(b) (2). Debtor’s friend is willing to pay the required amount to Trustee, if her Motion is granted.
Trustee opposed the Motion, arguing that the amount proffered by Debtor is not sufficient to meet the hardship discharge standard. According to Trustee’s calculation, Debtor would need to tender $21,772.27 to pay the required amount to priority and general unsecured claims.
Debtor argues in reply that of the $32,532 that Debtor has paid into her plan, Trustee has paid $12,598.59 to secured creditors, with the remaining balance paid to parties holding unsecured and priority claims. Reply, 2:4-17. Debtor’s counsel, Borrowitz & Clark, LLP, is listed among the priority and unsecured creditors paid by Trustee.
The parties do not appear to argue that Debtor is not otherwise eligible for a hardship discharge under § 1328(b), in that Debtor’s income has been reduced due to circumstances beyond her control and that modification is not practicable. The sole issue is whether Debtor has met the liquidation standard under § 1328(b)(2).
Debtor’s calculations are as follows:
$32,532 | Amount paid by Debtor to fund plan (Ex. |
7) | |
($12,598.59) | Amount paid to secured creditors by |
Trustee (paid in full, per Debtor) | |
$19,933.41 | Funds remaining to be paid by Trustee |
$31,801.00 | to priority & unsecured creditors Amount required under Plan to be paid |
11:00 AM
CONT...
Barbara Jean Woodard-Cox
to priority & unsecured creditors
Chapter 13
($19,933.41) Amount paid by Trustee to priority & unsecured creditors under plan (per Debtor’s decl.)
$11,867.59 Amount required to meet liquidation standard under § 1328(b)(2), per Debtor
Of the $19,933.41 that Debtor calculates as "paid" is $2,200 in approved attorney’s fees that have yet to be paid out by Trustee, which Debtor believes should be paid from the $11,867.59. Debtor also notes that her counsel anticipates there will be approximately $3,534 in attorney’s fees related to this Motion and for responding to Trustee’s pending motion to dismiss that she believes should also be paid from the
$11,867.59 as a priority administrative claim. Trustee’s calculations are as follows:
$32,532 Amount paid by Debtor to fund plan (Ex.
7)
($12,598.59) Amount paid to secured creditors by Trustee (undisputed by Trustee?)
$19,933.41 Funds remaining to be paid by Trustee to priority & unsecured creditors
$31,801.00 Amount required under Plan to be paid to priority & unsecured creditors
($10,028.73) Amount paid by Trustee to priority & unsecured creditors under plan (per Trustee Opp.)
$21,772.27 Amount required to meet liquidation standard under § 1328(b)(2), per Trustee
Exhibit 7 to the Motion provides no clarity as to the amount Trustee has paid out to priority and unsecured creditors. According to the Chapter 13 Trustee Periodic Accounting Report (the "Trustee Report"), filed Jan. 30, 2020, ECF doc. 74,
$9,676.21 was paid to priority and unsecured creditors, not including amounts paid for attorney’s fees. Id. If attorney’s fees are included in the amount, then the Trustee Report shows $16,142.76 has been paid out to priority and unsecured creditors. It appears this is the difference in how the parties calculated the amount required to meet the liquidation requirement under § 1328(b), however neither party has
11:00 AM
CONT...
Barbara Jean Woodard-Cox
Chapter 13
provided any law or analysis on why this distinction is salient here.
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Barbara Jean Woodard-Cox Represented By Barry E Borowitz Michael E Clark
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12538
Dale Wayne Wainio
Chapter 13
#75.01 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 25
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #37. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Dale Wayne Wainio Represented By Nicholas M Wajda
Movant(s):
Elizabeth (SV) F Rojas (TR) Pro Se
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12885
Karen Marcy Santos Pham
Chapter 13
#76.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 67
*** VACATED *** REASON: Trustee fined a withdrawal - Doc. #73. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Karen Marcy Santos Pham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13027
Noel Carol Potter
Chapter 13
#77.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 39
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Noel Carol Potter Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10407
Jose Galindo, Jr
Chapter 13
#78.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20, 2/25/20, 4/28/20; 8/25/20
Docket 49
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Jose Galindo Jr Represented By Karine Karadjian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#79.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 55
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Marvin Eleid Represented By
Steven Abraham Wolvek
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#80.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20; 6/23/20; 8/25/20, 9/22/20
Docket 45
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Marvin Eleid Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10898
Consuelo Ramos
Chapter 13
#81.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 35
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Consuelo Ramos Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10979
Irina G Dzhalalyants
Chapter 13
#82.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 45
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Irina G Dzhalalyants Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11550
Andrea L Cervantes
Chapter 13
#83.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/25/20, 9/22/20
Docket 42
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Andrea L Cervantes Represented By Stephen S Smyth William J Smyth
Andrew Edward Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11558
Paymaun Jafari
Chapter 13
#84.00 Trustee's Motion to Dismiss Chapter 13 Case due to Material Default of Plan: Failure to Submit all Tax Refunds
Docket 52
*** VACATED *** REASON: Cont. to 1/26/21 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Paymaun Jafari Represented By Julie J Villalobos
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11575
Roderick Bill Norseweather
Chapter 13
#85.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 83
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Roderick Bill Norseweather Represented By James G. Beirne
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12737
Craig A. Lapiner
Chapter 13
#86.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 3/31/20, 7/21/20
Docket 89
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Craig A. Lapiner Represented By Eliza Ghanooni
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12843
Francisco Romero
Chapter 13
#87.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 56
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Francisco Romero Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12865
Iveta Vardanyan
Chapter 13
#88.00 Trustee's Motion to Dismiss Chapter 13 Case due to Material Default of Plan: Failure to Submit all Tax Refunds
Docket 25
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Iveta Vardanyan Represented By Aris Artounians
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10003
Edwin E. Vidanez
Chapter 13
#89.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20; 3/31/20, 7/21/20, 9/22/20
Docket 25
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Edwin E. Vidanez Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10108
Wilfredo Castillo and Carmen Rosa Castillo
Chapter 13
#90.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 56
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Wilfredo Castillo Represented By Donald E Iwuchuku
Joint Debtor(s):
Carmen Rosa Castillo Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10322
Louis Vargas
Chapter 13
#91.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20
Docket 70
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Louis Vargas Represented By
Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10486
Luis Mauricio Iglesias
Chapter 13
#92.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 24
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Luis Mauricio Iglesias Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10592
Irina Petrosova
Chapter 13
#93.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 25
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Irina Petrosova Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10637
Elizabeth Fabia Sanchez
Chapter 13
#94.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 27
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Elizabeth Fabia Sanchez Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10664
Bridget G Moran Smith
Chapter 13
#95.00 Motion RE: Objection to Claim Number 3 by Claimant U.S. Bank, National Association, et al. c/o PHH Mortgage Corporation, its Successors and/or Assigns.
fr. 7/30/19; 8/20/19; 10/22/2019; 12/17/19, 2/25/20, 4/28/20; 6/23/20; 8/25/20
Docket 26
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Bridget G Moran Smith Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10800
Edgar Roberto Salazar
Chapter 13
#96.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/22/20
Docket 58
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Edgar Roberto Salazar Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10904
Francisco Fernandez and Michelle Fernandez
Chapter 13
#97.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 79
*** VACATED *** REASON: Voluntary dismissal of motion filed 10/26/20 [jj]
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Francisco Fernandez Represented By Matthew D. Resnik
Joint Debtor(s):
Michelle Fernandez Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11617
Daysi Mildreen Ibanez
Chapter 13
#98.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 27
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #30. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Daysi Mildreen Ibanez Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11717
Lois Ann Harris
Chapter 13
#99.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 89
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Lois Ann Harris Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11753
Oleg Meerovich
Chapter 13
#100.00 Trustee's Motion to Dismiss Chapter 13 Case due to Material Default of Plan: Failure to Submit all Tax Returns
Docket 54
*** VACATED *** REASON: Ntc. of w/drawal filed 10/21/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Oleg Meerovich Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11762
Christopher Michael Niblett
Chapter 13
#101.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 66
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Christopher Michael Niblett Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11874
Lisa M. Bueno
Chapter 13
#102.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 34
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Lisa M. Bueno Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11916
Ada E Renderos Velasquez
Chapter 13
#103.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 4/28/20, 7/21/20
Docket 31
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #54. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ada E Renderos Velasquez Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11930
Vicente M Aguilar
Chapter 13
#104.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 44
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Vicente M Aguilar Represented By
David Samuel Shevitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11964
Hazel M Renderos
Chapter 13
#105.00 Motion RE: Objection to Claim Number 3
by Claimant Los Angeles County Treasurer and Tax Collector fr. 3/31/20, 9/22/20
Docket 0
Matter Notes:
NONE LISTED -
Tentative Ruling:
Debtor objects to the $31,810.71 claim filed by the Los Angeles County Treasurer and Tax Collector ("Tax Collector"). Debtor contends that she does not owe the property taxes asserted in the Claim because her mortgage payments include property taxes. Instead, she believes that that the next-door neighbor owes these property taxes and the Tax Collector has been using the wrong address and Assessor’s Parcel Number. Debtor’s counsel, Nathan A. Berneman ("Counsel"), filed a declaration in which he asserted that he contacted Debtor’s mortgage company and that he received documents evidencing payments the mortgage company made on Debtor’s behalf to the Tax Collector. The documents are attached to Counsel’s declaration as Exhibit B.
Under FRBP 3001(f), "a proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir.
2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶ 3001.05[2].
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
11:00 AM
CONT...
Hazel M Renderos
Chapter 13
amount of the claim. FRBP 3001-3007. LR 3007-1.
Per 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. In re Heath, 331 B.R. at 435, 437-38. 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. Under In re Campbell, 336 B.R. 430 (B.A.P. 9th Cir. 2005), 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.
"The court, after notice and a hearing, shall determine the amount of such claim… as of the date of the filing of the petition, and shall allow such claim, except to the extent that – (1) such claim is unenforceable against debtor and the property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unliquidated." 11 U.S.C. §502(b).
An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP §3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR §3007-1(c).
Should objection be taken, the objector is then called upon to produce evidence and show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves. But the ultimate burden of persuasion is always on the claimant. Thus, it may be said that the proof of claim is some evidence as to its validity and amount. It is strong enough to carry over a mere formal objection without more. 3 L. King, Collier on Bankruptcy § 502.02, at 502–22 (15th ed. 1991).
Debtor’s main argument is that she has paid her property taxes to her mortgage company, and so there is no debt on which to base this Claim. Debtor’s objection included print outs of what she purported were documents evidencing payments the mortgage company made on Debtor’s behalf to the Tax Collector.
11:00 AM
CONT...
Hazel M Renderos
Chapter 13
Berneman Decl., Ex. B. Debtor appears to rely on this document to allude that that Tax Collector did not have grounds to file a claim for the taxes that were paid by the mortgage company. The evidence that Debtor provided, screen shots of a lending portal displaying a mortgage history, were very difficult to read. When the documents are enlarged, however, there are amounts listed for "escrow balances" that could be related to the payment of property taxes. Counsel for Tax Collector filed a declaration explaining that, despite repeated requests and demands made by both it and Debtor, the lender refuses to provide proof to substantiate Debtor’s position that the property taxes were in fact paid in connection with Debtor’s residence.
On the other hand, Tax Collector contends that Debtor’s real property taxes on her residence have been delinquent since 2016. In addition to the illegibility of Debtor’s evidence, Tax Collector notes that the mortgage lender to which Debtor asserts the tax payments were made filed a proof of claim evidencing its interest in an entirely different parcel APN 2206-037-123. See Deed of Trust re 15845 Wyandotte St. Unit 4, Los Angeles, CA 91406, Attachment to Proof of Claim 15-1, filed by Deutsche Bank.
The only evidence filed in support of Tax Collector’s proof of claim is evidence of unpaid taxes as relates to parcel no. 2206-037-130. On Schedule A, Debtors listed ownership of only one property at 15845 Wyandotte St., Los Angeles, CA 91406. ECF doc. 9. Presumably, the Wyandotte property is Unit 4 as noted on the Deed of Trust, identified as APN Parcel no. 2206-037-123. Proof of Claim 15-1. It would seem, therefore, that any evidence of taxes owed that is not in connection with parcel 220-037-123 does not support Claim 3-1.
Objection SUSTAINED.
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Hazel M Renderos Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12094
Jose Gabia Salagubang
Chapter 13
#106.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 30
*** VACATED *** REASON: Ntc. of w/drawal filed 10/19/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jose Gabia Salagubang Represented By Stephen S Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12094
Jose Gabia Salagubang
Chapter 13
#107.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 30
*** VACATED *** REASON: Duplicated of cal. no. 106 Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jose Gabia Salagubang Represented By Stephen S Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12205
Mauricio Nunez
Chapter 13
#108.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20, 9/22/20
Docket 41
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mauricio Nunez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12264
Hrayer Chouchanian
Chapter 13
#109.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 45
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Hrayer Chouchanian Represented By Tamar Terzian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12329
Leticia E. Donis Duran
Chapter 13
#110.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 43
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Leticia E. Donis Duran Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12533
Stuart Malin and Patricia Malin
Chapter 13
#111.00 Motion RE: Objection to Claim Number 11,12 by Claimant Wells Fargo.
Docket 42
*** VACATED *** REASON: Ntc. of w/drawal filed 10/8/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stuart Malin Represented By
Steven Abraham Wolvek
Joint Debtor(s):
Patricia Malin Represented By
Steven Abraham Wolvek
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12717
Laura Pena
Chapter 13
#112.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 43
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Laura Pena Represented By
Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12874
Anne Dorothy Renzo
Chapter 13
#113.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/22/20
Docket 30
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Anne Dorothy Renzo Represented By Peter M Lively
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12874
Anne Dorothy Renzo
Chapter 13
#114.00 Motion under Local Bankruptcy Rule 3015-1 (n) and (w) to modify plan or suspend plan payments
fr. 9/22/20
Docket 32
*** VACATED *** REASON: Cont. to 11/17/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Anne Dorothy Renzo Represented By Peter M Lively
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12894
Mark Theodore Vedel and Susan Wohl Vedel
Chapter 13
#115.00 Debtor's Motion for Authority to Incur Debt (Personal Property)
Docket 47
Matter Notes:
NONE LISTED -
Tentative Ruling:
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Mark Theodore Vedel Represented By Matthew D. Resnik
Joint Debtor(s):
Susan Wohl Vedel Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12894
Mark Theodore Vedel and Susan Wohl Vedel
Chapter 13
#116.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 50
*** VACATED *** REASON: Cont. to 12/15/20 @11 am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mark Theodore Vedel Represented By Matthew D. Resnik
Joint Debtor(s):
Susan Wohl Vedel Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13223
Wendi A Schneider
Chapter 13
#117.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 32
*** VACATED *** REASON: Duplicate hearing [jj] Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Wendi A Schneider Represented By Allan D Sarver
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13223
Wendi A Schneider
Chapter 13
#118.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 32
*** VACATED *** REASON: Ntc. of w/drawal 9/24/20 (jj) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Wendi A Schneider Represented By Allan D Sarver
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10918
Eduardo T Anucilla and Nenita D Anucilla
Chapter 13
#119.00 Motion for Setting Property Value re Honda Odessey
Docket 24
Matter Notes:
NONE LISTED -
Tentative Ruling:
Service: Proper, per address designated on Proof of Claim for Notice Property: 2014 Honda Odessey
Amount owed: $19,064.88
Value of Collateral (per Debtor's declaration, ¶ 4): $19,799 Secured claim amount: $19,064.88
Unsecured bifurcated claim: $0 Disposition: DENIED
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Eduardo T Anucilla Represented By
R Grace Rodriguez
Joint Debtor(s):
Nenita D Anucilla Represented By
R Grace Rodriguez
Movant(s):
Eduardo T Anucilla Represented By
R Grace Rodriguez
Nenita D Anucilla Represented By
R Grace Rodriguez
11:00 AM
CONT...
Trustee(s):
Eduardo T Anucilla and Nenita D Anucilla
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10918
Eduardo T Anucilla and Nenita D Anucilla
Chapter 13
#120.00 Motion for Setting Property Value re Honda Civic
Docket 25
Matter Notes:
NONE LISTED -
Tentative Ruling:
Service: Proper, per address designated on Proof of Claim for Notice Property: 2017 Honda Civic
Amount owed: $15,533.11 (per proof of claim 5-1)
Value of Collateral (per Debtor's declaration, ¶): $11,030 Secured claim amount: $11,030
Unsecured bifurcated claim: $4,503.11
Debtor's request to set the interest rate at 4.5% for repayment in the chapter 13 plan is improper under a motion to value collateral. Issues of cramdown interest rate determinations are matters for confirmation.
Disposition: GRANTED in part, DENIED in part. TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Eduardo T Anucilla Represented By
R Grace Rodriguez
Joint Debtor(s):
Nenita D Anucilla Represented By
R Grace Rodriguez
Movant(s):
Eduardo T Anucilla Represented By
11:00 AM
CONT...
Eduardo T Anucilla and Nenita D Anucilla
R Grace Rodriguez
Chapter 13
Nenita D Anucilla Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-11059
Josephine Mansilla De Jesus
Chapter 13
#121.00 Motion to Compel Abandonment of Recovered Funds
Docket 37
Matter Notes:
NONE LISTED -
Tentative Ruling:
The court may look beyond the names on a joint account to determine the extent of a debtor’s interest in the account. Haderlie v Barney, 2013 Bankr. Lexis 4514(D. WY 2013). Courts can look to who used the account, the purpose of the joint account, who paid taxes on the account and the source of the funds in the account. Here, the funds in the joint account are loan proceeds from a refinancing of jointly held property, but from a loan solely in the non-debtor domestic partner’s name.
Where a loan is made on a promissory note, title passes to the borrower when he or she signs the note. State v. Berman, 50 Wn App. 125, 747 P. 2d 492 (Wash App 1987); Accord, Keeton v. Flanagan (In re Flanagan), 2014 Bankr. Lexis 756, 19 (9th Cir. BAP 2014)(Upon disbursement, loan proceeds generally belong to the borrower"). Here, non-debtor Favis is on the promissory note and solely liable for the refinance. That may resolve the issue between Favis and Wells Fargo, as the basis for freezing the account and turning the entire account over to the Chapter 7 trustee is questionable. That issue, however, is between the debtor, Favis and Wells Fargo. The question here for purposes of the equitable interests of the bankruptcy estate is different. Turning the funds over to Favis because of Wells Fargo’s possibly wrongful act resolves only the issue of possession, not the interests of the bankruptcy estate.
There is no dispute that at least half the funds belong to Favis and not the estate and that Wells Fargo improperly seized non-debtor Favis funds. Half of the seized funds should be turned over to Favis without delay. There was no notice to Favis and no compliance with California collection law. Debtor is correct that basic due process was not followed as to third party Favis. The fact that the funds were then turned over to the trustee does not change the original wrong by Wells Fargo.
11:00 AM
CONT...
Josephine Mansilla De Jesus
Chapter 13
The trustee argues that half the funds were based on debtor’s equity in the Mission Hills property. She also argues that if Favis is responsible for the entire mortgage, there are serious feasibility and liquidation concerns. It is not clear why this is so. Debtor argues that the liquidation analysis is 0$ available for unsecured creditors either way. How does the feasibility or liquidation analysis change?
Debtor lists her interest in the property on Schedule A as a joint tenant, but she does not list any mortgage liability. She lists $900 rent as a monthly expense. While the parties cite to law concerning loan proceeds, they do not provide any law discussing the ownership when the loan is based in part on the debtor’s equity. While debtor and Favis state that Favis has always paid "the lion’s share" of the mortgage, they do not give details or explain why she lists her interest as $299,501 in Schedule A. This needs to be addressed more at oral argument.
APPEARANCE REQUIRED
Party Information
Debtor(s):
Josephine Mansilla De Jesus Represented By
Glenn Ward Calsada
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-11112
Nathan Daneshrad
Chapter 13
#122.00 Objection to Homestead Exemption
Docket 27
Matter Notes:
NONE LISTED -
Tentative Ruling:
Trustee objected to Debtor's attempt to claim an exemption of $100,000 in real property at 9717 Nestle Ave., Northridge, CA 91325, as she contends he is ineligible to claim that amount under C.C.P. § 704.730(a)(2). Under C.C.P.
§ 704.730(a)(2), provides for an exemption of up to $100,000 of equity in a homestead "if the judgment debtor or spouse of the judgment debtor who resides in the homestead is, at the time of the attempted sale of the homestead, a member of a family unit." In the schedules filed for this bankruptcy, Debtor identifies himself as a single man. Trustee notes that on Schedule J, Debtor lists a dependent child, but that she does not live with Debtor. For this reason, Trustee argues that Debtor is not entitled to claim the
$100,000 exemption, and that he should be limited only to the $75,000 exemption.
Service proper. No opposition filed.
OBJECTION SUSTAINED. Trustee to lodge order within 7 days.
Party Information
Debtor(s):
Nathan Daneshrad Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-11245
Carlos R Moyano and Rosa E. Moyano
Chapter 13
#123.00 Motion to Avoid Lien Junior Lien with Indymac Bank, FSB/CIT Bank, N.A
fr. 8/25/20, 9/22/20
Docket 12
*** VACATED *** REASON: cont'd to 11/17/20 per order #35. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Carlos R Moyano Represented By Nathan A Berneman
Joint Debtor(s):
Rosa E. Moyano Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
8:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1616655250
8:00 AM
CONT... Chapter
Docket 0
Tentative Ruling:
All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android
phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1616655250
8:00 AM
CONT... Chapter
9:30 AM
1:18-11124
Ernesto Bernabe Bustamante, Jr. and Lucia Tabunda
Chapter 13
#1.00 Motion for relief from stay LAKEVIEW LOAN SERVICING, LLC
fr. 9/24/20
Docket 50
*** VACATED *** REASON:
Continued to 12/2 at 10am pursuant to a stipulation.
Tentative Ruling:
Continued to 12/2 at 10am pursuant to a stipulation.
Party Information
Debtor(s):
Ernesto Bernabe Bustamante Jr. Represented By Jeffrey N Wishman
Joint Debtor(s):
Lucia Tabunda Bustamante Represented By Jeffrey N Wishman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-11916
Ada E Renderos Velasquez
Chapter 13
#2.00 Motion for relief from stay IMPAC MORTGAGE CORP.
fr. 7/15/20, 9/9/20; 10/7/20
Docket 34
*** VACATED *** REASON: Resolved per APO (doc. 51) - hm Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ada E Renderos Velasquez Represented By Ali R Nader
Movant(s):
IMPAC Mortgage Corp. dba Represented By
Erin M McCartney
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-11764
Alejandro Rodriguez Garibay
Chapter 13
#3.00 Motion for relief from stay
U.S. BANK TRUST NATIONAL ASSO.
Docket 70
Tentative Ruling:
Tentative Ruling
Petition Date : 07/16/2018 Confirmation Date: 7/22/2019 Service: Proper. No Opposition
Property: 11570 Bonham Avenue, Sylmar, CA 91342 Property Value: $ 570,000.00 (per debtor’s schedules)
Amount Owed: $ 539,293.25 ($ 459,888.15per Movant’s declaration) ($79,405.10 to a junior lien per Debtor's schedule)
Equity Cushion: 5% Equity: $30,706.75
Post-Petition Delinquency: $6,105.43 ( 2 payments of $2,204.19, 5 late charges
$93.21, and $1,231.00).
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 6 ( termination of co-debtor stay 11U.S.C.§1201(a)or § 1301(a)); and 7 (waiver of the 4001(a)(3) stay).
Movant alleges that the fair market value is declining and payments are not being made to Movant sufficient to protect Movant's interest against the decline and the Debtor has missed postpetition payments.
Cause exists under 362 and there is not enough of an equity cushion to provide adequate protection for the Movant.
Disposition: GRANT the motion for relief of stay.
No Appearance Required. Movant to lodge an order within 7 days.
Party Information
Debtor(s):
Alejandro Rodriguez Garibay Represented By
10:00 AM
CONT...
Trustee(s):
Alejandro Rodriguez Garibay
Faith A Ford
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12547
Michael Vara
Chapter 11
#4.00 Scheduling and case management conference and filing of monthly reports.
fr. 12/12/18; 5/22/19; 6/14/19, 8/7/19, 8/28/19, 10/16/19, 12/18/19, 4/1/20
Docket 16
*** VACATED *** REASON: Closed on an interim basis 6/3/2020 (doc. 149) - hm
Tentative Ruling:
Vacated. Closed on an interim basis 6/3/2020 (doc. 149).
Party Information
Debtor(s):
Michael Vara Represented By Onyinye N Anyama
10:00 AM
1:19-12001
Hilcias Noe Morataya and Dora Estela Morataya
Chapter 13
#5.00 Motion for relief from stay WELLS FARGO BANK
Docket 35
Tentative Ruling:
Tentative Ruling
Petition Date : 08/09/2019 Confirmation Date: 01/03/2020 Service: Proper. No Opposition
Property: 2013 Toyota Prius (Vin #JTDKN3DU0D5643708) Property Value: $ 9,500.00 (per debtor’s schedules) Amount Owed: $7,145.21 (per Movant’s declaration) Equity Cushion: 24.7 %
Equity: $2,354.79
Post-Petition Delinquency: $599.84 ( 2 payments of $251.48 and a late charge of
$96.88)
Movant requests relief under 11 U.S.C.362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)
(3) stay). Movant alleges that the Debtor has missed postpetition payments and the fair market value of the property is rapidly declining.
While cause exists for lifting the automatic stay there appears to be a decent sized equity cushion here - which is a bit unusual in vehicles. Assuming the Debtor's valuation is accurate, the value has almost certainly depreciated since last year. The question is how large is the equity cushion? Have the parties discussed entering into an APO?
Appearance Required.
Debtor(s):
Party Information
Hilcias Noe Morataya Represented By Sydell B Connor
10:00 AM
CONT...
Hilcias Noe Morataya and Dora Estela Morataya
Chapter 13
Joint Debtor(s):
Dora Estela Morataya Represented By Sydell B Connor
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12533
Stuart Malin and Patricia Malin
Chapter 13
#6.00 Motion for relief from stay METROPOLITAN LIFE INSURANCE CO.
Docket 44
Tentative Ruling:
Tentative Ruling
Petition Date : 10/06/2019 Confirmation Date: 04/16/2020
Service: Proper. Opposition filed on 10/9/2020 (Docket No. 48) Property: 7718 Maestro Avenue, Los Angeles, California 91304 Property Value: $ 900,000 (per debtor’s schedules)
Amount Owed: $462,609.56 (per Movant’s declaration) Equity Cushion: 48.59%
Equity: $437,390.44
Post-Petition Delinquency: $24,009.37 ( 22 payments of $2,090.85, $1,030.00, less suspense account $19.98).
Movant requests relief under 11 U.S.C.362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (option to enter into a loan modification) and 7 (waiver of the 4001(a)(3) stay). Movant alleges that the Debtor has missed postpetition payments. The last partial postpetition payment occurred on 2/27/20.
The Debtor opposes this motion and asserts that the Movant is not taking additional payments into account. Further, the Debtor attempted to get a hardship modification or Covid relief but the lender failed to follow through.
There is substantial equity in the Property, have the parties discussed entering into an APO or entering into a Loan Modification?
Appearance Required.
Party Information
Debtor(s):
Stuart Malin Represented By
10:00 AM
CONT...
Stuart Malin and Patricia Malin
Steven Abraham Wolvek
Chapter 13
Joint Debtor(s):
Patricia Malin Represented By
Steven Abraham Wolvek
Movant(s):
Metropolitan Life Insurance Represented By Daniel K Fujimoto
Christopher Giacinto Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10027
Marvin Alan Schaffer and Shirley Radler Schaffer
Chapter 13
#7.00 Motion for relief from stay TOYOTA LEASE TRUST
Docket 30
Tentative Ruling:
Tentative Ruling
Petition Date : 01/07/2020 Confirmation Date: 04/14/2020
Service: Proper. Debtor filed a non-opposition filed on 10/8/2020 (Docket No. 33) Property: 2018 Toyota C-HR (Vin #NMTKHMBX1JR017860)
Property Value: $ 0
Amount Owed: $15,176.12 (per Movant’s declaration) Equity Cushion: 0%
Equity: $0
Post-Petition Delinquency: 15,176.12( 1 Payment of $15,176.12 (Lease Agreement).
Movant requests relief under 11 U.S.C.362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)
(3) stay). Movant alleges that the there is no adequate protection because the fair market value and the Movant regained possession of the Property on August 25,2020.
Cause exists under Section 362 for lifting the automatic stay and the Debtor filed a non-opposition on 10/8/2020.
Disposition: GRANT the Movant's motion for relief of stay.
No Appearance Required. Movant to lodge an order within 7 days.
Party Information
Debtor(s):
Marvin Alan Schaffer Represented By
R Grace Rodriguez
10:00 AM
CONT...
Marvin Alan Schaffer and Shirley Radler Schaffer
Chapter 13
Joint Debtor(s):
Shirley Radler Schaffer Represented By
R Grace Rodriguez
Movant(s):
Toyota Lease Trust, as serviced by Represented By
Kirsten Martinez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11132
Saima Karim
Chapter 7
#8.00 Motion for relief from stay VW CREDIT INC.
Docket 15
Tentative Ruling:
Tentative Ruling Petition Date06/29/2020
Service: Proper. No Opposition
Property: 2018 Ducati (Vin #ZDM14B1W0JB006379) Property Value: $ 9,500.00 (per debtor’s schedules) Amount Owed: $ 18,866.18 (per Movant’s declaration) Equity Cushion: 0%
Equity: $0
Post-Petition Delinquency: $757.68 (2 payments of $378.84)
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that it has yet to receive a postpetition payment, that the Debtor failed to provide proof of insurance and that the fair market value is declining and payments are not being made to Movant sufficient to protect Movant's interest against the decline.
On October 13, 2020, an order granting discharge was issued pursuant to Section 727. On that date automatic stay was terminated and replaced by a discharge injunction. The relief being sought by the movant is now moot.
Disposition: DENY the Motion for Relief of Stay as Moot.
No Appearance Required. Movant to lodge an order within 7 days.
Party Information
Debtor(s):
Saima Karim Represented By
Karl D Zufelt
10:00 AM
CONT...
Trustee(s):
Saima Karim
Chapter 7
David Keith Gottlieb (TR) Pro Se
10:00 AM
1:20-11148
Fayyaz Aly Dammanwalla and Meena Fayyaz
Chapter 7
#9.00 Motion for relief from stay
MERCEDES-BENZ FINANCIAL SERVICES USA LLC
Docket 43
*** VACATED *** REASON: Withdrawal filed by Movant's attorney - Doc. #49. lf
Tentative Ruling:
Vacated pursuant to a voluntary dismissal of the Motion. Docket No. 49. No appearance required.
Party Information
Debtor(s):
Fayyaz Aly Dammanwalla Represented By
Raj T Wadhwani
Joint Debtor(s):
Meena Fayyaz Dammanwalla Represented By
Raj T Wadhwani
Trustee(s):
Nancy J Zamora (TR) Represented By Toan B Chung
10:00 AM
1:20-11579
Martha Delatorre
Chapter 7
#10.00 Motion for relief from stay SANTANDER CONSUMER USA INC
Docket 12
Tentative Ruling:
Tentative Ruling
Petition Date: 08/31/2020 Service: Proper. No Opposition
Property: 2017 Mercedes-Benz GLS (Vin # 4JGDF6EE0HA932403) Property Value: $ 34,500.00 (per debtor’s schedules)
Amount Owed: $ 43,158.77 (per Movant’s declaration) Equity Cushion: 0%
Equity: $0
Post-Petition Delinquency: $803.18
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that it has yet to receive a postpetition payment, that the Debtor failed to provide proof of insurance and that the bankruptcy case was filed in bad faith (other bankruptcy cases were filed in which an interest in the Property was asserted).
The Debtor filed a statement intending to surrender the Property. Docket No. 15.
The Court GRANTS the Movant’s motion but makes no findings as to being a bad faith filing.
NO APPEARANCE REQUIRED. Movant to lodge an order within 7 days.
Party Information
Debtor(s):
Martha Delatorre Represented By Kenneth H J Henjum
10:00 AM
CONT...
Trustee(s):
Martha Delatorre
Chapter 7
Nancy J Zamora (TR) Pro Se
10:30 AM
1:11-22664
L.D.T. Investments Inc.
Chapter 7
#11.00 Trustee's Final Report and Application for Compenstion and Deadline to Object
Trustee:
David Seror
Attorney for Trustee:
Brutzkus Gubner Rozansky Seror Weber
Docket 780
Tentative Ruling:
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. This was an extremely difficult and complicated case. The trustee and his professionals have done an excellent job.
APPEARANCES WAIVED ON 10-28-20.
Party Information
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 Richard Burstein Elissa Miller Aram Ordubegian Andy Kong
Jessica L Bagdanov
10:30 AM
CONT...
L.D.T. Investments Inc.
Ronald P Abrams Talin Keshishian
Chapter 7
10:30 AM
1:12-10231
Owner Management Service, LLC and Trustee Corps
Chapter 7
#12.00 Evidentiary Hrg. re: Motion to Disallow Claims Objection to Proof of Claim No. 38
fr. 12/4/19, 1/8/20; 5/14/20; 7/16/20, 8/28/20
Docket 2317
*** VACATED *** REASON: Resolved per Settlement (ECF doc. 2486) - hm
Tentative Ruling:
- NONE LISTED -
Party Information
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 Jorge A Gaitan
10:30 AM
1:19-11292
Mani Mukherjee
Chapter 7
#13.00 Trustee's Motion for Order:
Authorizing the Private Sale of Real Property Located at 4408 Tosca Road, Los Angeles, California 91364 Outside the Ordinary Course of Business, Free and Clear of Claims, Liens, Encumbrances and Interests; and
Approving a Compromise with Debtor
Docket 84
*** VACATED *** REASON: Cont. to 11/18/20 @10:30am (eg) Tentative Ruling:
Having considered the Motion, the Opposition filed by judgment creditor Devadatt
Mishal, and Trustee's Reply and finding that a related Motion to Avoid Lien under 11 U.S.C. § 522(f) is set for hearing on 11/18/20 at 10:30 a.m., the Court finds cause to continue the hearing on this Motion to Sell to November 18, 2020, at 10:30 a.m., remotely via ZoomGov.
Trustee to give notice of continued hearing. APPEARANCES WAIVED ON 10/28/2020
Party Information
Debtor(s):
Mani Mukherjee Represented By Armen Shaghzo
Trustee(s):
Nancy J Zamora (TR) Represented By Peter J Mastan
Dinsmore & Shohl llP Ashleigh A Danker
10:30 AM
1:20-11148
Fayyaz Aly Dammanwalla and Meena Fayyaz
Chapter 7
#14.00 Motion RE: Objection to Claim Number 1 by Garthen Lenon.
Docket 26
Tentative Ruling:
ZOOMGOV APPEARANCE REQUIRED
This chapter 7 bankruptcy case was filed on June 30, 2020. On July 23, 2020, Garthen Lenon ("Lenon"), by his attorney Jay Rothman ("Rothman"), filed a proof of claim ("PoC 1") in this chapter 7 case, asserting an unsecured claim of
$100,000, of which $13,600 is claimed as a priority claim under § 507(a)(4). Attached to PoC 1 in support of the claim is a state court complaint for wrongful termination.
Trustee objects to PoC 1 but does not specify under which subsection of
§ 502(b) her objection is based. Trustee notes that there is no documentation beyond the complaint to support the amounts listed in PoC 1, either for the unsecured claim or the priority claim. Trustee argues that, without more, PoC 1 is insufficient to be entitled to prima facie validity under FRBP 3001(f) and should be disallowed in its entirety.
In response, Claimant Lenon and attorney Rothman filed declarations in support of PoC1 (the "Lenon Decl." ECF doc. 63, and the "Rothman Decl." ECF doc. 64, respectively). Lenon explained in his declaration that, prepetition, he had asserted claims against Debtor for, among other things, wrongful termination, sexual harassment, violations of Labor Code related to meal and rest periods, and intentional infliction of emotional distress. Lenon Decl., ¶¶ 6-11, 12-14; PoC 1, Attachment.
Debtor also attached to his declaration copies of timecards from July and August 2018. Id. In his declaration, Debtor’s state court counsel Jay Rothman asserted that the underlying action is still in litigation and discovery phase and that additional discovery needs to be completed. Rothman Decl., ¶ 6. Rothman offered a breakdown of the unliquidated damages asserted in PoC 1, as follows:
Sexual harassment: $65,000
Commission owed on alleged oral contract: $15,000 Wage & hour violations $10,000
10:30 AM CONT... | Fayyaz Aly Dammanwalla and Meena Fayyaz | |
Attorney’s fees (to date & ongoing) | $10,000 | |
Total asserted in PoC 1 | $100,000 |
Chapter 7
Under section 502, a proof of claim is deemed allowed, unless a party of interest objects. Under FRBP 3001(f), "a proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." FRBP 3001-3007. LR 3007-1. A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶3001.05[2].
Per 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. In re Heath, 331 B.R. at 435, 437-38. 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. Under In re Campbell, 336 B.R. 430 (B.A.P. 9th Cir. 2005), 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 holds that, "[o]bjections without substance are inadequate to disallow claims, even if those claims lack the documentation required by Rule 3001(c)."
"The court, after notice and a hearing, shall determine the amount of such claim… as of the date of the filing of the petition, and shall allow such claim, except to the extent that – (1) such claim is unenforceable against debtor and the property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unliquidated." 11 U.S.C. §502(b).
10:30 AM
CONT...
Fayyaz Aly Dammanwalla and Meena Fayyaz
An objection to claim must be supported by admissible evidence sufficient to
Chapter 7
overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c).
Should objection be taken, the objector is then called upon to produce evidence and show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves. But the ultimate burden of persuasion is always on the claimant. Thus, it may be said that the proof of claim is some evidence as to its validity and amount. It is strong enough to carry over a mere formal objection without more. 3 L. King, Collier on Bankruptcy § 502.02, at 502–22 (15th ed. 1991).
It is generally held that failure to attach writings to a proof of claim does not require a bankruptcy court to disallow a claim on that basis alone. Rather, the claim is not entitled to be considered as prima facie evidence of the claim's validity.
Ashford v. Consolidated Pioneer Mortgage Co. (In re Consolidated Pioneer Mortgage Co.), 178 B.R. 222, 226 (B.A.P. 9th Cir. 1995). PoC 1 was filed with a copy of the state court complaint, which Trustee argues is insufficient to confer prima facie validity because the state court complaint contains no information to support "the seemingly arbitrary round number of $100,000 or the claimed priority amount of
$13,650…." Based on this lack of prima facie validity afforded PoC 1, Trustee argues that the Claim be disallowed in its entirety.
Trustee’s request overstates how Rule 3001 operates in this context. The nine paragraphs of subsection (b) set forth the sole grounds for disallowance under section 502. Travelers Cas. & Sur. Co. v. Pac. Gas & Elec. Co., 549 U.S. 443 (2007). As noted above, Trustee’s objection does not explain under which subsection of 502(b) she is seeking disallowance of the unsecured portion of the claim, nor can the Court discern which subsection would be applicable here. Instead, where a claim is found to lack the evidence required for prima facie validity under FRBP 3001, the claimant is required to allege facts sufficient to support their claim when facing an objection to claim. In re Consolidated Pioneer Mortgage Co., 178 B.R. at 226. In his declaration filed in support of the claim, Lenon has alleged sufficient facts to show the existence a claim, if the alleged facts are proven to be accurate, even if the amount listed on PoC1 as unsecured is contingent and unliquidated, and likely contested.
Under § 502(b)(1), a claim cannot be disallowed on account of it being
10:30 AM
CONT...
Fayyaz Aly Dammanwalla and Meena Fayyaz
Chapter 7
"contingent or unmatured" if the claim is otherwise enforceable against the debtor. 11 U.S.C. § 502(b)(1). 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, Trustee’s objection did not challenge any particular aspect of unsecured claim asserted in PoC 1, except for its alleged lack of documentation. This "mere formal objection" is not adequate to defeat the $100,000 portion of the claim designated as unsecured.
Trustee also objects to the $13,650 portion of PoC 1 designated as "priority" claim under § 507(a)(4) for wages and salary earned 180 days before the bankruptcy petition was filed or the debtor’s business ends, whichever is earlier. Lenon attached to his declaration copies of handwritten sign-up sheets from July and August 2018, presumably to bolster his claim for damages for Labor Code violations. Lenon did not, however, explain how $13,650 would be entitled to priority under § 507(a)(4), when he alleged in the state court complaint that he terminated his employment on or about August 21, 2018, far outside the 180-day period of time covered by § 507(a)(4). Trustee’s objection demonstrated factual and legal grounds to disallow the portion of PoC 1 designated as priority under § 507(a)(4).
Trustee’s objection is OVERRULED as to the portion of PoC 1 asserting an unsecured claim of $100,000. Trustee should be prepared to discuss whether she will request that the Court estimate this contingent and/or unliquidated claim under
§ 502(c) for purposes of allowance.
Trustee’s objection is SUSTAINED as to the portion of PoC 1 asserting a priority under § 507(a)(4) of $13,650.
Party Information
Debtor(s):
Fayyaz Aly Dammanwalla Represented By
Raj T Wadhwani
Joint Debtor(s):
Meena Fayyaz Dammanwalla Represented By
Raj T Wadhwani
Trustee(s):
Nancy J Zamora (TR) Represented By
10:30 AM
CONT...
Fayyaz Aly Dammanwalla and Meena Fayyaz
Toan B Chung
Chapter 7
11:00 AM
1:12-19998
Process America, Inc.
Chapter 11
Adv#: 1:12-01421 Tigrent Group Inc. v. Process America, Inc. et al
#15.00 Status conference re complaint for: damages and equitable relief
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, 6/26/19
9/21/18, 10/31/18; 12/12/18, 2/27/19; 3/13/19; 12/11/19, 1/29/20
2/26/20; 3/25/20; 5/20/20, 6/2/20
Docket 1
Tentative Ruling:
No status report filed as of 10/26/20.
ZoomGov appearance required.
Party Information
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
11:00 AM
CONT...
Process America, Inc.
Chapter 11
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
Plaintiff(s):
Tigrent Group Inc. Represented By Thomas F Koegel
U.S. Trustee(s):
United States Trustee (SV) Pro Se
11:00 AM
1:18-12917
Sohail Mobasseri
Chapter 7
Adv#: 1:19-01049 LendingHome Funding Corp. v. Mobasseri
#16.00 Status Conference Re:
Complaint by LendingHome Funding Corp. against Sohail Mobasseri.
fr. 9/30/20
Docket 1
Tentative Ruling:
- NONE LISTED -
Debtor(s):
Party Information
Sohail Mobasseri Represented By Dana M Douglas
Defendant(s):
Sohail Mobasseri Represented By Dana M Douglas
M. Jonathan Hayes
Plaintiff(s):
LendingHome Funding Corp. Represented By Adam Forest
Kerry A. Moynihan
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:18-12917
Sohail Mobasseri
Chapter 7
Adv#: 1:19-01049 LendingHome Funding Corp. v. Mobasseri
#17.00 Motion to Dismiss Section 727 Adversary Proceeding Based on Settlement
Docket 58
Tentative Ruling:
Defendant and Plaintiff move for the Court’s approval of the Settlement Agreement (ad. doc. 58), as amended by the Addendum (hereafter, the “Settlement Agreement,” ad. doc. 71, filed 10/1/2020), and dismissal of the Adversary Case in accordance with the terms of the Settlement Agreement. If the Court grants this Motion, the parties intend to consummate the Settlement Agreement and, once payment has cleared, Plaintiff will submit an order dismissing this action.
Service proper on both the Motion and the Addendum. No response filed. MOTION GRANTED. MOVANT TO LODGE ORDER WITHIN 7 DAYS.
APPEARANCES WAIVED ON 10/28/20
Party Information
Debtor(s):
Sohail Mobasseri Represented By Dana M Douglas
Defendant(s):
Sohail Mobasseri Represented By Dana M Douglas
M. Jonathan Hayes
Plaintiff(s):
LendingHome Funding Corp. Represented By Adam Forest
Kerry A. Moynihan
11:00 AM
CONT...
Trustee(s):
Sohail Mobasseri
Chapter 7
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:19-10828
Anna Barseghian
Chapter 7
Adv#: 1:19-01084 Zamora, Chapter 7 Trustee v. Barseghian
#18.00 Status Conference Re: Complaint for Denial of Discharge.
fr. 9/18/19, 11/6/19, 1/8/20; 4/8/20; 6/24/20, 8/19/20
Docket 1
*** VACATED *** REASON: Order entered adv. dismissed 9/2/20 (eg) Tentative Ruling:
Party Information
Debtor(s):
Anna Barseghian Represented By Aris Artounians
Defendant(s):
Anna Barseghian Pro Se
Plaintiff(s):
Nancy J Zamora, Chapter 7 Trustee Represented By
Wesley H Avery
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
Law Office of Wesley H. Avery, APC
11:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
#19.00 Debtor's Disclosure Statement Describing Chapter 11 Plan of Reorganization
fr. 6/24/20
Docket 81
Tentative Ruling:
Having reviewed the Disclosure Statement (ECF doc. 81), the Plan of Reorganization (ECF doc. 80), and the Order Granting Motion to Value Collateral (ECF doc. 95), the Court finds that the proposed disclosure statement contains adequate information to solicit acceptance or rejection of the proposed plan of reorganization.
The Court will set a confirmation briefing schedule at the status conference.
Disclosure is APPROVED.
Debtor(s):
Party Information
Maria Estela San Vicente Represented By Thomas B Ure
11:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
#20.00 Scheduling and Case Management Conference and Filing of Monthly Reports
fr. 11/6/19; 6/24/20
Docket 31
Tentative Ruling:
Debtor should submit order on disclosure ASAP.
Disclosure and Plan package with ballots are to be mailed by November 11, 2020 Objections and ballots are due by December 2
Ballot talley and response to any objections due by December 9 Confirmation hearing is December 16 at 11:00 am by zoomgov.com
APPEARANCE REQUIRED.
Party Information
Debtor(s):
Maria Estela San Vicente Represented By Thomas B Ure
11:00 AM
1:19-12735
Reynaldo Rene Vizcarra
Chapter 7
Adv#: 1:20-01024 Infinity Capital Funding, LLC v. Vizcarra
#21.00 Status Conference Re: Complaint to Determine Dischargeability of a Debt under 11 U.S.C. Sec. 523(a)(2) and 523(a)(6)
fr. 4/15/20; 7/22/20
Docket 1
*** VACATED *** REASON: Stip. cont. to 1/6/21 @ 11am (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Reynaldo Rene Vizcarra Represented By David R Hagen
Defendant(s):
Reynaldo Rene Vizcarra Pro Se
Plaintiff(s):
Infinity Capital Funding, LLC Represented By Diane C Stanfield
Trustee(s):
Diane C Weil (TR) Pro Se
11:00 AM
1:20-11148
Fayyaz Aly Dammanwalla
Chapter 7
Adv#: 1:20-01075 ZAMORA v. MISSION BANK
#22.00 Status Conference Re: Complaint for
Avoidance of Unauthorized PostPetition Transfer [11 USC Sec. 549(a)];
Recovery of Avoided Transfer [11 USC Sec. 550(a)];
Automatic Preservation of Avoided Transfer [11 USC Sec. 551]; and
Turnover of Estate's Property [11 USC Sec. 542]
Docket 1
*** VACATED *** REASON: Per order #9. lf Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Fayyaz Aly Dammanwalla Represented By
Raj T Wadhwani
Defendant(s):
MISSION BANK Pro Se
Joint Debtor(s):
Meena Fayyaz Dammanwalla Represented By
Raj T Wadhwani
Plaintiff(s):
NANCY J ZAMORA Represented By Toan B Chung
Trustee(s):
Nancy J Zamora (TR) Represented By
11:00 AM
CONT...
Fayyaz Aly Dammanwalla
Toan B Chung
Chapter 7
11:00 AM
1:20-11148
Fayyaz Aly Dammanwalla
Chapter 7
Adv#: 1:20-01076 ZAMORA v. BUDWANI
#23.00 Status Conference Re: Complaint for
Avoidance of Unauthorized PostPetition Transfer;
Avoidance of Insider Preferences [11 USC Sec. 547];
Turnover of Estate's Property [11 USC Sec. 542];
Recovery of Avoided Transfers [11 USC Sec. 550(a)]; and
Automatic Preservation of Avoided Transferes [11 USC Sec. 551]
Docket 1
*** VACATED *** REASON: Ntc. of dismissal filed- case settled 10/7/20 (eg)
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Fayyaz Aly Dammanwalla Represented By
Raj T Wadhwani
Defendant(s):
NADIA BUDWANI Pro Se
Joint Debtor(s):
Meena Fayyaz Dammanwalla Represented By
Raj T Wadhwani
Plaintiff(s):
NANCY J ZAMORA Represented By Toan B Chung
11:00 AM
CONT...
Trustee(s):
Fayyaz Aly Dammanwalla
Chapter 7
Nancy J Zamora (TR) Represented By Toan B Chung
1:00 PM
1:19-13002
Stephen E. Pearcy
Chapter 13
#24.00 Motion For Sanctions as against debtor and his counsel
jointly and severally, pursuant to rule 9011 of The Federal Rule of Bankruptcy Procedure and Local Bankruptcy Rule 9011-3
fr. 9/22/20
Docket 142
Tentative Ruling:
Background:
On February 1, 2012, Stephen Pearcy ("Debtor") and Melissa Pearcy filed a dissolution of marriage in the Los Angeles Superior Court ("Family Law Action"). On June 25, 2019, the Debtor was found guilty of numerous counts of contempt for non- payment of temporary spousal support to Ms. Pearcy. Subsequently, Ms. Pearcy filed an order to show cause and affidavit of contempt as against the Debtor, as a result of the Debtor failing to make additional spousal support. In order to delay the Family Law Action and stop the possibility of being placed in jail the Debtor filed this bankruptcy case under chapter 13 of the Bankruptcy Code on December 3, 2019.
On February 11, 2020, Ms. Pearcy and her counsel, Melissa Buchman, filed an objection to the Debtor’s proposed plan and argued that there were several critical omissions and errors made in the Debtor’s schedules. At the continued confirmation hearing on August 25, 2020, the Court dismissed the case for being over the Ch. 13 debt limit. The Court found that the Debtor purposefully understated certain liabilities in order to manipulate the schedules so that he could file under Ch. 13 of the Bankruptcy Code and placed a 180-day bar on the Debtor from refiling. The Court also found that the purpose for filing this bankruptcy case was to thwart the Family Law Action. The Court maintained jurisdiction to decided motions for sanctions. On August 28, 2020, the Court entered the order dismissing the case.
