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Charles P. Maher, State Bar No. 124748 Nhung Le, State Bar No. 209552 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Rincon Center II, 121 Spear Street, Suite 200 San Francisco, California 94105-1582 Telephone No.: 415.356.4600 Fax No.: 415.356.4610 Attorneys for Plaintiff Charles E. Sims Trustee in Bankruptcy
UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA
In re RAMIN YEGANEH, Debtor.
Case No. 05-30047 TEC Chapter 7
CHARLES E. SIMS, Trustee, Plaintiff. vs. F. NAMDARAN aka FRAN NAMDARAN aka FARIN NAMDARAN aka FARIN YEGANEH aka FRAN YEGANEH, Defendant.
Adversary Proceeding No.
COMPLAINT FOR AVOIDANCE AND RECOVERY OF FRAUDULENT TRANSFERS Plaintiff Charles E. Sims, Trustee in bankruptcy of the estate of the above Debtor ("Plaintiff" or "Trustee"), alleges as follows: 1. On January 7, 2005, Ramin Yeganeh filed a voluntary petition for relief under
Chapter 13 of the Bankruptcy Code. 2. The case was converted to a Chapter 7 proceeding by order dated January 21, 2005.
Plaintiff Charles E. Sims is Trustee in bankruptcy of the Debtor's estate. 1 Filed: 02/18/2005
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3.
This Court has jurisdiction over this adversary proceeding under 28 U.S.C. § § 151,
157(b)(2), and 1334, and under Rule 5011-1 of the Bankruptcy Local Rules for the Northern District of California. 4. This adversary proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(A),
(F), (H), and (O). 5. 6. Venue is proper under 28 U.S.C. § 1409. Plaintiff is informed and believes that Defendant F. Namdaran is an individual who
resides in California, is also known as Farin Namdaran, Fran Namdaran, Farin Yeganeh, and Fran Yeganeh, and is the Debtor's mother. 7. Plaintiff is informed and believes that the Debtor made the following transfers of
real property to the Defendant: (a) (b) 1659 Linda Mar Blvd., Pacifica, California (APN 023-301-270) on June 28, 2001; 115 Francisco Drive, South San Francisco, California (APN 014-171-090) on June 28, 2001; (c) 139 Francisco Drive, South San Francisco, California (APN 014-175-030) on June 28, 2001. 8. The transfers identified in paragraph 7 above and any other transfers that may be
proved are subsequently called the "Transfers." 9. Plaintiff is informed and believes that the Debtor consistently maintained in
pleadings in Court, and under oath that Defendant had no relationship to him, and that the Debtor and Defendant actively concealed that the Defendant is the Debtor's mother. This action is brought within three years after the discovery of the facts constituting the fraudulent nature of the Transfers. FIRST CLAIM FOR RELIEF Avoidance of Fraudulent Transfers (11 U.S.C. § 544(a); California Civil Code Sections 3934.04) 10. Plaintiff realleges the allegations set forth in paragraphs 1 through 9 above and
incorporates them by reference.
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11.
Plaintiff alleges that the Transfers were transfers of interests of the Debtor in
property and were made within four years of the date on which the Debtor filed his bankruptcy petition. 12. Plaintiff alleges that the Debtor received less than a reasonably equivalent value in
exchange for the Transfers. 13. Plaintiff alleges that the Debtor was insolvent on the dates the Transfers were made
or became insolvent as a result of the Transfers, or was engaged in a business or transaction or was about to engage in a business or transaction for which any property remaining with the Debtor was unreasonably small capital. WHEREFORE Plaintiff requests judgment as set forth below. SECOND CLAIM FOR RELIEF Avoidance of Fraudulent Transfers (11 U.S.C. § 544(a); California Civil Code Section 3934.04) 14. Plaintiff realleges the allegations set forth in paragraphs 1 through 9 above and
incorporates them by reference. 15. Plaintiff alleges that the Transfers were transfers of interests of the Debtor in
property and were made within four years of the date on which the Debtor filed his bankruptcy petition. 16. Plaintiff alleges that the Debtor made the Transfers and incurred obligations
relating to those transfers with actual intent to hinder, delay, or defraud any creditor of the Debtor. WHEREFORE Plaintiff requests judgment as set forth below. REQUEST FOR RELIEF Plaintiff requests judgment as follows: A. On the first and second claims for relief, for a judgment against the Defendant
avoiding the Transfers and any other transfer to the Defendant that may be proved under 11 U.S.C. § § 544 and 550, and California Civil Code Sections 3439 et seq., and preserving those transfers for the benefit of the estate under 11 U.S.C. § 551. B. For prejudgment interest on any money judgment.
