United States Bankruptcy Court Central District of...

United States Bankruptcy CourtCentral District of California

Judge Victoria Kaufman, PresidingCourtroom 301 Calendar

San Fernando Valley

Wednesday, August 7, 2019 301 Hearing Room

9:30 AMAntoine R Chamoun1:18-11620 Chapter 7

#1.00 Motion for relief from stay [RP]

THE BANK OF NEW YORK MELLONVSDEBTOR

fr. 3/20/19(stip); 5/22/19 (stip); 7/3/19

28Docket *** VACATED *** REASON: Motion withdrawn 8/2/19 - jc

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Antoine R Chamoun Represented ByWilliam H Brownstein

Movant(s):

The Bank of New York Mellon fka Represented ByDarren J Devlin

Trustee(s):

David Seror (TR) Represented ByRichard BursteinJorge A Gaitan

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9:30 AMNahed Talei1:16-13377 Chapter 13


U.S. BANK NATIONAL ASSOCIATIONVSDEBTOR

fr. 6/5/19; 7/17/19

Stip for adequate protection filed 7/26/19

60Docket *** VACATED *** REASON: Order approving stipulation entered 7/29/19

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Nahed Talei Represented ByMichael F Frank

Movant(s):

U.S. Bank National Association, as Represented ByDaniel K FujimotoCaren J Castle

Trustee(s):

Elizabeth (SV) F Rojas (TR) Pro Se

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9:30 AMLuis Valdez1:17-11373 Chapter 13


SPECIALIZED LOAN SERVICING, LLCVSDEBTOR

fr. 6/5/19; 7/17/19


37Docket *** VACATED *** REASON: Order approving stipulation entered on 7/19/19 [doc. 41].

Tentative Ruling:

Party Information

Debtor(s):

Luis Valdez Represented ByRebecca Tomilowitz

Movant(s):

Specialized Loan Servicing LLC Represented ByDane W Exnowski

Trustee(s):


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9:30 AMMitchell S. Cohen1:18-10314 Chapter 13


U.S. BANK NATIONAL ASSOCIATONVSDEBTOR

fr. 6/12/19; 7/17/19

97Docket

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Mitchell S. Cohen Represented ByKevin T Simon

Trustee(s):


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9:30 AMPapanicolaou Enterprises1:19-11421 Chapter 11

#5.00 Motion for relief from stay [UD]

YASAM LEGACY LLC A CA. LTD. LIAB. CO.VSDEBTOR

RE: 11329 Magnolia Blvd., North Hollywood, CA 91601 .

fr. 7/17/19

26Docket *** VACATED *** REASON: Order ent. continuing hrg to 8/22/19 at 2:00 p.m. - jc

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Papanicolaou Enterprises Represented ByEric Bensamochan

Movant(s):

Yasam Legacy LLC, A Ca Ltd. Liab. Represented ByPaul E Gold

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9:30 AMPapanicolaou Enterprises1:19-11421 Chapter 11

#6.00 Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate

fr. 7/3/19

4Docket

Grant.

Movant must submit the order within seven (7) days.

Note: No response has been filed. Accordingly, no court appearance by movant is required. Should an opposing party file a late opposition or appear at the hearing, the Court will determine whether further hearing is required and movant will be so notified.

Tentative Ruling:

Party Information

Debtor(s):

Papanicolaou Enterprises Represented ByEric Bensamochan

Movant(s):

Papanicolaou Enterprises Represented ByEric BensamochanEric BensamochanEric Bensamochan

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9:30 AMSchonte Patrice Hamilton1:19-11388 Chapter 13

#7.00 Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate

fr. 6/19/19

7Docket

Grant.



Tentative Ruling:

Party Information

Debtor(s):

Schonte Patrice Hamilton Represented ByMichael E Clark

Movant(s):

Schonte Patrice Hamilton Represented ByMichael E Clark

Trustee(s):


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9:30 AMAurora Frias Lee-Nelson1:19-10059 Chapter 7

#8.00 Motion for relief from stay [PP]

TOYOTA MOTOR CREDIT CORPORATIONVSDEBTOR

77Docket

Grant relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (d)(2).

Movant (and any successors or assigns) may proceed under applicable nonbankruptcy law to enforce its remedies to repossess and sell the property.

The 14-day stay prescribed by FRBP 4001(a)(3) is waived.



Tentative Ruling:

Party Information

Debtor(s):

Aurora Frias Lee-Nelson Represented ByRonald D Tym

Trustee(s):

David Keith Gottlieb (TR) Represented ByD Edward HaysLaila Masud

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9:30 AMLuis F Lopez and Mirna D Quijano De Lopez1:19-11189 Chapter 7

#9.00 Motion for relief from stay [PP]

ACAR LEASING LTDVSDEBTOR

10Docket

Grant relief from stay pursuant to 11 U.S.C. § 362(d)(1).

Movant (and any successors or assigns) may proceed under applicable nonbankruptcy law to enforce its remedies to repossess and sell the property.




Tentative Ruling:

Party Information

Debtor(s):

Luis F Lopez Represented ByHector Vega

Joint Debtor(s):

Mirna D Quijano De Lopez Represented ByHector Vega

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9:30 AMLuis F Lopez and Mirna D Quijano De LopezCONT... Chapter 7

Trustee(s):

Diane C Weil (TR) Pro Se

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9:30 AMTasjah Nevill1:19-11625 Chapter 13

#10.00 Motion for relief from [UD]

BRE SILVER MF NORTH HOLLYWOOD CA LLCVSDEBTOR

10Docket *** VACATED *** REASON: Motion withdrawn 7/30/19 - jc

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Tasjah Nevill Pro Se

Movant(s):

BRE Silver MF North Hollywood Represented ByRichard Sontag

Trustee(s):


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9:30 AMBenjamin Valencia1:19-11419 Chapter 13


DAVID T. GOLDEN & MONICA J. GOLDEN, TRUSTEESVSDEBTOR

18Docket *** VACATED *** REASON: withdrawal filed on 7/24/19 doc [24]

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Benjamin Valencia Represented BySydell B Connor

Movant(s):

David T. Golden & Monica J. Represented ByMartin W. Phillips

Trustee(s):


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9:30 AMDonald M. Baarns and Lisa A. Baarns1:15-11825 Chapter 13



41Docket

On July 31, 2019, the debtors filed an untimely response to the motion for relief from the automatic stay [doc. 43]. The debtors did not include a declaration signed under penalty of perjury or other evidentiary support for the assertions in the response.

Grant relief from stay pursuant to 11 U.S.C. § 362(d)(1).

Movant (and any successors or assigns) may proceed under applicable nonbankruptcy law to enforce its remedies to foreclose upon and obtain possession of the property.

Upon entry of the order, for purposes of Cal. Civ. Code § 2923.5, the debtors are borrowers as defined in Cal. Civ. Code § 2920.5(c)(2)(C).

The 14-day stay prescribed by FRBP 4001(a)(3) is NOT waived.


Tentative Ruling:

Party Information

Debtor(s):

Donald M. Baarns Represented ByAli R Nader

Joint Debtor(s):

Lisa A. Baarns Represented ByPage 13 of 638/6/2019 5:30:46 PM



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9:30 AMDonald M. Baarns and Lisa A. BaarnsCONT... Chapter 13

Ali R Nader

Trustee(s):


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9:30 AMGerald E Klein and Norma L Klein1:16-10630 Chapter 13


MUFG UNION BANK, N.A.VSDEBTOR

58Docket *** VACATED *** REASON: Motion is not in compliance with Local Bankruptcy Rule 5005-2(d)(1). Motion is OFF CALENDAR

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Gerald E Klein Represented ByDavid R Hagen

Joint Debtor(s):

Norma L Klein Represented ByDavid R Hagen

Trustee(s):


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9:30 AMRobert Lazar Levitan and Catherine Palmerino Levitan1:16-11663 Chapter 13


NATIONSTAR MORTGAGE LLCVSDEBTOR

57Docket

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Robert Lazar Levitan Represented ByRaj T WadhwaniGregory M Shanfeld

Joint Debtor(s):

Catherine Palmerino Levitan Represented ByRaj T WadhwaniGregory M Shanfeld

Trustee(s):


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9:30 AMMarilyn Ann Ficco1:19-10147 Chapter 13


WELLS FARGO BANK, N.A. VS DEBTOR


62Docket *** VACATED *** REASON: Order approving stipulation entered 08/05/2019

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Marilyn Ann Ficco Represented ByMatthew D Resnik

Trustee(s):


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9:30 AMDennis Shelby1:19-10777 Chapter 13




- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Dennis Shelby Represented ByJoshua L Sternberg

Trustee(s):


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9:30 AMFarzad Khalili1:19-11073 Chapter 13


DEUTSCHE BANK NATIONAL TRUST COMPANYVSDEBTOR


- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Farzad Khalili Pro Se

Trustee(s):


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9:30 AMAnthony Ross1:19-11148 Chapter 13


NATIONS DIRECT MORTGAGE, LLCVSDEBTOR

18Docket

For the reasons discussed below, the Court will grant relief from the automatic stay under 11 U.S.C. §§ 362(d)(1) and (d)(4).