On August 26, 2020, Ms. Pearcy and Ms. Buchman filed this motion for sanctions under Federal Rule of Bankruptcy Procedure 9011(c) against the Debtor and the Debtor’s counsel, Michael Chekian, for $29,269.34. Debtor opposed the motion. The Court conducted a hearing on September 22, 2020 and continued the hearing to October
1:00 PM
CONT...
Stephen E. Pearcy
Chapter 13
28, 2020, in order to allow parties to file supplemental memoranda addressing the issue of mootness. Both parties timely filed these supplemental memoranda.
Legal Standard:
A bankruptcy court may award attorneys' fees and costs as a sanction under authority of Bankruptcy Rule 9011, which is identical to Federal Rule of Civil Procedure 11. DeVille v. Cardinale (In re Deville), 280 B.R. 483, 494 (9th Cir. BAP 2002). While a bankruptcy court can award fees and costs, Rule 9011 is "an extraordinary remedy, one to be exercised with extreme caution." Operating Engineers Pension Trust v. A-C Co., 859 F.2d 1336, 1345 (9th Cir. 1988). An award of sanctions for a violation of Rule 9011 is "an exceptionally serious matter reserved for those rare situations in which a claim or defense is asserted without any evidentiary support or legal basis, or for improper purposes, such as to harass or delay an opponent, or cause undue expense." Board of Trustees v. Quinones (In re Quinones), 543 B.R. 638, 646 (Bankr.
N.D. Cal. 2015). The purpose of Rule 9011 is designed to encourage counsel to avoid groundless filing or pleadings filed for improper purposes, primarily through the imposition of sanctions. Rule 9011 (c) provides that reasonable attorneys' fees may be awarded as a sanction only upon "motion":
A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.
Fed. R. Bankr. P. 9011 (c)(2)
A motion for sanctions is further described, in relevant part, in Rule 9011 (c)(1)
(A):
A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 7004. The motion for sanctions may not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately
1:00 PM
CONT...
Stephen E. Pearcy
Chapter 13
corrected, except that this limitation shall not apply if the conduct alleged is the filing of a petition in violation of subdivision (b). . . .
Fed. R. Bankr. P. 9011 (c)(1)(A).
FRBP 9011(c)(1) requires a 21 day "safe harbor" period before a motion for sanctions can be filed with the court. "Parties who ask for sanctions under this rule are not permitted to circumvent the safe harbor by waiting until it is too late to withdraw or correct the offending matter." Barber v. Miller, 146 F.3d 707, 710-11 (9th Cir. 1998). A party seeking sanctions cannot deprive the party that sanctions are being sought from the opportunity to escape sanctions by withdrawal or correction. Polo Bldg. Grp., Inc. v. Rakita (In re Shubov), 253 B.R. 540, 545 (B.A.P. 9th Cir. 2000).
The imposition of [Rule 9011] sanctions…requires only a showing of objectively unreasonable conduct. Miller v. Cardinale (In re DeVille), 361 F.3d 539, 549 (9th Cir. 2004) (quoting Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 616 (3d Cir. 1991). "[A] finding of bad faith is not required. Davis v. Alexander (In re High Speed Music, Inc.), 2007 Bankr. LEXIS 4545 (Bankr. C.D. Cal. 2007). FRBP 9011 allows for bankruptcy courts to impose sanctions in three situations, 1) where papers are submitted demonstrate factual frivolity, 2) legal frivolity, or 3) where papers were submitted for an improper purpose. Business Guides, Inc. v. Chrimatic Communications Enterprises, Inc., 892 F.2d 802, 808 (9th Circ. 1989). Moreover, "[i]n determining whether sanctions are warranted… [the court] must consider both frivolousness and improper purpose on a sliding scale, where the more compelling the showing as to one element, the less decisive need be the showing as to the other." In re Silberkraus, 336 F.3d 864, 870 (9th Cir. 2003).
Analysis:
Ms. Pearcy and Ms. Buchman notified the Debtor and Debtor’s counsel with two separate informal notices regarding two separate issues which form the basis for Ms. Pearcy’s an Ms. Buchman’s motion for sanctions. The first notification was sent on May 15, 2020, by way of a letter and the actions believed to warrant sanctions were objections to proofs of claims. Docket No. 156, Ex. A. The second notification was emailed to Chekian on July 17, 2020 and asked that the entire bankruptcy case to be dismissed.
1:00 PM
CONT...
Stephen E. Pearcy
Chapter 13
Docket No. 142, Ex. B. Ms. Buchman served Debtor with the motion for sanctions on August 3, 2020 (reply brief declaration) satisfying the 21-day safe harbor period prior to the filing of the motion for sanctions. Docket No. 142. The motion alleges three bases for sanctions: 1) improper objections to claims, 2) the motion to approve the sale of real property had no legal basis, and 3) the Debtor’s bankruptcy case was filed in bad faith. The Debtor and Debtor’s counsel withdrew the objections to the proofs of claims prior to the Ms. Pearcy and Ms. Buchman filing this motion for sanctions. Docket No. 126 &
127. The Court rendered its’ ruling dismissing the bankruptcy case the day before the motion for sanctions was filed and an order dismissing the bankruptcy case was entered two days after the motion for sanctions was filed.
Mootness:
Article III limits federal court’s jurisdiction to "cases or controversies." See Public Utils. Comm'n v. Federal Energy Regulatory Comm'n, 100 F.3d 1451, 1458 (9th Cir. 1996) ("The jurisdiction of federal courts depends on the existence of a 'case or controversy' under Article III of the Constitution.") A party must maintain a live controversy through all stages of the litigation process. See Di Giorgio v. Lee (In re Di Giorgio), 134 F.3d 971, 974 (9th Cir. 1998) ("To qualify for adjudication in federal court, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.") If an action or a claim loses its character as a live controversy, then the action or claim becomes "moot," and the federal courts lack jurisdiction to resolve the underlying dispute. See Ruiz v. City of Santa Maria, 160 F.3d 543, 549 (9th Cir. 1998).
Ms. Pearcy and Ms. Buchman rely heavily on Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) for the proposition that the matter before it is not moot, and the Court must adjudicate the Rule 9011 motion. The Supreme Court found that courts may enforce Fed. R. Civ. P. 11 even after a plaintiff has filed a notice of dismissal under Fed.
R. Civ. P. 41(a)(1). As a violation of Rule 11 is complete when a paper is filed, a voluntary dismissal does not expunge a Rule 11 violation. In order to comply with Rule 11's requirement that a court shall impose sanctions if a pleading, motion, or other paper is signed in violation of Rule 11, a court must have the authority to consider whether there has been a violation of the signing requirement regardless of the dismissal of an underlying action.
The Supreme Court’s ruling in Cooter has since been rolled back. The twenty-
1:00 PM
CONT...
Stephen E. Pearcy
Chapter 13
one-day "safe harbor" period was added to Rule 11 in 1993 and to Rule 9011 in 1997. "The effect of this change was to reverse the result in cases such as Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990)." In re Jazz Photo Corp., 312 B.R. 524, fn 11 (Bankr. D.N.J. 2004) ; see also De La Fuente v. DCI Telecomms., Inc., 259 F.Supp. 2d 250 (S.D.N.Y 2003) ("The rule established by Cooter & Gell was partially superseded by the amendment of Rule 11 in 1993…a court can no longer issue Rule 11 sanctions in a case where, as in Cooter & Gell, a complaint was voluntarily dismissed within 21 days of a request for Rule 11 sanctions."). "The purpose of the safe harbor provision is "to give the offending party the opportunity [within the safe harbor period] to withdraw the offending pleading and thereby escape sanctions." Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998).
The Debtor withdrew the objections to claims within the 21-day safe harbor period, in doing so preventing the Court from adjudicating whether sanctions are appropriate as to that issue. Now if the Debtor had withdawn this case and the motion to sell then these matters would be moot; however,he did not voluntary withdraw the case and motion to sell prior to the Court dismissing the case on separate grounds. The Court took a further look at In re Gonzalez, 2019 Bankr. LEXIS 3269 *7 (Bankr. C.D. Cal. 2019) and is convinced by Ms. Pearcy’s and Ms. Buchman’s argument between monetary and non-monetary sanctions awards; thus, the Court is not persuaded this case is helpful here. The question here is whether an involuntary dismissal of the Debtor’s case by the Court is different from a voluntary dismissal even though the results of both are effectively the same.
The central purpose of Fed. R. Civ. P. 11 is to deter baseless filings in a federal court. If an attorney fails to act in accordance with the behavior prescribed in Rule 11, then the attorney opens themselves up to sanctions. "The purpose of the safe harbor, however, is to give the offending party the opportunity, within 21 days after service of the motion for sanctions, to withdraw the offending pleading and thereby escape sanctions." Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998). "Nothing in the Rule or the history of the 1993 amendment prevents the district court from taking this action, [sanctioning a party], after judgment." Id. at 711.
According to Ms. Buchman’s declaration in the reply, the motion was officially served on Debtor on August 3, 2020. The Court dismissed the Debtor’s case on August 25, 2020, and an order was signed memorializing the Court’s ruling on August 28, 2020. The last day of the 21-day safe harbor was August 24, 2020, meaning the first day
1:00 PM
CONT...
Stephen E. Pearcy
Chapter 13
in Ms. Pearcy and Ms. Buchman could have filed was August 25, 2020. By the time the Court had dismissed the Debtor’s case, the 21-day safe harbor had ran and the motion for sanctions was in the process of being filed with the Court. If the Debtor either voluntarily dismissed the case and motion to sell prior to the termination if the 21-day safe harbor or if the Court’s involuntary dismissal of the case cut short this safe harbor, then the Rule 9011 motion for sanctions would have been mooted. Since the 21-day safe harbor passed without the voluntary dismissal of the case and withdrawing of the motion to sell, the Court concludes that the involuntary dismissal of the Debtor’s case does not prevent it from addressing the merits of Ms. Pearcy’s an Ms. Buchman’s arguments. Accordingly, the Court will address the motion to sell and the bad faith bankruptcy case filing in turn.
Under 11 U.S. Code § 363(f) "[t]he trustee may sell property under subsection
(b) or (c) of this section free and clear of any interest in such property of an entity other than the estate, only if—(1)applicable nonbankruptcy law permits sale of such property free and clear of such interest…". Here the Debtor filed a motion to sell property rights pursuant to this section of the Code on July 31, 2020. Docket No. 122. The Debtor refers to this section in his brief and omits material issue present, whether state law permits such a sale.
California Family Code § 2040(a)(2)(A) provides that a temporary restraining order " [r]estraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of, any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court…". Under California law, all property acquired during marriage is community property. Cal Fam. Code §760. Any artistic work created during the marriage constitutes community property. See Lorraine v. Lorraine, 8 Cal. App. 2d 687, 701 (1935). The property rights the Debtor was seeking to sell in this motion clearly would fall under community property and would require written consent or an order from the State Court. Debtor’s counsel was aware of the automatic restraining order and still omitted this information in his initial brief. It was not until after Ms. Pearcy and Ms. Buchman filed opposition raising this issue when Debtor’s Counsel addressed this issue in his reply brief. While Debtor’s Counsel raised an interesting point, that Debtor could file a motion to approve the sale in this Court and a motion in the State Court simultaneously, the fact that Debtor’s Counsel omitted this critical piece of information in his initial moving papers is concerning. The Court does not believe that the motion itself is frivolous because the Court could have tailored the relief sought being contingent on a ruling from the state court. The motion was an attempt to liquidate assets and get
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CONT...
Stephen E. Pearcy
Chapter 13
this matter settled. It had the potential to break a lengthy logjam after years of litigation. The court should have been apprised initially of the competing Family Court order. .
Ms. Pearcy’s an Ms. Buchman’s next argument for why sanctions are appropriate is because they believe the Debtor’s Chapter 13 filing was made in bad faith. Pursuant to 11 U.S. Code § 109(e), "[o]nly an individual… that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $419,257 and noncontingent, liquidated, secured debts of lest than $1,257,850… may be a debtor under chapter 13 of this title." On August 25, 2020 the Court dismissed the Debtor’s case after it found that the bankruptcy case was filed to "thwart the family law actions" and "significantly manipulated his schedules… so that he would come in under the debt limit." The Court dismissed the case and placed a 180-day bar on refiling.
When a bankruptcy court determines that Rule 9011(b) has been violated, it "may," but is not required to, impose a sanction. Rule 9011 provides that "sanctions imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated," and that such sanctions may include "some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation." Fed. R. Bankr. P. 9011(c)(2). The rule does not list other factors that a court should consider in deciding whether to impose a sanction and what sanction to impose. The Advisory Committee Note to Civil Rule
11 suggests the following factors for consideration:
—whether the improper conduct was willful or negligent;
—whether the improper conduct was part of a pattern of activity or an isolated
event;
—whether the improper conduct infected the entire pleading or only one particular count or defense;
—whether the person has engaged in similar conduct in other litigation;
—whether the improper conduct was intended to injure;
—the effect the improper conduct had on the litigation process in time or
expense;
—whether the responsible person is trained in the law;
—the amount, given the financial resources of the responsible person, that is needed to deter that person from repetition in the same case; and
—the amount needed to deter similar activity by other litigants.
A court imposing sanctions under Rule 9011 "has wide discretion in determining what
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Stephen E. Pearcy
Chapter 13
sanction" should properly be imposed. Smyth v. City of Oakland (In re Brooks- Hamilton), 329 B.R. 270, 283 (citing Kowalski-Schmidt v. Forsch (In re Giordano), 212
B.R. 617, 622 (B.A.P. 9th Cir. 1997)) aff'd in part, rev'd in part on other grounds, 202 F.3d 277 (9th Cir. 1999)
As to the motion to sell property, Debtor’s counsel was aware of the ATRO and either negligently or willfully omitted this information in his initial pleadings. As an attorney, Debtor’s counsel has a duty of candor to the Court. Had Debtor’s counsel simply mentioned that there was an issue with state law in his brief the Court would deny Ms. Pearcy’s and Ms. Buchman’s motion for sanctions as to this point even if his arguments were ultimately rejected. By not referencing a critical fact, the Court finds that this action violated FRBP 9011. The question this raises is what is sufficient to deter repetition of this conduct? Given the long and contested history of this case, the Court is convinced Ms. Pearcy and Ms. Buchman would likely have filed an opposition to this motion to sell anyway, so full attorney’s fees for filing an opposition is not appropriate. The Court, in its’ discretion, will deny Debtor’s counsel all fees he incurred in drafting this motion. The Debtor will not be subject to sanctions as to this point.
The issue of bad faith filing is a closer call. In bankruptcy practice it is not uncommon for debtors to file in order to prevent a perceived greater harm – in this instance it was to avoid being placed in jail. While the Debtor clearly attempted to thwart the family court action and prevent going to jail, that by itself does not necessarily warrant sanctions under FRBP 9011. Further, debtors often come in over the Chapter 13 debt limits and try to get under the debt limits imposed by the Bankruptcy Code. What is different here is the Debtor knew what the amount of his liabilities were prior to filing and manipulated these numbers on his schedule. The factors above are pretty split, the Debtor willfully listed the values of his debts and assets wrong and this appears throughout the case; however, the intent of the Debtor appears to be to save his own skin rather than to injure Ms. Pearcy and Ms. Buchman – not to say they have not been injured by the Debtor filing for bankruptcy. Additionally, this Debtor’s actions have only been problematic as to this one bankruptcy case. Had this behavior continued over the course of several cases the Court would be more inclined that the Debtor’s actions warranted greater sanctions.
The case was an attempt to see if the litigation could be ended and a resolution reached. This is often the case where a bankruptcy filing finally interrupts years of family court litigation. Debtor’s counsel made a good faith attempt to get this into a free
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Stephen E. Pearcy
Chapter 13
settlement conference with an effort to resolve all issues. The overall plan was in good faith, even if the court disagrees with certain decisions.
The ultimate purpose for sanctions under FRBP 9011 is to deter repetition or similar activity rather than to compensate others. Here the Court denied the Debtor’s motion to continue the confirmation hearing, denied a request for time to consider converting this case to a Chapter 11, chose to dismiss the case rather than convert it, and placed a 180-day bar on the Debtor from filing again. These actions are affectively sanctions designed to deter the Debtor from repeating his actions. What Ms. Pearcy and Ms. Buchman seek from their motion for sanctions is more based on compensating them, the party that has been wronged by the Debtor’s actions, rather than seeking to deter conduct. The Court will not compensate Ms. Pearcy and Ms. Buchman fully because they chose to vigorously litigate this case. With that said, the Court agrees that something further is required to ensure the Debtor does not continue this action any further. The Debtor had filed a previous bankruptcy case and was aware that he needed to be truthful on his statements and schedules and chose not to be. The Court will grant only those fees which are directly connected to opposing the Debtor’s plan. These include tasks: 1) drafting an objection to confirmation of proposed plan (5.2 hours), 2) drafting objection to confirmation of amended proposed plan (4.6 hours), 3) preparation of supplemental objection to confirmation of amended plan (2.5 hours), and the Court will allow 1 hour for appearances at confirmation hearings. Billed at Ms. Buchman’s rate of $395, this totals $5,253.50. This award will be against the Debtor only. Debtor’s counsel appears to have been in a difficult situation. There appears to have been some disconnect between the Debtor’s bankruptcy case and the family law case. Additionally, it is not clear how forthcoming the Debtor was with Debtor’s counsel about the amount of his debts. Accordingly, the Court is will not make Debtor’s counsel liable for the sanctions imposed against the Debtor.
This ruling does not preclude movants from seeking damages arising from this case in a different forum. Additionally, if the Debtor’s inappropriate behavior continues in this Court sometime in the future, then the Court may choose to enforce stiffer sanctions.
Conclusion:
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Stephen E. Pearcy
Chapter 13
The Court will grant sanctions as follows:
Any fees incurred by Debtor’s counsel in drafting the motion to sell property are forfeited.
The Court imposes sanctions against the Debtor in the amount of
$5,253.50 payable to movants.
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:19-13002
Stephen E. Pearcy
Chapter 13
#25.00 Application of Attorney For Debtor for Allowance of Fees and Expenses Following Dismissal or Conversion of Chapter 13 Case
Period: 6/26/2020 to 9/11/2020, Fee: $6,450.00,
Expenses: $225.00.
Docket 155
Tentative Ruling:
On December 3, 2019, Stephen Pearcy ("Debtor") filed a Chapter 13 petition. The Debtor retained Michael Chekian as counsel for this bankruptcy case and they entered into a Rights and Responsibilities Agreement. Docket No. 15. On May 20, 2020, Mr. Chekian submitted an application for compensation for $6,525.00 in fees and
$145.65 for expenses. Mellisa Pearcy and Melissa Buchman filed an objection and the application was set for hearing for July 21, 2020. The Court granted Mr. Chekian’s application and entered an order to that effect on July 22, 2020. Docket No. 120.
At the continued confirmation hearing on August 25, 2020, the Court dismissed the case for being over the Ch. 13 debt limit. The Court found that the Debtor purposefully understated certain liabilities in order to manipulate the schedules so that he could file under Ch. 13 of the Bankruptcy Code and placed a 180-day bar on the Debtor from refiling. On August 28, 2020, the Court entered the order dismissing the case.
On September 11, 2020, Mr. Chekian filed another application seeking attorney’s fees of $6,450.00 ($3,000 of which are basic services according to the RARA and additional $3,450.00 for additional extraordinary services and costs of $225.00 for the period of June 26, 2020 to September 11, 2020. The total incurred fees and costs by Debtor after credit for the $2,000.00 plus $310 filing fee paid up front is $17,673.25. Mr. Chekian is only seeking $13,345.65 ($6,670 in the previous application plus
$6,675.00). The Chapter 13 Trustee filed comments stating that it had no opposition to Mr. Chekian’s fees. Ms. Pearcy and Ms. Buchman filled opposition on September 30, 2020.
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Stephen E. Pearcy
Chapter 13
Standard:
The compensation for services and reimbursement of expenses of professionals are determined under the standard provided in section 330. Only those professionals whose employment is authorized by the court pursuant to section 327 or 1103, or who represent chapter 12 or chapter 13 debtors, are entitled to compensation under section
330. 11 U.S.C.S. § 330(a)(1)(A) authorizes allowance of reasonable compensation for actual, necessary services, and 11 U.S.C.S. § 330(a)(3)(A)-(D) includes among relevant factors the time spent on services, the rates charged therefor, whether the services were necessary at the time rendered, and whether they were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the issue at hand. Section 330(a)(4) provides:
Except as provided in subparagraph (B), the court shall not allow compensation for—
unnecessary duplication of services; or (ii)services that were not—
reasonably likely to benefit the debtor’s estate; or
necessary to the administration of the case
Analysis:
To begin Mr. Chekian argues that Ms. Buchman and Ms. Pearcy lack standing to object to an attorney fee application because they are not entitled to any distributions held by the Trustee.
Standing to object to a fee application in the bankruptcy court has both a constitutional and prudential dimension. Constitutional standing requires that a party:
must demonstrate that "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
the injury in fairly traceable to the challenged conduct of the [other party]; and (3) that it be likely, as opposed to merely speculative, that the injury will be
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Stephen E. Pearcy
redressed by a favorable decision.
Chapter 13
City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (quoting Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-181, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)). While the Code does not specify which parties may object to an estate professional's application for approval of compensation and expenses, under § 330(a) and Rule 2002(a)(6), among others, "parties in interest" are entitled to receive notice of the filing of, and the hearing concerning, such application. Presumably, the same parties in interest entitled to notice of the filing and hearing on a fee application would, in response to the notice, have some right to be heard. A party holding a "pecuniary interest" in property of the estate is a party in interest. Hasso v. Mozsgai (In re La Sierra Fin. Servs.), 290 B.R. 718, 728 (9th Cir. BAP 2002).
The issue of whether Ms. Buchman and Ms. Pearcy having standing is an interesting one. Obviously, Ms. Buchman and Ms. Pearcy are creditors and had a pecuniary interest in the Debtor’s bankruptcy estate when the case was still ongoing; however, when the case was dismissed the bankruptcy estate revests the property of the estate back to the Debtor. See 11 U.S. Code § 349. Ms. Buchman and Ms. Pearcy are not administrative claimants as referenced to in LBR 3015-1(q)(6) that would be entitled to some distribution, so there is a real question whether they still have a pecuniary interest in the estate. With Ms. Buchman’s and Ms. Pearcy’s motion for sanctions still outstanding and because of the overlap between that motion and this attorney fee application the Court believes they still have a pecuniary interest in the estate. Accordingly, Ms. Buchman and Ms. Pearcy have standing to object to Mr. Chekian’s fee application.
The next argument advanced by Mr. Chekain is that the objection was not timely filed; thus, the Court should deem it as waived pursuant to LBR 9013-1(h). LBR 9013-1(h) provides:
Except as set forth in LBR 7056-1(g) with regard to motions for summary judgment, if a party does not timely file and serve documents, the court may deem this to be consent to the granting or denial of the motion, as the case may be.
The language for waiver is clearly discretionary. There were many different motions pending and being discussed at the time this application was filed, and the objection o the fees was noted at one of the hearings. In the interest of justice and the
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Stephen E. Pearcy
Chapter 13
parties involved the Court elects not to waive Ms. Buchman’s and Ms. Pearcy’s objection for not being timely filed.
Here Ms. Pearcy and Ms. Buchman argue that the fees being sought by Mr. Chekian are not necessary for the administration of the case and to the benefit of the estate because the Chapter 13 case was filed for an improper purpose – to thwart the dissolution case. Ms. Pearcy and Ms. Buchman argue that since the Debtor was over the Chapter 13 debt limit the services provided by Mr. Chekian would not be necessary and could not benefit the estate. The Court is unpersuaded by this argument.
It is not uncommon for a chapter 13 debtor to grapple with debt limit issues, but when it is clear a debtor is over the debt limits the Court will convert or dismiss the case. Here the Court allowed the case to progress until it became clear that the Debtor was over the debt limits and the Court dismissed the case. It appeared for a while that a global resolution might be possible with the assistance of the bankruptcy mediation program. While the Debtor should have been aware of the amount of his liabilities, as evidenced by statements made in 2018 in the dissolution case, its not clear as to what Mr. Chekian knew. Unlike Ms. Buchman, Mr. Chekian was not involved in the dissolution matter. The papers submitted to this Court suggest that there may have been some disconnect between the Debtor’s bankruptcy case and the family law case. On top of this disconnect, this case is a bit more difficult than the typical chapter 13 case – there are multiple sources of revenue and serious liability issues, with lots of disputes over the nature and size of the liabilities. While it is certain that Mr. Chekian knew that the Debtor was over the debt limits at the tail end of the Debtor’s bankruptcy case, it is not so clear that he was aware of the debt limit issue at the outset of this case even though it is clear the Debtor was aware of this issue. Outside of the debt limit issue, the Debtor was making thousands in plan payments and was working towards confirming a plan. The Court is not convinced there was a bad faith effort on the part of Mr. Chekian and that he was only trying to advocate on behalf of his client the best he could. He was able to at least initiate some settlement talks and attempted to obtain a global settlement of this matter that had raged on for years.
The next issue raised by Ms. Pearcy and Ms. Buchman is that Mr. Chekian should not be awarded any fees directly related to the filing of the motion to sell. The Court addressed this issue in its’ tentative ruling for motion for sanctions. For the reasons stated in that tentative the Court will not award fees incurred in drafting that motion. It should have fronted the issue of the Superior Court order controlling the asset.
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Stephen E. Pearcy
Chapter 13
Accordingly, the Court reduces Mr. Chekian’s fees by $937.50.
The final issue raised by Ms. Pearcy and Ms. Buchman is that Mr. Chekian should not be awarded any fees relating to the mediation with Judge Jury because Ms. Pearcy and Ms. Buchman were not interested in mediating. Even though Ms. Pearcy and Ms. Buchman did not want to mediate because they viewed the mediation as being pointless, the Court does not fault Mr. Chekian for wanting to work out a settlement agreement but encourages parties to negotiate and see whether a deal is possible. The Court sees no basis for denying fees incurred relating to the mediation with Judge Jury. It would be against public policy to penalize an attorney for any settlement attempt that did not work out.
The only remaining concern the Court has is with regard to fees and costs incurred in defending his previous fee application. In Baker Botts L.L.O. v. ASARCO LLC, 576 U.S. 121 (2015), the Supreme Court held that Section 330(a)(1) does not allow professionals to be paid for fees incurred by defending their fee application. The Court went on to explain that when professionals defend their applications for compensation, they represent their own interests rather than the bankruptcy estate’s interests. Accordingly, the Court reduces Mr. Chekian’s fees and costs by $401.25. All other fees appear to be reasonable and necessary.
The Court will reduce the fees and costs awarded to Mr. Chekian by $1,338.75 and grants a total of $5,336.25 in fees and costs to Mr. Chekian.
Party Information
Debtor(s):
Stephen E. Pearcy Represented By Michael F Chekian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
1:00 PM
1:20-10069
Shawn Sharon Melamed
Chapter 7
Adv#: 1:20-01046 Mazakoda, Inc. v. Melamed et al
#26.00 Motion for Judgment on the Pleadings under Rule 12(c)
fr. 10/14/20
Docket 15
Tentative Ruling:
In 2007, Shawn Sharon Melamed and Jenous Tootian ("Defendants") together with Edmond Melamed, Rozita Melamed, and J&J Oil, Inc., borrowed $500,000 from Mazakoda, Inc. ("Plaintiff"). This loan was secured by Edmond and Rozita’s residential property. In May 2014, the Plaintiff sent the Defendants and their co-obligors a letter demanding repayment of the loan. After Debtors and their obligators failed to do so, the Plaintiff commenced a lawsuit in State Court (Mazakoda, Inc. v. J&J Oil, Inc. et al., Los Angeles Superior Court Case No. BC554926). On March 27, 2018, the state court entered judgment in favor of the Plaintiff, decreeing that it was entitled to repayment of the loan with interest, as well as attorneys’ fees and costs, and that the Richland Property would be sold to satisfy the debt. A writ of sale issued upon the judgment and as a result of the issuance of the writ of sale Edmond and Rozita filed for a Chapter 11 petition (2:18-bk-22426-NB).
On January 10, 2020, the Defendants filed a Chapter 7 petition. On April 20, 2020, the Plaintiff initiated an adversary proceeding against the Defendants. The Complaint seeks to deny the Defendants a discharge pursuant to 11 U.S.C. § 727. Specifically, the Complaint alleges that the Defendants transferred, removed, or concealed property, that the defendants concealed, falsified, or failed to preserve records, the defendants fraudulently made states under oath, and the Defendants fail to explain any loss of assets to meet liabilities.
On September 10, 2020, the Defendants filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The Plaintiff filed an opposition on October 16, 2020.
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Shawn Sharon Melamed
Chapter 7
F.R.Civ.P.12(c):
Federal Rule of Civil Procedure 12(c) is made applicable in adversary proceedings through Federal Rule of Bankruptcy Procedure 7012. This rule provides that a party may move for judgment on the pleadings "[a]fter the pleadings are closed." Fed. R. Civ. P. 12(c). Typically, "the pleadings are closed for the purposes of Rule 12(c) once a complaint and answer have been filed." Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005). When a motion for judgment on the pleadings is filed before the filing of an answer, the motion is premature and should be denied. Id.
A Rule 12(c) motion is "'functionally identical'" to a Rule 12(b)(6) motion to dismiss for failure to state a claim, and therefore the same legal standard applies. Cafasso v. General Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011). That is, a court considers "whether the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief." Id. at 1054; see also Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009) (stating that, "[t]o survive a Rule 12(c) motion, the 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 that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)."A motion for judgment on the pleadings should be granted where it appears the moving party is entitled to judgment as a matter of law." Geraci v. Homestreet Bank, 347 F.3d 749, 751 (9th Cir. 2003).
"[T]he court must construe the complaint in the light most favorable to the plaintiff, taking all her allegations as true and drawing all reasonable inferences from the complaint in her favor." Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). "When considering a motion for judgment on the pleadings, this court may consider facts that 'are contained in materials of which the court may take judicial notice.'" Heliotrope General, Inc. v. Ford Motor Co., 189 F.3d 971, 981, n. 18 (9th Cir. 1999). A motion for judgment on the pleadings may be granted if, after assessing the complaint and matters for which judicial notice is proper, it appears "beyond doubt that the [non-moving party] cannot prove any facts that would support his claim for relief." Morgan v. County of Yolo, 436 F.Supp.2d 1152, 1155 (E.D. Cal. 2006), aff'd,277 Fed.Appx. 734 (9th Cir.
2008).
Analysis:
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CONT...
Shawn Sharon Melamed
Chapter 7
Here the Plaintiff’s complaint is brought pursuant to Section 727. To effectuate the fresh start policy, a claim for denial of a discharge under § 727 is construed liberally in favor of the discharge and strictly against a person objecting to the discharge. First Beverly Bank v. Adeeb (In re Adeeb), 787 F.2d 1339, 1342 (9th Cir. 1986). Under 11
U.S.C.S. § 727(a), a court shall enter a discharge in a Chapter 7 bankruptcy case unless one of twelve disqualifying conditions specified in § 727(a) applies. The Plaintiff brings four claims pursuant to subsections (a)(2),(a)(3),(a)(4)(A), and (a)(5). The Defendants believe that the Plaintiff’s complaint is based solely on speculation and that the Plaintiff cannot support its’ claims with evidence. The Court will analyze each claim in turn.
As to the first claim, a party seeking denial of discharge under § 727(a)(2) must prove two things: "(1) a disposition of property, such as transfer or concealment, and (2) a subjective intent on the debtor's part to hinder, delay or defraud a creditor through the act [of] disposing of the property." Hughes v. Lawson (In re Lawson), 122 F.3d 1237, 1240 (9th Cir. 1997). Here the complaint alleges that the Defendants have been involved in a money shifting scheme in order to hinder or defraud creditors and have made it difficult to determine the true state of their finances. The complaint asserts that the Defendants and their family members purport to "pay" and "loan" one another money, but these transactions are not recorded, and they appear to be done in cash. There are numerous other allegations in the complaint such as the Defendants paid Edmond to work for his company and continued to pay him after his employment, the Defendants’ income perfectly matches their expenses with no net profit or loss and the Defendants receive a loan each month from a brother-in-law but list the debt as disputed (suggesting this is a disbursement of family money for which the defendants have an interest in rather than a loan).
The Defendants shrug off these allegations and assert that this type of behavior is common and is merely family generosity; however, this falls short of the required showing that the Plaintiff cannot prove any facts that would support a claim for relief. The facts alleged in the complaint at least suggest that there may be some concealment of property and an attempt to hinder or delay creditors from disposing of the property. The Plaintiff will ultimately need to prove these allegations by preponderance of the evidence at trial. The discovery process will ultimately reveal whether there is sufficient evidence for the Plaintiff to prevail but at this stage the complaint sufficiently pleads facts that could be used to support relief claimed under Section 727(a)(2).
As to the second claim, in order to state a prima facie case under section 727(a)
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Shawn Sharon Melamed
Chapter 7
a creditor objecting to discharge must show (1) that the debtor failed to maintain and preserve adequate records, and (2) that such failure makes it impossible to ascertain the debtor's financial condition and material business transactions." Lansdowne v. Cox (In re Cox), 410 F.3d 1294, 1296 (9th Cir. 1994) (quoting Meridian Bank v. Alten, 958 F.2d 968, 972 (3rd Cir. 1980). Again, the Plaintiff has set forth facts supporting a substantially plausible inference that the Defendants failed to keep records from which their financial condition may be ascertained. The Plaintiff alleges that the Defendants’ financial condition includes the sharing of money between and among Defendants and their relatives, and that these transfers are made in cash and without proper documentation. The Plaintiff also alleges that the Defendants do not keep proper records of their consulting business or of their purported loan from the brother-in-law, which are their sole declared sources of income. These allegations are sufficient to create a plausible inference that Defendants have unjustifiably failed to keep or preserve records from which their financial condition may be ascertained.
As to the third claim, section 727(a)(4)(A) denies a discharge to a debtor who "knowingly and fraudulently" makes a false oath or account in the course of the bankruptcy case. § 727(a)(4)(A). A false statement or an omission in the debtor's bankruptcy schedules or statement of financial affairs can constitute a false oath. See Searles v. Riley (In re Searles), 317 B.R. 368, 377 (9th Cir. BAP 2004); Roberts v. Erhard (In re Roberts), 331 B.R. 876, 882 (9th Cir. BAP 2005), aff'd, 241 Fed. Appx. 420, 2007 WL 2089041 (9th Cir.). "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." Fogal Legware of Switz., Inc. v. Wills (In re Wills), 243 B.R. 58, 63 (9th Cir. BAP 1999) (citing Aubrey v. Thomas (In re Aubrey), 111 B.R. 268, 274 (9th Cir. BAP 1990)). That said, a false statement or omission that has no impact on a bankruptcy case is not material and does not provide grounds for denial of a discharge under § 727(a)(4)(A). Id.
The complaint alleges that Defendants knowingly and fraudulently made a false oath on several occasions. The Plaintiff asserts that the Defendants’ misrepresent that they owe an $180,000 disputed debt to the brother-in-law, when in fact that money, if paid at all, was simply given to Defendants without any loan documentation, interest payments, or other hallmarks of a loan. Further, the brother-in-law’s monthly payments to the Defendants are not a loan as represented but are distributions of family money. Additionally, the Plaintiff alleges that the Defendants failed to disclose in their schedules
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CONT...
Shawn Sharon Melamed
Chapter 7
the true extent of their interest in money and property in the custody of brother-in-law, including, but not limited to, the source or sources of funds from which the brother-in- law makes the above payments to the Defendants. These allegations are more than sufficient to create a plausible inference that the Defendants made a false oath or account in their bankruptcy papers, subjecting them to denial of discharge under 11 U.S.C. § 727(a)(4)(A).
The final basis for denial of discharge alleged in the Fourth Claim for Relief is where the chapter 7 debtor fails "to explain satisfactorily, before determination of denial of discharge . . . any loss of assets or deficiency of assets to meet the debtor's liabilities." 11 U.S.C. § 727(a)(5). To establish a prima facie case under § 727(a)(5), the objector to discharge must demonstrate that:
[the] debtor at one time, not too remote from the bankruptcy petition date, owned identifiable assets;
on the date the bankruptcy petition was filed or order of relief granted, the debtor no longer owned the assets; and
the bankruptcy pleadings or statement of affairs do not reflect an adequate explanation for the disposition of the assets.
Retz v. Samson (In re Retz), 606 F.3d 1189, 1205 (9th Cir. 2010).
Here the Plaintiff has incorporated earlier paragraphs alleging that based on their receipt of purported loan proceeds and consulting fees from the brother-in-law and the apparent sharing of money through sham arrangements between the brother-in-law, the Defendants, and the Defendants’ relatives Edmond and Rozita, all in cash and without proper documentation, Debtors may have substantial assets which they have not disclosed and which should be available to creditors. They then allege that "the relationship between Payam Toutian and Debtors appears to be of such a nature that would entitle Debtors to potentially receive more than $8,0000 a month from Payan Toutian, and thereby meet their liabilities, yet receive only the bare minimum needed to equal their disclosed monthly expenses, resulting in Debtors having an apparent net income of 37 cents per month."
Elements for a prima facia § 727(a)(5) claim must still be alleged. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) ("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"). The last cause of action does not address at all the element that any property at one time was owned by the
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Shawn Sharon Melamed
Chapter 7
Defendants that is then not explained. The allegations raised in the complaint deal with a money shifting scheme in which the parties make payments and loans to each other only in cash, but they do not address any accumulation of assets or a specific asset that should be explained. While ongoing cash flow, income and liabilities suffice for the other causes of action, more specificity is needed for this one.
The Court will DENY the Defendants’ motion for judgment on the pleadings as to the first three causes of action. The motion is GRANTED as to the fourth cause of action. Leave to amend within 30 days is granted.
Party Information
Debtor(s):
Shawn Sharon Melamed Represented By Giovanni Orantes
Defendant(s):
Shawn Sharon Melamed Represented By
Andrew Edward Smyth
Jenous Tootian Represented By
Andrew Edward Smyth
Joint Debtor(s):
Jenous Tootian Represented By Giovanni Orantes
Plaintiff(s):
Mazakoda, Inc. Represented By Scott E Gizer
Trustee(s):
Amy L Goldman (TR) Represented By Scott E Gizer
8:00 AM
1:00-00000 Chapter
#0.01 This calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1605692219 Meeting ID: 160 569 2219
Docket 0
Tentative Ruling:
8:00 AM
CONT... Chapter
NONE LISTED -
2:00 PM
1:16-13077
David Saghian
Chapter 7
Adv#: 1:20-01087 Weil, Chapter 7 Trustee v. Shemuelian
#1.00 Emergency Motion for Issuance of Temporary Protective Order and Issuance of Right to Attach Order and Writs of Attachment
Docket 4
Tentative Ruling:
The application for a TRO will be granted based on the moving papers. The parties should be prepared to discuss dates for a further hearing.
Appearance via zoomgov.com required
Party Information
Debtor(s):
David Saghian Pro Se
Defendant(s):
Avraham Shemuelian Pro Se
Plaintiff(s):
Diane C Weil, Chapter 7 Trustee Represented By
Jessica L Bagdanov
Trustee(s):
Diane C Weil (TR) Represented By Michael G D'Alba Eric P Israel David Seror
Jessica L Bagdanov
8:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1606365899
Docket 0
8:00 AM
CONT... Chapter
Tentative Ruling:
NONE LISTED -
10:00 AM
1:19-13061
Madeleine De Bois
Chapter 13
#1.00 Motion for relief from stay
U.S. BANK NA
Docket 28
Tentative Ruling:
Petition Date: 12/09/2019 Plan Confirmation: 03/19/2020
Service: Proper. Opposition filed on 10/21/2020 Property: 4806 Piedmont Drive, Oak Park, CA 91377 Property Value: $ 621,000.00 (per debtor’s schedules) Amount Owed: $583,543.19 (per Movant’s declaration) Equity Cushion: 6%
Equity: $37,457
Post-Petition Delinquency: $15,295.05
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (option to enter into forbearance agreement, loan modification, or refinance agreement); 6 (Co-debtor stay); and 7 (waiver of the 4001(a)(3) stay). Movant alleges that causes exists for lifting the stay because the Debtor has failed to make postpetition payments. Movant asserts that the last payment came on February 25, 2020.
The Debtor opposes the motion and wishes to enter into an adequate protection order for delinquency by either repaying the delinquency through the Ch 13 plan, adding to the end of the loan, or repaying the delinquency. Debtor asserts she will resume payments in November .
There is some equity in the Property and Debtor has expressed interest in curing the delinquency. Are parties willing to discuss an APO?
Appearance Required.
Party Information
10:00 AM
CONT...
Debtor(s):
Madeleine De Bois
Chapter 13
Madeleine De Bois Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11128
Sawaed H. Sawaed
Chapter 13
#2.00 Motion for relief from stay ADEB SAWAED
Docket 39
Tentative Ruling:
Petition Date: 06/29/2020 Plan Not Confirmed Service: Proper.
Movant: Adel Saweed
Relief Sought to: Pursue Pending Litigation _X
Commence Litigation
Pursue Insurance
Litigation Information
Other
Case Name: Saweed v. Saweed ( Dkt. No. 17 STFL 03167) Court/Agency: Superior Court of the State of California, County of Los Angeles
Date Filed: 08/09/17 Trial Start Date: 06/1/21
Action Description: Petition for Dissolution of Marriage Grounds
Bad Faith X
Claim is Insured
Claim Against 3rd Parties
Nondischargeable Mandatory Abstention Non-BK Claims Best Resolved in Non-BK Forum X_ Other: The issues related to the Trustee Sale of 1807 First Street, San Fernando, CA 91340 property were already pending in State Court and should be resolved in state court.
Movant requests relief 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs: 3 (stay annulled retroactively to the petition date); 5 (waiver of the 4001(a)(3) stay); 6 (order binding in any bankruptcy case commenced by or against the Debtor for a period of 180 days); 7 (order binding and effective on any future bankruptcy case, no matter who the debtor is); and 8 (Order
10:00 AM
CONT...
Sawaed H. Sawaed
Chapter 13
binging against any Chapter 11 or 7 Trustee if case is converted). Background:
On December 17, 2019, Movant filed a request for order with the family law court seeking appointment of a Receiver to sell the family residence and the Commercial Property. Parties reached an agreement on how to sell the family residence without a receiver and the Debtor would keep the Commercial Property by allowing moving party to take a larger amount of the proceeds from the sale of the residence. Parties encountered a problem when they discovered a sizable lien on the family residence. The size of this liens requires that both the residence and the commercial property be sold at the same time. Just prior to a trustee sale, the Debtor filed this petition. On June 29, 2020, the Movant obtained a TRO from the family law court blocking the sale which protected both the Debtor and the Movant.
Movant asserts that she will be prejudiced if the stay is not lifted because there is substantial equity in the residence and according to the proposed plan the Debtor seeks to turn this property over.
Legal Standard
Under 11 U.S.C. 362(d)(1) and on request of a party in interest, "the court shall grant relief from stay...for cause." The bankruptcy code does not define cause, outside of lack of adequate protection. Instead, cause is defined on a case-by-case basis. In re Tucson Estates, Inc., 912 F.2d 1162, (9th Cir.
1990). Bankruptcy courts have discretion in determining whether cause exists to modify the stay. In re MacDonald, 755, F.2d 715 (9th Cir. 1985). Cause may exist where a bankruptcy court may abstain from deciding issues in favor of an imminent state court trial involving the same issues. Id. "Courts have identified various factors relevant to determining whether the stay should be lifted to allow a creditor to continue pending litigation in a non- bankruptcy forum. These factors are closely related to those that a bankruptcy court must consider in deciding whether to exercise abstention under 28 U.S.C. 1334(c)(1)." In re Plumberex, 311 B.R. 551, 558 (Bankr.
C.D. Cal. 2004).
A number of factors are commonly analyzed to determine whether cause
10:00 AM
CONT...
Sawaed H. Sawaed
Chapter 13
exists to grant relief from the stay. In re Curtis, 40 B.R. 795, 799-800 (Bankr.
D. Utah 1984). The following factors are implicated here:
Whether Relief Will Result in Partial or Complete Resolution of the Issues According to the Movant, this state court action would almost entirely
resolve the issues in the bankruptcy case. This factor favors granting relief from the stay.
The Lack of any Connection with or Interference with the Bankruptcy Case The Movant makes remarks in her brief which are contrary to each
other and to reality. In the same sentence, the Movant asserts that lifting the stay would not affect the bankruptcy case and then proceeds to say that the bankruptcy case would become moot. The Debtor clearly has an interest in the property that is in dispute in the state court case and the outcome of that case will clearly have an impact on the bankruptcy case. The state court maybe the better venue in which to adjudicate the dissolution of marriage as it pertains to real property but there is clearly a connection between the state court case and the This factor strongly disfavors granting relief.
(7) Whether litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties.
Considering this would be considered property of the estate, Creditors have an interest in at least a portion of the equity in the property. If the property is sold through the state court action, the creditors would still be entitled to the proceeds the Debtor takes from the sale. It does not appear that other parties' interests would be negatively impacted if this matter was adjudicated in state court. This factor favors granting relief.
11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial.
This matter has been pending in the state court for three years and is scheduled for trial early next summer. To remove this matter from state court at this stage would be burdensome on all parties. This favors relief from stay.
10:00 AM
CONT...
Sawaed H. Sawaed
Chapter 13
(12) The impact of the stay on the parties and the "balance of hurt."
This factor is about equal. On one side the Movant would be prejudiced to have to get this Court ready to adjudicate the remaining issues in the state court case. On the other end, since this property is a large asset of estate and the Debtor's attempt to confirm a plan would be difficult with this asset being tied to a state court proceeding.
Ruling:
The Court will grant relief from the automatic stay as paragraphs 5 & 6. Relief sought under paragraph 7 requires an adversary proceeding pursuant to Federal Rules of Bankruptcy Procedure 7001. In light of the Supreme Court's ruling in Roman Catholic Archdiocese of San Juan v. Feliciano, 140
S. Ct. 696 (2020), the Court does not believe nun pro tunc relief is warranted under paragraph 3 - Movant does not allege why nun pro tunc relief should be granted. Paragraph 8 appears unnecessary and the Movant does not assert why this relief is necessary; accordingly, this paragraph is denied.
This ruling allows the Movant only to proceed in state court to reach a judgment. The automatic stay is still applicable as to any property of the estate - including the residential property. If any party seeks to enforce an order from the state court against property of the estate, then they must seek relief from this Court.
No Appearance Required.
Debtor(s):
Party Information
Sawaed H. Sawaed Represented By
Edmond Richard McGuire
Movant(s):
Adel Sawaed Represented By
Raimund Freihube
10:00 AM
CONT...
Trustee(s):
Sawaed H. Sawaed
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11552
Arlene Quimada Al-os
Chapter 7
#3.00 Motion for relief from stay VICTOR SY
Docket 10
Tentative Ruling:
Petition Date:08/28/2020
Service: Proper. Opposition filed on 10/20/2020 Property: Entering Judgment on Arbitration Award.
The question of which form was required is debatable. Since there is an attachment explaining in more detail what movant wants, there is no harm. The court has discretion to waive the mandatory form, especially where there relief sought is somewhat of a hybrid, as here. So, the objection to the nature of the form used is a red herring, and overruled.
The relief sought is simply to enter a judgment on an already resolved arbitration award. The merit shave been decided, and the debtor held up what is almost a ministerial action by her bankruptcy filing. The award is indeed against the debtor personally as well as her accountancy form.
The movant has specifically agreed that no collection efforts will be made against debtor personally. The movant has a right to proceed against the accountancy practice, and, in fact, may need to quickly if his suspicions that she is conducting business of the accountancy using funds owed to him is correct.
There is no effect on the estate, and the only possible reason to oppose this is to thwart legitimate actions against the non-debtor corporation. Creditor has a right to take actions against a non-debtor and has agreed from the outset not to interfere in the bankruptcy estate.
Motion GRANTED
Appearance Required.
Party Information
10:00 AM
CONT...
Debtor(s):
Arlene Quimada Al-os
Chapter 7
Arlene Quimada Al-os Represented By Kathleen P March
Movant(s):
Victor Sy Represented By
Carolyn A Dye
Trustee(s):
Diane C Weil (TR) Pro Se
10:30 AM
1:18-12707
Salvador Machuca
Chapter 7
#4.00 Chapter 7 Trustees Motion for Order Requiring Debtor to Immediately Turn Over the Real Property Located at 11066 De Haven Avenue, Pacoima, California 91331, Or, in the Alternative, Providing Unfettered Access to Said Real Property
Docket 65
Tentative Ruling:
No Opposition filed. Trustee is seeking to an order requiring the Debtor to immediately turn over the real property located at 11066 De Haven Avenue, Pacoima, California 91331 (the “Property”). Trustee values the Property at
$399,950, less costs of sale of $31,996 (8%) and the secured debt of
$196,777, and an exemption claim of $26,8001 , the Trustee believes there is approximately $144,377 in non-exempt equity in the Property.
Following the employment of Trustee’s real estate brokers, the Debtor did not respond to requests by Trustee’s real estate agents for access to the Property in order to commence marketing the Property for sale. Shortly thereafter, the Debtor did contact Trustee’s real estate agent and agreed to cooperate and provide access to the property. However, within a few days, the Debtor again refused to cooperate. Currently the Trustee has two offers on the property but both require interior inspection, which, due to the Debtor's failure to cooperate precludes the Trustee from being able to act upon such offers. As a result of the Debtor’s actions, the Trustee seeks an order requiring the Debtor and any third parties under the Debtor’s control to turn over the Property to the Trustee in order for the Trustee to administer the Property for the benefit of estate creditors. Alternatively, in the unlikely event that the Court determines that turnover is not appropriate at this time, the Trustee requests an order of the Court requiring the Debtor to immediately provide unfettered access to the Property for marketing efforts and a continuance of this hearing to insure that the Debtor complies.
Standard:
10:30 AM
CONT...
Salvador Machuca
Chapter 7
Bankruptcy Code Section 542(a) provides that:
Except as provided in subsection (c) or (d) of this section, an entity other than a custodian, in possession, custody, or control during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.
