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Case 16-50644-btb Doc 66 Entered 12/05/19 15:55:37 Page 1 of 6
Matthew D. Francis
Nevada Bar No. 6978
Arthur A. Zorio
Nevada Bar No. 6547
Samantha J. Reviglio
BROWNSTEIN HYATT FARBER SCHRECK, LLP
Telephone: 775-324-4100
Facsimile: 775-333-8171
Email:
mfrancis@bhfs.com
azorio@bhfs.com
sreviglio@bhfs.com
Attorneys for JED MARGOLIN
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
Case No. BK-N-16-50644-BTB
Chapter 15
SUPPLEMENT TO MOTION TO DISMISS CHAPTER 15 CASE
Hearing Date: January 2, 2020
Hearing Time: 2:00 PM
Estimated Time for hearing: 1 hour
IN RE:
GHOLAM REZA JAZI ZANDIAN,
Debtor in Foreign Proceeding.
Jed Margolin (“Mr. Margolin”), by and through his attorneys Brownstein Hyatt Farber Schreck, LLP, hereby files the following Supplement to Amended Motion to Dismiss Chapter 15 Case.
Mr. Margolin has engaged
counsel in
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[1] Fed. R. Civ. P. 44.1 (“The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”); Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036, 1038 (9th Cir. 1999) (“Because the Kamiya declaration stands as an unrebutted presentation and interpretation of Japanese law, the district court erred in granting summary
judgment to Universe”).
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I. THE FRENCH JUDGMENT AGAINST ZANDIAN EXPIRED APRIL 3, 2008
The Chapter 15 petition relies exclusively upon the April 3, 1998 judgment (“Judgment”). ECF 1 at 7. That Judgment against Mr. Zandian expired on April 3, 2008 and cannot be enforced. Carbuccia Decl., § 2 (“L 111-4 of the Code of civil enforcement procedures”); see also, https://e-justice.europa.eu/content_procedures_for_enforcing_a_judgment-52-fren.do?member=1 (Official Website of the European Union – Procedures for Enforcing a Judgment – France); see also declaration of Arthur A. Zorio attached hereto as Exhibit 2 at Ex. A:
4.3 What is the validity of such measures?
Enforceable titles may, in principle, be enforced within a period of 10 years (Article L. 111-4 of the Civil Enforcement Proceedings Code). That period begins when a compulsory enforcement measure is initiated on the basis of that title.
6 Are there any limitations on enforcement, in particular related to debtor protectionor time limits?
Enforceable titles may, in principle, be enforced within a period of 10 years (Article L. 111-4 of the Civil Enforcement Proceedings Code). That period begins when a compulsory enforcement measure is initiated on the basis of that title.
Since the Judgment expired on April 3, 2008, the Judgment was therefore not enforceable at the time that the Chapter 15 petition was filed in this matter in 2016. It expired eight (8) years prior.
Furthermore, the Judgment against Mr. Zandian entered on April 3, 1998 is merely a Judgment, not a bankruptcy proceeding for which Chapter 15 applies to assist in administering. Carbuccia Decl., §§ 1, 3 (“The purpose of the personal bankruptcy proceedings” is to collect money from Mr. Zandian “it does not require … Maitre Canet … to prove the assets or absence of assets of [Mr. Zandian].”).[2]
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[2] See 11 U.S.C. § 1501(a). “Chapter 15 was added to the Bankruptcy Code by title VIII of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the ‘2005 Act’) to encourage cooperation between the United States and foreign countries with respect to transnational insolvency cases. Chapter 15 incorporates the Model Law on Cross-Border Insolvency promulgated in 1997 by the United Nations Commission on International Trade Law (‘UNCITRAL’).” 8 Collier on Bankruptcy P 1501.01 (16th 2019). Code Sections 1525-1527 provide the ability of this Court and the French court to communicate directly or through a trustee for the purpose of coordinating the
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The Judgment collection case against Mr. Zandian is complete. The role of the “liquidator” to collect the Judgment against Mr. Zandian is limited to:
• Make[] an inventory of assets and debts —per creditors statements
• Verif[y], upon the debtor's observations, whether the claims declared arecertain (undisputed), liquid (fixed amount), and payable
• Determine[] the rank of creditors —some are said privileged according to the law 5tax administration, employees..)
• Sell[] the assets to pay the debts
• Allocate the funds according to the rank of each
• Draft a report to the
Carbuccia Decl., § 4. The Zandian “liquidator” issued a report, filed October 31, 2018 stating that:
a total of 545 176,87 € has been collected, that the privileged creditors will be paid in full, and the non-privileged will get something, although not their entire owed amount, since the total amount collected is insufficient to pay the total amount owed….
