The opinion
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POSTED ON WEBSITE
3 NOT FOR PUBLICATION
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5 UNITED STATES BANKRUPTCY COURT
6 EASTERN DISTRICT OF CALIFORNIA
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9 In re ) Case No. 17-27397-E-13
)
10 GEVORG GEORGE POLADYAN and )
ARMINE ASATRYAN, )
11 )
Debtors. )
12 )
)
13 TAPAN TRIVEDI, ) Adv. Proc. No. 18-2014
)
14 Plaintiff, )
)
15 v. )
)
16 GEVORG G. POLADYAN and )
ARMINE ASATRYAN, )
17 )
Defendants. )
18 ___________________________________)
19 This Supplemental Memorandum Decision is not appropriate for publication.
It may be cited for persuasive value on the matters addressed.
20
21 SUPPLEMENTAL MEMORANDUM OPINION AND DECISION
22 The trials in Adversary Proceedings 18-2130 and 18-2014 were concluded with the court
23 stating it Findings of Fact and Conclusions of Law orally on the record. Fed. R. Civ. P. 52(a), Fed.
24 R. Bankr. P. 7052. The trials for the two Adversary Proceedings were jointly conducted due to the
25 necessary determination of facts and conclusions of law that are common to both Adversary
26 Proceedings. This Supplemental Memorandum is issued to document the Undisputed Facts as
27 agreed by the Parties and clearly state the burden of proof/persuasion standards for the two
28 Adversary Proceedings, and is made as part of the court’s Findings and Conclusions.
1 The Parties have documented the undisputed facts in their Statement of Undisputed Facts
2 filed in Adversary Proceeding 18-2130 on July 22, 2019 (Dckt. 68), a copy of which is attached
3 hereto as Addendum “A.”
4 Adversary Proceeding 19-2130 was one commenced by Gevorg Poladyan and Armine
5 Asatryan, the two Debtors in the Chapter 13 case No. 17-27397 (“Debtors”), objecting to the claim
6 filed by Tapan Trivedi, the predecessor in interest to Judith Ambrus and Emeric Ambrus
7 (“Creditors”), who were substituted in as the real parties in interest for the trial. Judith Ambrus and
8 Emeric Ambrus were asserting in Adversary Proceeding 18-2014 that the obligation represented by
9 their claim was nondischargeable.
10 For the claim asserted in Proof of Claim No. 1-1, the prima facie evidentiary value of Proof
11 of Claim No. 1-1 was rebutted by the two Debtors, placing the burden of proof on Creditors to
12 establish the claim by a preponderance of the evidence, as well as the alleged grounds for
13 nondischargeability of the asserted claim. Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d
14 1035, 1039 (9th Cir. 2000); Grogan v. Garner, 498 U.S. 279, 289-291 (1991).
15 As stated on the record, the court determined that Creditors failed to establish there was an
16 obligation owed upon which a claim could be asserted and for which an obligation could be
17 determined nondischargeable.
18 Judgment has been granted for Debtors in both Adversary Proceedings and against Creditors
19 on all claims therein. Separate judgments are entered by the court for each Adversary Proceeding.
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ADDENDUM "A"
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Law Offices of Peter G. Macaluso
Peter G. Macaluso #215730
7230 South Land Park Drive #127
3 Sacramento, California 95831
Telephone: 916-392-6591
Facsimile: 916-392-6590
5} Attorney for Creditor,
Tapan Trivedi, Administrator
of the Estate of Ortansa
Ambrus-Cernat
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8
IN THE UNITED STATES BANKRUPTCY COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SACRAMENTO
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13 | IN THE MATTER OF CASE NO. 17-27397-D-7
GEVORG G. POLADYAN, ADV. NO. 18-02130
ARMINE ASATRYAN,
15
DEBTORS, /
16 DATE: AUGUST 5, 2019
GEVORG G. POLADYAN TIME: 10:00 A.M.