11 U.S.C. § 542(a). "This turnover provision unambiguously requires the entity to deliver estate property to the trustee." Mwangi v. Wells Fargo Bank, N.A. (In re Mwangi), 764 F.3d 1168, 1178 (9th Cir. 2014).
A bankruptcy court may order the turnover of property to the debtor's estate if it is property of the estate. See § 542(a) (requiring turnover of property of the estate to the trustee unless such property is of inconsequential value or benefit to the estate.) To prevail in a turnover action under § 542(a), a trustee must establish: (1) that property of the estate is or was in the possession, custody, or control of an entity during the pendency of the case;
that the property may be used by the trustee under § 363; and (3) that the property has more than inconsequential value or benefit to the estate. Chantel v. Pierce (In re Chantel), 2015 Bankr. LEXIS 2174, *19-20 (9th Cir. BAP 2015).
Here the Property is part of the estate that is currently in possession of the Debtor. The Property may be sold pursuant to § 363 and there is substantial value in the property. The Court will GRANT the Trustee's motion.
No appearance required.
Debtor(s):
Party Information
Salvador Machuca Pro Se
Trustee(s):
Diane C Weil (TR) Represented By Anthony A Friedman
10:30 AM
1:19-11422
Joe Kearney
Chapter 11
#4.01 Motion in Individual Ch 11 Case for Order Pursuant to 11 U.S.C. Sec. 363 Setting Budget for Interim Use of Estate Property as Defined in 11 U.S.C. Sec. 1115
Docket 159
Tentative Ruling:
No opposition. Motion GRANTED. No appearance required.
Party Information
Debtor(s):
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
11:00 AM
1:10-16648
Vadim A Lipel
Chapter 7
#5.00 Motion to Reconsider Order on Final Fee Applications Allowing Payment of Final Fees and Expenses
Docket 231
*** VACATED *** REASON: Cont'd to 11/18/20 per order #235. lf Tentative Ruling:
Vacated: Cont'd to 11/18/20 per order #235.
No apperance required.
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler Blake J Lindemann
Trustee(s):
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
11:00 AM
1:14-11147
Behnam Amir-Behboubi
Chapter 7
Adv#: 1:20-01029 Amir-Behboudi v. Internal Revenue Service
#6.00 Status Conference Re: Complaint to Redetermine Tax Liability and to Determine Dischargeability
fr. 5/13/20
Docket 1
*** VACATED *** REASON: Dismissed per Stipulation 8/28/20 - hm Tentative Ruling:
VACATED: Dismissed per Stipulation 8/28/20
No apperance required.
Party Information
Debtor(s):
Behnam Amir-Behboubi Represented By Stella A Havkin
Defendant(s):
Internal Revenue Service Represented By Jeremy Burkhardt
Plaintiff(s):
Behnam Amir-Behboudi Represented By John D Faucher
Trustee(s):
Diane C Weil (TR) Pro Se
1:00 PM
1:10-14553
Anatoliy Kouzine
Chapter 7
#7.00 Motion for Order to to show cause why Lev Yasnogorodsky
and Counsel should not be held in civil contempt and sanctioned for failing to remedy continuing violations of the discharge
injunction and automatic stay fr. 9/30/20
Docket 42
Tentative Ruling:
The court decided to reconsider its tentative ruling after the oral argument at the last hearing and now issues its final decision after reviewing all arguments again:
On July 27, 2007, Yasnogorodsky (the "Creditor") filed a civil action in the Los Angeles Superior Court Case No. BC382156 entitled Yasnogorodsky v. Kouzine. The State Court granted judgment (the "Initial Judgment") in favor of the Movant and against Anatoliy Kouzine (the "Debtor") for $132,575.81 in a minute order. The Debtor transferred the title of 2463 Achilles Dr., Los Angeles, CA 90046 (the "Property") to his wife on December 19, 2008 - three days after the State Court entered its’ judgment against the Debtor. The Abstract of Judgment related to the Initial Judgment was issued and later recorded on March 25, 2009. Docket No. 32 Creditor’s Ex. F. On November 4, 2009, the Creditor commenced an action against the Debtor and his wife for violation of the California Uniform Fraudulent Transfer Act (the "Fraudulent Transfer Action"). Thereafter, the Debtor filed a Chapter 7 Bankruptcy on April 19, 2010. The Creditor and his counsel were not notified of the bankruptcy filing on the petition date.
The Fraudulent Transfer Action was reduced to judgment in favor of the Creditor for a sum of $136,778.51. The transfer of title from the Debtor to his wife was voided and on June 9, 2020, the Abstract of Judgment for the Fraudulent Transfer Action was issued and later recorded on June 14, 2010. On July 30, 2010, the Debtor amended his schedules listing the Creditor and Creditor’s counsel. Docket No. 25, Debtor’s Exhibit 5. The Debtor received a discharge from bankruptcy on August 16,
1:00 PM
CONT...
Anatoliy Kouzine
Chapter 7
2010. The Debtor’s case is considered a no-asset chapter 7 bankruptcy case, meaning no property was able to be collected and disbursed to creditors.
On February 11, 2011, the Debtor’s wife filed her own chapter 7 bankruptcy case (2:10-bk-56517-RN). In her petition, the Debtor’s wife listed her residence as the Property. Twice the Debtor’s wife tried to avoid the judicial lien; however, both times the Court denied her motions.
On October 23, 2019, Debtor’s Counsel emailed the Creditor’s counsel seeking a release from the post-petition recorded lien. The Creditor has not released the lien and on January 27, 2020, the Debtor filed a motion for sanctions for violation of the automatic stay and violation of discharge injunction against the Movants. Docket No. 25. The Creditor filed opposition on September 16, 2020. The Court continued this hearing from September 30, 2020.
Standard:
Bankruptcy courts have the power to issue sanctions under their civil contempt authority under §105(a) and their inherent sanction authority. Price v. Lehtinen (In re Lehtinen), 564 F.3d 1052, 1058 (9th Cir. 2009). The bankruptcy court's inherent authority differs from the court's civil contempt power under § 105(a) and the two are not interchangeable. Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1196 (9th Cir. 2003). The inherent power allows the court to sanction a broad range of conduct, unlike the civil contempt authority, which permits a court to remedy a violation of a specific order. Id. Further, unlike the civil contempt authority, a bankruptcy court must make an explicit finding of bad faith or willful misconduct before imposing sanctions under its inherent authority. In re Lehtinen, 564 F.3d at 1058.
Whether acting under its inherent authority or civil contempt authority, the bankruptcy court does not have authority to impose significant punitive damages. Id. at 1059. "Civil penalties must either be compensatory or designed to coerce compliance." Id. Actual damages, including attorney's fees incurred as a result of the noncompliant conduct, can be recovered as part of a compensatory civil contempt sanctions award. See In re Dyer, 322 F.3d at 1195. To award such sanctions, the bankruptcy court must find that actual damages flowed from the contemnor's noncompliant conduct. Id.; see also Shuffler v. Heritage Bank, 720 F.2d 1141, 1148 (9th Cir. 1983) (Compensatory contempt sanctions must be based on "actual losses
1:00 PM
CONT...
Anatoliy Kouzine
Chapter 7
sustained as a result of the contumacy.").
In a civil contempt action, the moving party has the burden of establishing "by clear and convincing evidence that the contemnors violated a specific and definite order of the court. The burden then shifts to the contemnors to demonstrate why they were unable to comply." FTC v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999). "'Civil contempt . . . consists of a party's disobedience to a specific and definite court order by failure to take all reasonable steps within the party's power to comply.'" Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006).
Analysis:
There are two bases for sanctions sought by the Debtor: (1) violation of the automatic stay and (2) violation of the discharge injunction. The Court will address each in turn.
An act taken in violation of the automatic stay is void, not merely voidable, is well-established law in the Ninth Circuit. Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074, 1082 (9th Cir. 2000); see also Far Out Productions, Inc. v. Oskar et al., 247 F.3d 986, 995 (9th Cir. 2001). Further, "judicial proceedings in violation of the automatic stay are void." In re Gruntz at 1074 (quoting Phoenix Bond & Indemnity Co. v. Shamblin (In re Shamblin), 890 F.2d 123, 125 (9th Cir. 1989)). An action that violates the stay is still void despite a party’s lack of knowledge of the pending bankruptcy. See e.g., 40235 Washington Street Corporation v. Lusardi (In re Lusardi), 329 F.3d 1076 (9th Cir. 2003) (the Ninth Circuit deemed a county tax sale on real property void even though neither the county nor the purchaser had knowledge of the bankruptcy case).
There is no dispute that the abstract of judgment for the fraudulent transfer case was issued and recorded post-petition and done so without relief from the automatic stay. Whether the Creditor had notice or not of the Debtor’s bankruptcy case during this time period is irrelevant. Both the abstract of judgment and the recording of the abstract of judgment are void by operation of law. Any argument made by the Creditor suggesting that he had a valid lien on the property is misplaced. The second argument was that the abstract of judgment, which itself is void, was filed with the country recorder. The lien and judgement are not merely voidable, they are
1:00 PM
CONT...
Anatoliy Kouzine
Chapter 7
void by operation of law.
"A stay violation is willful if a creditor has knowledge of the bankruptcy filing and deliberately acts in such a way that violates the stay." Auyeung v. Christensen (In Re Auyeung), 2012 Bankr. LEXIS 6126, *13 (Bankr. E.D. Cal. 2012). As the Ninth Circuit Court of Appeals explained:
A "willful violation" does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant's actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant to whether the act was "willful" or whether compensation must be awarded.
Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir. 1989).
The two violations of the automatic stay alleged by the Debtor are the issuance of the abstract of judgment that occurred on June 9, 2010 and the recording of abstract of judgment that occurred on June 14, 2010. The Debtor’s original schedules did not include the Creditor and Creditor’s counsel. The schedules were amended to include the Creditor and Creditor’s counsel on July 30, 2010. The Creditor asserts that he had no notice of the bankruptcy case until well after the abstract was recorded. The documents on the docket support the Creditor’s position of lack of notice. Since the Creditor had no notice of automatic stay, the Creditor’s violation of the stay cannot be considered willful. The actions themselves are void but there is no willful violation of the automatic stay on the part of the Creditor.
The Debtor makes the argument that because the Creditor did not take corrective actions as to the violations of the automatic say that this constitutes as willful. The Court is unpersuaded by this argument. Here the Debtor amended his schedules on July 30, 2010, on or around that date is when the Creditor had notice of the bankruptcy case. On August 16, 2010, the case was closed, and a discharge was granted. When the case was closed the automatic stay terminated and was replaced by the discharge injunction. Given the short time frame here coupled with the fact that prior to this the Creditor had no notice of the bankruptcy petition, the Court cannot conclude that this was a willful violation of the automatic stay.
1:00 PM
CONT...
Anatoliy Kouzine
Section 524 of the Bankruptcy Code recites the effect of a discharge:
A discharge in a case under this title—
voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under [§ 727], 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[.]
Chapter 7
"[A] a creditor has a duty to obey the discharge injunction, which duty is a modern corollary of the venerable rule that all persons concerned in executing [void] judgments … are considered in law as trespassers." Lone Star Sec. & Video, Inc. v. Gurrola (In re Gurrola), 328 B.R. 158, 174-75 (9th Cir. BAP 2005). A violation of the discharge injunction with notice of the discharge injunction is subject to a contempt remedy under 11 U.S.C. § 105(a). Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1191-92 (9th Cir. 2003); Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir. 2002). To be subject to sanctions for violating the discharge injunction, the alleged contemnor's violation of the discharge must be "willful." Under Ninth Circuit law, a violation of the discharge injunction is willful when the alleged contemnor (1) knew that the discharge injunction applied, and (2) intended the actions that violated the discharge injunction. In re Zilog, Inc., 450 F.3d at 1007; Hardy v. United States (In re Hardy), 97 F.3d 1384, 1390 (9th Cir.1996). The burden of proof on the issue of willfulness is clear and convincing evidence. In re Zilog, Inc., 450 F.3d at 1007; Renwick v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir.2002) ("The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court.").
Here the Creditor was placed on notice of the pending bankruptcy case on or around July 30, 2010. Further, the Creditor received a copy of the Debtor’s discharge order. Docket No. 20. The first issue that needs to be addressed is whether the
1:00 PM
CONT...
Anatoliy Kouzine
Chapter 7
Creditor knew that the discharge injunction applied.
A chapter 7 discharge discharges the debtor from all debts, unless otherwise deemed non-dischargeable, that arose prepetition. 11 U.S.C.S. § 727(b); see also Kvassay v. Kvassay (In Re Kvassay), 2019 Bankr. LEXIS 373, *16 (9th Cir. BAP 2019). The Ninth Circuit ordinarily employs the "fair contemplation" test in determining when a claim arises. See, e.g., In re SNTL Corp., 571 F.3d 826, 839 (9th Cir 2009); Zilog, Inc. v. Corning (In re Zilog), 450 F.3d 996, 1000 (9th Cir. 2006); Health Servs. v. Jensen (In re Jensen), 995 F.2d 925, 930 (9th Cir. 1993). This test dictates that a claim arises when the claimant "can fairly or reasonably contemplate the claim's existence even if a cause of action has not yet accrued under nonbankruptcy law." In re SNTL Corp., 571 F.3d at 839 (citing Cool Fuel, Inc. v. Bd. of Equalization (In re Cool Fuel, Inc.), 210 F.3d 999, 1007 (9th Cir. 2000)).
Even though the claim was reduced to judgment post-petition, the claim clearly arose prepetition. This kind of debt is not automatically non-dischargeable under 11 U.S.C. § 523 and the Creditor failed to properly bring an adversary proceeding pursuant to this section seeking a determination that the debt is non- dischargeable. Any opposition and argument raised by the Creditor about the debt being non-dischargeable should have been raised in an adversary proceeding, and the timeline for filing such an action has long since passed. See FRBP 4007. Additionally, after the Creditor received notice of the bankruptcy case, a simple inquiry would have revealed that the recording of the abstract of judgment was void by operation of law. Since the Creditor never acted to properly secure his claim nor did he seek to have the debt be deemed non-dischargeable, the claim is an unsecured debt that is dischargeable under 11 U.S.C. § 524. Accordingly, the knowledge requirement for sanctions is satisfied.
The next issue is whether the Creditor intended to cause the actions which form the basis of the violation of the discharge. Here the Creditor has protected a void lien against the Property even though the lien was void. Accordingly, the Court is satisfied that this element is met, and sanctions are appropriate for violating the Debtor’s discharge injunction.
An award of damages under § 105(a) is within the discretion of the bankruptcy
1:00 PM
CONT...
Anatoliy Kouzine
Chapter 7
court. Havelock v. Taxel (In re Pace), 67 F.3d 187, 192 (9th Cir. 1995)(remanding the BAP's award of damages under §105(a) to allow the bankruptcy court to exercise its discretion in deciding whether and to what extent it would impose sanctions under § 105(a)); United States v. Arkison (In re Cascade Roads, Inc.), 34 F.3d 756, 767 (9th Cir. 1994). The Court will determine what damages are appropriate in this case.
The facts here are important because while the Creditor violated the discharge injunction there are clearly mitigating factors present. The first mitigating factor relates to the nature of the Debtor filing this bankruptcy. At the time of filing the Debtor was at the tail end of a case in state court. The Debtor did not notify the Creditor of the filing until months after the petition date. During the time between the petition date and the Debtor notifying the Creditor of the bankruptcy the Creditor had a state court judgment awarded in his favor and recorded this judgment against the Property. The bankruptcy case was closed shortly after notice was given to the Creditor. This by itself does not paint the entire picture of what was going on between the parties. The Debtor clearly has been trying to inhibit the Creditor from collecting on the original judgment, hence why the Debtor fraudulently transferred the property to his wife which formed the basis of the second state court judgment. There is no valid reason why the Debtor failed to notify the Creditor other than to once again inhibit the Creditor from collecting. The Debtor knew that the Creditor should be notified, which is evidenced by the Creditor being notified at the end of the bankruptcy case, yet failed to do so until the state court case and judgment were at a conclusion. This is a mitigating factor in determining an appropriate remedy.
The second mitigating factor is the nature of the Debtor’s spouse’s bankruptcy case. While this issue regarding the judgment lien did not previously appear in the spouse’s bankruptcy case the Creditor’s lien was an issue as it applied to the wife. Having reviewed the spouse’s case, the Court can see how the waters as to this issue were muddied by the spouse’s lien issue. The rulings in the spouse’s bankruptcy case combined with the fact that the Debtor sat on seeking to have the lien removed for nearly a decade could have reasonably led the Creditor to believe that he in fact had a valid lien. This is a mitigating factor in determining an appropriate remedy.
The last mitigating factor is the Creditor has been
cooperative and has taken actions to correct his violation of the discharge.
1:00 PM
CONT...
Anatoliy Kouzine
Chapter 7
Since the last hearing, the Creditor has released the lien as it pertained against the Debtor. Additionally, the Creditor withdrew its motion for nunc pro tunc relief from the automatic stay. The Creditor recognized that this was not a fight that he could win and rectified the violation of the discharge injunction rather than continuing to litigate. The Court Creditors efforts were appropriate as soon as this was properly sorted out after the mess the debtor made of it. All of these mitigating factors show that the Creditor has acted in good faith and was placed in this difficult situation in large part due to the Debtor’s actions.
Accordingly, the Court will grant and deny the Debtor’s motion as follows:
1). The Court declares that the State Court Judgment is "Null and
Void."
The issue as to the judgment lien is now moot.
The Court denies any award for attorney fees, other compensatory awards, or punitive damages.
Creditor should submit an order.
Party Information
Debtor(s):
Anatoliy Kouzine Represented By Elena Steers
Trustee(s):
Nancy J Zamora (TR) Pro Se
1:00 PM
1:10-21216
Anthony Henderson
Chapter 7
Adv#: 1:20-01071 Structured Asset Sales, LLC v. Henderson et al
#8.00 Motion to Dismiss Adversary Complaint fr. 10/7/20
Docket 3
Tentative Ruling:
Defendant and discharged debtor, Anthony Henderson, is a recording artist who achieved popularity with the rap group Bone Thugs N Harmony ("Debtor" or "Henderson").
Sometime between 2005-2006, Henderson performed on a song known as Ridin, with rapper Hakeem Seriki, aka Chamillionaire ("Seriki"). The parties contest whether an alleged 2005 contract between Henderson and Seriki’s corporation, Chamillitary, Inc. ("Chamillitary") defines Henderson’s role as a performer on Ridin (the "2005 Agreement"), as discussed below.
Henderson filed for bankruptcy protection on September 7, 2010. 1:10-bk-21216- MT, ECF doc. Structured Asset Sales ("SAS" or "Plaintiff") notes that no mention of the alleged 2005 Agreement was made in the schedules filed in Henderson’s bankruptcy.
Plaintiff also notes that Henderson claimed at that time that no other corporations, akas, dbas were used in the last eight years preceding the Petition Date, omitting Track Fiends Productions LLC ("Track Fiends") or Track Fiend Productions LLC ("Track Fiend") and Track House Entertainment Inc ("Track House"). Plaintiff also points out that Debtor’s Schedule G listed contracts with Ruthless Records International and Warner Brothers Records. No contract with Universal was listed. No contracts with Seriki, or Track Fiend, Track Fiends, Track House were listed in Schedule G.
On May 27, 2016, SAS entered into an Asset Purchase Agreement ("APA") with the chapter 7 trustee administering Henderson’s estate, purchasing, among other things, "[t]he Estate’s rights to (i) any and all future royalty payments, and payments of any kind, paid after June 30, 2016, no matter when earned," relating to Henderson’s intellectual property identified on Schedule A of the APA. Adversary Complaint (the "Complaint"), Ex. 1. The APA provided that the intellectual property was being sold solely "to the extent the Estate has any right, title or interest", which was not warranted by the chapter 7 trustee. Id. The song
1:00 PM
CONT...
Anthony Henderson
Chapter 7
Ridin’ was included on Schedule A of the APA.
Plaintiff contends that, after collecting $110,299.43 in royalties from Henderson’s copyrights ("Copyrights"), the Trustee filed the Motion to Authorize and Approve the Sale of Certain of Estate Assets Free and Clear of All Liens, Claims, Encumbrances, and Interests ("Sale Motion, bankr. ECF doc. 96). In response to the Sale Motion, the trustee received an unfiled opposition ("Sale Opposition") from Alithia Perez, whom Plaintiff alleges was an officer of Track House and claimed that Track House had an ownership interest in the Copyrights. It is Plaintiff’s contention, however, that Track House was only made a payee as an accommodation to the Debtor not as royalty assignee. No other opposition was filed or withdrawn to the Sale Motion.
On August 23, 2016. the Court overruled the Sale Opposition and entered an order approving the Motion to Sell, where Plaintiff, as the purchaser, paid the Estate $157,500.00 (the "Sale Order" bankr. ECF doc. 111). On August 30, 2017, Henderson’s bankruptcy case was closed. (Id., ECF 132.)
Plaintiff claims that it received payments on all the Copyrights, including Ridin, from sometime in August or September 2016, the time it was assigned the Estate’s rights pursuant to the APA, until March 2020. Sometime prior, Plaintiff alleges, Seriki contacted SoundExchange and, for the first time, challenged the payment split on the Ridin track between himself and Henderson. Plaintiff alleges that, in March 2020, Henderson provided SoundExchange with an affidavit, ("Affidavit") to support Seriki’s position that Henderson was credited as a featuring artist as a "professional courtesy in recognition of [Henderson’s] stature in the music industry" but that such designation "does not change the fact that that [Henderson] was hired and paid a one time fee of $10,000 as a side artist." Complaint, Ex. 4,
¶5. In other words, Plaintiff alleges that Henderson’s claim that he was not a "featured artist" in terms of copyright royalties is belied by his having received 144 payments as a featured artist prior to this change in position. In support of paragraph 5 of the Affidavit, Plaintiff alleges that Henderson produced an agreement with Seriki (the "2005 Agreement"), where the Debtor calls himself the Track Fiend entity, and the address is directed to the "Law Offices of Bret D. Lewis" ("Lewis"), Henderson’s current litigation counsel in this adversary. Complaint, Ex. 1. Plaintiff contends that the 2005 Agreement was post-dated to November 1, 2005 and questions whether it was even in existence prior to the Sale, as the 2005 Agreement was never disclosed in the bankruptcy schedules or produced in opposition to the Sale Motion.
1:00 PM
CONT...
Anthony Henderson
On July 15, 2020, the case was reopened on Plaintiff’s motion. On July 17, 2020,
Chapter 7
SAS filed this adversary complaint asserting claims against Henderson, aka Krayzie Bone dba Bone Thugs N Harmony, and SoundExchange, Inc. ("SoundExchange") for declaratory relief; preliminary or permanent injunction; accounting; and turnover. Plaintiff alleges that, for approximately twelve years, from 2005 to 2017, SoundExchange paid Henderson his share of featured artist royalties in connection with Ridin, and Henderson had negotiated, deposited and/or cashed all checks and payments received from SoundExchange regarding Ridin.
Defendant Henderson moves to dismiss the Complaint for failure to state a claim, arguing, among other things, that Plaintiff does not have standing, that the Complaint is time-barred, and that accounting and turnover are inappropriate remedies here.
Defendant SoundExchange also moves to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim because turnover is unavailable where the property at issue is not property of the estate. The Court must consider whether it has subject matter jurisdiction before any other issues presented in the Motions may be considered.
STANDARD
Subject Matter Jurisdiction
Two statutes, 28 U.S.C. §§ 157(a) and 1334, allow district courts to refer proceedings arising in, arising under, or related to the Bankruptcy Code, to bankruptcy courts. With some limited exceptions, Section 1334 provides that bankruptcy courts have "jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11." § 1334(b); see generally Collier on Bankruptcy §§ 3.01–3.03 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2010).
Section 157(b)(1) provides that "Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11" that are referred to it by the district court. Congress also provided a non-exhaustive list of core proceedings, see § 157(b)(2), and indicated a matter may be a core proceeding even if state law may affect its outcome, see § 157(b)(3); see also Marshall v. Stern (In re Marshall), 600 F.3d 1037, 1054 (9th Cir. 2010).
1:00 PM
CONT...
Anthony Henderson
Chapter 7
The result is that bankruptcy courts have jurisdiction to hear a broad array of issues, but the exercise of their jurisdiction to enter any final order or judgment is limited to (A) "cases under title 11," § 157(b)(1); (B) "core" bankruptcy proceedings that either "arise under" the Bankruptcy Code or "arise in" a case under the Code, id.; or (C) cases in which all interested parties "consent" to the bankruptcy court having jurisdiction to enter a final order in a matter that is "related to" a case under the Bankruptcy Code, § 157(c)(2); Battleground Plaza, LLC v. Ray, et al. (In re Ray), 624 F.3d 1124, 1130 (9th Cir. 2010); see also N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Defendants SoundExchange and Henderson have indicated that they do not consent to this Court’s entry of a final judgment and/or order in this adversary proceeding. Joint Status Report, ad. ECF doc. 22.
In addition, bankruptcy courts retain jurisdiction to enter findings of fact and conclusions of law—which the district court is free to adopt or disregard after de novo review, § 158(a)—in (1) "non-core" proceedings that either "arise under" the Bankruptcy Code, "arise in" a case under the Code, or "relate to" a case under the Code, see §§ 157(a),
and 1334; or (2) "core" proceedings that "relate to" a case under the Bankruptcy Code, but neither "arise under" the Code nor "arise in" a case under the Code, id.
Finally, even if a bankruptcy court does not have "arising under" jurisdiction, it can retain jurisdiction under a theory of ancillary jurisdiction if re-opening the case is necessary "(1) to permit disposition by a single court of factually interdependent claims, [or] (2) to enable [the bankruptcy] court to vindicate its authority and effectuate its decrees." See Sea Hawk Seafoods, Inc. v. Alaska (In re Valdez Fisheries Dev. Ass'n, Inc.), 439 F.3d 545, 549 (9th Cir.2006) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379–80 (1994)).
The Court must dismiss the Complaint for lack of subject matter jurisdiction because this action can have no conceivable effect on the estate, and thus is not "related to" the bankruptcy case. SoundExchange argues that under the terms of the APA and the 2005 Agreement, either (i) Henderson was never entitled to receive royalties as compensation for his contribution to Ridin or (ii) Henderson’s estate sold the future royalty payments for Ridin to SAS. Either way, the royalties were not, or are no longer property of Henderson’s estate after the Sale Order was entered. The APA stated that the estate was only selling future royalty payments "to the extent that the Estate has any right, title or interest," on an "as-is, where is" basis, which was not warranted by the chapter 7 trustee.
The Ninth Circuit has adopted the Pacor test for determining the scope of "related
1:00 PM
CONT...
Anthony Henderson
Chapter 7
to" jurisdiction. In re Fietz, 852 F.2d 455, 457 (9th Cir. 1988). The Pacor test looks to whether "the outcome of the proceeding could conceivably have an effect on the estate being administered in bankruptcy." Id. The Ninth Circuit explained that "the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate." Id., quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)
Plaintiff argues that "Debtor never surrendered the property of the Estate, converting approximately $100,000 in post-petition royalties." Opposition, 10:17-18. When the Sale Motion was filed, the trustee had collected $110,299.43 in Royalties. After the Sale Order was entered and Plaintiff began receiving the royalty payments, the money coming from SoundExchange was no longer property of the bankruptcy estate because the Estate sold its rights. Instead, any interference or interruption with the stream of payments that Plaintiff believes it is entitled to is a matter of contract law between the non-estate parties to the contract. Plaintiff does not cite any authority for its expansive reading of § 541 that would explain why the Royalties, after being sold by the Estate to Plaintiff, would retain their characterization as property of the estate.
It is not disputed that for the period between late 2016 through March 2020, SoundExchange paid to SAS payments on all the Copyrights, including Ridin. Opposition, 7:26-28. It is also undisputed that on August 30, 2017, Henderson’s bankruptcy case was closed. (Id., ECF 132.) Thus, for more than two years after the bankruptcy case was closed, SoundExchange and SAS performed under the terms of the APA. That SAS believes it has been thwarted in receiving the benefit of its bargain under the APA by the actions of Henderson and Seriki, is fundamentally a breach of contract dispute that includes non- debtor parties that will have no effect on the estate. See Battle Ground Plaza, LLC v. Ray, et al. (In re Ray), 624 F.3d 1124, 1135 (9th Cir. 2010)(holding that the bankruptcy court did not retain "related to" jurisdiction for a breach of contract action that could have existed entirely apart from the bankruptcy proceeding and did not necessarily depend upon resolution of a substantial question of bankruptcy law).
If Debtor (and Plaintiff under the APA) collected royalties from Ridin to which they were not entitled because of the 2005 Agreement, as asserted by Seriki and Henderson in the Affidavit, then it is Seriki who may have claims to assert. If, on the other hand, the 2005 Agreement is found to be of no effect, for whatever reason, then SAS may have claims
1:00 PM
CONT...
Anthony Henderson
Chapter 7
against Seriki, SoundExchange and Henderson for damages for breaching the APA. While resolution of this matter may require a court to review and interpret the APA and Sale Order, another court of competent jurisdiction is more than capable of doing so to resolve what is fundamentally a breach of contract dispute. There is nothing presented by these disputes, however, that requires the interpretation of bankruptcy law issues. The possible need to review the APA and Sale Order, more than seven years after Henderson received his discharge and three years after the Sale Order was entered, does not confer "related to" or ancillary jurisdiction on this Court. The Supreme Court explained it best in Kokkonen:
[H]earing a breach of contract claim predicated on evidence that came to light after a bankruptcy case had closed, its creditors paid, and the debtor discharged, stretches the limits of the bankruptcy court's ancillary jurisdiction too far, going beyond what is necessary for the bankruptcy court to "effectuate its decrees."
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 380 (1994). See also In re Valdez Fisheries, 439 F.3d at 549-50 (finding no ancillary jurisdiction when a party sued on the terms of a settlement agreement after the bankruptcy case had closed and the estate was settled).
Lastly, SAS’ turnover claim against Henderson is not sufficient to confer subject matter jurisdiction. While Plaintiff does not explicitly plead a § 542 turnover cause of action, describing a claim for money one believes they are owed as a turnover action is not sufficient to establish the Court’s subject matter jurisdiction. Turnover pursuant to Section 542 is not a proper claim when the royalties at issue, the property allegedly subject to turnover, do not constitute property of the bankruptcy estate.
Lastly, the Court does not need to reach the issue of whether SAS has standing to assert a § 542 claim because SAS is not the trustee or debtor-in-possession. Contrary to Plaintiff’s assertion in the Opposition (13:13-15), the Court can find no language in the APA that would support its position that it purchased the trustee’s interest in any turnover claim. Irrespective, that SAS’s couched its demand for breach of contract damages as a turnover action does not change the result of the analysis.
Motion to Dismiss under FRCP 12(b)(1) for lack of subject matter jurisdiction is GRANTED.
Party Information
1:00 PM
CONT...
Debtor(s):
Anthony Henderson
Chapter 7
Anthony Henderson Represented By James A Dumas Jr
Defendant(s):
Anthony Henderson Represented By Bret D Lewis
SoundExchange, Inc,; Pro Se
Plaintiff(s):
Structured Asset Sales, LLC Represented By Stella A Havkin
Trustee(s):
David Seror (TR) Represented By David Seror (TR) Nina Z Javan Richard Burstein Steven T Gubner
1:00 PM
1:10-21216
Anthony Henderson
Chapter 7
Adv#: 1:20-01071 Structured Asset Sales, LLC v. Henderson et al
#9.00 Motion to Dismiss Adversary Proceeding
Docket 18
Tentative Ruling:
see #8
Debtor(s):
Party Information
Anthony Henderson Represented By James A Dumas Jr
Defendant(s):
Anthony Henderson Represented By Bret D Lewis
SoundExchange, Inc,; Represented By Lauren Grochow
Plaintiff(s):
Structured Asset Sales, LLC Represented By Stella A Havkin
Trustee(s):
David Seror (TR) Represented By David Seror (TR) Nina Z Javan Richard Burstein Steven T Gubner
1:00 PM
1:10-21216
Anthony Henderson
Chapter 7
Adv#: 1:20-01071 Structured Asset Sales, LLC v. Henderson et al
#10.00 Status Conference re: Complaint for 1) Declaratory Relief
2) Preliminary and Permanent Injuction; 3) Accounting; and
4) Turnover fr. 9/24/20
Docket 1
Tentative Ruling:
Party Information
Debtor(s):
Anthony Henderson Represented By James A Dumas Jr
Defendant(s):
Anthony Henderson Pro Se
SoundExchange, Inc,; Pro Se
Plaintiff(s):
Structured Asset Sales, LLC Represented By Stella A Havkin
Trustee(s):
David Seror (TR) Represented By David Seror (TR) Nina Z Javan Richard Burstein Steven T Gubner
9:30 AM
1:19-11422
Joe Kearney
Chapter 11
#1.00 Trial -
Re: Motion to Disallow Claims of Patricia Leupold (claim # 8-1) fr. 10/22/19, 12/17/19, 3/4/20; 6/24/20, 10/8/20
Docket 37
*** VACATED *** REASON: Matter cont. to 11/9/20 at 9:30a.m (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
On 3/4/20, Partial Summary Judgment was granted in Favor of Plaintiff's Eighth Cause of Action ("Disgorgement Claim"). There are 8 remaining causes of action. The 6/24/20 hearing is a Status Conference regarding the remaining Claims Objection. The parties were to discuss mediation in the interim. Nothing has been filed since 3/4/20 concerning the status of the remaining claims.
TELEPHONIC APPERANCE REQUIRED
Party Information
Debtor(s):
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
Movant(s):
Joe Kearney Represented By
Robert M Aronson Robert M Aronson Robert M Aronson Robert M. Aronson Robert M. Aronson Robert M. Aronson
9:30 AM
CONT...
Joe Kearney
Chapter 11
9:30 AM
1:19-11422
Joe Kearney
Chapter 11
#1.00 Trial
Re: Motion to Disallow Claims of Patricia Leupold (claim # 8-1) fr. 10/22/19, 12/17/19, 3/4/20; 6/24/20, 10/9/20
Docket 37
*** VACATED *** REASON: Matter cont. to 11/10/20 at 9:30a.m (eg) Matter Notes:
- NONE LISTED -
Tentative Ruling:
On 3/4/20, Partial Summary Judgment was granted in Favor of Plaintiff's Eighth Cause of Action ("Disgorgement Claim"). There are 8 remaining causes of action. The 6/24/20 hearing is a Status Conference regarding the remaining Claims Objection. The parties were to discuss mediation in the interim. Nothing has been filed since 3/4/20 concerning the status of the remaining claims.
TELEPHONIC APPERANCE REQUIRED
Party Information
Debtor(s):
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
Movant(s):
Joe Kearney Represented By
Robert M Aronson Robert M Aronson Robert M Aronson Robert M. Aronson Robert M. Aronson Robert M. Aronson
9:30 AM
CONT...
Joe Kearney
Chapter 11
Monday, November 9, 2020
Hearing Room
302
9:30 AM
1:19-11422
Joe Kearney
Chapter 11
#1.00 Trial
Re: Motion to Disallow Claims of Patricia Leupold (claim # 8-1) fr. 10/22/19, 12/17/19, 3/4/20; 6/24/20, 10/8/20; 11/5/20
Docket 37
Tentative Ruling:
On 3/4/20, Partial Summary Judgment was granted in Favor of Plaintiff's Eighth Cause of Action ("Disgorgement Claim"). There are 8 remaining causes of action. The 6/24/20 hearing is a Status Conference regarding the remaining Claims Objection. The parties were to discuss mediation in the interim. Nothing has been filed since 3/4/20 concerning the status of the remaining claims.
TELEPHONIC APPERANCE REQUIRED
Party Information
Debtor(s):
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
Movant(s):
Joe Kearney Represented By
Robert M Aronson Robert M Aronson Robert M Aronson Robert M. Aronson Robert M. Aronson Robert M. Aronson
9:30 AM
1:19-11422
Joe Kearney
Chapter 11
#1.00 Trial
Re: Motion to Disallow Claims of Patricia Leupold (claim # 8-1) fr. 10/22/19, 12/17/19, 3/4/20; 6/24/20, 10/9/20; 11/6/20
Docket 37
Tentative Ruling:
On 3/4/20, Partial Summary Judgment was granted in Favor of Plaintiff's Eighth Cause of Action ("Disgorgement Claim"). There are 8 remaining causes of action. The 6/24/20 hearing is a Status Conference regarding the remaining Claims Objection. The parties were to discuss mediation in the interim. Nothing has been filed since 3/4/20 concerning the status of the remaining claims.
TELEPHONIC APPERANCE REQUIRED
Party Information
Debtor(s):
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
Movant(s):
Joe Kearney Represented By
Robert M Aronson Robert M Aronson Robert M Aronson Robert M. Aronson Robert M. Aronson Robert M. Aronson
8:00 AM
1:00-00000 Chapter
#0.00 The 8:30 am Reaffirmation hearing calendar will be conducted remotely, using ZoomGov video and audio. ALL OTHER MATTERS ON JUDGE MUND'S CALENDAR WILL BE HEARD PURSUANT TO THE NOTICE THEREOF.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1600517495 Meeting ID: 160 051 7495
Docket 0
8:00 AM
CONT... Chapter
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
8:30 AM
1:20-11344
Jennifer Trejo
Chapter 7
#0.01 Reaffirmation Agreement with Toyota Motor Credit Corporation
Docket 9
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition date: 7/30/2020
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: 2020 Toyota Corolla
Debtor’s valuation of property (Sch. B): $21,000 Amount to be reaffirmed: $23,067
APR: 2.9% (fixed)
Contract terms: $456.97 per month, for 54 months Monthly Income (Schedule I): $4,712.48
Monthly expenses: (Schedule J): $5,216.70 Disposable income: <$504.22>
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 provide an explanation. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until December 22, 2020, whichever is later.
Party Information
8:30 AM
CONT...
Debtor(s):
Jennifer Trejo
Chapter 7
Jennifer Trejo Represented By Raymond J Bulaon
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
1:20-11421
Robert Daniel Bennett
Chapter 7
#0.02 Pro se Reaffirmation Agreement Between Debtor and Wells Fargo Bank
Docket 14
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition date: 8/11/2020
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 Escape
Debtor’s valuation of property (Sch. B): $5,579 Amount to be reaffirmed: $8,272.19
APR: 9.940% (fixed)
Contract terms: $184.20 per month for 56 months Monthly Income (Schedule I): $3,572
Monthly expenses: (Schedule J): $3,970 Disposable income: <$398>
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 a priority for him because he drives for a living and he has never missed a payment. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until December 16, 2020, whichever is later.
8:30 AM
CONT...
Debtor(s):
Robert Daniel Bennett
Party Information
Chapter 7
Robert Daniel Bennett Pro Se
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
1:20-11602
Alejandro Norberto Tuyu and Salina Joy Tuyu
Chapter 7
#0.03 Reaffirmation Agreement Between Debtor and San Diego County Credit Union
fr. 10/20/20
Docket 13
Matter Notes:
NONE LISTED -
Tentative Ruling:
CONTINUED FROM 10-20-2020
Petition date: 9/3/2020
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 Dodge Challenger
Debtor’s valuation of property (Sch. B): $23,000 Amount to be reaffirmed: $29,815.42
APR: 6.65% (fixed)
Contract terms: $453.79 per month for 82 months Monthly Income (Schedule I): $4,299
Monthly expenses: (Schedule J): $5,425 Disposable income: <$1,126>
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
CONT...
Alejandro Norberto Tuyu and Salina Joy Tuyu
Chapter 7
No explanation provided. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until November 25, 2020, whichever is later.
Party Information
Debtor(s):
Alejandro Norberto Tuyu Represented By Navid Kohan
Joint Debtor(s):
Salina Joy Tuyu Represented By Navid Kohan
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
1:20-11636
Alvaro Lozano
Chapter 7
#0.04 Reaffirmation Agreement Between Debtor and Los Angeles Federal Credit Union
Docket 12
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition date: Sept. 8, 2020
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
Debtor’s valuation of property (Sch. B): $31,429 Amount to be reaffirmed: $24,156.85
APR: 4.51% (fixed)
Contract terms: $926.34 per month for 38 months Monthly Income (Schedule I): $5,941.65
Monthly expenses: (Schedule J): $5,885 Disposable income: $56.65
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 provide an explanation for how he will make this payment, but he lists his employment as a "laborer" at a drilling company on Sch. I. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until December 22, 2020, whichever is later.
8:30 AM
CONT...
Debtor(s):
Alvaro Lozano
Party Information
Chapter 7
Alvaro Lozano Represented By
R Grace Rodriguez
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
1:20-11709
Jeffrey Gonzo Raymond
Chapter 7
#0.05 Pro se Reaffirmation Agreement Between Debtor and Ford Motor Credit Company LLC
Docket 10
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition date: September 23, 2020
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 Lincoln MKZ
Debtor’s valuation of property (Sch. B): $18,000 Amount to be reaffirmed: $24,566.71
APR: 5.99% (fixed)
Contract terms: $480.02 per month for 59 months Monthly Income (Schedule I): $5,309.70
Monthly expenses: (Schedule J): $5,398.50 Disposable income: <$88.80>
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 cut other expenses to ensure that he can make the payment on this debt. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until December 23, 2020, whichever is later.
8:30 AM
CONT...
Debtor(s):
Jeffrey Gonzo Raymond
Party Information
Chapter 7
Jeffrey Gonzo Raymond Represented By Allan D Sarver
Trustee(s):
Amy L Goldman (TR) Pro Se
9:00 AM
1:00-00000 Chapter
#0.00 You will not be permitted to be physically present in the courtroom.
Docket 0
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
11:00 AM
1:14-12566
Gabriel Rufus and Shirley Rufus
Chapter 13
#30.00 Trustee's Motion to Dismiss Case Due to Expiration of Plan
fr. 2/25/20, 4/28/20; 8/25/20, 10/27/20
Docket 79
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Gabriel Rufus Represented By Devin Sawdayi
Joint Debtor(s):
Shirley Rufus Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-12566
Gabriel Rufus and Shirley Rufus
Chapter 13
#31.00 Motion RE: Objection to Claim Number 8 by Claimant US Bank, NA.
Docket 85
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Gabriel Rufus Represented By Devin Sawdayi
Joint Debtor(s):
Shirley Rufus Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-10398
Jose Luis Banuelos and Maria L. Tejada
Chapter 13
#32.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19, 2/25/20; 3/31/20; 6/23/20; 8/25/20, 10/27/20
Docket 63
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Jose Luis Banuelos Represented By Leonard Pena
Joint Debtor(s):
Maria L. Tejada Represented By Leonard Pena
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-14101
Carlita Smith
Chapter 13
#33.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20; 3/31/20; 6/23/20, 9/22/20
Docket 60
*** VACATED *** REASON: Cont. to 1/26/21 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Carlita Smith Represented By
Lauren Rode
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10125
Ben Diep
Chapter 13
#34.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20
Docket 123
*** VACATED *** REASON: Ntc. of w/drawal filed 11/4/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ben Diep Represented By
Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10348
Jim K. Nikolopoulos and Ayarpi Nikolopoulos
Chapter 13
#35.00 Trustee's Motion for Order Modifying the Plan to Increase the Plan Payment Pursuant to 11 USC Sec. 1329(a) and the Percentage to be
Paid to Unsecured Creditors or, in the Alternative, Dismissing the Chapter 13 Petition Due to Debtrors' Failure to Make Debtors' Best Efforts to Repay Creditors Pursuant to 11 USC Sec. 1307(c)(6)
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20; 6/23/20; 8/25/20, 9/22/20, 10/27/20
Docket 55
*** VACATED *** REASON: Resolved through Stip Ord #61.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jim K. Nikolopoulos Represented By Scott D Olsen
Joint Debtor(s):
Ayarpi Nikolopoulos Represented By Scott D Olsen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10898
Jacqueline Desiree Landaeta Alvarez
Chapter 13
#36.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20, 10/27/20
Docket 141
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Jacqueline Desiree Landaeta Alvarez Represented By
Matthew D. Resnik Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12648
Fernando Benitez
Chapter 13
#37.00 Motion RE: Objection to Claim Number 4 by Claimant North American Savings Bank, F.S.B..
fr. 4/28/20, 5/19/20; 6/23/20, 7/21/20, 9/22/20, 10/27/20
Docket 37
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Fernando Benitez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13648
Lisa Marie Payne
Chapter 13
#38.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 64
*** VACATED *** REASON: Cont'd to 12/15/20 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Lisa Marie Payne Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10021
Nelson Humberto Pinto
Chapter 13
#39.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/22/20
Docket 110
*** VACATED *** REASON: Cont. to 12/15/20 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Nelson Humberto Pinto Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10095
Georg Bruno Ehlert
Chapter 13
#40.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20, 10/27/20
Docket 117
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #121. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Georg Bruno Ehlert Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10253
Allan Ray Cantero Padayao and Jenny Joan Agpoon
Chapter 13
#41.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 59
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Allan Ray Cantero Padayao Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Jenny Joan Agpoon Padayao Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10297
Felix Ray Wright
Chapter 13
#42.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 12/17/19, 2/25/20,4/28/20, 7/21/20, 9/22/20, 10/27/20
Docket 145
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Felix Ray Wright Represented By Vernon R Yancy
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10353
Annette Sanders-Wright
Chapter 13
#43.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20, 4/28/20; 6/23/20; 8/25/20, 9/22/20
Docket 51
*** VACATED *** REASON: Cont. to 1/26/21 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Annette Sanders-Wright Represented By Dana C Bruce
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10382
Darrell Marion Alexander
Chapter 13
#44.00 Motion to Dismiss Case for Failure to Make Plan Payments fr.9/22/20
Docket 46
*** VACATED *** REASON: Cont. to 1/26/21 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Darrell Marion Alexander Represented By Arthur H Lampel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10883
Martin Rios
Chapter 13
#45.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 55
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Martin Rios Represented By
William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10982
Nicole Karen Lee
Chapter 13
#46.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 84
*** VACATED *** REASON: Ntc. of w/drawal filed 11/4/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Nicole Karen Lee Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#47.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/24/19, 11/19/19; 1/28/20; 3/31/20; 6/23/20; 8/25/20 9/22/20, 10/27/20
Docket 138
*** VACATED *** REASON: Cont. to 12/15/20 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
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
1:17-11387
Haroutiun Papazian
Chapter 13
#48.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 1/28/20; 3/31/20; 5/19/20, 7/21/20; 8/25/20, 10/27/20
Docket 50
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Haroutiun Papazian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11387
Haroutiun Papazian
Chapter 13
#49.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 52
*** VACATED *** REASON: Cont'd to 12/15/20 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Haroutiun Papazian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12102
Arman Tombakian
Chapter 13
#50.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20, 10/27/20
Docket 74
*** VACATED *** REASON: Cont. to 12/15/20 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Arman Tombakian Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12329
Barbara Jean Woodard-Cox
Chapter 13
#51.00 Motion for Hardship Discharge Pursuant to 11 USC Sec. 1328(b)
fr. 10/27/20
Docket 91
Matter Notes:
NONE LISTED -
Tentative Ruling:
10/27/20 TENTATIVE BELOW
The court confirmed Debtor’s Plan on June 29, 2018 and required Debtor to pay $1,649 per month for 5 years, paying 47% to general unsecured creditors. The Plan also provided that at least $31,801 must be paid to priority an general unsecured creditors to comply with liquidation analysis."
On March 20, 2019, Debtor filed a Motion to Modify Plan, seeking to reduce the percentage from 17% to 30%, and to reduce the plan payment to $150 per month from March 2019 to February 2020. Thereafter, Debtor proposed that the payment would increase to $1,649 in March 2020 to the end of the plan term. An Order Granting the Motion to Modify was entered on April 24, 2019.
Debtor now moves for a hardship discharge, asserting that she was unable to resume the higher payments in March 2020 as she was suffering from multiple medical conditions in January 2020 and had to reduce her work hours. Decl. of Barbara Woodard-Cox ISO Motion ("Debtor Decl.", Ex. 4. Thereafter, Debtor, a school nurse employed by the LAUSD, was unable to resume even part-time work for the LAUSD when it closed in-person learning at its facilities in March 2020 due to the COVID-19 pandemic. Debtor contends that her health conditions worsened, and she was forced to retire. Id.
Legal Standard
The Bankruptcy Code allows the Debtor to request a hardship discharge under 11 USC § 1328(b):
11:00 AM
CONT...
Barbara Jean Woodard-Cox
Chapter 13
"at any time after 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 the 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 a claim of the estate if 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."
Debtor states that she has paid approximately $32,532 to fund her plan, to date. Id., Ex. 7. It is her position that, under the Confirmation Order, Debtor would need to contribute approximately $11,869.59 to meet the requirements of § 1328(b) (2). Debtor’s friend is willing to pay the required amount to Trustee, if her Motion is granted.
Trustee opposed the Motion, arguing that the amount proffered by Debtor is not sufficient to meet the hardship discharge standard. According to Trustee’s calculation, Debtor would need to tender $21,772.27 to pay the required amount to priority and general unsecured claims.
Debtor argues in reply that of the $32,532 that Debtor has paid into her plan, Trustee has paid $12,598.59 to secured creditors, with the remaining balance paid to parties holding unsecured and priority claims. Reply, 2:4-17. Debtor’s counsel, Borrowitz & Clark, LLP, is listed among the priority and unsecured creditors paid by Trustee.
The parties do not appear to argue that Debtor is not otherwise eligible for a hardship discharge under § 1328(b), in that Debtor’s income has been reduced due to circumstances beyond her control and that modification is not practicable. The sole issue is whether Debtor has met the liquidation standard under § 1328(b)(2).
Debtor’s calculations are as follows:
$32,532 Amount paid by Debtor to fund plan (Ex.
7)
($12,598.59) Amount paid to secured creditors by
11:00 AM CONT... | Barbara Jean Woodard-Cox | Chapter 13 |
$19,933.41 | Trustee (paid in full, per Debtor) Funds remaining to be paid by Trustee | |
to priority & unsecured creditors | ||
$31,801.00 ($19,933.41) | Amount required under Plan to be paid to priority & unsecured creditors Amount paid by Trustee to priority & | |
$11,867.59 | unsecured creditors under plan (per Debtor’s decl.) Amount required to meet liquidation | |
standard under § 1328(b)(2), per Debtor |
Of the $19,933.41 that Debtor calculates as "paid" is $2,200 in approved attorney’s fees that have yet to be paid out by Trustee, which Debtor believes should be paid from the $11,867.59. Debtor also notes that her counsel anticipates there will be approximately $3,534 in attorney’s fees related to this Motion and for responding to Trustee’s pending motion to dismiss that she believes should also be paid from the
$11,867.59 as a priority administrative claim. Trustee’s calculations are as follows:
$32,532 Amount paid by Debtor to fund plan (Ex.
