1 JOHN N. TEDFORD IV (State Bar No. 205537)
jtedford@dgdk.com
2 AARON E. DE LEEST (State Bar No. 216832)
adeleest@dgdk.com
3 DANNING, GILL, DIAMOND & KOLLITZ, LLP
1900 Avenue of the Stars, 11th Floor
4 Los Angeles, California 90067-4402
Telephone: (310) 277-0077
5 Facsimile: (310) 277-5735
6 Attorneys for Diane C. Weil, Chapter 7 Trustee
7
8
UNITED STATES BANKRUPTCY COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
SAN FERNANDO VALLEY DIVISION
11 In re
Case No. 1:11-bk-23855-VK
12 EDWARD E. ELLIOTT,
Chapter 7
13
TRUSTEE’S NOTICE OF MOTION TO:
(1) APPROVE SALE OF REAL
PROPERTY COMMONLY KNOWN AS
2419 BUCKINGHAM ROAD, LOS
ANGELES, CALIFORNIA, FREE AND
CLEAR OF LIENS AND INTERESTS; (2)
APPROVE PAYMENT OF REAL
ESTATE BROKERS’ COMMISSIONS;
AND (3) FIND THAT THE BUYER IS A
GOOD FAITH PURCHASER WITHIN
THE MEANING OF 11 U.S.C. § 363(M)
Debtor.
14
15
16
17
18
19
Date:
Time:
Place:
20
21
February 11, 2016
2:00 p.m.
Courtroom 301
21041 Burbank Boulevard
Woodland Hills, CA 91367
22
23
PLEASE TAKE NOTICE that on February 11, 2016, at 2:00 p.m., in Courtroom 301 of the
24 above captioned Court, Diane C. Weil, the Chapter 7 Trustee (the “Trustee”) of the estate of
25 Edward E. Elliott (the “Debtor”),will hereby move the Court (the “Motion”) for an order: (1)
26 approving the sale of all of the Trustee’s right, title and interest in a parcel of real property
27 commonly known as 2419 Buckingham Road, Los Angeles, California, (the “Property”), to Maria
28 Moon (the “Buyer”) for $550,000 or, alternatively, to a successful overbidder, or backup buyer if
1312979.1 26399
1 applicable; (2) authorizing the Trustee to pay commissions to the real estate brokers; and (3)
2 finding that the Buyer and any backup buyer are good faith purchasers within the meaning of 11
3 U.S.C. § 363(m). The sale is to be “as is” and “where is”, with no warranty or recourse
4 whatsoever. The Court may entertain higher and better bids at the time of the hearing on the
5 Motion.
6
Pursuant to Local Bankruptcy Rule 6004-1(c), the Trustee provides the following
7 information:
8
A.
Date, Time and Place of Hearing: The date, time and place of the hearing on the
9 Motion are set forth above. The Court may entertain higher and better bids at the time of the
10 hearing on the Motion.
11
B.
Proposed Buyer: The Buyer is Maria Moon.
12
C.
Description of the Property To Be Sold: The Trustee proposes to sell all of the
13 estate’s right, title and interest in the Property to the Buyer. The Property is a single family
14 residence.
15
D.
Terms and Conditions of the Proposed Sale, Including the Price and All
16 Contingencies: The terms and conditions of the sale of the Property to the Buyer are memorialized
17 in the purchase and sale agreement (the “Sale Agreement”) attached as Exhibit “1” to the Trustee’s
18 Declaration. Without limiting or altering the terms detailed in the Sale Agreement, those terms are
19 summarized as follows: the purchase price for the Property is $550,000 cash. The Property is
20 being sold “as is” and “where is,” with no warranty or recourse whatsoever. There are no
21 contingencies except for Court approval.
22
E.
Whether the Sale Is Free and Clear of Liens, Claims and Interests or Subject to
23 Them: The Trustee proposes to sell the Property free and clear of all liens, claims and interests,
24 including the liens in favor of the County of Los Angeles, City of Los Angeles, and Bank of
25 America, N.A., which will be removed from the Property, with the allowed amounts to be paid
26 through escrow, and any disputed amounts, to attach to the net sale proceeds. The liens to be
27 removed from the Property will attach to like amounts of the net sale proceeds, with the same
28 force, effect, validity and priority that they had as of the Petition Date as against the Property. If
1312979.1 26399
1 the Trustee no longer disputes an amount, in whole or in part, then he requests authority to pay said
2 amount from the net sale proceeds without any further notice, hearing or order of the Court.
