United States Bankruptcy Court Central District of...

United States Bankruptcy CourtCentral District of California

Judge Ernest Robles, PresidingCourtroom 1568 Calendar

Los Angeles

Monday, April 27, 2020 1568 Hearing Room

9:00 AMJW Wireless Inc.2:16-16496 Chapter 7

John J. Menchaca, Solely in his Capacity as Chapte v. CELLCO Partnership Adv#: 2:18-01097

#1.00 Trial Date Set RE: [117] First Amended Complaint re Adversary case 2:18-ap-01097. Complaint by John J. Menchaca, Solely in his Capacity as Chapter 7 Trustee for the Bankruptcy Estate of JW Wireless, Inc. against CELLCO Partnership dba Verizon Wireless, a Delaware limited partnership, BJ Mobile, Inc., a California corporation, JETWORLD, Inc., a California corporation, JW Wireless OKC, an Oklahoma limited liability company, JWK Management, Inc., a California corporation, JETSTAR Auto Sports, Inc., a California corporation, Shaigan Ben Her, an individual, Lea Young Lee, an individual, Joan Yu, an individual, Chu Feng Yu, an individual, Carolyn Rhyoo, an individual. (Charge To Estate). with Adversary Cover Sheet and Summons and Notice of Status Conference Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property -548 fraudulent transfer)),(11 (Recovery of money/property - 542 turnover of property)) (Eastmond, Thomas)

0Docket *** VACATED *** REASON: DISMISSED 4-2-20

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

JW Wireless Inc. Represented ByMichael Y Lo

Defendant(s):

CELLCO Partnership dba Verizon Represented ByLawrence J HiltonMark S Cander

BJ Mobile, Inc., a California Represented ByKelvin J Lo

JETWORLD, Inc., a California Represented By

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9:00 AMJW Wireless Inc.CONT... Chapter 7

Gary M Jackson

JW Wireless OKC, an Oklahoma Represented ByKelvin J Lo

JWK Management, Inc., a California Represented ByMichael H Yi

JETSTAR Auto Sports, Inc., a Represented ByGary M Jackson

Shaigan Ben Her, an individual Represented ByKelvin J Lo

Lea Young Lee, an individual Represented ByGary M Jackson

Joan Yu, an individual Represented ByKelvin J Lo

Chu Feng Yu, an individual Represented ByKelvin J Lo

Carolyn Rhyoo, an individual Pro Se

Plaintiff(s):

John J. Menchaca, Solely in his Represented ByThomas J EastmondRobert P Goe

Trustee(s):

John J Menchaca (TR) Represented ByRobert P GoeThomas J Eastmond

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9:00 AMAlana Gershfeld2:18-11795 Chapter 7

Dye v. Khasin et alAdv#: 2:19-01052

#2.00 Trial Date SetRE: [1] Adversary case 2:19-ap-01052. Complaint by Carolyn A Dye against Maria Khasin, Larry A. Khasin, M & L Living Trust. (Charge To Estate). Complaint: (1) To Avoid Fraudulent Transfer Pursuant To 11 U.S.C. §§ 544 And 548; (2) To Recover Avoided Transfers Pursuant To 11 U.S.C. § 550; And,(3) Automatic Preservation Of Avoided Transfer Pursuant To 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)) (Gonzalez, Rosendo)

FR.1-27-20

1Docket *** VACATED *** REASON: CONTINUED 7-27-20 AT 9:00 A.M.