7)
($12,598.59) Amount paid to secured creditors by Trustee (undisputed by Trustee?)
$19,933.41 Funds remaining to be paid by Trustee to priority & unsecured creditors
$31,801.00 Amount required under Plan to be paid to priority & unsecured creditors
($10,028.73) Amount paid by Trustee to priority & unsecured creditors under plan (per Trustee Opp.)
$21,772.27 Amount required to meet liquidation standard under § 1328(b)(2), per Trustee
Exhibit 7 to the Motion provides no clarity as to the amount Trustee has paid out to priority and unsecured creditors. According to the Chapter 13 Trustee
11:00 AM
CONT...
Barbara Jean Woodard-Cox
Chapter 13
Periodic Accounting Report (the "Trustee Report"), filed Jan. 30, 2020, ECF doc. 74,
$9,676.21 was paid to priority and unsecured creditors, not including amounts paid for attorney’s fees. Id. If attorney’s fees are included in the amount, then the Trustee Report shows $16,142.76 has been paid out to priority and unsecured creditors. It appears this is the difference in how the parties calculated the amount required to meet the liquidation requirement under § 1328(b), however neither party has provided any law or analysis on why this distinction is salient here.
TELEPHONIC APPEARANCE REQUIRED
Party Information
Debtor(s):
Barbara Jean Woodard-Cox Represented By Barry E Borowitz Michael E Clark
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12329
Barbara Jean Woodard-Cox
Chapter 13
#52.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 87
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Barbara Jean Woodard-Cox Represented By Barry E Borowitz Michael E Clark
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10412
Rhonda Denise Hawkins
Chapter 13
#53.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 63
*** VACATED *** REASON: Ntc. of w/drawal filed 11/16/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Rhonda Denise Hawkins Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#54.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 55
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Marvin Eleid Represented By
Steven Abraham Wolvek
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#55.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20; 6/23/20; 8/25/20, 9/22/20, 10/27/20
Docket 45
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Marvin Eleid Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10772
Anna Gevorkian
Chapter 13
#56.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 86
*** VACATED *** REASON: Cont. to 1/26/21 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Anna Gevorkian Represented By Robert T Chen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10898
Consuelo Ramos
Chapter 13
#57.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 35
*** VACATED *** REASON: Trustee filed a withdrawal - doc. #42. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Consuelo Ramos Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11550
Andrea L Cervantes
Chapter 13
#58.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/25/20, 9/22/20, 10/27/20
Docket 42
*** VACATED *** REASON: Ntc. of w/drawal filed 11/13/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Andrea L Cervantes Represented By Stephen S Smyth William J Smyth
Andrew Edward Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12453
Mark Anthony Rivera
Chapter 13
#59.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 41
*** VACATED *** REASON: Cont. to 1/26/21 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mark Anthony Rivera Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12473
Stephen Anthony Cook
Chapter 13
#60.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20; 3/31/20; 6/23/20, 9/22/20
Docket 56
*** VACATED *** REASON: Cont. to 1/26/21 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen Anthony Cook Represented By Lauren Rode
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12549
Moshe Cohen
Chapter 13
#61.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 78
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Moshe Cohen Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12790
Frank Vincent Ciraci and Millicent Helen Whiteside
Chapter 13
#62.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 38
*** VACATED *** REASON: Notice of w/drawal filed 11/13/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Frank Vincent Ciraci Represented By Steven L Bryson
Joint Debtor(s):
Millicent Helen Whiteside Represented By Steven L Bryson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12865
Iveta Vardanyan
Chapter 13
#63.00 Trustee's Motion to Dismiss Chapter 13 Case due to Material Default of Plan: Failure to Submit all Tax Refunds
fr. 10/27/20
Docket 25
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Iveta Vardanyan Represented By Aris Artounians
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10003
Edwin E. Vidanez
Chapter 13
#64.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20; 3/31/20, 7/21/20, 9/22/20, 10/27/20
Docket 25
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #37. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Edwin E. Vidanez Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10043
Douglas Henry Baylis
Chapter 13
#65.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 61
*** VACATED *** REASON: Cont. to 12/15/20 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Douglas Henry Baylis Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10108
Wilfredo Castillo and Carmen Rosa Castillo
Chapter 13
#66.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20, 10/27/20
Docket 56
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #63. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Wilfredo Castillo Represented By Donald E Iwuchuku
Joint Debtor(s):
Carmen Rosa Castillo Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10457
Gerardo Melendez and Maribel Melendez
Chapter 13
#67.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 82
*** VACATED *** REASON: Cont'd to 12/15/20 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Gerardo Melendez Represented By Shai S Oved
Joint Debtor(s):
Maribel Melendez Represented By Shai S Oved
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10486
Luis Mauricio Iglesias
Chapter 13
#68.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 24
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Luis Mauricio Iglesias Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10781
Daniel Correa
Chapter 13
#69.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 3/31/20, 4/28/20; 6/23/20, 9/22/20
Docket 32
*** VACATED *** REASON: Cont. to 1/26/21 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Daniel Correa Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10836
Melissa D Kurtz
Chapter 13
#70.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20
Docket 68
*** VACATED *** REASON: Contd to 12/15/20 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Melissa D Kurtz Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10984
Ernesto Martinez and Gabriela Martinez
Chapter 13
#71.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 49
*** VACATED *** REASON: Ntc. of w/drawal filed 11/13/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Ernesto Martinez Represented By
R Grace Rodriguez
Joint Debtor(s):
Gabriela Martinez Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11159
Craig Huxley
Chapter 13
#72.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 37
*** VACATED *** REASON: Cont'd to 1/26/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Craig Huxley Represented By
Shai S Oved
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11281
Mary Helen Robertson
Chapter 13
#73.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20
Docket 36
*** VACATED *** REASON: Cont. to 2/23/21 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mary Helen Robertson Represented By Randolph L Neel
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11597
Dalton Roberto Toledo and Sanci Beth Solis
Chapter 13
#74.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/22/20
Docket 30
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #39. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Dalton Roberto Toledo Represented By Michael E Clark
Joint Debtor(s):
Sanci Beth Solis Represented By Michael E Clark
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11762
Christopher Michael Niblett
Chapter 13
#75.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 66
*** VACATED *** REASON: Cont. to 2/21/21 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Christopher Michael Niblett Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11874
Lisa M. Bueno
Chapter 13
#76.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 34
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Lisa M. Bueno Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12138
Bruno Alain Rosenthal
Chapter 13
#77.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 4/28/20, 7/21/20, 9/22/20
Docket 33
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Bruno Alain Rosenthal Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12205
Mauricio Nunez
Chapter 13
#78.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20, 9/22/20, 10/27/20
Docket 41
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Mauricio Nunez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12260
Irene Elizabeth Franklin
Chapter 13
#79.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/22/20
Docket 32
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Irene Elizabeth Franklin Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12264
Hrayer Chouchanian
Chapter 13
#80.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 45
*** VACATED *** REASON: Trustee filed a withdrawal - doc. #52. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Hrayer Chouchanian Represented By Tamar Terzian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12717
Laura Pena
Chapter 13
#81.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 43
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Laura Pena Represented By
Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12717
Laura Pena
Chapter 13
#82.00 Motion under Local Bankruptcy Rule 3015-1 (n) and
(w) to modify plan or suspend plan payments
Docket 49
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Laura Pena Represented By
Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12874
Anne Dorothy Renzo
Chapter 13
#83.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/22/20, 10/27/20
Docket 30
*** VACATED *** REASON: Case was converted to Ch. 7 - Doc #47. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Anne Dorothy Renzo Represented By Peter M Lively
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12874
Anne Dorothy Renzo
Chapter 13
#84.00 Motion under Local Bankruptcy Rule 3015-1 (n) and (w) to modify plan or suspend plan payments
fr. 9/22/20, 10/27/20
Docket 32
*** VACATED *** REASON: Order granting motion was entered - doc.
44. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Anne Dorothy Renzo Represented By Peter M Lively
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12962
Benito Carrera and Veronica Ramos
Chapter 13
#85.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 40
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Benito Carrera Represented By Giovanni Orantes
Joint Debtor(s):
Veronica Ramos Represented By Giovanni Orantes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13009
Edward V. Marquez and Elva Marquez
Chapter 13
#86.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 46
*** VACATED *** REASON: Ntc. of w/drawal filed 11/4/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Edward V. Marquez Represented By Joshua L Sternberg
Joint Debtor(s):
Elva Marquez Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13021
Peter Clayton Purcell
Chapter 13
#87.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/22/20
Docket 37
*** VACATED *** REASON: Cont. to 1/26/21 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Peter Clayton Purcell Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13061
Madeleine De Bois
Chapter 13
#88.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 24
*** VACATED *** REASON: Cont. to 12/15/20 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Madeleine De Bois Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13140
Kristen Louise Aceves
Chapter 13
#89.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 30
*** VACATED *** REASON: Ntc. of w/drawal filed 11/13/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Kristen Louise Aceves Represented By
Rabin J Pournazarian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10037
Andrew Blas Lorenzo
Chapter 13
#90.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20
Docket 43
*** VACATED *** REASON: Cont'd to 1/26/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Andrew Blas Lorenzo Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10480
Eliachar Elliott Mamann
Chapter 13
#91.00 Trustee's Objection to Homestead Exemption fr. 6/23/20, 7/21/20; 8/25/20, 9/22/20
Docket 15
Matter Notes:
NONE LISTED -
Tentative Ruling:
Updated 11-17-20 Tentative below:
Trustee opposes Debtor's attempt to exempt 100% of the fair market value in two checking accounts, $20,005.29 under C.C.P. 704.070 and $6,950 under
C.C.P. 704.080 because Debtor has not provided evidence that the funds are exempt under these sections.
Trustee also opposes Debtor's attempt to exempt $170,000 in in a private retirement account under C.C.P. 704.115(a)(1) and (a)(2) because Debtor has not provided evidence that the funds are exempt under these sections.
In response, Debtor explained that he amended his Schedule C to remove the exemption under 704.070 in the two checking accounts. Debtor contends, however, that he has submitted bank statements to show that his monthly Social Security income is deposited into one of the accounts and the funds therein are exempt under 704.080.
Debtor also argues that his Private Retirement Trust is exempt pursuant to
C.C.P. § 704.115(a)(1) & (2) and (b). Debtor contends that the exemption does not require that the Private Retirement Trust be ERISA qualified. Debtor explains that he is employed through his business, Apex Window Treatments, which is sole proprietorship. Through that sole proprietorship, Debtor created a Private Retirement Plan as allowed under C.C.P. §704.115(a)(1). The assets of that plan consist of an annuity which is payable on account of the age of Debtor. Debtor explains that the plan was created for retirement
11:00 AM
CONT...
Eliachar Elliott Mamann
Chapter 13
purposes, as Debtor is 71 years old and his only retirement assets are social security of $585 per month and the Private Retirement Trust. Debtor argues that the Private Retirement Trust is exempt because it was created by the employer, in this case a sole proprietorship, for the benefit of the Debtor.
DeMassa v. McIntyre (In re McIntyre), 74 F.3d 186 (9th Cir. 1996); Salameh v. Tarsadia Hotel, 2015 US Dist. Lexis 14008 (S.D. Cal. 2015). Debtor maintains that under 704.115(a)(1), the entire plan is exempt if the criteria for self-employed plans is applied because the plan is exempt to the extent that it is reasonably necessary for Debtor’s support. It is Debtor's position that the entire amount is necessary for his support. The only asset of the plan is an annuity which is payable on account of the age of the Debtor and therefore the annuity would be independently exempt under 704.100.
On 6/17/2020, Trustee filed a reply in which she asserted that if the funds transferred to Debtor's "Private Retirement Trust" were not previously in a qualified retirement account, then the transfer may be a preference under §
548. Trustee requested that Debtor provide an explanation and evidence as to the source of the funds and the timing of the purchase of the annuity.
The Court continued this matter from September 22, 2020 so that Debtor’s counsel could provide information to the Court and Trustee about when, how, and from what source the annuity at issue was funded. This information was to assist in determining whether the subsequent transfer to the "retirement trust" may be characterized as a preference. On November 6, 2020, Debtor filed a response explaining that he did disclose the transfer of the annuity to the "retirement trust" in his Statement of Financial Affairs. After three continuances of this matter, Debtor did not, in his substantive two paragraph response, proffer any of the requested information about when, how, and from what source the annuity at issue was funded.
Trustee’s objection to Debtor’s claim of exemption in the "Private Retirement Trust" is SUSTAINED.
Party Information
Debtor(s):
Eliachar Elliott Mamann Represented By William E. Winfield
11:00 AM
CONT...
Trustee(s):
Eliachar Elliott Mamann
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-11245
Carlos R Moyano and Rosa E. Moyano
Chapter 13
#92.00 Motion to Avoid Lien Junior Lien with Indymac Bank, FSB/CIT Bank, N.A
fr. 8/25/20, 9/22/20, 10/27/20
Docket 12
*** VACATED *** REASON: Cont'd to 12/15/20 per Order #40. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Carlos R Moyano Represented By Nathan A Berneman
Joint Debtor(s):
Rosa E. Moyano Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12226
Stephen Haskell Powers
Chapter 13
#93.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 59
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Stephen Haskell Powers Represented By
Raj T Wadhwani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
8:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1614932662 Meeting ID: 161 493 2662
Docket 0
8:00 AM
CONT... Chapter
Tentative Ruling:
NONE LISTED -
9:30 AM
1:20-10474
Dewayne Anthony Brady
Chapter 13
#1.00 Motion for relief from stay
US BANK NATIONAL ASSOCIATION
fr. 9/9/20
Docket 25
Tentative Ruling:
Petition Date: 2/27/2020
Chapter 13 plan confirmed: 6/5/2020 Service: Proper. Opposition filed.
Property: 10317 Steven Pl., Chatsworth, CA 91311 Property Value: $749,711 (per debtor’s schedules) Amount Owed: $997,790.35
Equity Cushion: 0.0% Equity: $0.00.
Post-Petition Delinquency: $12,370.57 (3 payments of $4,150.89; less suspense balance of $82.10)
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 the Motion should be denied as he has applied for a "Mortgage Assistance Streamline Modification" with Movant and a trial period plan was offered & accepted.
Does Debtor's perfomance under a trial period plan resolve the issues raised in this Motion?
APPEARANCE REQUIRED
Party Information
9:30 AM
CONT...
Debtor(s):
Dewayne Anthony Brady
Chapter 13
Dewayne Anthony Brady Represented By Allan S Williams
Movant(s):
U.S. BANK NATIONAL Represented By Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-10565
Pamela M. Sorenson
Chapter 13
#2.00 Motion for relief from stay
WILMINGTON TRUST NATIONAL ASSO.
Docket 51
Tentative Ruling:
Petition Date: 03/11/2019
Chapter 13 plan confirmed: 7/22/19 Service: Proper. Opposition filed.
Property: 11052 Reseda Blvd., Northridge, CA 91326
Property Value: 582,000.00 (per debtor’s schedules) (Property is owned in Tenancy in Common… Debtor's portion is $145,000.00).
Amount Owed: $358,890.82 (per Movant's papers) Equity Cushion: 38.33%
Equity: $223,109.18
Post-Petition Delinquency: $ 6,419.86 ( 3 payments of $2,323.05 less suspense $549.29)
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); 3 (option to enter into forbearance agreement, loan modification, refinance agreement); 6 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay). Movant asserts there are grounds for relief from the stay because the Debtor has failed to make postpetition payments. Movant alleges that the Debtor has only made partial payments for the months of August, September and October 2020.
The Debtor opposes this motion because the Debtor believes that the property was wrongfully reassessed by the LA County Assessor's Office. Debtor claims that there is $390,000.00 in equity in the property.
Whether the Court applies the numbers provided by the Debtor's schedules and movant's papers or the Debtor's adjusted figures, there appears to be a substantial amount of equity in the property. Have the parties discussed
10:00 AM
CONT...
Pamela M. Sorenson
Chapter 13
entering into an APO?
Appearance Required.
Debtor(s):
Party Information
Pamela M. Sorenson Represented By Michael D Luppi
Movant(s):
Wilmington Trust, National Represented By Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11101
Jorge Silva
Chapter 13
#3.00 Motion for relief from stay HYUNDAI LEASE TITLIGN TRUST
Docket 34
Tentative Ruling:
Petition Date: 05/03/19
Chapter 13 plan confirmed: 9/18/19 Service: Proper. No Opposition filed.
Property: 2017 Kia Optima (Vin # KNAGT4LC8H5008751) Property Value: Not listed on Debtor's Schedules.
Amount Owed: $13,329.60 Equity Cushion: 0% Equity: $0
Post-Petition Delinquency: $0
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 asserts there are grounds for relief from the stay because the lease has matured and the Debtor voluntarily surrender the vehicle to the Movant.
Cause exists for lifting the stay.
Disposition: GRANT 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).
No Appearance Required.
Party Information
10:00 AM
CONT...
Debtor(s):
Jorge Silva
Chapter 13
Jorge Silva Represented By
Glenn Ward Calsada
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11717
Lois Ann Harris
Chapter 13
#4.00 Motion for relief from stay
LAUREL LUXURY HOMEOWNERS ASSO.
Docket 92
*** VACATED *** REASON: Resolved per APO - hm Tentative Ruling:
VACATED. Pursuant to APO. No Appereance Required.
Party Information
Debtor(s):
Lois Ann Harris Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Movant(s):
Laurel Luxury HOA Represented By Neil B Katz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
#5.00 Motion for relief from stay MARIA SAUCEDO
Docket 97
Tentative Ruling:
Petition Date: 07/31/2019 Ch. 11
Service: Proper. No Opposition Movant: Maria Saucedo
Relief Sought to: Pursue Pending Litigation _X
Commence Litigation
Pursue Insurance
Litigation Information
Other
Case Name: Maria Saucedo v. Sergio San Vincente, Et. (LC107140) Court/Agency: Superior Court of the State of California, County of Los Angeles
Date Filed: 04/19/2018 Trial Start Date: NA
Action Description: Fraud, Intentional Misrepresentation, Constructive Fraud, Breach of Fiduciary Duty, Business and Professions Code 17200, Civil Code Section 2945, and California Consumer Legal Remedies.
Bad Faith
Claim is Insured
Claim Against 3rd Parties _X
Nondischargeable X_ Mandatory Abstention Non-BK Claims Best Resolved in Non-BK Forum _X Other:
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law). Movant seeks recovery from primarily third parties and agrees that the stay will remain in effect as to the enforcement of any resulting judgment against the Debtor or Debtor's estate, except that Movant will retain the right to file a proof of claim under Section 501 and/or an adversary proceeding under 523
10:00 AM
CONT...
Maria Estela San Vicente
Chapter 11
or 727.
This state court case is well underway and it appears to involve largely state law claims. Cause exists for allowing the state court case to proceed to judgment.
Disposition: GRANT relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law).
No Appearance Required.
Debtor(s):
Party Information
Maria Estela San Vicente Represented By Thomas B Ure
10:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
#6.00 Motion for relief from stay ROSA SAUCEDO
Docket 98
Tentative Ruling:
Petition Date: 07/31/2019 Ch. 11
Service: Proper. No Opposition Movant: Rosa Saucedo
Relief Sought to: Pursue Pending Litigation _X
Commence Litigation
Pursue Insurance
Litigation Information
Other
Case Name: Rosa Saucedo v. Sergio San Vincente, Et. (LC104925) Court/Agency: Superior Court of the State of California, County of Los Angeles
Date Filed:11/28/2016 Trial Start Date: NA
Action Description: Fraud, Intentional Misrepresentation, Constructive Fraud, Breach of Fiduciary Duty, Business and Professions Code 17200, Civil Code Section 2945, and California Consumer Legal Remedies.
Bad Faith
Claim is Insured
Claim Against 3rd Parties _X
Nondischargeable X_ Mandatory Abstention Non-BK Claims Best Resolved in Non-BK Forum _X Other:
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law). Movant seeks recovery from primarily third parties and agrees that the stay will remain in effect as to the enforcement of any resulting judgment against the Debtor or Debtor's estate, except that Movant will retain the right to file a proof of claim under Section 501 and/or an adversary proceeding under 523
10:00 AM
CONT...
Maria Estela San Vicente
Chapter 11
or 727.
This state court case is well underway and it appears to involve largely state law claims. Cause exists for allowing the state court case to proceed to judgment.
Disposition: GRANT relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law).
No Appearance Required.
Debtor(s):
Party Information
Maria Estela San Vicente Represented By Thomas B Ure
10:00 AM
1:19-12351
Hadar Heather Sadon and Sharon Sadon
Chapter 13
#7.00 Motion for relief from stay VW CREDIT LEASING, LTD
Docket 52
*** VACATED *** REASON: VACATED pursuant to order granting stipulation at Docket No 58
Tentative Ruling:
VACATED pursuant to order granting stipulation at Docket No 58. No Apperance Required.
Party Information
Debtor(s):
Hadar Heather Sadon Represented By Jeffrey J Hagen
Joint Debtor(s):
Sharon Sadon Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10037
Andrew Blas Lorenzo
Chapter 13
#8.00 Motion for relief from stay
U.S. BANK NATIONAL ASSO fr. 5/13/20; 6/24/20
Docket 35
Tentative Ruling:
Continued from 6/24/20
This hearing was continued from 6/24/20 so the parties could work on an APO to resolve this matter. Debtor requested for mortgage forbearance due to COVID-19 for 180 days (Dkt. No. 40). Movant agrees to forbearance agreement (Dkt. No. 41).
The Court found cause to continue the hearing to November 18, 2020. Payments were set to resume on November 1, 2020.
APPERANCE REQUIRED.
Continued from 5/13/20
This hearing was continued from 5/13/20 so that the parties could work on an APO to resolve this matter. Debtor requested for mortgage forbearance due to the COVID-19 pandemic for 180 days (doc 40). Movant agrees to forbearance agreement (doc.41).
Due to the forbearance agreement, the Court finds cause to continue the hearing to September 10, at 10:00 AM.
NO APPEARANCE REQUIRED
Party Information
Debtor(s):
Andrew Blas Lorenzo Represented By Kevin T Simon
10:00 AM
CONT...
Trustee(s):
Andrew Blas Lorenzo
Chapter 13
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10127
James Anthony Torres and Miriam Araceli Torres
Chapter 13
#9.00 Motion for relief from stay METROPOLITAN LIFE INSURANCE CO.
Docket 32
Tentative Ruling:
Petition Date: 1/17/2020
Chapter 13 plan confirmed: 4/13/2020 Service: Proper. Opposition filed.
Property: 17526 Saticoy St, Van Nuys, CA 91406 Property Value: $310,000.00 (per debtor’s schedules) Amount Owed: $262,544.82 (per Movant's papers) Equity Cushion: 15.3%
Equity: $47,455.18
Post-Petition Delinquency: $ 5,491.94 ( 1 payment of $2,234.25 and 2 payments of $2,105.725 less suspense $2,184.75)
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); 3 (option to enter into forbearance agreement, loan modification, refinance agreement); and 7 (waiver of the 4001(a)(3) stay). Movant asserts there are grounds for relief from the stay because the Debtor has failed to make postpetition payments. Movant alleges that the last payment was received on 10/13/2020.
The Debtor opposes this motion and seeks an APO for $5,491.94. Debtors will resume their ongoing monthly mortgage payments beginning in November 2020.
There is enough equity in the property to provide an APO for the delinquency. Are parties amendable to entering into an APO?
Appearance Required.
Party Information
10:00 AM
CONT...
Debtor(s):
James Anthony Torres and Miriam Araceli Torres
Chapter 13
James Anthony Torres Represented By
Raj T Wadhwani
Joint Debtor(s):
Miriam Araceli Torres Represented By
Raj T Wadhwani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11578
Angelo Giovanni Toledo
Chapter 7
#10.00 Motion for relief from stay
TOYOTA MOTOR CREDIT CORPORATION
Docket 10
Tentative Ruling:
Petition Date: 08/31/2020 Chapter 7
Service: Proper. No Opposition filed.
Property: 2017 Toyota Tundra (Vin # 5TFUY5F13HX658132) Property Value: $25,000.00
Amount Owed: $31,278.47 Equity Cushion: 0% Equity: $0
Post-Petition Delinquency: $790.98 (1 postpetition payment)
Movant requests relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant asserts there are grounds for relief from the stay because the fair market value of the Property is declining and the Movant is not making postpetition payments to protect against and Debtor has failed to provide proof of insurance. Last payment was received on June 30, 2020.
Cause exists for lifting the stay.
Disposition: GRANT relief under 11 U.S.C. 362(d)(1), with the specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay).
No Appearance Required.
Party Information
10:00 AM
CONT...
Debtor(s):
Angelo Giovanni Toledo
Chapter 7
Angelo Giovanni Toledo Represented By Steven A Alpert
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:20-11862
Anthony Antoniello and Tamara Marie Antoniello
Chapter 13
#11.00 Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate 21608
Los Alimos Street Chatsworth, CA 91311; 7704 McNulty Avenue West Hills, CA 91307
Docket 7
Tentative Ruling:
On 10/19/2020, Debtor filed this chapter 13 case. Debtor had three previous bankruptcy case, only one in which was dismissed within the last year. The first filing, 98-12538, was a chapter 7 that was filed on 2/24/1998 and a standard discharge was issued on 07/14/1998. The second filing, 14-12032, was a chapter 13 case that was filed on 4/18/2014 and dismissed on 06/14/2017 for failure to make plan payments. The third filing, 17-11732, was a chapter 13 case filed on 06/29/17 and dismissed on 7/22/2020 for failure to make plan payments.
Debtor now moves for an order continuing the automatic stay as to a 2005 Bayliner and real property located at 21608 Los Alimos St, Chatsworth CA 91311. Debtor argues that the present case was filed in good faith notwithstanding the dismissal because Debtors' prior case was dismissed for failure to tender plan payments. One of the Debtors is self-employed in tile installation in his prior case. Due to the COVID-19 pandemic, he experienced a large lull in business. Additionally, Debtor's brother was ill and Debtor was supporting him financially. Debtor even assisted his brother to complete his Chapter 13 bankruptcy payments as well. Debtors fell behind on plan payments, and could not catch up. Their case was subsequently dismissed. After Debtors' case was dismissed, their business income steadily increased. Debtors' income is now sufficient to fund their plan. Mr. Antoniello's brother's estate is also now settled. With this change in circumstance, Debtors will be able to afford all plan and mortgage payments going forward to successfully complete their plan.
Wilmington Trust, National Association, as Trustee for MFRA Trust 2016-1 ("Secured Creditor") is the secured creditor as to the 21608 Los Alimos St,
10:00 AM
CONT...
Anthony Antoniello and Tamara Marie Antoniello
Chapter 13
Chatsworth CA property. The Secured Creditor opposes extending the stay. To date, Debtors have not filed Schedules I and J nor a proposed Chapter 13 Plan. Wilmington Trust submits that Debtors’ alleged positive change in finances is speculative. In addition, this case is the third bankruptcy affecting the Property since April 18, 2014. On April 18, 2014, Debtors filed a voluntary petition under Chapter 13 of the United States Bankruptcy Code commencing United States Bankruptcy Court, Central District of California, Case No. 1:14- bk-12032-VK (the “First Case”). On March 25, 2015, Debtors’ plan was confirmed. On November 8, 2016, Wilmington Trust’s predecessor in interest, Wells Fargo Bank N.A., filed a Motion for Relief from the Automatic Stay in the First Case. In December, 2016, the parties entered into an adequate protection stipulation allowing debtors time to cure the post-petition delinquency. On December 24, 2016, the Court entered an Adequate Protection Order. The First Case was dismissed on June 14, 2017 due to Debtors’ failure to make plan payments.
Debtors respond by stating there has been a significant change in circumstance from their prior case. Mr. Antoniello’s business has rebounded, and his income has increased steadily and is now consistent. Ms. Antoniello’s income has increased from their prior case as well. Mr. Antoniello’s brother’s estate has been settled, so he no longer has the additional financial obligation of assisting his brother. The Debtors’ income has thus stabilized since their prior case, allowing them to afford all future plan and mortgage payments.
Debtors’ household net income totals $12,042.35. The Debtors’ household expenses total $9,541.54. Their disposable monthly income is thus $2,500.81 and sufficient to fund the plan. Additionally, the Debtors filed their plan an schedules on the same day that the Secured Creditor filed their opposition and the plan accommodates the Secured Creditor's estimated balance.
Schedule I & J, filed at Dkt. No. 19, do support the Debtors' position that their finances have improved enough to where they can make plan payments.
While there will be issues that need to be worked out in order to get a plan confirmed, there appears to be enough of a good faith by the Debtors to warrant extending the stay.
MOTION GRANTED. APPEARANCE REQUIRED.
10:00 AM
CONT...
Debtor(s):
Anthony Antoniello and Tamara Marie Antoniello
Party Information
Chapter 13
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
10:00 AM
1:20-11923
Bonnie Kay Lopez
Chapter 13
#11.01 Motion in Individual Case for Order Imposing a Stay or
Continuing the Automatic Stay as the Court Deems Appropriate 8051 Paso Robles Avenue, Van Nuys, CA 91406 .
Docket 14
Tentative Ruling:
On 10/27/2020, Debtor filed this chapter 13 case. Debtor has had four previous bankruptcy case, only one in which was dismissed within the last year. Debtor moves to impose the automatic stay as to a 2019 Jeep Cherokee and real property located at 8051 Paso Robles, Ave., Van Nuys, CA 91406.
Debtor believes that good faith is shown becuase during the prior bankruptcy case, Debtor's income dropped due to knee surgeries and complications arising thereto. Debtor has since retired and recieves Social Security, retirement incom, and mor IHSS income. Additionally, the Debtor's husband has since returned to work. Debtor believes she is able to proceed with the confirmation of a plan.
The Court believes cause exists for imposing the automatic stay. MOTION GRANTED.
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
Bonnie Kay Lopez Represented By
Raj T Wadhwani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:30 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
#12.00 Motion for Final Decree & Entry of Chapter 11 Discharge
Docket 146
Tentative Ruling:
Service proper. No objections filed. Having reviewed the Motion for Final Decree, the Court finds that the requirements for entry of final decree and discharge are met. Motion GRANTED.
MOVANT TO LODGE ORDER WITHIN 7 DAYS. APPEARANCES WAIVED ON 11-18-20.
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
10:30 AM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
#13.00 Motion RE: Objection to Claim Number 5 by Claimant Behrouz Aframian.
Docket 94
*** VACATED *** REASON: Ntc. of w/draw filed 10/22/20 (eg) Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
Trustee(s):
David Seror (TR) Represented By Reagan E Boyce Richard Burstein Jorge A Gaitan Jessica L Bagdanov Jessica Wellington
10:30 AM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
#15.00 Motion RE: Objection to Claim Number 8 by Claimant Robert Askar and Eva Askar
Docket 96
Tentative Ruling:
On March 14, 2019, Claim 8-1 was untimely filed on behalf of Claimants Robert and Eva Askar ("Claimants"). The Claim asserts a $770,000 nonpriority unsecured claim on account of "Loan to Debtor; Value of Stock Certificates Issued by Debtor." No loan agreement is attached to the Claim. The documentation provided in support of the Claim is a note signed by the Debtor's principal stating that he collateralized the DOT and purportedly borrowed
$350,000 from Claimants through the Assignment of Rents. Trustee points out that this note is not supported by a declaration.
The documentation in support of the Claim also includes three stock certificates (the "Stock Certificates"), dated October 12, 2016, October 8, 2015 (the same date as the Assignment of Rents was executed), and October 29, 2018 (which is postpetition and after the claims bar date), respectively, representing that Claimants are the registered holders of shares in the Debtor in the aggregate amount of 82,000,000. The documentation also includes two certifications (the "Certifications") signed by Robert Askar stating that he received 40,000,000 shares in the Debtor, which is equivalent to a $400,000 investment and 2,000,000 shares, which is equivalent to a $20,000 investment. There is no certification regarding the remaining 40,000,000 shares issued to Claimants.
After review of the Claim, on August 25, 2020, Trustee states that his counsel sent an email to counsel for Claimant, seeking further information regarding the nature and amount of the Claim. Objection to Claim, Exhibit 7. Trustee asserts that his counsel did not receive a response to that email. See Bagdanov Decl. ISO Objection.
Under section 502, a proof of claim is deemed allowed, unless a party of interest objects. Under FRBP 3001(f), "a proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." FRBP 3001-3007. LR 3007-1. A proof of claim
10:30 AM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate; (3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed.
Rev. 2004) ¶3001.05[2].
Per 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. In re Heath, 331 B.R. at 435, 437-38. 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. Under In re Campbell, 336 B.R. 430 (B.A.P. 9th Cir. 2005), 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 holds that, "[o]bjections without substance are inadequate to disallow claims, even if those claims lack the documentation required by Rule 3001(c)."
"The court, after notice and a hearing, shall determine the amount of such claim… as of the date of the filing of the petition, and shall allow such claim, except to the extent that – (1) such claim is unenforceable against debtor and the property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unliquidated." 11 U.S.C.
§502(b).
An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR 3007-1(c).
10:30 AM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
Should objection be taken, the objector is then called upon to produce evidence and show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves. But the ultimate burden of persuasion is always on the claimant. Thus, it may be said that the proof of claim is some evidence as to its validity and amount. It is strong enough to carry over a mere formal objection without more. 3 L. King, Collier on Bankruptcy § 502.02, at 502–22 (15th ed. 1991).
It is generally held that failure to attach writings to a proof of claim does not require a bankruptcy court to disallow a claim on that basis alone. Rather, the claim is not entitled to be considered as prima facie evidence of the claim's validity. Ashford v. Consolidated Pioneer Mortgage Co. (In re Consolidated Pioneer Mortgage Co.), 178 B.R. 222, 226 (B.A.P. 9th Cir. 1995). PoC 8 was filed without documentation to support the claim, which Trustee argues is insufficient to confer prima facie validity because there is no loan agreement attached to the Claim, there is no declaration to support the assertions that the note was signed by Debtor, and that there is no certification of 40,000,000 shares of stock allegedly issued to Claimants.
Based on this lack of prima facie validity afforded PoC 8, Trustee argues that the Claim be disallowed in its entirety. Service was proper on Claimants, at the address listed for notice on Proof of Claim 8-1. No response filed. Where a claim is found to lack the evidence required for prima facie validity under FRBP 3001, the claimant is required to allege facts sufficient to support their claim when facing an objection to claim. In re Consolidated Pioneer Mortgage Co., 178 B.R. at 226.
Objection to Claim 8 is SUSTAINED. Trustee to lodge order within 7 days. NO APPEARANCE REQUIRED ON 11-18-2020.
Party Information
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
Trustee(s):
David Seror (TR) Represented By Reagan E Boyce
10:30 AM
CONT...
ALLIANCE FUNDING GROUP INC.
Richard Burstein Jorge A Gaitan Jessica L Bagdanov Jessica Wellington
Chapter 7
10:30 AM
1:17-13122
Laurie Jean Steichen and Walter Clifford Ingram
Chapter 7
#16.00 Trustee's Fianl Report and Application for Compensation and Deadline to Object
Trustee:
Diane C. Weil
Attorney for Trustee: Roquemore, Pringle & Moore Inc.
Docket 60
Tentative Ruling:
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 11-18-2020.
Party Information
Debtor(s):
Laurie Jean Steichen Represented By
J. Bennett Friedman
Joint Debtor(s):
Walter Clifford Ingram Represented By
J. Bennett Friedman
Trustee(s):
Diane C Weil (TR) Represented By
Michelle A Marchisotto
10:30 AM
1:18-11545
Ian Ellis Silber and Jane Ellen Silber
Chapter 11
#17.00 Disclosure Statement Describing Chapter 11 Plan of Reorganization
Docket 164
Tentative Ruling:
The objection filed by creditor Irene Silber prematurely focuses on issues that are concerns for confirmation, rather than disclosure. As relates to the SureTec Insurance objection, Debtors' counsel, in their reply, explained that they have engaged in discussions related to the characterization and priority of various claims set forth in the Debtors’ Plan, ECF doc. 165. While Debtors have amended their Schedules D, E and F to match the updated preliminary title reports they recently obtained, the Disclosure Statement and Plan must now be revised to comport with the amended Schedules.
Debtors' counsel should be prepared to discuss the date by which they will file an amended disclosure statement and amended plan.
APPPEARANCE REQUIRED
Party Information
Debtor(s):
Ian Ellis Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia Joyce Owens
Joint Debtor(s):
Jane Ellen Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
10:30 AM
1:18-11545
Ian Ellis Silber and Jane Ellen Silber
Chapter 11
#18.00 Ch. 11 Scheduling and Case Management Conference
fr. 8/27/20
Docket 1
Tentative Ruling:
APPEARANCE REQUIRED
Debtor(s):
Party Information
Ian Ellis Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia Joyce Owens
Joint Debtor(s):
Jane Ellen Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
10:30 AM
1:19-11292
Mani Mukherjee
Chapter 7
#19.00 Motion to Avoid Lien
Docket 93
Tentative Ruling:
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.
Party Information
Debtor(s):
Mani Mukherjee Represented By Armen Shaghzo
Trustee(s):
Nancy J Zamora (TR) Represented By Peter J Mastan
Dinsmore & Shohl llP Ashleigh A Danker
10:30 AM
1:19-11292
Mani Mukherjee
Chapter 7
#20.00 Trustee's Motion for Order:
Authorizing the Private Sale of Real Property Located at 4408 Tosca Road, Los Angeles, California 91364 Outside the Ordinary Course of Business, Free and Clear of Claims, Liens, Encumbrances and Interests; and
Approving a Compromise with Debtor fr. 10/28/20
Docket 84
Tentative Ruling:
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.
Party Information
Debtor(s):
Mani Mukherjee Represented By Armen Shaghzo
Trustee(s):
Nancy J Zamora (TR) Represented By Peter J Mastan
Dinsmore & Shohl llP Ashleigh A Danker
10:30 AM
1:19-11368
Yolanda A Jackson and Michael Oshea Jackson
Chapter 7
#21.00 Trustee's Final Report and Application for Compensation and Deadline to Object
Docket 38
Tentative Ruling:
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 11-18-2020.
Party Information
Debtor(s):
Yolanda A Jackson Represented By Karen Ware
Joint Debtor(s):
Michael Oshea Jackson Represented By Karen Ware
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:30 AM
1:19-12812
Morsheda Jhumur Hosain
Chapter 7
#22.00 Application for Compensation of Interim Fees and/or Expenses for LEA Accountancy, LLP, Accountant, Period: 6/5/2020 to 10/21/2020, Fee: $2,564.00, Expenses: $194.45.
Docket 103
Tentative Ruling:
Service proper. No objections filed. Having reviewed the Application for Compensation of Interim Fees and/or Expenses for LEA Accountancy, LLP, 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 11-18-20.
Party Information
Debtor(s):
Morsheda Jhumur Hosain Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Anthony A Friedman
10:30 AM
1:19-12812
Morsheda Jhumur Hosain
Chapter 7
#23.00 Application for Payment of Interim Fees and/or Expenses
(11 U.S.C. § 331) - for Levene, Neale, Bender, Yoo & Brill L.L.P., Trustee's Attorney, Period: 12/16/2019 to 9/30/2020,
Fee: $82,953.00, Expenses: $4,040.10.
Docket 106
Tentative Ruling:
Service proper. No objections filed. Having reviewed the Application for Payment of Interim Fees and/or Expenses for Levene, Neale, Bender, Yoo & Brill L.L.P., Trustee's Attorney, 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 11-18-20.
Party Information
Debtor(s):
Morsheda Jhumur Hosain Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Anthony A Friedman
10:30 AM
1:19-12812
Morsheda Jhumur Hosain
Chapter 7
#24.00 First Interim Fee Application of Chapter 7 Trustee for Approval of Compensation and Reimbursement of Expenses;
Period: 11/7/2019 to 9/28/2020, Fee: $29,264.83,
Expenses: $2,177.20.
Docket 96
Tentative Ruling:
Service proper. No objections filed. Having reviewed the First Interim Fee Application of Chapter 7 Trustee, 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 11-18-20.
Party Information
Debtor(s):
Morsheda Jhumur Hosain Pro Se
Trustee(s):
Nancy J Zamora (TR) Represented By Anthony A Friedman
11:00 AM
1:10-16648
Vadim A Lipel
Chapter 7
#25.00 Motion to Reconsider Order on Final Fee Applications Allowing Payment of Final Fees and Expenses
fr. 11/4/20
Docket 231
Tentative Ruling:
Katherine Lipel’s creditor’s claim No. 7 in this bankruptcy action is based on a judgment against Vadim Lipel entered on March 27, 2009, by Judge Fuer in a dissolution of marriage, Vadim Lipel v. Yekaterina Lipel, LASC Case No. BD422362 ("the Judgment"). Pursuant to the Judgement, Katherine Lipel ("Lipel") was awarded monies Vadim Lipel ("Debtor") owed to her for child support and spousal support. (Lipel Decl., Exhibit "A") On October 12, 2010, based on said Judgment, Lipel filed Claim No. 7 for $845,375.00 as a priority claim under 11 U.S.C. § 507(a)(1). (Claim No. 7) Eleven other creditors filed claims, including the Internal Revenue Service for back taxes in the sum of $603,000.00.
In March 2011, Nancy Zamora, chapter 7 trustee in the bankruptcy action ("Trustee") and Debtor entered into a Settlement Agreement (the "9019 Settlement Agreement) whereby they agreed that in exchange for Debtor’s payment of $690,000 to the estate for his assets, Trustee would release all of Debtor’s assets. On March 30, 2011, Trustee filed the Motion to Approve Compromise under FRBP 9019, seeking the Court’s approval of the 9019 Settlement Agreement. In the 9019 Settlement Agreement, the parties also agreed to mutual releases as follows:
3.1 Release of Claims Against the Trustee and the Estate. Upon entry of the Final Order and except for the obligations set forth in this Agreement, the Debtor, on behalf of himself and his present and former affiliates, agents, attorneys, directors, employees, heirs, managers, members, officers, partners; representatives, shareholders; and successors, shall be deemed to have released and discharged the Trustee, the Estate, their accountants, administrators, agents, and attorneys from any and
11:00 AM
CONT...
Vadim A Lipel
all actions, attorneys fees, causes of action, claims, controversies, costs, damages, demands, expenses, fines, interests, liabilities, obligations, penalties, proceedings, and suits of any character, nature, or kind, in law or in equity, whether known or unknown, fixed or contingent, and liquidated or unliquidated, which they may now own or hold, or may have previously owned or held, or may in the future own or hold, in connection with or relating to Debtor's bankruptcy case.
Chapter 7
Motion to Approve Compromise, ECF doc. 59, March 30, 2011; Order at ECF doc. 69, May 4, 2011. Lipel notes that she was not a signatory nor a party to the 9019 Settlement Agreement. Id.
On March 28, 2011, two days before the Motion to Approve Compromise was filed, Trustee filed a Motion to Reclassify Lipel’s claim as general unsecured claim. Lipel filed an Opposition to Motion to Reclassify Claims of Katherine Lipel and, on April 20, 2011, Trustee filed a Reply indicating to the Court that she and Lipel stipulated that a portion of her claim would be allowed as a priority claim pursuant to 11 U.S.C. §507(a)(1) in the amount of $420,615.42 and the remainder of $424,759.59 to be reclassified as a general unsecured claim.
On April 25, 2011, the Trustee filed a Stipulation by Nancy Zamora Regarding Disposition to Katherine Lipel’s Claim No. 7 (the "Lipel Claim Stipulation"), affirming the stipulation above to reclassify Lipel’s claim as a priority claim pursuant to 11 U.S.C. §507(a)(1) in the amount of $420,615.42 and the remainder of
$424,759.59 as a general unsecured claim. ECF doc. no. 67.
On May 4, 2011, this bankruptcy court entered two orders: (1) an Order approving the Settlement Agreement between Vadim Lipel and Nancy Zamor, bankr. ECF doc. 69; and (2) an Order on Stipulation for Motion Seeking Reclassification of Katherine Lipel’s Claim No. 7, bankr. ECF doc. 70.
In March 2018, Debtor filed a claim in arbitration before the Hon. Richard Stone asserting a legal action for legal malpractice against law firm Brutzkus, Gubner, Rozansky, Seror and Weber LLP (the "Gubner Defendants"), his former bankruptcy attorneys. On May 22, 2019, Debtor filed a second amended demand for arbitration
11:00 AM
CONT...
Vadim A Lipel
Chapter 7
before Judge Stone.
In August 2018, the United States Trustee ("UST") filed a motion to reopen the Case based on the Trustee's declaration regarding a claim for professional liability (the "Claim") against the Gubner Defendants that existed on the Petition Date. The Claim was stated to be property of the Estate that Debtor did not disclose in his schedules, at the meetings of creditors, or at any time before the Court closed the case. On August 28, 2018, the Court entered its order reopening the case and directing the UST to appoint a chapter 7 trustee. ECF doc. 182. On August 29, 2018, the UST appointed Trustee as chapter 7 trustee in the case.
Trustee negotiated with 22845 Sparrowdell LLC dba PBOG ("PBOG"), an asset purchase agreement (the "APA") that Trustee and PBOG’s managing member, Steven T. Gubner, executed in October 2018. The assets were described in the Sale Motion to include the Estate’s interest in the "claim for professional liability against Debtor’s former counsel including, but not limited to that certain arbitration complaint in the action styled Vadim Lipel v. Lesley Davis and Brutzkus Gubner Rozansky Seror Weber LLP together with any and all other related legal or equitable claims, defenses, actions, demands, rights, damages, remedies, expenses, and compensation whatsoever." The Assets also included any and all other undisclosed, unscheduled and/or unadministered claims, rights and interest of the Estate. Thereafter the Trustee filed a Motion for Order approving sale of the Assets, subject to overbid, on October 17, 2018 (the "Sale Motion"). On November 13, 2018, the Court entered an "Order Approving Trustee’s Sale of Assets" (the "Sale Order"). [Dkt No. 190]
On April 16, 2019, Debtor filed a Complaint for declaratory relief seeking orders from the Bankruptcy Court related to the Sale Order (the "Sale Order Adversary"). An amended complaint was filed on May 22, 2019. Thereafter, Debtor moved for summary judgment on all claims for relief asserted in the Sale Order Adversary.
At the hearing on the Amended Final Report filed by Trustee in the main bankruptcy case on September 27, 2019, Debtor raised an objection about the representations as to unadministered assets and the unresolved issues in the Sale Order Adversary. On October 23, 2019, Debtor and Trustee filed a stipulation, in which they agreed that the Amended TFR may be approved for the sole purposes of
11:00 AM
CONT...
Vadim A Lipel
Chapter 7
payments being made on account of Trustee’s requested expenses and statutory fees but that no payments are to be made to any creditors at that time. Stipulation to Resolve Objection to Final Report, ECF doc. 206, 3:9-12. An Order approving the Stipulation was entered on November 5, 2019. ECF doc. 209.
On June 10, 2020, this Court resolved the issues in the Sale Order Adversary, and held that the Sale Order was invalid as to the sale of the Malpractice Action as a matter of law, that the Malpractice Action did not belong to the estate because it accrued post-bankruptcy petition, and that Debtor was free to pursue the Malpractice Action against the Gubner Defendants. Sale Order Adversary, 1:19-ap-01041-MT, ECF doc. 97; 100; 101.
After resolution of the Sale Order Adversary, Trustee lodged a proposed Order on the Amended TFR on July 27, 2020, bankr. ECF doc. no. 221. Thereafter, Debtor filed an objection and requested an amendment to the proposed order, ECF doc. 223. Debtor’s objection focused on his concern that because the Amended TFR failed to specify that all claims against him were released under the terms of the 9019 Settlement Agreement, the ambiguity might lead to the released claims being construed as "remnant claims" even though such characterization. It was Debtor’s position that the release provided for in ¶ 3.2 of the Settlement Agreement as to claims the estate had against him, and those in privity, was broad. Debtor also noted that he and Trustee agreed to waive California Code § 1542 as to all unknown claims. Settlement Agreement, ¶ 3.3
PBOG also filed an objection to the Trustee’s proposed order, arguing that any and all claims against the Estate made by Lipel were released pursuant to the broad release contained within the 9019 Settlement Agreement. Bankr. ECF doc. 223.
PBOG requested that the Court include the following paragraphs to any order approving the Amended TFR:
Trustee shall not make any further distributions of the Estate’s assets to individuals or entities whose claims were released under the March 16, 2011 Settlement Agreement between the Trustee and the Debtor -- including but not limited to any claims previously made by Katherine Lipel."
Any and all funds/assets that remain in the Estate following Trustee’s distributions under this Order shall be turned over to Sparrowdell LLC dba
11:00 AM
CONT...
Vadim A Lipel
PBOG ("PBOG")."
PBOG may bring separate motion seeking disgorgement of any prior distribution of the Estate’s assets for payment of claims that were released under the March 16, 2011 Settlement Agreement."
Chapter 7
On August 20, the Court entered an Order on the Amended TFR, adopting, for the most part, the language requested by PBOG in its objection. Order on Final Fee Applications Allowing Payment of: (1) Court and U.S. Trustee Fees; and (2) Final Fees and Expenses of Trustee and Professionals (the "TFR Order"), ECF doc. 223.
On September 1, 2020, Lipel filed a Motion under Fed. R. Civ. P. 59 (the "Reconsideration Motion"), requesting that the Court reconsider the TFR Order, as she asserts that her claim against the bankruptcy estate for or child support and spousal support was not released under the terms of the 9019 Settlement Agreement, and that she is entitled to a distribution from Trustee.
PBOG opposes, arguing that the broad release contained in the 9019 Settlement Agreement applies to Lipel’s claim. Trustee did not file a response to the Reconsideration Motion.
Standard
Under Rule 9023 of the Federal Rules of Bankruptcy Procedure, "Rule 59 F.R.Civ.P. applies" in bankruptcy cases. Under Rule 59 of the Federal Rules of Civil Procedure, the court may alter or amend a judgment pursuant to a motion that is timely filed. FED. R. CIV. P. 59(e). "A motion to alter or amend a judgment must be filed no later than 28 days after the entry of judgment." Id.
Reconsideration of an entered judgment is an extraordinary remedy that should be used sparingly. McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999).
