UNITED STATES BANKRUPTCY COURT

Eastern District of California

Honorable Ronald H. Sargis

Bankruptcy Judge
Sacramento, California

July 8, 2010 at 10:30 a.m.

1. 10-20002-E-13L NANCY BROWN CONT. HEARING - APPLICATION

10-2296 FOR PRELIMINARY INJUNCTION
NANCY BROWN, VS. 6-15-10 [10] O.S.T.

JACOB BARR

CONT. FROM 6-24-10

Local Rule 9014-1(f)(3) Motion.

Proper Notice Provided. The Proof of Service filed on June 15, 2010, states
that the Motion and supporting pleadings were served on Defendant.

The moving party is reminded that the Local Rules require the use of a Docket
Control Number with each motion. Local Bankr. R. 9014-1(c). Here the moving
party did not assign a Docket Control Number. This is improper. The Court
will consider the motion, but counsel is reminded that failure to comply with
the Local Rules is grounds, in and of itself, to deny the motion. Local Bankr.
R. 1001-1(g), 9014-1(l).

Tentative Ruling: The Application for a Preliminary Injunction was properly set
for hearing on the notice required by Local Bankruptcy Rule 9014-1(f)(3).
Opposition

The court’s tentative decision is to deny the Application for a Preliminary

Injunction without prejudice. Oral argument may be presented by the parties
at the scheduled hearing, where the parties shall address the issues identified
in this tentative ruling and such other issues as are necessary and appropriate
to the court’s resolution of the matter. If the court’s tentative ruling
becomes its final ruling, the court will make the following findings of fact
and conclusions of law:

The Plaintiff-Debtor seeks a Preliminary Injunction to prevent the Defendant

from recovering possession of the real property which is Plaintiff’s home. The
controlling authority in this matter is Federal Rule of Civil Procedure 65(a),
as made applicable to this proceeding by Federal Rule of Bankruptcy Procedure
7065. To prevail, Plaintiff must show:

1. Whether the plaintiff has shown a strong or substantial

likelihood or probability of success on the merits;

2. Whether the plaintiff has shown irreparable injury;

July 8, 2010 at 10:30 a.m.

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 3. Whether the issuance of a preliminary injunction would cause
substantial harm to others;

4. Whether the public interest would be served by issuing a

preliminary injunction.

At the hearing on the Temporary Restraining Order (“TRO”), the

Plaintiff offered an affidavit in support of the TRO which purports to
establish the potential irreparable harm to the Plaintiff, but failed to
address the evidentiary basis for the complaint. (See Civ. Min., June 24,
2010.) No additional documents have been filed by either party since the TRO
hearing.

From the pleadings and evidence before the court, the court is unable
to determine if the plaintiff has a strong or substantial likelihood of success
on the merits. Nor has the Plaintiff addressed if the public interest would
be served by issuing a preliminary injunction.

With respect to irreparable harm, the Debtor’s contention at the

hearing for a temporary restraining order was that due to the size of their
family, it would be impossible to find alternative housing. Further, that
since the lawsuit related to real property, and real property is unique,
irreparable harm was established. Each of these assertions, unsupported by
evidence, are insufficient. Additionally, these allegations are inconsistent
with the prior pleadings in this case concerning the size of the Debtor’s
family.

These failures are each independently fatal to Plaintiff’s application.

The bankruptcy case has now been converted to one under Chapter 7 of
the Bankruptcy Code. The Chapter 7 Trustee may be required to substitute in
as the real party in interest for some or all of the causes of action.

The Application is denied.

The court shall issue a minute order substantially in the following form
holding that:

Findings of Fact and Conclusions of Law are stated in the

Civil Minutes for the hearing.

The Application for a Preliminary Injunction filed by

the Debtor having been presented to the court, and upon review
of the pleadings, evidence, arguments of counsel, and good
cause appearing,

IT IS ORDERED that the motion of Nancy Brown for the issuance

of a preliminary injunction is denied, without prejudice.

July 8, 2010 at 10:30 a.m.

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2. 10-25809-E-7 RANA DOMOMDON HEARING - ORDER
George Holland TO SHOW CAUSE RE DISMISSAL
OF CASE OR IMPOSITION OF
SANCTIONS
6-10-10 [45]

Tentative Ruling: The Order to Show Cause was issued due to the failure to
attend the scheduled Meeting of Creditors as required by 11 U.S.C. §343. The
court’s docket reflects that the Meeting of Creditors has not been concluded.

The court’s tentative decision is to sustain the Order to Show Cause and order
the case dismissed.

The court shall issue a minute order holding that the order to show cause is
sustained and the case is dismissed.

