UNITED STATES BANKRUPTCY COURTEastern District of California

Honorable Ronald H. SargisBankruptcy 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 INJUNCTIONNANCY 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, statesthat the Motion and supporting pleadings were served on Defendant.

The moving party is reminded that the Local Rules require the use of a DocketControl Number with each motion. Local Bankr. R. 9014-1(c). Here the movingparty did not assign a Docket Control Number. This is improper. The Courtwill consider the motion, but counsel is reminded that failure to comply withthe 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 setfor 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 PreliminaryInjunction without prejudice. Oral argument may be presented by the partiesat the scheduled hearing, where the parties shall address the issues identifiedin this tentative ruling and such other issues as are necessary and appropriateto the court’s resolution of the matter. If the court’s tentative rulingbecomes its final ruling, the court will make the following findings of factand conclusions of law:

The Plaintiff-Debtor seeks a Preliminary Injunction to prevent the Defendantfrom recovering possession of the real property which is Plaintiff’s home. Thecontrolling authority in this matter is Federal Rule of Civil Procedure 65(a),as made applicable to this proceeding by Federal Rule of Bankruptcy Procedure7065. To prevail, Plaintiff must show:

1. Whether the plaintiff has shown a strong or substantiallikelihood or probability of success on the merits;

2. Whether the plaintiff has shown irreparable injury;

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

4. Whether the public interest would be served by issuing apreliminary injunction.

At the hearing on the Temporary Restraining Order (“TRO”), thePlaintiff offered an affidavit in support of the TRO which purports toestablish the potential irreparable harm to the Plaintiff, but failed toaddress the evidentiary basis for the complaint. (See Civ. Min., June 24,2010.) No additional documents have been filed by either party since the TROhearing.

From the pleadings and evidence before the court, the court is unableto determine if the plaintiff has a strong or substantial likelihood of successon the merits. Nor has the Plaintiff addressed if the public interest wouldbe served by issuing a preliminary injunction.

With respect to irreparable harm, the Debtor’s contention at thehearing for a temporary restraining order was that due to the size of theirfamily, it would be impossible to find alternative housing. Further, thatsince the lawsuit related to real property, and real property is unique,irreparable harm was established. Each of these assertions, unsupported byevidence, are insufficient. Additionally, these allegations are inconsistentwith the prior pleadings in this case concerning the size of the Debtor’sfamily.

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

The bankruptcy case has now been converted to one under Chapter 7 ofthe Bankruptcy Code. The Chapter 7 Trustee may be required to substitute inas 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 formholding that:

Findings of Fact and Conclusions of Law are stated in theCivil Minutes for the hearing.

The Application for a Preliminary Injunction filed bythe Debtor having been presented to the court, and upon reviewof the pleadings, evidence, arguments of counsel, and goodcause appearing,

IT IS ORDERED that the motion of Nancy Brown for the issuanceof 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 - ORDERGeorge Holland TO SHOW CAUSE RE DISMISSAL

OF CASE OR IMPOSITION OFSANCTIONS6-10-10 [45]

Tentative Ruling: The Order to Show Cause was issued due to the failure toattend the scheduled Meeting of Creditors as required by 11 U.S.C. §343. Thecourt’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 orderthe case dismissed.

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

3. 09-47652-E-11 MICHAEL/TANYA PETKUS HEARING - ORDERW. Steven Shumway TO SHOW CAUSE RE DISMISSAL

OF CASE OR IMPOSITION OFSANCTIONS6-7-10 [93]

Tentative Ruling: The Order to Show Cause was issued due to the Failure toFile 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 theList of 20 Largest Unsecured Creditors.

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

The court shall issue a minute order holding that the order to show cause issustained 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 OBJECTIONMLA #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, statesthat the Motion and supporting pleadings were served on other parties ininterest 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 onthe notice required by Local Bankruptcy Rule 3007-1(c)(1). The failure of theTrustee and the respondent creditor to file written opposition at least 14 daysprior to the hearing as required by Local Bankruptcy Rule 3007-1(c)(1)(i) isconsidered as consent to the granting of the motion. Cf. Ghazali v. Moran, 46F.3d 52, 53 (9th Cir. 1995). Further, because the court will not materiallyalter the relief requested by the moving party, an actual hearing isunnecessary. 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 itsruling from the parties’ pleadings.

The Objection to Proof of Claim number 9 of BAC Home Loans Servicing, LP issustained and the claim is disallowed in its entirety with leave for the ownerof the promissory note to file a claim by August 8, 2010. No appearancerequired.

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

11 U.S.C. §502(a) provides that a claim supported by a Proof of Claim isallowed 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. 11U.S.C. §502(b). Based on the evidence before the court, the creditor’s claimis disallowed in its entirety. The Objection to the Proof of Claim issustained. The court will grant leave for the owner of the note to file aProof of Claim by August 8, 2010.