Local Bankruptcy Rule 9013-4(a) sets forth a non-exclusive list of eight grounds upon which a motion for reconsideration may be granted. In the Ninth Circuit, generally motions for reconsideration may be granted on four grounds: "(1) the judgment is based upon manifest errors of law or fact; (2) there is newly discovered or previously unavailable evidence; (3) amendment is necessary to prevent manifest injustice; or (4) there is intervening change in the controlling law." Id.; see also Turner v. Burlington Northern Santa Fe R.R., 338 F.3d 1058, 1063 (9th Cir. 2003); Pilkington v. Cardinal
11:00 AM
CONT...
Vadim A Lipel
Chapter 7
Health, Inc., 516 F.3d 1095, 1100 (9th Cir. 2008).
Analysis
Manifest Errors of Law or Fact
Procedurally, if the ground for the motion for reconsideration is error of law, "the error or errors relied upon must be stated specifically." LBR 9013-4(b)(1). If the basis for the motion is insufficiency of the evidence, "the motion must specify with particularity wherein the evidence is claimed to be insufficient."
Lipel argues that the provisions of the TFR Order applying to her claim violate the doctrine of res judicata, and thus, the provision should be struck, and disbursements must issue to her. Lipel asserts that the Lipel Claim Stipulation, approved by the Court on May 4, 2011, expressly allowed her priority claim pursuant to 11 U.S.C. §507(a)(1) in the amount of $420,615.42 and the remainder of
$424,759.59 was allowed as a general unsecured claim. Lipel maintains that the Order on the Lipel Claim Stipulation is final, and was not appealed, and should be given preclusive effect in this matter.
Claim preclusion applies where: (1) the prior action involved the same parties or parties in privity to them; (2) the prior action involved the same claim; and (3) there was a final judgment on the merits in the prior action. Pitzen v. Superior Court, 120 Cal. App. 4th 1374, 1381 (Cal.Ct.App. 2004). Lipel maintains that each of the requirements of claim preclusion are met because merits of her claim were considered back in March 2011, in response to Trustee’s Motion to Reclassify her claim as a general unsecured claim. Lipel also argues that it is undisputed that the Order Approving the Lipel Claim Stipulation was a final judgment that was not appealed, and that the parties are the same.
PBOG opposes, arguing that the 9019 Settlement Agreement provided for, among other things, a broad release of all claims against the estate by the Debtor and those related to Debtor. It is PBOG’s position that Lipel, as the Debtor’s former spouse and his litigation counsel in multiple matters, falls under several categories of the parties releasing claims against the estate. PBOG does not address, however, the
11:00 AM
CONT...
Vadim A Lipel
Chapter 7
effect of the approved Lipel Claim Stipulation, which provided for her to have an allowed priority claim pursuant to 11 U.S.C. §507(a)(1) in the amount of
$420,615.42, and the remainder of $424,759.59 as a general unsecured claim.
Lipel argues that there is no evidence that she intended to settle or release her claim in connection with the 9019 Settlement Agreement. Lipel contends that the 9019 Settlement Agreement provided for Debtor to pay the Trustee $690,000 for his assets. In exchange Trustee released his assets and the parties entered into mutual releases of claims against each other. Lipel maintains that her claim for unpaid child support and spousal support could not be "released" or "settled" exclusively by Debtor and Trustee. Lipel notes that she was not a signatory or party to 9019 Settlement Agreement, and she maintains that she was not included in the negotiations for the 9019 Settlement Agreement with Trustee. Lipel also argues that there is no evidence Debtor, her ex-husband at all times in this bankruptcy, had the legal right to release creditors’ claims, let alone her claims against his estate.
A review of the Motion to Approve the 9019 Settlement supports Lipel’s position. The Motion itself does not once mention Katherine Lipel, not in relation to Debtor or her claim against the Estate. The 9019 Agreement identifies the "Settlement Entities" as Debtor, Debtor’s wholly owned corporation Pain and Addiction Medicine Associates of Southern California ("PAMASC"), and Debtor’s professional corporation called Vadim Lipel & Associates, APC ("VLA"). Motion to Approve Compromise, Ex. 1 (ECF doc. 59). In the Motion, Trustee explained that the 9019 Agreement was negotiated because "Trustee, Debtor, PAMASC, and VLA desire to avoid and to spare additional legal fees and costs in connection with their disputes." Id., 2:24-25. These disputes were characterized by Trustee as disputes between she and Debtor as to what assets of Debtor’s medical practice were assets of the Estate. Id., 2:12-20. There is nothing in the Motion or the 9019 Agreement itself that would have put Lipel on notice, or the Court for that matter, that her claim was being purportedly released under the terms of the 9019 Agreement.
This reading of the 9019 Settlement Agreement is further bolstered by the timing of Trustee’s motion practice in March and April 2011, as follows:
March 28, 2011: Trustee filed a Motion to Reclassify Lipel’s claim as general unsecured claim (ECF doc. 57)
11:00 AM
CONT...
Vadim A Lipel
March 30, 2011: Trustee filed a Motion to Approve the 9019 Agreement with Debtor (ECF doc. 59)
Chapter 7
April 20, 2011: Trustee filed her Reply re Motion to Reclassify, indicating that she and Lipel had stipulated to reclassify Lipel’s claim (ECF doc. 66)
April 25, 2011: Trustee filed the Lipel Claim Stipulation, wherein Lipel and Trustee agreed to reclassify Lipel’s claim as a priority claim pursuant to 11
U.S.C. §507(a)(1) in the amount of $420,615.42 and the remainder of
$424,759.59 as a general unsecured claim.
May 4, 2011, this bankruptcy court entered two orders: (1) an Order approving the 9019 Agreement, ECF doc. 69; and (2) an Order on Lipel Claim Stipulation, bankr. ECF doc. 70.
PBOG posits, without evidence of a declaration from Trustee, that just 12 days after she entered into the 9019 Agreement with Debtor that purportedly released Lipel’s
$845,375.00 claim, Trustee then turned around and stipulated with Lipel that that same (allegedly released) claim should be reclassified with $420,615.42 as priority. No reason is offered, nor is any explanation by Trustee, as to why Trustee would go through the expense of reducing to a writing a stipulation on a claim that was purportedly released under the terms of the 9019 Agreement.
A manifest error of fact or law must be one "that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record." In re Oak Park Calabasas Condo. Ass'n., 302 B.R. 682, 683(Bankr.C.D.Cal. 2003) (quoting Black's Law Dictionary 563 (7th ed.1999)). A manifest error of law is not merely a party's disagreement with how the trial court applied the law. Manifest error "is not demonstrated by the disappointment of the losing party. It is the ‘wholesale disregard, misapplication, or failure to recognize controlling precedent.’ " Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.2000) (quoting Sedrak v. Callahan, 987 F.Supp. 1063, 1069 (N.D.Ill.1997).
When the Court entered the TFR Order with the language included in paragraphs 6 and 7, the Court did not apply the appropriate law of the case. The Order on Stipulation for Motion Seeking Reclassification of Katherine Lipel’s Claim No. 7 should have guided this Court’s analysis of the Amended TFR. This error of law is plain and indisputable, and amendment is necessary to correct this error.
11:00 AM
CONT...
Vadim A Lipel
Chapter 7
Amendment is Necessary to Prevent Manifest Injustice
Trustee’s proposed distribution, included as Exhibit D to the Final Report provides for distribution to the allowed priority claims, including Lipel’s claim. Amended Trustee’s Final Report, ECF doc. 199, Sept. 27, 2019. At the continued hearing on the TFR on June 10, 2020, counsel for PBOG did not raise its argument that the Lipel Claim should not be paid because it was released under the terms of the 9019 Agreement. There was simply nothing on the record at the time that the TFR hearing was held that would have apprised Lipel that her claim was imperiled.
After Trustee lodged her proposed Order on Final Fee Applications Allowing Payment of: (1) Court and U.S. Trustee Fees; and (2) Final Fees and Expenses of Trustee and Professionals, PBOG did not provide notice to Katherine Lipel of its objections to the payment of her claim or that her claim and substantive rights may be affected. The Certificate of Service attached to PBOG’s Objection to Trustee’s Proposed Order Granting Final Report and Closing Case, ECF doc. 223, indicates that it was not served on Lipel. Instead, the "document was made available for viewing and downloading through the Court’s CM-ECF system to all counsel of record who are registered to receive a Notice of Electronic Filing for this case." Id., p.
In other words, there was no notice to Lipel that PBOG would assert that her claim was released in a settlement agreement to which she was not a party.
For the reasons stated above, Katherine Lipel’s Motion to Amend or Alter Judgment under Fed. R. Civ. P. 59(e) is GRANTED. Lipel is entitled to distribution from the Estate as the holder of an allowed priority claim, pursuant to the Order Approving the Lipel Claim Stipulation, ECF doc. 70. The distribution to Lipel shall be made in accordance with Exhibit D the Trustee’s Proposed Distribution provided for in the Amended Trustee’s Final Report, ECF doc. 199.
ZOOMGOV APPEARANCE REQUIRED
Party Information
Debtor(s):
Vadim A Lipel Represented By Douglas D Kappler Blake J Lindemann
11:00 AM
CONT...
Trustee(s):
Vadim A Lipel
Chapter 7
Nancy J Zamora (TR) Represented By
Lei Lei Wang Ekvall Reem J Bello
11:00 AM
1:10-19870
Melissa Mosich Miller
Chapter 11
#26.00 Motion by JP Morgan to convert case from chapter 11 to 7 or in the alternative to dismiss
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; 12/12/18, 2/27/19; 5/22/19,
7/31/19, 10/23/19, 1/29/20; 4/8/20; 5/13/20
Docket 210
Tentative Ruling:
Having considered the Ch. 11 Status Report, filed 11/2/2020, the Court finds cause to continue this Motion to Dismiss to February 24, 2021, at 11:00 a.m.
NO APPEARANCE REQUIRED ON 11/17/2020
Party Information
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L James Lindsey L Smith
Movant(s):
JPMorgan Chase Bank, National Represented By
Christopher M McDermott
11:00 AM
1:10-19870
Melissa Mosich Miller
Chapter 11
#27.00 Status and case management conference
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, 2/12/18, 2/27/19; 5/22/19,
7/31/19, 10/23/19, 1/29/20; 4/8/20; 5/13/20
Docket 1
Tentative Ruling:
Having considered the Ch. 11 Status Report, filed 11/2/2020, the Court finds cause to continue this status conference to February 24, 2021, at 11:00 a.m.
Debtor to give notice of continued status conference. NO APPEARANCE REQUIRED ON 11/17/2020
Party Information
Debtor(s):
Melissa Mosich Miller Represented By Jacqueline L Rodriguez
11:00 AM
1:17-13341
Castillo I Partnership
Chapter 11
#28.00 Scheduling and case management conference
fr. 1/17/18, 6/13/18, 8/29/18; 12/2/18; 12/12/18; 4/3/19 5/15/19, 8/21/19, 10/23/19, 11/6/19, 11/13/19, 3/4/20,
9/9/20
Docket 1
*** VACATED *** REASON: Case closed & final decree entered 9/28/20, doc. 294 - hm
Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Castillo I Partnership Represented By
Mark E Goodfriend
11:00 AM
1:18-11545
Ian Ellis Silber and Jane Ellen Silber
Chapter 11
#29.00 Ch. 11 Scheduling and Case Management Conference
fr. 8/27/20
Docket 1
*** VACATED *** REASON: Moved to 10:30 a.m. (eg) Tentative Ruling:
Deadlines proposed by debtors are fine
Party Information
Debtor(s):
Ian Ellis Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia Joyce Owens
Joint Debtor(s):
Jane Ellen Silber Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
11:00 AM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:20-01066 DAVID K. GOTTLIEB, CHAPTER 7 TRUSTEE v. Montgomery et al
#30.00 Status Conference Re: Complaint to Avoid and Recover Fraudulent Transfers,
for Declaratory Relief, and for Constructive Trust
fr. 9/2/20; 10/7/20
Docket 1
*** VACATED *** REASON: To be heard at 1pm, cal. no. 31.01 (eg) Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Albert Lee Represented By
M Teri Lim
Defendant(s):
Jodi Pais Montgomery Pro Se
David Berrent Pro Se
Plaintiff(s):
DAVID K. GOTTLIEB, CHAPTER Represented By
Jivko Tchakarov
Trustee(s):
David Keith Gottlieb (TR) Represented By Howard Camhi Peter A Davidson Byron Z Moldo
1:00 PM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:20-01066 DAVID K. GOTTLIEB, CHAPTER 7 TRUSTEE v. Montgomery et al
#31.00 Motion to Dismiss for Failure to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6)
Docket 15
Tentative Ruling:
On July 25, 2018, Albert Lee ("Debtor") commenced a chapter 7 bankruptcy case. David Gottlieb ("Plaintiff") was appointed as the Chapter 7 Trustee. The Debtor was married to Sun Mi Choi ("Decedent") on March 28, 2004. On August 24, 2009, the Debtor founded a corporation named Chas Group, Inc. ("Chas Group"). On June 14, 2012, the Debtor founded a corporation named Amberboa, Inc. ("Amberboa"). On August 6, 2012, the Decedent acquired title to real property commonly known as 18729 Hillsboro Rd, Porter Ranch, CA 93326 ("Hillsboro Property".) According to the Debtor’s bankruptcy petition, this is the Debtor’s primary residence.
The Debtor and Decedent commenced a dissolution of marriage on April 27, 2011 and entered into a Martial Settlement Agreement ("MSA") on July 31, 2014. It is unclear from the MSA who retained the interests in Chas Group, Amberboa, and the Hillsboro Property. The MSA was finalized by a Judgement of Dissolution entered in the divorce proceeding on December 16, 2014.
On November 5, 2018, the Debtor received a discharge. On February 9, 2019, the Decedent passed away and a probate was opened in the Estate of Sun Mi Choi, Los Angeles County Superior Court Case No, 19STPB01790 ("Probate Proceeding"). On March 7, 2019, the Debtor filed in the Probate Proceeding a declaration in which the Debtor disclosed interests in and connections to Chas Group and Amberboa – Debtor failed to disclose these interests in his bankruptcy case. The declaration asserts that these assets were placed under the Decedent’s name in order to protect them from creditors and the divorce was a "paper divorce" – which the Plaintiff interprets to mean that this was a sham marriage. Jodi Pais Montgomery and David Berrent ("Defendants") are the personal representatives and administrators of the probate
1:00 PM
CONT...
Albert Lee
Chapter 7
estate of Decedent.
On July 1, 2020, the Plaintiff commenced this adversary proceeding seeking to avoid and recover fraudulent transfers, for declaratory relief, relief under Cal. Prob. Code §§ 850(a)(2)(C) and 856. The Defendants moved to dismiss the adversary proceeding under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Plaintiff filed an opposition this this motion.
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).
"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).
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
1:00 PM
CONT...
Albert Lee
Chapter 7
its face…. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged…. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 679. 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 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. Courts should assume the veracity of the 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).
If the running of the statute of limitations of a claim in the complaint is clear, then the issue maybe raised by a motion to dismiss or on summary judgment. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980); see also Graham v. Taubman, 610 F.2d 821 (9th Cir. 1979).
Statute of Limitations:
Here the Decedent passed away on February 9, 2019, and the Probate Proceeding commenced then. The Plaintiff commenced this cause of action on July 1, 2020. The Defendants assert that the Plaintiff is barred from bringing these causes of action since the one-year statute of limitations has passed.
Section 366.2 of the California Code of Civil Procedures is a "general statute of limitations for all claims against a decedent." Wagner v. Wagner, 162 Cal.App.4th 249, 255 (2008). "‘The overall intent of the Legislature in enacting Code of Civil Procedure former section 353 [(now § 366.2)] was to protect decedents’ estates from creditors' stale claims." Id. California Code of Civil Procedure § 366.2 (a) provides:
If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable
1:00 PM
CONT...
Albert Lee
Chapter 7
limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.
"This uniform one-year statute of limitations applies to actions on all claims against the decedent which survive the decedent's death. Dobler v. Arluk Medical Center Industrial Group, Inc., 89 Cal. App. 4th 530, 535 (2001)." "This limitations period, however, is tolled by (1) the timely filing of a creditor claim; (2) the filing of a petition for payment of debts, claims or expenses from the decedent's revocable trust; or (3) a proceeding to judicially construe a "no contest" provision." Id.; CCP Section 366.2(b); see also Levine v. Levine, 102 Cal. App. 4th 1256, 1261 (2002).
Section 366.2 demonstrates a clear legislative intent to cut off litigation against a decedent's estate after one year from death, except in circumstances enumerated in subsection (b). The Legislature enacted the predecessor of section 366.2, former section 535, in 1990. Bradley v. Breen, 73 Cal. App. 4th 798, 801-02 (1999). In recommending enactment of the one-year-from-death limitations period, the 1990 California Law Revision Commission (Commission) "explained . . . that such a statute would effectuate the strong public policies of expeditious estate administration and security of title for distributees, . . . is an appropriate period to afford repose, and provides a reasonable cutoff for claims that soon would become stale. Id. At 801.
Bradley quoted from the Commission's recommendation:
In estate administration, all debts are ordinarily paid. Even under the existing four-month claim period it is unusual for an unpaid creditor problem to arise. A year is usually sufficient time for all debts to come to light. Thus it is sound public policy to limit potential liability to a year; this will avoid delay and procedural complication of every probate proceeding for the rare claim that might arise more than a year after the decedent's death. (2) The one year limitation period would not apply to special classes of debts where public policy favors extended enforceability. These classes are (i) secured obligations, (ii) tax claims, and (iii) liabilities covered by insurance. The rare claim that may become a problem more than a year after the decedent's death is
1:00 PM
CONT...
Albert Lee
likely to fall into one of these classes. (3) Every jurisdiction of which the Commission is aware that has considered the due process problem addressed by the recommendation, including the Uniform Probate Code, has adopted the one-year statute of limitations as part of its solution. In sum, a general limitation period longer than one year would burden all probate proceedings for little gain. The one-year limitation period is a reasonable accommodation of interests and is widely accepted.'
Chapter 7
The argument advanced by the Plaintiff is that CCP 366.2 only applies to actions "brought on a liability of the person" and it does not apply to actions brought to recover specific property. Here the gravamen of the Plaintiff’s causes of action seek to recover property interests in Chas Group, Amberboa, and the Hillsboro Property. According to the Plaintiff, Chas Group, Amberboa, and the Hillsboro Property are still apart of the property of the bankruptcy estate. California law is clear that transfers made with actual intent to defraud are void and not voidable. Daff v. Wallace (In re Cass), 476 B.R. 602, 614 (Bankr. C.D. Cal. 2012), aff’d 2013 WL 1459, 272 (9th Cir.
BAP 2013), aff’d 606 Fed. Appx 318 (9th Cir. 2015). In Cass, the Court not only stated that fraudulent transfers are void ab initio but cited a number of California cases that make it clear that in questions of title to property, ownership never leaves the transferor. First National Bank of Los Angeles v. Maxwell, 123 Cal. 360, 371 (1899) (title and ownership of property remains in the fraudulent grantor as fully as though no transfer had been attempted); Liuzza v. Bell, 40 Cal. App. 2nd 417, 429 (1940) ("In fraudulent transactions, for the protection of creditors it has been held that ownership and title remain in grantor.") Further, the BAP, in affirming Cass held that the transferor of property in fraud of the creditors holds only nominal or bare legal title, the transferor holds the beneficial interest and equitable interest. The Court will analyze whether CCP 366.2 is indeed applicable here.
Case law as to Section 366.2 as applied to fraudulent transfer cases is rather sparse; however, the facts and analysis in Kapila v. Belotti (In re Pearlman), 2012 Bankr. LEXIS 2858 (Bankr. M.D. FL. 2012) are similar. In Pearlman, the debtor was involved in a Ponzi scheme. A family trust was created by a third party and this trust invested in the debtor’s Ponzi scheme. Over the course of several years, the trust received hundreds of thousands of dollars in profits from this Ponzi scheme and the
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Chapter 7
trustee filed a fraudulent transfer action in order to recover all the profits the trust gained from the Ponzi scheme. During the course of the fraudulent transfer case, the last beneficiary of the trust passed away and the trustee failed to file a claim in any of the beneficiaries’ probate estates within in a the one-year time frame. The defendant filed a motion to dismiss the trustee’s complaint pursuant to CCP 366.2(a). The Court ultimately granted the motion to dismiss and stated in its’ reasoning:
Under certain circumstances, such as lack of notice of a defendant's death, a creditor may apply to file a late claim. But, under no circumstances may a creditor file a claim later than one year after the death of a defendant, as indicated in California Code of Civil Procedure § 366.2(a). Section 366.2 was enacted to bar claims against a probate estate after one year "in order to provide closure, certainty, and protect a decedent's estate from stale claims of a creditor." The one-year limitations period also enables the expeditious administration of probate estates.
While the underlying issue in Pearlman was one of notice, the Court granted the motion to dismiss in favor of the defendants and applied CCP 366.2 in this case in spite of the defendants being merely recipients of a fraudulent transfer. Here the Plaintiff is seeking to do something similar. The difference is the property in Pearlman was liquid assets and the property being sought after here is real property and interest in companies and the Debtor had an already vested interest in these properties.
Estate of Yool, 151 Cal. App. 4th 867 (2007) clarified some the language of CCP 366.2. Yool dealt with the issue of a resulting trust, an implied trust that comes into existence by operation of law, where property is transferred to someone who pays nothing for it; and then is implied to have held the property for benefit of another person, and the Court was asked whether CCP 366.2 was applicable. The Court focused in on the phrase "liability of the person," or personal liability, and interpreted it to mean "[l]iability for which one is personally accountable and for which a wronged party can seek satisfaction out of the wrongdoer's personal assets." Id. At 875 (quoting Black's Law Dict. (8th ed 2004)). In the context of an action to decree a resulting trust or quiet title based on a resulting trust theory, the Court found that the matter adjudicated would concern whether the presumption of a resulting trust arose under the facts. Because the trustee held title, but did not own the property in
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question, there is no issue of personal liability or resort to the trustee's assets. The Court held that a resulting trust arises by operation of law and does not implicate the personal liability of the purported trustee.
The Yool Court supported this finding by providing further analysis on the legislative history of Code of Civil Procedure section 366.2, which makes it clear that the provision pertains to debts, that is, to claims resulting from the relationship between the debtor and the creditor. As the Commission emphasized, the statute of limitations set forth in Code of Civil Procedure former section 353 was "intended to apply in any action on a debt of the decedent … ." Code of Civil Procedure section
does not apply for another fundamental reason: At the time of Yool’s death, nothing had occurred to affect the rights of the beneficiary of the resulting trust. The mere lapse of time, without repudiation, does not affect the beneficiary's rights.
Pearlman makes clear that CCP 366.2 may be applicable in fraudulent transfer cases; however, in that case the property being sought was money allegedly obtained by fraud. While Yool did not involve a fraudulent transfer and the Debtor did not have a resulting trust, the Debtor already had an interest in the property in question well before the Decedent passed away. The Plaintiff here asserts that the property in question is community property that became part of the estate pursuant to Section 541 of the Bankruptcy Code. From the pleadings, it does not appear that the property in question would considered community property but rather the property appears to be a tenancy in common. The MSA did not list the interest in Chas Group, Amberboa and the Hillsboro Property, prior to the entry of the divorce judgment. Under settled principles of California community property law, "property which is not mentioned in the pleadings as community property is left unadjudicated by decree of divorce, and is subject to future litigation, the parties being tenants in common meanwhile." In re Marriage of Brown, 15 Cal. 3d 838, 850-51 (1976). In Morgan v. Brady (In re Mitchell), 2005 Bankr. Lexis 3372, *20-21 (9th Cir. BAP 2005), the Court articulated:
When a debtor who is a joint tenant in property files bankruptcy, only the debtor's joint tenancy interest becomes property of the bankruptcy estate. Although the joint tenancy interest may run to the entire property, the estate does not obtain an interest in the entire estate, but instead obtains the joint tenant's undivided one-half interest. Thus, the bankruptcy estate has a one-half interest in jointly held property, while
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Chapter 7
the joint tenant retains the other one-half interest. The same result obtains for property held by two persons as tenants in common. Unlike a joint tenancy, in which the tenants hold undivided equal shares, tenants in common can own their interests proportionate to each tenant's unequal contribution. Because the bankruptcy estate includes only the debtor's interest in property, if property is held prepetition by a debtor and another as tenants in common, each with a one-half interest, upon the filing of the bankruptcy petition, the bankruptcy estate obtains only the debtor's one-half share. Thus, where property is held by the debtor and another in equal shares, the estate obtains the same one-half share, whether the property is held in joint tenancy or tenancy in common.
Whether the property is community property or a tenancy in common is not before the Court at this time and would probably be something more appropriate for summary judgment at the conclusion of discovery. Regardless of the characterization of that property, the Debtor had some form of interest in the property that was transferred to the bankruptcy estate upon the petition date – the Defendants’ reply even acknowledges that the Debtor likely has a tenancy in common. Similar to Yool, the Plaintiff is not seeking to collect on a debt or to pursue a liability claim; rather, the Plaintiff is seeking to recover property that may be a part of the bankruptcy estate. There is something distinctly different between a trustee pursuing money damages from a probate estate based on a fraudulent transfer claim such as Pearlman and seeking to recover property, for which the Debtor already had an interest at the time of filing, that became a part of the estate pursuant to Section 541 when the Debtor commenced his bankruptcy. The rationale adopted in Yool is more applicable here. Accordingly, the Court finds that CCP 366.2’s one-year statute of limitations is not applicable here.
The Court now turns to whether the Plaintiff’s action was timely filed for other reasons. Section 546 of the Bankruptcy Code provides that the Plaintiff can commence an action under Sections 544, 545, 547, 548, or 553 no later than two years after the entry of the order for relief. It is undisputed that the Plaintiff seeks relief under section 544 and has timely filed these causes of action. The statute of limitations for the California UFTA claim may be an issue. The Plaintiff’s claim for
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Chapter 7
relief for a California UFTA action is brought under Cal. Civ. Code § 3439.05. According to Section§ 3439.09(b), a claim brought under Section 3439.05 should be brought no later than four years after the transfer was made or the obligation was incurred. Neither party touched on this issue, and the alleged date of the actual transfer is not clear, so the Plaintiff needs to be prepared to address why the state UFTA claim should not be dismissed.
The last cause for relief stems from California Probate Code Sections 850 and 856. Section 850 was "intended to operate as a mechanism for pursuing "claims, causes of action, or matters that are normally raised in a civil action to the extent that the matters are related factually to the subject matter of a petition filed under this part." In Re Estate of Myers, 139 Cal. App. 4th 434, 440 (2006). Outside of the issue with the state UFTA claim, the Plaintiff’s causes of action appear to be timely and nothing in this subsection appears to place additional time restrictions on when a claim should be filed.
The Defendants’ motion is denied. The Plaintiff must explain why the state UFTA claim should not be dismissed with prejudice as previously articulated.
Appereance Required.
Party Information
Debtor(s):
Albert Lee Represented By
M Teri Lim
Defendant(s):
Jodi Pais Montgomery Represented By
Crystle Jane Lindsey James R Selth
David Berrent Represented By
Crystle Jane Lindsey James R Selth
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Albert Lee
Chapter 7
Plaintiff(s):
DAVID K. GOTTLIEB, CHAPTER Represented By
Jivko Tchakarov
Trustee(s):
David Keith Gottlieb (TR) Represented By Howard Camhi Peter A Davidson Byron Z Moldo
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1:18-11869
Albert Lee
Chapter 7
Adv#: 1:20-01066 DAVID K. GOTTLIEB, CHAPTER 7 TRUSTEE v. Montgomery et al
#31.01 Status Conference Re: Complaint to Avoid and Recover Fraudulent Transfers,
for Declaratory Relief, and for Constructive Trust
fr. 9/2/20; 10/7/20
Docket 1
Tentative Ruling:
Apperance Required.
Debtor(s):
Party Information
Albert Lee Represented By
M Teri Lim
Defendant(s):
Jodi Pais Montgomery Pro Se
David Berrent Pro Se
Plaintiff(s):
DAVID K. GOTTLIEB, CHAPTER Represented By
Jivko Tchakarov
Trustee(s):
David Keith Gottlieb (TR) Represented By Howard Camhi Peter A Davidson Byron Z Moldo
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1:19-12727
Tacarra Sheana Carthan
Chapter 7
Adv#: 1:19-01135 Barton et al v. Carthan
#32.00 Motion to compel Discovery/Production of Documents
fr. 9/30/20, 10/8/20; 10/21/20
Docket 15
Tentative Ruling:
This Matter was continued from October 21, 2020. Appearance required.
Background:
On October 29, 2019, Tacarra Sheana Carthan (the "Defendant") filed a chapter 7 bankruptcy petition. The Defendant’s schedules were amended on November 12, 2019, and again on January 6, 2020. Docket No. 13 & 19. These amendments showed significant changes made to the Defendant’s income, expenses, and assets.
On November 14, 2019, Carmen Barton and Anthony Carthan (the "Plaintiffs") commenced an adversary proceeding against the Defendant for a determination of dischargability and objection to the Defendant’s discharge pursuant to sections 11 U.S.C. § 523(a)(5); §523(a)(6) and § 727(a)(3). Discovery is currently underway, and the Plaintiffs seek the following documents from the Defendant:
6 months of Official certified bank statements from July 2019 through December 2019 for a JP Morgan Chase checking account;
6 months of Official certified bank statements from July 2019 through December 2019 for two Bank of America checking accounts;
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6 months of Transaction History statements from July 2019 through December 2019 for CashApp;
6 months of Transaction History statements from July 2019 through December 2019 for Wix payment processing;
All 2019 1099 miscellaneous income tax forms;
All documents and communications with Gersh Agency regarding performance rider and pay;
All documents, contracts and communication regarding pay for performances with Chelsea Handler;
All documents, contracts and communication with NBC regarding compensation and residual payments for NBC "Bring the Funny";
9) All documents, contracts and communication with Just for Laughs Montreal Comedy Festival regarding compensation and residual for 2018 and 2019 performances;
Permit the Plaintiffs to inspect the Defendant’s 2010 Toyota Highlander odometer and general condition of the vehicle.
The Plaintiffs attempted to contact the Defendant’s counsel in order to obtain these discovery requests but have been unsuccessful. See Plaintiffs’ Exhibits 2-5. The
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Plaintiffs even subpoenaed the Defendant to produce these documents but again has not been successful. Docket No. 10; Plaintiffs’ Exhibit 1.
On February 27, 2020, the Plaintiffs filed a motion to compel the discovery and production of documents pursuant to Federal Rule of Civil Procedure 37 (a)(3). No opposition has been filed.
Standard:
The instant motion arises under Federal Rule of Civil Procedure 37(a), made applicable to bankruptcy proceedings through Federal Rule Bankruptcy Proceeding 7037(a), which authorizes a party to apply for an order to compel disclosure or discovery. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. Fed. R. Civ. P. 37(a)(2) (A); see also Soto v. City of Concord, 162 F.R.D. 603, 609 (N.D. Cal 1995). FRCP 26, made applicable to bankruptcy proceeding through FRBP 7026, provides that a party has a general duty to disclose, without awaiting a discovery request, names and contact information of individuals with discoverable information, a copy of all documents that control or may be used to support claims or defenses, computation of damages, and any applicable insurance agreement. Fed. R. Civ. P. 26(a); Fed. R. Bankr. P. 7026(a).
A party may obtain discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]" Fed. R. Civ. P. 26(b)(1). Factors to consider include "the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Id. Information need not be admissible in evidence to be discoverable. Id. However, a court "must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules" if "(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1)." Fed. R. Civ. P. 26(b)(2)(C).
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Analysis:
The Plaintiffs attached to their motion a declaration of noncooperation and exhibits supporting their position that they have in good faith tried to resolve the discovery disputes and have either briefly spoken with the Defendant’s counsel or have never received a reply to phone messages, emails, or to the subpoena. The Court is satisfied that this satisfies the formal requirements as articulated in FRBP 7037 and Local Bankruptcy Rule 7026-1(c).
Here the Plaintiffs are seeking to compel predominately financial documents relating to the Defendant’s prepetition and postpetition financial status. The Plaintiffs’ complaint alleges that the Defendant has falsified financial information and omitted various sources of income in her schedules. The complaint identifies several revenue streams that the Defendant has failed to adequately report in her schedules, and these allegations form the basis for relief under 11 U.S.C. § 727(a)(3). These financial documents will be necessary to prove whether the Defendant had other revenue streams that were not reported or under reported and the Plaintiffs assert that discovery may lead to admissible evidence. The Court is satisfied that the financial documents being sought are relevant to this adversary proceeding and there does not appear to be any defenses that could be raised as to why these documents are privileged.
The only concern the Court has is with regards to having the Plaintiffs’ check the odometer on the 2010 Toyota Highlander and to inspect its condition. At first glance this appears to be irrelevant information; however, the vehicle was only listed on the Defendant’s second amended schedules. While it is common for a debtor to file a barebones bankruptcy petition on an emergent basis and fill in the details later, the Defendant filed amended schedules and failed to list this vehicle until the second amended schedules were filed. Considering the relief sought under 11 U.S.C. § 727(a) (3), this car has some relevance but the concern the Court has is whether there is any relevant information left that can be gathered by having the Plaintiffs inspect the vehicle or whether it is overly burdensome on the Defendant. The issue here is whether the Defendant made false statements with regards to her assets. The Plaintiffs can almost certainly use the Defendant’s schedules to show that she may have made false statements, but it is not clear what an inspection of the vehicle will produce that is relevant to the underlying issue. Even if the Plaintiffs can assert some level of
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relevancy to the underlying case, the burden of having the Defendant submit the vehicle for an inspection greatly outweighs any relevancy argument advanced by the Plaintiffs.
Disposition:
Grant the Plaintiffs’ motion to compel all requested financial documents.
Deny the Plaintiffs’ request to inspect the condition of the Defendant’s vehicle and to view the odometer.
Zoom.gov appearance required.
Party Information
Debtor(s):
Tacarra Sheana Carthan Represented By Daniel King
Defendant(s):
Tacarra Sheana Carthan Represented By Daniel King
Plaintiff(s):
Carmen Barton Pro Se
Anthony Carthan Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
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1:19-12727
Tacarra Sheana Carthan
Chapter 7
Adv#: 1:19-01135 Barton et al v. Carthan
#33.00 Motion For Summary Judgment
Docket 25
Tentative Ruling:
On June 26, 2019, Anthony Carthan and Carmen Barton ("Plaintiffs" or "Anthony" and "Carmen") filed a small claims lawsuit against Tacarra Sheana Carthan ("Defendant" or "Tacarra") in the Superior Court of California, in Los Angeles. (First names may be used for clarity; no disrespect is intended.) The lawsuit was based on false statements that were published by Tacarra on her social media accounts alleging that the Anthony and Carmen were abusing the daughter of Anthony and Tacarra, over whom they were in the middle of a heated custody battle. The Plaintiffs brought claims based on defamation, slander, and libel based on Tacarra’s statements. The State Court entered a judgment of $8,295.00 in favor of the Anthony and Carmen, and, on appeal, the Court affirmed the ruling that the Plaintiffs had met their burden under California Civil Code §45.
During this same time, the Tacarra commenced a lawsuit against the Anthony and Carmen alleging emotional distress. Anthony and Carmen raised counterclaims for malicious prosecution. On October 30, 2019, the State Court awarded Anthony and Carmen $3,015.11 for their malicious prosecution claims and denied any award to Tacarra for her claims of emotional distress.
On October 29, 2019, the Defendant filed a chapter 7 bankruptcy petition. On November 14, 2019, the Plaintiffs filed this adversary proceeding seeking relief under
§§523(a)(5) & (6) and 727(a)(3). The §523(a)(6) claim stems from the purported "malicious" and "willful" behavior that caused the Plaintiffs harm in the State Court cases. The Section 727 claims stem from issues regarding the Defendant’s schedules filled in connection with her bankruptcy. Plaintiffs now move for summary judgment on the claims arising under Section 523(a)(6). Defendant opposes.
Summary Judgment Standard:
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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). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. Id. at
324. The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir.1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). The inference drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (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).
Issue Preclusion:
Issue preclusion bars relitigation of issues that have been actually litigated. The doctrine is intended to avoid inconsistent judgments and the related misadventures associated with giving a party a second bite at the apple. Issue precaution bars relitigation of an issue of fact that: (1) is identical to a fact or issue determined in an earlier proceeding, (2) was actually decided by a court in an earlier action, (3) the issue was necessary to the judgment in such action, (4) there was a final judgment on the merits, and (5) the parties are the same. Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir. 2001).
The Full Faith and Credit Act requires that the federal courts give state court judgments the same preclusive effect those judgments would enjoy under the law of the state in which the judgment was rendered. 28 U.S.C § 1738; Jung Sup Lee v. TCAST Communs., Inc. (In re Jung Sup Lee), 335 B.R. 130, 138 (9th Cir. BAP 2005).
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Chapter 7
Section 523(a)(6):
Here Carmen and Anthony seek relief under §523(a)(6), relying on their two state court judgments. These judgements are separate and distinct from each other, requiring separate consideration.
A debt is nondischargeable under §523(a)(6) if it results from debtor's willful and malicious injury to another or to the property of another. There are three elements required for a Section 523(a)(6) action:(1) willfulness; (2) maliciousness and (3) injury. Smith v. Entepreneur Media, Inc. (In re Smith) 2009 Bankr. LEXIS 4582, *20 (9th Cir. BAP 2009). The Supreme Court in Kawaauhau v. Geiger (In re Geiger), 523
U.S. 57, 118 S.Ct. 974, 140 L. Ed. 2d 90 (1998), made clear that for section 523(a)
(6) to apply, the actor must intend the consequences of the act, not simply the act itself." Ormsby v. First American Title Co. of Nevada (In re Ormsby), 591 F. 3d 1199, 1206 (9th Cir. 2010). Both willfulness and maliciousness must be proven to prevent discharge of the debt. Id. But, reckless or negligent acts are not sufficient to establish that a resulting injury falls within the category of willful and malicious injuries under §523(a)(6). Kawaauhau v. Geiger, 523 U.S. at 64.
Willfulness means intent to cause injury. Kawaauhau v. Geiger, 523 U.S. at
61. "The injury must be deliberate or intentional, 'not merely a deliberate or intentional act that leads to injury.'" In re Plyam, 530 B.R. 456, 463 (9th Cir. BAP 2015) (quoting Kawaauhau v. Geiger, 523 U.S. at 61) The court may consider circumstantial evidence that may establish what the debtor actually knew when conducting the injury creating action and not just what the debtor admitted to knowing. In re Ormsby, 591 F. 3d at 1206. Recklessly inflicted injuries, covering injuries from all degrees of recklessness, do not meet the willfulness requirement of § 523(a)(6). In re Plyam, 530 B.R. at 464. Reckless conduct requires an intent to act instead of an intent to cause injury. Id. Therefore, the willful injury requirement "... is met only when the debtor has a subjective motive to inflict injury or when the debtor believes that injury is substantially certain to result from his own conduct." Carillo v. Su (In re Su), 290 F.3d 1140, 1142 (9th Cir. 2002).
The "malicious" injury requirement under 11 U.S.C. §523(a)(6) is separate from the "willful" requirement, and both must be present for a claim under § 523(a) (6). Carillo v. Su (In re Su), 290 F.3d 1146 (9th Cir. 2002). A malicious injury is one that involves; "(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse." Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1209 (9th Cir. 2001). "Malice may be inferred based on the nature of
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Chapter 7
the wrongful act," but to make such an inference, willfulness must be established first. Ormsby v. First Am. Title Co. ( In re Ormsby), 591 F.3d 1199, 1207 (9th Cir. 2010). When analyzing the plain meaning of "malice," "it is the wrongful act that must be committed intentionally rather than the injury itself." Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1106 (9th Cir. 2005).
The Court first addresses the State Court judgment based on California libel laws under California Civil Code § 45. Libel is defined under this section of the California Civil Code as:
…a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.
Cal. Civil Code § 45. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage. Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (1999). Libel is a form of defamation effected in writing. Cal. Civ. Code, § 44. To prove defamation, the plaintiff must establish the following elements (1) a publication that is (2) false,
(3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. Joe Doe 2 v. Superior Court, 1 Cal. App. 5th 1300, 1312 (2016). The defamatory statement must specifically refer to, or be of and concerning, the plaintiff. Blatty v. New York Times Co. 42 Cal.3d 1033, 1042 (1986).
Much of Tacarra’s opposition to this motion revolves around the increased standard for defamation against "public figures." If the person defamed is a public figure, he cannot recover unless he proves, by clear and convincing evidence (see New York Times Co. v. Sullivan, 376 U.S. 254, 285-286 (1964)) that the libelous statement was made with "'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Reader's Digest Assn. v. Superior Court, 37 Cal. 3d 244, 256 (1984). The characterization of a plaintiff as a public figure "may rest on either of two alternative bases. In some instances, an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a
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Chapter 7
public figure for a limited range of issues." Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1973). To characterize a plaintiff as a limited purpose public figure, the courts must first find that there was a public controversy. Copp v. Paxton, 45 Cal. App. 4th, 829, 845 (1996). The ". . . courts should look for evidence of affirmative actions by which purported 'public figures' have thrust themselves into the forefront of particular public controversies. Id. (citing Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980) It is not necessary to show that a plaintiff actually achieves prominence in the public debate; it is sufficient that "[a plaintiff] attempts to thrust himself into the public eye" (Rudnick v. McMillan 25 Cal. App. 4th 1183, 1190 (1994)) or to influence a public decision. (Okun v. Superior Court, 29 Cal. 3d 442, 451 (1981)). If there is a public controversy and an individual injects themselves in themselves into the public arena, the last inquiry performed by the Court is whether the alleged defamation is germane to the individual’s participation in the controversy. Gilbert v. Sykes, 147 Cal. App. 4th 13, 24 (2007).
Tacarra argues that since Carmen is a comedian, a showing of actual malice is required, and because the State Court judgment did not address the issue of actual malice, the issue of intent has not been satisfied. There is nothing in the court’s findings or the pleadings from that case to show that the question of whether Carmen was a public figure was ever discussed at all, or that the public figure standard was considered by the court. That would require reading extra issues into the ruling where there is no showing they were ever even raised. The controversy was not a public controversy and just because Ms. Barton works as a comedian does not raise her to a public figure. She has not achieved the pervasive fame and notoriety required. There is simply no basis to use a public figure approach here.
The Court also does not need to ascertain whether the "actual malice" standard applies because the issue of whether someone qualifies as a public figure goes towards the burden of proof in defamation suits. The State Court has already decided, and affirmed on appeal, that the Plaintiffs have satisfied their burden for libel. To now argue that the State Court somehow applied the wrong standard and this Court should apply a heightened standard violates the Rooker-Feldman Doctrine. The Rooker- Feldman doctrine is a well-established jurisdictional rule prohibiting federal courts from exercising appellate review over final state court judgments. See Henrichs v. Valley View Dev., 474 F.3d 609, 613 (9th Cir. 2007); see also D.C. Court of Appeals v. Feldmen, 460 U.S. 462, 482-86 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
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415-16 (1923). The State Court has already made a finding of libel; this Court is tasked with determining whether the State Court’s findings satisfy the requirements under §523(a)(6). The State Court’s lack of findings as to "actual malice" by itself does not defeat the Plaintiffs’ motion for summary judgment.
The State Court in a minute order stated that the Plaintiffs satisfied the requirements under California Civil Code §45 and made findings that have preclusive effect here. According to the State Court’s minute entry, Carmen lost earnings and her employment. This satisfies the injury element under § 523(a)(6). The State Court’s opinion does not address whether Anthony sustained any injuries, and the record before this Court is unclear as to whether the Defendant’s defamatory publications caused any specific injuries as to him specifically. In the Plaintiffs’ reply, they state that they did not press the issue of damages to Anthony because these damages would have pushed them over the dollar limit for small claim disputes. Since there are no State Court findings on the issue of damages as to Anthony, this Court cannot find that the State Court’s findings meet the requirements of a§523(a)(6) claim as to Anthony. Accordingly, there is a genuine dispute as to a material fact and the Court denies summary judgment as to Anthony Carthan. The Court continues its analysis for summary judgment as to the libel judgment against Carmen only.
The State Court’s ruling additionally satisfies the element of "malicious" injury. The Defendant’s posting false information is a wrongful act, libel is an intentional tort in which the defendant intended to complete the act, there is an injury that stems from this act, and it was done without cause or excuse. The State Court’s decision notes that the Department of Children and Family Services’ investigation was closed and the allegations as to the child abuse claims made by the Defendant were inconclusive. The State Court did not believe that there was any truth to the Defendant’s comments because it still entered judgment against her for libel. See Smith v. Maldonado, 72 Cal. App. 4th 637, 648 (1999) ("Truth is, of course, an absolute defense to any libel action."). If the State Court believed that the Defendant’s comments had some truth to them, then it would not have entered a judgment for libel against her.
The willfulness element requires that Tacarra intended to cause harm. The Court finds it is undisputed from the State Court’s ruling that Tacarra intended to cause harm. Tacarra was in the middle of a heated custody battle with Anthony when
1:00 PM
CONT...
Tacarra Sheana Carthan
Chapter 7
she purposefully published statements alleging that Carmen and Anthony were abusing her daughter. Rather than limiting these statements to the Department of Children and Family Services, Tacarra made these statements public on numerous social media accounts for the world to see. Any time that defamatory comments are made they have a tendency to inflict serious harm to the person these comments were about, but allegations of child abuse amplify this harm – this is because these types of allegations are among the worst types of allegations to be made. A person publishing false statements regarding child abuse is not doing so recklessly; the nature of the act itself is to inflict serious harm to someone’s reputation. Had the false statements been made simply to the Department of Children and Family Services, there might be an inference that the statements were not made with the willful intent to cause harm, but were made simply with the intent to protect the child involved. It is not possible to make such an inference where extensive publication on social media was involved. The State Court’s ruling found that Tacarra was unable to demonstrate truth to these statements. There is nothing before this Court that would suggest that Tacarra acted anything but willfully. Accordingly, the Court finds that all elements of a §523(a)(6) claim has been satisfied and the Court grants summary judgment as to the libel judgment as it pertains to Carmen.
The judgment regarding malicious prosecution of claims is a separate analysis. On October 29, 2019, the Defendant filed bankruptcy. On that date the automatic stay was instituted. The following day, October 30, 2020, the State Court granted judgment in favor of the Plaintiffs, this question is whether any part of this ruling violates the automatic stay. An act taken in violation of the automatic stay is void, not merely voidable, is well-established law in the Ninth Circuit. Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074, 1082 (9th Cir. 2000); see also Far Out Productions, Inc. v. Oskar et al., 247 F.3d 986, 995 (9th Cir. 2001). Further, "judicial proceedings in violation of the automatic stay are void." In re Gruntz at 1074 (quoting Phoenix Bond & Indemnity Co. v. Shamblin (In re Shamblin), 890 F.2d 123, 125 (9th Cir. 1989)). An action that violates the stay is still void despite a party’s lack of knowledge of the pending bankruptcy. See e.g., 40235 Washington Street Corporation v. Lusardi (In re Lusardi), 329 F.3d 1076 (9th Cir. 2003) (the Ninth Circuit deemed a county tax sale on real property void even though neither the county nor the purchaser had knowledge of the bankruptcy case).
Since the judgment as to the malicious prosecution claims was obtained after
1:00 PM
CONT...
Tacarra Sheana Carthan
Chapter 7
the automatic stay was in place, whether this is a final judgment on the merits or is void is unclear. With that being said, Tacarra was the plaintiff in the emotional distress case and made no mention of her recent bankruptcy filing until after judgment was rendered. Even if Carmen and Anthony had knowledge of the bankruptcy filing, had they not actively asserted their counterclaims in a case prosecuted by Tacarra, they may have been precluded from doing so in the future, so were prejudiced when Tacarra went forward with her case. It is also not clear whether the hearing was on October 30, or if the ruling was issued after the hearing had occurred on a previous day. Additionally, there is the possibility that this post-petition judgment could be deemed either an administrative expense under §503 or is simply not subject to the discharge. The Court does not have sufficient information in order to make findings. The Court will continue this part of the motion for summary judgment and allow the parties to submit supplemental briefs and exhibits that could assist the Court in reaching a decision on whether this State Court judgment is appropriate for summary judgment.
For the reasons previously articulated, the Court Grants summary judgment in favor of Carmen as to her §523(a)(6) claim for the libel judgment. The Court denies summary judgment for Anthony. The Court will continue the issue of summary judgment as it relates to the malicious prosecution claim and will allow parties to file supplemental documents and briefing.
Party Information
Debtor(s):
Tacarra Sheana Carthan Represented By Daniel King
Defendant(s):
Tacarra Sheana Carthan Represented By Daniel King
Plaintiff(s):
Carmen Barton Pro Se
Anthony Carthan Pro Se
1:00 PM
CONT...
Trustee(s):
Tacarra Sheana Carthan
Chapter 7
Amy L Goldman (TR) Pro Se
1:00 PM
1:19-12727
Tacarra Sheana Carthan
Chapter 7
Adv#: 1:19-01135 Barton et al v. Carthan
#34.00 Status Conference re: Complaint for determination
of dischargeability and objection to debtors discharge fr. 1/15/20, 5/6/20, 9/30/20, 10/8/20
Docket 1
Tentative Ruling:
Appearance Required
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
CONT...
Tacarra Sheana Carthan
Chapter 7
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.
Zoom.gov apperance required.
Debtor(s):
Party Information
Tacarra Sheana Carthan Pro Se
Defendant(s):
Tacarra Sheana Carthan Pro Se
Plaintiff(s):
Carmen Barton Pro Se
Anthony Carthan Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
12:00 PM
1:00-00000 Chapter
#0.00 This calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1605692219 Meeting ID: 160 569 2219
Docket 0
12:00 PM
CONT... Chapter
Tentative Ruling:
- NONE LISTED -
1:00 PM
1:16-13077
David Saghian
Chapter 7
Adv#: 1:20-01087 Weil, Chapter 7 Trustee v. Shemuelian
#1.00 Emergency Motion for Issuance of Temporary Protective Order and Issuance of Right to Attach Order and Writs of Attachment
fr. 11/2/20
Docket 4
Tentative Ruling:
On June 12, 2018, the Court approved a purchase agreement between Diane Weil ("Plaintiff") and Avraham Shemuelian ("Defendant"). Pursuant to the purchase agreement, the Plaintiff would transfer a 33.33% interest in One Nation Equites Liberty, LLC ("Liberty") to the Defendant. In exchange for this interest in Liberty, the Defendant was to pay the Plaintiff $150,000.00. According to paragraph 6(a), the Defendant was to provide $10,000.00 of the $150,000.00 to the Plaintiff within two days a of the execution of the purchase agreement as an initial deposit. The Debtor tendered this initial deposit.
