Weil v. Elliott

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UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
SAN FERNANDO VALLEY DIVISION
In re:
Edward E. Elliott
Debtor(s).
CHAPTER 7
Case No.: 1:11-bk-23855-VK
Adv. No: 1:13-ap-01118-VK
ORDER DENYING MOTION FOR CHANGE
OF VENUE
Diane C. Weil
Plaintiff(s),
v.
Edward E Elliott
Defendant(s).
[No hearing required]
On December 1, 2011, Edward Elliott (“Defendant”) filed a voluntary chapter 7
petition (the “Petition”). In the Petition, Defendant listed his residence as 15723
Hiawatha Street, Granada Hills, California, 91344 (the “Hiawatha Property”).In the
Petition, Defendant also verified, under penalty of perjury, that he had been domiciled or
has had residence, principal place of business, or principal assets in the Central District
of California for 180 days immediately preceding the date of this petition or for a longer
part of such 180 days than in any other District. Defendant listed ownership of no real
property in the Petition. Defendant confirmed the accuracy of his Petition and
FILED & ENTERED
JAN 29 2014
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	Pgarcia
Case 1:13-ap-01118-VK Doc 46 Filed 01/29/14 Entered 01/29/14 12:26:43 Desc
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schedules during his section 341(a) meeting of creditors. On January 6, 2012, the
chapter 7 trustee issued a no-asset report. On March 9, 2012, Defendant received a
discharge, and on March 13, 2012, Defendant’s bankruptcy case was closed.
On December 13, 2012, Mikhail Kapulkin and Ella Gofman (“Creditors”) filed a
motion to reopen Defendant’s bankruptcy case because Defendant had failed to list
certain assets and liabilities in his schedules. This included Defendant’s failure to list his
ownership of a Nevada Corporation entitled Lee Wong Investments (“LWI”), which
owned property located at 2419 Buckingham Rd., Los Angeles, CA 90016 (the
“Buckingham Property”). On January 7, 2013, Creditors’ motion to reopen the
bankruptcy case was granted. Diane Weil (“Plaintiff”) was appointed the chapter 7
trustee, and she withdrew the no-asset report.
On June 4, 2013, Plaintiff commenced an adversary proceeding against
Defendant by filing a complaint (the “Complaint”). The Complaint alleges that Defendant
concealed his interest in LWI, which owned the Buckingham Property. The Complaint
also alleges that on March 28, 2012, 19 days after Defendant received his discharge in
his chapter 7 bankruptcy case, he transferred the Buckingham Property to himself as a
“gift.”
Defendant’s answer, filed on October 17, 2013, admits that Defendant currently
resides in the Buckingham Property. In a declaration filed in Defendant’s bankruptcy
case on December 27, 2013, a “friend” of the Defendant, Juanita Jehdian, stated that
Defendant resided in the Buckingham Property at the time he filed the Petition.
On November 25, 2013, Defendant filed a Motion for Change of Venue (the
“Motion”). While not expressly stated, it would appear that the basis of Motion is that the
Debtor resides in the Buckingham Property, and the applicable division of this Court is
the Los Angeles Division, instead of the San Fernando Valley Division.
Pursuant to 28 U.S.C. § 1408(1), a case under title 11 may be commenced in the
district court for the district:
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(1) in which the domicile, residence, principal place of business in the
United States, or principal assets in the United States, of the person or
entity that is the subject of such case have been located for the one
hundred and eighty days immediately preceding such commencement,
or for a longer portion of such one-hundred-and-eighty-day period than
the domicile, residence, or principal place of business, in the United
States, or principal assets in the United States, of such person were
located in any other district . . .
Pursuant to Local Bankruptcy Rule (“LBR”) 1071-1(a)(1), “unless otherwise
ordered by the court,” a bankruptcy petition must be filed in an “applicable division,”
which is “determined by the location of the debtor’s residence, principal offices, officers,
and books and records, or where the majority of the debtor’s assets are located based
on a book value determination as set forth on the debtor’s most current balance sheet.”
28 U.S.C. § 1406 provides, in pertinent part, that:
(a) The district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in which it could
have been brought.
(b) Nothing in this chapter shall impair the jurisdiction of a district court of
any matter involving a party who does not interpose timely and
sufficient objection to the venue.
(emphasis added).
Federal Rule of Bankruptcy Procedure (“FRBP”) 1014(a)(2) provides that:
If a petition is filed in an improper district, the court, on timely motion of a
party in interest or on its own motion, and after hearing on notice to the
petitioners, the United States Trustee, and other entities as directed by the
Court, may dismiss the case or transfer it to any other district if the court
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determines that the transfer is in the interest of justice or for the
convenience of the parties.
Pursuant to LBR 1071-1(b), “[i]f a petition is filed in the wrong division, the court
may, on its own, transfer it to the appropriate division or retain the case.”
Even if Defendant resided in the Buckingham Property when he filed the Petition,
and not in the San Fernando Valley Division, this Court is not required to transfer venue.
28 U.S.C. § 1406 provides that a court’s jurisdiction is not impaired if a party does not
interpose timely and sufficient objection to the venue. Here, it was Defendant who,
under penalty of perjury, listed his residence as one within the San Fernando Valley
Division and submitted to the jurisdiction of this Court. Defendant did not object to
venue until more than two years after the filing of his Petition, making the objection
untimely. Moreover, FRBP 1014(a)(2) provides that a bankruptcy court has discretion as
to whether to dismiss or transfer a case filed in an improper district based on the court’s
determination as to whether the transfer is in the interest of justice or for the
convenience of the parties. Here, a transfer of Defendant’s bankruptcy case and/or this
adversary proceeding to the Los Angeles Division would not be in the interest of justice.
Lastly, LBR 1071-1(b) provides that a Court may retain a case filed in the wrong
division.
Having reviewed the Motion, and Defendant not having demonstrated cause for
this Court to transfer this matter to the Los Angeles Division, it is hereby
ORDERED, that the Motion is denied.
###
Date: January 29, 2014
Case 1:13-ap-01118-VK Doc 46 Filed 01/29/14 Entered 01/29/14 12:26:43 Desc
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