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Alana Gershfeld Represented ByAlla Tenina

Defendant(s):

Maria Khasin Pro Se

Larry A. Khasin Pro Se

M & L Living Trust Pro Se

Plaintiff(s):

Carolyn A Dye Represented ByRosendo Gonzalez

Trustee(s):

Carolyn A Dye (TR) Represented ByRosendo Gonzalez

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9:00 AMJenny Melendez2:18-20374 Chapter 7

Wesley H. Avery, Chapter 7 Trustee of the Bankrupt v. Jenny Melendez, an Adv#: 2:18-01429

#3.00 Trial Date SetRE: [1] Adversary case 2:18-ap-01429. Complaint by Wesley H. Avery, Chapter 7 Trustee of the Bankruptcy Estate of Jenny Melendez against Jenny Melendez, an individual, Clara E. Melendez. (Charge To Estate). Trustee's Complaint for: 1) A Declaratory Judgment Regarding Property of the Bankruptcy Estate; 2) Turnover; 3) Injunctive Relief; and 4) Sale of a Property in Which a Non-Debtor Asserts an Interest Nature of Suit: (91 (Declaratory judgment)),(11 (Recovery of money/property - 542 turnover of property)),(72 (Injunctive relief - other)),(31 (Approval of sale of property of estate and of a co-owner - 363(h))) (Lin, Zi)

1Docket *** VACATED *** REASON: DISMISSED 11-25-19

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Jenny Melendez Represented ByRandolph R Ramirez

Defendant(s):

Jenny Melendez, an individual Pro Se

Clara E Melendez, an individual Pro Se

DOES 1-20 Pro Se

Plaintiff(s):

Wesley H. Avery, Chapter 7 Trustee Represented ByAdjoa Anim-AppiahZi Chao Lin

Trustee(s):

Wesley H Avery (TR) Represented By

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9:00 AMJenny MelendezCONT... Chapter 7

Zi Chao Lin

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9:00 AMThomas Ernesto Merino2:18-21250 Chapter 7

Foreman v. MerinoAdv#: 2:18-01460

#4.00 Trial Date SetRE: [1] Adversary case 2:18-ap-01460. Complaint by Star Rae Foreman against Thomas Ernesto Merino . false pretenses, false representation, actual fraud)) ,(67 (Dischargeability - 523(a)(4), fraud as fiduciary, embezzlement, larceny)) ,(68 (Dischargeability - 523(a)(6), willful and malicious injury)) ,(65 (Dischargeability -other)) (Del Mundo, Wilfredo) Additional attachment(s) added on 12/27/2018 (Del Mundo, Wilfredo). Additional attachment(s) added on 12/27/2018 (Del Mundo, Wilfredo).


- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Thomas Ernesto Merino Represented ByKourosh M Pourmorady

Defendant(s):

Thomas Ernesto Merino Pro Se

Plaintiff(s):

Star Rae Foreman Pro Se

Trustee(s):

Brad D Krasnoff (TR) Pro Se

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9:00 AMSang Hoon Lee2:18-24737 Chapter 7

United States Trustee for the Central District of v. LeeAdv#: 2:19-01143

#5.00 Trial Date SetRE: [1] Adversary case 2:19-ap-01143. Complaint by United States Trustee for the Central District of California, Region 16 against Sang Hoon Lee. (Fee Not Required). Nature of Suit: (65 (Dischargeability - other)) (Law, Dare)

1Docket *** VACATED *** REASON: DEFAULT JUDGMENT ENTERED 9-19-19

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Sang Hoon Lee Represented ByMichael H Yi

Defendant(s):

Sang Hoon Lee Pro Se

Plaintiff(s):

United States Trustee for the Central Represented ByDare Law

Trustee(s):

David M Goodrich (TR) Pro Se

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9:00 AMBahram Zendedel2:19-10549 Chapter 7

Nguyen dba Sam Bullion & Coin v. ZendedelAdv#: 2:19-01110

#6.00 Trial Date SetRE: [1] Adversary case 2:19-ap-01110. Complaint by Sam Thuy Nguyen dba Sam Bullion & Coin against Bahram Zendedel. false pretenses, false representation, actual fraud)),(67 (Dischargeability - 523(a)(4), fraud as fiduciary, embezzlement, larceny)),(68 (Dischargeability - 523(a)(6), willful and malicious injury)) (Tabibi, Nico)