At the time that this purchase agreement was entered into, the Plaintiff was not in possession of the interest in Liberty – the interest was held by David Saghian ("Debtor"). Shortly after the Court approved the purchase agreement, the Plaintiff commenced an adversary proceeding against the Debtor to recover the 33.33% interest in Liberty. On July 6, 2020, the Court approved a settlement agreement between the Plaintiff and the Debtor. On that date, the Plaintiff satisfied all conditions to the purchase agreement and demanded that the Defendant tender the remainder of the payment. The Defendant failed to do so and the Plaintiff commenced this adversary proceeding in order to recoup the remaining $140,000.00 that the Defendant owed pursuant to the purchase agreement.
Damages:
Damages awarded to an injured party for breach of contract "seek to approximate the agreed-upon performance." Applied Equipment Corp. v. Litton Saudi
1:00 PM
CONT...
David Saghian
Chapter 7
Arabia Ltd., 7 Cal.4th 503, 515 (1994). The goal is to put the plaintiff "in as good a position as he or she would have occupied" if the defendant had not breached the contract. 24 Williston on Contracts (4th ed. 2002) § 64:1, p. 7. In other words, the plaintiff is entitled to damages that are equivalent to the benefit of the plaintiff's contractual bargain. (Id. at pp. 9–10; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 813, pp. 732–733; Peterson v. Larquier, 84 Cal.App. 174, 179 (1927) (breach of lease permits injured party to recover difference between rental value at date of breach and rent specified in lease for its term).
The injured party's damages cannot, however, exceed what it would have received if the contract had been fully performed on both sides. Cal. Civ. Code, § 3358. This limitation of damages for breach of a contract "serves to encourage contractual relations and commercial activity by enabling parties to estimate in advance the financial risks of their enterprise." Applied, 7 Cal.4th at p. 515. Contractual damages are of two types—general damages (sometimes called direct damages) and special damages (sometimes called consequential damages). 24 Williston on Contracts, § 64.1, pp. 11–12; 3 Dobbs, Law of Remedies (2d ed. 1993) § 12.2(3), pp. 39–42; see Erlich v. Menezes 21 Cal.4th 543, 558 (1999).
General damages are often characterized as those that flow directly and necessarily from a breach of contract, or that are a natural result of a breach. Cal. Civ. Code, § 3300 (damages "which, in the ordinary course of things, would be likely to result" from breach); Mitchell v. Clarke, 71 Cal. 163, 167–168 (1886) (general damages are those that naturally and necessarily result from breach). Because general damages are a natural and necessary consequence of a contract breach, they are often said to be within the contemplation of the parties, meaning that because their occurrence is sufficiently predictable the parties at the time of contracting are "deemed" to have contemplated them. Calamari & Perillo, The Law of Contracts (2d ed. 1977) § 14-5, p. 525; Hunt Bros. Co. v. San Lorenzo Water Co., 150 Cal. 51, 56 (1906) (parties need not "actually have contemplated the very consequence that occurred," but they would have supposed such a consequence was likely to follow a breach).
Unlike general damages, special damages are those losses that do not arise directly and inevitably from any similar breach of any similar agreement. Instead, they are secondary or derivative losses arising from circumstances that are particular to the
1:00 PM
CONT...
David Saghian
Chapter 7
contract or to the parties. Special damages are recoverable if the special or particular circumstances from which they arise were actually communicated to or known by the breaching party (a subjective test) or were matters of which the breaching party should have been aware at the time of contracting (an objective test). Mitchell v. Clarke, 71 Cal. 163 164–167 (1886); Witkin, Summary of Cal. Law, § 815, p. 733. Special damages "will not be presumed from the mere breach" but represent loss that "occurred by reason of injuries following from" the breach. Mitchell v. Clarke, 71 Cal. at p. 168.) Special damages are among the losses that are foreseeable and proximately caused by the breach of a contract. Cal. Civ. Code, § 3300.
The critical question presented here is whether the damages here are limited pursuant to the purchase agreement to the security deposit. Section 1670 generally invalidates contractual provisions which purport to determine in advance the amount of damages or compensation for breach of the obligations created by the contract. Section 1671 permits such limited damages where ascertainment of actual damages upon breach of the contract either would be impractical or extremely difficult. "‘The term "liquidated damages" is used to indicate an amount of compensation to be paid in the event of a breach of contract, the sum of which is fixed and certain by agreement, and which may not ordinarily be modified or altered when damages actually result from nonperformance of the contract.’ ‘Liquidated Damages constitute a sum which a contracting party agrees to pay … for breach of some contractual obligation.’" McGuire v. More-Gas Investments, LLC, 220 Cal.App.4th 512, 521 (2013). Courts look beyond the language of the contract to determine the actual circumstances of a liquidated damages clause." Del Monte Properties & Investments, Inc. v. Dolan, 26 Cal.App.5th Supp. 20, 23 (2018).
The objective of a liquidating damages clause is to "stipulate[] a pre-estimate of damages in order that the [contracting] parties may know with reasonable certainty the extent of liability" in the event of breach. ABI, Inc. v. City of Los Angeles, 153 Cal.App.3d 669, 685 (1984). Courts perform a "‘reasonable endeavor’" test to determine the validity of the liquidating damages provision measured at the time of contracting: "The amount set as liquidating damages ‘must represent the result of a reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be sustained.’" Ridgley v. Topa Thrift & Loan Assn. 17 Cal.4th 970, 977 (1998).
1:00 PM
CONT...
David Saghian
Chapter 7
Contract Interpretation:
The Court must first determine whether the purchase agreement contains a liquidating damages clause. The basic goal of contract interpretation is to give effect to the parties' mutual intent at the time of contracting. Cal. Civ. Code § 1636; Bank of the West v. Superior Court 2 Cal.4th 1254, 1264 (1992). California recognizes the
objective theory of contracts (Berman v. Bromberg 56 Cal.App.4th 936, 948 (1997), under which "[i]t 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." Titan Group, Inc. v. Sonoma Valley County Sanitation Dist. 164 Cal. App. 3d 1122, 1127 (1985). The parties' undisclosed intent or understanding is irrelevant to contract law. Berman, 56 Cal.App.4th at p. 948. When a contract is reduced to writing, the parties' intention is determined from the writing alone, if possible. Civ. Code, § 1639. The words of a contract are to be understood in their ordinary and popular sense." Cal. Civ. Code § 1644; see also Lloyd's Underwriters v. Craig & Rush, Inc. 26 Cal.App.4th 1194, 1197–1198 (1994) ("We interpret the intent and scope of the agreement by focusing on the usual and ordinary meaning of the language used and the circumstances under which the agreement was made").
Extrinsic evidence is admissible to prove a meaning to which the contract is reasonably susceptible. Powers v. Dickson, Carlson & Campillo 54 Cal.App.4th 1102, 1111 (1997); Winet v. Price 4 Cal.App.4th 1159, 1165 (1992). If the trial court decides, after receiving the extrinsic evidence, the language of the contract is reasonably susceptible to the interpretation urged, the evidence is admitted to aid in interpreting the contract. Powers v. Dickson, Carlson & Campillo, 54 Cal.App.4th 1102, 1111 (1997); Appleton v. Waessil 27 Cal.App.4th 551, 554 (1994); Winet 4 Cal.App.4th at 11165 Thus, "[t]he 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." Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. 69 Cal.2d 33, 37 (1968
Here the Defendant believes that the security deposit clause limits the Plaintiff
1:00 PM
CONT...
David Saghian
Chapter 7
to the $10,000.00 security deposit and nothing else. Paragraph 6(a) of the purchase agreement reads:
Shemuelian shall deliver an initial deposit in the amount of $10,000.00 (the "Deposit") to the Trustee within two (2) business days after the date of execution of this Agreement. The Deposit shall be paid by cashier’s check or personal check payable to "Diane C. Weil, Chapter 7 Trustee." Pending entry of the Sale Order, the Deposit shall be maintained by the Trustee in a segregated account. If the sale does not go through for any reason other than a breach of this Agreement by the Trustee, the Deposit will be nonrefundable; provided, however that the Deposit will be refunded if the Sale Motion is denied.
In support of his position, the Defendant heavily relies on the case Armstrong v. Irwin, 26 Ariz. 1, 10-11, 221 P. 22, 225 (1923) and other out of state cases. Armstrong went on to hold that the plaintiff was limited in damages to the deposit because it found that the language of the agreement "clearly and definitely" limited relief to the deposit. Witkin, a leading treatise on California law, discusses whether deposits may be treated as liquidated damages as follows:
A contract may require a deposit as security for performance (see supra, §
525).
If the parties provide that it will be liquidated damages for breach, the question whether it may be retained on breach is determined in accordance with the standard provided in C.C. 1671(b) (ordinary contracts, supra, § 539) or C.C. 1671(d) (consumer contracts and dwelling leases, infra, §§ 545, 548). (On real property purchase contracts, see C.C. 1675 et seq., infra, § 549 et seq.)
If the parties do not intend that the deposit shall constitute liquidated damages, it is merely a fund to secure the payment of actual damages if any are determined. (Law Rev. Com. Comment to C.C. 1671, calling attention to C.C. 1951.5, on real property lease; see infra,
§ 548.)
1:00 PM
CONT...
David Saghian
Chapter 7
While the Defendant asserts that this is the sole remedy available to the Plaintiff, the language of the purchase agreement does not support this position. It is undisputed that the Plaintiff can retain the deposit in the event of the breach and given the lack of language provided for in the purchase agreement limiting the remedies the Court can only conclude that the parties did not intend to limit the remedies being sought. The agreement cannot even be considered vague because there are no terms that even suggest that the Plaintiff is limited in forms of relief. Terms that are not apart of an agreement are presumed not a part of a contract. Since there no language that can be reasonably interpreted to suggest that the Plaintiff is limited solely to the security deposit in the event of a breach, the Court finds that there is no ambiguity in this contract.
The argument that the Defendant not being a sophisticated party is unpersuasive as well. There is some dispute as to whether the Defendant was represented at the time of the signing of the contract; however, the Defendant was represented at least during some of the negotiations. Additionally, the argument that ambiguities must be interpreted against the drafter – the Plaintiff – first requires an ambiguity. As previously mentioned, there are no ambiguities. The language is simply not there, meaning that it is not apart of the contract. Assuming, arguendo, that there are some ambiguities and the Court could look to extrinsic evidence, the exhibits attached to the Plaintiff’s supplemental memorandum support that the deposit is not intended to be the sole basis of relief for the Plaintiff in the event of a breach.
Accordingly, the Court finds that the security deposit clause in the purchase agreement is not considered a liquidating damages clause and the Plaintiff is not limited in seeking additional relief. This ruling in has no effect on whether the Plaintiff is entitled to damages, and if so then how much, and has no impact on any other affirmative defenses that the Defendant may raise.
Apperance Required.
Party Information
1:00 PM
CONT...
Debtor(s):
David Saghian
Chapter 7
David Saghian Pro Se
Defendant(s):
Avraham Shemuelian Pro Se
Plaintiff(s):
Diane C Weil, Chapter 7 Trustee Represented By
Jessica L Bagdanov
Trustee(s):
Diane C Weil (TR) Represented By Michael G D'Alba Eric P Israel David Seror
Jessica L Bagdanov
8:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1600674409 Meeting ID: 160 067 4409
Docket 0
Tentative Ruling:
- NONE LISTED -
8:00 AM
CONT... Chapter
9:30 AM
1:19-10781
Daniel Correa
Chapter 13
#1.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST COMPANY fr. 6/24/20; 7/22/20, 8/27/20; 10/7/20
Docket 36
Tentative Ruling:
This hearing was continued from 10/07/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion?This hearing was continued from 7/22/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing. What is the status of this Motion?
APPEARANCE REQUIRED. 6-24-20 TENTATIVE BELOW
Ch. 13 Petition Date: 04/02/2019 Plan confirmed 07/22/2019
Service: Proper. Opposition filed 6/11/2020 Property: 8101 Etiwanda Ave, Reseda, CA 91335 Property Value: $490,000 (per debtor’s schedules) Amount Owed: $369,282.52
Equity Cushion: 24.6% Equity: $120,717.48
Post-Petition Delinquency: $7,167.74 (3 payments of $1,922.58 plus $1,400 post-petition advances)
Movant alleges that the last partial payment received was on or about 10/15/2019. Movant requests relief under 11 U.S.C. 362(d)(1) with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3(a) (Movant permitted to engage in loss mitigation activities); and 7 (relief from 4001(a)(3) relief from stay).
9:30 AM
CONT...
Daniel Correa
Chapter 13
Debtor opposes the motion because the property is necessary for effective reorganization. Debtor wishes to enter an APO to catch up on post-petition arrears. Is Movant amenable to an APO?
Party Information
Debtor(s):
Daniel Correa Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-12260
Irene Elizabeth Franklin
Chapter 13
#2.00 Motion for relief from stay
NATIONSTAR HECM ACQUISITION TRUST 2018-1
fr. 8/19/20; 10/7/20
Docket 29
Tentative Ruling:
This hearing was continued from 10/07/20 so that the parties could finalize an APO to resolve this matter. Nothing has been filed since the last hearing.
What is the status of this Motion? Appearance Required.
Ch. 13 Petition Date: 09/09/19 Plan confirmed: 12/09/19
Service: Proper. No opposition filed.
Property: 22656 Miranda Street, Woodland Hills, CA 91367
Property Value: $668,400 (per residential appraisal) $500,000 (per debtor's schedules)
Amount Owed: $459,422.18 (including $1,836.95, $453.79 MIP, $190 costs,
$20 advances)
Equity Cushion: 8.12% Equity: $40,577.82
Post-Petition Delinquency: $3,123 (1 payment of $2,092.00 + $1,031.00 attorneys’ fees)
Movant alleges that interest in the property is not adequately protected and that post-petition mortgage payments due on the note secured by a deed of trust have not been made.
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief
9:30 AM
CONT...
Irene Elizabeth Franklin
Chapter 13
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 argues there will be prejudice if Movant is granted relief and seeks to enter an APO for the delinquent amount. There appears to be sufficient equity to protect Movant's claim and a small delinquency. Have the parties discussed whether this delinquency can be cured via APO?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Irene Elizabeth Franklin Represented By
Hasmik Jasmine Papian
Movant(s):
Nationstar HECM Acquisition Trust Represented By
Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#3.00 Motion for relief from stay
THE BARME FAMILY TRUST, CAROL S. BARME AS TRUSTEE
Docket 2487
Tentative Ruling:
Ch. 11 Petition Date: 01/09/2012 Chapter 7 Conversion Date: 3/14/2012 Service: Proper. No opposition filed.
Property: 5255 Coldwater Canyon Avenue, Unit 32B, Sherman Oak, CA 91401
Property Value: $590,000.00 (per Movant's Declarations)
Amount Owed: $427,797.39 ($360,674.14 to the Movant and $67,123.25 to County of Los Angeles)
Equity Cushion: 27% Equity: $162,202.61
Post-Petition Delinquency: $360,674.14.
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant is the holder of the 1st Trust Deed secured by the Property based upon a loan in the original amount of
$210,000.00. On January 29, 2010, without the Movant's knowledge, a grant deed was recorded purporting to transfer all title and interest from the Borrower to the Debtor. The Debtor did not assert any interest in the Property in any of its verified schedules (Dkt. No. 32) or its verified amended schedules (Dkt. Nos. 188, 189, and 221). Further the Debtor ceased making payments on the loan since August 2015. Movant alleges that cause exists because no payments have been made on this property for over five years and because the Debtor is not the borrower subject to the loan agreement.
While there is substantial equity in the property, the Debtor has not been making payments on the loan and has not made tax payments. Also the
10:00 AM
CONT...
Owner Management Service, LLC
Chapter 7
Court takes into the fact that the Debtor does not appear to be bound by the terms of the loan agreement originally entered into by the Movant and the Borrower. Accordingly, the Court finds cause exists for lifting the stay.
Disposition: Grant relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay).
NO TELEPHONIC APPEARANCE REQUIRED.
Movant to lodge an order with the Court within 7 days.
Party Information
Debtor(s):
Owner Management Service, LLC Pro Se
Movant(s):
The Barme Family Trust, Carol S Represented By
Julian K Bach
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 Jorge A Gaitan Robyn B Sokol
10:00 AM
1:18-11124
Ernesto Bernabe Bustamante, Jr. and Lucia Tabunda
Chapter 13
#4.00 Motion for relief from stay LAKEVIEW LOAN SERVICING, LLC
fr. 9/24/20, 10/28/20
Docket 50
*** VACATED *** REASON: Vacated Pursuant to APO. Tentative Ruling:
VACATED PURSUANT TO APO.
No Apperance Required.
Party Information
Debtor(s):
Ernesto Bernabe Bustamante Jr. Represented By Jeffrey N Wishman
Joint Debtor(s):
Lucia Tabunda Bustamante Represented By Jeffrey N Wishman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12042
Vrej Anbarsoun and Anahid Anbarsoun
Chapter 13
#5.00 Motion for relief from stay JPMORGAN CHASE BANK
Docket 81
Tentative Ruling:
Ch. 13 Petition Date: 08/13/18 Plan confirmed: 03/11/19
Service: Proper. No opposition filed.
Property: 2017 Subaru Crosstrek (VIN Number JF2GPABC4HH242893) Property Value: $668,400 (per residential appraisal) $500,000 (per debtor's schedules)
Amount Owed: $0.00 Equity Cushion:
Equity: $0.00
Post-Petition Delinquency: $ 0.00
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 7 (waiver of the 4001(a)(3) stay). Movant alleges that the lease has matured and the Debtor voluntarily surrendered the Property.
The Court finds cause exists for lifting the Automatic Stay.
Disposition: GRANT relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 7 (waiver of the 4001(a)(3) stay).
Movant to lodge order with the Court within 7 days. NO APPARANCE REQUIRED.
Party Information
Debtor(s):
Vrej Anbarsoun Represented By
10:00 AM
CONT...
Vrej Anbarsoun and Anahid Anbarsoun
David A Tilem Donna R Dishbak
Chapter 13
Joint Debtor(s):
Anahid Anbarsoun Represented By David A Tilem Donna R Dishbak
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Joseph C Delmotte
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12843
Francisco Romero
Chapter 13
#6.00 Motion for relief from stay
HOMEBRIDGE FINANCIAL SERVICES, INC.
Docket 61
Tentative Ruling:
Ch. 13 Petition Date: 11/21/18 Plan confirmed: 03/11/19
Service: Proper. No opposition filed.
Property: 13219 Bromwich Street, Los Angeles, CA 91331 Property Value: $526,169.00 (per debtor's schedules) Amount Owed: $446,142.01 (per Movant's papers)
Equity Cushion: 15% Equity: $80,026.99
Post-Petition Delinquency: $41,862.38 (4 payments of $2,606.35, 5 Payments of $2,604.26, 8 payments of $2,622.39, less $2,563.44 in suspense account).
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 6 (co-debtor stay); and 7 (waiver of the 4001(a)(3) stay). Movant alleges that cause exists for lifting the stay because the Debtor has failed to make post-petition mortgage payments. The last payment received by the movant occurred on 9/11/2019.
There is still some equity in the property; however, the lack of post-petition payments is rapidly increasing and the equity cushion is diminishing. Is the Movant amendable to entering into an APO?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
Debtor(s):
Francisco Romero Represented By
10:00 AM
CONT...
Movant(s):
Francisco Romero
Kevin T Simon
Chapter 13
HomeBridge Financial Services, Inc. Represented By
Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-12727
Tacarra Sheana Carthan
Chapter 7
#7.00 Motion for relief from stay
CARMEN BARTON AND ANTHONY CARTHAN
Docket 28
Tentative Ruling:
Petition Date: 10/29/19 Reopened 5/06/2020 (Ch.7) Service: Proper.
Movant: Nicholas Garcia
Relief Sought to: Pursue Pending Litigation _X
Commence Litigation
Pursue Insurance
Litigation Information
Other
Case Name: Camren Barton & Anthony Carthan v. Tacarra Carthan (Dkt. No. 20STCV42159)
Court/Agency: Superior Court of the State of California, County of Los Angeles
Date Filed: 11/4/2020 Trial Start Date: NA
Action Description: False Light, Intentional Infliction of Emotional Distress, Malicious Prosecution, and Abuse of Civil Process.
Grounds
Bad Faith X
Claim is Insured
Claim Against 3rd Parties
Nondischargeable Mandatory Abstention Non-BK Claims Best Resolved in Non-BK Forum X_ Other:
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3
( retroactive stay); 7 (order binding and effective on any future bankruptcy case, no matter who the debtor maybe, without further notice).
10:00 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
Debtor opposes this motion because it will prejudice her to prosecute this case in a non-bankruptcy forum. Additionally, this case was filed after the bankruptcy was commenced.
An act taken in violation of the automatic stay is void, not merely voidable, is well-established law in the Ninth Circuit. Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074, 1082 (9th Cir. 2000); see also Far Out Productions, Inc. v. Oskar et al., 247 F.3d 986, 995 (9th Cir. 2001). Further, “judicial proceedings in violation of the automatic stay are void.” In re Gruntz at 1074 (quoting Phoenix Bond & Indemnity Co. v. Shamblin (In re Shamblin), 890 F.2d 123, 125 (9th Cir. 1989)). An action that violates the stay is still void despite a party’s lack of knowledge of the pending bankruptcy. See e.g., 40235 Washington Street Corporation v. Lusardi (In re Lusardi), 329 F.3d 1076 (9th Cir. 2003) (the Ninth Circuit deemed a county tax sale on real property void even though neither the county nor the purchaser had knowledge of the bankruptcy case).
Commencing a lawsuit is an action in which the automatic stay seeks to prohibit, whether plaintiffs were aware of the bankruptcy or not. Any argument that the Court should retroactively grant relief runs afoul with the Supreme Court's holding in Roman Catholic Archdiocese of San Juan, Puerto Rico v. Acevedo Feliciano, 2020 WL 871715, (U.S. Feb. 24, 2020).
Disposition: DENY Movant's motion for relief. Once the current issues are resolved, the case can be closed and this lawsuit can be pursued.
Appearance Required.
Party Information
Debtor(s):
Tacarra Sheana Carthan Represented By Daniel King
Movant(s):
Anthony Carthan Pro Se
Carmen Barton Pro Se
10:00 AM
CONT...
Trustee(s):
Tacarra Sheana Carthan
Chapter 7
Amy L Goldman (TR) Pro Se
10:00 AM
1:19-13009
Edward V. Marquez and Elva Marquez
Chapter 13
#8.00 Motion for relief from stay CITIBANK N.A.
Docket 55
Tentative Ruling:
Ch. 13 Petition Date: 12/03/19 Plan confirmed: 03/12/2020
Service: Proper. Opposition filed on 11/20/2020 (Dkt. No. 60) Property: 13760 Almetz St., Los Angeles CA 91342
Property Value: $617,400.00 (per debtor's schedules)
Amount Owed: $607,074.14 ($576,618.14 to the Movant and $30,456.00. to junior lien holder).
Equity Cushion: 1.7% Equity: $10,326.00
Post-Petition Delinquency: $16,546.38 (2 Payments of $2,351.17, 6 payments of $2,351.17, less suspense account $2,262.98)
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (right to enter into forbearance agreement, loan modification, or refinance agreement); and 7 (waiver of the 4001(a)(3) stay). Movant alleges that cause exists for lifting the stay because the Debtor has failed to make post-petition payments. The last payment received by the Movant was on 03/04/2020.
Debtor opposes the motion because the Debtor allegedly is experiencing financial hardship as a result of COVID-19. Further, the Debtor has communicated to the Movant that he wishes to enter into an APO. Are parties amendable to entering into an APO?
TELEPHONIC APPEARANCE REQUIRED.
Party Information
10:00 AM
CONT...
Debtor(s):
Edward V. Marquez and Elva Marquez
Chapter 13
Edward V. Marquez Represented By Joshua L Sternberg
Joint Debtor(s):
Elva Marquez Represented By Joshua L Sternberg
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-10495
Edgar Hairapetyan
Chapter 13
#9.00 Motion for relief from stay USB LEASING LT
Docket 35
Tentative Ruling:
Ch. 13 Petition Date: 02/28/2020 Plan Not Confirmed.
Service: Proper. No opposition filed.
Property: 2020 Porsche Macan (VIN Number WP1AA2ALLB01134) Property Value: $0.00 (per debtor's schedules) (Leased vehicle ex-wife drives and makes payments)
Amount Owed: $72,258.16 Equity Cushion: 0
Equity: $0.00
Post-Petition Delinquency: $4,824.90 (5 payment of 964.98)
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 5 (relief from Co-debtor stay); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that the fair market value of the Property is declining and payments are not being made to Movant sufficient to protect Movant's interest against that decline.
The last payment was received on 03/11/2020.
The Court finds cause exists for lifting the Automatic Stay.
Disposition: GRANT relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 5 (relief from Co-debtor stay); and 6 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED.
Movant to lodge an order with the Court within 7 days.
Party Information
10:00 AM
CONT...
Debtor(s):
Edgar Hairapetyan
Chapter 13
Edgar Hairapetyan Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11063
Joby John Harte
Chapter 7
#10.00 Motion for relief from stay JPMORGAN CHASE BANK
Docket 55
Tentative Ruling:
Ch. 13 Petition Date: 06/15/2020 Plan Not Confirmed.
Service: Proper. No opposition filed.
Property: Jaguar I-Pace (VIN Number SADHD2S16K1F68749) Property Value: $0.00 (per debtor's schedules) (Leased) Amount Owed: $60,970.40
Equity Cushion: 0 Equity: $0.00
Post-Petition Delinquency: $3,564.92 (4 payment of 891.23)
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that cause exists for lifting the stay because the Debtor has failed to make payments due under the lease agreement. The last payment was received on March 2, 2020.
The Court finds cause exists for lifting the Automatic Stay.
Disposition: GRANT relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay).
NO TELEPHONIC APPEARANCE REQUIRED.
Movant to lodge order with the Court within 7 days.
Party Information
Debtor(s):
Joby John Harte Represented By
10:00 AM
CONT...
Movant(s):
Joby John Harte
Henry Glowa
Chapter 7
JPMorgan Chase Bank, N.A. Represented By Joseph C Delmotte
Trustee(s):
Nancy J Zamora (TR) Pro Se
10:00 AM
1:20-11701
Dawn Tintari Schillinger
Chapter 7
#11.00 Motion for relief from stay
FORD MOTOR CREDIT CO LLC
Docket 9
Tentative Ruling:
Ch. 13 Petition Date: 9/23/2020 Plan Not Confirmed.
Service: Proper. No opposition filed.
Property: 2016 Ford T150 (VIN Number 1FYE1ZM8GK40635) Property Value: $17,000.00 (per debtor's schedules) (Leased) Amount Owed: $18,487.16
Equity Cushion: 0 Equity: $0.00
Post-Petition Delinquency: $486.95 (Appears to be one post-petition payment behind, total prepetition and post-petition arrears $1,996.50)
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that cause exists for lifting the stay because there is no equity in the property and the Debtor intends to surrender the Vehicle.
The Court finds cause exists for lifting the Automatic Stay.
Disposition: GRANT relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay).
NO TELEPHONIC APPEARANCE REQUIRED.
Movant to lodge order with the Court within 7 days.
Party Information
10:00 AM
CONT...
Debtor(s):
Dawn Tintari Schillinger
Chapter 7
Dawn Tintari Schillinger Represented By David S Hagen
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
David Seror (TR) Pro Se
10:00 AM
1:20-11733
Amy Brachetti
Chapter 7
#12.00 Motion for relief from stay NISSAN-INFINITI LT
Docket 9
Tentative Ruling:
Ch. 13 Petition Date: 09/25/2020 Plan Not Confirmed.
Service: Proper. No opposition filed.
Property: 2019 Infiniti Q50 (VIN Number JN1EV7AP0KM543360) Property Value: $0.00 (per debtor's schedules) (Leased)
Amount Owed: $34,519.09 Equity Cushion: 0
Equity: $0.00
Post-Petition Delinquency: $0
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that cause exists for lifting the stay because the Debtor has failed to make payments due under the lease agreement, the Debtor has no equity in the leased vehicle, and there is no proof of insurance.
The missed payments all occurred prepetition; however, additional payments have come due since the filling of the motion so there is the possibility that these payments have been missed. Cause exists for granting relief because the Debtor has not provided the Movant with proof of insurance. Additionally, the Property does not appear to be necessary for an effective reorganization because the Debtor has no equity in the Property.
Disposition: GRANT relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay).
10:00 AM
CONT...
Amy Brachetti
Chapter 7
NO TELEPHONIC APPEARANCE REQUIRED.
Movant to lodge order with the Court within 7 days.
Party Information
Debtor(s):
Amy Brachetti Represented By Anita Khachikyan
Movant(s):
Nissan-Infiniti LT, as serviced by Represented By
Kirsten Martinez
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:20-11787
Nuttamon Hasdin
Chapter 7
#13.00 Motion for relief from stay HONDA LEASE TRUST
Docket 12
Tentative Ruling:
Ch. 13 Petition Date: 10/06/2020 Plan Not Confirmed.
Service: Proper. No opposition filed.
Property: 2019 Honda Fit (VIN # 3HGGK5H80KM722439)
Property Value: $17,897.73 (per debtor's schedules) Amount Owed: $18,781.72
Equity Cushion: 0 Equity: $0.00
Post-Petition Delinquency: $0
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that cause exists for lifting the stay because the lease was rejected per the Debtor's Statement of Intentions and the Movant has since regained the Property.
The Court finds that cause exists for lifting the stay.
Disposition: GRANT relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay).
NO APPEARANCE REQUIRED
Movant to lodge order with the Court within 7 days.
Party Information
Debtor(s):
Nuttamon Hasdin Pro Se
10:00 AM
CONT...
Trustee(s):
Nuttamon Hasdin
Chapter 7
Nancy J Zamora (TR) Pro Se
10:00 AM
1:20-11880
Farima Jafarzadeh Hirschi and Que Hirschi
Chapter 13
#14.00 Motion for relief from stay
FINANCIAL SERVICES VEHICLE TRUST
Docket 21
Tentative Ruling:
Ch. 13 Petition Date: 10/21/2020 Plan Not Confirmed.
Service: Proper. Opposition filed on 11/15 (Dkt. No. 26) Property: 2018 BMW X3 xDrive30i Sport Utility 4D (VIN # 5UXTR9C5XJLC7541 )
Property Value: $0.00 (per debtor's schedules) (Lease) Amount Owed: $38,403.07
Equity Cushion: 0 Equity: $0.00
Post-Petition Delinquency: $0
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that cause exists for lifting the stay because the lease was rejected per the Debtor's Statement of Intentions and the Movant has since regained the Property.
The Court finds that cause exists for lifting the stay.
Disposition: GRANT relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant asserts cause exists that the fair market value of the Property is declining and payments are not being made to Movant sufficient to protect Movant’s interest against that decline.
Debtor opposes the motion on several grounds. First, the Debtor asserts that the Movant does not have standing. The lease agreement was between the Debtor and BMW Financial Services NA, LLC, and the Movant has not shown
10:00 AM
CONT...
Farima Jafarzadeh Hirschi and Que Hirschi
Chapter 13
why it may seek relief. The Second rationale for opposing relief from stay is that the Debtor does not believe there is a basis for relief.
Movant's sole basis for seeking relief is because the Property is a depreciating asset and the Debtor missed payments; however, the missed payments occurred prepetition. The Movant has not sufficiently demonstrated that cause exists for lifting the automatic stay.
Disposition: DENY Movant's motion.
APPEARANCE REQUIREDCh. 13 Petition Date: 10/21/2020
Plan Not Confirmed.
Service: Proper. Opposition filed on 11/15 (Dkt. No. 26) Property: 2018 BMW X3 xDrive30i Sport Utility 4D (VIN # 5UXTR9C5XJLC75410 )
Property Value: $0.00 (per debtor's schedules) (Lease) Amount Owed: $38,403.07
Equity Cushion: 0 Equity: $0.00
Post-Petition Delinquency: $0
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant alleges that cause exists for lifting the stay because the lease was rejected per the Debtor's Statement of Intentions and the Movant has since regained the Property.
The Court finds that cause exists for lifting the stay.
Disposition: GRANT relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); and 6 (waiver of the 4001(a)(3) stay). Movant asserts cause exists that the fair market value of the Property is declining and payments are not being made to Movant sufficient to protect Movant’s interest against that decline.
Debtor opposes the motion on several grounds. First, the Debtor asserts that the Movant does not have standing. The lease agreement was between the
10:00 AM
CONT...
Farima Jafarzadeh Hirschi and Que Hirschi
Chapter 13
Debtor and BMW Financial Services NA, LLC, and the Movant has not shown why it may seek relief. The Second rationale for opposing relief from stay is that the Debtor does not believe there is a basis for relief.
Movant's sole basis for seeking relief is because the Property is a depreciating asset and the Debtor missed payments; however, the missed payments occurred prepetition. The Movant has not sufficiently demonstrated that cause exists for lifting the automatic stay.
Disposition: DENY Movant's motion.
APPEARANCE REQUIRED
Debtor(s):
Party Information
Farima Jafarzadeh Hirschi Represented By Jeffrey J Hagen
Joint Debtor(s):
Que Hirschi Represented By
Jeffrey J Hagen
Movant(s):
Financial Services Vehicle Trust Represented By
Marjorie M Johnson
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11971
Corwyn Andre Lewis
Chapter 13
#15.00 Motion for relief from stay PS FUNDING, INC.
Docket 11
Tentative Ruling:
Ch. 13 Petition Date: 11/02/2020 Case Dismissed on 11/20/2020 Service: Proper. No Opposition filed
Property: 9436 Foster Road, Bellflower, CA 90706 Property Value: $500,000.00 (per debtor’s schedules)
Amount Owed: $636,508.16 ($506,508.16 to Movant and $130,000.00 to junior lien holder).
Equity Cushion: 0% Equity: $0.00
Post-Petition Delinquency: $0
Movant requests relief under 11 U.S.C. 362(d)(1) with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (right to enter into forbearance agreement, refinance agreement, or loan modification); 6 (Co-debtor stay); 7 (relief from 4001(a)(3) relief from stay); and 9 (relief binding on any other cause purporting to affect the Property for 2 years).
Movant alleges that cause exists because there is no equity cushion and because this case was filed in bad faith.
On or about November 26, 2018, PS Funding and Borrower entered into that certain Loan Agreement (the “Loan Agreement”) whereby Darius Rutledge ("Borrower") agreed to borrow, and PS Funding agreed to make the Loan to Borrower for the purposes of acquiring the Property with the intent to resell during the term of the loan.
On July 7, 2020, Borrower filed a voluntary petition for relief under chapter 13 to thwart the sale of the property, commencing Case No. 2:20-bk-16104-WB.
10:00 AM
CONT...
Corwyn Andre Lewis
Chapter 13
From July 30, 2020, to August 10, 2020, the Borrower filed a series of motions to dismiss the First Bankruptcy Case and withdrawals of same. Two days after the First Bankruptcy Case was dismissed, on August 12, 2020, Borrower filed a second voluntary chapter 13 case, commencing Case No. 2:20-bk-17322-WB. On September 15, 2020, Lender moved for relief from stay under sections 362(d)(1) and 362(d)(2).23 On October 2, 2020, four days prior to the hearing on Lender’s stay relief motion, Borrower requested a voluntary dismissal of the Second Bankruptcy Case.24 On October 5, 2020, the Court dismissed the Second Bankruptcy Case with a 180-day bar to refiling.
On October 13, 2020, Jaliyah Rutledge filed a voluntary chapter 13 bankruptcy, commencing Case No. 6:20-bk-16809-WJ. Also on October 13, 2020, via grant deed, Borrower transferred an interest in the Property to Ms. Rutledge. Also on October 13, 2020, the date of the continued Trustee’s Sale, Lender received a facsimile message containing notice of the Third Bankruptcy Case as well as the First Grant Deed, apparently purporting to further stay the Trustee’s Sale.28 On October 28, 2020, the Court dismissed Ms. Rutledge’s bankruptcy case due to her failure to file case commencement documents.
Via grant deed dated October 30, 2020, the Borrower transferred an interest in the Property to Debtor (the “Second Grant Deed”).34 The Second Grant Deed does not appear to have been recorded. The Debtor filed this bankruptcy case on November 2, 2020, and it was dismissed on 11/20/2020.
Even though the case has been dismissed, the Movant continues to seek in rem relief as to the Property.
The Court finds cause exists for granting in rem relief.
Disposition: Deny relief under 11 U.S.C. 362(d)(1) with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3 (right to enter into forbearance agreement, refinance agreement, or loan modification); 6 (Co-debtor stay); 7 (relief from 4001(a)(3) relief from stay) as moot.
GRANT relief under 11 U.S.C. 362(d)(1) (9) (relief binding on any other cause purporting to affect the Property for 2 years).
10:00 AM
CONT...
Corwyn Andre Lewis
Chapter 13
No Appearance Required.
Movant to lodge an order with the Court within 7 days.
Party Information
Debtor(s):
Corwyn Andre Lewis Pro Se
Movant(s):
PS Funding, Inc., master servicing Represented By
Eric S Pezold Andrew Still
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:30 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#16.00 Eighth Interim Application of Brutzkus Gubner, Counsel for the Chapter 7 Trustee, for Compensation of Fees and Expenses
Period: 11/1/2019 to 10/31/2020,
Fee: $158,297.85, Expenses: $2,655.90.
Docket 2490
*** VACATED *** REASON: Notice filed Reset to 12/9/20 at 10:30 am, per moving requested (eg)
Tentative Ruling:
VACATED: Moved to December 9, 2020 at 10:30am No apperance required.
Party Information
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 Jorge A Gaitan Robyn B Sokol Jessica Wellington
10:30 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#17.00 Seventh Application for Interim Compensation by David Seror, Chapter 7 Trustee;
Period: 3/21/2012 to 11/11/2020,
Fee: $125,000.00, Expenses: $400.93.
Docket 2495
*** VACATED *** REASON: VACATED: Moved to December 9, 2020 at 10:30am
Tentative Ruling:
VACATED: Moved to December 9, 2020 at 10:30am No Apperance Required.
Party Information
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 Jorge A Gaitan Robyn B Sokol Jessica Wellington
10:30 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#18.00 Motion for Order Authorizing Chapter 7 Trustee to Make Interim Distributions
Docket 2496
*** VACATED *** REASON: Withdrawal filed by Trustee's attorney - Doc. #2436. lf
Tentative Ruling:
VACATED:
No Apperance required.
Debtor(s):
Party Information
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 Jorge A Gaitan Robyn B Sokol Jessica Wellington
10:30 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#19.00 Eight Interim Fee Application for Allowance and Payment of Fees and Reimbursement
of Expenses of Final Advisors and Consultants for Trustee
Docket 2482
*** VACATED *** REASON: VACATED: Moved to December 9, 2020 at 10:30am
Tentative Ruling:
VACATED: Moved to December 9, 2020 at 10:30am No Apperance Required
Party Information
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 Jorge A Gaitan Robyn B Sokol
10:30 AM
1:19-12102
Hawkeye Entertainment, LLC
Chapter 11
#20.00 Motion of Debtor for Attorney Fees and Costs Re Trial on Contested Motion for an Order
Authorizing the Assumption of Non-Residential
Real Property Lease and Sublease;
Determining the Debtor and Sublessor not to be in Breach or Default, thereby
deeming them in Compliance with Bankruptcy Code § 365(b)(1)(a) and Excusing the Debtor from any additional Compliance with § 365 (b)(1)(b) and (c) [Docket No. 21]
Docket 232
Tentative Ruling:
On July 17, 2009, Hawkeye Entertainment, LLC (the "Debtor") entered into a lease agreement ("Lease") with Pax America Development, LLC ("PAX"). Pursuant to the terms of the Lease, the Debtor was entitled to use the first four floors and the basement of a building located at 618 South Spring Street, Los Angeles, California, more commonly referred to as the Pacific Stock Exchange Building (the "Property"). The Debtor paid $27,500 for rent per month according to the terms of the Lease.
On September 30, 2013, the Debtor filed a Chapter 11 petition, 1:13- bk-16307-MT ("Prior Bankruptcy Case"). The Debtor sought to assume the Lease. The landlord at the time was New Vision Horizon, LLC ("New Vision"), who acquired the Property through a foreclosure sale. The Property is now owned by Smart Capital, LLC ("Landlord"). The motion to assume the lease was ultimately resolved through a Settlement Agreement.
Section 22.11(q) of the 2009 Lease provides:
In the event that, at any time after the date of this Lease, either Landlord or Tenant shall institute any action or proceeding against the other relating to the provisions of this Lease or any default hereunder,
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
the party not prevailing in such action or proceeding shall reimburse the prevailing party for its actual attorneys' fees, and all fees, costs and expenses incurred in connection with such action or proceeding, including, without limitation, any post-judgment fees, costs or expenses incurred on any appeal or in collection of any judgment.
Similarly, Section 17 of the Settlement Agreement provides:
Attorneys’ Fees. Each Party hereto shall bear its own attorneys' fees and costs incurred in connection with the Bankruptcy Proceeding, the State Court Actions and this Agreement and the exhibits entered into in connection with this Agreement. In the event that any Party files or prosecutes any action to enforce or interpret the Agreement, or any action arising out of this Agreement, the prevailing Party in any such action shall be entitled to recover from the non-prevailing Party all reasonable costs and attorneys' fees incurred therein, including, without limitation, the costs and expenses of any expert witnesses.
The First Amendment entered into in connection with the Settlement Agreement, provides, among other things, as follows:
24. Ratification. Landlord and Tenant hereby ratify and confirm all of the terms and conditions of the [2009] Lease as modified by the First Amendment.
26. Remainder Of Lease Unmodified. Except as set forth in this First Amendment, the parties agree that the [2009] Lease is unmodified and is in full force and effect.
The Debtor filed for bankruptcy under Chapter 11 of the Bankruptcy Code and filed a motion to assume the Lease ("Assumption Motion"). The Landlord opposed the Assumption Motion and the Court conducted a trial. The Court found that the Landlord failed in its’ burden of proof to show the Debtor was in default of the Lease and granted the Assumption Motion.
Debtor’s Counsel moves for an award of $813,531.97 in fees and costs against the Landlord. The Landlord opposes this motion.
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
California Civil Code Section 1717:
The general rule is that the prevailing party is not entitled to collect reasonable attorney’s fees from the losing party. Travelers Cas. & Sur. Co. of Am. v. PG&E, 549
U.S. 443, 448 (2007). This default rule can be overcome by an applicable statute or enforceable contract. Id. State law controls an action on a contract; thus, a party to an action on a contract is entitled to an award of fees if the contract provides for an award and state law authorizes fee shifting agreements. Heritage Ford v. Baroff (In re Baroff), 105 F.3d 349, 442-3 (9th Cir. 1997).
California Civil Code section 1717 authorizes attorney’s fees and costs in any action on a contract, "where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party." Under California law, a tort action for fraud arising out of a contract is not an action on a contract within the meaning of section 1717. In re Baroff, 105 F.3d at 443. Section 1717 is narrowly applied. Redwood Theatres, Inc. v.Davison (In re Davison), 289 B.R. 716, 723 (B.A.P. 9th Cir. 2003) (relying on Santisas v. Goodin, 17 Cal. 4th 599, 615 (Cal. 1998).) Section 1717 applies only to actions that contain a contract claim. Id. at 724. In In re Davison, the court held that section 1717 was not applicable because the complaint did not contain a breach of contract claim and the only claim asserted was a nondischargeability claim based on fraud. Id.
The effect of section 1717 is to make reciprocal an otherwise unilateral contractual obligation to pay attorney's fees. Santisas v. Goodin, 17 Cal. 4th 599, 610-11, 71 Cal. Rptr. 2d 830, 951 P.2d 399 (1998). "[t]hree conditions must be met before [section 1717] applies." In re Penrod, 802 F.3d 1084, 1087 (9th Cir. 2015). First, the action generating the fees must have been an action "on a contract." Id. Second, the contract must provide that attorney's fees incurred to enforce it shall be awarded either to one of the parties or to the prevailing party. Id. And third, the party seeking fees must have prevailed in the underlying action. Id. at 1087-88.
The California Supreme Court has explained that "section 1717 applies only to actions that contain at least one contract claim," and that "[i]f an action asserts both contract and tort or other noncontract claims, section 1717 applies only to attorney fees incurred to litigate the contract claims." Santisas, 17 Cal. 4th at 615. Consistent
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
with Santisas, the Ninth Circuit has previously held that a nondischargeability action is "on a contract" within section 1717 if "the bankruptcy court needed to determine the enforceability of the . . . agreement to determine dischargeability." In re Baroff, 105 F.3d 439, 442 (9th Cir. 1997).
The Ninth Circuit has held that an adversary proceeding in bankruptcy court was not "on a contract" within the meaning of Section 1717 where the action neither litigated the validity of the contract nor required the bankruptcy court to consider "the state law governing contractual relationships." In re Johnson, 756 F.2d 738, 740 (9th Cir. 1985). More broadly, we instructed that when "federal and not state law govern[s] the substantive issues involved in the [adversary proceeding]," we may not "award[] attorney's fees pursuant to a state statute." Id. at 741.
First the Court has to address whether this action was "on the contract." Debtor’s Counsel asserts the fees and costs in connection with trial were necessary to preserve the Debtor’s rights under the Lease. Further, the Landlord’s asserted defaults and opposition to the Assumption Motion, all arise directly out of the Lease. The only possible source of the Landlord’s asserted rights and claims was the contract. The Landlord believes that this is not an action on the contract because this motion to assume the lease was brought pursuant to 11 U.S.C §365. A debtor is required to file a motion to assume the lease regardless of whether there is any dispute with a landlord or not.
The cases involving California Civil Code §1717 as applied to bankruptcy proceedings mostly deal with fraudulent transfer actions, and the applicability of § 1717 to motions to assume a lease under 11 U.S.C. §365 appears to be an issue of first impression. Under California law, an action is deemed to be "on a contract" when a party seeks to enforce, or avoid enforcement of, the provisions of the contract. City of Emeryville v. Robinson, 621 F.3d 1251, 1267 (9th Cir. 2010); Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc., 211 Cal. App.4th 230 (2012), 239; Turner v. Schultz, 175 Cal. App.4th 974, 980 (2009). In Penrod v. Americredit Financial, 802 F. 3d 1084 (9th Cir. 2015), a creditor sought to enforce the provisions of its contract with the Debtor when it objected to confirmation of the Debtor’s Chapter 13 Plan. The plan treated the creditor’s claim as only partially secured, but the creditor insisted that it was entitled to have its claim treated as fully secured. The only possible source of that asserted right was the contract. Because the creditor was seeking to enforce terms of
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
the contract, the Ninth Circuit concluded that the issue was "on the contract."
While the very nature of this §365 motion to assume the lease is premised on the fact that there is a valid lease – contract – to assume, the premise of the Landlord’s objections to the motion to assume and to the two motions to use the Property for religious purposes and for virtual events stem from the terms of the Lease (estoppel certificate, subordination agreement, unlawful use of Property, etc.). The ultimate issue that the Court had to decide at trial was whether the Debtor was in default of the Lease which required the Court to ultimately consider the terms of the Lease. The Contract and its terms were central in every aspect of the Lease Assumption Motion and the two motions to use Property. A motion to assume could turn on issues other than a breach of the lease where the breach is found to have occurred, but that was not the case here. Accordingly, the first element of "on the contract" has been satisfied as to those specific motions.
The second issue is whether the contract provides that the attorney's fees incurred to enforce it shall be awarded either to one of the parties or to the prevailing party. The Landlord argues that there is no contractual basis for fees because (1) the settlement agreement is inapplicable and (2) the Lease is not applicable because the Assumption Motion is not "any action or proceeding against" the Landlord. This requires the Court to interpret the two provisions articulated previously. The Lease provides in relevant part: "In the event that, at any time after the date of this Lease, either Landlord or Tenant shall institute any action or proceeding against the other relating to the provisions of this Lease or any default hereunder…". Further, the settlement agreement provides in relevant part:
In the event that any Party files or prosecutes any action to enforce or interpret the Agreement, or any action arising out of this Agreement, the prevailing Party in any such action shall be entitled to recover from the non-prevailing Party all reasonable costs and attorneys' fees incurred therein, including, without limitation, the costs and expenses of any expert witnesses.
The issue in these motions really focused on the Lease and the enforcement of the terms therein. The Settlement Agreement was not directly at issue; however, as how the terms of the Lease were amended by the Settlement Agreement were not at issue. The question of "any action or proceeding against the other" will ultimately
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
determine whether this element has been satisfied.
The basic goal of contract interpretation is to give effect to the parties' mutual intent at the time of contracting. Cal. Civ. Code § 1636; Bank of the West v. Superior Court 2 Cal.4th 1254, 1264 (1992). California recognizes the objective theory of
contracts (Berman v. Bromberg 56 Cal.App.4th 936, 948 (1997), under which "[i]t 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." Titan Group, Inc. v. Sonoma Valley County Sanitation Dist. 164 Cal. App. 3d 1122, 1127 (1985). The parties' undisclosed intent or understanding is irrelevant to contract law. Berman, 56 Cal.App.4th at p. 948. When a contract is reduced to writing, the parties' intention is determined from the writing alone, if possible. Civ. Code, § 1639. The words of a contract are to be understood in their ordinary and popular sense." Cal. Civ. Code § 1644; see also Lloyd's Underwriters v. Craig & Rush, Inc. 26 Cal.App.4th 1194, 1197–1198 (1994) ("We interpret the intent and scope of the agreement by focusing on the usual and ordinary meaning of the language used and the circumstances under which the agreement was made").
The Landlord here wants the Court to interpret this phrase to mean that the Debtor or Landlord needed to commence a lawsuit against the other. None of these terms are defined and the language is broad – "any" action or proceeding. The Landlord instituted this chain of events by serving a notice of default for alleged breaches under the Lease. The Debtor filed this bankruptcy to protect the Lease and moved to assume the Lease. The commencement of an action against the Debtor, triggering necessary litigation, satisfies "any action or proceeding against the other." If this phrase was intended to be limited to court proceedings, then the phrase would have either been prefaced by the term "legal" or read "on a specific lawsuit or litigation." To reach the interpretation that the Landlord wants the Court to reach, the Court would need to rewrite the Lease. Had the Debtor filed bankruptcy for reasons other than the Landlord commencing default proceedings, (e.g., cash flow troubles) then the Lease would not have provided a basis for an award of attorney fees. The language of the Lease provides a basis for an award against the Landlord.