On April 28, 2015, Anthony Ross (“Debtor”), Lorene Ross, La Jeanna James Ross and Julianna Amoroso executed a promissory note (the “Note”) in the principal sum of $540,038, which was made payable to Nations Direct Mortgage, LLC dba Motive Lending (“Nations”). [doc. 18, Exh. 1]. That note is secured by a deed of trust (“Deed of Trust”), executed by Debtor, Lorene Ross, La Jeanna James Ross and Julianna Amoroso encumbering the real property located at 20733 Londelius Street, Winnetka, California 91306 (the “Property”). Id. at Exh. 2.

The First Case

After execution of the Note and Deed of Trust, there was a default under the terms of the Note and Deed of Trust. Accordingly, on June 16, 2016, Nations recorded a notice of default and election to sell the Property. On January 23, 2017, Nations recorded a notice of sale, which set a foreclosure sale of the Property for March 22, 2017.

On March 21, 2017, one day before the scheduled foreclosure sale, Debtor filed a voluntary chapter 13 petition, commencing case no. 1:17-bk-10718-VK (the “First Case”). Debtor did not timely file the required schedules and statements and chapter 13 plan. Accordingly, on April 10, 2017, the Court entered an order dismissing the First Case for failure to file information. First Case, doc. 11.

The Second Case

Tentative Ruling:

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9:30 AMAnthony RossCONT... Chapter 13

On May 23, 2017, Debtor filed another voluntary chapter 13 petition, commencing case no. 1:17-bk-11362-VK (the “Second Case”). On July 8, 2017, Debtor filed a motion to convert the Second Case to one under chapter 7. Second Case, doc. 15. On July 10, 2017, the Court entered an order converting the Second Case to one under chapter 7. Second Case, doc. 19.

On August 10, 2017, Nations filed a motion for relief from the automatic stay as to the Property (the “First RFS Motion”). Second Case, doc. 27. In the First RFS Motion, Nations stated that 19 payments had come due and were not made and that the total amount of arrears on the Property was $68,513.49. Debtor did not oppose the First RFS Motion. On September 13, 2017, the Court entered an order granting the First RFS Motion pursuant to 11 U.S.C. §§ 362(d)(1) and (d)(2). Second Case, doc. 35.

On October 17, 2017, the Court entered an order granting Debtor a discharge under 11 U.S.C. § 727. Second Case, doc. 37. On October 18, 2017, the Court closed the case. Second Case, doc. 38.

The Third Case

On October 24, 2017, Lorene Ross filed voluntary chapter 13 petition, commencing case no. 1:17-bk-12850-MT (the “Third Case”). On her schedule A/B, Ms. Ross claimed an interest in the Property and stated that she was the only person who had an interest in the Property. Third Case, doc. 8.

On November 17, 2019, Nations objected to Ms. Ross’ proposed chapter 13 plan because, among other things, the proposed chapter 13 plan did not account for the full amount of arrears on the Property. Third Case, doc. 16. Nations claimed that the arrears on the Property totaled approximately $86,943.26.

On April 3, 2018, Ms. Ross filed a motion to commence the loan modification management program with respect to the Property. Third Case, doc. 30. On April 27, 2018, the Court entered an order granting that motion (the “LMM Order”). Third Case, doc. 34. In the LMM Order, the Court ordered Ms. Ross to make adequate protection payments to Nations in the amount of $1,540.82 per month during the loan modification management period.

On October 25, 2018, Nations filed a motion for relief from the automatic stay as to

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the Property (the “Second RFS Motion”). Third Case, doc. 48. In the Second RFS Motion, Nations stated that 12 postpetition preconfirmation payments on the Property had come due but were not paid, for total postpetition arrears of $39,815.03. Nations also stated that the last three postpetition payments were made in May 2018 and July 2018. Ms. Ross did not oppose the Second RFS Motion. On December 26, 2018, the Court granted the Second RFS Motion pursuant to 11 U.S.C. § 362(d)(1).

On December 19, 2018, the Court entered an order dismissing the Third Case arising from the chapter 13 confirmation hearing. Third Case, doc. 52.

The Pending Case

On April 15, 2019, Nations recorded a notice of sale on the Property, which set a foreclosure sale of the Property for May 9, 2019.

On May 8, 2019, one day before the scheduled foreclosure sale, Debtor filed another voluntary chapter 13 petition, commencing the pending case. In his schedule A/B, Debtor listed an interest in the Property [doc. 1]. Debtor valued that interest at $175,000 and valued the Property at $700,000. In his schedule D, Debtor listed Nations as his only creditor with a secured claim [doc. 1]. In his schedule E/F, Debtor did not list any unsecured claims [doc. 1].

On May 24, 2019, Debtor filed a chapter 13 plan, which proposes to pay $450 per month for months 1 through 12, and then $132,795.89 in month 13 (the “Plan”) [doc. 11]. However, the only claims that Debtor listed to be paid through the Plan are his attorneys’ fees and chapter 13 trustee fees, in the aggregate amount of $18,195.03. In class 6, Debtor indicated that he will surrender the Property subject to approval of a short sale.

On June 26, 2019, the chapter 13 trustee (the “Trustee”) filed an objection to the Plan (the “Objection”) [doc. 17]. In the Objection, the Trustee objects to confirmation of the Plan because, among other things, the Plan appears to be solely to delay mortgage payments to Nations.

On July 17, 2019, Nations filed claim 1-1, asserting a secured claim in the amount of $662,044.53, with prepetition arrears in the amount of $161,783.61.

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On June 28, 2019, Nations filed a motion for relief from the automatic stay as to the Property (the “Motion”) [doc. 18]. In the Motion, Nations requests, among other things, 11 U.S.C. § 362(d)(4) relief based on the multiple bankruptcy filings affecting the Property. Debtor did not timely oppose the Motion.

Discussion

11 U.S.C. § 362(d)(4) provides:

On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—

(4) with respect to a stay of an act against real property under subsection (a), by a creditor whose claim is secured by an interest in such real property, if the court finds that the filing of the petition was part of a scheme to delay, hinder, or defraud creditors that involved either—

(A) transfer of all or part ownership of, or other interest in, such real property without the consent of the secured creditor or court approval; or

(B) multiple bankruptcy filings affecting such real property.

If recorded in compliance with applicable State laws governing notices of interests or liens in real property, an order entered under paragraph (4) shall be binding in any other case under this title purporting to affect such real property filed not later than 2 years after the date of the entry of such order by the court, except that a debtor in a subsequent case under this title may move for relief from such order based upon changed circumstances or for good cause shown, after notice and a hearing. Any Federal, State, or local governmental unit that accepts notices of interests or liens in real property shall accept any certified copy of an order described in this subsection for indexing and

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9:30 AMAnthony RossCONT... Chapter 13recording.

The Court concludes that Debtor’s filing of the petition in this chapter 13 case was part of a scheme to delay, hinder, or defraud creditors that involved multiple bankruptcy filings affecting the Property. This is Debtor’s third bankruptcy case affecting the Property, and the fourth bankruptcy case overall affecting the Property. Two of those bankruptcy cases, both filed by Debtor, were filed one day before a scheduled foreclosure sale. Further, Debtor has continued to be delinquent on his deed of trust payments for loans secured by the Property. The foregoing facts justify relief from the automatic stay and the provision of in rem relief pursuant to 11 U.S.C. §§ 362(d)(1) and (d)(4).

The co-debtor stay of 11 U.S.C. § 1201(a) and § 1301(a) is terminated, modified or annulled as to the co-debtor, on the same terms and conditions as to the debtor.