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175281.1
C. D.
For costs of suit. For other relief the Court deems appropriate.
Dated: February 18, 2005
LUCE, FORWARD, HAMILTON & SCRIPPS, LLP
By:
/s/ Charles P. Maher State Bar No. 144748 Counsel for John W. Richardson, Trustee
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CHARLES E. SIMS, Trustee, Plaintiff, v. COAST DEVELOPMENT TRUST and FARIN YEGANEH aka F. NAMDARAN aka FRAN NAMDARAN aka FARIN NAMDARAN aka FRAN YEGANEH, Defendants.
Adversary Proceeding No. 05-3242 TC
CHARLES E. SIMS, Trustee, Plaintiff, v. ADVANTA TRUST and FARIN YEGANEH aka F. NAMDARAN aka FRAN NAMDARAN aka FARIN NAMDARAN aka FRAN YEGANEH, Defendants.
Adversary Proceeding No. 05-3243 TC REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF TRUSTEE'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Date: November 15, 2006 Time: 9:30 a.m. Dept: 23
Plaintiffs Andrea A. Wirum, Chapter 7 Trustee for the estate of Ramin Yeganeh, request that the Court take judicial notice of the following documents contained in the files of the United States Bankruptcy Court for the Northern District of California: 1. Proof of Claim dated April 7, 2005 and filed on April 28, 2005 by Phyllis "Suzy-
Q" Shoop, docketed by the Court as Claim No. 3, a true and correct copy of which is attached as Exhibit A; 2. Proof of Claim dated April 7, 2005 and filed on April 28, 2005 by Robert Scott and
Alyssa Scott, docketed by the Court as Claim No. 4, a true and correct copy of which is attached as Exhibit B; 3. Proof of Claim dated July 18, 2005 and filed on July 18, 2005 by Nicole Wilkins,
docketed by the Court as Claim No. 36, a true and correct copy of which is attached as Exhibit C; 4. Proof of Claim dated October 25, 2005 and filed on October 25, 2005 by Nicole Doc #: 90 2 Filed: 11/01/2006 Page 2 of 19
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EXHIBIT A
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EXHIBIT C
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EXHIBIT E
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EXHIBIT A
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Charles P. Maher, State Bar No. 124748 Jeffrey L. Fillerup, State Bar No. 120543 Nhung Le, State Bar No. 209552 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Rincon Center II, 121 Spear Street, Suite 200 San Francisco, California 94105-1582 Telephone No.: 415.356.4600 Fax No.: 415.356.4610 Attorneys for Andrea A. Wirum Trustee in Bankruptcy
UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION In re RAMIN YEGANEH, Debtor. Case No. 05-30047 TEC Chapter 7
13 14 15 16 17 18 19 20 CHARLES E. SIMS, Trustee, 21 Plaintiff, 22 v. 23 24 25 Defendants. 26 27 28 ALLIED MANAGEMENT TRUST and K. YEGANEH aka KEN YEGANEH aka KAIKHOSROW YEGANEH, Adversary Proceeding No. 05-3241 TC v. F. NAMDARAN aka FRAN NAMDARAN aka FARIN NAMDARAN aka FARIN YEGANEH aka FRAN YEGANEH, Defendant. CHARLES E. SIMS, Trustee, Plaintiff, Adversary Proceeding No. 05-3240 TC
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1 CHARLES E. SIMS, Trustee, 2 Plaintiff, 3 v. 4 5 6 7 8 9 10 11 12 13 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Alissa V. Worthing, declare that: 1. I am employed in the City and County of San Francisco, California. My business address is 121 Spear Street, Suite 200, San Francisco, California 94105. I am over the age of 18 years and not a party to the above-entitled action. I work in the office of a member of the bar of this Court, at whose direction the service was made. 2. I am familiar with Luce, Forward, Hamilton & Scripps' practice whereby each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the office mail receptacle. 3. On this date, I served a copy of: THE TRUSTEE'S MEMORANDUM IN OPPOSITION TO THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF TRUSTEE'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DECLARATION OF ANDREA A. WIRUM DECLARATION OF EMILY L. MAXWELL IN SUPPORT OF TRUSTEE'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Filed: 2 11/01/2006 v. CERTIFICATE OF SERVICE ADVANTA TRUST and FARIN YEGANEH aka F. NAMDARAN aka FRAN NAMDARAN aka FARIN NAMDARAN aka FRAN YEGANEH, Date: November 15, 2006 Time: 9:30 a.m. Dept: 23 CHARLES E. SIMS, Trustee, Plaintiff, Adversary Proceeding No. 05-3243 TC COAST DEVELOPMENT TRUST and FARIN YEGANEH aka F. NAMDARAN aka FRAN NAMDARAN aka FARIN NAMDARAN aka FRAN YEGANEH, Defendants. Adversary Proceeding No. 05-3242 TC