The final element requires the Debtor to be the prevailing party. The determination of "prevailing party" for the purpose of reciprocal attorney's fees in California is guided by the California Supreme Court's decision in Hsu v. Abbara, 9
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
Cal. 4th 863, 39 Cal. Rptr. 2d 824, 891 P.2d 804 (Cal. 1995):
. . . we hold that in deciding whether there is a "party prevailing on the contract," the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by "a comparison of the extent to which each party has succeeded and failed to succeed in its contentions."
"[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract." Cal. Civ. Code § 1717(b)(2).
Here the Court found that the Landlord failed to meet its burden in proving that the Debtor was in default and granted the Debtor’s motion to assume the lease. Even though the Court did not enter an order at the time stating the Debtor was the prevailing party, there simply is no other way to categorize the prevailing party other than who prevailed on the question of whether the lease was violated. The Court’s ruling is currently on appeal. While there is some basis to defer ruling on this matter until the appeal is finalized, it is not mandatory. See Lasic v. Moreno, 2007 WL 4180655, at *1 (E.D. Cal. 2007) ("The Court may defer its ruling on attorney’s fees when an appeal on the merits is pending."). Any delay in ruling would be discretionary, and the parties have not provided sufficient information on what effect this will have on the reorganization and progress of the case. This will be discussed further at the hearing.
The Landlord’s next opposition states that the fees associated with proceedings other than the Assumption Motion were untimely filed pursuant to LBR 7054-1(g)(1) which provides a 14-day deadline for filing. The motions for which fees are sought are integrally related to the ultimate issues of the Assumption Motion – 1) breach of the Lease and 2) adequate assurance. The Court can waive the application of any LBR in the interest of justice. See LBR 1001-1(d). The Landlord raises no reason why this 14 day deadline matters or how a slight delay after the trial is prejudicial. Accordingly, the Court waives the 14-day requirement of LBR 7054-1(g)(1).
The last argument raised by the Landlord is that the fees and costs are unreasonable because many of the fees were incurred on matters other than the
10:30 AM
CONT...
Hawkeye Entertainment, LLC
Chapter 11
Assumption Motion. The Court agrees in part with the Landlord’s position. The two motions to use the Property and the motion for SBA funding, for example, do not appear to be actions on the contract, and were brought for reasons other than the notice of default. The cost and fees associated with administering the bankruptcy estate and other motions that the Landlord did not oppose will be denied in large part because there were no prevailing parties in these unopposed motions or in the Debtor’s bankruptcy case. The fee award must be reduced by at least $87,057.00 for fees that were incurred for administering the bankruptcy estate. The allowable fees and the hourly rates are reasonable in all other respects.
Additionally, CCP 1032 does not bar recover because allowable costs under CCP 1032 includes attorney fees when authorized by contract, statute, or law. See CCP 1033(a)(10). As previously articulated, the Lease provides for recovery some of the attorney fees incurred by the Debtor here.
For the reasons previously articulated, the Court is inclined to GRANT Debtor’s Counsel’s motion in part but will reduce the fees and costs. The remaining issues of whether to wait for the appeal and which fees should not be considered must still be discussed at the hearing.
Apperance Required.
Party Information
Debtor(s):
Hawkeye Entertainment, LLC Represented By Sandford L. Frey
11:00 AM
1:09-20447
Law Offices of Masry & Vititoe
Chapter 11
#21.00 Post confirmation Status Conference
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.
9/12/18, 10/23/19
Docket 1
*** VACATED *** REASON: Continued to February 3, 2021 at 11:00am.
Tentative Ruling:
Continued to February 3, 2021 at 11:00am No Apperance Required.
Party Information
Debtor(s):
Law Offices of Masry & Vititoe Represented By Leslie A Cohen
11:00 AM
1:16-11985
Samuel James Esworthy
Chapter 11
#22.00 Post Confirmattion status conference
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, 6/26/19, 9/18/19, 12/18/19; 2/11/20, 3/4/20; 6/24/20
Docket 1
Tentative Ruling:
Per the Status Report filed on 6/16/20, the Debtor anticipates that the only remaining matter left is a motion for final decree. No motion for final decree has been filed. What is the status of this case?r. 3/4/20
This matter was continued from 3/4/20. As of 6/16/20, Nothing has been filed since the 2/26/20 Status Report. Debtor anticipates the only matter left is a Motion for Final Decree. Why has this not been filed yet?
What is the status of this case?
APPEARANCE REQUIRED
Party Information
Debtor(s):
Samuel James Esworthy Represented By
M. Jonathan Hayes
11:00 AM
1:16-12791
Menco Pacific, Inc.
Chapter 11
#23.00 Post-Confirmation Status Conference
fr. 10/25/17, 12/13/17, 3/21/18; 3/28/18, 6/6/18; 11/7/18; 12/18/18, 2/20/19; 6/6/19/ 7/16/19; 8/8/19, 10/2/19; 12/11/19,
3/11/20, 8/27/20
Docket 0
Tentative Ruling:
ZOOMGOV APPEARANCE REQUIRED.
Party Information
Debtor(s):
Menco Pacific, Inc. Represented By Jeffrey S Shinbrot
11:00 AM
1:16-13295
K&A Global Management Company, a California corpor
Chapter 11
#24.00 Post-Confirmation Status Conference
fr. 1/12/17, 8/16/17, 11/1/17, 10/25/17, 12/13/17,
3/21/18, 1/30/19, 2/6/19, 11/6/19, 2/5/20, 5/6/20; 7/22/20; 10/7/20
Docket 16
*** VACATED *** REASON: VACATED: A motion for final decree was approved by the Court on 11/19/2020.
Tentative Ruling:
VACATED: A motion for final decree was approved by the Court on 11/19/2020. NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
K&A Global Management Represented By Jeffrey S Shinbrot
11:00 AM
1:18-11538
Momentum Development LLC
Chapter 7
Adv#: 1:19-01129 Weil v. The Pyramid Center, Inc.
#25.00 Pretrial Conference re: Amended Complaint to Avoid Fraudulent Transfers fr. 1/15/20, 2/5/20, 3/4/20; 6/10/20
Docket 9
*** VACATED *** REASON: Cont'd to 2/3/21 per order #36. lf Tentative Ruling:
Discovery cut-off (all discovery to be completed*): 10/30/20
Expert witness designation deadline (if necessary): at pretrial if not stipulated to beforehand
Case dispositive motion filing deadline (MSJ; 12(c)): Are any contemplated? Pretrial conference: 12/2/20 at 11 am
Deadline for filing pretrial stipulation under LBR 7016-1(b)(1)(A) (14 days before pretrial conference): 11/18/20
*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
CONT...
Momentum Development LLC
Chapter 7
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.
Party Information
Debtor(s):
Momentum Development LLC Represented By
Michael H Raichelson
Defendant(s):
The Pyramid Center, Inc. Represented By
Michael H Raichelson
Plaintiff(s):
Diane Weil Represented By
David Seror Jorge A Gaitan
Trustee(s):
Diane C Weil (TR) Represented By David Seror Jorge A Gaitan
11:00 AM
1:19-12434
Walter Ernesto Aleman Olmedo
Chapter 7
Adv#: 1:20-01049 Goldman v. Aleman et al
#26.00 Motion to set aside RE: Entry of Default Pursuant to Fed. R. Bankr. P. 7055 and 9024; Fed R. Civ. P. 55(c) and 60(b)
Docket 27
*** VACATED *** REASON: Resolved per Stipulation (ECF doc. 31) - hm Tentative Ruling:
- NONE LISTED -
Party Information
Debtor(s):
Walter Ernesto Aleman Olmedo Represented By
Navid Kohan
Defendant(s):
Oscar Aleman Represented By Mykhal N Ofili
Marisol Vega Aleman Represented By Mykhal N Ofili
Aleman Signs, Inc. Represented By Mykhal N Ofili
Plaintiff(s):
Amy L Goldman Represented By Leonard Pena
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
11:00 AM
1:19-12434
Walter Ernesto Aleman Olmedo
Chapter 7
Adv#: 1:20-01049 Goldman v. Aleman et al
#27.00 Status Conference Re: Trustee's First Amended Compliant for:
- Avoidance of Actual Fraudulent Transfer (11 U.S.C. Sec. 548(a)(1)(A));
- Avoidance of Constructive Fraudulent Transfer Sec. 548(a)(1)(B);
- Avoidance of Actual Fraudulent Transfer Under Applicable California Law (Cal. Civ. Code Sections 3439.04(a)(1) and 3439.07 and 11 USC Sec. 544(b));
- Avoidance of Constructive Fraudulent Transfer Under Applicable California Law (Cal. Civ. Code Sections 3439.05 and 3439.07 and 11 USC Sec. 544(b));
- Recovery of Avoided Transfer (11 USC Sec. 550(a)); and
- Preservation of Avoided Transfer (11 USC Sec. 551)
fr. 7/15/20 (stip), 9/9/20
Docket 15
*** VACATED *** REASON: Continued to Feb. 3, 2021 at 11:00am Tentative Ruling:
Having considered the Joint Status Report filed on 11/20/20, and finding good
cause, the court continues the status conference to February 3, 2021 at 11:00am.
NO APPEARANCE REQUIRED ON 12/2.
Party Information
Debtor(s):
Walter Ernesto Aleman Olmedo Represented By
Navid Kohan
11:00 AM
CONT...
Walter Ernesto Aleman Olmedo
Chapter 7
Defendant(s):
Oscar Aleman Pro Se
Marisol Vega Aleman Pro Se
Aleman Signs, Inc. Pro Se
Plaintiff(s):
Amy L Goldman Represented By Leonard Pena
Trustee(s):
Amy L Goldman (TR) Represented By Leonard Pena
11:00 AM
1:20-11063
Joby John Harte
Chapter 7
Adv#: 1:20-01081 Garcia, Jr v. Harte
#28.00 Status Conference Re: Complaint Objecting to Dischargeability of Debt Pursuant to Section 523(a)(6) of the Bankruptcy Code
Docket 1
Tentative Ruling:
Defendant has been served but has not filed an answer. Defendant has failed to appear by counsel and failed to file an answer to the complaint by the October 23, 2020 deadline. The plaintiff intends to seek leave from the court during the status conference to move for default judgment.
Appearance Required.
Debtor(s):
Party Information
Joby John Harte Represented By Henry Glowa
Defendant(s):
Joby John Harte Pro Se
Plaintiff(s):
Ricardo Rene Garcia Jr Represented By Ben J Meiselas
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:20-01066 DAVID K. GOTTLIEB, CHAPTER 7 TRUSTEE v. Montgomery et al
#28.01 Motion to Dismiss for Failure to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6)
fr. 11/18/20
Docket 15
Tentative Ruling:
On July 25, 2018, Albert Lee ("Debtor") commenced a chapter 7 bankruptcy case. David Gottlieb ("Plaintiff") was appointed as the Chapter 7 Trustee. The Debtor was married to Sun Mi Choi ("Decedent") on March 28, 2004. On August 24, 2009, the Debtor founded a corporation named Chas Group, Inc. ("Chas Group"). On June 14, 2012, the Debtor founded a corporation named Amberboa, Inc. ("Amberboa"). On August 6, 2012, the Decedent acquired title to real property commonly known as 18729 Hillsboro Rd, Porter Ranch, CA 93326 ("Hillsboro Property".) According to the Debtor’s bankruptcy petition, this is the Debtor’s primary residence.
The Debtor and Decedent commenced a dissolution of marriage on April 27, 2011 and entered into a Martial Settlement Agreement ("MSA") on July 31, 2014. It is unclear from the MSA who retained the interests in Chas Group, Amberboa, and the Hillsboro Property. The MSA was finalized by a Judgement of Dissolution entered in the divorce proceeding on December 16, 2014.
On November 5, 2018, the Debtor received a discharge. On February 9, 2019, the Decedent passed away and a probate was opened in the Estate of Sun Mi Choi, Los Angeles County Superior Court Case No, 19STPB01790 ("Probate Proceeding"). On March 7, 2019, the Debtor filed in the Probate Proceeding a declaration in which the Debtor disclosed interests in and connections to Chas Group and Amberboa – Debtor failed to disclose these interests in his bankruptcy case. The declaration asserts that these assets were placed under the Decedent’s name in order to protect them from creditors and the divorce was a "paper divorce" – which the Plaintiff interprets to mean that this was a sham marriage. Jodi Pais Montgomery and David Berrent
11:00 AM
CONT...
Albert Lee
Chapter 7
("Defendants") are the personal representatives and administrators of the probate estate of Decedent.
On July 1, 2020, the Plaintiff commenced this adversary proceeding seeking to avoid and recover fraudulent transfers, for declaratory relief, relief under Cal. Prob. Code §§ 850(a)(2)(C) and 856. The Defendants moved to dismiss the adversary proceeding under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Plaintiff filed an opposition this this motion.
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).
"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).
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
11:00 AM
CONT...
Albert Lee
Chapter 7
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 679. 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 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. Courts should assume the veracity of the 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).
If the running of the statute of limitations of a claim in the complaint is clear, then the issue maybe raised by a motion to dismiss or on summary judgment. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980); see also Graham v. Taubman, 610 F.2d 821 (9th Cir. 1979).
Statute of Limitations:
Here the Decedent passed away on February 9, 2019, and the Probate Proceeding commenced then. The Plaintiff commenced this cause of action on July 1, 2020. The Defendants assert that the Plaintiff is barred from bringing these causes of action against the probate estate since the one-year statute of limitations has passed.
Section 366.2 of the California Code of Civil Procedures is a "general statute of limitations for all claims against a decedent." Wagner v. Wagner, 162 Cal.App.4th 249, 255 (2008). "‘The overall intent of the Legislature in enacting Code of Civil Procedure former section 353 [(now § 366.2)] was to protect decedents’ estates from creditors' stale claims." Id. California Code of Civil Procedure § 366.2 (a) provides:
If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be
11:00 AM
CONT...
Albert Lee
Chapter 7
commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.
"This uniform one-year statute of limitations applies to actions on all claims against the decedent which survive the decedent's death. Dobler v. Arluk Medical Center Industrial Group, Inc., 89 Cal. App. 4th 530, 535 (2001)." "This limitations period, however, is tolled by (1) the timely filing of a creditor claim; (2) the filing of a petition for payment of debts, claims or expenses from the decedent's revocable trust; or (3) a proceeding to judicially construe a "no contest" provision." Id.; CCP Section 366.2(b); see also Levine v. Levine, 102 Cal. App. 4th 1256, 1261 (2002).
Section 366.2 demonstrates a clear legislative intent to cut off litigation against a decedent's estate after one year from death, except in circumstances enumerated in subsection (b). The Legislature enacted the predecessor of section 366.2, former section 535, in 1990. Bradley v. Breen, 73 Cal. App. 4th 798, 801-02 (1999). In recommending enactment of the one-year-from-death limitations period, the 1990 California Law Revision Commission (Commission) "explained . . . that such a statute would effectuate the strong public policies of expeditious estate administration and security of title for distributees, . . . is an appropriate period to afford repose, and provides a reasonable cutoff for claims that soon would become stale. Id. At 801.
Bradley quoted from the Commission's recommendation:
In estate administration, all debts are ordinarily paid. Even under the existing four-month claim period it is unusual for an unpaid creditor problem to arise. A year is usually sufficient time for all debts to come to light. Thus it is sound public policy to limit potential liability to a year; this will avoid delay and procedural complication of every probate proceeding for the rare claim that might arise more than a year after the decedent's death. (2) The one year limitation period would not apply to special classes of debts where public policy favors extended enforceability. These classes are (i) secured obligations, (ii) tax claims, and (iii) liabilities covered by insurance. The rare claim that may become a problem more than a year after the decedent's death is likely to fall into one of these classes. (3) Every jurisdiction of which
11:00 AM
CONT...
Albert Lee
Chapter 7
the Commission is aware that has considered the due process problem addressed by the recommendation, including the Uniform Probate Code, has adopted the one-year statute of limitations as part of its solution. In sum, a general limitation period longer than one year would burden all probate proceedings for little gain. The one-year limitation period is a reasonable accommodation of interests and is widely accepted.'
The argument advanced by the Plaintiff is that CCP 366.2 only applies to actions "brought on a liability of the person" and it does not apply to actions brought to recover specific property. Here the gravamen of the Plaintiff’s causes of action seek to recover property interests in Chas Group, Amberboa, and the Hillsboro Property. According to the Plaintiff, Chas Group, Amberboa, and the Hillsboro Property are still apart of the property of the bankruptcy estate. California law is clear that transfers made with actual intent to defraud are void and not voidable. Daff v. Wallace (In re Cass), 476 B.R. 602, 614 (Bankr. C.D. Cal. 2012), aff’d 2013 WL 1459, 272 (9th Cir.
BAP 2013), aff’d 606 Fed. Appx 318 (9th Cir. 2015). In Cass, the Court not only stated that fraudulent transfers are void ab initio but cited a number of California cases that make it clear that in questions of title to property, ownership never leaves the transferor. First National Bank of Los Angeles v. Maxwell, 123 Cal. 360, 371 (1899) (title and ownership of property remains in the fraudulent grantor as fully as though no transfer had been attempted); Liuzza v. Bell, 40 Cal. App. 2nd 417, 429 (1940) ("In fraudulent transactions, for the protection of creditors it has been held that ownership and title remain in grantor.") Further, the BAP, in affirming Cass held that the transferor of property in fraud of the creditors holds only nominal or bare legal title, the transferor holds the beneficial interest and equitable interest. The Court will analyze whether CCP 366.2 is indeed applicable here.
Case law as to Section 366.2 as applied to fraudulent transfer cases is rather sparse; however, the facts and analysis in Kapila v. Belotti (In re Pearlman), 2012 Bankr. LEXIS 2858 (Bankr. M.D. FL. 2012) are similar. In Pearlman, the debtor was involved in a Ponzi scheme. A family trust was created by a third party and this trust invested in the debtor’s Ponzi scheme. Over the course of several years, the trust received hundreds of thousands of dollars in profits from this Ponzi scheme and the trustee filed a fraudulent transfer action in order to recover all the profits the trust
11:00 AM
CONT...
Albert Lee
Chapter 7
gained from the Ponzi scheme. During the course of the fraudulent transfer case, the last beneficiary of the trust passed away and the trustee failed to file a claim in any of the beneficiaries’ probate estates within in a the one-year time frame. The defendant filed a motion to dismiss the trustee’s complaint pursuant to CCP 366.2(a). The Court ultimately granted the motion to dismiss and stated in its’ reasoning:
Under certain circumstances, such as lack of notice of a defendant's death, a creditor may apply to file a late claim. But, under no circumstances may a creditor file a claim later than one year after the death of a defendant, as indicated in California Code of Civil Procedure § 366.2(a). Section 366.2 was enacted to bar claims against a probate estate after one year "in order to provide closure, certainty, and protect a decedent's estate from stale claims of a creditor." The one-year limitations period also enables the expeditious administration of probate estates.
While the underlying issue in Pearlman was one of notice, the Court granted the motion to dismiss in favor of the defendants and applied CCP 366.2 in this case in spite of the defendants being merely recipients of a fraudulent transfer. Here the Plaintiff is seeking to do something similar. The difference is the property in Pearlman was liquid assets and the property being sought after here is real property and interest in companies and the Debtor had an already vested interest in these properties.
On the other hand, the California Court of Appeals in Estate of Yool, 151 Cal. App. 4th 867 (2007) appeared to back track the strict application of CCP 366.2. Yool dealt with the issue of a resulting trust, an implied trust that comes into existence by operation of law, where property is transferred to someone who pays nothing for it; and then is implied to have held the property for benefit of another person, and the Court was asked whether CCP 366.2 was applicable. The Court focused in on the phrase "liability of the person," or personal liability, and interpreted it to mean "[l] iability for which one is personally accountable and for which a wronged party can seek satisfaction out of the wrongdoer's personal assets." Id. At 875 (quoting Black's Law Dict. (8th ed 2004)). In the context of an action to decree a resulting trust or quiet title based on a resulting trust theory, the Court found that the matter adjudicated would concern whether the presumption of a resulting trust arose under the facts. Because the trustee held title, but did not own the property in question, there is no
11:00 AM
CONT...
Albert Lee
Chapter 7
issue of personal liability or resort to the trustee's assets. The Court held that a resulting trust arises by operation of law and does not implicate the personal liability of the purported trustee.
The Yool Court supported this finding by providing further analysis on the legislative history of Code of Civil Procedure section 366.2, which makes it clear that the provision pertains to debts, that is, to claims resulting from the relationship between the debtor and the creditor. As the Commission emphasized, the statute of limitations set forth in Code of Civil Procedure former section 353 was "intended to apply in any action on a debt of the decedent … ." Code of Civil Procedure section
366.2 does not apply for another fundamental reason: At the time of Yool’s death, nothing had occurred to affect the rights of the beneficiary of the resulting trust. The mere lapse of time, without repudiation, does not affect the beneficiary's rights.
On its face, the Court in Yool back peddled strict interpretations of the language in CCP 366.2 statutory language; however, the California Court of Appeals in Sefton v. Sefton, 206 Cal. App. 4th 875 (2012) appears to have limited the holding in Yool. In Sefton, the Court stated that "the [Yool] Court noted at the time of the decedent’s death there was not yet a cause of action for a resulting trust and Code of Civil Procedure section 366.2 ‘specifically contemplates an action that may be brought against a person prior to his or her death." Id. at 893-94. The Plaintiff’s cause of action existed well before the Descendant passed. While the ruling in Yool gives the Plaintiff some basis for crafting its argument, the ruling in Yool is not directly on point with the issue before this Court and it appears to be an outlier when it comes to Courts interpreting CCP 366.2.
The Plaintiff’s argument that CCP 366.2 only applies to actions "brought on a liability of the person" and it does not apply to actions brought to recover specific property runs counter to how courts have interpreted this statute and on the legislature’s intent for drafting the statute in the first place. The purpose of this statute is to ensure a speedy and efficient administration of a probate estate and in order to achieve this purpose, the state imposed a statute of limitations of a year for brining any actions against the estate. The state created some exemptions to this general rule, enumerated in CCP 366.2 (b), and Courts have been reluctant to go beyond these exemptions. It is uncontested that the exemptions to this statute of limitations are not applicable here and the solo basis for the Trustee’s argument rests Yool – which the
11:00 AM
CONT...
Albert Lee
Chapter 7
Court already addressed the problems with that case. Even though the Trustee in this case is seeking to recover property, and not money damages, the same concerns about quickly and efficiently administering the estate are present. The property in dispute here is a part of the probate estate and to lock it up in litigation will prevent a speedy and efficient administration of the probate estate. The Plaintiff is attempting to recover property of the probate estate and nothing suggests that liquid assets should be treated differently than non-liquid assets. Given how Courts have applied CCP 366.2, that the same policy concerns exist in the case as any other case against the probate estate, and the lack of leniency for creating exceptions to this statute of limitations, the Court finds that CCP 366.2’s one year
The Plaintiff’s next argument is that Bankruptcy Code Section 546 provides the Plaintiff with two years after the entry of the order for relief to commence this action. The Plaintiff believes that this prevails over the state probate statute of limitations. This argument appears to be contrary to case law and the Court is unpersuaded by this argument. See Rund v. Bank of Am. Corp. (In re EPD Inv. CO., LLC), 523 B.R. 680, 691 (9th Cir. BAP 2015) (" In cases like Phar-Mor, which involve state probate statutes, we agree that because Congress has not expressed an intention to override a state's strong and traditional interest in regulating probate matters, the Code may not control.")
The Plaintiff’s argument is that all claims can be brought using Probate Code Sections 850 and 856. According to the Plaintiff, the claim underlying § 850 petitions are subjected to the same statute of limitations that would apply had an ordinary (non- § 850) civil suit being brought. Under this position, the Plaintiff would be allowed to bring an action against the probate estate at any time until final distribution. This argument is not persuasive. Similar to Dawes v. Rich, 60 Cal. App. 4th 24, 32 (1997), there is a "more directly applicable statute present." Dawes reviewed the report of the 1990 California Law Revision Commission and noted that public policy favors expeditious estate administration and ruled that a fraudulent transfer claim was time-barred. This Court believes that the CCP 366.2 statute of limitations is the more applicable statute. Additionally, the Defendants point out that the Plaintiff may have made a procedural mistake seeking relief under Probate Code § 850, this section permits any interested person to file a petition in probate requesting order – the Plaintiff commenced this adversary proceeding but have not filed a
11:00 AM
CONT...
Albert Lee
Chapter 7
petition in the Probate Court. Yool, 151 Cal. App. 4th at 874.
For the reasons previously stated, the Court GRANTS the Defendants motion to dismiss.
Appereance Required.
Party Information
Debtor(s):
Albert Lee Represented By
M Teri Lim
Defendant(s):
Jodi Pais Montgomery Represented By
Crystle Jane Lindsey James R Selth
David Berrent Represented By
Crystle Jane Lindsey James R Selth
Plaintiff(s):
DAVID K. GOTTLIEB, CHAPTER Represented By
Jivko Tchakarov
Trustee(s):
David Keith Gottlieb (TR) Represented By Howard Camhi Peter A Davidson Byron Z Moldo
11:00 AM
1:18-11869
Albert Lee
Chapter 7
Adv#: 1:20-01066 DAVID K. GOTTLIEB, CHAPTER 7 TRUSTEE v. Montgomery et al
#28.02 Status Conference Re: Complaint to Avoid and Recover Fraudulent Transfers,
for Declaratory Relief, and for Constructive Trust
fr. 9/2/20; 10/7/20, 11/18/20
Docket 1
Tentative Ruling:
Apperance Required.
Debtor(s):
Party Information
Albert Lee Represented By
M Teri Lim
Defendant(s):
Jodi Pais Montgomery Pro Se
David Berrent Pro Se
Plaintiff(s):
DAVID K. GOTTLIEB, CHAPTER Represented By
Jivko Tchakarov
Trustee(s):
David Keith Gottlieb (TR) Represented By Howard Camhi Peter A Davidson Byron Z Moldo
1:00 PM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#29.00 Motion to Compel Appearance and Production of Documents re Alliance Funding Group, Inc's Custodian of Records Compel Appearance of Person Most Knowledgeable at Deposition
fr. 4/1/20, 5/6/20; 9/9/20, 10/2/20
Docket 111
*** VACATED *** REASON: VACATED PURSUANT TO STIP DISMISSING AP.
Tentative Ruling:
VACATED PURSUANT TO STIP DISMISSING AP.
NO APPEARANCE REQUIRED
Party Information
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
1:00 PM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
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
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 Jorge A Gaitan
1:00 PM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#30.00 Motion to Compel Appearance and Production of Documents re Firooz Payan at Depostion
fr. 4/1/20, 5/6/20; 09/09/20, 10/2/20
Docket 112
*** VACATED *** REASON: VACATED PURSUANT TO STIP DISMISSING AP.
Tentative Ruling:
VACATED PURSUANT TO STIP DISMISSING AP.
NO APPEARANCE REQUIRED.
Party Information
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
1:00 PM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
Mkrtchyan Investments, LP Pro Se
Natalia Usmanova Represented By Eamon Jafari
Alexander Usmanov Represented By 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 Jorge A Gaitan
1:00 PM
1:17-11888
ALLIANCE FUNDING GROUP INC.
Chapter 7
Adv#: 1:18-01076 Seror v. Aslanjan et al
#31.00 Status Conference re: First Amended Complaint
fr. 8/29/18, 10/3/18; 10/10/2018, 2/6/19, 11/13/19, 6/10/20; 9/9/20, 10/7/20
Docket 3
*** VACATED *** REASON: VACATED PURSUANT TO STIP DISMISSING AP.
Tentative Ruling:
VACATED PURSUANT TO STIP DISMISSING AP.
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
ALLIANCE FUNDING GROUP Represented By
Stephen F Biegenzahn
Defendant(s):
AMERICAN FUNDERS CORP. Pro Se
Does 1-10, Inclusive Pro Se
Sonia Kellzi Pro Se
Alexander Usmanov Represented By Eamon Jafari
Natalia Usmanova Represented By Eamon Jafari
Mkrtchyan Investments, LP Pro Se
Greg Mkrchyan Pro Se
Neelam J. Savla Pro Se
1:00 PM
CONT...
ALLIANCE FUNDING GROUP INC.
Chapter 7
Puja J. Savla Pro Se
Anjana S. Sura Pro Se
Arthur Nagapetyan Pro Se
Robert Askar Pro Se
Eva Askar 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
8:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1602464490 Meeting ID: 160 246 4490
Docket 0
9:30 AM
1:17-12226
Stephen Haskell Powers
Chapter 13
#1.00 Motion for relief from stay CITIBANK N.A.
fr. 10/14/20
Docket 57
Party Information
Debtor(s):
Stephen Haskell Powers Represented By
Raj T Wadhwani
Movant(s):
Citibank, N.A., as Trustee Represented By Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-10656
Rita Patricia Monteza
Chapter 13
#2.00 Motion for relief from stay
DEUTSCHE BANK NATIONAL TRUST CO
fr. 10/14/20
Docket 55
Debtor(s):
*** VACATED *** REASON: Vacated by APO Dkt. 62
Party Information
Rita Patricia Monteza Represented By Kevin T Simon
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-11838
James Alan Ritter and Debra Michelle Ritter
Chapter 13
#3.00 Motion for relief from stay METROPOLITAN LIFE INSURANCE CO.
fr. 10/14/20
Docket 44
*** VACATED *** REASON: Withdrawal was filed by Movant's atty - doc. #49. lf
Party Information
Debtor(s):
James Alan Ritter Represented By
Glenn Ward Calsada
Joint Debtor(s):
Debra Michelle Ritter Represented By
Glenn Ward Calsada
Movant(s):
Metropolitan Life Insurance Represented By
Erin M McCartney
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-12533
Stuart Malin and Patricia Malin
Chapter 13
#4.00 Motion for relief from stay METROPOLITAN LIFE INSURANCE CO.
fr. 10/28/20
Docket 44
Party Information
Debtor(s):
Stuart Malin Represented By
Steven Abraham Wolvek
Joint Debtor(s):
Patricia Malin Represented By
Steven Abraham Wolvek
Movant(s):
Metropolitan Life Insurance Represented By Daniel K Fujimoto
Christopher Giacinto Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-10828
Nazaret Kechejian
Chapter 13
#5.00 Motion for relief from stay MIDFIRST BANK
Docket 71
Party Information
Debtor(s):
Nazaret Kechejian Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:18-12438
Luz Del Carmen Tamariz
Chapter 13
#6.00 Motion for relief from stay
WILMINGTON SAVINGS FUND SOCIETY
Docket 63
Party Information
Debtor(s):
Luz Del Carmen Tamariz Represented By Kevin T Simon
Movant(s):
Wilmington Savings Fund Society, Represented By
Kelsey X Luu Josephine E Salmon Arnold L Graff Joseph C Delmotte Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:19-11838
James Alan Ritter and Debra Michelle Ritter
Chapter 13
#7.00 Motion For Sanctions/Disgorgement Debtors' Motion for an Award of Attorneys' Fees
Docket 60
Debtor(s):
*** VACATED *** REASON: Vacated pursuant to stipulation. Dkt. No. 63 Party Information
James Alan Ritter Represented By
Glenn Ward Calsada
Joint Debtor(s):
Debra Michelle Ritter Represented By
Glenn Ward Calsada
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11601
Andrea Ricci and Tonya Crooks
Chapter 13
#8.00 Motion for relief from stay ASHLEY HENSARLING
Docket 24
Party Information
Debtor(s):
Andrea Ricci Represented By
Robert M Aronson
Joint Debtor(s):
Tonya Crooks Represented By Robert M Aronson
Movant(s):
Ashley Hensarling Represented By Alberto J Campain
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11601
Andrea Ricci and Tonya Crooks
Chapter 13
#9.00 Motion for relief from stay BROWGAL, LLC
Docket 25
Party Information
Debtor(s):
Andrea Ricci Represented By
Robert M Aronson
Joint Debtor(s):
Tonya Crooks Represented By Robert M Aronson
Movant(s):
Browgal, LLC Represented By Alberto J Campain
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11601
Andrea Ricci and Tonya Crooks
Chapter 13
#10.00 Motion for relief from stay SANDRA HENSERLING
Docket 26
Party Information
Debtor(s):
Andrea Ricci Represented By
Robert M Aronson
Joint Debtor(s):
Tonya Crooks Represented By Robert M Aronson
Movant(s):
Sandra Hensarling Represented By Alberto J Campain
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11632
Gail S Ondaine
Chapter 7
#11.00 Motion for relief from stay
HOPE & CO REAL ESTATE LLC
fr. 10/14/20
Docket 12
Party Information
Debtor(s):
Gail S Ondaine Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:20-11734
Terry J Edwards and Courtney H Edwards
Chapter 7
#12.00 Motion for relief from staty BRIDGECREST CREDIT CO
Docket 11
Party Information
Debtor(s):
Terry J Edwards Represented By Anita Khachikyan
Joint Debtor(s):
Courtney H Edwards Represented By Anita Khachikyan
Movant(s):
Bridgecrest Credit Company, LLC Represented By
Erica T Loftis Pacheco
Trustee(s):
Amy L Goldman (TR) Pro Se
10:00 AM
1:20-11950
Mohinder Kaur
Chapter 7
#13.00 Motion for relief from stay HONDA LEASE TRUST
Docket 7
Party Information
Debtor(s):
Mohinder Kaur Represented By
Raj T Wadhwani
Movant(s):
Honda Lease Trust Represented By Vincent V Frounjian
Trustee(s):
David Seror (TR) Pro Se
10:30 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#14.00 Eighth Interim Application of Brutzkus Gubner, Counsel for the Chapter 7 Trustee, for Compensation of Fees and Expenses
Period: 11/1/2019 to 10/31/2020,
Fee: $158,297.85, Expenses: $2,655.90. fr. 12/2/20
Docket 2490
Party Information
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 Jorge A Gaitan Robyn B Sokol Jessica Wellington
10:30 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#14.01 Eight Interim Fee Application for Allowance and Payment of Fees and Reimbursement
of Expenses of Final Advisors and Consultants for Trustee
fr. 12/2/20
Docket 2482
Party Information
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 Jorge A Gaitan Robyn B Sokol
10:30 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#14.02 Seventh Application for Interim Compensation by David Seror, Chapter 7 Trustee;
Period: 3/21/2012 to 11/11/2020,
Fee: $125,000.00, Expenses: $400.93. fr. 12/2/20
Docket 2495
Party Information
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 Jorge A Gaitan Robyn B Sokol Jessica Wellington
10:30 AM
1:12-10231
Owner Management Service, LLC
Chapter 7
#15.00 Motion For Order Authorizing Chapter 7 Trustee To Make Interim Distributions
Docket 2504
Party Information
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 Jorge A Gaitan Robyn B Sokol Jessica Wellington
10:30 AM
1:17-10017
Akhoian Enterprises, Inc.
Chapter 7
#16.00 Trustee's Amended Final Report and Applications for Compensation
Docket 153
Party Information
Debtor(s):
Akhoian Enterprises, Inc. Represented By David S Hagen
Trustee(s):
David Seror (TR) Represented By Steven T Gubner Richard Burstein Talin Keshishian Michael W Davis
10:30 AM
1:20-11196
Tadeh Ahani Avanessians
Chapter 7
#17.00 Motion for relief from the Order of Discharge.
Docket 47
Party Information
Debtor(s):
Tadeh Ahani Avanessians Represented By Sevan Gorginian
Trustee(s):
David Seror (TR) Pro Se
11:00 AM
1:10-10209
R.J. Financial, Inc.
Chapter 7
Adv#: 1:18-01029 Seror v. Abalkhad et al
#18.00 Motion For Sanctions/Disgorgement Plaintiffs Motion: (i) To Compel Deposition Of Defendant Randy Abalkhad, (ii) Compel Deposition Of Defendant Melina Abalkhad, And (iii) Imposition Of Monetary Sanctions In The Amount Of $3,200 Against Defendants Randy Abalkhad And Melina Abalkhad, Jointly And Severally Liable
Docket 116
Party Information
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
11:00 AM
CONT...
R.J. Financial, Inc.
Chapter 7
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
1:10-10209
R.J. Financial, Inc.
Chapter 7
Adv#: 1:18-01029 Seror v. Abalkhad et al
#19.00 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, 9/12/18, 7/17/19; 9/11/19, 12/11/19, 4/1/20, 6/24/20; 10/7/20
Docket 47
Party Information
Debtor(s):
R.J. Financial, Inc. Pro Se
Defendant(s):
WELLS FARGO BANK Represented By Bernard J Kornberg
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
DIAMOND TRADING COMPANY Represented By
Daniel J McCarthy
CALIFORNIA DIAMONDS Represented By
11:00 AM
CONT...
R.J. Financial, Inc.
Daniel J McCarthy
Chapter 7
ROMANO'S JEWELERS Represented By Daniel J McCarthy
BRANDEN & COMPANY, INC Represented By
Daniel J McCarthy
OPEN BANK Represented By
John H Choi Tony K Kim
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
MBNM FINANCIAL, INC 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
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#20.00 Status Conferece re: First Amended Complaint for:
Declaratory Relief
Injuctive Relief for Violation of Automatic Stay
Extent, Validity or Priority of Claim or Interest
Turnover of Property of the Estate
Contempt for Violation of Court Order
Violation of California Penal Code section 470 and Commercial Code section 3-420 for wrongful alteration and Conversion of a Negotiable Instrument
Negligence in the Handling and Management of Debtor's Account.
Attorney fees and costs. fr. 5/6/20; 6/24/20, 9/24/20
Docket 32
*** VACATED *** REASON: Moot - 2nd Am. Complaint filed 10/29/20 (doc. 117) - hm
Party Information
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 Chase Bank NA a National Banking Pro Se
Nationstar Mortgage, aka Mr. Pro Se
11:00 AM
CONT...
David B. Rosen
Chapter 11
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
11:00 AM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#21.00 Status Conference RE: Second Amended Complaint For: 1. Declaratory Relief (As To Chase);
2. Contempt For Violation Of Court Order (As To Chase; 3. Violation Of The Respa (As To Nationstar); 4. Negligence In The Handling And Management Of Debtors Account (As To Nationstar);
5. Attorney Fees And Costs (As To All Defendants)
Docket 117
Debtor(s):
*** VACATED *** REASON: Moved to 1:00 p.m. per ord #126. lf
Party Information
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards Arnold L Graff
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Joseph E Addiego
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
11:00 AM
CONT...
David B. Rosen
Chapter 11
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
11:00 AM
1:15-13495
Picture Car Warehouse Inc
Chapter 11
#22.00 Post confirmation status conference
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, 8/8/18, 3/6/19, 8/21/19; 12/11/19; 6/10/20
Docket 1
Party Information
Debtor(s):
Picture Car Warehouse Inc Represented By Carolyn A Dye
11:00 AM
1:18-12917
Sohail Mobasseri
Chapter 7
Adv#: 1:19-01049 LendingHome Funding Corp. v. Mobasseri
#23.00 Status Conference Re:
Complaint by LendingHome Funding Corp. against Sohail Mobasseri.
fr. 9/30/20, 10/28/20
Docket 1
*** VACATED *** REASON: VACATED pursuant to Order dismissing AP. Dkt. No. 77
Party Information
Debtor(s):
Sohail Mobasseri Represented By Dana M Douglas
Defendant(s):
Sohail Mobasseri Represented By Dana M Douglas
M. Jonathan Hayes
Plaintiff(s):
LendingHome Funding Corp. Represented By Adam Forest
Kerry A. Moynihan
Trustee(s):
David Keith Gottlieb (TR) Pro Se
11:00 AM
1:20-10389
Marlene Evangelina Castellanos
Chapter 13
#24.00 Order to show cause re: Dismissal for non-payment of installment filing fees
Docket 50
Debtor(s):
*** VACATED *** REASON: Fee paid in full on 11/30/20 (eg)
Party Information
Marlene Evangelina Castellanos Represented By
Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-10859
Julie Lynn Davis
Chapter 7
#25.00 OSC re: Dismissal for Non-payment of Installment Filing Fees
Docket 12
*** VACATED *** REASON: Debtor paid the fee - Receipt Number 10075606. lf
Party Information
Debtor(s):
Julie Lynn Davis Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
11:00 AM
1:20-10443
Gilbert J Gonzaga
Chapter 7
Adv#: 1:20-01048 Hagen-Olson v. Gonzaga et al
#25.01 Status Conference re: Complaint to determine dischargeability
fr. 7/1/20, 9/30/20
Docket 1
Party Information
Debtor(s):
Gilbert J Gonzaga Represented By Kevin T Simon
Defendant(s):
Gilbert J Gonzaga Pro Se
Chona Sangco Chua Gonzaga Pro Se
GCNJ Global Enterprises, Inc. Pro Se
GCNJ Enterprises, Inc. Pro Se
Fantastic Sams Newbury LLP Pro Se
Joint Debtor(s):
Chona Sangco Chua Gonzaga Represented By Kevin T Simon
Plaintiff(s):
Leah Kathleen Hagen-Olson Represented By Bret G Anderson
Trustee(s):
David Keith Gottlieb (TR) Pro Se
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#26.00 JPMorgan Chase Bank N.A.'s Motion to Dismiss Second Amended Complaint
Docket 120
Party Information
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards Arnold L Graff
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Joseph E Addiego
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#27.00 Nationstar Mortgage, LLC's Motion to Dismiss Second Amended Complaint
Docket 122
Party Information
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards Arnold L Graff
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Joseph E Addiego
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
1:00 PM
1:10-15822
David B. Rosen
Chapter 11
Adv#: 1:18-01023 Rosen v. Wilmington Savings Fund Society, FSB, dba Christia
#28.00 Status Conference RE: Second Amended Complaint For: 1. Declaratory Relief (As To Chase);
2. Contempt For Violation Of Court Order (As To Chase; 3. Violation Of The Respa (As To Nationstar); 4. Negligence In The Handling And Management Of Debtors Account (As To Nationstar);
5. Attorney Fees And Costs (As To All Defendants)
Docket 117
Party Information
Debtor(s):
David B. Rosen Represented By Louis J Esbin
Defendant(s):
Wilmington Savings Fund Society, Represented By
Sonia Plesset Edwards Arnold L Graff
Selene Finance LP Represented By
Sonia Plesset Edwards Arnold L Graff
Chase Bank NA a National Banking Pro Se Nationstar Mortgage, aka Mr. Represented By
Joseph E Addiego
JPMORGAN CHASE BANK, N.A. Represented By
Joseph E Addiego Monder Khoury
1:00 PM
CONT...
David B. Rosen
Chapter 11
Plaintiff(s):
David B. Rosen Represented By Louis J Esbin
8:00 AM
1:00-00000 Chapter
#0.00 The 8:30 am Reaffirmation hearing calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1616474539
Docket 0
Matter Notes:
- NONE LISTED -
8:00 AM
CONT... Chapter
Tentative Ruling:
- NONE LISTED -
8:30 AM
1:20-11344
Jennifer Trejo
Chapter 7
#0.01 Reaffirmation Agreement with Toyota Motor Credit Corporation
fr. 11/17/20
Docket 9
Matter Notes:
- NONE LISTED -
Tentative Ruling:
PREVIOUS TENTATIVE BELOW
Petition date: 7/30/2020
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: 2020 Toyota Corolla
Debtor’s valuation of property (Sch. B): $21,000 Amount to be reaffirmed: $23,067
APR: 2.9% (fixed)
Contract terms: $456.97 per month, for 54 months Monthly Income (Schedule I): $4,712.48
Monthly expenses: (Schedule J): $5,216.70 Disposable income: <$504.22>
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
CONT...
Jennifer Trejo
Chapter 7
Debtor did not provide an explanation. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until December 22, 2020, whichever is later.
Party Information
Debtor(s):
Jennifer Trejo Represented By Raymond J Bulaon
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
1:20-11469
Barry C. Irick
Chapter 7
#0.02 Pro se Reaffirmation Agreement with Kinecta Federal Credit Union
Docket 11
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Petition date: 8/17/2020
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: "LINE OF CREDIT"
Debtor’s valuation of property (Sch. B): not listed on Sch. B
Amount to be reaffirmed: $5,000.00 (balance due -$2,608.62) Reaffirmation Agreem't, Part I, para. B & G
APR: 9.990%
Contract terms: $112.00 per month for indeterminate term Id., Part I, para. G Monthly Income (Schedule I): $6,848.50
Monthly expenses: (Schedule J): $6,827 Disposable income: $21.50
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 because the bankruptcy has alleviated his debt, he will be better able to manage his monthly budget and continue this payment
Debtor has a right to rescind agreement anytime prior to discharge, or until January 11, 2021, whichever is later.
8:30 AM
CONT...
Debtor(s):
Barry C. Irick
Party Information
Chapter 7
Barry C. Irick Represented By
Nathan A Berneman
Trustee(s):
Amy L Goldman (TR) Pro Se
8:30 AM
1:20-11604
Lesa Lashon Randolph
Chapter 7
#0.03 Reaffirmation Agreement Between Debtor and Logix Federal Credit Union
Docket 10
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Petition date: 9/3/2020
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: "Mastercard Line of Credit"
Debtor’s valuation of property (Sch. B): not listed on Sch. B
Amount to be reaffirmed: $3,000.00 (balance due -$2,026.32) Reaffirmation Agreem't, Part A APR: 11.24%
Contract terms: $40.00 per month for indeterminate term Id., Part A, para. D Monthly Income (Schedule I): $0.00
Monthly expenses: (Schedule J): $805.30 Disposable income: -$805.30
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 stated on Sch. J that she is currently unemployed and living with family until she finds employment. Debtor states in the reaffirmation that the debt with the credit union is very small and she would like to continue to bank there.
Debtor has a right to rescind agreement anytime prior to discharge, or until January 10, 2021, whichever is later.
8:30 AM
CONT...
Debtor(s):
Lesa Lashon Randolph
Party Information
Chapter 7
Lesa Lashon Randolph Represented By Eliza Ghanooni
Trustee(s):
David Seror (TR) Pro Se
8:30 AM
1:20-11636
Alvaro Lozano
Chapter 7
#0.04 Reaffirmation Agreement Between Debtor and Los Angeles Federal Credit Union
fr. 11/17/20
Docket 12
Matter Notes:
- NONE LISTED -
Tentative Ruling:
PREVIOUS TENTATIVE BELOW
Petition date: Sept. 8, 2020
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
Debtor’s valuation of property (Sch. B): $31,429 Amount to be reaffirmed: $24,156.85
APR: 4.51% (fixed)
Contract terms: $926.34 per month for 38 months Monthly Income (Schedule I): $5,941.65
Monthly expenses: (Schedule J): $5,885 Disposable income: $56.65
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
CONT...
Alvaro Lozano
Chapter 7
Debtor did not provide an explanation for how he will make this payment, but he lists his employment as a "laborer" at a drilling company on Sch. I. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until December 22, 2020, whichever is later.
Party Information
Debtor(s):
Alvaro Lozano Represented By
R Grace Rodriguez
Trustee(s):
Diane C Weil (TR) Pro Se
8:30 AM
1:20-11947
Jorge I Berumen
Chapter 7
#0.05 Pro se Reaffirmation Agreement Between Debtor and Nissan Motor Acceptance Corporation
Docket 10
Matter Notes:
- NONE LISTED -
Tentative Ruling:
Petition date: 10/29/20
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 Nissan Sentra
Debtor’s valuation of property (Sch. B): $3,500 Amount to be reaffirmed: $5,455.62
APR: 2.95% (fixed)
Contract terms: $279.28 per month for 20 months Monthly Income (Schedule I): $3,271.67
Monthly expenses: (Schedule J): $4,456 Disposable income: -$1,184.33
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 states that family members will assist with car payments. This payment is listed on Sch. J.
Debtor has a right to rescind agreement anytime prior to discharge, or until January 22, 2021, whichever is later.
8:30 AM
CONT...
Debtor(s):
Jorge I Berumen
Party Information
Chapter 7
Jorge I Berumen Represented By Nathan A Berneman
Trustee(s):
David Seror (TR) Pro Se
9:00 AM
1:00-00000 Chapter
#0.00 You will not be permitted to be physically present in the courtroom.
Docket 0
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
9:30 AM
1:19-12717
Laura Pena
Chapter 13
#30.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20; 11/17/20
Docket 43
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Laura Pena Represented By
Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12717
Laura Pena
Chapter 13
#31.00 Motion under Local Bankruptcy Rule 3015-1 (n) and
(w) to modify plan or suspend plan payments fr. 11/17/20
Docket 49
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Laura Pena Represented By
Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:13-17737
Pella Parker
Chapter 13
#32.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 8/20/19, 10/22/19, 12/17/19; 1/28/20; 3/31/20, 7/21/20, 10/27/20
Docket 115
*** VACATED *** REASON: Con'td to 3/16/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Pella Parker Represented By
Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-12566
Gabriel Rufus and Shirley Rufus
Chapter 13
#33.00 Trustee's Motion to Dismiss Case Due to Expiration of Plan
fr. 2/25/20, 4/28/20; 8/25/20, 10/27/20; 11/17/20
Docket 79
*** VACATED *** REASON: Trustee filed a Withdrawal - Doc. #97. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Gabriel Rufus Represented By Devin Sawdayi
Joint Debtor(s):
Shirley Rufus Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:14-15223
Saul O Aviles
Chapter 13
#34.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns fr. 8/20/19, 12/17/19, 4/28/20; 8/25/20
Docket 65
*** VACATED *** REASON: Con. to 4/27/21 @ 11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Saul O Aviles Represented By
Eric C Morris
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-11072
Humberto Delgadillo Garcia
Chapter 13
#35.00 Trustee's Motion to Dismiss Case fr. 6/23/20, 9/22/20
Docket 163
*** VACATED *** REASON: Cont. to 2/23/21 @11 am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Humberto Delgadillo Garcia Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12045
Raul P Pavia
Chapter 13
#36.00 Trustee's Motion to Dismiss Case fr. 10/27/20
Docket 64
*** VACATED *** REASON: Cont'd to 2/23/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Raul P Pavia Represented By
Eliza Ghanooni
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12070
Bernice Holtz Hart
Chapter 13
#37.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 2/25/20, 4/28/20, 7/21/20
Docket 48
*** VACATED *** REASON: Notice of w/drawal filed 9/3/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Bernice Holtz Hart Represented By Jeffrey J Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12349
Marjan Bahman
Chapter 13
#38.00 Trustee's Motion to Dismiss Case
Docket 81
*** VACATED *** REASON: Cont'd to 3/16/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Marjan Bahman Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-12468
Christine Green
Chapter 13
#39.00 Trustee's Motion to Dismiss Case
Docket 119
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #124. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Christine Green Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-13071
Yvette C Balgos
Chapter 13
#40.00 Trustee's Motion to Dismiss Case .