Nations must submit an order within seven (7) days.

Note: No response has been filed. Accordingly, no court appearance by Nations is required. Should an opposing party file a late opposition or appear at the hearing, the Court will determine whether a further hearing is required and Nations will be so notified.

Party Information

Debtor(s):

Anthony Ross Represented ByR Grace Rodriguez

Trustee(s):


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9:30 AMKaliston Jose Nader1:18-11580 Chapter 11


DEUTSCHE BANK TRUST COMPANY AMERICASVSDEBTOR


- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Kaliston Jose Nader Represented ByOnyinye N Anyama

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9:30 AMFinCabiz, Inc.1:19-11386 Chapter 11


JPMORGAN CHASE BANK, NAVSDEBTOR

37Docket

On July 16, 2019, the Court entered an order denying the debtor's motion to continue

the automatic stay (the "Order") [doc. 36]. To the extent that the automatic stay has

not already fully terminated as to the real property at issue, the Court will grant relief

under 11 U.S.C. § 362(d)(1).

Deny request for relief under 11 U.S.C. § 362(d)(4). Movant has not made a prima

facie case that the filing of the petition in this case was part of a scheme to delay,

hinder, or defraud creditors.

Movant must submit order within seven (7) days.


Tentative Ruling:

Party Information

Debtor(s):

FinCabiz, Inc. Represented ByJavier H Castillo

Movant(s):

JPMorgan Chase Bank, National Represented ByMerdaud Jafarnia

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9:30 AMFinCabiz, Inc.CONT... Chapter 11

Nancy L LeeGregory K Jones

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9:30 AMNoriel Estrellado Alibutod and Edna Tan Alibutod1:11-21106 Chapter 7

#21.00 Order to show cause why a representative of L & F Development, LLC should not be held in contempt for knowingly violating the discharge injunction

0Docket

For the reasons discussed below, the Court will grant the motion.

I. BACKGROUND

In 2006, L & F Development, LLC ("L&F") apparently entered into a contract with Noriel Estrellado Alibutod and Edna Tan Alibutod (together, the "Debtors") and agreed to construct a residence on real property owned by the Debtors in Marion County, Florida (the "2006 Contract") [doc. 48, Exh. 5]. During construction of the residence, the Debtors decided not to go forward with the project. Subsequently, there was a foreclosure sale of the property [Declaration of Noriel Alibutod "Alibutod Decl.," ¶ 2].

On June 2, 2008, L&F filed a complaint in the Circuit Court for Marion County, Florida against the Debtors and Fifth Third Bank (the "Bank") alleging that the Bank had not disbursed certain construction funds to them in connection with the Debtors’ project, and as a result, the Debtors were responsible for the payment pursuant to the terms of the 2006 Contract (the "State Court Action") [doc. 48, Exh. 5]. On July 17, 2015, L&F obtained an amended final judgment in the State Court Action in the amount of $105,787.43 against the Debtors nunc pro tunc as of August 9, 2010 (the "Judgment") [doc. 48, Exh. 1]. [FN1].

On September 19, 2011, the Debtors filed a voluntary chapter 7 petition [doc. 1]. In their schedule F, the Debtors listed two unsecured claims in the aggregate amount of $237,522 for a future deficiency claim from the foreclosure [doc. 1, p. 24]. However, the Debtors did not list L&F as holding an unsecured claim. Further, the Debtors did not list any foreclosures within one year before the petition date, and they did not list the State Court Action as a suit or administrative proceeding to which they were a

Tentative Ruling:

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9:30 AMNoriel Estrellado Alibutod and Edna Tan AlibutodCONT... Chapter 7

party within one year before the petition date. Accordingly, L&F may have had no knowledge of the Debtors’ bankruptcy filing.

On October 25, 2011, the chapter 7 trustee filed a report of no distribution. Accordingly, the chapter 7 trustee did not administer any assets of the bankruptcy estate for the benefit of creditors. Also, because no assets were administered, the Court did not set a deadline for filing proofs of claim. On December 27, 2011, the Debtors were granted a discharge [doc. 14]. On January 26, 2012, the Debtors’ bankruptcy case was closed [doc. 16].

On October 26, 2016, through its local counsel, Ronald A. Norman, L&F filed an application in in the Superior Court of California, County of Los Angeles, for entry of judgment based on the Judgment [doc. 48, Exh. 1]. On November 1, 2016, the superior court entered judgment against the Debtors in the amount of $105,787.43 plus $6,712.13 in interest and $435.00 in fees (the "Sister-State Judgment") [doc. 48, Exh. 1].

Subsequently, the Debtors were advised of the Sister-State Judgment. On December 20, 2016, the Debtors sent a letter to Mr. Norman advising him that their personal liability for the Judgment and Sister-State Judgment was discharged in their bankruptcy case. Alibutod Decl., ¶ 2. With the letter, the Debtors enclosed a copy of the discharge order and their Schedule F [doc. 48, Exh. 2]. According to the Debtors, Mr. Norman did not respond to the letter. Alibutod Decl., ¶ 2.

In March 2017, the Debtors attempted to access their checking and savings accounts at Bank of America; they discovered that a levy in the amount of $5,693.77, in favor of L&F, had been placed on their monies. Alibutod Decl., ¶ 3.

On March 23, 2017, Debtors retained David Hagen as counsel to assist them in recovering the monies levied from their accounts [Declaration of David S. Hagen, "Hagen Decl.," ¶ 4]. That same day, Mr. Hagen contacted L&F’s principal via email [doc. 48, Exh. 4]. In the emails, Mr. Hagen notified L&F of the Debtors’ bankruptcy filing and subsequent discharge. Id. Mr. Hagen explained that the Sister-State Judgment and levy of the Debtors’ bank accounts were violations of the permanent injunction created by the discharge. Id. L&F’s principal responded that because Debtors did not identify L&F as a creditor in their bankruptcy filings, L&F’s claim

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was not discharged. Id. Mr. Hagen replied, citing In re Beezley, 994 F.2d 1433 (9th Cir. 1993). Mr. Hagen explained that even a nonscheduled creditor was discharged in a no-asset case, and that L&F’s claim was not one which is excepted from discharge under 11 U.S.C. § 523. Id.

On March 27, 2017, the Debtors filed a Motion to Reopen Bankruptcy Case to File OSC re Contempt (the "Motion to Reopen") [doc. 17]. On April 17, 2017, L&F filed an opposition to the Motion to Reopen [doc. 19]. On May 18, 2017, the Court entered an order reopening the case for the limited purpose of filing a motion for contempt for violation of the discharge injunction under 11 U.S.C. § 524 [doc. 26].

On May 22, 2017, the Debtors filed a Motion for an Order to Show Cause Why L & F Development, LLC Should Not Be Held in Contempt for Knowingly Violating the Discharge Injunction [doc. 28]. The Debtors did not properly serve that motion.

On May 30, 2019, Debtors filed a Motion for an Order to Show Cause Why L & F Development, LLC Should Not Be Held in Contempt for Knowingly Violating the Discharge Injunction (the "Motion") [doc. 48]. In the Motion, the Debtors request that the Court hold L&F in civil contempt under § 105(a) for knowingly violating the discharge injunction. The Debtors request sanctions against L&F for, among other things: (a) attorneys’ fees and costs in addressing the discharge violation, which totaled $2,625 as of May 12, 2017; (b) recovery of monies levied from the Debtors’ bank accounts totaling $5,693.77; and (c) incidental damages. The Debtors also request that the Court impose a coercive fine of at least $10,000, payable to the Debtors for each month that L&F fail to comply with 11 U.S.C. §§ 524 and 105. The Debtors properly served the Motion on L&F and Mr. Norman. L&F did not timely oppose the Motion.

Accordingly, on June 12, 2019, the Court issued an Order to Appear and Show Cause Why a Representative of L & F Development, LLC Should Not Be Held in Contempt for Knowingly Violating the Discharge Injunction (the "OSC") [doc. 52]. In the OSC, the Court ordered L&F to file and serve a written explanation, if any, by July 17, 2019, why it should not be held in contempt for obtaining the Judgment, Sister-State Judgment and levying the Debtors’ bank accounts. L&F did not timely respond to the OSC.