3
The lien in favor of Hollywood Damage Control & Recovery (“HDCR”) was avoided by
4 the Trustee pursuant to a judgment of this Court in a separate adversary proceeding. The sale will
5 be free and clear of the HDCR lien with that lien attaching to the net sale proceeds with the same
6 effect, validity, and priority that it has with respect to the Property.
7
Judgment creditors Mikhail Kapulkin and Ella Gofman (collectively, the “Judgment
8 Creditors”) stipulated with the Trustee to the sale of the Property free and clear of their liens, which
9 stipulation was approved by this Court. The sale will be free and clear of the Judgment Creditors’
10 liens and they will not attach to the net sale proceeds.
11
F.
Whether the Proposed Sale Is Subject to Higher and Better Bids: The proposed
12 sale is subject to overbids. Any person wishing to tender an overbid should deliver to the Trustee
13 at or prior to the hearing on this Motion, a deposit in the form of a cashier’s check in the amount of
14 $16,500 payable to “Diane C. Weil, Chapter 7 Trustee.” Such deposit shall be nonrefundable in the
15 event that the Court confirms the sale to that person but, for any reason whatsoever, the person fails
16 to close the sale timely. Any person wishing to tender an overbid will be required to sign an
17 overbid form, substantially in the form attached as Exhibit “3” to the de Leest Declaration.
18
The sale shall be without any contingencies, including any financing contingency, and shall
19 close escrow no more than 30 but no less than 15 calendar days after the entry of an order
20 approving the Motion. The terms of any such overbid shall be more favorable to the estate than the
21 terms detailed in the Sale Agreement. All overbids must be all-cash bids. All overbids must be
22 accompanied by proof of funds demonstrating the party will be able close the sale within 30 days
23 after the date of entry of the order approving the Motion. The Trustee has sole discretion in
24 accepting overbids.
25
The Trustee also proposes that the Court confirm a back-up buyer so that, in the event that
26 the successful overbidder does not close escrow within 30 days after entry of an order approving
27 the Motion, the Trustee may sell the Property to the back-up buyer for the amount of such back-up
28 buyer’s last bid. Unless tendered at the sale hearing, within five days after being notified that the
1312979.1 26399
1 successful overbidder did not timely close, the back-up buyer must deliver to the Trustee a deposit
2 in the form of a cashier’s check or other certified funds in an amount equal to $16,500, payable to
3 “Diane C. Weil, Chapter 7 Trustee.” The back-up buyer’s deposit shall be nonrefundable in the
4 event that the Court confirms the sale to that party but, for any reason whatsoever, the party fails to
5 close the sale timely.
6
The Trustee holds and retains sole discretion in accepting and rejecting all overbids, subject
7 to Court approval.
8
G.
The Consideration to Be Received by the Estate, Including Estimated
9 Commissions, Fees, and other Costs of Sale: The estate will receive the purchase price, net of
10 payment of : (1) allowed debts secured by real property tax liens in favor of the County of Los
11 Angeles; (2) allowed debts secured by liens of the City of Los Angeles and Bank of America, N.A.;
12 and (3) costs of sale (including brokers’ commissions described in greater detail below), which
13 costs of sale are estimated to be approximately 8%.1
14
H.
Brokers’ Commissions: The Trustee also seeks authority from the Court
15 authorizing her to pay commissions to the brokers. Such commissions would aggregate 6.0% of
16 the purchase price with 1.5% paid to Coldwell Banker and 1.5% paid to Excellence Real Estate as
17 brokers for the Trustee and 3% to New Star Realty & Investment as broker for the Buyer. If the
18 sale is confirmed to an overbidder represented by a different broker, the Buyer’s broker’s
19 commission would be paid to that broker.
20
I.
21
The Trustee is still investigating the potential tax consequences of the sale. However, she
Possible Tax Consequences to the Estate:
22 anticipates having substantial offsets to reduce any potential tax liability.
23
J.
Date by which any Objections Must Be Filed and Served: Any objection to the
24 Motion must be filed and served not later than 14 days before the date of the hearing described
25
26
1
The Trustee will hold $175,000 of the sale proceeds in a segregated account pending the outcome
of
the Debtor’s appeal from the order denying the Debtor’s claimed homestead exemption in the
27 Property.
28
1312979.1 26399
1 above.
