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Case 6:10-bk-37900-SC Doc 73-1 Filed 04/01/11 Entered 04/01/11 17:56:00 Desc

Appendix Notice of Motion and Motion to Compel Abandonment of Property by Truste Page 1 of 10

1 GLOBAL CAPITAL LAW


Gary Harre, SBN 86938
2 Diane Beall, SBN 86877
8700 Warner Avenue, Suite 200
3 Fountain Valley, CA 92708
Telephone: (714) 907-4182
4 Facsimile: (714) 907-4175
5 Attorneys for Debtor
6

8 UNITED STATES BANKRUPTCY COURT


CENTRAL DISTRICT OF CALIFORNIA
9 RIVERSIDE DIVISION
10

11 In re: ) Case No. 10-37900-SC


)
12 BRIAN WILLIAM DAVIES, ) Chapter 7
)
13 ) DEBTOR’S NOTICE OF MOTION AND
) MOTION TO COMPEL ABANDONMENT
14
Debtor ) OF PROPERTY BY TRUSTEE;
) MEMORANDUM OF POINTS AND
15 ) AUTHORITIES; DECLARATION OF
) BRIAN WILLIAM DAVIES IN SUPPORT
16 )
) [11 U.S.C. §554; FRBP 6007(a)]
17 )
)
18 ) [No Hearing Required]
)
19 TO THE HONORABLE SCOTT C. CLARKSON, UNITED STATES
20 BANKRUPTCY JUDGE; PATRICIA J. ZIMMERMANN, CHAPTER 7 TRUSTEE; THE
21 OFFICE OF THE UNITED STATES TRUSTEE; AND TO ALL OTHER INTERESTED
22 PARTIES:
23 PLEASE TAKE NOTICE that Brian William Davies (the “Debtor”) in the above-
24 captioned case is filing attached to this Notice, his Motion to Compel Abandonment of Property
25 by Trustee under 11 U.S.C. §554.
26 The Motion is based on this Notice, the Motion and accompanying Memorandum of
27 Points and Authorities and the Declaration of Brian William Davies in Support filed herewith,
28 and on all pleadings and records on file in this case.

DEBTOR’S NOTICE OF MOTION AND MOTION TO COMPEL ABANDONMENT OF PROPERTY BY TRUSTEE;


MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN WILLIAM DAVIES IN SUPPORT
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Appendix Notice of Motion and Motion to Compel Abandonment of Property by Truste Page 2 of 10

1 PLEASE TAKE FURTHER NOTICE that pursuant to Local Bankruptcy Rule 9013-
2 1(o), any party objecting to the Motion may request a hearing on the Motion. The deadline for
3 filing and serving a written opposition and request for a hearing is 14 days after the date of
4 service of this Notice, plus an additional 3 days unless the Notice of Motion was served by
5 personal delivery or posting as described in F.R.Civ.P. 5(b)(2)(A)-(B). If you fail to comply
6 with this deadline, the Court may treat such failure as a waiver of your right to oppose the
7 Motion and may grant the Motion without further hearing and Notice.
8 WHEREFORE, the Debtor respectfully requests that the Court grant Debtor’s Motion to
9 Compel Abandonment of Property by Trustee under 11 U.S.C. §554 in this case.
10

11 Dated: March 11, 2011 GLOBAL CAPITAL LAW


12

13 _/s/ Gary Harre ____________________________


Gary Harre, Esq.
14
Diane Beall, Esq.
15 Attorneys for Debtor BRIAN WILLIAM DAVIES

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DEBTOR’S NOTICE OF MOTION AND MOTION TO COMPEL ABANDONMENT OF PROPERTY BY TRUSTEE;


MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN WILLIAM DAVIES IN SUPPORT
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1 MEMORANDUM OF POINTS AND AUTHORITIES