II. DISCUSSION

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A. Discharge Injunction Violation

Pursuant to 11 U.S.C. § 524(a)—

A discharge in a case under this title—

(1) 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 section 727, 944, 1141, 1228, or 1328 of this title, whether or not discharge of such debt is waived;

(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived; and

(3) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect or recover from, or offset against, property of the debtor of the kind specified in section 541(a)(2) of this title that is acquired after the commencement of the case, on account of any allowable community claim, except a community claim that is excepted from discharge under section 523, 1228(a)(1), or 1328(a)(1), or that would be so excepted, determined in accordance with the provisions of sections 523(c) and 523(d) of this title, in a case concerning the debtor's spouse commenced on the date of the filing of the petition in the case concerning the debtor, whether or not discharge of the debt based on such community claim is waived.

Section 727(b) of the Bankruptcy Code states in part: ‘Except as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter [i.e., the date of the bankruptcy filing]....’ ‘The operative word is ‘all’. There is nothing in Section 727 about whether the debt is or is not scheduled. So far as that section is concerned, a pre-bankruptcy debt is discharged, whether or not it is scheduled.’" In re Beezley, 994 F.2d 1433, 1436 (9th Cir. 1993) (quoting In re Mendiola, 99 B.R. 864, 865 (Bankr. N.D. Ill. 1989)). "Thus, unless section 523 dictates otherwise, every prepetition debt becomes discharged under section 727." Id.

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The Ninth Circuit Court of Appeals explained the reasoning behind its holding in Beezley as follows:

The critical point here is that in most cases filed under Chapter 7 (i.e., no asset, no bar date cases), "the date to file claims is never set and thus § 523(a)(3)(A) is not triggered." In re Walendy, 118 B.R. 774, 775 (Bankr.C.D.Cal.1990). That is, in a no asset, no bar date case, section 523(a)(3)(A) is not implicated "because there can never be a time when it is too late ‘to permit timely filing of a proof of claim.’ " Mendiola,99 B.R. at 867. See In re Tyler, 139 B.R. 733, 735 (D.Colo.1992); In re Peacock, 139 B.R. 421, 424 (Bankr.E.D.Mich.1992); Walendy, 118 B.R. at 776.

"Thus, in the typical no asset Chapter 7 case, where the no dividend statement of [rule] 2002(e) is utilized by the clerk and no claims bar date set, the prepetition dischargeable claim of an omitted creditor, being otherwise unaffected by § 523, remains discharged. In other words, in the typical Chapter 7 case, the debtor's failure to list a creditor does not, in and of itself, make the creditor's claim nondischargeable." Corgiat, 123 B.R. at 391. Stated differently, where section 523 does not except a prepetition debt from discharge, the debt remains within the scope of the discharge afforded by section 727. Scheduling, per se, is irrelevant. See Mendiola, 99 B.R. at 867 ("since Section 523(a)(3)(A) does not apply, the debts the Debtor seeks to add to the schedules are already discharged, even though they were not listed or scheduled"); accord American Standard Ins. Co. v. Bakehorn,147 B.R. 480, 487 (N.D.Ind.1992); Tyler, 139 B.R. at 735; Stecklow,144 B.R. at 315; Tucker, 143 B.R. at 334; Peacock, 139 B.R. at 424; *1437 Thibodeau, 136 B.R. at 8. Since dischargeability is unaffected by scheduling in a no asset, no bar date case, "reopening the case merely to schedule the debt is for all practical purposes a useless gesture." In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); accord American Standard, 147 B.R. at 483 (of "no legal effect"); Stecklow, 144 B.R. at 317 ("futile"); Tucker, 143 B.R. at 334 ("unnecessary" and "unwarranted"); Peacock, 139 B.R. at 422 ("pointless"); Thibodeau,

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9:30 AMNoriel Estrellado Alibutod and Edna Tan AlibutodCONT... Chapter 7136 B.R. at 10 ("meaningless").

Id., at 1436-37.

Pursuant to the above cited authorities, even though the Debtors did not list L&F’s claim in their schedules and statements, the Debtors’ personal liability for the Judgement and the Sister-State Judgment was discharged in the Debtors’ bankruptcy case. The Judgement and the Sister-State Judgment are based on L&F’s pre-petition claim against the Debtors. The Debtors’ bankruptcy case was a no asset case, and L&F’s claim does not appear to be excepted from discharge under 11 U.S.C. 523. Accordingly, L&F’s claim is a discharged debt subject to the permanent discharge injunction under 11 U.S.C. § 524.

By continuing to pursue its pre-petition discharged claim, even after it was put on notice of the Debtors’ bankruptcy filing and discharge, L&F violated this injunction. On December 20, 2016, after receiving notice of the Sister-State Judgment, the Debtors wrote a letter to L&F’s local counsel advising it that they filed bankruptcy and obtained a discharge in 2011. The Debtors enclosed a copy of their Schedule F (which showed the Florida property’s potential deficiency claim), as well as a copy of the discharge order. L&F did not respond to that letter and continued its collection efforts in March 2017.

At this point, L&F should have been aware of the Debtors’ discharge. However, even if L&F was not aware of the Debtors’ filing until the email conversation with Mr. Hagen, once it became aware of the discharge, L&F violated the discharge injunction by then not releasing the levy. Further, once L&F was aware of the discharge, it appears that it did not take any steps to reverse the entry of the Judgment and Sister-State Judgment.

B. Contempt Sanctions

Pursuant to 11 U.S.C. § 105(a), the Court "may issue any order, process, or judgment that is necessary or appropriate to carry out provisions of this title," and take "any action or mak[e] any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process."

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When imposing a sanction under its inherent power, the Court must make a finding of bad faith. In re Count Liberty, LLC, 370 B.R. 259, 271-72 (Bankr. C.D. Cal. 2007) (citing Fjeldsted v. Lien (In re Fjeldsted), 293 B.R. 12, 26 (B.A.P. 9th Cir. 2003)). Bad faith or willful misconduct requires something more egregious than mere negligence or recklessness. In re Dyer, 322 F.3d at 1196. Ignorance or inadvertence is not enough to support a sanction award under the Court’s inherent authority. Id. at 1196-97.

"[T]he contempt authority conferred on bankruptcy courts under § 105(a) is a civil contempt authority. As such, it authorizes only civil sanctions as available remedies." Id. at 1192. "Civil penalties must either be compensatory or designed to coerce compliance." Id.; see In re C.W. Mining Co., 477 B.R. 176, 194-95 (B.A.P. 10th Cir. 2012) ("Sanctions for civil contempt must meet one or both of the following purposes: (1) to compel or ensure compliance with a court order; and (2) to compensate parties for losses caused by the contemnor’s refusal to abide by a court order."); In re Free, 466 B.R. 48, 58 (Bankr. W.D. Penn. 2012) (stating that "remedial sanctions are backward looking and are imposed to compensate the aggrieved party for damages caused by non-compliance" while coercive sanctions "are forward looking and are intended to coerce the defiant party to comply by setting forth penalties in advance which will be imposed for non-compliance"). Bankruptcy courts may not impose criminal or punitive sanctions under § 105(a). In re Dyer, 322 F.3d 1178, 1192 (9th Cir. 2003).

"[C]riminal contempt sanctions are not available under § 105(a). Section 105(a) contains no explicit grant of authority to award punitive damages. Rather, the language of § 105(a) authorizes only those remedies ‘necessary’ to enforce the bankruptcy code. The sanctions associated with civil contempt—that is, compensatory damages, attorney fees, and the offending creditor’s compliance—adequately meet that goal…rendering serious punitive sanctions unnecessary." Dyer, F.3d at 1193.

"The standard for finding a party in civil contempt is well settled: 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." Dyer, 322 F.3d at 1190-91. "Substantial compliance with the terms of a court's order is a defense to civil contempt." In re Count Liberty, LLC, 370 B.R. 259, 275 (Bankr. C.D. Cal. 2007). The party being held in contempt must show that he or she took every reasonable step to

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comply with the Court’s order. Stone v. City & Cnty. of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992) (citing to Sekaquaptewa v. MacDonald, 544 F.2d 396, 404 (9th Cir. 1976)); see also Count Liberty, at 275 ("To establish substantial compliance, the contemnor must show that he took all reasonable steps within his power to comply.").