2
K.
Good Faith Purchaser: The Trustee also seeks a Court ruling that the party to
3 whom the Court confirms the sale, and any backup buyer, is a good faith purchaser for purposes of
4 11 U.S.C. § 363(m).
5
The Motion is based upon this Notice of Motion, the Memorandum of Points and
6 Authorities, the Declarations of Diane C. Weil, Julio Bonilla,Aaron E. de Leest, the Request for
7 Judicial Notice, the papers and pleadings on file in this case, and such other evidence as may be
8 presented to the Court.
9
PLEASE TAKE FURTHER NOTICE that pursuant to Local Bankruptcy Rule 9013-1(f),
10 any interested party opposing, joining, or responding to the Motion must file with the Clerk of the
11 Court, and serve on the Trustee’s counsel John N. Tedford IV and Aaron E. de Leest, Danning,
12 Gill, Diamond & Kollitz, LLP, 1900 Avenue of the Stars, 11th Floor, Los Angeles, California
13 90067-4402 and the United States Trustee, 915 Wilshire Blvd., Suite 1850, Los Angeles,
14 California, 90017, not less than 14 days before the date designated for hearing a complete written
15 statement of all reasons in opposition thereto or in support or joinder thereof, declarations and
16 copies of all documentary evidence on which the responding party intends to rely, and any
17 responding memorandum of points and authorities. Pursuant to Local Bankruptcy Rule 9013-1(h),
18 papers not timely filed and served may be deemed by the Court to be consent to the granting of the
19 Motion.
20
21 DATED: January ___, 2016
DANNING, GILL, DIAMOND & KOLLITZ, LLP
22
23
By:
AARON E. DE LEEST
Attorneys for Diane C. Weil, Chapter 7 Trustee
24
25
26
DATE OF MAILING: January 21, 2016
27
28
1312979.1 26399
PROOF OF SERVICE OF DOCUMENT
I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is 1900
Avenue of the Stars, 11th Floor, Los Angeles, CA 90067-4402.
A true and correct copy of the foregoing document entitled (specify): TRUSTEE’S NOTICE OF MOTION
TO: (1) APPROVE SALE OF REAL PROPERTY COMMONLY KNOWN AS 2419 BUCKINGHAM
ROAD, LOS ANGELES, CALIFORNIA, FREE AND CLEAR OF LIENS AND INTERESTS; (2)
APPROVE PAYMENT OF REAL ESTATE BROKERS’ COMMISSIONS; AND (3) FIND THAT
THE BUYER IS A GOOD FAITH PURCHASER WITHIN THE MEANING OF 11 U.S.C. § 363(M)
will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b)
in the manner stated below:
1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Pursuant to controlling General
Orders and LBR, the foregoing document will be served by the court via NEF and hyperlink to the document.
On January 21, 2016 I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and
determined that the following persons are on the Electronic Mail Notice List to receive NEF transmission at the email
addresses stated below:
 Service information continued on attached page.
2. SERVED BY UNITED STATES MAIL: On January 21, 2016 , I served the following persons and/or entities at the
last known addresses in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a
sealed envelope in the United States mail, first class, postage prepaid, and addressed as follows. Listing the judge
here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is
filed.
Debtor Edward E. Elliott |2419 Buckingham Rd|Los Angeles, CA 90016-1652
 Service information continued on attached page.
3. SERVED BY PERSONAL DELIVERY, OVERNIGHT MAIL, FACSIMILE TRANSMISSION OR EMAIL (state
method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on January 21, 2016 , I
served the following persons and/or entities by personal delivery, overnight mail service, or (for those who consented
in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes
a declaration that personal delivery on, or overnight mail to, the judge will be completed no later than 24 hours after the
document is filed.
BY PERSONAL DELIVERY BY ALSSI ON JANUARY 22, 2016
The Honorable Victoria S. Kaufman
U.S. Bankruptcy Court
Bin on 1st Floor outside entry to Intake Section
21041 Burbank Blvd.
Woodland Hills, CA 91367
 Service information continued on attached page.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.
January 21, 2016
Date
Beverly Lew
Printed Name
Signature
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.
