48 Notice of Motion Declaration - Copy

8/7/2019 48 Notice of Motion Declaration - Copy

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Case 6: 10-bk-37900-SC Doc 48 Filed 10/19/10 Entered 10/19/10 12:27:22 DescMain Document Paae of 11-Attorney or Party Name, Address. Telephone & FAX Numbers, and California Slale Ber Number FOR COURT USE ONLYChristopher J. Hoo 256166Randall S. Miller & , Associates, P.,C.15165 Ventura Blvd., Suite 330Sherman Oaks, CA 91403(818)574-3139

D Individual appearing without counselIR I Attorney for: OneWest Bank, FSB

UNITED STATES BANKRUPTCY COURTCENT.RAL DISTRICT OF CALIFORNIAIn re:Brian William Davies

Debtor(s).

CHAPTER: 7CASE NO.: 10-37900DATE: 11/18/2010TIME: 11:00 amCTRM: 225FLOOR:

NOTICE OF MOTION AND MOTION FOR RELIEF FROM THE AUTOMATIC STAYUNDER 11 U.S.C., 362, (with supporting declarations)(MOVANT: OneWest Bank, FSB )(Real Property)1. NOTICE IS HEREBY GIVEN to the Debtor(s) and Trustee (if any)("R.esponding Parties"), their attorneys (if any), and other interestedparties that on the above date and time and in the indicated courtroom, Movant in the above-captioned matter will move this Court foran Order granting relief from the automatic stay as to Debtor(s) and Dsbtor'sts'] bankruptcy estate on the grounds set forth in the

attached Motion.2. Hearing Location: D 255 East Temple Street,. Los Angeleso 21041 Burbank Boulevard, Woodland Hills

~3420 Twelfth Street, Riverside

D 411 West.Fourth Street, Santa.Anao 1415State Street, Santa Barbara3. a. ~ This Motion is being heard on REGULAR NOTICE pursuant to Local Bankruptcy Rule 9013-1. If you wish to oppose this

Motion, you must file a written response to this Motion with the Bankruptcy Court and serve a copy of it upon the Movant'sattorney (or upon Movant, if the Motion was filed by an unrepresented individual) at the address set forth above no less than14 days before the above hearing and appear at the hearing of this Motion.b. D This Motion is being heard on SHORTENED NOTICE If you wish to oppose this Motion, you must appear at the hearing.

Any written response or evidence may be filed and served:Dat the hearing D at least court days before the hearing.(1) D A Motion for Order Shortening Time was not required (according to the calendaring procedures of the assigned judge).(2) D A Motion for Order Shortening Time was filed per Local Bankruptcy Rule 9075-1(b) and was granted by the Court and

such motion and order have been or are being served upon the debtor and trustee, if any.(3) D A Motion for Order Shortening Time has been filed and remains pending. Once the Court has ruled on that Motion, youwill be served with another notice or an order that will specify the date, time and place of the hearing on the attachedMotion and the deadline for filing and serving a writ ten opposit ion to the Motion.

4. You may contact the Bankruptcy Clerk's Office to obtain a copy of an approved court form for use in preparing your response (OptionalCourt Form F 4001-1M.RES), or you may prepare your response using the format required by Local Bankruptcy Rule 9004-1 and theCourt Manual.

D ec em be r 2 00 9This form is mandatory by Order of the United States Bankruptcy Court for the Central Dist rict of Cali fornia.

F 4001-1 M .RP


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Case 6: 10-bk-37900-SC Doc 48 Filed 10/19/10 Entered 10/19/10 12:27:22 DescMain Document Page 2 of 11MOlion for Relief from Slay (Real Property) - Page 2 of 11 F 4001 ~1M.RP

In reBrian William Davies

(SHORT TITLE) CHAPTER: 7Debtor(s). CASE NO.: 1.0-37900

5 .. If you fail 10 file a vvritien response 10 Ihe Motion or fail 10 appear al the hearing., the Court may treat such failure as a waiver of yourright to oppose the Motion and may g ra nt the requested relief.

Dated: 9f23/10Law O ffices of Randall S . Miller & Associates, PCPrint Law Firm Name (if applicable)

Christopher Hoo (P-256166) Is/Christopher J. HooSignature of Individual Movant or Attorney for Movantrint Name of Individual Movant or Attorney for Movant

D ec em be r 2 00 9This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.