1Docket *** VACATED *** REASON: PER ORDER ENTERED 9/27/19

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Bahram Zendedel Represented ByKhachik Akhkashian

Defendant(s):

Bahram Zendedel Pro Se

Plaintiff(s):

Sam Thuy Nguyen dba Sam Bullion Represented ByNico N Tabibi

Trustee(s):

Peter J Mastan (TR) Pro Se

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Danny's Silver Jewelry Inc., a California cor v. ZendedelAdv#: 2:19-01111

#7.00 Trial Date SetRE: [1] Adversary case 2:19-ap-01111. Complaint by Danny's Silver Jewelry Inc., a California corporation, dba Danny's Silver, Inc., dba Danny's Silver & Gold against Bahram Zendedel. false pretenses, false representation, actual fraud)),(67 (Dischargeability - 523(a)(4), fraud as fiduciary, embezzlement, larceny)),(68 (Dischargeability - 523(a)(6), willful and malicious injury)) (Tabibi, Nico)

1Docket *** VACATED *** REASON: PER ORDER ENTERED 1-23-20

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):


Defendant(s):


Plaintiff(s):

Danny's Silver Jewelry Inc., a Represented ByNico N Tabibi

Trustee(s):


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Chady v. ZendedelAdv#: 2:19-01114

#8.00 Trial Date SetRE: [1] Adversary case 2:19-ap-01114. Complaint by Cyrus Chady, Bahram Zendedel against Bahram Zendedel. false pretenses, false representation, actual fraud)),(68 (Dischargeability - 523(a)(6), willful and malicious injury)),(67 (Dischargeability - 523(a)(4), fraud as fiduciary, embezzlement, larceny)) (Uyeda, James)

1Docket *** VACATED *** REASON: PER ORDER ENTERED 8-27-19

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):


Defendant(s):


Plaintiff(s):

Cyrus Chady Represented ByJames S Uyeda

Trustee(s):


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9:00 AMRyan James McMillin2:19-12402 Chapter 7

Elite Optoelectronics Co., Ltd a China Limited Lia v. McMillin et alAdv#: 2:19-01137

#9.00 Trial Date SetRE: [1] Adversary case 2:19-ap-01137. Complaint by G-Sight Solutions, LLC against Ryan James McMillin, G-Sight Solutions, Inc., a California Corporation. false pretenses, false representation, actual fraud)),(67 (Dischargeability - 523(a)(4), fraud as fiduciary, embezzlement, larceny)),(68 (Dischargeability - 523(a)(6), willful and malicious injury)),(14 (Recovery of money/property - other)) (Zshornack, Errol)


- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Ryan James McMillin Represented ByJohn A Harbin

Defendant(s):

Ryan James McMillin Pro Se

G-Sight Solutions, Inc., a California Pro Se

Plaintiff(s):

Elite Optoelectronics Co., Ltd a Pro Se

G-Sight Solutions, LLC, a California Pro Se

Trustee(s):

Heide Kurtz (TR) Pro Se

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9:00 AMAllen Joseph MacQuarrie2:19-14528 Chapter 7

Borish et al v. Tabingo et alAdv#: 2:19-01144

#10.00 Trial Date SetRE: [1] Adversary case 2:19-ap-01144. Complaint by Stephen & Ami Borish against Allen Joseph MacQuarrie. (d),(e))),(14 (Recovery of money/property - other)),(62 (Dischargeability - 523(a)(2), false pretenses, false representation, actual fraud)),(67 (Dischargeability - 523(a)(4), fraud as fiduciary, embezzlement, larceny)) (Bonar, Roxanne)


- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Allen Joseph MacQuarrie Represented ByShawn P Huston

Defendant(s):

