united states bankruptcy court central district of...

United States Bankruptcy CourtCentral District of California

Judge Victoria Kaufman, PresidingCourtroom 301 Calendar

San Fernando Valley

Wednesday, June 17, 2020 301 Hearing Room

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

#1.00 Motion for relief from stay [RP]

MUFG UNION BANK, N.A.VSDEBTOR

fr. 9/11/19; 11/13/19; 12/4/19; 2/5/20 (stip); 4/29/20

58Docket

- 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

Movant(s):

MUFG Union Bank, N.A, fka Union Represented ByDrew A CallahanJustin S MoyerPietro VellaJonathan C CahillGilbert R YabesJoseph C Delmotte

Trustee(s):

Elizabeth (SV) F Rojas (TR) Pro Se

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9:30 AMTeresa Hernandez1:17-12701 Chapter 13


BAYVIEW LOAN SERVICING, LLCVSDEBTOR

fr: 1/8/20; 2/5/20; 3/4/20; 4/29/20

45Docket

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Teresa Hernandez Represented ByDonald E Iwuchuku

Movant(s):

Bayview Loan Servicing, LLC., as Represented ByRaymond Jereza

Trustee(s):


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9:30 AMAmerigrade Corp.1:20-10543 Chapter 11

#3.00 Amended Motion for relief from stay [UD]

TBB VALLEY INVESTMENTS, LLCVSDEBTOR

fr. 5/20/20

37Docket

Grant pursuant to 11 U.S.C. § 362(d)(2).

On March 5, 2020, the Amerigrade Corp. (“Debtor”) filed a voluntary chapter 11 petition. In its schedule A/B, Debtor indicated it holds an interest in real property located at 13217 Filmore Street, Pacoima, California (the “Property”) [doc. 7]. Debtor represented that the Property was the subject of a foreclosure sale on February 19, 2020, and that “Debtor is working to unwind the sale.”

In its schedule D [doc. 7], Debtor indicates that, among others, Evette Awadalla and Robert Stewart hold junior liens against the Property. In its schedule G [doc. 7], Debtor represents that Olivia Awadalla, Debtor’s president and sole owner, Evette Awadalla and Robert Stewart have unexpired leases as to the Property. As to each of these three leases, Debtor did not indicate the remaining term or the monthly lease obligation.

In its statement of financial affairs [doc. 17], Debtor represents that it received $1,500 in rental income from January 1, 2020 to the petition date, and $11,500 in rental income in 2019. Further, in both of its chapter 11 case status reports filed on April 16, 2020 [doc. 19] and June 4, 2020 [doc. 48], Debtor represents that the rental income it receives is from a different real property than the property at issue.

On April 24, 2020, TBB Valley Investments (“Movant”) filed a motion for relief from stay to proceed with an unlawful detainer action as to the Property (the “Motion”) [doc. 20]. On May 6, 2020, Debtor filed an opposition to that motion (the

Tentative Ruling:

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9:30 AMAmerigrade Corp.CONT... Chapter 11

“Opposition”) [doc. 30]. In the Opposition, among other things, Debtor challenges Movant’s standing to bring the Motion.

On May 20, 2020, the Court held a hearing on the Motion. At the hearing, the Court continued the hearing to June 17, 2020, in order for Movant to cure the deficiencies noted in the Court’s ruling.

On May 22, 2020, Movant filed an amended motion for relief from stay to proceed with an unlawful detainer action as to the Property (the “Amended Motion”) [doc. 37]. Movant served the Amended Motion, notice of the hearing and deadline to file a response on Debtor, Debtor’s counsel, the United States trustee and all creditors.

Attached to the Amended Motion, is a declaration signed by Jeff Brandolino. In his declaration, Mr. Brandolino testifies that Movant is the owner of the Property, and that Movant acquired the Property at a foreclosure sale before Debtor filed its chapter 11 petition.

Also attached to the Amended Motion is the trustee deed upon sale, which indicates that Amber Investments Group, Movant and Recon Investment Fund B LLC purchased the Property at the foreclosure sale held on February 19, 2020 (the “Trustee Deed”) [Exh. A]. The Trustee Deed indicates that Movant has a 40% interest in the Property.

"Stay 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. Hearings on relief from the automatic stay are thus handled in a summary fashion." In re Cini, 2012 WL 2374224, at *9 (Bankr. D. Mont. June 22, 2012); see also Johnson v. Righetti (In re Johnson), 756 F.2d 738, 740 (9th Cir. 1985). As the Court of Appeals for the Ninth Circuit stated in In re Griffin, 719 F.3d 1126, 1128 (9th Cir. 2013):

A proceeding to determine eligibility for relief from a stay only determines whether a creditor should be released from the stay in order to argue the merits in a separate proceeding. Johnson v. Righetti, 756 F.2d 738, 740–41 (9th Cir.1985). Given the limited nature of the relief obtained through this proceeding and because final adjudication of the parties' rights and liabilities is yet to occur, a party seeking stay relief need only establish that it has a

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9:30 AMAmerigrade Corp.CONT... Chapter 11colorable claim to the property at issue. In re Veal, 450 B.R. 897, 914–15 (9th Cir. BAP 2011).

Here, Movant has established that it has a colorable claim to the Property. The Trustee Deed indicates that Movant holds a 40% interest in the Property, which it acquired from a foreclosure sale held on February 19, 2020. In its schedule A/B, Debtor also acknowledges this foreclosure sale.

