Neary et al v. Asnami

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re No. 04-43445 TD
Chapter 7
SHAM P. ASNAMI,
Debtor.
___________________________/
SARA L. KISTLER, Acting A.P. No. 04-4293 AT
United States Trustee,
Plaintiff,
vs.
SHAM P. ASNAMI,
Defendant.
___________________________/
MEMORANDUM RE DENIAL OF REQUEST FOR DEFAULT JUDGMENT
The Office of the United States Trustee (the “UST”) filed a
complaint seeking to deny the chapter 7 discharge of the above-
captioned debtor (the “Debtor”). The complaint alleges, on
information and belief, that the Debtor is also known as Sham
Asnani, Shan Asnani, Shem Asnani, Parsram Asnani, Parasram Asnani,
and Ghanshyam P. Asnani (the “Other Names”). It alleges that the
Debtor filed three prior cases using one of the Other names: i.e.,
Signed: April 21, 2005
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
April 21, 2005
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 04-04293 Doc# 16 Filed: 04/21/05 Entered: 04/21/05 16:51:37 Page 1 of 5

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one in 1990, one in 1995, and one in 2003. It alleges that he
received a discharge in the case filed in 1995. The 2003 case was
filed within the last six years. The complaint alleges that, in
the petition filed to commence this case (the “Petition”), the
Debtor failed to disclose that he had used any of the Other Names
or that he had filed a bankruptcy case within the last six years.
The complaint alleges that, in the Petition, the Debtor stated
that he was single and, in the Statement of Financial Affairs,
stated that he had no spouse and was not a party to any lawsuits.
It alleges that the Debtor is married to Yashna Asnani, is
involved in a lawsuit with Mortgage Press Ltd and has a connection
with Royal Crow Bancorp. He also stated that he was not and had
not been an officer, director, partner, or managing executive of
any corporations, partnerships, sole proprietorships, and was not
and had not been a self-employed professional within the last six
years. The complaint alleges these statements were false and
that he fraudulently failed to disclose required information on
the Petition and in the Statement of Financial Affairs.
The Debtor was duly served with a summons and complaint and
failed to file an answer within the time required. His default
was taken, and the UST filed an application for a default judgment
(the “Application”). The sole evidence provided in support of the
Application was the declaration of Minnie Loo (the “Loo
Declaration”), the Assistant United States Trustee in charge of
the Oakland office of the UST. The Loo Declaration stated, on
Case: 04-04293 Doc# 16 Filed: 04/21/05 Entered: 04/21/05 16:51:37 Page 2 of 5

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information and belief, that, in the Petition, the Debtor had
failed to disclose that he had filed bankruptcy cases using the
Other Names or that he had filed another bankruptcy case within
the preceding six years. Attached to the Loo Declaration is a
copy of a bankruptcy petition filed in June 2003. The debtor in
that case bore one of the Other Names. There is no explanation of
why the UST believes that the Debtor and the individual who filed
the previous cases are the same person. Although the names of the
Debtor and the prior filer are similar, the Court is not persuaded
that this is a sufficient basis for denying the Debtor’s
discharge. It may be that the UST has more of a factual basis for
the Application. However, that additional factual basis must be
provided to the Court.
The Court also finds troubling the UST’s inclusion in the
Application of the following quotation: “Upon default, the factual
allegations of the complaint will be taken as true. In re
Villegas (Valley Oak Credit Union v. Villegas), 132 B.R. 742, 746
(Bankr. 9th Cir. 1991).” The Court initially read this statement
as requiring entry of default judgment, assuming the allegations
of a complaint were sufficient, whenever a defendant failed to
answer the complaint. The Court was surprised by this quotation
since the Court’s understanding of the law was that a default
judgment required the submission of evidence sufficient to support
a prima facie case.
When the Court reviewed the case, it discovered that the
statement had been taken out of context and that the holding of
Case: 04-04293 Doc# 16 Filed: 04/21/05 Entered: 04/21/05 16:51:37 Page 3 of 5

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the cited case was exactly contrary to what the isolated statement
implied. The statement was made as a footnote to the principal
holding of the case: i.e., that the trial court has broad
discretion to require evidence in support of the request for a
default judgment and that entry of a default does not entitle the
plaintiff to a default judgment as a matter of right. The Court
views the citation of the quoted language out of context as
improper practice.
If the UST wishes to obtain a default judgment, it should
submit a declaration containing a better explanation of the basis
for its belief that the Debtor is the same person who filed the
previous three cases.
END OF DOCUMENT
Case: 04-04293 Doc# 16 Filed: 04/21/05 Entered: 04/21/05 16:51:37 Page 4 of 5

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COURT SERVICE LIST
Minnie Loo
Office of United States Trustee
1301 Clay St., Ste. 690N
Oakland, CA 94612-5217
Sham P. Asnami
30743 Knight Ct.
Union City, CA 94587
Case: 04-04293 Doc# 16 Filed: 04/21/05 Entered: 04/21/05 16:51:37 Page 5 of 5