United States Bankruptcy Court Central District of California

[Pages:29]United States Bankruptcy Court Central District of California

Riverside Judge Mark Houle, Presiding

Courtroom 303 Calendar

Tuesday, May 12, 2020

Hearing Room 303

11:00 AM 6:16-21234 Frank A Horzen and Barbara A Horzen

Chapter 13

#1.00 Notice of motion and motion for relief from the automatic stay with supporting declarations REAL PROPERTY RE: 19579 Casmelia Street, Rialto, CA 92377

MOVANT: WILMINGTON TRUST COMPANY

EH__

Docket 152

Tentative Ruling: Tentative Ruling:

5/12/20

Service: Proper Opposition: Debtor

To attain relief from stay under 11. U.S.C ?362(d)(1) "cause" must be shown. Wilmington Trust Company (hereinafter "WTC") claims that post-petition postconfirmation mortgage payments due have not been made by the Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay...Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee's secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).

Debtors must show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. ? 362(d)(1).

Debtors have opposed the motion. Debtors state that "they are seeking an adequate protection order to cure the outstanding post-petition delinquency." Dkt. No. 156.

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United States Bankruptcy Court Central District of California

Riverside Judge Mark Houle, Presiding

Courtroom 303 Calendar

Tuesday, May 12, 2020

Hearing Room 303

11:00 AM

CONT... Frank A Horzen and Barbara A Horzen

Chapter 13

Debtor claims that "their counsel has reached-out to opposing counsel and was

informed that due to the current COVID-19 situation, there have been longer delays

than normal regarding approval." Id.

Parties are to update the Court on the status of adequate protection discussions.

APPEARANCES REQUIRED.

Party Information

Debtor(s):

Frank A Horzen

Represented By Paul Y Lee

Joint Debtor(s):

Barbara A Horzen

Represented By Paul Y Lee

Movant(s):

Wilmington Trust Company

Represented By April Harriott Matthew R. Clark III Sean C Ferry Theron S Covey Eric P Enciso

Trustee(s):

Rod Danielson (TR)

Pro Se

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United States Bankruptcy Court Central District of California

Riverside Judge Mark Houle, Presiding

Courtroom 303 Calendar

Tuesday, May 12, 2020

Hearing Room 303

11:00 AM 6:19-15353 Donald Ray Levier, Jr. and Antoinette Marie Levier

Chapter 13

#2.00

Notice of motion and motion for relief from the automatic stay with supporting declarations REAL PROPERTY RE: 15735 McIntosh Ave, Chino, CA 91708-9353

MOVANT: CALIBER HOME LOANS, INC.

EH__

Docket 39 *** VACATED *** REASON: ORDER ENTERED 4/21/20

Tentative Ruling:

- NONE LISTED -

Party Information

Debtor(s):

Donald Ray Levier Jr.

Represented By D Justin Harelik

Joint Debtor(s):

Antoinette Marie Levier

Represented By D Justin Harelik

Movant(s):

Caliber Home Loans, Inc.

Represented By Christina J Khil

Trustee(s):

Rod Danielson (TR)

Pro Se

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United States Bankruptcy Court Central District of California

Riverside Judge Mark Houle, Presiding

Courtroom 303 Calendar

Tuesday, May 12, 2020

Hearing Room 303

11:00 AM 6:20-10428 Larry M Carter and Deborah K Carter

Chapter 7

#3.00

CONT Notice of motion and motion for relief from the automatic stay with supporting declarations REAL PROPERTY RE: 34778 Hickory Lane, Wildomar, CA 92529

MOVANT: 2ND CHANCE MORTGAGES INC

From: 4/14/20

EH__

Docket 9

Tentative Ruling:

Tentative Ruling: 4/12/20

On January 18, 2020 ("Petition Date"), Larry M. Carter (hereinafter "Debtor") and Deborah K. Carter (hereinafter "Joint Debtor") (collectively, hereinafter "Debtors") filed for Chapter 7 voluntary petition. In their commencement documents, Debtors listed a resided at 34778 Hickory Lane Wildomar, CA 92595 (hereinafter the "Property") and it being secured by 2nd Chance Mortgages Inc. (hereinafter "2nd CM") and PHH Mortgage Services.

On March 24, 2020, 2nd CM filed a motion for relief form stay pursuant to 11 U.S.C. ?? 362(d)(1) and 362(d)(2). At the hearing date, the Court continued the motion because 2nd CM failed to serve Chapter 7 Trustee and the holder of other liens affecting the property. Local Bankr. R. 4001-1(c)(1)(C).

On April 15, 2020, 2nd CM filed a notice of hearing on motion for relief from stay. Dkt. No. 13. 2nd CM electronically served the Debtors' attorney, United States Trustee, the Chapter 7 Trustee, and other parties.

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United States Bankruptcy Court Central District of California

Riverside Judge Mark Houle, Presiding

Courtroom 303 Calendar

Tuesday, May 12, 2020

Hearing Room 303

11:00 AM CONT... Larry M Carter and Deborah K Carter

Chapter 7

To attain relief from stay under 11. U.S.C ?362(d)(1) "cause" must be shown. 2nd CM claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a...debtor." People's Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).