3. 09-47652-E-11 MICHAEL/TANYA PETKUS HEARING - ORDER

W. Steven Shumway TO SHOW CAUSE RE DISMISSAL
OF CASE OR IMPOSITION OF
SANCTIONS
6-7-10 [93]

Tentative Ruling: The Order to Show Cause was issued due to the Failure to
File the List of 20 Largest Unsecured Creditors and the Means Test-Form 22B.
The court’s docket reflects that the Means Test has been filed, but not the
List of 20 Largest Unsecured Creditors.

The court’s tentative decision is to sustain the Order to Show Cause and order
the case dismissed.

The court shall issue a minute order holding that the order to show cause is
sustained and the case is dismissed.

July 8, 2010 at 10:30 a.m.

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4. 10-21656-E-11 RICKIE WALKER HEARING - DEBTOR'S OBJECTION
MLA #4 Mitchell Abdallah TO CLAIMS OF BAC HOME LOAN
SERVICING, L.P.
5-21-10 [68]

Local Rule 3007-1(c)(1) Motion - No Opposition Filed.

Proper Notice Provided. The Proof of Service filed on May 21, 2010, states
that the Motion and supporting pleadings were served on other parties in
interest and Office of the United States Trustee. By the court’s calculation,
48 days’ notice was provided.

Final Ruling: This Objection to a Proof of Claim has been set for hearing on
the notice required by Local Bankruptcy Rule 3007-1(c)(1). The failure of the
Trustee and the respondent creditor to file written opposition at least 14 days
prior to the hearing as required by Local Bankruptcy Rule 3007-1(c)(1)(i) is
considered as consent to the granting of the motion. Cf. Ghazali v. Moran, 46
F.3d 52, 53 (9th Cir. 1995). Further, because the court will not materially
alter the relief requested by the moving party, an actual hearing is
unnecessary. See Boone v. Burk (In re Eliapo), 468 F.3d 592 (9th Cir. 2006).
Therefore, the defaults of the Trustee and the respondent creditor are entered,
the matter will be resolved without oral argument and the court shall issue its
ruling from the parties’ pleadings.

The Objection to Proof of Claim number 9 of BAC Home Loans Servicing, LP is

sustained and the claim is disallowed in its entirety with leave for the owner
of the promissory note to file a claim by August 8, 2010. No appearance
required.

The Proof of Claim at issue, listed as claim number 9 on the court’s official
claims registry, asserts $75,128.22 claim. The Debtor objects to the Claim on
the basis that BAC Home Loans Servicing, LP has not offered any evidence that
it is the beneficiary of the note and deed of trust or other wise legally able
to assert the claim. The Deed of Trust and Note attached to the Proof of Claim
list PMAC Lending Services, Inc. as the mortgagee. The note is not endorsed
and no evidence is offered to show that the Deed of Trust has been assigned to
another.

11 U.S.C. §502(a) provides that a claim supported by a Proof of Claim is

allowed unless a party in interest objects. Once an objection has been filed,
the court may determine the amount of the claim after a noticed hearing. 11
U.S.C. §502(b). Based on the evidence before the court, the creditor’s claim
is disallowed in its entirety. The Objection to the Proof of Claim is
sustained. The court will grant leave for the owner of the note to file a
Proof of Claim by August 8, 2010.

The court shall issue a minute order substantially in the following form
holding that:

Findings of Fact and Conclusions of Law are stated in the

Civil Minutes for the hearing.

July 8, 2010 at 10:30 a.m.

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 The Objection to the Proof of Claim filed by the Debtor
having been presented to the court, and upon review of the
pleadings, evidence, arguments of counsel, and good cause
appearing,

IT IS ORDERED that Objection to Proof of Claim number

9 of BAC Home Loans Servicing, LP is sustained and the claim
is disallowed in its entirety, without prejudice to the filing
of a proof of claim by the party entitled to assert a claim in
this case.

5. 10-31991-E-7 ARTURO/BALBINA TAGUINES HEARING - ORDER TO

SHOW CAUSE WHY THE COURT
SHOULD NOT ISSUE AN ORDER
DISMISSING THE CASE WITH
PROVISIONS
6-3-10 [20]

Court Order to Show Cause: Proper Notice Given.

No Tentative Ruling.

The Order to Show Cause was issued by the court based upon the Debtors
having filed multiple bankruptcy cases in the year preceding the present case,
with each of the prior cases having been dismissed due to the Debtors wholesale
failure to file the minimum documents necessary for the Debtors to prosecute
a bankruptcy case in food faith.

The records of the court show that the Debtors have filed the following
cases, the failure of the Debtors to file documents in such cases, and the
ultimate resolution of those cases.