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DECLARATION OF RENEE GLOVER-CHANTLER IN SUPPORT OF TRUSTEE'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT THE TRUSTEE'S EVIDENTIARY OBJECTIONS TO THE DECLARATIONS OFFERED IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT CERTIFICATE OF SERVICE
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
208578.1
by U. S. MAIL: I placed a copy in a separate envelope, with postage fully prepaid, for each address named on the attached service list for collection and mailing on the below indicated day following the ordinary business practices at Luce, Forward, Hamilton & Scripps LLP. I certify I am familiar with the ordinary business practices of my place of employment with regard to collection for mailing with the United States Postal Service. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit or mailing affidavit. on Jonathan G. Chance, Esq. JC Law Offices 205 East 3rd Avenue, Suite 411 San Mateo, CA 94401
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed on November 1, 2006 at San Francisco, California.
/s/ Alissa V. Worthing Alissa V. Worthing
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UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE THOMAS E. CARLSON, JUDGE In Re: RAMIN YEGANEH, Debtor. CHARLES E. SIMS, Trustee, Plaintiff, v. F. NAMDARAN, aka FRAN NAMDARAN, aka FARIN NAMDARAN, aka FARIN YEGANEH, aka FRAN YEGANEH, Defendant. CHARLES E. SIMS, Trustee, Plaintiff, v. ALLIED MANAGEMENT TRUST and K. YEGANEH, aka KEN YEGANEH, aka KAIKHOSROW YEGANEH, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 05-30047 TEC Chapter 7
Adv. 05-3240 TC
Adv. 05-3241 TC
Wednesday, November 15, 2006 San Francisco, California
Trustee's motion for summary judgement based upon actual fraud
Caption continued on next page.
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CHARLES E. SIMS, Trustee, Plaintiff, v. COAST DEVELOPMENT TRUST and FARIN YEGANEH, aka F. NAMDARAN, aka FRAN NAMDARAN, aka FARIN NAMDARAN, aka FRAN YEGANEH, Defendants. CHARLES E. SIMS, Trustee, Plaintiff, v. ADVANTA TRUST and FARIN YEGANEH, aka F. NAMDARAN, aka FRAN NAMDARAN, aka FARIN NAMDARAN, aka FRAN YEGANEH, Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Adv. 05-3242 TC
Adv. 05-3243 TC
Wednesday, November 15, 2006 San Francisco, California
Trustee's motion for summary judgement based upon actual fraud
Appearances listed on next page.
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3 Appearances: For the Debtor: William Gilg, Esq. 305 San Bruno Avenue West San Bruno, California 94066 (650) 871-8647 Jonathan G. Chance, Esq. Law Offices of Jonathan G. Chance 2000 Broadway Street Redwood City, California 94063 (650) 299-1269 Jeffrey L. Fillerup, Esq. Charles P. Maher, Esq. Luce, Forward, Hamilton & Scripps, LLP Rincon Center II 121 Spear Street, Suite 200 San Francisco, California 94105-1582 (415) 356-4610
For the Defendants:
For Andrea A. Wirum, Trustee in Bankruptcy:
Digital Court Reporter:
United States Bankruptcy Court Clerk of the Court Jane L. Galvani 235 Pine Street, 23rd Floor (94104) Post Office Box 7341 San Francisco, California 94120-7341 (415) 268-2366
Certified Electronic Transcriber:
Palmer Reporting Services P. O. Box 30727 Stockton, California 95213-0727
Proceedings recorded by digital recording; transcript produced by federally-approved transcription service.