In the Opposition, Debtor argues, among other things, that the lender on the Property failed to follow several of California’s nonjudicial foreclosure laws, and therefore, the foreclosure sale should be unwound. On a motion for relief from stay, the Court only determines whether the creditor should be released from the stay in order to argue the merits in a separate proceeding. Whether nonjudicial foreclosure laws have been violated is an issue that can be determined by the state court, and Debtor is free to litigate those issues in that forum.

In the Amended Motion, Movant requests relief from the automatic stay under 11 U.S.C. § 362(d)(2). Pursuant to 11 U.S.C. § 362(d)(2):

(d) 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—. . .

(2) with respect to a stay of an act against property under subsection (a) of this section, if—

(A) the debtor does not have an equity in such property; and

(B) such property is not necessary to an effective reorganization;

Pursuant to 11 U.S.C. § 362(g):

(g) In any hearing under subsection (d) or (e) of this section concerning relief from the stay of any act under subsection (a) of this section—

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9:30 AMAmerigrade Corp.CONT... Chapter 11(1) the party requesting such relief has the burden of proof on the issue of the

debtor's equity in property; and

(2) the party opposing such relief has the burden of proof on all other issues.

Because the foreclosure sale occurred prepetition, it appears that Debtor has no equity in the Property. In the Opposition, Debtor argues in a conclusory fashion that the Property is necessary for an effective reorganization. Debtor states that it will renovate and lease the Property.

Debtor’s principal and two lienholders are living in the Property, apparently without making monthly lease payments. At this point, it appears that the Property is not income producing. Moreover, Debtor has not explained nor demonstrated how and when it will fund renovation of the Property, or the positive financial impact of any such renovation. Consequently, Debtor has not met its burden under 11 U.S.C. § 362(g) of showing that the Property is necessary to an effective reorganization.

In light of the foregoing, the Court will grant relief from stay pursuant to 11 U.S.C. § 362(d)(2).

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

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

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

Party Information

Debtor(s):

Amerigrade Corp. Represented ByMatthew D. Resnik

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9:30 AMPeter M. Seltzer1:19-11696 Chapter 7

#4.00 Motion for relief from stay [AN]

HOWARD MISLE, BELMEKO LLC AND MEGHAN KONECNEVSDEBTOR

162Docket

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

Movant may proceed under applicable nonbankruptcy law to enforce its remedies to proceed to final judgment in the nonbankruptcy forum, provided that the stay remains in effect with respect to enforcement of any judgment against the debtor and property of the debtor’s bankruptcy estate.

Movant retains the right to file a proof of claim under 11 U.S.C. § 501 and/or and adversary complaint under 11 U.S.C. § 523 or § 727 in this bankruptcy case.


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):

Peter M. Seltzer Pro Se

Trustee(s):

Diane C Weil (TR) Represented ByDavid Seror

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9:30 AMPeter M. SeltzerCONT... Chapter 7

Jorge A GaitanJessica L Bagdanov

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9:30 AMAlfredo Gonzalez1:19-12928 Chapter 7


NATIONSTAR MORTGAGE LLCVSDEBTOR

56Docket

Grant relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (d)(4).

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.

If recorded in compliance with applicable state laws governing notices of interests or liens in real property, the 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, except that a debtor in a subsequent case under this title may move for relief from the order based upon changed circumstances or for good cause shown, after notice and hearing.

Upon entry of the order, for purposes of Cal. Civ. Code § 2923.5, the Debtor is a borrower as defined in Cal. Civ. Code § 2920.5(c)(2)(C).

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


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:

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9:30 AMAlfredo GonzalezCONT... Chapter 7

Party Information

Debtor(s):

Alfredo Gonzalez Represented ByEric Bensamochan

Trustee(s):

David Keith Gottlieb (TR) Represented ByLaila MasudD Edward Hays

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9:30 AMNasrin Nino1:20-10659 Chapter 7


WELLS FARGO BANK, N.A. VSDEBTOR

Stip to continue filed 5/19/20

28Docket *** VACATED *** REASON: Order approving stip entered 5/21/20. Hearing continued to 9/23/20 at 9:30 am

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Nasrin Nino Represented ByDavid S Hagen

Trustee(s):

David Keith Gottlieb (TR) Represented ByCarmela Pagay

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9:30 AMShalva Tikva1:20-10156 Chapter 13

#7.00 Motion for relief from stay [PP]

DAIMLER TRUSTVS DEBTOR

39Docket *** VACATED *** REASON: Motion withdrawn 5/28/20 - jc

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Shalva Tikva Represented ByMichael R Totaro

Trustee(s):


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9:30 AMArianne Beth Pachter1:18-12939 Chapter 13


NATIONSTAR MORTGAGE LLC DBA MR. COOPERVSDEBTOR

37Docket

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Arianne Beth Pachter Represented ByWilliam G Cort

Trustee(s):


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9:30 AMJohn Goulter1:20-10269 Chapter 13


WILMINGTON SAVINGS FUND SOCIETYVSDEBTOR

22Docket

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

John Goulter Represented ByStella A Havkin

Trustee(s):


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1:30 PMDeborah Lois Adri1:18-10417 Chapter 7

Miller, Chapter 7 Trustee v. Ride on Autos. a California corporationAdv#: 1:20-01019

#10.00 Status conference re: complaint for 1. breach of oral contract;2. money had and received; 3. open book account; 4. accounting; 5. declaratory relief; 6. turnover of property of the estate; 7. avoidance of postpetition transfers; 8. recovery of postpetition transfers; and 9. preservation of postpetition transfers

fr. 4/15/20(stip), 4/29/20

1Docket

The Court will continue this status conference to 1:30 p.m. on August 12, 2020, to allow the plaintiff to obtain approval of the parties' resolution from the Court. If the Court approves the parties' compromise, and the parties file a stipulation to dismiss this adversary proceeding prior to the continued status conference, the Court will take the status conference off calendar.