Celgine Tabingo Pro Se

Clarke Miller Pro Se

KarmaBox Vending Pro Se

MyKarmabox.com Pro Se

Urban Vendor, Inc Pro Se

Does 1 Through 20, Inclusive Pro Se

Allan J Macquarrie Pro Se

Plaintiff(s):

Stephen Borish Pro Se

Ami Borish Pro Se

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9:00 AMAllen Joseph MacQuarrieCONT... Chapter 7

Trustee(s):

Timothy Yoo (TR) Pro Se

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9:00 AMVerity Health System of California, Inc.2:18-20151 Chapter 11

VERITY HEALTH SYSTEM OF CALIFORNIA, INC., a Califo v. Adv#: 2:19-01042

#11.00 Trial Date SetRE: [13] Amended Complaint /First Amended Complaint for Breach of Written Contracts, Turnover, Unjust Enrichment, Damages for Violation of the Automatic Stay and Injunctive Relief by Steven J Kahn on behalf of ST. FRANCIS MEDICAL CENTER, a California nonprofit public benefit corporation, ST. VINCENT MEDICAL CENTER, a California nonprofit public benefit corporation, VERITY HEALTH SYSTEM OF CALIFORNIA, INC., a California nonprofit public benefit corporation against HERITAGE PROVIDER NETWORK, INC., a California corporation. (RE: related document(s)1 Adversary case 2:19-ap-01042. Complaint by VERITY HEALTH SYSTEM OF CALIFORNIA, INC., a California nonprofit public benefit corporation, ST. VINCENT MEDICAL CENTER, a California nonprofit public benefit corporation, ST. FRANCIS MEDICAL CENTER, a California nonprofit public benefit corporation against HERITAGE PROVIDER NETWORK, INC., a California corporation. (Charge To Estate). (Attachments: # 1 Adversary Proceeding Cover Sheet # 2 Notice of Required Compliance with Local Bankruptcy Rule 7026-1) Nature of Suit: (11 (Recovery of money/property - 542 turnover of property)),(71 (Injunctive relief - reinstatement of stay)) filed by Plaintiff ST. FRANCIS MEDICAL CENTER, a California nonprofit public benefit corporation, Plaintiff VERITY HEALTH SYSTEM OF CALIFORNIA, INC., a California nonprofit public benefit corporation, Plaintiff ST. VINCENT MEDICAL CENTER, a California nonprofit public benefit corporation). (Kahn, Steven)

FR. 1-27-20; 2-24-20


- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Verity Health System of California, Represented BySamuel R MaizelJohn A Moe II

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9:00 AMVerity Health System of California, Inc.CONT... Chapter 11

Tania M MoyronClaude D MontgomerySam J AlbertsShirley ChoPatrick Maxcy

Defendant(s):

HERITAGE PROVIDER Pro Se

Plaintiff(s):

VERITY HEALTH SYSTEM OF Represented BySteven J Kahn

ST. VINCENT MEDICAL Represented BySteven J Kahn

ST. FRANCIS MEDICAL Represented BySteven J Kahn

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Official Committee of Unsecured Creditors of Verit v. U.S. Bank National Adv#: 2:19-01165

#12.00 Trial Date SetRE: [1] Adversary case 2:19-ap-01165. Complaint by Official Committee of Unsecured Creditors of Verity Health System of California, Inc., et al. against U.S. Bank National Association. priority or extent of lien or other interest in property)),(91 (Declaratory judgment)) (Shinderman, Mark)

1Docket *** VACATED *** REASON: TRIAL RE AMENDED COMPLAINT FILED 7/27/20 AT 9:00 A.M.

