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Adversary Proceedings

I have successfully represented Plaintiffs and Defendants in more than 60 Adversary Proceedings. In many of these cases, I was able to get the case dismissed by filing one or more Rule 12(b)(6) Motions to Dismiss. Cases in which we achieved this result include, but are not limited to Edward Akselrod v. Hamid Reisi Case No. 1:09-ap-01429-KT (unintelligible complaint), Robin Kristie Nicholls v. Nasima Sharifi Case No.1:09-ap-01535-GM (alleged Defendant injured Plaintiff while driving drunk but Defendant was not driving, she loaned her car to her son who was driving), NattyMac Capital v. Jonathan Graham Case No.1:10-ap-01006 (alleged false representation in writing to a bank). Deok Rye Yoon v. Jennie Santa Maria, Case No. : 2:11-ap-02541-BB (alleged debtor obtained money by fraud).

We are not afraid to go to trial on Adversary Proceeding Cases. On March 8, 2019, after a three day trial, Judge Martin Barash decided 100% in favor or our client Dr. Morris Shapow on a 727 Denial of Discharge Case. The case is entitled West Valley Medical Partners, LLC vs Morris Shapow aka Mike Shapow , Case No. 1:16-ap-01021-MB. Plaintiff is a commercial lessor that had previously obtained a $474,000 judgment against my client on a breach of contract action in Los Angeles Superior Court. In this action, Plaintiff and its counsel sought to deny my client’s discharge pursuant to 11 U.S.C. Section 723(a)(2)(A), 727 (a)(3) and 727(a)(4)(A). The Plaintiff alleged that my client, with intent to hinder, delay, or defraud a creditor, transferred, or concealed property of the debtor, within one year before the date of the filing of the petition. The Plaintiff further alleged that my client concealed records and knowingly and fraudulently filed false bankruptcy schedules. In a 42 page Memorandum of Decision Following Trial for publication, Judge Barash analyzed the claims, the law and the evidence in detail and concluded that “Plaintiff failed to meet its burden establishing that Defendant’s discharge should be withheld. . . Accordingly, the Court will enter a separate judgment in favor of Defendant on the entire First Amended Complaint.”

My client had more than a million dollars of unsecured debt and had been hounded by creditors for many years. Now, because of the work that my firm and I did for him, my client will get his discharge and will get the fresh start that he is entitled to.

I try to make sure that no one profits from suing my clients. In this case, opposing counsel Jamie R. Schloss took the case on a contingency fee and recovered nothing for himself and nothing for his client. Along the way, the court sanctioned him $150.00 for his failure to timely meet and confer regarding the pretrial stipulation.

Gary Grabel, The principal of Plaintiff West Valley Medical Partners, LLC, offered testimony against my client, but I was able to impeach his testimony on cross-examination. Here is how Judge Barash describes Mr. Grabel’s testimony: “As for the testimony of Gary Grabel that Defendant discussed with him sometime in 2009 the manner in which one should hold title to property, the Court does not accord much weight to such testimony. Mr. Grabel, as Plaintiff’s principal and longtime adversary of Defendant, has a material interest in the outcome of this proceeding and on the issue of Defendant’s ownership of the Wilshire Condominium. Moreover, Mr. Grabel’s testimony regarding the alleged conversation differed on direct examination and cross-examination. On direct examination, Mr. Grabel testified that Defendant told him he should hold title to his house in a limited liability company or corporation so he could avoid creditors. Trial Tr., March 2 at 17:21 – 18:1. However, on cross-examination, Mr. Grabel testified that Defendant said that he held title to his own house in the name of an entity to avoid his creditors. Trial Trial., March 2 at 20:17-24. Such conflicting testimony by an interested witness is of little probative value in establishing clear and convincing proof to overcome the record title presumption.”

In another important trial, American Contractors Indemnity Company v. Andre Haghverdian, Case No. 2:13-ap-01363-PC, the Plaintiff sought to deny the discharge of my client pursuant to 11 U.S.C. Section 727(a)(2), (a)(3), (a)(5) and (a)(6).  The Plaintiff alleged that our client transferred, removed, or concealed property of the estate, concealed, destroyed or failed to keep adequate financial records, made false oaths as specified in 11 U.S.C. Section 727(a)(4), failed to explain satisfactorily his alleged loss of assets, and refused to obey lawful orders of the Bankruptcy Court.  Plaintiff took extensive discovery, including document requests, interrogatories, requests for admission and numerous depositions.  After a four day trial, United States Bankruptcy Court Judge Peter Carroll ruled completely in favor of my client.  Judge Carroll’s Memorandum Decision and Judgment in favor or my client were entered on May 9, 2014.  Judge Carroll ordered that “the Complaint of American Contractors Indemnity Company for Denial of Discharge Pursuant to 11 U.S.C. Section 727(a)(2), (a)(3), (a)(4), (a)(5) and (a)(6) I dismissed with prejudice.” Because of me and the work that my firm and I did for him, my client was able to discharge more than $800,000.00 in debt and finally get rid of a very aggressive, persistent creditor.

In another notable trial, Rose Zoltek-Jick and Todd Jick v. James Robert Swan Case No. 2:09-ap-02026-BR, the Plaintiffs alleged that our client willfully and maliciously injured them by intentionally violating a court order and demanded no less than $330,000.00 to settle the matter. We went to trial and won completely. The Plaintiffs got nothing. In the Judgment entered May 4, 2011, United States Bankruptcy Court Judge Barry Russell found that the debtor did not intend to injure the Plaintiffs nor did he intend to injure their property. He granted judgment in favor of our client and against the Plaintiffs.

In a significant Chapter 13 Adversary Proceeding case, Randy Nachtrieb v. Jan M. Hahn, 8:09-ap-01403-TA, I represented a Creditor Plaintiff and obtained a judgment against the debtor for $250,000.00 in which the court determined the debt to be nondischargeable under 523 (a) (2), (4) and (6) (false pretenses, false representations and actual fraud while acting in a fiduciary capacity, and willful and malicious injury inflicted upon the Plaintiff by the Defendant).

I recorded an Abstract of Judgment and collected most of the money owed on the judgment when the debtor sold her home in 2012.

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MICHAEL JAY BERGER

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