Here, there is sufficient evidence of bad faith to support a finding of civil contempt sanctions. On two separate occasions, L&F’s local counsel and L&F’s principal were notified of the violation the discharge injunction. Despite this notice, L&F did nothing to reverse its violations. Thus, there is clear and convincing evidence of L&F’s awareness of the Debtors’ discharge, and L&F’s failure to comply with the discharge injunction. Further, L&F failed to respond to the Motion.

As such, the Court will hold L&F in civil contempt for its discharge injunction violation and order L&F to pay $8,318.77 in sanctions to the Debtors. The $8,318.77 consists of $2,625 in attorneys’ fees incurred as of May 12, 2017, for prosecuting the discharge violation, and $5,693.77 as recovery of the monies levied from the Debtors’ bank accounts.

If the Debtors wish to seek additional sanctions for attorneys’ fees incurred after May 12, 2017, the Debtors’ counsel must provide billing records supported by a declaration demonstrating any additional fees and costs incurred in prosecuting the violation. The Court will not award any incidental damages.

At this time, the Court will not impose a coercive fine. If L&F fails to comply with the order within 30 days after it is entered and served on L&F, the Debtors may seek an additional coercive fine.

III. CONCLUSION

For the reasons discussed above, the Court will grant the Motion.

The Debtors must submit the order within seven (7) days.

Note: No response has been filed. Accordingly, no court appearance by the Debtors

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is required. Should an opposing party file a late opposition or appear at the hearing, the Court will determine whether further hearing is required, and the Debtors will be so notified.

FOOTNOTES

1. The parties did not provide evidence of the date of the original judgment. However, presumably, the original judgment was entered on August 9, 2010, the date of the nunc pro tunc effectiveness.

Party Information

Debtor(s):

Noriel Estrellado Alibutod Represented ByDavid S Hagen

Joint Debtor(s):

Edna Tan Alibutod Represented ByDavid S Hagen

Trustee(s):

Diane C Weil (TR) Pro Se

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1:30 PMColorFX, Inc.1:17-10830 Chapter 11

Post Confirmation Committee of Unsecured Creditors v. J J Foil Company, Adv#: 1:19-01023

#22.00 Status conference re: complaint to avoid and recover preferential transfers and to disallow claims

fr. 5/15/19

1Docket

The Court will continue this status conference to 2:30 p.m. on August 21, 2019, to be held with the hearing on the plaintiff's motion for default judgment [doc. 11].

The plaintiff's appearance on August 7, 2019 is excused.

Tentative Ruling:

Party Information

Debtor(s):

ColorFX, Inc. Represented ByLewis R LandauDaren M Schlecter

Defendant(s):

J J Foil Company, Inc. Pro Se

Plaintiff(s):

Post Confirmation Committee of Represented ByRonald Clifford

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1:30 PMColorFX, Inc.1:17-10830 Chapter 11

Post Confirmation Committee of Unsecured Creditors v. Printing Industries Adv#: 1:19-01028

#23.00 Status conference re: complaint to avoid and recover preferential transfers and to disallow claims

fr. 5/22/2019;

1Docket

The Court will continue this status conference to 2:30 p.m. on August 21, 2019, to be held with the hearing on the plaintiff's motion for default judgment [doc. 11].

The plaintiff's appearance on August 7, 2019 is excused.

Tentative Ruling:

Party Information

Debtor(s):

ColorFX, Inc. Represented ByLewis R LandauDaren M Schlecter

Defendant(s):

Printing Industries Benefit Trust Pro Se

Plaintiff(s):

Post Confirmation Committee of Represented ByRonald Clifford

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1:30 PMChristopher Anderson1:18-11488 Chapter 7

Gottlieb v. Biddle et alAdv#: 1:19-01044

#24.00 Status conference re: first amended complaint to avoid lien; to avoidand recover raudulent transfer; to preserve avoided lien for estate; to recover damages for usury; to avoid and recover preference payments; to determine extent and validity of lien

fr. 6/12/19

7Docket

Parties should be prepared to discuss the following:

Deadline to complete discovery: 12/31/19.

Deadline to file pretrial motions: 1/31/20.

Deadline to complete and submit pretrial stipulation in accordance with Local Bankruptcy Rule 7016-1: 2/19/20.

Pretrial: 1:30 p.m. on 3/4/20.

In accordance with Local Bankruptcy Rule 7016-1(a)(4), within seven (7) days after this status conference, the plaintiff must submit a Scheduling Order.

If any of these deadlines are not satisfied, the Court will consider imposing sanctions against the party at fault pursuant to Local Bankruptcy Rule 7016-1(f) and (g).

Tentative Ruling:

Party Information

Debtor(s):

Christopher Anderson Represented ByDaniel King

Defendant(s):

Susan Biddle Pro SePage 39 of 638/6/2019 5:30:46 PM



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1:30 PMChristopher AndersonCONT... Chapter 7

Susan Biddle, Trustee of the Biddle Pro Se

Plaintiff(s):

David K. Gottlieb Represented ByPeter A Davidson

Trustee(s):

David Keith Gottlieb (TR) Represented ByPeter A DavidsonHoward Camhi

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1:30 PMMaryam Hadizadeh1:18-11900 Chapter 7

Goldman v. Pavehzadeh et alAdv#: 1:18-01131

#25.00 Pre-trial conference re complaint: (1) for declaratory relief;(2) sale of interest of co-owner in property of the estate;(3) turnover of property of the estate [11U.S.C. §§ 363(h) and 542]

fr. 6/12/19

1Docket *** VACATED *** REASON: Order ent. continuing hrg to 9/18/19 at 1:30 p.m. - jc

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Maryam Hadizadeh Represented ByStella A Havkin

Defendant(s):

Houshang Pavehzadeh Represented ByJoel S Seidel

Mona Soleimani Pro Se

Plaintiff(s):

Amy L. Goldman Represented ByTodd A FrealyAnthony A Friedman

Trustee(s):

Amy L Goldman (TR) Represented ByTodd A FrealyAnthony A Friedman

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1:30 PMMaryam HadizadehCONT... Chapter 7

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1:30 PMElizabeth Y. Zaharian1:18-12785 Chapter 11

Strategic Funding Source, Inc. v. Armand Zaharian et alAdv#: 1:19-01010

#26.00 Status conference re: complaint to determine nondischargeabiltyof debt

fr. 4/24/19 (stip); 6/12/19(stip)

Stip to continue filed 7/25/19

1Docket *** VACATED *** REASON: Order approving stip entered 7/29/19. Hearing continued to 9/18/19 at 1:30 PM.

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Elizabeth Y. Zaharian Represented ByRaymond H. Aver

Defendant(s):

Armand Zaharian Pro Se

Elizabeth Y. Zaharian Pro Se

Plaintiff(s):

Strategic Funding Source, Inc. Represented ByBrian T Harvey

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1:30 PMAndrew Marc Pitsicalis1:19-10062 Chapter 11

Experience Hendrix, LLC et al v. PitsicalisAdv#: 1:19-01040

#27.00 Status conference re: complaint to determine the non-dischargeability of a debt

fr. 6/12/19

Stip to continue filed 8/5/19

1Docket *** VACATED *** REASON: Order approving stip entered entered 8/5/19. Hearing is continued to 8/21/19 at 1:30 PM.

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Andrew Marc Pitsicalis Pro Se

Defendant(s):

Andrew Marc Pitsicalis Pro Se

Plaintiff(s):

Experience Hendrix, LLC Represented ByJason D Strabo

Authentic Hendrix, LLC Represented ByJason D Strabo

Trustee(s):

Heide Kurtz (TR) Represented ByLei Lei Wang Ekvall

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1:30 PMCoast to Coast Holdings, LLC1:19-10112 Chapter 11

Coast to Coast Holdings, LLC v. LeonardiAdv#: 1:19-01045

#28.00 Status Conference re: Defendant Joseph Leonardi's Counterclaim to complaint of Coast to Coast Holdings LLC 1. Alter ego allegations2, Fraud3. Breach of contract4. Breach of oral contract5. Conversion6. Injunctive relief7. Quiet title8. Unjust enrichment9. Jury trial demanded

6Docket *** VACATED *** REASON: Previously continued to 1:30 p.m. on 8/21/19.