1. The Debtors having filed the instant Chapter 7 bankruptcy case,

no. 10-31991 on May 6, 2010; the court having issued a Notice of
Incomplete Filing and Intent to Dismiss for the Debtors failing to
file the following documents in the present bankruptcy case:

a. Verification and Master Address List,

b. Chapter 13 Plan,
c. Means Test – Form 22C,
d. Schedule A - Real Property,
e. Schedule B - Personal Property,
f. Schedule C - Exempt Property,
g. Schedule D - Secured Claims,
h. Schedule E - Unsecured Priority Claims,
i. Schedule F - General Unsecured Claims,
j. Schedule G - Executory Contracts,
k. Schedule H - Co-Debtors,
l. Schedule I - Current Income,
m. Schedule J - Current Expenses,
n. Statement of Financial Affairs,
o. Statistical Summary, and

July 8, 2010 at 10:30 a.m.

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 p. Summary of Schedules.

2. Chapter 13 case No. 10-29451, filed by Arturo Taguines on April

13, 2010, which was dismissed by order entered on April 27, 2010, for
failure to file the following documents,

a. Verification and Master Address List,

b. Chapter 13 Plan,
c. Exhibit D with Certificate for Debtor,
d. Means Test – Form 22C,
e. Schedule A - Real Property,
f. Schedule B - Personal Property,
g. Schedule C - Exempt Property,
h. Schedule D - Secured Claims,
i. Schedule E - Unsecured Priority Claims,
j. Schedule F - General Unsecured Claims,
k. Schedule G - Executory Contracts,
l. Schedule H - Co-Debtors,
m. Schedule I - Current Income,
n. Schedule J - Current Expenses,
o. Statement of Financial Affairs,
p. Statistical Summary, and
q. Summary of Schedules.

3. Chapter 13 case No. 10-25841, filed by Arturo Taguines and

Balbina Taguines on March 10, 2010, which was dismissed by order
entered on March 30, 2010, for the failure to file the following
documents:

a. Chapter 13 Plan,
b. Exhibit D with Certificate for Debtor,
c. Means Test – Form 22C,
d. Schedule A - Real Property,
e. Schedule B - Personal Property,
f. Schedule C - Exempt Property,
g. Schedule D - Secured Claims,
h. Schedule E - Unsecured Priority Claims,
i. Schedule F - General Unsecured Claims,
j. Schedule G - Executory Contracts,
k. Schedule H - Co-Debtors,
l. Schedule I - Current Income,
m. Schedule J - Current Expenses,
n. Statement of Financial Affairs,
o. Statistical Summary, and
p. Summary of Schedules.

4. Chapter 7 case No. 10-22806, filed by Balbina Taguines on

February 5, 2010, and dismissed by the court on February 16, 2010, for
the failure to file the following documents:

a. Exhibit D with Certificate for Debtor,

b. Means Test – Form 22C,
c. Schedule A - Real Property,
d. Schedule B - Personal Property,

July 8, 2010 at 10:30 a.m.

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 e. Schedule C - Exempt Property,
f. Schedule D - Secured Claims,
g. Schedule E - Unsecured Priority Claims,
h. Schedule F - General Unsecured Claims,
i. Schedule G - Executory Contracts,
j. Schedule H - Co-Debtors,
k. Schedule I - Current Income,
l. Schedule J - Current Expenses,
m. Statement of Financial Affairs,
n. Statistical Summary, and
o. Summary of Schedules.

5. Chapter 13 case No. 09-47168, filed by Balbina Taguines on

December 11, 2009, and dismissed by the court on January 27, 2010, for
the failure to file the following documents:

a. Chapter 13 Plan,
b. Exhibit D with Certificate for Debtor,
c. Means Test – Form 22C,
d. Schedule A - Real Property,
e. Schedule B - Personal Property,
f. Schedule C - Exempt Property,
g. Schedule D - Secured Claims,
h. Schedule E - Unsecured Priority Claims,
i. Schedule F - General Unsecured Claims,
j. Schedule G - Executory Contracts,
k. Schedule H - Co-Debtors,
l. Schedule I - Current Income,
m. Schedule J - Current Expenses,
n. Statement of Financial Affairs,
o. Statistical Summary, and
p. Summary of Schedules.

6. The Debtors requesting and obtaining authorization to pay the

filing fees in installments in each of the above cases and failing to
make any installments, resulting in the following unpaid filing fees:

a. Case No. 09-47168, Chapter 13 filing fee of $274.00;

b. Case No. 10-22806, Chapter 7 filing fee of $299.00;
c. Case No. 10-25841, Chapter 13 filing fee of $274.00;
d. Case No. 10-29451, Chapter 13 filing fee of $274.00;
e. Case No. 10-31991, Chapter 7 filing fee of $299.00.

July 8, 2010 at 10:30 a.m.

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6. 10-31593-E-11 MODESTO/ASUNCION BANIQUED HEARING - OBJECTION
TF #1 C. Anthony Hughes TO CLAIM OF EXEMPTIONS
6-7-10 [20]

Local Rule 9014-1(f)(1) Motion – Opposition Filed.