F 4001-1 M .RP


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Case 6: 10-bk-37900-SC Doc 48 Filed 10/19/10 Entered 10/19/10 12:27:22 DescMain Document Page 3 of 11Motion for Relief from Slay (Real Property) - Page 3 of 11 F 4001 ~1M.RP


(SHORT TITLE) CHAPTER: 7Debtor(s). CASE NO.: 10-37900

MOTION FOR RELIEF FROM THE AUTOMATIC STAY(MOVANT: OneWestBank. F S 'B )

1. ThePropertyat r ssue: Movant moves for relief from the automatic stay with respect to fol lowing real property (the "Property"):Street Address: 43277 Sentiero DriveApartmenVSuite No.:City, State, Zip Code: Indio, CA 92203

Legal description or document recording number (including county of recording):Riverside County, Instrument Number 2006-0853245D See attached continuation page.

2. Case History:a. ~ A voluntary D A n involuntary petition under Chapter

was filed on (specify date): 8/31/1.0An Order of Conversion to Chapter D 7 D 11 0 12 0 13was entered on (specify date):Plan was confirmed on ( sp e ci fy d a te ):

~ 7 D 11 D 12 D 13b. 0c. Dd . 0 Other bankruptcy cases affect ing this Property have been pending within the past two years. See attached Declaration.

3. Groundsfor Re'[jef from Slay:a. ~ Pursuant to 11 U.S.C. 36.2(d)(1), causeexists to grant Movant Ihe requested relief from stay as fol lows:

(1) ~ Movant's interest in the Property is not adequately protected.(a) ~ Movant's interest in the collateral. is not protected by an adequate equity cushion.(b ) 0 T he fa ir m arke t v alue of the P ro pe rty is d eclin ing a nd paym enls a re n ot bein g m ade to M ova nt suffic ien t to

protect Movant's interest against that decline.(c) 0No proof of insurance re Movant's collateral has been provided to Movant, despite borrower(s)'s obligation

to insure the collateral under the terms of Movant's contract with Debtor(s).(d) D Payments have not been made as required by an Adequate Protection Order previously granted in this

case.(2) 0 The bankruptcy case was filed in bad faith to delay, hinder or defraud Movant.

(a) D Movant is the only creditor or one of very few creditors listed on the master mailing matrix.(b) D Non-individual ent ity was created just prior to bankruptcy fil ing for the sole purpose of f iling bankruptcy.(c) D The Debtor(s) filed what is commonly referred to as a ''face sheet" filing of only a few pages consisting o

the Petition and a few other documents. No other Schedules or Statement of Affairs (or Chapter 13 Plan,if appropriate) have been filed.(d) D Other (See attached continuation page).

(Cont inued on next page)

D ec em be r 2 00 9This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.F 4001-1 M.RP


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(SHORT TITLE) CHAPTER: 7Debtor(s). CASE NO.: 1.0-37900

(3) 0 (Chapter 12 or 13 cases only)(a) D Pos!confirmalion plan payments have not been made to the Standing Trustee.(b) D Postconfirmation payments required by the confirmed plan have not been made to Movant.

(4) 0 For other cause for relief from stay, see attached continuation page.b. ~ Pursuant to 11 U.S.C. 362(d)(2)(A), Debtor(s) hasfhave no equity in the Property; and pursuant to 362(d)(2)(B), the

Property is not necessary for an effective reorganization.c. 0 Pursuant to 11 U.S.C. 362(d)(3), Debtor(s) has/have failed within the later of 90 days after the petit ion or 30 days after the

court determined that the Property qualifies as single asset real estate to file a reasonable plan of reorganization or tocommence monthly payments.d. 0 Pursuant to 11U.S.G. 362(d)(4), Deblor's(s) fil ing ofthe petition was part of a scheme to delay, hinder, and defraud creditors

that involved:(1) D The transfer of all or part ownership of, or otherinterest in, the Property without the consent of Movant or courtapproval; or(2) 0 Multiple bankruptcy fil ings affecting the Properly.

4. 0 Movant also seeks annulment of the stay so that the fi ling otthe bankruptcy petition does not affect postpetil ion acts, as specifiedin the attached Declaration(s) ..