Appearances on June 17, 2020 are excused.

Tentative Ruling:

Party Information

Debtor(s):

Deborah Lois Adri Represented ByNina Z JavanDaniel J WeintraubJames R Selth

Defendant(s):

Ride on Autos. a California Pro Se

Plaintiff(s):

Elissa D Miller, Chapter 7 Trustee Represented ByCathy Ta

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1:30 PMDeborah Lois AdriCONT... Chapter 7

Trustee(s):

Elissa Miller (TR) Represented ByCathy TaLarry W Gabriel

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1:30 PMNasrollah Gashtili1:18-10715 Chapter 11

VitaVet Labs, Inc. v. GashtiliAdv#: 1:18-01113

#11.00 Status conference re first amended adversary complaint for non-dischargeability and objection to discharge pursuant to:1. 11 U.S.C. sec 523 (a)(2)2. 11 U.S.C. sec 523 (a)(6)3. 11 U.S.C. sec 727 (a)(2)(A)

fr, 12/19/18; 9/18/19; 10/23/19; 1/22/20(stip); 3/4/20(stip);4/29/20

4Docket

The Court will continue this status conference to 1:30 p.m. on July 15, 2020. Prior to that date, if the plaintiff files a declaration that a party has not timely opposed the plaintiff's motion to dismiss pursuant to Local Bankruptcy Rule 9013-1(3)(A) and lodges an order to dismiss this adversary proceeding, the Court will take the continued status conference off calendar.


Tentative Ruling:

Party Information

Debtor(s):

Nasrollah Gashtili Represented ByAndrew Goodman

Defendant(s):

Nasrollah Gashtili Pro Se

Plaintiff(s):

VitaVet Labs, Inc. Represented ByMichael H Raichelson

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1:30 PMChristopher Anderson1:18-11488 Chapter 7

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

#12.00 Pretrial 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; 8/7/19; 4/15/20

STIP TO VACATE P/T CONF FILED 5/28/20 - jc

7Docket *** VACATED *** REASON: Order approving stip entered 6/10/20. Hearing continued to 7/1/20 at 2:30 PM.

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Christopher Anderson Represented ByDaniel King

Defendant(s):

Susan Biddle Pro Se

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 Davidson

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1:30 PMChristopher AndersonCONT... Chapter 7

Howard Camhi

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1:30 PMAntoine R Chamoun1:18-11620 Chapter 7

Seror, Chapter 7 Trustee v. Chamoun et alAdv#: 1:19-01105

#13.00 Status conference re: complaint to avoid fraudulent transfers

fr. 11/20/19

1Docket *** VACATED *** REASON: Continued by Stip to 8/19/20 at 1:30 p.m. - jc

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Antoine R Chamoun Represented ByWilliam H Brownstein

Defendant(s):

Walid R. Chamoun Pro Se

Patricia Chamoun Pro Se

Plaintiff(s):

David Seror, Chapter 7 Trustee Represented ByRichard Burstein

Trustee(s):

David Seror (TR) Represented ByRichard BursteinJorge A Gaitan

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1:30 PMJudy A Scott1:19-12557 Chapter 7

West Medical Center, Inc. v. ScottAdv#: 1:19-01144

#14.00 Pre-trial conference re: first amended complaint objecting to discharge under section 523 of the Bankruptcy Code

fr. 2/5/20; 4/29/20

14Docket

Have the parties exchanged their exhibits?

The Court intends to set this matter for trial at 9:30 a.m. on September 29, 2020. Are each of the parties and their counsel amenable to a physically distanced trial at the courthouse? If so, the Court will allow trial to proceed in person subject to certain requirements, including ordering the parties and their counsel to wear masks when they are not speaking and mandating that all individuals in attendance maintain a distance of six feet from each other.

WITNESS TESTIMONY:

Witness testimony must be presented live in accordance with the Federal Rules of Evidence.

The Court will NOT consider the testimony of any witnesses who were not identified on a party's witness list, and will not consider the testimony of any witness which is not relevant to the issues of fact and law for trial.

EXHIBITS:

The Court will NOT consider any exhibit that was not identified on a party's exhibit list, and will not consider any exhibit which is not relevant to the issues of fact and law for trial.

Tentative Ruling:

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1:30 PMJudy A ScottCONT... Chapter 7

The Court will issue an order incorporating its trial procedures, the related deadlines and the trial date.