ARMINE ASATRYAN DEPT: E - COURTROOM 33
HONORABLE JUDGE SARGIS
18 PLAINTIFFS
19
TAPAN TRIVEDI,
20 | ADMINISTRATOR FOR THE
ESTATE OF ORTANSA
21 || AMBRUS-CERNAT
JOINT STATEMENT
22 DEFENDANT. / OF UNDISPUTED FACTS
23 Plaintiff, Gevorg G. Poladyan and Armine Asatryan,
24 (hereinafter “Plaintiffs” or “Debtors”) and Defendant, Tapan
trivedi, Administrator for the Estate of Ortansa Ambrus-Cernat
26 (hereinafter “Defendant”), by and through their respective
27 | undersigned attorneys hereby submit this joint statement of
28 || undisputed facts.
1] [—Tenozsronen wamenrac race ——=~S~S~S~*S~*~S~*~i
2 1. Plaintiffs, Gevorg G. Poladyan and Armine
Asatryan (“Plaintiffs” or “Debtors”) are the
3 debtors in the underlying Chapter 13 case, Veo
4 case number 17-27397-D-7.
2. Plaintiffs are, and have been, married to each
5 other since 2008. 0 ©
6 3. Defendant, the Estate of Ortansa Ambrus-Cernat \ ©
(“Defendant”) is the purported creditor in the NU
7 underlying Chapter 13 case.
8 Ortansa Ambrus-Cernat (“Ortansa”), now ~
deceased, was born 1/14/48, and exceeded the KO
9 age of 65 years in 2008.
5. Tapan Trivedi was the Administrator of the
10 estate of Ortansa Ambrus-Cernat, for which
Ortansa’s daughter, Judith D. Ambrus, is a WO
11 beneficiary.
12| [aneric anbrus ie ortanse’s exhusbana. ——«dt Ye
13 7. Plaintiffs were owners of certain real
property commonly known as 2242 Palmwood
14 Court, Rancho Cordova, CA., subject to a 1** C7
Deed of Trust (“Palmwood Property”).
15 In 2008 Plaintiffs were behind on the mortgage
16 for the Palmwood Property and were facing Veo
foreclosure.
17 The Debtors were issued a Notice of Default as
18 to Palmwood Property.
10. | The Debtors were issued a Notice of Sale as to Vo
19 Palmwood Property. C7
(“Contract”).
21 12. |The contract was as follows:
22 (a) Defendant was to purchase Plaintiffs’
Palmwood Property at the short sale by taking N O
23 out a loan with Wells Fargo on her Oak Ave.
property;
24 (bo) Defendant was to allow Plaintiffs to
remain living in the Palmwood Property;
25 (c) Plaintiffs were to make the Oak Ave.
property loan payments to Wells Fargo;
26 (d) Defendant was to transfer Palmwood
Property to Plaintiffs; and
27 (e) Plaintiffs would refinance the Palmwood
Property to pay off the acquired Oak Ave.
28 loan.
1 13. | The Contract Debtors entered into with Ortansa
2 held substantive terms in which Ortansa would
borrow $180,000.00 on her home, buy Debtors’ /
3 home at a short-sale, and sell it back to them Vo
when they qualified for a loan again, to which
4 Debtors agreed, and Ortansa performed.
14. | Debtors’ represented that if Ortansa saved
5 Palmwood from foreclosure by buying it ata &
short-sale, and then transfer it to them, they
6 would refinance the property and repay her.
7 15. | Ortansa reasonably relied on Debtors’
representation to repay the loan from the Oak
8 Ave. property, which was used to buy the
Palmwood Property.
9
16. | Debtors agreed that after a sufficient time ‘\
10 had passed they would refinance the Palmwood PO
Property and repay Ortansa.
i 17. | Debtors’ made a fraudulent statements and
12 representations (“Representations”) to Ortansa. O
18. | These Representations were made from 4/30/11
14 19. |The Representations were made directly to i)
5 Ortansa by Debtors.
20. | Plaintiffs wrote Ortansa a handwritten letter,
16 promising to “pay the loan as soon as Ves
possible.”
17
21. | Promises to make payments on this loan were
18 witnessed by Ortansa ’s daughter, Judith
Ambrus.
19 22. □ Plaintiffs promised to care for Ortansa’s
20 mentally-challenged son after her death.