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Coast to Coast Holdings, LLC Represented ByJohn-Patrick M FritzDavid B Golubchik

Defendant(s):

Joseph Leonardi Pro Se

Plaintiff(s):

Coast to Coast Holdings, LLC Represented ByJohn-Patrick M Fritz

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1:30 PMSergik Avakian1:19-10509 Chapter 7

XMI FINANCIAL SERVICES, LLC, a Limited Liability C v. AvakianAdv#: 1:19-01066

#29.00 Status conference re complaint

1Docket *** VACATED *** REASON: Order transfering case to Los Angeles Division entered 6/17/19

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Sergik Avakian Represented ByMatthew D Resnik

Defendant(s):

Sergik Avakian Pro Se

Plaintiff(s):

XMI FINANCIAL SERVICES, Represented ByStephen E Jenkins

Trustee(s):

Amy L Goldman (TR) Pro Se

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1:30 PMLynn Patricia Wolcott1:19-10537 Chapter 7

Charles Hanne, an individual et al v. WolcottAdv#: 1:19-01067

#30.00 Status conference re: complaint for non-discharge of debt

1Docket

Unless an appearance is made at the status conference, the status conference is continued to 1:30 p.m. on October 23, 2019.

It appears that the plaintiffs have not requested an entry of default under Local Bankruptcy Rule 7055-1(a) after their original request was denied. The plaintiffs must submit Local Bankruptcy Rule Form F 7055-1.1.Req.Enter.Default, "Request for Clerk to Enter Default Under LBR 7055-1(a)."

If the plaintiffs will be pursuing a default judgment pursuant to Local Bankruptcy Rule 7055-1(b), the plaintiffs must serve a motion for default judgment (if such service is required pursuant to Fed. R. Bankr. P. 7055, Fed. R. Civ. P. 55(b)(2) and/or Local Bankruptcy Rule 7055-1(b)(1)(D)) and must file that motion by October 1, 2019.

If the plaintiffs will be seeking to recover attorneys' fees, the plaintiffs must demonstrate that the award of attorneys' fees complies with Local Bankruptcy Rule 7055-1(b)(4).

The plaintiffs' appearance on August 7, 2019 is excused.

Tentative Ruling:

Party Information

Defendant(s):

Lynn Patricia Wolcott Pro Se

Plaintiff(s):

Charles Hanne, an individual Represented ByReilly D Wilkinson

Lou Rosenberg, an individual Represented By

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1:30 PMLynn Patricia WolcottCONT... Chapter 7

Reilly D WilkinsonReilly D Wilkinson

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2:30 PMJorge Alberto Romero II1:18-10385 Chapter 7

Acevedo v. Romero IIAdv#: 1:18-01057

#31.00 Motion for summary judgment

fr. 6/19/19

43Docket

For the reasons discussed below, the Court will grant the motion.

I. BACKGROUND

A. State Court Proceedings

On July 21, 2009, Carlos Acevedo ("Plaintiff") filed an amended complaint against, Jorge Romero Investments, Inc. ("JRI"), Global Capital Investments, Inc. ("GCI"), Jorge Romero ("Romero") and Jorge Romero II ("Debtor") and Alejandro Soto ("Soto") (JRI, GCI, Romero, Debtor and Soto collectively, "Defendants") in the Superior Court for the State of California, County of Los Angeles (the "State Court Complaint") [Request for Judicial Notice ("RJN"), doc. 43, Exh. 1]. In the State Court Complaint, Plaintiff alleged two causes of action against Defendants: breach of contract and fraud. The two claims in the State Court Complaint arose from two agreements entered into between Plaintiff and Defendants in 2007 and 2008 (the "Agreements"), under which Plaintiff invested money in JRI and GCI [Statement of Uncontroverted Facts ("SUF"), doc. 57, ¶ 4].

As concerns the breach of contract claim, Plaintiff alleged that Defendants refused to perform their duties under the Agreements, despite Plaintiff’s demands for payment. As concerns the fraud allegations, the State Court Complaint includes the following allegations:

29. On or about July 22nd, 2007, [sic] ROMERO and SOTO, on their own behalf and on behalf of JRI induced ACEVEDO into investing with them

Tentative Ruling:

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2:30 PMJorge Alberto Romero IICONT... Chapter 7based on the representation that they had specific knowledge of outstanding opportunities for a guaranteed high rate of return on ACEVEDOs [sic] money. This misrepresentation was of a material fact and was essential to the analysis by ACEVEDO of whether to enter into the AGREEMENT. If ACEVEDO had known the truth, as opposed to the misrepresentations by ROMERO and SOTO, he would not have entered into the AGREEMENT.

30. On February 23, 2088 ROMERO II, on his own behalf and on behalf of GCI induced ACEVEDO into investing with him based on the representation that he had specific knowledge of outstanding opportunities for a guaranteed high rate of return on ACEVEDOs [sic] money. This misrepresentation was of a material fact and was essential to the analysis by ACEVEDO of whether to enter into the AGREEMENT. If ACEVEDO had known the truth, as opposed to the misrepresentations by ROMERO II, he would not have entered into the AGREEMENT.

31. Defendants gave the false information to ACEVEDO in efforts to induce ACEVEDO into entering into the AGREEMENT and investing his money with them. At the time Defendants gave these guarantees they knew that they were false and never intended to pay ACEVEDO the promised returns. The knowingly false statements were solely intended to induce ACEVEDO to enter into the AGREEMENTS[.]

32. ACEVEDO justifiably relied on the representations of Defendants in entering into the AGREEMENT in that Defendants were in a position of knowledge as investment advisors.

33. As a direct result of ACEVEDO’s reliance on the false statements made by Defendants, ACEVEDO signed the AGREEMENTS and gave the money to defendants.

34. Defendants refused, and continue to refuse, to pay the returns promised to ACEVEDO under the AREEMENTS, or any money at all to which ACEVEDO is entitled. As a result of that refusal ACEVEDO has been damaged in an amount according to proof but in excess of two hundred and fifty thousand dollars ($250,000.00.)

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2:30 PMJorge Alberto Romero IICONT... Chapter 7

35. The knowingly false statements of ROMERO, ROMERO II and SOTO were intended to cause injury to ACEVEDO and were, therefore made with malice entitling ACEVEDO to punitive damages.

36. The knowingly false statements made by ROMERO, ROMERO II and SOTO were concealments of material facts known to Defendants with the intention of depriving ACEVEDO or property rights and legal rights, thereby entitling ACEVEDO to punitive damages.

1. Trial Judgment

On August 23, 2010, the state court conducted a trial on the merits for all claims alleged in the State Court Complaint, including the claim for fraud. SUF, ¶ 5, RJN, Exh., 2. Romero was the only defendant who answered and appeared at trial. RJN, Exh. 3. At the trial, Plaintiff introduced as evidence, among other things, a letter dated September 30, 2008 from Debtor. SUF, ¶ 6, RJN, Exh. 2, p. 2. According to the trial minutes [RJN, Exh. 2], Plaintiff marked for identification two letters dated September 30, 2008: a letter from GCI to investors, which is signed by Debtor on behalf of GCI (the "GCI Letter") and a letter from Debtor to Plaintiff. However, it appears that only the GCI Letter was introduced as evidence at trial. RJN, Exh. 2, p. 3.

On October 08, 2010, the state court entered judgement for $110,000 against Romero for breach of contract and fraud (the "Trial Judgement"). RJN, Exh. 3. In the Trial Judgment, the state court made findings on each allegation in the State Court Complaint. Although the Trial Judgment was only against Romero on the breach of contract claim, the state court found that paragraphs 22-25 in the State Court Complaint, which alleged, among other things, that Debtor refused to pay Plaintiff in direct breach of the Agreements, were true. RJN, Exh. 3, p. 2. The state court also found that Plaintiff’s damages were $110,000.00. Regarding the fraud claim, the state court determined that paragraphs 29 through 36 of the State Court Complaint were true, except that Romero was the only person who made the misrepresentations. RJN, Exh. 3, p. 2.

2. Default Judgment

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On May 12, 2011, the state court entered a default judgment in the amount of $110,000.00 against Debtor, Soto and GCI for failure to appear (the "Default Judgment"). RJN, Exh. 4. Specifically, the state court stated, "Plaintiff has demonstrated an adequate basis for his claim against the defaulting Defendants."