Party Information

Debtor(s):

Judy A Scott Represented ByJames G. Beirne

Defendant(s):

Judy A Scott Pro Se

Plaintiff(s):

West Medical Center, Inc. Represented ByAdam Van Susteren

Trustee(s):

David Seror (TR) Pro Se

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1:30 PMDaniel Michael Uzan1:19-13145 Chapter 7

Mitchell et al v. UzanAdv#: 1:20-01035

#15.00 Status conference re: complaint for determination of nondischargeability pursuant to 11 U.S.C. sec 523(a)(2)(A), 523(a)(4) and 523(a)(6)

fr. 5/20/20

1Docket

The Court will set the defendant's motion to dismiss [doc. 8] for hearing at 2:30 p.m. on July 29, 2020. The defendant must file and serve timely notice of the hearing on the plaintiffs.

The Court also will continue this status conference to 2:30 p.m. on July 29, 2020, to be held with the hearing on the motion to dismiss.


Tentative Ruling:

Party Information

Debtor(s):

Daniel Michael Uzan Represented ByMark T Jessee

Defendant(s):

Daniel Michael Uzan Pro Se

Plaintiff(s):

Jason Mitchell Represented ByStella A Havkin

JHM Ventures, a California Represented ByStella A Havkin

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1:30 PMDaniel Michael UzanCONT... Chapter 7

Trustee(s):David Seror (TR) Pro Se

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1:30 PMShawn Sharon Melamed1:20-10069 Chapter 7

Mazakoda, Inc. v. Melamed et alAdv#: 1:20-01046

#16.00 Status conference re: complaint objecting to dischargepursuant to 11 U.S.C. sec 727(3)(3), 727(a)(4)(A); 727(a)(4)(D). and 727(a)(5)

1Docket *** VACATED *** REASON: Another summons issued; new status conference hearing 7/8/20

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Shawn Sharon Melamed Represented ByGiovanni Orantes

Defendant(s):

Jenous Tootian Pro Se

Shawn Sharon Melamed Pro Se

Joint Debtor(s):

Jenous Tootian Represented ByGiovanni Orantes

Plaintiff(s):

Mazakoda, Inc. Represented ByScott E Gizer

Trustee(s):

Amy L Goldman (TR) Represented ByScott E Gizer

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1:30 PMR&S RESEARCH LLC1:20-10129 Chapter 7

Moncayo et al v. R&S RESEARCH LLCAdv#: 1:20-01047

#17.00 Status conference re: complaint objecting to entry of dischargepursuant to 11 U.S.C. sec 727(a) and (c)

1Docket

Pursuant to 11 U.S.C. § 727, the debts of a corporation are not dischargeable in a chapter 7 case. See 11 U.S.C. § 727(a)(1) ("The court shall grant the debtor a discharge, unless... the debtor is not an individual."). Because the debtor will not be receiving a discharge by operation of § 727(a)(1), the plaintiffs' complaint is moot. Consequently, the Court will dismiss this adversary proceeding.

The Court will prepare the order.

Tentative Ruling:

Party Information

Debtor(s):

R&S RESEARCH LLC Represented ByAllan D Sarver

Defendant(s):

R&S RESEARCH LLC Pro Se

Plaintiff(s):

Claudia Moncayo Represented BySamuel MoorheadCatherine Calderaro Wagner

Jessica Ojeda Represented BySamuel Moorhead

Kaveh Elihu Represented BySamuel Moorhead

Samuel Moorhead Represented BySamuel Moorhead

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1:30 PMR&S RESEARCH LLCCONT... Chapter 7

Trustee(s):

David Keith Gottlieb (TR) Pro Se

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2:30 PMReza Fateh Manesh1:15-12563 Chapter 7

Seror, not individually but solely in his capacity v. Fatehmanesh, an Adv#: 1:15-01237

#18.00 Motion to determine amount to be paid to Hossein Fatehmanesh after offset

90Docket

Grant.

I. BACKGROUND

On July 30, 2015, Reza Fateh Manesh ("Debtor") filed a voluntary chapter 7 petition. David Seror was appointed the chapter 7 trustee (the "Trustee").

On November 5, 2015, the Trustee filed a complaint against Hossein Fatehmanesh for turnover of the real property located at 14520 Delano Street, Van Nuys, California 91411 (the "Property") and an award of attorneys’ fees, initiating this adversary proceeding. On January 26, 2017, after trial, the Court entered judgment in favor of the Trustee (the "Trial Judgment") [doc. 38]. Through the Trial Judgment, the Court awarded the Trustee $15,000.

On February 8, 2017, the Trustee moved for an award of attorneys’ fees and costs [doc. 47]. On March 31, 2017, the Court entered an order awarding the Trustee attorneys’ fees in the amount of $92,811.50 and costs in the amount of $3,015.25 (together with the Trial Judgment, the "Trustee Award"). On April 17, 2017, the Trustee recorded an abstract of judgment reflecting the total amount owed the Trustee of $110,826.75. Declaration of David Seror (the "Seror Declaration") [doc. 90], ¶ 3, Exhibit 1.

On January 14, 2020, the Trustee filed a motion to sell the Property (the "Sale Motion") [Bankruptcy Docket, doc. 144]. A title report generated in connection with the Sale Motion reflected a $175,000 judgment, entered June 1, 2007, in favor of Mr. Fatehmanesh (the "Fatehmanesh Judgment"). Seror Declaration, ¶ 5, Exhibit 2. In addition, the Trustee located an abstract of judgment related to the Fatehmanesh Judgment recorded against the Property. Sale Motion, Exhibit 4. On February 10, 2020, the Court entered an order approving the Sale Motion [Bankruptcy Docket, doc.