2 I.
3 FACTS RELEVANT TO THIS MOTION
4 Brian William Davies (the “Debtor”) is the owner of the real property located at 43277
5 Sentiero Drive, Indio, CA 92203.
6 On or about August 31, 2010 the Debtor filed the now pending Chapter 7 case under
7 Title 11 of the United States Bankruptcy Code.
8 Patricia J. Zimmerman was appointed as the Chapter 7 Trustee (“Trustee”) in this case
9 and the Debtor’s 341(a) Meeting of Creditors was scheduled for October 15, 2010.
10 On or about November 26, 2010, the Trustee, pursuant to FRBP 5009, certified that the
11 estate had been fully administered and requested that she be discharged from any further duties
12 as Trustee of Debtor’s estate and the case.
13 The market value of Debtor’s real property is approximately $230,000.00 and the
14 disputed debt against said real property is $650,000.00. The real property, taking into account
15 the mortgages, liens and the costs of sale, has no equity for the benefit of the estate or the
16 creditors.
17 By this Motion, the Debtor seeks the Court for an Order to compel abandonment of
18 property by the Trustee on the grounds that the property is burdensome and is of inconsequential
19 value to the estate.
20 II.
21 THE COURT HAS THE AUTHORITY TO GRANT THIS MOTION
22 The filing of a Chapter 7 case vests the Chapter 7 Trustee with jurisdiction of property of
23 the estate of the Debtor. Upon abandonment, the property reverts to the party holding a

24 possessory interest or to the Debtor, and the property interest is restored nunc pro tunc as of the

25 filing of the bankruptcy petition. In re Kreisel (BC CDCA 2008) 399 B.R. 679, 687; Catalano v.

26 Commissioner of Internal Revenue Service (9th Cir.2002) 279 F.3d 682, 685.

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DEBTOR’S NOTICE OF MOTION AND MOTION TO COMPEL ABANDONMENT OF PROPERTY BY TRUSTEE;


MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN WILLIAM DAVIES IN SUPPORT
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Appendix Notice of Motion and Motion to Compel Abandonment of Property by Truste Page 4 of 10

1 Not all property of the bankruptcy estate will be of value to creditors. Often, the Debtor’s
2 property is so heavily encumbered, as in this case, that there is no equity and the expenses of
3 maintaining the property are greater than can be realized from the sale or other disposition of the
4 property.
5 Upon Motion, the Bankruptcy Code authorizes abandonment by the Trustee to abandon
6 back to the Debtor, any property of the estate that is burdensome to the estate or of
7 inconsequential value and benefit to the estate. 11 U.S.C. §554(a) & (b) (emphasis added).
8 III.
9 THE DEBTOR HAS GIVEN ADEQUATE NOTICE OF THIS MOTION
10 Pursuant to 11 U.S.C. §554(a), abandonment by the Trustee may only occur after notice
11 and opportunity for a hearing. Notice to the Trustee, creditors and all other interested parties as
12 specified in FRBP 6007(a) are required. 11 U.S.C. §554(a),(b); FRBP 6007(a); Sierra
13 Switchboard Co. v. Westinghouse Elec. Corp. (9th Cir.1986) 789 F.2d 705, 709.
14 If no one objects and requests a hearing after proper Notice of the Motion is given to all
15 interested parties, the Section 554 “after notice and a hearing” requirement is deemed satisfied
16 and the Trustee may then abandon the property without obtaining a Court order. 11 U.S.C.
17 §§102(1), 554(a); FRBP 6007(a); Matter of Killebrew (5th Cir.1989) 888 F.2d 1516, 1522, fn.
18 16; Sierra Switchboard Co. v. Westinghouse Elec. Corp., supra.
19 Pursuant to Local Bankruptcy Rule 9013-1(o)(1), Orders may be obtained upon Notice of
20 Opportunity to Request Hearing on any matter that may be set for hearing in accordance with
21 Local Bankruptcy Rule 9013-1, unless one that is specifically noted in subsection (o)(2), and as
22 otherwise ordered by the Court. Any matter that may be set for hearing in accordance with Local
23 Bankruptcy Rule 9013-1 may be determined upon notice of opportunity to request a hearing.

24 When the notice of opportunity for hearing procedure is used, the notice must succinctly

25 and sufficiently describe the nature of the relief sought and set forth the essential facts necessary

26 for a party in interest to determine whether to file a response and request for a hearing.