June 2012
F 9013-3.1.PROOF.SERVICE
ADDITIONAL SERVICE INFORMATION (if needed):
1. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (“NEF”)
Debtor’s Former Atty. Gail Higgins ghigginse@aol.com
Atty. for Debtor Andrew Edward Smyth office@smythlo.com
Attys. for Trustee John N Tedford jtedford@dgdk.com, DanningGill@gmail.com;
jtedford@ecf.inforuptcy.com
Attys. for Judgment Creditors Mikhail Kapulkin and Ella Gofman Alla Tenina_
sashavk_1@yahoo.com, alex@teninalaw.com;alla@teninalaw.com
Attys. for Trustee Alla Tenina sashavk_1@yahoo.com, alex@teninalaw.com;alla@teninalaw.com
United States Trustee (SV) ustpregion16.wh.ecf@usdoj.gov
Trustee Diane Weil (TR) dcw@dcweillaw.com, dweil@ecf.epiqsystems.com
Attys. for Trustee Aaron E de Leest aed@dgdk.com, DanningGill@gmail.com;
adeleest@ecf.inforuptcy.com
2. SERVED BY U.S. MAIL
Employment Development Dept. |Bankruptcy Group MIC 92E|P. O. Box 826880|Sacramento, CA 942800001
Franchise Tax Board |Bankruptcy Section MS: A-340|P. O. Box 2952|Sacramento, CA 95812-2952
Los Angeles City Clerk |P. O. Box 53200|Los Angeles, CA 90053-0200
San Fernando Valley Division|21041 Burbank Blvd,|Woodland Hills, CA 91367-6606
Allied Collection Svcs |7120 Hayvenhurst Ave Ste|Van Nuys, CA 91406-3813
Allied Interstate Inc |3000 Corporate Exchange Dr.|5th Floor|Columbus, OH 43231-7723
BANK OF AMERICA|PO BOX 982238|EL PASO TX 79998-2238
Credit Management Lp |4200 International Pkwy|Carrollton, TX 75007-1912
Dsnb Macys |9111 Duke Blvd|Mason, OH 45040-8999
Franchise Tax Board |Attn: Bankruptcy|PO Box 2952|Sacramento, CA 95812-2952
Grant & Weber |Po Box 8669|Calabasas, CA 91372-8669
INTERNAL REVENUE SERVICE|CENTRALIZED INSOLVENCY OPERATIONS|PO BOX
7346|PHILADELPHIA PA 19101-7346
LA COUNTY TAX |POB 54018|LOS ANGELES CA 90054-0018
Los Angeles County Treasurer and Tax Collect|PO Box 54110,|Los Angeles, CA 90054-0110
Midland Credit Mgmt In |8875 Aero Dr|San Diego, CA 92123-2255
Midnight Velvet |Swiss Colony Midnight Velvet|1112 7th Ave|Monroe, WI 53566-1364
Mikhail Kapulkin and Ella Gofman |Alla Tenina Esq|6350 Laurel Canyon Bl Ste 307|N Hollywood CA
91606-3223
Bank of America, N.A., Agent for Service of Process, C T Corporation System, 818 West Seventh Street,
Ste. 930, Los Angeles, CA 90017
Los Angeles Housing and Community Investment Department, Doug Swoger, Director, Asset Management
1200 W. 7th St., 9th Floor, Los Angeles, CA 90017-2349
Mike Feuer, City Attorney, Los Angeles City Attorney, 200 N. Main Street, Room 800, MS 140, Los
Angeles, CA 90012-4131
City of Los Angeles, Housing & Community Investment Department, Rushmore D. Cervantes, , General
Manager, 1200 West 7th Street, 9th Floor, MS 9580, Los Angeles, CA 90017
The Community Development Dept. of the City of Los Angeles, 215 West 6th Street, Room 700, Los
Angeles, CA 90014
Los Angeles County Tax Collector, P. O. Box 54110, Los Angeles, CA 90054-0110
Trustee’s Broker William Friedman, Coldwell Banker, 8840 S. Sepulveda Blvd., Los Angeles, CA 90045
Trustee’s Broker Julio Bonilla, Excellence Real Estate, 14566 Whittier Blvd., Whittier, CA 90605
Buyer’s Broker Peter Han, New Star Realty Inc., 3030 W. 8th Street #200, Los Angeles, CA 90005
Atty. for Buyer Jiyoung Kym, Esq., 3333 Wilshire Blvd., #320, Los Angeles, CA 90010
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.
June 2012
F 9013-3.1.PROOF.SERVICE