Proper Notice Provided. The Proof of Service filed on June 7, 2010, states
that the Motion and supporting pleadings were served on Debtor, Debtor’s
Attorney, other parties in interest, and Office of the United States Trustee.
By the court’s calculation, 31 days’ notice was provided.

The court notes that the moving party filed the declaration and exhibits in
this matter as one document. This is not the practice in the Bankruptcy Court.
“Motions, notices, objections, responses, replies, declarations, affidavits,
other documentary evidence, memoranda of points and authorities, other
supporting documents, proofs of service, and related pleadings shall be filed
as separate documents.” Revised Guidelines for the Preparation of Documents,
¶(3)(a). Counsel is reminded of the court’s expectation that documents filed
with this court comply with the Revised Guidelines for the Preparation of
Documents in Appendix II of the Local Rules, as required by Local Bankruptcy
Rule 9014-1(d)(1), and that attorneys practicing in federal court comply with
the Federal Rules of Civil Procedure and the Federal Rules of Bankruptcy
Procedure.

NOTICE
FAILURE TO COMPLY WITH THE GUIDELINES AND
FILING PLEADINGS WHICH DO NOT COMPLY WITH THE
FEDERAL RULES OF CIVIL PROCEDURE SHALL RESULT
IN THE MOTION BEING SUMMARILY DISMISSED WITHOUT PREJUDICE.
Tentative Ruling: The Objection to Exemptions has been set for hearing on the
notice required by Local Bankruptcy Rule 9014-1(f)(1) and Federal Rule of
Bankruptcy Procedure 4003(b). The Debtors having filed opposition, the court
will address the merits of the motion.

The court’s tentative decision is to sustain the objection and disallow the
second homestead exemption. Oral argument may be presented by the parties at
the scheduled hearing, where the parties shall address the issues identified
in this tentative ruling and such other issues as are necessary and appropriate
to the court’s resolution of the matter. If the court’s tentative ruling
becomes its final ruling, the court will make the following findings of fact
and conclusions of law:

Vintage Creek, LLC objects to the Debtors’ claim of a homestead

exemption in multiple properties. Debtors’ schedule C shows that they claim
homestead exemptions in the real properties commonly known as 5505 Old
Sacramento Road, Plymouth, California (pursuant to California Code of Civil
Procedure §704.730), and 2442 40th Avenue, San Francisco, California (pursuant
to California Code of Civil Procedure §704.950). Creditor, citing to Rabin v.
Schoenmann (In re Rabin), 359 B.R. 242, 248 n.1, 249 (9th Cir. B.A.P. 2007),

July 8, 2010 at 10:30 a.m.

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and Talmadge v. Duck (In re Talmadge), 832 F.2d 1120, 1124 (9th Cir. 1987),
argues that Debtors are only permitted to claim one homestead exemption and
that at least on Debtor must be living at the property. Here, Creditor claims
that since Debtors have claimed more than one exemption and their petition and
prior statements under oath show they do not live at 5505 Old Sacramento Road,
Plymouth, California, this property cannot be exempted as a homestead.

Debtors argue that Debtor Modesto Baniqued in fact lives at the

property in Plymouth, California, though he receives his mail and cares for his
family at the Sacramento property. Mr. Baniqued testifies, “I used the 8856
Caselman Rd, Sacramento, CA 95828 . . . for all paperwork related things.” He
continues, “I spend time with my family at this SACRAMENTO address, receive my
mail there and receives my family’s help with various tasks. However, I reside
at the 5550 Old Sacramento Road, PLYMOUTH, CA the majority of the time and
spend my nights there.” This seems to contradict Debtor’s prior sworn
statement, but Debtors’ Counsel argues that the court cannot be sure of the
full context of the statement as only an excerpt of the transcript was
provided.

Debtors also argue that since they have been separated physically and
finically for seven years, they should be permitted to use two homestead
exemptions. California law plainly prohibits a separated couple from claiming
more than one homestead exemption. “If the judgment debtor and spouse of the
judgment debtor reside in separate homesteads, only the homestead of one of the
spouses is exempt and only the proceeds of the exempt homestead are exempt.”
Cal. Civ. Proc. Code §704.720 (Deering 2010). The Debtors must therefore elect
which one property the will claim as a homestead.

The court shall issue a minute order substantially in the following form
holding that:

Findings of Fact and Conclusions of Law are stated in the

Civil Minutes for the hearing.

The Objection to Exemptions filed by the Trustee having

been presented to the court, and upon review of the pleadings,
evidence, arguments of counsel, and good cause appearing,

IT IS ORDERED that Objection is sustained and the

claimed homestead exemptions are disallowed.

IT IS FURTHER ORDERED that Debtors shall file an

amended schedule C reflecting their election of in which
property they claim a homestead exemption by July 15, 2010, if
they wish to claim a homestead exemption in any property.

July 8, 2010 at 10:30 a.m.

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