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DEBTOR’S NOTICE OF MOTION AND MOTION TO COMPEL ABANDONMENT OF PROPERTY BY TRUSTEE;


MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN WILLIAM DAVIES IN SUPPORT
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1 Local Bankruptcy Rule 9013-1(o)(1) requires that any response and request for hearing
2 must be filed with the court and served on the Movant and the United States Trustee within 14
3 days after the date of service of the Notice, plus an additional 3 days unless the Notice of Motion
4 was served by personal delivery or posting as described in F.R.Civ.P. 5(b)(2)(A)-(B). If a party
5 fails to comply with this deadline, the court may treat such failure as a waiver of your right to
6 oppose the Motion and may grant the Motion without further hearing and Notice.
7 In addition, Bankruptcy Code §102 provides, in pertinent part, as follows:
8 "(1) 'after notice and a hearing', or a similar phrase -
(A) means after such notice as is appropriate in the particular
9
circumstances, and such opportunity for a hearing as is appropriate in
10 the particular circumstances; but
(B) authorizes an act without an actual hearing if such notice is given
11 properly and if --
(i) such a hearing is not requested timely by a party in interest . . .
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11 U.S.C. §102 (1)(A)&(B).
13
The Debtor has provided the Trustee, creditors and parties in interest with Notice and of
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this Motion. The Debtor contends that it is in the best interests of the estate to obtain an order on
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this Motion without a hearing.
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IV.
17
CONCLUSION
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For all the foregoing reasons, the Debtor respectfully requests that the Court grant
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Debtor’s Motion to Compel Abandonment of Property by Trustee under 11 U.S.C. §554 in this
20
case.
21
Respectfully submitted.
22

23
Dated: March 11, 2011 GLOBAL CAPITAL LAW
24

25
__/s/ Gary Harre __________________________
26 Gary Harre, Esq.
Diane Beall, Esq.
27 Attorneys for Debtor BRIAN WILLIAM DAVIES
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DEBTOR’S NOTICE OF MOTION AND MOTION TO COMPEL ABANDONMENT OF PROPERTY BY TRUSTEE;


MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN WILLIAM DAVIES IN SUPPORT
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Appendix Notice of Motion and Motion to Compel Abandonment of Property by Truste Page 6 of 10

1 DECLARATION OF BRIAN WILLIAM DAVIES


2
I, Brian William Davies, declare as follows:
3
1. I am the Debtor in the following Chapter 7 case and the following facts are within my
4
personal knowledge, and if I am called upon to testify, I could and would testify as to the
5
following facts stated herein.
6
2. I am the owner of the real property located at 43277 Sentiero Drive, Indio, CA 92203.
7
3. On or about August 31, 2010, I filed the now pending Chapter 7 case under Title 11 of
8
the United States Bankruptcy Code.
9
4. Patricia J. Zimmerman was appointed as the Chapter 7 Trustee (“Trustee”) in this case
10
and my 341(a) Meeting of Creditors was scheduled for October 15, 2010.
11
5. On or about November 26, 2010, the Trustee, pursuant to FRBP 5009, certified that
12
the estate had been fully administered and requested that she be discharged from any further
13
duties as Trustee in my estate and in the case.
14
6. The market value of my real property is approximately $230,000.00 and the disputed
15
debt against said real property is $650,000.00. The real property, taking into account the
16
mortgages, liens and the costs of sale, has no equity for the benefit of the estate or the creditors.
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7. By this Motion, I seek the Court for an Order to compel abandonment of property by
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the Trustee on the grounds that the property is burdensome and is of inconsequential value to the
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estate.
20 8. I have given Notice of the Motion to the Trustee, creditors and to all other interested
21 parties in this case. I believe that it is in the best interests of the estate to obtain an order on this
22 Motion without a hearing.
23 9. I respectfully request that this Court grant my Motion to Compel Abandonment of
24 Property by Trustee in this case.
25 ///
26 ///
27 ///
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DEBTOR’S NOTICE OF MOTION AND MOTION TO COMPEL ABANDONMENT OF PROPERTY BY TRUSTEE;


MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN WILLIAM DAVIES IN SUPPORT
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1 I declare under penalty of perjury under the laws of the United States that the foregoing is
2 true and correct.
3 Dated on this 11th day of March, 2011 at Indio, CA
4

5 _/s/ Brian William Davies ___________________


Brian William Davies, Declarant
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DEBTOR’S NOTICE OF MOTION AND MOTION TO COMPEL ABANDONMENT OF PROPERTY BY TRUSTEE;


MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN WILLIAM DAVIES IN SUPPORT
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1 NOTE: When using this form to indicate service of a proposed order, DO NOT list any person or entity in
Category I.
2 Proposed orders do not generate an NEF because only orders that have been entered are placed on the
CM/ECF docket.
3