23. | Plaintiffs signed a Grant Deed to Ortansa on
22 24. |On or about 8/8/08, Ortansa purchased the VeS □□
Palmwood Property from Plaintiffs at a short y “I
23 sale for $150,000.00, wtrtr-money—from—a-tearr 4 ye
a? le
on-~her—Oak Ave. property.
24
25. 8/8/08, Debtor Armine Asatryan received a
25 cashier’s check for $15,962.76 from Ortansa for O
the purchase of the Palmwood Property in a
26 short sale.
27 26. |The relationship between the Debtors and
Ortansa was not disclosed to the Mortgage
28 Company.
27. |The Documentary Transfer Tax on the sale from
Plaintiffs’ to Ortansa was $165.00.
1 28. | Ortansa allowed the Plaintiffs to remain in
2 the Palmwood Property, and carried residential
insurance through State Farm, policy #55-BP- Ye
3 R539-9.
29. |After the short-sale closed, the Plaintiffs
4 remained in the Palmwood Property, where they Ve
5 reside presently.
30. | Plaintiffs intended to repay Ortansa’s
6 mortgage payment after Ortansa transferred the NO
Palmwood Property back into Plaintiffs’ name.
7
31. | Plaintiffs obtained a Seller’s Permit for “IN C2
8 N OUT HONDA” on 3/1/11.
9 32. |On or about 2/2/12 Ortansa signed a grant deed for V
the Palmwood Property to Debtor Armine Asatryan.
10 33. |The grant deed signed on 2/2/12 states that
there was “No Concideration” and exemption
from documentary transfer tax exemption under Yes
Revenue and Tax code section 11911, when filed
with the recorded.
13 34. |On 10/1/12, Plaintiffs signed a written loan
contract with Outsource Legal Support, LLC
14 (“Outsource”), for $100,000.00 (“Outsource
4g Note #1).
35. | Plaintiffs testified they “didn’t use a bank”
16 when asked “what bank did you put this
$100,000.00 in?” at their 341 Meeting of
17 Creditors 4/30/18. Veo
18 See transcript from recorded proceedings, 341
Meeting of Creditors, 4/30/18, pg. 12, lines
19 9-10. .
20 36. | Plaintiffs testified that they were not given
the full $100,000.00 when they signed for the
21 Outsource Note #1. Ves
22 See transcript from recorded proceedings, 341
Meeting of Creditors, 4/30/18, pg. 13, line
23 12.
4 37. | Plaintiffs testified that instead of receiving
the loan in a lump sum, they “borrowed the
5 money a [every] month” and that “it came up to
this amount.” Ve Y
26 See transcript from recorded proceedings, 341
Meeting of Creditors, 4/30/18, pg. 12, lines
24-25.
28
38. | Plaintiffs testified the money from Outsource
2 Note #1 was “given to me little by little,
three thousand, two thousand, five thousand.”
3 See transcript from recorded proceedings, 341 \th
4 Meeting of Creditors, 4/30/18, pg. 12, lines
14-17.
5 39. | Plaintiffs testified “Yes, sir,” when asked
6 “So he gave you cash?”
See transcript from recorded proceedings, 341 yer
7 Meeting of Creditors, 4/30/18, pg. 12, lines
8 21-22.
40. | Plaintiffs testified “Yes,” when asked “and
9 you went and bought money orders for cash?”
10 See transcript from recorded proceedings, 341 Wwe
Meeting of Creditors, 4/30/18, pg. 12, lines
11 23-24,
12 41. | Plaintiffs testified “Like we said, we didn’t
put anything in a bank.”
13 VG
See transcript from recorded proceedings, 341
14 Meeting of Creditors, 4/30/18, pg. 19, lines
11-12.
15 42. |In response to: “And she agreed with you guys
16 to buy the house so that you wouldn’t lose
your house, right?”, the Plaintiffs testified
17 “Well, she - bought it because she had - she
had - she had money. She could afford it. And □
18 it was a short sale, it was a cheap house, and y 5
she bought it.”
19 See transcript from recorded proceedings, 341
20 Meeting of Creditors, 4/30/18, pg. 24, lines
7-13.