6, Evidence inSuppo.rt of Motion; (Important Note: Declaration(s) in support of the Motion MUST be attached hereto.}a. l E I Movant submits the attached Declaration(s) on the Court 's approved forms (if applicable) to provide evidence in support o

this Motion pursuant to Local Bankruptcy Rules.b. D Other Declaration(s) are also attached in support ofthis Motion.c. iii Movant requests that the Court consider as admissions the statements made by Debtor{s) under penalty of perjury oonoerninq

Movant's claims and the Property set forth in Debtor(s),s Schedules. Authenticated copies of the relevant portions of theSchedules are attached as Exhibit ....;4.:.....__d. D Other evidence (specify):

6. D An optional Memorandum of Points and Authorities is attached to this Motion.WHEREFORE, Movant prays that this Court issue an Order terminating or modifying the stay and granting the following (specifyforms of relief requested):1. Relief from the stay allowing Movant (and any successors or assigns) to proceed under applicable non-bankruptcy law to enforce itsremedies to foreclose upon and obtain possession of the Property.2. 0 Annulment of the stay so that the filing of the bankruptcy petition does not affect postpetition acts, as specified in the attached

Declaration(s).3. ~ Additional provisions requested:

a. ~ That the Order be binding and effective despite any conversion of this bankruptcy case to a case under any other chapterof Title 11 of the United States Code.

b. [iJ That the 14-day stay described by Bankruptcy Rule 4001(a)(3) be waived.c. 0 That Extraordinary Relief be granted as set forth in the Attachment (attach Optional Court Form F 4001-1M.ER).

D ec em be r 2 00 9This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.F 4001-1M.RP


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(SHORT TITLE) CHAPTER: 7Debtor(s). CASE NO.: 10-37900

d. D . For other relief requested, see attached continuation page ..4. If rel ief from stay is not granted, Movant respectfully requests the Court to order adequate protection.

Dated: 9/23/10 Respectfully submitted,

OneWest Bank, FSBMovant Name

Law Offices Randall S. Miller & Associates, P.C.Firm Name ofAttorney for Movant (if applicable)

By: _Signature

Name: Christopher Hoc (P-256166) IstChristopherJ ..HooTyped Name of Individual Movant or Attorney for Movant

D ec em be r 2 00 9This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.F 4001-1M.RP


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Case 6: 10-bk-37900-SC Doc 48 Filed 10/19/10 Entered 10/19/10 12:27:22 DescMalian fo~j~ePtPocrH'S\~~~ReaIP~~Ry?f ~Jge 6 of 11 F 4001 ..1M ..R

In re (SHORT TITLE) CHAPTER: 7Brian William Davies Debtor(s), CASE NO . . 1 0~37 g00

REAL PROPERTY DECLARATION(MOVANT: OneWasl Ba .nk , FSB )Rrian BurnellI. ---:-::-:---:-:--_ --:-:::---::--_ ::-- " declare as follows:

(Print Name of Declarant)1. I have personal knowledge ofthe matters set forth in this declaration and, if called LJPonto testify, I could and would competently testhereto. I am over 18 years of age. I have knowledge regarding Movant's interest in th e real property that ls the subject of this Moti("Property") because (specify):o I am the Movant and owner of the Property.o I manage the Property as the authorized agent for the Movant.I!I lam employed by Movant as (statet/tle and capacity).:o Other (specify): Assistant Vice Presi. ,. '

2. I am one of the custodlans of the books, records and files of Movant that pertain to loans and extensions of credi t given to Debtorconcerning the Property, I have personally worked on books, records and files, and as to the following facts, I know them to be trof my own knowledge or Ihave gained knowledge of them from the business records of Movant on behalf of Movant, which were maat or about the time of the events recorded. and Which are maintained in the ordinary course of Movant's business at or near the limof the acts, conditions or events to which they relate, Any such document was prepared in the ordinary course of business of Movabya person who had personal know.ledge of Ihe event being recorded and had or has a business duty to record accurately such eveThe business records are avai lable for .inspection and copies can be submitted to the Court if required,

3. a. The address of the Property Ihal is the subject of this Motion is:Street Address: 43277 Sentiero DriveApartment/Suite No.:C ity , S ta te . Z ip C od e~ In d io , CA 92203

b. The legal description or document recording number (including counlyof recording) set forth in Movant 's Deed of Trust isattachas Exhibit 1 .

OSee allached page.4. Type of property (check all applicable boxes);

a. [ B I Debtor's(s') principal residence b. I K Ic. 0 Multi-unit residential d.e. 0 Industrial f.g. D Other (specify):

Other single family residenceo Commercialo Vacant land

(Continued on next page)

This form is mandatory by Order of the United States Bankruptcy Court for the Central Distr ict of Cal ifornia.December 2009 F 4001-1M.R


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Case 6:10-bk-37900-SC Doc 48 Filed 10/19/10Motion f o M f J ~ e R R , c f H ~ ~ ~ ~ R e a l ~ ~ J y p ! p J g e 7 o f 11Entered 10/19/10 12:27:22 DescF 4001-1M.RP