Tentative Ruling:

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2:30 PMReza Fateh ManeshCONT... Chapter 7

156].

On April 14, 2020, the Trustee filed a motion to determine the amount to be paid to Mr. Fatehmanesh (the "Motion") [doc. 90]. The Trustee estimates that Mr. Fatehmanesh is owed a total of $403,458.88 (the $175,000 Fatehmanesh Judgment plus interest at 10% per annum totaling $228,458.88). The Trustee also asserts that the Court should subtract from this total the amount Mr. Fatehmanesh owes the Trustee pursuant to the Trustee Award. Mr. Fatehmanesh opposed the Motion [doc. 93], contending that he is entitled to compound interest from the 10-year anniversary of the Fatehmanesh Judgment forward.

II. ANALYSIS

The parties do not dispute the amount of the Trustee Award or the principal amount of the Fatehmanesh Judgment. Although Mr. Fatehmanesh notes that he believes the Trustee Award was excessive, Mr. Fatehmanesh appealed the Trustee Award and the award is now final. Mr. Fatehmanesh does not otherwise dispute the Trustee’s calculation of principal and interest related to the Trustee Award.

The parties disagree about the amount of interest owed on the Fatehmanesh Judgment. Mr. Fatehmanesh asserts that, after 10 years, the principal amount of the Fatehmanesh Judgment became $350,000 and, thereafter, interest began to accrue on that amount. In California, judgments expire 10 years after the date of entry of a money judgment. California Code of Civil Procedure ("CCP") § 683.020.

To renew a judgment, judgment creditors must file an application and pay a filing fee. CCP § 683.150; Cal. Gov’t Code § 70626. "[T]he entry of renewal shall show the amount of the judgment as renewed. …[T]his amount is the amount required to satisfy the judgment on the date of the filing of the application for renewal and includes the fee for the filing of the application for renewal." CCP § 683.150(c). The "amount required to satisfy a money judgment is the total amount of the judgment as entered or renewed with the following additions and subtractions:"

(a) The addition of costs added to the judgment pursuant to Section 685.090.

(b) The addition of interest added to the judgment as it accrues pursuant to

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2:30 PMReza Fateh ManeshCONT... Chapter 7Sections 685.010 to 685.030, inclusive.

(c) The subtraction of the amount of any partial satisfactions of the judgment.

(d) The subtraction of the amount of any portion of the judgment that is no longer enforceable.

CCP § 695.210.

"When a judgment is renewed under the Enforcement of Judgments Law, the renewed judgment is the amount required to satisfy the judgment on the date of renewal, an amount that includes accumulated postjudgment interest." Bisno v. Kahn, 225 Cal.App.4th 1087, 1106 (Ct. App. 2014) (emphasis added). "Thus, the renewal of the judgment—which can be done every five years—effectively allows interest to accrue on interest that has been incorporated into the renewed judgment." Id. (citing CCP § 683.110(b)).

The California Constitution generally prohibits the postjudgment compounding of interest. Westbrook v. Fairchild, 7 Cal.App.4th 889, 893 (Ct. App. 1992).

The only exception to the rule that interest on interest (i.e. compound interest) may not be recovered is in situations in which interest is included in a judgment which then bears interest at the legal rate. One common situation occurs when a judgment is renewed. At that time, accrued interest is included in the new judgment, and the new judgment bears interest at the legal rate.

Id., at 894-95.

If the judgment debtor files for bankruptcy petition and a judgment has not expired by the petition date, 11 U.S.C. § 108(c) tolls the expiration date. In re Spirtos, 221 F.3d 1079, 1080-81 (9th Cir. 2000). In that case, the judgment "does not expire until 30 days after the end of the automatic stay." Id., at 1081.

Here, Mr. Fatehmanesh seeks to benefit from the compound interest provision of CCP § 683.150(c) without having taken any of the steps required by that statute to renew

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the Fatehmanesh Judgment. As explained in Westbrook, the California Constitution prohibits compound interest except in limited circumstances, such as obtaining a renewal of judgment. Westbrook, 7 Cal.App.4th at 893-95. Mr. Fatehmanesh has set forth no authority that would allow Mr. Fatehmanesh to claim compound interest without renewing his judgment.

To the extent Mr. Fatehmanesh believes the compound interest provision of CCP § 683.150(c) should have automatically been triggered because the automatic stay prevented Mr. Fatehmanesh from renewing the Fatehmanesh Judgment, that proposition is not supported by law. Mr. Fatehmanesh could have obtained relief from the automatic stay to renew the Fatehmanesh Judgment. That relief from the automatic stay is required to obtain such a renewal is further support for the fact that renewals of judgments are not automatic and require affirmative action by the judgment creditor. See Spirtos, 221 F.3d at 1081.

Having offered no authority to the contrary, and given the general prohibition of compound interest under California law, the Court will not allow for Mr. Fatehmanesh to claim compound interest on the Fatehmanesh Judgment. The Court will allow Mr. Fatehmanesh a total claim of $403,458.88 offset by the amount Mr. Fatehmanesh owes the Trustee, for a total payment to Mr. Fatehmanesh of $289,085.67. Mr. Fatehmanesh must furnish a fully executed W-9 form to the Trustee prior to receipt of any payment from the estate.