B. Adversary Proceeding

1. The First Amended Complaint

On February 13, 2018, Debtor filed a voluntary chapter 7 petition. On May 15, 2018, Carlos Acevedo ("Plaintiff") filed a complaint against Defendant, requesting nondischargeability of the debt owed to him pursuant to 11 U.S.C. § 523(a)(2). On July 20, 2018, Plaintiff filed a first amended complaint (the "FAC") [doc. 14], which is the operative complaint. In relevant part, the FAC includes the following allegations:

In July 2007, Debtor and Romero advertised two investment companies: JRI and GCI. Debtor acted as the president of JRI and Global. Defendant advertised his companies to friends and acquaintances and promised an 8.33% monthly interest for any investments made with the companies. According to Debtor, the lucrative monthly interest was possible because of recently discovered gold in Africa.

On March 1, 2008, Plaintiff signed a contract with Debtor for the sum of $110,000. Debtor deposited part of the $110,000 into an account bearing Debtor’s signature. In September 2008, Debtor sent Plaintiff the GCI Letter stating that all of his assets had been frozen by the United States Securities and Exchange Commission (the "SEC"), and that his companies were under investigation for certain transactions. Nevertheless, Debtor assured Plaintiff that the assets were secured and would be returned to investors "very soon."

In May 2009, Plaintiff contacted the SEC to inquire about the status of the frozen assets. The SEC informed Plaintiff that it had never intervened with GCI and did not know of any individual with Debtor’s name. After Plaintiff contacted Debtor and Romero about the SEC’s

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2:30 PMJorge Alberto Romero IICONT... Chapter 7response, Debtor and Romero cut off all contact with Plaintiff.

Plaintiff then filed the State Court Complaint. During the state court action, Plaintiff discovered that the California Corporation Commissioner uncovered that Romero had engaged in a Ponzi Scheme. The state court found Debtor and Romero liable for breach of contract and fraud and awarded Plaintiff $110,000.

Debtor wrote the GCI Letter knowing that the information therein was false and with the sole purpose to mislead Plaintiff. At the state court trial, Romero was unable to show what happened to Plaintiff’s funds. Now Debtor is attempting to avoid liability by filing for bankruptcy protection.

FAC, pp. 2-5. To the FAC, Plaintiff attached an investment agreement between Plaintiff and GCI, which appears to be signed by Debtor, a number of checks issued by Plaintiff to GCI. the GCI Letter and the State Court Complaint. FAC, Exhs. A-D. Plaintiff also attached a statement by the California Corporations Commissioner filed in an action against JRI, Romero and a third entity (the "Commissioner Action"). FAC, Exhibit E. Debtor was not a party to the Commissioner Action. Finally, Plaintiff attached a tentative decision by the state court on the State Court Complaint (the "Tentative Decision") and an abstract of judgment in favor of Plaintiff recorded against Debtor based on the Default Judgment. FAC, Exhibits F-G.

2. The Motion to Dismiss

On August 22, 2018, Debtor filed a motion to strike and, in the alternative, a motion to dismiss (the "August 2018 Motion") [doc. 19], asserting that the Plaintiff’s amended complaint was improperly filed and therefore should be stricken under F.R.C.P. 12(f) and, in the alternative, that the amended complaint fails on its face to state a claim under 11 U.S.C. 523(a)(2), and therefore should be dismissed under F.R.C. P. 12(b)(6) and F.R.B.P. 7012. On November 02, 2018, the Court denied the August 2018 Motion, but struck from Plaintiff’s amended complaint: (1) the assertions that Romero and Debtor were properly served and summoned to trial and that Romero and Debtor were found liable for breach of contract and fraud; and (2) the attached copy of the Tentative Decision (the "MTD Order") [doc. 32].

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3. The Motion for Summary Judgment

On March 28, 2019, Debtor filed a Motion for Summary Judgment (the "MSJ") [ doc. 43], in which he agrees with Plaintiff that the Trial Judgment is entitled to preclusive effect in this case, but argues that the state court’s finding that Romero is the only person who made misrepresentations precludes Plaintiff from now arguing that Debtor also committed fraud. Debtor also argues that to the extent that Plaintiff has alleged new allegations against him that were not included in the State Court Complaint, any such allegations for fraud are barred by the statute of limitations.

On May 20, 2019, Plaintiff filed an opposition to the MSJ (the "Opposition") [doc. 50]. In the Opposition, Plaintiff argues: (1) that the Tentative Decision, on which the MSJ relies, was barred from use because the MTD Order struck the Tentative Decision from the FAC; (2) that Debtor is misreading the language of the Trial Judgment; and (3) that both the State Court Complaint and the FAC are timely. Specifically, Plaintiff argues that Debtor did not answer the State Court Complaint. As a result, the state court trial only focused on Romero and Soto. According to Plaintiff, the language in the Trial Judgment, "Romero is the only person who made misrepresentations," should be understood to mean only that Soto, who is referenced by name elsewhere in the Trial Judgment, made no misrepresentations.

On May 31, Debtor filed a reply to the Opposition (the "Reply") [doc. 51]. In the Reply, Debtor asserts that: (1) Plaintiff’s belief that the Tentative Decision may not be used in future motions is incorrect; (2) the language used in the Trial Judgment unambiguously states that only non-debtor Romero made misrepresentations; (3) the Default Judgment is dischargeable because it was based on a breach of contract claim; and (4) Plaintiff is raising new allegations of fraud against Debtor that are barred by the statute of limitations.

On July 17, 2019, Plaintiff filed the SUF [doc. 57], and on July 31, 2019, Debtor filed another reply in support of the Motion [doc. 59].

II. DISCUSSION

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2:30 PMJorge Alberto Romero IICONT... Chapter 7A. General Motion for Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure ("Rule") 56, applicable to this adversary proceeding under Federal Rule of Bankruptcy Procedure ("FRBP") 7056, the Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Rule 56; FRBP 7056. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of materialfact." 477 U.S. at 247–48 (emphasis in original).

As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. . . . [S]ummary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. . . .

Id. at 248–50 (internal citations omitted). Additionally, issues of law are appropriate to be decided in a motion for summary judgment. See Camacho v. Du Sung Corp., 121 F.3d 1315, 1317 (9th Cir. 1997).

The initial burden is on the moving party to show that no genuine issues of material fact exist based on "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed. 265 (1986). Once the moving party meets its initial burden, the nonmoving party bearing "the burden of proof at trial on a dispositive issue" must identify facts beyond what is contained in the pleadings that show genuine issues of fact remain. Id., at 324; see also Anderson, 477 U.S. at 256 ("Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.").

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The nonmoving party meets this burden through the presentation of "evidentiary materials" listed in Rule 56, such as depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, and interrogatory answers. Id. To establish a genuine issue, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electrical Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see also Anderson, 477 U.S. at 252 ("The mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient."). Rather, the nonmoving party must provide "evidence of such a caliber that ‘a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.’" U.S. v. Wilson, 881 F.2d 596, 601 (9th Cir. 1989) (quoting Anderson, 477 U.S. at 266).

B. Statute of Limitations

"[A] plaintiff in a bankruptcy adversary proceeding to except a debt from discharge [pursuant to § 523] need only have "established the debt" under state law prior to the bankruptcy; only the dischargeability of the debt need be determined by the bankruptcy court." In re DiBenedetto, 560 B.R. 531, 536 (Bankr. C.D. Cal. 2016). Under California law, "[a]n action for relief on the grounds of fraud or mistake must be commenced within three years." Kline v. Turner, 87 Cal. App. 4th 1369, 1373 (2001).

Here, to the extent that Plaintiff makes any new allegations against Debtor for fraud in the FAC that were not in the State Court Complaint, such allegations are barred by the statute of limitations. As such, in this proceeding, the Court need only determine the preclusive effect of the Default Judgment and Trial Judgment.

C. Issue Preclusion

"A bankruptcy court may rely on the issue preclusive effect of an existing state court judgment …. In so doing, the bankruptcy court must apply the forum state’s law of issue preclusion." In re Plyam, 530 B.R. 456, 462 (B.A.P. 9th Cir. 2015); see also 28 U.S.C. § 1738 (federal courts must give "full faith and credit" to state court judgments). The requirements for issue preclusion in California are:

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(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 against whom preclusion is sought was the same as, or in privity

with, the party to the former proceeding.

In re Harmon, 250 F.3d 1240, 1245 (9th Cir. 2001) (citing Lucido v. Superior Court, 51 Cal. 3d 335, 341 (1990)).