(SHORT TITLE) CHAPTER: 7Debtor(s). CASE NO.: 1037900

5. Nature of Debtor's(s') interest in the Property:a. [iI Sale ownerb. 0 Co-owner(s} (specify):

Lien holder (specify):Other (specify):Debtor(s) I 2 J did 0 did not list the Property in the Schedules filed in this case.Debtor(s) acquired the interest in the Property by 0grant deed 0quitclaim deed U i l trust deed

c . 0d. 0e. I~f. I i J

The deed was recorded on: 11/17 /066. Amount of Movant's claim with respect to the Property: PRE PETITION PQSTPETITIONa. Pnnclpal: $~ _b. Accrued Interest: $ ' _c. Late Charges$, _d. Costs (Attorney's Fees, Other Costs): $ , _f. Advances (Property Taxes" Insurance): $ : . . . . _g. TOTAL CLAIM as of 9/16/1Q $ , _h. D loan is all due and payable because it matured on (specify date).:

$",------$__----$_----$__---$-----$_----

$ 44134936$._ __,. t :: I .. .L..~ .. .. . .. .53.22285$__ -'1~,6~7...., , ' + " 4 2$700.00$_._----==17,141.96$_ __.5u.l:::


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Case 6: 10-bk-37900-SC Doc 48 Filed 10/19/10 Entered 10/19/10 12:27:22 DescMain Document Page 8 of 11Motion for Relief from Stay (Real Property) - Page 8 of 11 F 4001 ..1M . RIn reB ria n W illiam D a vie s

(SHORTTITLE) CHAPTER:7CASE NO.; 10-37900ebtor(s).

10. [g ]a..b.c.d .

11. 012. ~

a,

(Chapter 7 and 11 cases only); The fair market value of the enUre Property is $ : .. .. 2_ 5_1 ,: .. .. 9_76_ ._0. .; ., 0 " established by:o Appraiser's declaration with appraisal a t t a c h e d herewith as E x h i b i t _o A real estate broker or other expert's declarat ion regarding value attached as Exhibit ~~~I R J A t rue and correct copy of rele,vant port ion(s) of Deblor's(s') Schedules attached as Exhibit ....;4 '-- __ .o Other (specify): Tota l Va lu e p ur su an tto aPQ V alue - Exhibit 4The fair market value of the Property is declining based on/due to:

Calculation of equity in Property:Based upon 0 preliminary title report IKIDebtor's(s') admissions in the schedules filed in this case, the Property

subject 10 the following deed(s) of trust or l ien(s) inthe amounts specified securing the debt againslthe Prope

1st Deed of Trust:2nd Deed of Trust:3rd Deed of Trust:Judgment Liens:Taxes:Olher:

Name of HoldetUniversal AmerIcan Mort\7j9QeUniversal American MortQaQ9

Amount as Scheduledby Debtor(s) (if any)

$510,000.00$110,000 ..00

Amount Known 10Declarant and Source

$514,087.59$110,000.00

TOTAL DEBT: s 62Q,000.00b. evidence establishing the existence of the above deed(s) of trust and Hen(s) is attached as E x h i b i t . .. .; 1 , - ,- 0 4 .; _ _ _ ,and consists oo Preliminary title report

!8 l Relevant portions of Oebtor's(s') Schedules as f iled in this caseo Other (specify):c. Subtracting the deed(s) oftrust and other Jien(s) set forth above from the value of the Property as set forth in Paragraph 10 abothe Debtor's(s') equity in the Property is $ -368,024.00 ( 362(d)(2)(A)).d. The value of the "equity cushion" in the Property exceeding Movant's debt and any lien(s) senior to Movant$-372,111.59 ( 362(d)(1)).e. Estimated costs of sale: $ . _ ' _ (Estimate based upon . % of estimated gross sales price)

13. 0 (Chapter 12 and 13 cases only) Chapter 12 or 13 case status information:a. 341(a) Meeting currently scheduled for (or concluded on) the following date:Confirmation hearinq currently scheduled for (or concluded on) tho following date:Plan confirmed on the follOwing date (if applicable):b. Postpetition/preconfirmation payments due BUT REMAINING UNPAID since the filing of the case:

(Number of) payment(s) due at $ each =(Number of) payment(s) due at $ each =(Number of) late charge(s) at $ each :::(Number of) late charge(s) at $ each =

$ , - - - - - - - - - - - - - - - - - - - -$ - - - - - - - - - - - - - - - - - - - -$ , - - - - - - - - - - - - - - - - - - - -$ , - - - - - - - - - - - - - - - - - -(Continued Of) next page)

December 2009This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.F 4001-1 M.R