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yesterday. THE CLERK: versus Trust. THE COURT: Are they outside? They are outside of the gate. I didn't think they expected me to Wednesday, November 15, 2006 P R O C E E D I N G S Matter of Sims versus Namdaran, Sims
4 9:35 o'clock a.m.
MR. [SPEAKER]: THE COURT: be so fast. Okay.
Okay.
MR. MAHER:
Good morning, Your Honor.
Charles Maher
and Jeffrey Fillerup on behalf of Andrea Wirum, Trustee and plaintiff. THE COURT: Mr. Chance. Okay. They've stated their appearance,
You might want to do the same. Yes. Jonathan Chance on behalf of the
MR. CHANCE:
Defendants, the Namdarans, who are not present in court. THE COURT: MR. GILG: Okay. Good morning, Your Honor. Bill Gilg,
specially appearing for the debtor. THE COURT: Okay. I issued a tentative ruling
I assume you both got it? [COUNSEL]: THE COURT: Yes, Your Honor. I think the best thing to do would be -
unless there's something I've missed, I will assume the Trustee has no qualm with parts one and two? MR. MAHER: Correct, Your Honor.
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 comments. THE COURT: qualms of one and two. And that the defendants definitely have And so I'll just go to the - to defense
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counsel and ask, can you - you can comment on MR. CHANCE: THE COURT: MR. CHANCE: THE COURT: Yes. - on parts one and two? Yes, Your Honor. It's necessary I'll let you respond to the
And then will go on to part three, which is, I think, So please go ahead. Well, let me ask you a question. What do
the most difficult one. MR. CHANCE:
you mean with regards to part one and two? THE COURT: MR. CHANCE: THE COURT: deny your motion and MR. CHANCE: tentative on that. THE COURT: MR. CHANCE: And that's THE COURT: Okay. Okay. Your motion. Yes.
I'm looking at -
Your motion, the tentative ruling, would
I have no comments with respect to your
I mean, the record's preserved on it.
Go to part two, then, which is -
has to do with the four Allied properties were transferred after the injunction. MR. CHANCE: THE COURT: Can you give me just one quick moment? Sure.
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. MR. CHANCE: THE COURT: Yes. Okay. Well, if you want to go first, I (Pause in the proceedings.) THE COURT: MR. CHANCE: I guess it's five Allied properties. Actually, all I'm prepared to offer
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rebuttal and comment on is your last ruling, which is the remaining 3240, 3242, and 3243 cases. THE COURT: wanted to hear MR. CHANCE: THE COURT: MR. CHANCE: THE COURT: Yes. - argument Yes. - about what I thought was a closer In other words, the one where I said I
guess I'll let you go first, but I definitely want to hear comments from both sides. MR. CHANCE: I think the Court is correct in pointing
out that, in part C, the debtor did not substantially transfer all of his assets. The part I'd like to comment on is on line
25 to the end of the page talking about, "The debtor could still be considered to have taken actions to hinder any creditor's effort." The bottom line, Your Honor, is this is all a matter of a jury question. The Trustee in their reply papers attempted
to point out some facts that they believed established
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conclusively as a matter of law that they had met the burden of proof on the issue whether fraudulent transfer had occurred. In the same documents, deposition testimony they submitted before this Court - and this was pointed out to Your Honor in a surreply brief that we had filed on Monday - within those same documents, there is deposition testimony from the debtor, whose testimony incidentally, is allowed to be considered in this, was not precluded, stating that he had no interest in these properties. As you know, under the Anderson-Liberty Lobby case, Celotex, the various summary judgment standard cases, all inferences have to be resolved in favor of the nonmovant, which is the Namdarans in this party. And the issue about whether or not a jury could believe that the transfer had occurred or, conversely, would believe that no transfer had occurred is a jury question. And
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issues regarding the debtor's credibility, those are not the province of this Court. And that's what this is really boiling down to, is whether a jury could believe that my clients could defeat a fraudulent-transfer action is going to come down on the credibility of the debtor. To the extent that defendants can testify as to this and hadn't been precluded from doing so, their testimony had to be considered, as well. This all comes down to being whether a
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 jury could believe them or not. evidence.