21 43. | Plaintiffs entered into a Loan Agreement,
dated 4/1/13, in the amount of $80,000.00, □
22 from Outsource Legal Support, LLC (Outsource
Note #2).
23
On 3/1/14, Plaintiffs breached the agreement
24 by failing to make payments on the Oak Ave. □□ O
95 property.
45. |On 4/14/14, Plaintiff Armine Asatryan signed
26 an Agreement to Transfer Funds, that stated
“the proceeds from the refinanced loan on 2242
27 Palmwood Ct., Rancho Cordova, CA will be 0)
assigned during the escrow process to payoff /
28 the loan on the property 6005 Oak Ave.,
Carmichael, CA.”
[46. [on 5/6/14 Ortansa passed away from cancer. |
47. |On or about 9/16/14, Plaintiffs obtained a 1**
2 Deed of Trust with Pinnacle Capital Mortgage
Corporation in the amount of $50,000.00,
3 secured by the Palmwood Property.
Plaintiffs did not disclose Outsource Note #1
4 or Note #2 to Pinnacle Capital Mortgage
Corporation before obtaining the $50,000.00 VEG
5 loan.
6 The funds Plaintiffs received from the 1** Deed
of Trust with Pinnacle Capital Mortgage ¢
7 Corporation were not paid to Defendant.
g 50. |On 11/18/14, the Plaintiffs’ mortgage for the
Palmwood Property purchase was held by Wells Ve
9 Fargo Home Mortgage.
10 51. | On 12/16/15, Defendant filed a civil action in
Sacramento Superior Court against Debtors for C9
11 breach of contract, damages, and attorney
fees, Case #34-2015-00188010 (“Civil Action”).
12 52. |Gevorg Poladyan and Armine Asatryan’s Answer
: : wn
B to the Civil Action was filed on or about Unkpo ww)
3/30/16, and never asserted the transfer was a reve
14 gift. 1 wees
53. | Outsource Legal Support, LLC recorded two (2)
15 Deeds of Trust on 9/5/17 for $100,000.00 and
$80,000.00, and thereafter a UCC-1 Financial Ve?
16 Statement with the Secretary of State of
California.
54. | Plaintiffs filed a petition for relief under
18 Chapter 7 of the Bankruptcy Code on 11/8/17. 05
19 55. | Judith D. Ambrus has personal knowledge of
Ortansa making the loan to Debtors, and that A) O
20 Debtors were making payments on the loan.
1 56. | Outsource office is located at 1367 Garden
Hwy., Unit 200, Sacramento, CA 95833.
22 57. | Friedman Law Firm, which is located at 1395
Garden Hwy., Unit #200, Sacramento, CA 95833,
23 was Attorney Gabriel Lieberman’s office CO
location when the case was filed, and who was
24 the attorney of record.
25 58. | Both parties admit jurisdiction for this
Adversary Proceeding exists pursuant to 28 VO O
26 U.S.C. 1334 and 157.
27 59. Both parties admit this is a core proceeding
pursuant to 28 U.S.C. 157(b) (2), and to the
28 extent any matter is non-core, consents to the €
bankruptcy judge issuing all final orders and
judgments in this Adversary proceeding.
Respectfully submitted,
3
Dated: 5/15/19 /s/Peter G. Macaluso
4 Peter G. Macaluso,
; Attorney for Defendant
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Dated: SA
8 attocn (pchettar fs
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Instructions to Clerk of Court
2 Service List - Not Part of Order/Judgment
3 The Clerk of Court is instructed to send the Order/Judgment or other court generated
document transmitted herewith to the parties below. The Clerk of Court will send the document
4 via the BNC or, if checked ____, via the U.S. mail.
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Debtors / Defendant-Debtors Attorney for the Debtors
6
7 Bankruptcy Trustee (if appointed in the Office of the U.S. Trustee
case) Robert T. Matsui United States Courthouse
8 501 I Street, Room 7-500
Sacramento, CA 95814
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Peter G. Macaluso, Esq. Peter L. Cianchetta, Esq.
10 7230 South Land Park Drive, #127 8788 Elk Grove Blvd., Ste. 2A
Sacramento, CA 95831 Elk Grove, CA 95624
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