III. CONCLUSION

The Court will grant the Motion. Mr. Fatehmanesh must provide a fully executed W-9 form to the Trustee prior to receiving a payment from the estate.

The Trustee must submit an order within seven (7) days.

Party Information

Debtor(s):

Reza Fateh Manesh Represented ByLee W Harwell

Defendant(s):

Hossein Fatehmanesh, an individual Represented By

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David Brian Lally

Plaintiff(s):

David Seror, not individually but Represented ByReed BernetRichard BursteinJessica L Bagdanov

Trustee(s):

David Seror (TR) Represented ByRichard BursteinReed BernetJessica L Bagdanov

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2:30 PMRobert Edward Zuckerman1:18-11150 Chapter 7

Abel v. Zuckerman et alAdv#: 1:18-01086

#19.00 Plaintiff's Motion for summary judgment pursuant to FRBP Rule 7056

fr. 3/25/20; 6/10/20(stip)

152Docket

Grant in part and deny in part.

I. BACKGROUND

On May 4, 2018, Robert Edward Zuckerman ("Debtor") filed a voluntary chapter 11 petition. On March 18, 2019, the Court converted Debtor’s case to a chapter 7 case [Bankruptcy Docket, doc. 129].

A. The Prepetition State Court Judgment and Albini Adversary Proceeding

Prepetition, dozens of individuals and entities, including Richard Abel ("Plaintiff"), filed a complaint against Debtor, initiating state court case no. SCV-245738 (the "State Court Action"). Request for Judicial Notice ("RJN") [doc. 156], Exhibit A. On March 20, 2017, the state court entered an amended judgment against Debtor (the "Amended Judgment"). Id.

On July 20, 2018, the other plaintiffs from the State Court Action filed a complaint against Debtor, requesting nondischargeability of the debt owed to them pursuant to the Amended Judgment under 11 U.S.C. § 523(a)(2)(A) (the "Albini Adversary Proceeding") [1:18-ap-01081-VK]. On March 25, 2019, the plaintiffs in the Albini Adversary Proceeding filed a motion for summary judgment, asserting the Amended Judgment is preclusive as to their claim for nondischargeability under 11 U.S.C. § 523(a)(2)(A) (the "Albini MSJ") [Albini Adversary Proceeding, doc. 50]. Debtor opposed the Albini MSJ [Albini Adversary Proceeding, doc. 74]. On July 17, 2019, the Court issued a ruling granting the Albini MSJ and detailing why the Amended Judgment precludes relitigation of the plaintiffs’ claim under § 523(a)(2)(A) (the

Tentative Ruling:

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2:30 PMRobert Edward ZuckermanCONT... Chapter 7

"Albini Ruling") [Albini Adversary Proceeding, doc. 96]. On July 31, 2019, the Court entered an order granting the Albini MSJ (the "Albini Order") [Albini Adversary Proceeding, doc. 99].

Debtor appealed the Albini Order to the Bankruptcy Appellate Panel of the Ninth Circuit (the "BAP"). On April 10, 2020, the BAP issued an opinion affirming the Albini Order (the "BAP Opinion"). In re Zuckerman, 613 B.R. 707 (B.A.P. 9th Cir. 2020). On May 8, 2020, Debtor filed a petition for rehearing before the BAP [BAP Docket, doc. 37]. On June 5, 2020, the BAP entered an order denying the petition for hearing [BAP Docket, doc. 39].

B. The Assignment Order and the Judgment Lien

On June 29, 2017, Plaintiff filed a Notice of Judgment Lien with the California Secretary of State (the "Judgment Lien"). RJN, Exhibit C. The Judgment Lien states that it applies to "all property subject to enforcement of a money judgment against the judgment debtor to which a judgment lien on personal property may attach under Section 697.530 of the Code of Civil Procedure…." Id.

On January 25, 2018, approximately three months prepetition, the state court entered an assignment order in favor of Plaintiff (the "Assignment Order"). RJN, Exhibit B. In the Assignment Order, the state court noted that Plaintiff was owed a total of $207,245.98 plus 10% interest. Id. The state court stated, in relevant part:

IT IS HEREBY ORDERED that pursuant to Code of Civil Procedure 708.510 the interests of judgment debtors Cruickshank, Skarpias and Zuckerman, whether standing in the names of Cruickshank, Skarpias, and Zuckerman or from or through any business entity or person in which Cruickshank, Skarpias, and Zuckerman are affiliated, as well as generated through the use of any license issued by a governmental agency including, but not limited to, California Bureau of Real Estate License No. 00833651, and their rights to receive payment of money due or to become due, including, without limitation, accounts receivable, general intangibles, instruments, securities, accounts, deposit accounts, rents, royalties, fees, dividends, fees, salaries, commissions, residual income, distributions, and all other rights to

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2:30 PMRobert Edward ZuckermanCONT... Chapter 7money, are assigned to judgment creditor Richard Abel to the extent necessary to satisfy the judgment amounts herein in full, including accrued interest using the legal rate of 10% per annum.