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It's not a matter of there's no
It's just a matter of whether they're going to
believe the evidence at trial. And for that reason, Your Honor, the summary judgment should be denied. issue. And it should proceed to a jury trial in this
As Your Honor stated in a tentative ruling, there is not
a substantial transfer of all the assets, significant assets remain. THE COURT: A transfer of substantially all. What I
tried to get at was this - and perhaps from the way you're phrasing it, I'm not sure that I was very clear. The - what I thought you - what I thought the defendant asserted in his - his declaration, that portion of it which was not precluded by the prior order, was - he said, "One thing you should consider in determining whether I had intent, is I didn't get rid of everything. get rid of everything. And, it was not - I didn't
I didn't try wholly and completely to But - and, in
to stiff the potential plaintiff - plaintiffs.
fact, I kept property worth a value, you know, at least in a very interesting comparison range with the damages that were contemplated at that time. I understand that argument. Is that it? The issue
Is there something else? MR. CHANCE:
Well, there is something else.
about the attorney's fee judgment, that didn't come down till about three years after that.
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. CHANCE: THE COURT: Oh, I understand. So -
9
And - so I - I know that there were some -
there were some - some traffic, some settlement traffic, that talked about a substantial amount of attorney's fees. But I - I
understand the argument to be that, gee, I thought I kept enough for what I knew at the time I might have to pay. That's basically the argument, right? MR. CHANCE: THE COURT: MR. CHANCE: put forward. THE COURT: Okay. All right. Now what I'm asking you Yes, that's - that's that's an argument Okay. - with the debtor, that the debtor has
to focus on - and I understand the importance of that argument and it's really a fact, it's MR. CHANCE: THE COURT: Correct. - that he kept substantial property. What
I'm asking you to focus on and what you may want to comment on here, is that I don't think the concept of hinder, delay, or defraud requires that the transfer in question be to the end of completely stiffing the creditors, but rather can be just sort of, you know, throwing logs in the road to slow or make less straightforward the enforcement of any resulting judgment. And there are other facts here that are - that focus not on whether the debtor ultimately tried to stiff them, but
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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whether the debtor was the - the debtor was trying to make this more difficult, such as making transfers not in his own name, by taking property not in his own name, and then transferring them where - to a person that was his mother, but not disclosed as his mother, things like that. And I just want to make sure you have an opportunity to comment on that because, as I look at this, I see - and as I try to figure out whether a reasonable jury could find for the defendant, I look at this and say, "Yeah, he - you know, it's pretty clear, he kept a lot of stuff." On the other hand, is also pretty clear that there were all sorts of shenanigans going on. How to take account of those two - MR. CHANCE: THE COURT: MR. CHANCE: I - two things that are very, very clear. I'd like to offer some things for your I was looking up the statute again, And the question is:
consideration definitely.
where - the concept of hindering comes up in Section 3439.04 of the California Civil Code. It talks about basically the jury That's the ultimate fact to be
has to find an intent to hinder.
found here when ruling on fraudulent transfer. Just in its own articulation, the concept of intent to hinder, it's a quintessential question of fact. If the jury
finds as true these various facts that you elucidated and further draws from that an inference or a conclusion that the
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. debtor and the client, the defendants, had an intent to hinder... THE COURT: the intent.
11
I don't think the defendants have to have
It focuses on the intent with which the transfer
was made by the debtor. MR. CHANCE: THE COURT: MR. CHANCE: Yeah. Yeah. All I'm trying to say is: The jury is Let me rephrase that.
going to have to decide whether there's an intent to hinder. That's a question of fact. THE COURT: Oh, I understand that it's a fact I'm just asking you to
I understand that completely.
focus on the - what I think is the legal test, which that they don't have to find that he intended that they never collect anything, but merely to make this all more difficult. that's hindering. MR. CHANCE: protect his rights. But the debtor took certain actions to I think
And, again, I'm just trying to emphasize
that these are all facts that have to be considered by the jury. Whether they could draw the conclusion that there was an intent to hinder is for them to decide. THE COURT: Okay. Okay. Mr. Fillerup or Mr. Maher, And you've written most of
you look like you're about to speak.
this, so I assume you're the one that's going to speak on this question, Mr. Fillerup?