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Verity Health System of California, Represented BySamuel R MaizelJohn A Moe IITania M MoyronClaude D MontgomerySam J AlbertsShirley ChoPatrick MaxcySteven J KahnNicholas A Koffroth

Defendant(s):

U.S. Bank National Association Pro Se

Plaintiff(s):

Official Committee of Unsecured Represented ByMark Shinderman

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Official Committee of Unsecured Creditors of Verit v. UMB Bank, National Adv#: 2:19-01166

#13.00 Trial Date SetRE: [1] Adversary case 2:19-ap-01166. Complaint by Official Committee of Unsecured Creditors of Verity Health System of California, Inc., et al. against UMB Bank, National Association. priority or extent of lien or other interest in property)),(91 (Declaratory judgment)) (Shinderman, Mark)

1Docket *** VACATED *** REASON: CONT'D TO 1-27-20 at 9:00 A.M.

- NONE LISTED -

Tentative Ruling:

Party Information

Debtor(s):

Verity Health System of California, Represented BySamuel R MaizelJohn A Moe IITania M MoyronClaude D MontgomerySam J AlbertsShirley ChoPatrick MaxcySteven J KahnNicholas A Koffroth

Defendant(s):

UMB Bank, National Association Pro Se

Plaintiff(s):

Official Committee of Unsecured Represented ByMark Shinderman

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10:00 AMNicholas Rene Ortiz2:19-24904 Chapter 7

#100.00 HearingRE: [14] Notice of motion and motion for relief from automatic stay with supporting declarations ACTION IN NON-BANKRUPTCY FORUM RE: Debtor Nicholas Rene Ortiz.

14Docket

4/23/2020

Note: Telephonic Appearances Only. The Courtroom will be unavailable for in-court appearances. If you wish to make a telephonic appearance, contact Court Call at 888-882-6878, ext. 188 no later than one hour before the hearing. The cost for persons representing themselves has been waived.

For the reasons set forth below, the Motion is GRANTED.

Pleadings Filed and Reviewed1. Notice of Motion and Motion for Relief From the Automatic Stay Under 11 U.S.C. §

362 (Action in Nonbankruptcy Forum) [Doc. No. 14] (the "Motion")2. Response to Motion Regarding the Automatic Stay and Declaration(s) in Support

[Doc. No. 20] (the "Opposition")3. As of the preparation of this tentative ruling, no reply is on file

I. Facts and Summary of Pleadings

Rene Nicholas Ortiz (the "Debtor"), filed this voluntary chapter 7 case on December 21, 2019 (the "Petition Date"). At the outset of the case, Sam S. Leslie accepted appointment as chapter 7 trustee (the "Trustee"). On March 18, 2020, Winfund Investment, LLC (the "Movant") filed this request for relief from the automatic stay pursuant to § 362(d)(1) to proceed with an action bearing the caption Winfund Investment, LLC v. Rene J. Ortiz, et al., Case No. 19PSCV00211 (the "State Court Action") pending in Los Angeles County Superior Court (the "State Court"). Movant commenced the State Court Action on March 1, 2019 by filing a complaint against the Debtor, the Debtor’s father, and various other non-debtor defendants asserting claims for breach of contract, promissory fraud, fraudulent transfer, and seeking injunctive relief

Tentative Ruling:

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10:00 AMNicholas Rene OrtizCONT... Chapter 7

and the appointment of a receiver (the "Complaint"). According to the Complaint, Rene J. Ortiz ("Ortiz"), the Debtor’s father, is connected with the ownership and/or operation of numerous business entities, at least one of which is owned by the Debtor. See Motion, Ex. 1 [the Complaint] at 1-4 (page citations follow the Complaint’s original pagination). The Complaint alleges that Ortiz executed three promissory notes in favor of the Movant in connection with the purchase of three parcels of real property. See id. at 5-9. However, without Movant’s knowledge or authorization, Ortiz purportedly either sold or borrowed against said real estate, using proceeds to acquire personal and real property. See id. In sum, the Complaint asserts that Ortiz fraudulently transferred these ill-gotten assets to the Debtor, the Debtor’s business entity, and the other non-debtor defendants to impair Movant’s collection efforts. Id. at 14. Trial is scheduled to begin on September 14, 2020.