Id. [FN1]

C. This Adversary Proceeding

On August 2, 2018, Plaintiff filed his own complaint against Debtor and other defendants. On June 7, 2019, Plaintiff filed the operative second amended complaint (the "SAC") [doc. 75]. As concerns Debtor, Plaintiff requested declaratory relief regarding the impact of the Assignment Order and the Judgment Lien and nondischargeability of the debt owed to Plaintiff based on the Amended Judgment pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(2)(B). Through the SAC, Plaintiff also added the chapter 7 trustee (the "Trustee") as a defendant. On June 12, 2019, Plaintiff filed proof that he timely served the Trustee with the summons and the SAC. The Trustee has not filed a response to the SAC.

On November 26, 2019, Plaintiff filed a motion for summary judgment (the "Motion") [docs. 152-157]. Through the Motion, Plaintiff requests a judgment under § 523(a)(2)(A) and (a)(2)(B) based on the Amended Judgment. In addition, Plaintiff appears to request a judgment that states that "the following rights to payment are subject to Plaintiff’s Assignment Order," listing Debtor’s right to: (A) "receivables" from several entities; (B) receipt of payment from Venmo, as disclosed in Debtor’s July 2018 monthly operating report ("MOR"); (C) a commission in the amount of $35,000; (D) payment for consulting fees; (E) payments collected from Debtor as reported in his MORs; and (F) payment from City National Bank. Finally, Plaintiff appears to request a judgment that states that the Judgment Lien attaches to all of Debtor’s personal property.

On March 4, 2020, Debtor filed an opposition to the Motion (the "Opposition") [docs. 183-187]. In the Opposition, Debtor argues that Plaintiff’s claims based on the Assignment Order and Judgment Lien are vague and that Plaintiff’s interpretation of the Assignment Order and the Judgment Lien is too broad. Regarding Plaintiff’s claim under 11 U.S.C. § 523(a)(2)(A), Debtor reiterates his previous arguments from the Albini Adversary Proceeding that have been rejected by this Court and the BAP.

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II. ANALYSIS

A. 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

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("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.").

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. The Assignment Order and Judgment Lien

With respect to the Assignment Order, Plaintiff appears to request a judgment that his Assignment Order attached to Debtor’s right to payment from the sources identified above. However, Plaintiff has not provided sufficient evidence for the Court to make any such determination. The Assignment Order is dated January 24, 2018. Debtor filed his chapter 11 petition on May 4, 2018, at which time the automatic stay prohibited any further enforcement of collection activity against Debtor or the estate. 11 U.S.C. § 362. As such, to obtain a determination that the Assignment Order attached to any of the interests referenced by Plaintiff, Plaintiff would have to provide evidence demonstrating that Debtor had a right to payment from those sources between January 24, 2018, when the state court entered the Assignment Order, and May 4, 2018, the petition date. Plaintiff offers no such evidence.

In fact, many of the rights to payment listed by Plaintiff appear to have arisen postpetition but preconversion. For example, Plaintiff references Debtor’s MORs, filed during the pendency of Debtor’s chapter 11 case, to identify certain payments received by Debtor. However, Debtor’s postpetition but preconversion right to payment became part of the bankruptcy estate upon conversion of Debtor’s case to a

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chapter 7 case. See 11 U.S.C. § 1115(a)(1); and In re Roussos, 2016 WL 5349717, at *5 (Bankr. C.D. Cal. 2016). As such, if the property that generates the right to payment Plaintiff seeks to attach entered the chapter 7 estate, Plaintiff may not enforce the Assignment Order as to that property unless the Trustee explicitly abandons the Property or Plaintiff obtains relief from the automatic stay.

The Court notes that, even if Debtor had a right to payment to which the Assignment Order attached between the period of January 24, 2018 and May 4, 2018, Plaintiff would only be entitled to the right to payment from the identified asset, not the asset itself. See, e.g. AmeriPride Servs. Inc. v. Texas E. Overseas Inc., 782 F.3d 474, 491–92 (9th Cir. 2015) (reversing district court judgment that assigned personal property to judgment creditor instead of only the right to payment from that property). Thus, even if the Assignment Order attached to Debtor’s right to payment during the relevant prepetition period, the property itself still would become property of the estate, and Plaintiff would still be prohibited from continued enforcement against the asset. In other words, although Plaintiff may have been entitled to intercept certain payments between January 24, 2018 and May 4, 2018 by operation of the Assignment Order, Plaintiff could not continue such activity beyond the petition date. [FN2].

The same is true for Plaintiff’s claim related to the Judgment Lien. Plaintiff has offered no evidence or analysis regarding whether the Judgment Lien attached to any of Debtor’s personal property, including whether such personal property is the type of property under the purview of the Judgment Lien. See Cal. Civ. Proc. Code §§ 680.130, 697.530; and Cal. Comm. Code § 9102(a)(2). Nevertheless, for the same reasons noted above, if Plaintiff would like to enforce the Judgment Lien against property of the estate, Plaintiff must obtain relief from the automatic stay.

In light of the above, the Court will deny the Motion as to these claims for relief. Rather than continue to pursue the claims via this adversary proceeding, Plaintiff should file a motion for relief from the automatic stay in Debtor’s bankruptcy case. If Plaintiff obtains relief from the automatic stay, Plaintiff may pursue his enforcement efforts pursuant to the Assignment Order and the Judgment Lien in state court.