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FILLERUP: is very helpful. That's right.
12
And - and the tentative
And I'll really focus on what's written in the
third section of the tentative. And I think in this situation, it's all - it's oftentimes helpful to go back and look at the instructions the Court will give to the jury. And I went back and I looked at And for a
the Judicial Council Civil Jury Instructions.
fraudulent conveyance, based on actual intent to defraud, the jury instruction - and let me give this to you. THE COURT: Do you have a number for that? I don't
remember whether that that was MR. FILLERUP: THE COURT: I can give you a copy of this.
- in your papers or not. Your Honor?
MR. FILLERUP:
(Counsel handed a copy of the above-mentioned document.) THE COURT: Yeah, please.
"Actual intent to defraud or hinder, delay, and defraud" - well, I'll see it in a minute so I'll find out. MR. FILLERUP: THE COURT: And Let me -
Okay.
MR. FILLERUP: THE COURT:
- what I think it -
Can I just read this - can I just read
this first before you comment? MR. FILLERUP: the last paragraph. Sure. And I'm - I'm going to focus on
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: "To prove intent to hinder, delay, or
13
defraud," that paragraph? MR. FILLERUP: THE COURT: the second line? Correct. Yes.
So it's the second-full paragraph before
About - do you see it, Mr. Chance? Yes, I do. Okay. Go ahead then.
MR. CHANCE: THE COURT:
MR. FILLERUP:
And just so that we have a record of
what we're looking at, this is Judicial Council of California Civil Jury Instructions, Fall 2006 Edition, Model Jury Instructions 4200, Actual Intent to Defraud. And what is significant about this is that paragraph says to prove intent to hinder, delay, or defraud creditors it is not necessary to show that the debtor had a desire to harm his creditors. The plaintiff need only show that the debtor
intended to remove or conceal assets to make it more difficult for creditors to collect payment. And I think what's important about that is to make it more difficult for creditors to collect payment and that's what the jury is told. The jury isn't told - well, if the Court were
to adopt this model instruction, the jury would not be told to make it impossible. And I think this is significant because it indicates that in connection with actual fraud, insolvency or the assets remaining after the transfers is not a prima facie element, it's
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not required. And -
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THE COURT:
Although if the person had $50 million in
assets and transferred $500,000 of assets, that particular fact would go a long way, and sometimes it can be very important how much is transferred and how much is kept. MR. FILLERUP: Well, I'm not so sure that even in that
situation if there were a number of other badges of fraud, that that would be sufficient. I mean the - and I guess your
hypothetical goes to whether anyone would bother to prosecute a fraudulent-conveyance case. THE COURT: to interrupt. MR. FILLERUP: And so, number one, the assets that are Yeah, maybe. Okay. Go ahead. I'm sorry
remaining or insolvency is not an element, as it is in a constructive-fraud case. And I - I don't want to give you a lot
more cases, because I think we've cited an entire law library in connection with all of this, but I just have a couple of cases that I want to give you that - that really go to what you have identified in the third section of the tentative. case called Heffernen, 110 Cal.App.2d 564. actual fraud case. arises in the case. And one is a
And this is an
And an issue comes up - the same issue And the court finds that there had been a
fraudulent conveyance and says it does not matter if the transferor retains property ample to pay his creditors. There are - there's another leading federal case
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 called Kelly versus Thomas Solvent, 725 F.Supp. 1446.
15 And this
case involved a corporation spinning off part of its operations into a subsidiary and a fraudulent-conveyance claim being made in connection with that spin-off. And an issue about the remaining assets available to pay off creditors came up. And the court directly address the
issue that we're talking about, and that is if creditors are simply delayed, is that enough. said yes. And in Thomas Solvent the court
The court wrote, and this is the Western District of
Michigan, "Even if the company only intended to hinder or delay creditors, these purposes satisfy the intent elements, where a debtor's purpose is merely to stave off creditors by putting property beyond the reach, even when the purpose not to cheat them of ultimate payment but only to wrest them from the time to restore the debtor's affairs." There's another federal case, The United States versus Green, a Third Circuit case, 201 F.3d 251. And this case says
that in reviewing the badges of fraud, in those instances, like this case where there is a transfer to a family member for no consideration, then the remaining assets or solvency of the debtor is not significant. And the court said the present facts are that the transfer was to a spouse for a wholly-inadequate consideration. No matter how healthy Howard Green's balance sheet might have been, the factual presumption of actual fraud would survive.