By providing Deed of Trust and Request of Notice of Default, Allonge to the Note, and Corporate Assignment of Deed of Trust, 2nd CM has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).

To receive relief under 11 U.S.C. ? 362(d)(2), both elements-- (1) debtor has no equity in the property and (2) property is not necessary for an effective organization-- must be met. 3 Collier on Bankruptcy ? 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). 2nd CM has provided evidence that Debtors do not have any equity in the property.

The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. ? 362(d)(1). 3 Collier on Bankruptcy ? 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtors also have the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. ? 362(g).

Debtors have not opposed the motion. Thus, they have not met their burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. ?? 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay.

APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.

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Party Information

Page 5 of 29

United States Bankruptcy Court Central District of California

Riverside Judge Mark Houle, Presiding

Courtroom 303 Calendar

Tuesday, May 12, 2020

11:00 AM CONT... Larry M Carter and Deborah K Carter

Debtor(s):

Larry M Carter

Represented By Kevin Tang

Joint Debtor(s):

Deborah K Carter

Represented By Kevin Tang

Movant(s):

2nd Chance Mortgages Inc.

Represented By Henry D Paloci

Trustee(s):

Robert Whitmore (TR)

Pro Se

Hearing Room 303 Chapter 7

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United States Bankruptcy Court Central District of California

Riverside Judge Mark Houle, Presiding

Courtroom 303 Calendar

Tuesday, May 12, 2020

Hearing Room 303

11:00 AM 6:20-10605 Raybecka Smith

Chapter 7

#4.00

Notice of motion and motion for relief from the automatic stay with supporting declarations REAL PROPERTY RE: 7106 Sultana Avenue, San Gabriel, CA 91775

MOVANT: THE BANK OF NEW YORK MELLON

EH__

Docket 11

Tentative Ruling:

Tentative Ruling:

5/12/20

Service: Proper Opposition: Debtor

On January 27, 2020 ("Petition Date"), Raybecka Smith (hereinafter "Debtor") filed a Chapter 7 voluntary petition. In her commencement documents, Debtors did not list property located at 7106 Sultana Avenue, San Gabriel, CA 91775 (hereinafter the "Property").

On April 15, 2020, Bank of New York Mellon (hereinafter "BNY Mellon") filed this motion for relief from stay, claiming, amongst other things, that an unauthorized grant deed was gifted to the Debtor as part of a scheme to delay, hinder, or defraud it. Dkt. No. 11. BNY Mellon provided evidence showing within the last year that bankruptcy petitions affected the property. Id.

Debtor claims she does "not know anything about this property[, has] never met the so called person Alice Kim[, the grantor of the deed,] who falsely added [her] to the property[,] or that [she has] any rights or interest in this property." Dkt. No. 13, Pg 3. Debtor believes that Alice Kim found information about Debtor's bankruptcy online and added Debtor to the grant deed. Id.

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United States Bankruptcy Court Central District of California

Riverside Judge Mark Houle, Presiding

Courtroom 303 Calendar

Tuesday, May 12, 2020

Hearing Room 303

11:00 AM CONT... Raybecka Smith

Chapter 7

A petition filed under this title, operates as a stay to any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate. 11 U.S.C ? 362(a). The property of the estate includes all legal or equitable interests of the debtor in property. 11 U.S.C. ?541(a)(1). A "grant deed conveys the grantor's entire fee simple interest in the property. Citizens for Covenant Compliance v. Anderson, 12 Cal. 4th (Cal. 1995). Thus, a valid grant deed which transferred interest to Debtor would constitute property of the estate.

Looking at the four corners of the document, The Court finds that the Grant Deed is valid. That is, it fulfills all the legal requirements: (1) names of the parties, (2) signature of the grantor, (3) the word `grant' is used, and (4) description of the property. Cal. Civ. Code ? 1092; Dkt No. 11 Ex. 2. Furthermore, the Deed of Trust does not prevent Alice Kim from transferring title without consent of the lender. Dkt. No. 11. Ex 1. It does, however, give BNY Mellon the option to require immediate payment in full of all sums secured by this instrument when such authorization is not given. Id. at Clause 18. Thus, movant has presented a colorable claim that is sufficient for the stay to attack.

BNY Mellon listed several unauthorized grant deeds executed by the original borrower, Alice Kim. The several bankruptcy filings were numerous, and some were skeletal-like, lacking any reasonable attempt to attain a discharge. They were all dismissed except for one. Thus, the court finds that the Debtor's petition was part of a scheme used to delay or hinder BNY Mellon by extending the protection of the automatic stay to the Property.

The Court further finds that there is no evidence of bad faith or misconduct by the Debtor and holds that such a finding is not necessary to grant relief under 11 U.S.C. ? 362(d)(4). In re Dorsey, 476 B.R. at 270.

Based on the multiple bankruptcy filings and unauthorized transfers of interest in the property, the Court is inclined to GRANT the motion in its entirety, including relief from stay pursuant to 11 U.S.C. ? 362(d)(4) and GRANT relief from Rule 4001(a)(3) stay.

APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or

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