C. 11 U.S.C. § 523(a)(2)(A)

For the same reasons stated in the Albini Ruling and the BAP Opinion, the Court will

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enter judgment in favor of Plaintiff on the basis that the Amended Judgment establishes Plaintiff’s claim under 11 U.S.C. § 523(a)(2)(A). The BAP has addressed all of Debtor’s arguments in the BAP Opinion. The Court is bound by the BAP’s interpretation of the Amended Judgment. Unless the outcome of a further appeal mandates otherwise, the Court will not revisit these issues.

D. 11 U.S.C. § 523(a)(2)(B)

Pursuant to 11 U.S.C. § 523(a)(2)(B), the plaintiff must show that the debtor incurred a debt by "use of a statement in writing:"

(i) that is materially false;(ii) respecting the debtor’s or an insider’s financial condition;(iii) on which the creditor to whom the debtor is liable for such money,

property, services, or credit reasonably relied; and(iv) that the debtor caused to be made or published with intent to deceive….

(emphasis added).

Plaintiff bases his § 523(a)(2)(B) claim on appraisals provided by Debtor and his agent which included inaccurate representations. However, Plaintiff has not established that either Debtor or an insider of Debtor owned or had an interest in the Malibu land. Nor does the Amended Judgment include any such findings. Moreover, the Amended Judgment does not include any other statements regarding written false statements regarding Debtor’s or an insider’s financial condition. As such, Plaintiff has not established a claim under § 523(a)(2)(B).

III. CONCLUSION

The Court will enter judgment in favor of Plaintiff under 11 U.S.C. § 523(a)(2)(A). The Court will otherwise deny the Motion.

The Court will prepare the judgment.

FOOTNOTES

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1. The Court will take judicial notice of the Amended Judgment, the Assignment Order and the Judgment Lien.

2. Moreover, under California Code of Civil Procedure § 708.510(d), "[a] right to payment may be assigned pursuant to this article only to the extent necessary to satisfy the money judgment." In the Assignment Order, the state court stated that Plaintiff was owed $207,245.98 plus 10% interest. As such, the Assignment Order did not serve to transfer all assets that generate a right to payment to Plaintiff; instead, the Assignment Order merely allows Plaintiff to collect up the amount of the judgment.

Tentative ruling regarding the evidentiary objections to the identified paragraphs in the Declarations set forth below:

Debtor’s Evidentiary Objections to the Declaration of Richard Abelparas. 3-15, 17-18, 20: overrule

Plaintiff’s Evidentiary Objections to the Declaration of Robert Edward Zuckermanparas. 3-4, 9-14: overruleparas. 5-8: sustain

Party Information

Debtor(s):

Robert Edward Zuckerman Represented BySandford L. FreyStuart I Koenig

Defendant(s):

Diane C Weil, in her capacity as the Pro Se

B. Edward McCutchan Jr. an Represented ByEdward McCutchan

Sunderland/McCutchan LLP, a Represented ByEdward McCutchan

Phoenix HoldingsFund LLC, a Pro Se

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DOES 1-20 Pro Se

Nickki B Allen, an individual Pro Se

Sunderland/McCutchan, Inc., a Represented ByEdward McCutchan

Maravilla Center, LLC, a California Pro Se

Rezinate San Jacinto, LLC, a Pro Se

San Jacinto Z, LLC, a California Pro Se

Contiental San Jacinto, LLC, a Pro Se

Zuckerman Building Company, a Pro Se

Valley Circle Estates Realty Co., a Pro Se

Continental Communities, LLC, a Pro Se

Robert Edward Zuckerman Represented BySandford L. Frey

Plaintiff(s):

Richard Abel Pro Se

Trustee(s):

Diane C Weil (TR) Pro Se

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2:30 PMRobert Edward Zuckerman1:18-11150 Chapter 11

Abel v. Zuckerman et alAdv#: 1:18-01086

#20.00 Status conference re: second amended complaint for:1) Declatratory relief re: determination of validity, priority or extent of interest in property2) Declaratoty relief re determination of validity, priority, or extent of lien3) Turnover of property of the estate pursuant to 11 U.S.C. 5424) Nondischargeability of debt pursuant to 11 U.S.C. sec 523(a)(2)(A)5) Nondischargeability of debt pursuant to 11 U.S.C. 523(a)(2)(B)[28 U.S.C. sec 157(b)(2); FRBP., R. 7001]

fr. 11/14/18 (stip); 1/9/2019; 2/20/19; 3/13/19; 5/8/19; 6/5/19; 8/28/19; 9/4/19; 9/11/19; 11/13/19; 1/22/20; 3/25/20; 6/10/20(stip)

75Docket

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Robert Edward Zuckerman Represented BySandford L. FreyStuart I Koenig

Defendant(s):

Robert Edward Zuckerman Pro Se

Continental Communities, LLC, a Pro Se

Valley Circle Estates Realty Co., a Pro Se

Zuckerman Building Company, a Pro Se

Contiental San Jacinto, LLC, a Pro Se

San Jacinto Z, LLC, a California Pro Se

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Rezinate San Jacinto, LLC, a Pro Se

Maravilla Center, LLC, a California Pro Se

Sunderland/McCutchan, Inc., a Represented ByEdward McCutchan

Nickki B Allen, an individual Pro Se

DOES 1-20 Pro Se

Phoenix Holdings, LLC a California Pro Se

Sunderland/McCutchan LLP, a Pro Se

B. Edward McCutchan Jr. an Pro Se

Plaintiff(s):

Richard Abel Pro Se

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