The Movant makes the following arguments in support of relief from stay:

⦁ Mandatory abstention applies under 28 U.S.C. § 1334(c)(2);

⦁ The claims are nondischargeable in nature and can be most expeditiously resolved in the nonbankruptcy forum;

⦁ The claims arise under nonbankruptcy law and can be most expeditiously resolved in the nonbankruptcy forum; and

⦁ The Debtor filed this bankruptcy case in bad faith to delay or interfere with the prosecution of the State Court Action.

The Movant further claims that the Debtor sold the subject assets while the non-bankruptcy action was still pending and mere months before the Petition Date. The arguments and representations set forth in the Motion are supported by the declaration of Peiwan Chang, the Movant’s counsel in the State Court Action.

On April 9, 2020, the Debtor filed a timely opposition to the Motion (the "Opposition"). The Debtor objects to the Motion, contending that the case was not filed in bad faith, that there is no proof of Debtor’s liability, and that his alleged wrongdoing is derivative of the conduct of third parties. In support of the Opposition, the Debtor supplied his declaration, wherein he makes the following representations:

⦁ Unlike his father, the Debtor denies having entered into any business transactions with the Movant;

⦁ The Debtor challenges the allegation that he received fraudulently transferred

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assets from his father, and asserts that the Movant has failed to proffer any evidence supporting the claims raised in the Complaint;

⦁ The Debtor claims that he secured loans from third parties to purchase his father’s interests in various business operations (the "Businesses");

⦁ Having become "worn" out by the pressures of being a business owner, the Debtor sold the Businesses to "third parties";

⦁ Any assets that the Debtor could have obtained from his father were surrendered to the Trustee at the outset of the case;

⦁ There are no grounds to have this bankruptcy case "derailed" to defend the State Court Action.

See Declaration of Nicholas Rene Ortiz, ¶¶ 2-5.

The Court notes that on March 23, 2020, the Debtor and the Trustee entered into a stipulation to extend the deadline to object to Debtor’s discharge to May 22, 2020 [Doc. No. 16]. On March 24, 2020, the Court approved the stipulation.

As of the preparation of this tentative ruling, the Movant has not filed a reply in support of the Motion.

II. Findings of Fact and Conclusions of Law

As a preliminary matter, a motion for relief from the automatic stay is a summary proceeding that does not involve an adjudication of the merits of the underlying claims. As recognized by the Ninth Circuit Bankruptcy Appellate Panel in In re Luz Int'l, Ltd.:

Given the limited grounds for obtaining a motion for relief from stay, read in conjunction with the expedited schedule for a hearing on the motion, most courts hold that motion for relief from stay hearings should not involve an adjudication of the merits of claims, defenses, or counterclaims, but simply determine whether the creditor has a colorable claim to the property of the estate. See In re Johnson, 756 F.2d 738, 740 (9th Cir.), cert. denied, 474 U.S. 828, 106 S.Ct. 88, 88 L.Ed.2d 72 (1985) ("Hearings on relief from the automatic stay are thus handled in a

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10:00 AMNicholas Rene OrtizCONT... Chapter 7summary fashion. The validity of the claim or contract underlying the claim is not litigated during the hearing.").

219 B.R. 837, 842 (9th Cir. BAP 1998) (citation omitted). In a summary proceeding, the court's discretion is broad. In re Santa Clara Cty. Fair Ass'n, Inc., 180 B.R. 564, 566 (B.A.P. 9th Cir. 1995).