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Our main point is that it's clear, and there really hasn't been any dispute that no matter how much - how many assets remained after the transfers were made, these transfers were clearly intended to delay, and they did in fact delay creditors in collecting on judgments and obligations that were owed by the debtor. We also have cited a number of cases in our reply brief where courts have granted summary judgment. that we cited about ten cases. And I think
16
And if the Court goes back and
looks at those cases, in each of those cases there were multiple badges of fraud that were presented in connection with the plaintiff's motion for summary judgment. All of the badges of fraud were not established on summary judgment. That's not a requirement. In this case there And so the
were certain badges of fraud that we didn't present.
Court may ask, 'Well, why didn't you present evidence that goes to the debtor's solvency and the remaining assets'; well, the answer to that goes back to one of the badges of fraud that we did identify, and that is the debtor's and the defendants' failure to maintain records, their destruction of records and their failure to produce documents. And that is - those - that fact is something that made it difficult for us to go back and determine the debtor's financial status at the time of the transfers. THE COURT: Also has some bearing on whether the
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 debtor continued to have beneficial use. Your argument about
17
looking in to see who was the owner beforehand, the same evidence also pertains to whether the debtor had beneficial use after the formal transfer. MR. FILLERUP: Right.
Of the cases that we've cited where summary judgment was granted in an actual fraud situation, none of those cases had as many badges of fraud as we have identified. those cases there are three or four badges of fraud. In most of And most
of those cases identify the key badges of fraud as transferred to a family member and no consideration. And the cases refer to
those two badges of fraud as being particularly significant. It's - it would be a rare case where a plaintiff in a fraudulent transfer case could come in and establish all of the badges of fraud. required. And none of the cases say that that's
And when I say none of the cases I mean the cases in
which summary judgment was granted in a fraudulent-transfer case. So our main point is that while remaining assets is a badge of fraud, it's not a badge of fraud that we identified. We did identify in each case about a dozen badges of fraud, all of which are undisputed. And the fact that the defendant or the
debtor comes in and identifies some other badge of fraud and says: Well, maybe there's a genuine issue of material fact with
respect to this other badge of fraud doesn't prevent summary
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 judgment.
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And the reason it doesn't prevent summary judgment is that a jury will be given the totality of the facts and given the facts that we've presented, a jury would have to take admissible evidence from the defendants and say: This
admissible evidence from the defendants outweighs the evidence that's been presented by the trustee. that. And in connection with the remaining assets and the solvency or insolvency of the debtor, they really haven't submitted evidence of what his financial condition was at the time. Do I have it? I don't have it because they haven't And they haven't done
produced that information for me. I've asked for it. I subpoenaed the debtor. When the
debtor appeared for his deposition, he didn't produce a single piece of paper to me. Not one page in response to my
subordinate that asked for - that required that he produce documents relating to this case, including the badges of fraud. The Court's discovery order says that while the debtor may offer evidence, the debtor cannot offer - or the defendants cannot offer evidence from the debtor other than testimony from the debtor and no documents that were not previously produced. And there weren't documents produced to us that go to the financial condition of the debtor at the time of the transfers. So I think that covers my main points with respect to
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Trustee's Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions. Do you have some sense of what the equity in these other - it's 13? - 13 properties is total? MR. MAHER: We have some sense, Your Honor. the third section of your tentative. THE COURT: Okay. Let me ask a couple practical
19
We don't We don't
- we've never been in the inside of these properties. know what the condition is inside. we need.
We have some sense of what
We probably do not need some of the less valuable
properties. THE COURT: MR. MAHER: THE COURT: MR. MAHER: Some of the less valuable? Less valuable. Well, how - how much short is the estate? The estate, as we speak and without having
liquidated two properties, would be about three and a half to four million dollars short. properties, we get THE COURT: MR. MAHER: THE COURT: MR. MAHER: Before you liquidate them you're Before. - three and a half million short. If we - if we get a million dollars for I
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