4 PROOF OF SERVICE OF DOCUMENT


5 I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My address is:
8700 Warner Avenue, Suite 200, Fountain Valley, CA 92708
6
A true and correct copy of the foregoing document described as Debtor’s Notice of Motion and Motion
7 to Compel Abandonment of Property by Trustee; Memorandum of Points and Authorities;
Declaration of Brian William Davies in Support will be served or was served (a) on the judge in
8 chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner indicated below:

9 I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (“NEF”) – Pursuant to


controlling General Order(s) and Local Bankruptcy Rule(s) (“LBR”), the foregoing document will be served
10 by the court via NEF and hyperlink to the document. On March 11, 2011, I checked the CM/ECF docket
for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the
11 Electronic Mail Notice List to receive NEF transmission at the email address(es) indicated below:

12
� Robert L Firth masonlegal@gmail.com
13 � Gary L Harre ghcmecf@gmail.com
� Christopher Hoo choo@millerlaw.biz
14 � Andrew E Miller amiller@allenmatkins.com
� Loraine L Pedowitz lpedowitz@allenmatkins.com
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� Ramesh Singh claims@recoverycorp.com
16 � United States Trustee (RS) ustpregion16.rs.ecf@usdoj.gov
� Patricia J Zimmermann (TR) pjztrustee@aol.com,
17 pzimmermann@ecf.epiqsystems.com
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II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL(indicate method for each person or entity served):
19
On March 11, 2011, I served the following person(s) and/or entity(ies) at the last known address(es) in
this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed
20 envelope in the United States Mail, first class, postage prepaid, and/or with an overnight mail service
addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be
21 completed no later than 24 hours after the document is filed.

22 Honorable Scott C. Clarkson


411 W. Fourth Street, Suite 5130
23 Santa Ana, CA 92701

24 Service information continued on attached page

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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true
26 and correct.

27 March 11, 2011 Delores Jackson /s/ Delores Jackson


Date Type Name Signature
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DEBTOR’S NOTICE OF MOTION AND MOTION TO COMPEL ABANDONMENT OF PROPERTY BY TRUSTEE;


MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN WILLIAM DAVIES IN SUPPORT
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1 Service information continued

2 American Express
P.O. Box 0001
3 Los Angeles, CA 90096-8000

4 Bank of America
P.O. Box 851001
5 Dallas, TX 75285-1001

Barrett Daffin Frappier


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Treder & Weiss, LLP
7
20955 Pathfinder Road, Suite 300
Diamond Bar, CA 91765
8 Citi Advantage World M/C
P.O. Box 6000
9
The Lakes, NV 89163
10 EAF, LLC
1120 W. Lake Cook Road
11 Suite B
Buffalo Grove, IL 60089
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GC Services Limited Partnership
13 P.O. Box 2667
Houston, TX 77252
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I.M. Chait Gallery
15 9330 Civic Center Drive
Beverly Hills, CA 90210
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Michael Kaiser, Esq.
17 801 E. Tahquitz Canyon Way
Suite 101
18 Palm Springs, CA 92262

National City
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P.O. Box 2349
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Kalamazoo, MI 49003

NDEx West, LLC


21 15000 Surveyor Blvd
Suite 500
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Addison, TX 75001-9013
23 OneWest
6900 Beatrice Dr
24 Kalamazoo, MI 49009

25 Opteum Financial Services


C/O Bimini Capital
26 3305 Flamingo Drive
Vero Beach, FL 32963
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Specialized Loan Servicing
28 8742 Lucent Blvd Ste 300
Littleton CO 80129
DEBTOR’S NOTICE OF MOTION AND MOTION TO COMPEL ABANDONMENT OF PROPERTY BY TRUSTEE;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN WILLIAM DAVIES IN SUPPORT
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The Moore Law Group
2
3710 S. Susan Street
Suite 210
3 Santa Ana, CA 92799

Universal American Mortgage


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K&L Gates, LLP
10100 Santa Monica Blvd
5
7th Floor
Los Angeles, CA 90067
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Universal American Mortgage Co of CA
7 c/o Specialized Loan Servicing LLC
8742 Lucent Blvd Ste 300
8 Highland Ranch CO 80129
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DEBTOR’S NOTICE OF MOTION AND MOTION TO COMPEL ABANDONMENT OF PROPERTY BY TRUSTEE;


MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN WILLIAM DAVIES IN SUPPORT
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