Section 362(d)(1) provides that "[o]n request of a party in interest and after notice and a hearing, the court shall grant relief from the stay . . . (1) for cause . . . ." 11 U.S.C. § 362(d)(1). "What constitutes ‘cause’ for granting relief from the automatic stay is decided on a case-by-case basis." Kronemyer v. Am. Contractors Indem. Co. (In re Kronemyer), 405 B.R. 915, 921 (B.A.P. 9th Cir. 2009); Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162, 1166 (9th Cir. 1990). "To obtain relief from the automatic stay, the party seeking relief must first establish a prima facie case that ‘cause’ exists for relief under § 362(d)(1)." Truebro, Inc. v. Plumberex Specialty Prods., Inc. (In re Plumberex Specialty Prods., Inc.), 311 B.R. 551, 557 (Bankr. C.D. Cal. 2004). "Once a prima facie case has been established, the burden shifts to the debtor to show that relief from the stay is unwarranted." Id.

In the Ninth Circuit, courts consider 12 non-exclusive factors to determine whether "cause" exists to grant relief to allow an entity to continue pending litigation against a debtor in non-bankruptcy forum:

1. Whether the relief will result in a partial or complete resolution of the issues;

2. The lack of any connection with or interference with the bankruptcy case;

3. Whether the foreign proceeding involves the debtor as a fiduciary;4. Whether a specialized tribunal has been established to hear the

particular cause of action and whether that tribunal has the expertise to hear such cases;

5. Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation;

6. Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question;

7. Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested

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parties;8. Whether the judgment claim arising from the foreign action is subject

to equitable subordination under Section 510(c);9. Whether movant's success in the foreign proceeding would result in a

judicial lien avoidable by the debtor under Section 522(f);10. The interests of judicial economy and the expeditious and economical

determination of litigation for the parties;11. Whether the foreign proceedings have progressed to the point where

the parties are prepared for trial, and12. The impact of the stay on the parties and the "balance of hurt[.]"

Plumberex, 311 B.R. at 559. Not all the factors are relevant in every case, and the Court is not required to give equal weight to each factor. Id. at 560.

The Court finds that the Movant has established a prima facie case that "cause" exists to grant relief from stay under § 362(d)(1). First, granting stay relief will promote interests of judicial economy and avoid piecemeal or redundant litigation because the Movant aims to pursue claims against the Debtor in the State Court Action that are purportedly nondischargeable. Second, although the State Court is not a specialized tribunal established specifically to hear Movant’s claims, the State Court is more intimately familiar with the parties’ dispute and applicable California law to more expeditiously move the litigation to final judgment. Third, allowing the Movant to litigate the State Court Action will best promote the judicial economy by adjudicating a final judgment as to the underlying claims that may either support or negate the filing of a proof of claim, and/or continued prosecution of its outstanding adversary complaint [Note 1]. Finally, permitting the State Court Action to proceed will assist the Trustee to determine whether it is appropriate to bring an adversary action against the Debtor. While the Court acknowledges the Debtor’s comments, the State Court will provide him with the forum in which to most efficiently defend against Movant’s claims, thereby enabling him, if appropriate, to enjoy "the fresh start that this proceeding can provide."

Finally, the Court has reviewed the commencement documents, the Debtor’s declaration, and the representations made by Movant in the Motion and in pleadings submitted to the State Court Action to assess whether this case was filed in bad faith. On the present record, the Court is unable to reach a finding that the Debtor filed this case to hinder and delay the State Court Action from proceeding to trial.

Based on the foregoing, the Court GRANTS the Motion pursuant to 11 U.S.C. §

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362(d)(1) to permit the Movant to proceed under applicable non-bankruptcy law to enforce its remedies to proceed to final judgment in the non-bankruptcy forum, provided that the stay remains in effect with respect to enforcement of any judgment against the Debtor or estate property. The Debtor’s Opposition is overruled. Movant may not pursue any deficiency claim or any other claim against the Debtor or property of the estate, except that the Movant will retain the right to file a proof of claim, and Movant’s rights are preserved with respect to its adversary complaint filed under §§ 523 and 727 (Windfund Investment, LLC v. Nicholas Rene Ortiz, 2:20-ap-01024-ER) (to the extent applicable). This order shall be binding and effective despite any conversion of the bankruptcy case to a case under any other chapter of Title 11 of the United States Code.