"The party asserting preclusion bears the burden of establishing the threshold requirements." Harmon, 250 F.3d at 1245. "This means providing ‘a record sufficient to reveal the controlling facts and pinpoint the exact issues litigated in the prior action.’" Plyam, 530 B.R. at 462 (quoting 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 allowing the [issue preclusive] effect." Kelly, 182 B.R. at 258.

"The bar is asserted against a party who had a full and fair opportunity to litigate the issue in the first case but lost. DKN Holdings LLC v. Faerber, 61 Cal. 4th 813, 826–27 (2015). "The point is that, once an issue has been finally decided against such a party, that party should not be allowed to relitigate the same issue in a new lawsuit." Id. "Issue preclusion operates ‘as a shield against one who was a party to the prior action to prevent’ that party from relitigating an issue already settled in the previous case." Id. (quoting Rice v. Crow, 81 Cal.App.4th 725, 735 (2000)).

1. Default Judgment

The "express finding" requirement is generally considered when a court is deciding the preclusive effect of a default judgment. See, e.g. Harmon, 250 F.3d at 1248-49. In Harmon, the Ninth Circuit Court of Appeals held that even default judgments have preclusive effect unless: (A) the defendant is unaware of the litigation; and (B) it is not clear that the issues were actually litigated. Harmon, 250 F.3d at 1247. For instance, "a court’s silence concerning a pleaded allegation does not constitute adjudication of the issue." Id.

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Here, the Default Judgment is silent on the basis of the judgment. The state court merely stated, "Plaintiff has demonstrated an adequate basis for his claim against the defaulting Defendants." The Default Judgment does not state whether Plaintiff’s substantiated claim is the breach of contract claim or the fraud claim. Presumably, the Default Judgment is based on the breach of contract claim, because: (1) the amount of damages is the same; and (2) the state court made a finding that Debtor breached the contract. However, it is unclear. As such, the Default Judgment does not have any preclusive effect on this Court.

2. Trial Judgment

As an initial matter, Plaintiff argues that Debtor is barred from introducing the Tentative Decision because the MTD Order struck the Tentative Decision from the FAC. Because the Tentative Decision contradicted the allegations in the FAC, for Plaintiff’s benefit - to eliminate Plaintiff's having to file another amended complaint, the Court decided to strike the conflicting Tentative Decision from the FAC. This does not prevent Debtor from introducing the Tentative Decision or the Trial Judgment to support his position.

Regarding the first element, the fraud issue is identical to the fraud issue decided in the state court action. Both actions arose from the same nexus of facts and relate to the alleged fraud by Debtor and non-debtors that supposedly induced Plaintiff to enter into the Agreements. Further, the elements of fraud under § 523(a)(2)(A) mirror the elements of fraud under California law. In re Younie, 211 B.R. 367, 373-74 (B.A.P. 9th Cir. 1997), aff’d, 163 F.3d 609 (9th Cir. 1998). Accordingly, this element is satisfied.

Regarding the second and third elements, as to whether the fraud issues were actually litigated, the court must either include "express findings" as to the issues, or "the express finding requirement can be waived if the court in the prior proceeding necessarily decided the issue…." Id. "As a conceptual matter, if an issue was necessarily decided in a prior proceeding, it was actually litigated." Id.

Here, the fraud issue was actually litigated and necessarily decided in the state court action. Both Plaintiff and Debtor agree that the state court conducted a trial on the merits for all claims in the State Court Complaint, including the claim for fraud. SUF, ¶ 5. Moreover, the Trial Judgment is not a default judgment, and the trial minutes

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[RJN, Exh. 2] demonstrate that the state court actually litigated Plaintiff’s fraud claim, and necessarily decided the fraud issue, by expressly holding that Romero was the only person that made misrepresentations to Plaintiff. This ruling exonerates Debtor. Under Harmon, because the state court necessarily decided each element of § 523(a)(2)(A) before entering a judgment of fraud against Romero, the state court also actually litigated the fraud issues.

Although Plaintiff argues that the state court’s findings are not clear on whether the state court was referring to Romero or Debtor, the Trial Judgment specifically named Romero and Debtor on page one of the decision and then holds only Romero (not Debtor) liable as to fraud.

Because this Court did not enter the Trial Judgment, this Court does not have the power to amend the Trial Judgment. Further, this Court is not in a position to question how or why the state court entered the Trial Judgment. 28 U.S.C. § 1738 (federal courts must give "full faith and credit" to state court judgments). Plaintiff could have requested the state court amend or clarify the Trial Judgment; he did not. Consequently, for the reasons noted above, the issues before this Court were necessarily decided and actually litigated in the state court action.

Regarding the fourth and fifth elements, the Trial Judgment is final and on the merits, and Plaintiff is the same plaintiff as in the state court action. In the state court action, Plaintiff had a full and fair opportunity to litigate the fraud issue as to Debtor. Plaintiff introduced evidence regarding Debtor’s alleged fraud at the trial on the State Court Complaint, and the state court found that only Romero made misrepresentations. Plaintiff cannot relitigate the fraud issue in this Court. As such, these elements are satisfied.

Judicial economy also mandates application of issue preclusion. Plaintiff prosecuted the State Court Complaint to completion. Because the issues presented in this adversary proceeding were already adjudicated by another court, it would be a waste of judicial resources to conduct a second trial. As a result, the policy considerations set forth by the California Supreme Court mandate application of issue preclusion, and the Court will give the Trial Judgment preclusive effect.

III. CONCLUSION

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For the reasons discussed above, the Court will grant the MSJ.

Debtor must submit the order within seven (7) days.

Party Information

Debtor(s):

Jorge Alberto Romero II Pro Se

Defendant(s):

Jorge Alberto Romero II Represented ByStella A Havkin

Plaintiff(s):

Carlos Acevedo Pro Se

Trustee(s):

David Keith Gottlieb (TR) Pro Se

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2:30 PMJorge Alberto Romero II1:18-10385 Chapter 7

Acevedo v. Romero IIAdv#: 1:18-01057

#32.00 Pretrial conference re: Amended complaint for nondischargeability11 U.S.C. 523a (2) debt obtained through fraud, embezzlement and false pretenses

fr. 09/12/18; 10/31/18; 12/12/18; 5/8/19; 6/19/19

14Docket

See calendar no. 31.

Tentative Ruling:

Party Information

Debtor(s):


Defendant(s):


Plaintiff(s):

Carlos Acevedo Pro Se

Trustee(s):


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2:30 PMAtif Sheikh1:18-11471 Chapter 7

Bars v. SheikhAdv#: 1:18-01116

#33.00 Pretrial conference re complaint to determine dischargeability and in objection to discharge [11 U.S.C. §§727(a)(4)(A)' 523(a) (2)

fr. 1/9/2019; 6/12/19

1Docket

At the prior pretrial conference, the Court noted several issues with the pretrial stipulation filed by the plaintiff [doc. 12], such as: (A) the lack of a signature by the defendant; (B) the inclusion of new issues of law not asserted in the complaint; (C) the fact that the plaintiff indicated a desire to file a motion for leave to amend the complaint; and (D) the failure of the parties to identify their exhibits adequately or to provide summaries of the testimony to be provided by each party.

At that time, the Court continued the pretrial conference to offer the plaintiff an opportuntiy to file a timely motion for leave to amend the complaint, i.e., three weeks before the continued pretrial conference, or to file a properly amended joint pretrial stipulation.

To date, the plaintiff has neither filed a timely motion for leave to amend the complaint, nor cured the deficiencies in the existing pretrial stipulation. Consequently, the Court will continue this pretrial conference to 1:30 p.m. on September 11, 2019.

If, no later than August 21, 2019, the plaintiff does NOT file and serve either a motion for leave to amend the complaint or a pretrial stipulation conforming to Local Bankruptcy Rule 7016-1, the Court will dismiss this adversary proceeding for failure to prosecute.

The Court will prepare an order to show cause why this adversary proceeding should not be dismissed for failure to prosecute.

Tentative Ruling:

Party Information

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2:30 PMAtif SheikhCONT... Chapter 7

Debtor(s):

Atif Sheikh Represented BySteven M Gluck

Defendant(s):

Atif Sheikh Pro Se

Joint Debtor(s):

Naureen Sheikh Represented BySteven M Gluck

Plaintiff(s):

Candace Marie Bars Represented ByDavid C Bernstein

Trustee(s):


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