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Case 6:10-bk-37900-SC Doc 48 Filed 10/19/10 Entered 10/19/10 12:27:22Main Document Page 9 of 11Motion for Relief from Stay (Real Property) - Page 9 of 11Desc

F 4001 ..1M.RPIn reB ria n W illiam Da v ie s

(SHORT TITLE) CHAPTER: 7Debtor(s). CASE NO,: 10~37900

c. PostpeHtion/preconfirmation advances or other charges due but unpaid:(See attachment for details of type and amount.) $:...._--------TOTAL POSTPETITION/PRECONFIRMATION DELINQUENCY: $ _ ~ _

d. Postconfirrnation payments due BUT REMAINING UNPAID since plan confirmation (if applicable);(Number ol) paymen1(s) due at. $ _ . _(Number of) ~paymenl(s) due at $~ _(Number of) late charge(s) at $ _(Number of) late charge(s) at $ _

TOTAL POSTCONFIRMATJON DELINQUENCY:

each = $eaoh _ . $each = $each = $$

$

e. Postconfirmation advances or other charges due but unpaid:(See attachment for details of type and amount.)

f. 0 The claim is provided for In the Chapter 1.2 or 1.3 Plan. Plan payment history is attached as Exhiblt _g. 0 See attached Declaration(s) of Chapter 12 or 13 Trustee regarding receipt of payments under the plan (attach Co

Form F 4001-1M.13).14 . 0 Movant has not . been p ro vid .e d w ith e vid en ce th ai th e P ro pe rty is cu rre ntly imlured, as required under the term s of the loan.15..0 The court. determined that the Property qualifies as single asset real estate on . More Ihan 90 days ha

passed since the filing of the petition, more than 30 days have passed since the court determined thai the Property qualifiessingle asset real estate, the Debtor(s) haslhave nOI. filed a plan of reorganization that has a reasonabl.e possibility of beiconfirmed wilhina reasonable, time or the Debtor(s) has/have not commenced monthly payments to Movant as required by1U.s,C. 362 (d)(3) ..16. 0 See attached continuation page for facts eslablishinglhat the bankruptcy case was filed in bad faith to delay, hinder Of defra

Movant.17 0 The filing of the petilion was part of a scheme to delay, hinder and defraud creditors that involved:

a. 0 The transfer of al l or pari ownership of, or other interest in, the Property without the consent of Movant or court approval. Sattached continuation page for facts establishing the scheme.

b. 0 Multiple bankruptcy filings affecting the Property. The multiple bankruptcy f ilings include the following cases:1. Case Name:Case Number: Chapter:Date Filed: Date Dismissed: Date Discharged:

Relief from stay re this property 0 was 0 was not granted.2. Case Name:Case Number: Chapter:Date Filed: Date Dismissed: Date Discharged:Relief from stay re this property 0 was 0 was not granted.3. 0 See attached continuation page for more information about other bankruptcy cases affecting the Property.

o See attached continuation page for facts establ ishing thal the multiple bankruptcy cases were part of a scheme to delay, hindand defraud creditors.

December 2009This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.F 4001-1 M.RP


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Case 6:10-bk-37900-SC Doc 48 Filed 10/19/10 Entered 10/19/10 12:27:22Main Document Pane 10 of 11M olio n fo r R .e Jie Tro m sta y (R ea l PrOperty) ~Page 10 of 11Desc

F 4001-1M.RP(SHORT TITLE)n re

Brian William Da v ie sCHAPTER: 7

Debtor(s). CASE NO.: 1(}'3790018. 0 Movant seeks annulment of the aut.omatic slay so that the' filing of the bankruptcy petition does not affeclany and all of

enforcement actions set forth In paragraph 8 above that were taken after the filing of the bankruptcy petition. in this case.a. 0 These actions were taken by Movant without knowl.edge of the bankruptcy filing, and Movant wou Id have been entit led to re

from slay 10prooeed withlhese actions.b. 0 Although Movant knew about the bankruptcy filing, Movant had previously obtained relief from stay to proceed with theenfo rc ement a ctio ns ln p rio rb an kru plc y c as es a ffe ctin g th is P ro pe rty a s s et fo rth in p ara gr ap h 17(b ) a bo ve .c. 0 For other facts justifying annulment, see attached continuation page.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and ththis Declaration was executed on ~ '20 ,. . 2 r A L . . at Austin Texas (City, state).

Brian BurnettP rin t D ec la ra nt's N am e

Brian Burnett '.. .. .. ASSistant VIce President

December 2009This form is mandatory by Order of the United Stales Bankruptcy Court for the Central District of California.F 4001-1 M.R


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Documents

48 Notice of Motion Declaration - Copy