The Court also finds it appropriate to waive the 14-day stay prescribed by Federal Rule 4001(a)(3). All other relief is denied.

III. Conclusion

For the reasons set forth above, the Motion is GRANTED.

All relief granted herein shall be subject to the Emergency Rules of the California Rules of Court, effective April 6, 2020.

The Movant is directed to lodge a conforming proposed order, incorporating this tentative ruling by reference, within seven days of the hearing.

No appearance is required if submitting on the court’s tentative ruling. If you intend to submit on the tentative ruling, please contact Daniel Koontz or Carlos Nevarez at 213-894-1522. If you intend to contest the tentative ruling and appear, please first contact opposing counsel to inform them of your intention to do so. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required. If you wish to make a telephonic appearance, contact Court Call at 888-882-6878, no later than one hour before the hearing.

Note 1: On February 6, 2020, the Movant filed an adversary proceeding objecting to the Debtor’s discharge under §§ 523 and 727, which bears the caption Windfund Investment, LLC v. Nicholas Rene Ortiz, 2:20-ap-01024-ER.

Party Information

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Debtor(s):

Nicholas Rene Ortiz Represented ByDaniel G McMeekin

Trustee(s):

Sam S Leslie (TR) Pro Se

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10:00 AMErnie Armijo, Jr.2:20-11398 Chapter 7

#101.00 HearingRE: [21] Notice of motion and motion for relief from automatic stay with supporting declarations ACTION IN NON-BANKRUPTCY FORUM RE: (at least $200,000 in real estate investment & lawsuit costs & fees arising from fraudulent act by Debtor) (with Proof of Service).

21Docket

4/23/2020

Tentative Ruling:

Note: Telephonic Appearances Only. The Courtroom will be unavailable for in-court appearances. If you wish to make a telephonic appearance, contact Court Call at 888-882-6878, ext. 188 no later than one hour before the hearing. The cost for persons representing themselves has been waived.

This motion for relief from the automatic stay has been set for hearing on the notice required by LBR 4001(c)(1) and LBR 9013-1(d)(2) . The failure of the debtor, the trustee, and all other parties in interest to file written opposition at least 14 days prior to the hearing as required by LBR 9013-1(f) is considered as consent to the granting of the motion. LBR 9013-1(h). Cf. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).

The motion is granted pursuant to 11 U.S.C. § 362(d)(1) to permit movant to proceed under applicable non-bankruptcy law to enforce its remedies to proceed to final judgment in the non-bankruptcy forum, provided that the stay remains in effect with respect to enforcement of any judgment against the Debtor or estate property.

The 14-day period specified in Fed.R.Bankr.P. 4001(a)(3) is waived. This order shall be binding and effective despite any conversion of the bankruptcy case to a case under any other chapter of Title 11 of the Unites States Code. All other relief is denied.

Tentative Ruling:

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Los Angeles


10:00 AMErnie Armijo, Jr.CONT... Chapter 7

All relief granted herein shall be subject to the Emergency Rules of the California Rules of Court, effective April 6, 2020.

Movant shall upload an appropriate order via the Court’s Lodged Order Upload system within 7 days of the hearing.

No appearance is required if submitting on the court's tentative ruling. If you intend to submit on the tentative ruling, please contact Daniel Koontz or Carlos Nevarez, the Judge's law clerks at 213-894-1522. If you intend to contest the tentative ruling and appear, please first contact opposing counsel to inform them of your intention to do so. Should an opposing party file a late opposition or appear at the hearing, the court will determine whether further hearing is required. If you wish to make a telephonic appearance, contact Court Call at 888-882-6878, ext. 188 no later than one hour before the hearing.

Party Information

Debtor(s):

Ernie Armijo Jr. Represented ByDaniel King

Trustee(s):

Timothy Yoo (TR) Pro Se

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United States Bankruptcy Court Central District of...

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