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

Findings of Fact and Conclusions of Law are stated in theCivil 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 Debtorhaving been presented to the court, and upon review of thepleadings, evidence, arguments of counsel, and good causeappearing,

IT IS ORDERED that Objection to Proof of Claim number9 of BAC Home Loans Servicing, LP is sustained and the claimis disallowed in its entirety, without prejudice to the filingof a proof of claim by the party entitled to assert a claim inthis case.

5. 10-31991-E-7 ARTURO/BALBINA TAGUINES HEARING - ORDER TOSHOW CAUSE WHY THE COURTSHOULD NOT ISSUE AN ORDERDISMISSING THE CASE WITHPROVISIONS6-3-10 [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 Debtorshaving filed multiple bankruptcy cases in the year preceding the present case,with each of the prior cases having been dismissed due to the Debtors wholesalefailure to file the minimum documents necessary for the Debtors to prosecutea bankruptcy case in food faith.

The records of the court show that the Debtors have filed the followingcases, the failure of the Debtors to file documents in such cases, and theultimate 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 ofIncomplete Filing and Intent to Dismiss for the Debtors failing tofile 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

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p. Summary of Schedules.

2. Chapter 13 case No. 10-29451, filed by Arturo Taguines on April13, 2010, which was dismissed by order entered on April 27, 2010, forfailure 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 andBalbina Taguines on March 10, 2010, which was dismissed by orderentered on March 30, 2010, for the failure to file the followingdocuments:

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 onFebruary 5, 2010, and dismissed by the court on February 16, 2010, forthe 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,

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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 onDecember 11, 2009, and dismissed by the court on January 27, 2010, forthe 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, andp. Summary of Schedules.

6. The Debtors requesting and obtaining authorization to pay thefiling fees in installments in each of the above cases and failing tomake 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, statesthat the Motion and supporting pleadings were served on Debtor, Debtor’sAttorney, 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 inthis 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, othersupporting documents, proofs of service, and related pleadings shall be filedas separate documents.” Revised Guidelines for the Preparation of Documents,¶(3)(a). Counsel is reminded of the court’s expectation that documents filedwith this court comply with the Revised Guidelines for the Preparation ofDocuments in Appendix II of the Local Rules, as required by Local BankruptcyRule 9014-1(d)(1), and that attorneys practicing in federal court comply withthe Federal Rules of Civil Procedure and the Federal Rules of BankruptcyProcedure.

NOTICEFAILURE 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 thenotice required by Local Bankruptcy Rule 9014-1(f)(1) and Federal Rule ofBankruptcy Procedure 4003(b). The Debtors having filed opposition, the courtwill address the merits of the motion.

The court’s tentative decision is to sustain the objection and disallow thesecond homestead exemption. Oral argument may be presented by the parties atthe scheduled hearing, where the parties shall address the issues identifiedin this tentative ruling and such other issues as are necessary and appropriateto the court’s resolution of the matter. If the court’s tentative rulingbecomes its final ruling, the court will make the following findings of factand conclusions of law:

Vintage Creek, LLC objects to the Debtors’ claim of a homesteadexemption in multiple properties. Debtors’ schedule C shows that they claimhomestead exemptions in the real properties commonly known as 5505 OldSacramento Road, Plymouth, California (pursuant to California Code of CivilProcedure §704.730), and 2442 40th Avenue, San Francisco, California (pursuantto 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),

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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 andthat at least on Debtor must be living at the property. Here, Creditor claimsthat since Debtors have claimed more than one exemption and their petition andprior 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 theproperty in Plymouth, California, though he receives his mail and cares for hisfamily at the Sacramento property. Mr. Baniqued testifies, “I used the 8856Caselman Rd, Sacramento, CA 95828 . . . for all paperwork related things.” Hecontinues, “I spend time with my family at this SACRAMENTO address, receive mymail there and receives my family’s help with various tasks. However, I resideat the 5550 Old Sacramento Road, PLYMOUTH, CA the majority of the time andspend my nights there.” This seems to contradict Debtor’s prior swornstatement, but Debtors’ Counsel argues that the court cannot be sure of thefull context of the statement as only an excerpt of the transcript wasprovided.

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

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

Findings of Fact and Conclusions of Law are stated in theCivil Minutes for the hearing.

The Objection to Exemptions filed by the Trustee havingbeen 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 theclaimed homestead exemptions are disallowed.

IT IS FURTHER ORDERED that Debtors shall file anamended schedule C reflecting their election of in whichproperty they claim a homestead exemption by July 15, 2010, ifthey wish to claim a homestead exemption in any property.

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

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