Docket 40
*** VACATED *** REASON: Withdrawn 12/10/20 Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Yvette C Balgos Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-13123
Buenaventura Marquez
Chapter 13
#41.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 10/22/19, 12/17/19; 1/28/20; 3/31/20; 5/19/20; 8/25/20
Docket 26
*** VACATED *** REASON: Cont. to 1/26/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Buenaventura Marquez Represented By Stella A Havkin
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:15-13421
Brian J. Comer and Jeanette Y. Comer
Chapter 13
#42.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 66
*** VACATED *** REASON: Cont. to 1/26/21 @11 am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Brian J. Comer Represented By Michael Jay Berger
Joint Debtor(s):
Jeanette Y. Comer Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-10898
Jacqueline Desiree Landaeta Alvarez
Chapter 13
#43.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20, 10/27/20; 11/17/20
Docket 141
*** VACATED *** REASON: Cont. to 1/26/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Jacqueline Desiree Landaeta Alvarez Represented By
Matthew D. Resnik Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-11945
Misak Sionovich Melikyan and Ruzanna Boyadshyan
Chapter 13
#44.00 Trustee's Motion to Dismiss Chapter 13 Case due to Material Default of Plan Failure to Submit all Tax Refunds
Docket 69
*** VACATED *** REASON: Cont'd to 2/23/21 at 11:00.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Misak Sionovich Melikyan Represented By
Sanaz Sarah Bereliani
Joint Debtor(s):
Ruzanna Boyadshyan Melikyan Represented By
Sanaz Sarah Bereliani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12201
Andrea Beckham
Chapter 13
#45.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/22/19, 12/17/19; 1/28/20; 3/30/20; 5/19/20; 6/23/20; 8/25/20, 10/27/20
Docket 42
*** VACATED *** REASON: Cont. to 1/26/21 @11 am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Andrea Beckham Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12613
Susan Griffin
Chapter 13
#46.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20, 7/21/20; 8/25/20, 10/27/20
Docket 50
*** VACATED *** REASON: Cont. to 1/26/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Susan Griffin Represented By
Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-12648
Fernando Benitez
Chapter 13
#47.00 Motion RE: Objection to Claim Number 4 by Claimant North American Savings Bank, F.S.B..
fr. 4/28/20, 5/19/20; 6/23/20, 7/21/20, 9/22/20, 10/27/20, 11/17/20
Docket 37
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Fernando Benitez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13547
John Stanley Mekrut
Chapter 13
#48.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/25/20, 10/27/20
Docket 48
*** VACATED *** REASON: Ntc. of w/drawal filed 11/16/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
John Stanley Mekrut Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:16-13648
Lisa Marie Payne
Chapter 13
#49.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20; 11/17/20
Docket 64
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #74. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Lisa Marie Payne Represented By Thomas B Ure
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10021
Nelson Humberto Pinto
Chapter 13
#50.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/22/20; 11/17/20
Docket 110
*** VACATED *** REASON: Ntc. of w/drawal filed 12/7/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Nelson Humberto Pinto Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10032
Michael Klapsis and Marina Klapsis
Chapter 13
#51.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19, 2/25/20, 4/28/20; 8/25/20, 9/22/20, 10/27/20
Docket 36
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Michael Klapsis Represented By Devin Sawdayi
Joint Debtor(s):
Marina Klapsis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10032
Michael Klapsis and Marina Klapsis
Chapter 13
#52.00 Motion under Local Bankruptcy Rule 3015-1 (n) and
(w) to modify plan or suspend plan payments fr. 8/25/20, 9/22/20, 10/27/20
Docket 39
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Michael Klapsis Represented By Devin Sawdayi
Joint Debtor(s):
Marina Klapsis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10402
Craig Marshall Hayman and Bernidelle C. Hayman
Chapter 13
#53.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 73
*** VACATED *** REASON: Withdrawn filed 12/10/20 Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Craig Marshall Hayman Represented By
D Justin Harelik
Joint Debtor(s):
Bernidelle C. Hayman Represented By
D Justin Harelik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10999
Hovanes Antoine Osmanian and Violet Khachikyan
Chapter 13
#54.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20
Docket 156
*** VACATED *** REASON: Cont'd to 3/16/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
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
1:17-11130
Monet R Davis
Chapter 13
#54.01 Motion to Dismiss Case for Failure to Make Plan Payments fr. 4/28/20; 8/25/20, 10/27/20
Docket 36
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Monet R Davis Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11267
Irma Villalpando
Chapter 13
#55.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 8/25/20, 10/27/20
Docket 134
*** VACATED *** REASON: Trustee filed a withdrawal - doc. #147. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Irma Villalpando Represented By Steven A Alpert
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11301
Allen Charles Mixon, III and Gladys Stennis Mixon
Chapter 13
#56.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/24/19, 11/19/19; 1/28/20; 3/31/20; 6/23/20; 8/25/20 9/22/20, 10/27/20; 11/17/20
Docket 138
*** VACATED *** REASON: Cont. to 1/26/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
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
1:17-11387
Haroutiun Papazian
Chapter 13
#57.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Refunds
fr. 1/28/20; 3/31/20; 5/19/20, 7/21/20; 8/25/20, 10/27/20; 11/17/20
Docket 50
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Haroutiun Papazian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11387
Haroutiun Papazian
Chapter 13
#58.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20; 11/17/20
Docket 52
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Haroutiun Papazian Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-11804
Eduardo N Trillo, Jr. and Maritess Biglangawa Trillo
Chapter 13
#59.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20; 3/31/20, 4/28/20; 6/23/20, 7/21/20; 8/25/20, 9/22/20, 10/27/20
Docket 58
*** VACATED *** REASON: Cont. to 1/26/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Eduardo N Trillo Jr. Represented By Elena Steers
Joint Debtor(s):
Maritess Biglangawa Trillo Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12102
Arman Tombakian
Chapter 13
#60.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20, 10/27/20; 11/17/20
Docket 74
*** VACATED *** REASON: Cont. to 1/26/21 @ 11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Arman Tombakian Represented By Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-12226
Stephen Haskell Powers
Chapter 13
#61.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/17/20
Docket 59
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #66. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Stephen Haskell Powers Represented By
Raj T Wadhwani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13027
Noel Carol Potter
Chapter 13
#62.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/30
Docket 39
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #50. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Noel Carol Potter Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13365
Sundara Devananda Rao
Chapter 13
#63.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 70
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #78. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Sundara Devananda Rao Represented By William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#64.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 11/19/19; 1/28/20, 2/25/20, 4/28/20, 7/21/20, 9/22/20
Docket 85
*** VACATED *** REASON: Cont'd to 2/23/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-13429
Dawn O. Olivieri
Chapter 13
#65.00 Motion under Local Bankruptcy Rule 3015-1 (n) and (w) to modify plan or suspend plan payments
fr. 12/17/19; 1/28/20, 2/25/20, 4/28/20, 7/21/20, 9/22/20
Docket 89
*** VACATED *** REASON: Cont'd to 2/23/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Dawn O. Olivieri Represented By Larry D Simons
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10407
Jose Galindo, Jr
Chapter 13
#66.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 1/28/20, 2/25/20, 4/28/20; 8/25/20, 10/27/20
Docket 49
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Jose Galindo Jr Represented By Karine Karadjian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#67.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20; 11/17/20
Docket 55
*** VACATED *** REASON: Trustee filed a Withdrawal - Doc. #58. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Marvin Eleid Represented By
Steven Abraham Wolvek
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10533
Marvin Eleid
Chapter 13
#68.00 Trustee's Motion to Dismiss Case for Failure to Submit All Tax Returns
fr. 12/17/19; 1/28/20, 2/25/20; 3/31/20; 5/19/20; 6/23/20; 8/25/20, 9/22/20, 10/27/20; 11/17/20
Docket 45
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Marvin Eleid Represented By
Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-10979
Irina G Dzhalalyants
Chapter 13
#69.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 45
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Irina G Dzhalalyants Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11080
Rafael Huerta
Chapter 13
#70.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 50
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Rafael Huerta Represented By William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11112
Mario Mauricio Gil and Edelina Chavez Cuayzon
Chapter 13
#71.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 34
*** VACATED *** REASON: Cont. to 2/23/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mario Mauricio Gil Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Edelina Chavez Cuayzon Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11550
Andrea L Cervantes
Chapter 13
#72.00 Trustee's Motion to Dismiss Chapter 13 Case due to Material Default of Plan: Failure to Submit all Tax Refunds
Docket 49
*** VACATED *** REASON: Cont. to 3/16/21 @11am.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Andrea L Cervantes Represented By Stephen S Smyth William J Smyth
Andrew Edward Smyth
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11575
Roderick Bill Norseweather
Chapter 13
#73.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 83
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #93. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Roderick Bill Norseweather Represented By James G. Beirne
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11718
James Sarkis Giritlian and Joan Schaeffer Giritlian
Chapter 13
#74.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 71
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
James Sarkis Giritlian Represented By Daniel King
Joint Debtor(s):
Joan Schaeffer Giritlian Represented By Daniel King
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-11944
Sara Hinojosa and Jesus Hinojosa
Chapter 13
#75.00 Trustee's Motion to Dismiss Chapter 13 Case due to Material Default of Plan: Failure to Submit all Tax Refunds
Docket 49
*** VACATED *** REASON: Cont. to 1/26/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Sara Hinojosa Represented By
R Grace Rodriguez
Joint Debtor(s):
Jesus Hinojosa Represented By
R Grace Rodriguez
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12737
Craig A. Lapiner
Chapter 13
#76.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 3/31/20, 7/21/20, 10/27/20
Docket 89
*** VACATED *** REASON: Cont'd to 1/26/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Craig A. Lapiner Represented By Eliza Ghanooni
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12843
Francisco Romero
Chapter 13
#77.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 56
*** VACATED *** REASON: Trustee file a withdrawal - Doc. #73. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Francisco Romero Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12865
Iveta Vardanyan
Chapter 13
#78.00 Trustee's Motion to Dismiss Chapter 13 Case due to Material Default of Plan: Failure to Submit all Tax Refunds
fr. 10/27/20; 11/17/20
Docket 25
*** VACATED *** REASON: Trustee's file a withdrawal - doc. #31. lf Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Iveta Vardanyan Represented By Aris Artounians
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:18-12957
Arturo Gutierrez
Chapter 13
#79.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 65
*** VACATED *** REASON: Trustee filed a withdrawal - Doc. #69 Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Arturo Gutierrez Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10043
Douglas Henry Baylis
Chapter 13
#80.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20; 11/17/20
Docket 61
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Douglas Henry Baylis Represented By Elena Steers
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10322
Louis Vargas
Chapter 13
#81.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20, 10/27/20
Docket 70
*** VACATED *** REASON: Cont'd to 1/26/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Louis Vargas Represented By
Michael Jay Berger
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10457
Gerardo Melendez and Maribel Melendez
Chapter 13
#82.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20; 11/17/20
Docket 82
*** VACATED *** REASON: Cont'd to 2/23/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Gerardo Melendez Represented By Shai S Oved
Joint Debtor(s):
Maribel Melendez Represented By Shai S Oved
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10486
Luis Mauricio Iglesias
Chapter 13
#83.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20; 11/17/20
Docket 24
*** VACATED *** REASON: Ntc. filed of w/drawal 11/24/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Luis Mauricio Iglesias Represented By Ali R Nader
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10592
Irina Petrosova
Chapter 13
#84.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 25
*** VACATED *** REASON: Cont. to 2/23/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Irina Petrosova Represented By Devin Sawdayi
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10637
Elizabeth Fabia Sanchez
Chapter 13
#85.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 27
*** VACATED *** REASON: Cont'd to 2/23/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Elizabeth Fabia Sanchez Represented By David S Hagen
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10800
Edgar Roberto Salazar
Chapter 13
#86.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/22/20, 10/27/20
Docket 58
*** VACATED *** REASON: Cont. to 1/26/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Edgar Roberto Salazar Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-10836
Melissa D Kurtz
Chapter 13
#87.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20; 11/17/20
Docket 68
*** VACATED *** REASON: Cont'd to 1/26/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Melissa D Kurtz Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11272
Samuel Araos Pasag and Nellie Garingan Pasag
Chapter 13
#88.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 38
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
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
1:19-11427
Lecia Kay Westerman
Chapter 13
#89.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 75
*** VACATED *** REASON: Cont'd to 1/26/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Lecia Kay Westerman Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11709
Omar Manzano
Chapter 13
#90.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 45
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Omar Manzano Represented By William G Cort
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11717
Lois Ann Harris
Chapter 13
#91.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 89
*** VACATED *** REASON: Cont. to 1/26/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
Party Information
Debtor(s):
Lois Ann Harris Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-11930
Vicente M Aguilar
Chapter 13
#92.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 44
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Vicente M Aguilar Represented By
David Samuel Shevitz
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12138
Bruno Alain Rosenthal
Chapter 13
#93.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 4/28/20, 7/21/20, 9/22/20; 11/17/20
Docket 33
*** VACATED *** REASON: Cont. to 1/26/21 @ 11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Bruno Alain Rosenthal Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12205
Mauricio Nunez
Chapter 13
#94.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 8/25/20, 9/22/20, 10/27/20; 11/17/20
Docket 41
*** VACATED *** REASON: Cont. to 2/23/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Mauricio Nunez Represented By Donald E Iwuchuku
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12260
Irene Elizabeth Franklin
Chapter 13
#95.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 9/22/20; 11/17/20
Docket 32
*** VACATED *** REASON: Cont. to 2/23/21 @ 11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Irene Elizabeth Franklin Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12352
Martin Miguel Centurion and Magalita R Centurion
Chapter 13
#96.00 Trustee's Motion to Dismiss Chapter 13 Case due to Material Default of Plan: Failure to Submit all Tax Refunds
Docket 33
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Martin Miguel Centurion Represented By Kevin T Simon
Joint Debtor(s):
Magalita R Centurion Represented By Kevin T Simon
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12586
Digna Soriano Gallagher
Chapter 13
#97.00 Motion to Dismiss Case for Failure to Make Plan Payments
Docket 30
*** VACATED *** REASON: Cont'd to 2/23/21 at 11:00 a.m.
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Digna Soriano Gallagher Represented By Peter M Lively
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12894
Mark Theodore Vedel and Susan Wohl Vedel
Chapter 13
#98.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20
Docket 50
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Mark Theodore Vedel Represented By Matthew D. Resnik
Joint Debtor(s):
Susan Wohl Vedel Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-12962
Benito Carrera and Veronica Ramos
Chapter 13
#99.00 Motion to Dismiss Case for Failure to Make Plan Payments fr. 11/17/20
Docket 40
*** VACATED *** REASON: Ntc. of w/drawal filed 12/7/20 (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Benito Carrera Represented By Giovanni Orantes
Joint Debtor(s):
Veronica Ramos Represented By Giovanni Orantes
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13061
Madeleine De Bois
Chapter 13
#100.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 9/22/20; 11/17/20
Docket 24
*** VACATED *** REASON: Cont. to 2/23/21 @11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Madeleine De Bois Represented By Gregory M Shanfeld
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:19-13135
Nicole Tanice Shepherd
Chapter 13
#101.00 Motion to Commence Loan Modification Management Program (LMM)
Docket 58
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Debtor(s):
Party Information
Nicole Tanice Shepherd Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-11218
William J Grauel
Chapter 13
#102.00 Motion RE: Objection to Claim Number 9 by Claimant Quantum3 Group.
Docket 34
Matter Notes:
NONE LISTED -
Tentative Ruling:
Debtor objects to the $74,208.49 claim filed by Quantum3 Group as agent for Aqua Finance (“Claimant”). Debtor contends that in June 2019, he contracted with Blue Fountain Pools to have an in-ground pool built in the backyard of his residence at 21917 Arminta St., Canoga Park, CA. On July 11, 2020, Debtor filed this chapter 13 case. On August 20, 2020, Claimant filed a proof of claim 9-1 (the "PoC"), indicating that the claim is secured by a lien on "household goods and fixture lien." Objection to Claim, Ex. A. On the PoC, Claimant listed the basis for perfection of the lien as "PMSI," i.e., purchase money security interest. Id.
Under FRBP 3001(f), "a proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." A proof of claim provides "some evidence as to its validity and amount" and prima facie validity is "strong enough to carry over a mere formal objection without more." Lundell v. Anchor Construction Specialists, Inc., 223 F.3d 1035 (9th Cir. 2000), quoting Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir. 1991). To be legally sufficient and prima facie valid under FRBP 3001, a claim must: (1) be in writing; (2) make a demand on debtor’s estate;
(3) express the intent to hold the debtor liable for the debt; (4) be properly filed; and (5) be based upon facts which would make the allowance equitable. 9 Collier on Bankruptcy (15th ed. Rev. 2004) ¶3001.05[2].
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. LR 3007-1.
11:00 AM
CONT...
William J Grauel
Chapter 13
Per 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. In re Heath, 331 B.R. at 435, 437-38. 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. Under In re Campbell, 336 B.R. 430 (B.A.P. 9th Cir. 2005), 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.
“The court, after notice and a hearing, shall determine the amount of such claim… as of the date of the filing of the petition, and shall allow such claim, except to the extent that – (1) such claim is unenforceable against debtor and the property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unliquidated.” 11
U.S.C. §502(b).
An objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP § 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified. LBR § 3007-1(c).
Should objection be taken, the objector is then called upon to produce evidence and show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves. But the ultimate burden of persuasion is always on the claimant. Thus, it may be said that the proof of claim is some evidence as to its validity and amount. It is strong enough to carry over a mere formal objection without more. 3 L. King, Collier on Bankruptcy § 502.02, at 502–22 (15th ed. 1991).
11:00 AM
CONT...
William J Grauel
Chapter 13
Debtor argues that Claimant has not produced evidence to support the assertion that the claim is secured by a perfected lien. Debtor argues that the financing statement attached to PoC 9-1 does not satisfy the requirements for a "fixture filing" under UCC 9502, as it does not indicate the collateral covered by the financing statement. Furthermore, there is no evidence that the financing statement was recorded in Los Angeles County, as PoC 9-1 shows only a Recorders Office leadsheet and a single page with the caption "Fixture Filing" but not the financing statement.
Service proper per address provided on Proof of Claim no. 9-1. No response filed.
Objection SUSTAINED; Claim no. 9-1 is disallowed as a secured claim against the Estate.
APPEARANCE WAIVED ON 12/15/20. RULING MAY BE MODIFIED AT HEARING.
Party Information
Debtor(s):
William J Grauel Represented By
Steven Abraham Wolvek
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-11245
Carlos R Moyano and Rosa E. Moyano
Chapter 13
#103.00 Motion to Avoid Lien Junior Lien with Indymac Bank, FSB/CIT Bank, N.A
fr. 8/25/20, 9/22/20, 10/27/20, 11/17/20
Docket 12
Matter Notes:
NONE LISTED -
Tentative Ruling:
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.
Party Information
Debtor(s):
Carlos R Moyano Represented By Nathan A Berneman
Joint Debtor(s):
Rosa E. Moyano Represented By Nathan A Berneman
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-11467
Jeris Spencer
Chapter 13
#104.00 Motion for Setting Property Value of 20115 Via Cellini, Porter Ranch CA 91326
Docket 33
Matter Notes:
NONE LISTED -
Tentative Ruling:
Service: Proper, per addresses listed on Proofs of Claim and Court Manual Property Address: 20115 Via Cellini, Porter Ranch, CA 91326
First trust deed: $1,385,346
Second position lien (to be avoided): $22,321.72 Third position lien (to be avoided): $6,935.38 Fourth position lien (to be avoided): $182,335.17 Fifth position lien (to be avoided): $11,831.78 Sixth position lien (to be avoided): $11,481.08 Seventh position lien (to be avoided): $3,207.00 Fair market value per appraisal: $1,365,000
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.
Party Information
Debtor(s):
Jeris Spencer Represented By
Brad Weil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:20-11622
Edith Azucena Pena
Chapter 13
#105.00 Motion for Order Determining Value of Collateral
[11 U.S.C. § 506(a), FRBP 3012]: 2017 Jeep Cherokee
Docket 18
*** VACATED *** REASON: Stip., cont. to 1/26/21 @11am (eg) Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Edith Azucena Pena Represented By Matthew D. Resnik
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
11:00 AM
1:17-10253
Allan Ray Cantero Padayao and Jenny Joan Agpoon
Chapter 13
#106.00 Motion to Dismiss Case for Failure to Make Plan Payments
fr. 10/27/20; 11/17/20
Docket 59
*** VACATED *** REASON: Cont. to 1/26/21 @ 11am Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
Party Information
Debtor(s):
Allan Ray Cantero Padayao Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Jenny Joan Agpoon Padayao Represented By
Hasmik Jasmine Papian
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
8:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1612768336 Meeting ID: 161 276 8336
8:00 AM
CONT... Chapter
Docket 0
Matter Notes:
NONE LISTED -
Tentative Ruling:
NONE LISTED -
9:30 AM
1:18-12843
Francisco Romero
Chapter 13
#0.01 Motion for relief from stay
HOMEBRIDGE FINANCIAL SERVICES, INC.
fr. 12/2/20
Docket 61
*** VACATED *** REASON: Vacated Pursuant to APO Matter Notes:
NONE LISTED -
Tentative Ruling:
VACATED. No Apperance Required.
Party Information
Debtor(s):
Francisco Romero Represented By Kevin T Simon
Movant(s):
HomeBridge Financial Services, Inc. Represented By
Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:19-10565
Pamela M. Sorenson
Chapter 13
#1.00 Motion for relief from stay
WILMINGTON TRUST NATIONAL ASSO.
fr. 11/18/20
Docket 51
Matter Notes:
NONE LISTED -
Tentative Ruling:
The matter was continued from 11/18/2020 in order for parties to discuss an APO. As of this date no APO has been approved by the Court. What is the status of this case?
Appearance Required. Petition Date: 03/11/2019
Chapter 13 plan confirmed: 7/22/19 Service: Proper. Opposition filed.
Property: 11052 Reseda Blvd., Northridge, CA 91326
Property Value: 582,000.00 (per debtor’s schedules) (Property is owned in Tenancy in Common… Debtor's portion is $145,000.00).
Amount Owed: $358,890.82 (per Movant's papers) Equity Cushion: 38.33%
Equity: $223,109.18
Post-Petition Delinquency: $ 6,419.86 ( 3 payments of $2,323.05 less suspense $549.29)
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); 3 (option to enter into forbearance agreement, loan modification, refinance agreement); 6 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay). Movant asserts
9:30 AM
CONT...
Pamela M. Sorenson
Chapter 13
there are grounds for relief from the stay because the Debtor has failed to make postpetition payments. Movant alleges that the Debtor has only made partial payments for the months of August, September and October 2020.
The Debtor opposes this motion because the Debtor believes that the property was wrongfully reassessed by the LA County Assessor's Office. Debtor claims that there is $390,000.00 in equity in the property.
Whether the Court applies the numbers provided by the Debtor's schedules and movant's papers or the Debtor's adjusted figures, there appears to be a substantial amount of equity in the property. Have the parties discussed entering into an APO?
Party Information
Debtor(s):
Pamela M. Sorenson Represented By Michael D Luppi
Movant(s):
Wilmington Trust, National Represented By Darlene C Vigil
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
9:30 AM
1:20-10127
James Anthony Torres and Miriam Araceli Torres
Chapter 13
#2.00 Motion for relief from stay METROPOLITAN LIFE INSURANCE CO.
fr. 11/18/20
Docket 32
*** VACATED *** REASON: Vacated Pursuant to APO Matter Notes:
NONE LISTED -
Tentative Ruling:
VACATED. No Appereance Required.
Party Information
Debtor(s):
James Anthony Torres Represented By
Raj T Wadhwani
Joint Debtor(s):
Miriam Araceli Torres Represented By
Raj T Wadhwani
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:16-13625
Maria G. Alonso
Chapter 13
#3.00 Motion for relief from stay HSBC BANK USA
Docket 141
Matter Notes:
NONE LISTED -
Tentative Ruling:
Petition Date: 12/27/2016
Chapter 13 plan confirmed: 6/14/2017 Service: Proper. Opposition filed.
Property: 5908 Dovetail Drive, Agoura Hills CA 91301 Property Value: $570,000.00 (per debtor’s schedules) Amount Owed: $546,149.77 (per Movant's papers) Equity Cushion: 4.2%
Equity: $23,850.23
Post-Petition Delinquency: $ 11,913.16 ( 3 payments of $4,036.60 less suspense account $196.64)
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); 3 (option to enter into forbearance agreement, loan modification, refinance agreement); 6 (relief from co-debtor stay); and 7 (waiver of the 4001(a)(3) stay). Movant believes cause exists for lifting the stay because the Debtor has missed several postpetition payments. Movant asserts that the last payment received on 7/31/2020.
Debtor fell behind with the mortgage payments due to financial hardship but believes that the Property is necessary for an effective reorganization. Debtor would like to enter into an APO.
Are parties open to entering into an APO?
10:00 AM
CONT...
Maria G. Alonso
Chapter 13
Appearance Required.
Debtor(s):
Party Information
Maria G. Alonso Represented By Kevin T Simon
Movant(s):
HSBC Bank USA, N.A. Represented By Keith Labell Sean C Ferry
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-12088
Godwin Osaigbovo Iserhien
Chapter 11
#4.00 Motion in Individual Case for Order Imposing
a Stay or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 9
Matter Notes:
NONE LISTED -
Tentative Ruling:
Debtor moves for the Court to impose the automatic stay. Debtor has filed five previous bankruptcy cases under Chapters 11 and 13 of the Code (10-19547; 11-18077; 10-22986; 14-11798; 18-10834). Only one of these
cases was dismissed within the last year (18-10834 for failure to prosecute on December 18, 2019). Debtor filed this bankruptcy case 11/24/2020.
Debtor asserts that good cause exists from imposing the stay as to several Real Properties (1 is principal residence and 2 are rental properties) because during the pendency of the previous case, as a condition for approval of a Loan Modification with Wilmington Savings Fund Society, FSB, ("Wilmington") the Debtor need to dismiss the Chapter 11 case. A Loan Modification was entered into and Debtor began making payments. Debtor alleges that he fell behind due to income drop as a direct result to COVID-19. Additionally, Debtor asserts that secured creditors will be provided adequate protection payments.
Wilmington rebuts the claim that this case was brought in good faith. First, Wilmington asserts that the Debtor filed the current case in order to stop a foreclosure sale. Additionally, the Debtor's history of filing bankruptcy petitions without confirming a plan - all except one case - suggest that Debtor is just using the bankruptcy process to interfere with Wilmington's rights. Further, Debtor's schedules I and J show that the Debtor's wife receives unemployment income that is set to end in the near future - raising serious concerns about whether Debtor can provide adequate assurance of payment.
10:00 AM
CONT...
Godwin Osaigbovo Iserhien
Chapter 11
Similarly, Chase Bank, a secured creditor on one of the properties, filed an objection noting that this case is presumptively filed in bad faith, since this case was filed within a year of a previous case being dismissed, and the Debtor has failed to rebut this presumption, explain how the Debtor's financial status changed, and there is no likelihood of success in reorganizing.
Section 362(c)(3)(A) of the Bankruptcy Code provides, “if a single or joint case is filed by or against debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed,…the stay under [§362(a)] with respect to any action taken with respect to a debt or property securing such debt…shall terminate with respect to the debtor on the 30th day after the filing of the later case.” 11 U.S.C. § 362(c)(3)(A). On the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, “the court may extend the stay in particular cases as to any or all creditors…after notice and a hearing completed before expiration of the 30- day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed.” 11 U.S.C. §362(c)(3)(B) (emphasis added). A case is presumptively not filed in good faith:
as to all creditors, if:
more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period;
a previous case under any of chapter 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to: (aa) file or amend the petition or other documents as required by the title or the court without substantial excuse…; (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; or (III) 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 or any other reason to conclude that the later case will be concluded with a discharge if filed under chapter 7 or a plan that will be fully performed if filed under chapters 11 or 13.
as to any creditor that commenced an action under subsection (d) in a previous case in which the individual was a debtor if, as of the date of dismissal of such case, that action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to actions of such creditor…
10:00 AM
CONT...
Godwin Osaigbovo Iserhien
Chapter 11
11 U.S.C. § 363(c)(3)(C)(i)-(ii).
The debtor bears the ultimate burden of persuasion to demonstrate through clear and convincing evidence to the contrary that the presumption of bad faith does not apply. In re Casteneda, 342 B.R. 90, 94 (Bankr. S.D. Cal.
2006); 11 U.S.C. § 362(c)(3)(C).
This is the sixth voluntary petition filed by the Debtor in the last decade. Only one of these cases resulted in a confirmed plan, the Debtor ultimately defaulted on the confirmed plan. Debtor asserts that Chase and Wilmington will be adequately protected; however, it appears that there is doubt that the Debtor's will be able to provide adequate protection to the secured creditors. The Court is not convinced that the Debtor met its burden to overcome the presumption of bad faith.
The Court is inclined to DENY the Debtor's motion imposing the stay. Appearance Required.
Party Information
Debtor(s):
Godwin Osaigbovo Iserhien Represented By Onyinye N Anyama
10:00 AM
1:20-11601
Andrea Ricci and Tonya Crooks
Chapter 13
#4.01 Motion for relief from stay ASHLEY HENSARLING
fr. 12/9/20
Docket 24
Matter Notes:
NONE LISTED -
Tentative Ruling:
Apperance Required.
Debtor(s):
Party Information
Andrea Ricci Represented By
Robert M Aronson
Joint Debtor(s):
Tonya Crooks Represented By Robert M Aronson
Movant(s):
Ashley Hensarling Represented By Alberto J Campain
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11601
Andrea Ricci and Tonya Crooks
Chapter 13
#4.02 Motion for relief from stay BROWGAL, LLC
fr. 12/9/20
Docket 25
Matter Notes:
NONE LISTED -
Tentative Ruling:
Appereance Required.
Debtor(s):
Party Information
Andrea Ricci Represented By
Robert M Aronson
Joint Debtor(s):
Tonya Crooks Represented By Robert M Aronson
Movant(s):
Browgal, LLC Represented By Alberto J Campain
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11601
Andrea Ricci and Tonya Crooks
Chapter 13
#4.03 Motion for relief from stay SANDRA HENSERLING
fr. 12/9/20
Docket 26
Matter Notes:
NONE LISTED -
Tentative Ruling:
Apperance Required.
Party Information
Debtor(s):
Andrea Ricci Represented By
Robert M Aronson
Joint Debtor(s):
Tonya Crooks Represented By Robert M Aronson
Movant(s):
Sandra Hensarling Represented By Alberto J Campain
Trustee(s):
Elizabeth (SV) F Rojas (TR) Pro Se
10:00 AM
1:20-11984
Lindsay Marie Pacifico
Chapter 7
#4.04 Motion for relief from stay BROWGAL LLC
Docket 15
Matter Notes:
Movant
Respondent
Grant Deny Stip/AP
Opposition filed yes no
Moot withdrawn Deny F/F to appear
Continued
Submitted on the tentative
Order to be sumitted by: Plaintiff/Movant - Defendant/Respondent - Court Evidentiary Hearing
Tentative Ruling:
Apperance Required.
Party Information
10:00 AM
CONT...
Debtor(s):
Lindsay Marie Pacifico
Chapter 7
Lindsay Marie Pacifico Represented By Navid Kohan
Movant(s):
Browgal, LLC Represented By Alberto J Campain
Trustee(s):
Diane C Weil (TR) Pro Se
10:00 AM
1:20-11984
Lindsay Marie Pacifico
Chapter 7
#4.05 Motion for relief from stay SANDRA HENSARLING
Docket 16
Matter Notes:
Movant
Respondent
Grant Deny Stip/AP
Opposition filed yes no
Moot withdrawn Deny F/F to appear
Continued
Submitted on the tentative
Order to be sumitted by: Plaintiff/Movant - Defendant/Respondent - Court Evidentiary Hearing
Tentative Ruling:
Apperance Required.
Debtor(s):
Party Information
Lindsay Marie Pacifico Represented By Navid Kohan
10:00 AM
CONT...
Movant(s):
Lindsay Marie Pacifico
Chapter 7
Sandra Hensarling Represented By Alberto J Campain
Trustee(s):
Diane C Weil (TR) Pro Se
10:00 AM
1:20-11984
Lindsay Marie Pacifico
Chapter 7
#4.06 Motion for relief from stay ASHLEY HENSARLING
Docket 17
Matter Notes:
Movant
Respondent
Grant Deny Stip/AP
Opposition filed yes no
Moot withdrawn Deny F/F to appear
Continued
Submitted on the tentative
Order to be sumitted by: Plaintiff/Movant - Defendant/Respondent - Court Evidentiary Hearing
Tentative Ruling:
Apperance Required.
Debtor(s):
Party Information
Lindsay Marie Pacifico Represented By Navid Kohan
10:00 AM
CONT...
Movant(s):
Lindsay Marie Pacifico
Chapter 7
Ashley Hensarling Represented By Alberto J Campain
Trustee(s):
Diane C Weil (TR) Pro Se
10:30 AM
1:19-10828
Anna Barseghian
Chapter 7
#5.00 Trustee's Final Report and Applications for Compensation and Deadline to Object
Trustee:
Nancy Zamora
Attorney for Trustee:
Law Offices of Wesley H. Avery, APC
Accountant:
LEA Accountancy, LLP
Docket 80
Matter Notes:
NONE LISTED -
Tentative Ruling:
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.
TRUSTEE TO LODGE ORDER WITHIN 7 DAYS
No Appearance Required.
Debtor(s):
Party Information
Anna Barseghian Represented By Aris Artounians
Trustee(s):
Nancy J Zamora (TR) Represented By Wesley H Avery
10:30 AM
CONT...
Anna Barseghian
Chapter 7
Law Office of Wesley H. Avery, APC
10:30 AM
1:19-11422
Joe Kearney
Chapter 11
#6.00 Application for Compensation for Robert M Aronson, Debtor's Attorney, Period: 5/1/2020 to 10/31/2020, Fee: $41,160.00, Expenses: $69.30.
Docket 174
Matter Notes:
NONE LISTED -
Tentative Ruling:
Service proper. No objections filed. Having reviewed the First Interim 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.
NO Appearance Required.
Party Information
Debtor(s):
Joe Kearney Represented By
Robert M Aronson Robert M. Aronson
10:30 AM
1:19-12727
Tacarra Sheana Carthan
Chapter 7
#6.01 Motion for relief from stay
CARMEN BARTON AND ANTHONY CARTHAN
fr. 12/2/20
Docket 28
Matter Notes:
CONTINUED TO 12/16 AT 10:30 AM
Tentative Ruling:
Petition Date: 10/29/19 Reopened 5/06/2020 (Ch.7) Service: Proper.
Movant: Nicholas Garcia
Relief Sought to: Pursue Pending Litigation _X
Commence Litigation
Pursue Insurance
Litigation Information
Other
Case Name: Camren Barton & Anthony Carthan v. Tacarra Carthan (Dkt. No. 20STCV42159)
Court/Agency: Superior Court of the State of California, County of Los Angeles
Date Filed: 11/4/2020 Trial Start Date: NA
Action Description: False Light, Intentional Infliction of Emotional Distress, Malicious Prosecution, and Abuse of Civil Process.
Grounds
Bad Faith X
Claim is Insured
Claim Against 3rd Parties
Nondischargeable _X Mandatory Abstention Non-BK Claims Best Resolved in Non-BK Forum X_ Other:
10:30 AM
CONT...
Tacarra Sheana Carthan
Chapter 7
Movant requests relief under 11 U.S.C. 362(d)(1), with specific relief requested in paragraphs 2 (proceed under non-bankruptcy law); 3
( retroactive stay); 7 (order binding and effective on any future bankruptcy case, no matter who the debtor maybe, without further notice).
Debtor opposes this motion because it will prejudice her to prosecute this case in a non-bankruptcy forum. Additionally, this case was filed after the bankruptcy was commenced.
An act taken in violation of the automatic stay is void, not merely voidable, is well-established law in the Ninth Circuit. Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074, 1082 (9th Cir. 2000); see also Far Out Productions, Inc. v. Oskar et al., 247 F.3d 986, 995 (9th Cir. 2001). Further, “judicial proceedings in violation of the automatic stay are void.” In re Gruntz at 1074 (quoting Phoenix Bond & Indemnity Co. v. Shamblin (In re Shamblin), 890 F.2d 123, 125 (9th Cir. 1989)). An action that violates the stay is still void despite a party’s lack of knowledge of the pending bankruptcy. See e.g., 40235 Washington Street Corporation v. Lusardi (In re Lusardi), 329 F.3d 1076 (9th Cir. 2003) (the Ninth Circuit deemed a county tax sale on real property void even though neither the county nor the purchaser had knowledge of the bankruptcy case).
Commencing a lawsuit is an action in which the automatic stay seeks to prohibit, whether plaintiffs were aware of the bankruptcy or not. Any argument that the Court should retroactively grant relief runs afoul with the Supreme Court's holding in Roman Catholic Archdiocese of San Juan, Puerto Rico v. Acevedo Feliciano, 2020 WL 871715, (U.S. Feb. 24, 2020). The Movants commenced the state court action at the same time as they filed this motion for relief from stay. While the Movants may have been confused as to how to proceed procedurally, the Court finds no cause for granting nun pro tunc relief of stay.
The issues alleged in the complaint are all state law defamation issues that should be adjudicated in State Court. Debtor has set forth no valid rationale for how she will be prejudiced if this State Court case was allowed to proceed. The Court will GRANT the Movants' motion for relief of stay; however, the Court will not grant nun pro tunc relief from the stay. Movants will need to dismiss case and refile with the State Court.
Appearance Required.
10:30 AM
CONT...
Debtor(s):
Tacarra Sheana Carthan
Party Information
Chapter 7
Tacarra Sheana Carthan Represented By Daniel King
Movant(s):
Anthony Carthan Pro Se
Carmen Barton Pro Se
Trustee(s):
Amy L Goldman (TR) Pro Se
10:30 AM
1:20-10900
Lucili V Santiago
Chapter 7
#7.00 Trustee's Final Report and Applications for Compensation
Docket 47
Matter Notes:
NONE LISTED -
Tentative Ruling:
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.
TRUSTEE TO LODGE ORDER WITHIN 7 DAYS
No Appearance Required.
Debtor(s):
Party Information
Lucili V Santiago Represented By Daniel King
Trustee(s):
Nancy J Zamora (TR) Pro Se
11:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
#8.00 Disclosure Statement Describing First Amended Chapter 11 Plan of Reorganization
Docket 104
*** VACATED *** REASON: Hearing Continued to 12/18/2020 at 1:00pm.
Matter Notes:
NONE LISTED -
Tentative Ruling:
Hearing Continued to 12/18/2020 at 1:00pm. No apperance required on 12/16/2020
Party Information
Debtor(s):
Maria Estela San Vicente Represented By Thomas B Ure
11:00 AM
1:19-11935
Maria Estela San Vicente
Chapter 11
#9.00 Scheduling and Case Management Conference and Filing of Monthly Reports
fr. 11/6/19; 6/24/20, 10/28/20
Docket 31
*** VACATED *** REASON: Hearing Continued to 12/18/2020 at 1:00pm. No apperance required on 12/16/2020
Matter Notes:
NONE LISTED -
Tentative Ruling:
Hearing Continued to 12/18/2020 at 1:00pm.
No apperance required on 12/16/2020Apperance Required.
Party Information
Debtor(s):
Maria Estela San Vicente Represented By Thomas B Ure
11:00 AM
1:17-12980
Mainstream Advertising, a California Corporation
Chapter 7
Adv#: 1:20-01027 Goldman v. Bibi et al
#10.00 Pretrial Status Conference re: Complaint for avoidance and recovery of avoidable transfer, 11 u.s.c. section 544,
547, 548, 550; Declaratory relief; Turnover breach of fiduciary duty; Preliminary and Permanent Injuction; Disallowance of proof of claim; Equitable subordination of claim.
fr. 5/6/20; 6/10/20
Docket 1
*** VACATED *** REASON: Cont'd to 5/19/21 at 1:30 a.m. per Doc. #15. lf
Matter Notes:
NONE LISTED -
Tentative Ruling:
Per stipulation discovery extended to April 30, 2021, motion cutoff May 3, 2021, and pretrial moved to May 19, 2021. Status Conference shall be continued to May 19, 2021 at 11:00am.
No Appearance Required on 12/16/20
Party Information
Debtor(s):
Mainstream Advertising, a Represented By Kathleen P March
Defendant(s):
Danny Bibi Pro Se
Shahla Mishkanin Pro Se
Iraj Khoshnood Pro Se
11:00 AM
CONT...
Mainstream Advertising, a California Corporation
Chapter 7
Monetize.com, inc. Pro Se
Ad.com Interactive Media Inc. Pro Se
Plaintiff(s):
Amy L. Goldman Represented By John P. Reitman
Trustee(s):
Amy L Goldman (TR) Represented By David B Golubchik Peter J Mastan
Anthony A Friedman John P. Reitman Jack A. Reitman
11:00 AM
1:20-11215
David Mor
Chapter 7
Adv#: 1:20-01084 First Data Merchant Services, LLC v. Mor
#11.00 Status Conference Re:
Complaint to Determine Debt to be Non-Dischargeable
Docket 1
*** VACATED *** REASON: Hearing Continued to 12/18/2020 at 1:00pm. No apperance required on 12/16/2020
Matter Notes:
NONE LISTED -
Tentative Ruling:
Hearing Continued to 12/18/2020 at 1:00pm. No apperance required on 12/16/2020
Party Information
Debtor(s):
David Mor Represented By
Stephen S Smyth William J Smyth
Defendant(s):
David Mor Pro Se
Plaintiff(s):
First Data Merchant Services, LLC Represented By
Allan Herzlich
Trustee(s):
Diane C Weil (TR) Pro Se
9:00 AM
1:00-00000 Chapter
#0.00 All hearings on this calendar will be conducted remotely, using ZoomGov video and audio.
Parties in interest and members of the public may connect to the video and audio feeds, free of charge, using the connection information provided below.
Individuals may participate by ZoomGov video and audio using a personal computer (equipped with camera, microphone and speaker), or a handheld mobile device (such as an iPhone or Android phone). Individuals may opt to participate by audio only using a telephone (standard telephone charges may apply).
Neither a Zoom nor a ZoomGov account is necessary to participate and no pre-registration is required. The audio portion of each hearing will be recorded electronically by the Court and constitutes its official record.
Video/audio web address: https://cacb.zoomgov.com/j/1616159437 Meeting ID: 161 615 9437
Docket 0
Tentative Ruling:
NONE LISTED -
10:00 AM
1:18-12855
PB-1, LLC
Chapter 11
#1.00 Post-Confirmation Status Conference and Scheduling and Case Management Conference
fr. 2/6/19, 3/13/19; 4/3/19; 6/17/19; 6/24/19, 7/18/19 12/11/19, 3/11/20, 8/26/20, 8/27/20; 10/7/20
Docket 1
*** VACATED *** REASON: Cont'd to 1/13/21 at 11 a.m. - hm Tentative Ruling:
NO APPEARANCE REQUIRED.
Party Information
Debtor(s):
PB-1, LLC Represented By
Jeffrey S Shinbrot
1:00 PM
1:19-11935
Maria Estela San Vicente
Chapter 11
#2.00 Disclosure Statement Describing First Amended Chapter 11 Plan of Reorganization
fr. 12/16/20
Docket 104
Tentative Ruling:
The Court entered an order allowing the Debtor to file an amended plan and disclosure statement to provide for avoidance of the JPMorgan Chase claim, to clarify plan treatment for general unsecured creditors, and to provide updated financial information. Docket No. 106. The order also set forth the deadlines for plan confirmation and the Court set the matter to be heard on December 16, 2020 at 11:00 am
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.
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 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
1:00 PM
CONT...
Maria Estela San Vicente
Chapter 11
claims or interests that is impaired under the plan. The plan satisfies this requirement.
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 satisfies this requirement.
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 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). This requirement has been satisfied according to the Court's order at Docket No. 106
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 receive evidence on the issue of good faith. Id. The § 1129(a)(3) good faith question is determined on a case-by- case basis taking into account the totality of the circumstances with a view to
1:00 PM
CONT...
Maria Estela San Vicente
Chapter 11
whether the plan will fairly achieve a result consistent with the objectives and purposes of the Bankruptcy Code. Platinum Capital, Inc. v. Sylmar Plaza, Ltd. P'ship (In re Sylmar Plaza, Ltd. P'ship), 314 F.3d 1070, 1074- 75 (9th Cir.
2002)
The UST opposes the Debtor's first amended plan because the plan is not filed in good faith. The UST asserts the Debtor has more disposable income than she is proposing to pay to general creditors. According to the Disclosure Statement, the Debtor's projected income will be $5,000.00 per month. The monthly operating reports for the last year have reveal that the Debtor has averaged monthly income of $6,745.00. The UST argues that the plan is not being put forth in good faith because the Debtor has proposed paying unsecured creditors a 0% return and has approximately $2,000.00 in income surplus that could be devoted to these creditors.
The Debtor's sources of income are:
Income from IHSS
Income from Husband's self-employment
Husband's Social Security
Contributions from son
The monthly operating reports includes the husband's social security, which is approximately $1,945.00. Social Security Income is not included as disposable income. See 11 U.S.C. § 1129(a)(15)(B). If the Court reduces the income stated in Monthly Operating reports by the Debtor's husband's Social Security Income, then the Debtor's projected income per month is around
$5,000.00. The plan states that the Debtor is proposing to use her husband's Social Security revenue in order to fund the plan. In essence, the Debtor is proposing to use funds which she is not required to use in order to fund the plan. Just because the Debtor will not contribute the entirety of the exempt funds towards the plan does not support the notion that the plan lacks good faith. Accordingly, the Court finds that the plan has been filed in good faith.
11 U.S.C. §1129(a)(4)
1:00 PM
CONT...
Maria Estela San Vicente
Chapter 11
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). The plan satisfies this requirement.
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 creditors test. The plan satisfies this requirement.
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 infra, "Cram Down;” see also, 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 1(a) voted to approve the plan; however, the Class 3 rejected the plan unanimously. Therefore, this requirement is not satisfied, and the plan can only be confirmed if the provisions in §1129(b) apply.
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).
1:00 PM
CONT...
Maria Estela San Vicente
Chapter 11
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). The plan satisfies this requirement. See Plan, Article III.
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 1 (a) voted to accept the plan; therefore, this requirement has been satisfied.
11 U.S.C. §1129(a)(11)
The court may only confirm a plan if it is feasible, meaning that confirmation 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. Debtor appears to have enough cash on hand and the historical financial information suggests that the Debtor will have a consistent stream of revenue coming in in order to properly fund the plan. This requirement has been satisfied.
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. The plan satisfies this requirement.
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
1:00 PM
CONT...
Maria Estela San Vicente
Chapter 11
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). Having reviewed the Debtor's projected net monthly income and expenses, it appears that there is disposable income at the end of each month after paying for Debtor's expenses and funding the plan as it currently is. While the Debtor disputes much of the general unsecured claims - Debtor has not objected to claims but reserves right to do so if funds become available - the fact remains that there is disposable income not going to pay creditors. Debtor should be prepared to address how this requirement has been satisfied.
Cram Down:
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).
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). In re Acequia, Inc., 787 F.2d 1352, 1364 (9th Cir. 1986).
The plan proponent must show that the plan does not "unfairly discriminate" and is "fair and equitable" by a clear and convincing burden of 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).
A debtor may cramdown a plan only if it complies with the absolute priority rule in § 1129(b)(2)(B)(ii). Put another way, a bankruptcy judge may find that a debtor's plan is "fair and equitable" to an objecting creditor only if the plan complies with the absolute priority rule. The rule "provides that a dissenting class of unsecured creditors must be provided for in full before any junior class can receive or retain any property under a reorganization plan." Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 202 (1988).
1:00 PM
CONT...
Maria Estela San Vicente
Chapter 11
Here, Class 3 has rejected the ballot, so the plan must be crammed down. Class 3 is the general unsecured claims class and, according to the plan, are not entitled to any payment. Class 3 is the most junior class of claims and each claim holder in this class is being treated the same. It appears that there is no issue with the absolute priority rule here; however, Debtor should come prepared to discuss whether the requirements of cram down have been satisfied.
Appearance Required.
Debtor(s):
Party Information
Maria Estela San Vicente Represented By Thomas B Ure
1:00 PM
1:19-11935
Maria Estela San Vicente
Chapter 11
#3.00 Scheduling and Case Management Conference and Filing of Monthly Reports
fr. 11/6/19; 6/24/20, 10/28/20, 12/16/20
Docket 31
Tentative Ruling:
Appearance Required
Debtor(s):
Party Information
Maria Estela San Vicente Represented By Thomas B Ure
1:00 PM
1:20-11215
David Mor
Chapter 7
Adv#: 1:20-01084 First Data Merchant Services, LLC v. Mor
#4.00 Status Conference Re:
Complaint to Determine Debt to be Non-Dischargeable
fr. 12/16/20
Docket 1
Tentative Ruling:
Plaintiff filed this § 523(a) action on October 9, 2020. Answer filed November 11, 2020. Plaintiff does not want to mediate but Defendant does. Parties indicate that trial should be ready by June 2021 and take no longer than a day.
Dates :
Discovery cut-off (all discovery to be completed*): May 31, 2021 Expert witness designation deadline (if necessary): per rule
Case dispositive motion filing deadline (MSJ; 12(c)): June 25, 2021 Pretrial conference: July 7, 2021 at 10:00am
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.
1:00 PM
CONT...
David Mor
Chapter 7
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.
Appearance Required.
Debtor(s):
Party Information
David Mor Represented By
Stephen S Smyth William J Smyth
Defendant(s):
David Mor Pro Se
Plaintiff(s):
First Data Merchant Services, LLC Represented By
Allan Herzlich
Trustee(s):
Diane C Weil (TR) Pro Se