The report states « Les recouvrements sont realises» which means that collection has been done and is over.
Carbuccia
Decl., § 4
(emphasis added);
II. STATUS OF FRENCH BANKRUPTCY RE: DEBTOR COMPUTER WORLD
The COMPUTER WORLD bankruptcy was CLOSED on November 16, 2018 “for insufficient assets.” Carbuccia Decl., § 5. This was after the instant proceedings were initiated in 2016. This is also before Mr. Canet filed a putative Complaint For Order Authorizing Sale of Real Property, ECF 57 (Case No. BK-N-16-50644-BTB) on September 30, 2019.
It is notable that Mr. Canet’s
French law firm (SCP Canet-Morand) petitioned the
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foreign proceeding in accord with the United Nations Commission on International Trade Law, as adopted in the 2005 BAPCPA. “Under section 1525(a) of the Bankruptcy Code, courts must ‘cooperate to the maximum extent possible’ with foreign courts and foreign representatives and may do so either directly or through the trustee.” [8] Collier on Bankruptcy P 1525.01 (16th 2019).
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liquidator of COMPUTER WORLD LTD * EUROPEAN AUTOMOTIVE PARTS COMPANY and SCI LA HAIE NORMANDE requests the Court to order the closure for insufficient assets of the debtor, in judicial liquidation by judgment of June 11, 1993 and May 23, 1997”). Mr. Canet never informed this Court of the fact that the foreign bankruptcy with COMPUTER WORLD as the debtor was closed.
Ms. Carbuccia notes that by
closing the bankruptcy, Mr. Canet “ceased to represent the company,” and that
there are no ongoing proceedings to the knowledge of the
Ms. Carbuccia reports that there is nothing of record in the French Courts that indicates Mr. “Maitre Canet filed a Chapter 15 Petition in U.S. Bankruptcy Court in May 2016.” Carbuccia Decl., § 4. Hence, there is not only zero coordination with the French Courts pursuant to Chapter 15 or UNCITRAL, there does not appear to be any indication that Mr. Canet was ever acting with any authority whatsoever at any time.
Again, there have been no such communications to coordinate the foreign proceeding at all. Canet has done nothing with the French Courts or in this Court with respect to any foreign proceeding in accord with Chapter 15 of the Code.
III. THE CHAPTER 15 MUST BE DISMISSED
Mr. Margolin explained to this
Court on June 16, 2016, that the Petition relying upon the April 1998 Judgment
was inconstant with Chapter 15. Objection to Petition, ECF 13. Mr. Margolin
explained that Petitioner failed to satisfy the requirements of Section 1515.
On July 30, 2019, Mr. Margolin
filed a Motion to Dismiss the Chapter 15. ECF 35. An Amended Motion to Dismiss
was filed on August 1, 2019. ECF 38. Petitioner, Mr. Canet, has completely
failed to present any evidence to this Court that there is either a foreign
insolvency proceeding for which a Chapter 15 applies, or that he has authority
of a
It
is clear from the Declaration of Ms. Carbuccia, and the accompanying
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documents as well as Article L. 111-4 of the Civil Enforcement Proceedings Code that the instant proceedings before this Court relying solely upon the long expired April 3, 1998 Judgment were never authorized by a French Court; are not part of any French bankruptcy proceeding; and were initiated by fraud.
As discussed in the prior hearing in this matter, by failing to satisfy any requirement of Chapter 15, this Court lacks subject matter jurisdiction over the instant petition as well as any ancillary adversary proceedings.3 The Chapter 15 must be dismissed and the orders entered in the adversary proceedings vacated pursuant to Section 349(b)(3) or declared void ab initio for failure to have jurisdiction over the subject matter.
DATED: This 6th day of December, 2019.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
By: /s/ Arthur A. Zorio
Matthew D. Francis
Arthur A. Zorio
Samantha J. Reviglio
Attorneys for JED MARGOLIN
_________________________________
[3]
Bankruptcy jurisdiction is "'grounded in, and limited by,
statute.'"
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CERTIFICATE OF SERVICE
Pursuant to Fed. R. Civ. P. 5(b), I certify that I am an employee of BROWNSTEIN HYATT FARBER SCHRECK, LLP, and on this 6th day of December, 2019, I served the document entitled SUPPLEMENT TO AMENDED MOTION TO DISMISS CHAPTER 15 CASE on the parties listed below via the following:
Richard F. Holley, Esq.
HOLLEY DRIGGS
rholley@nevadafirm.com
Jeffrey L. Hartman, Esq.
HARMAN & HARTMAN
notices@bankruptcyreno.com
[ ] VIA FIRST CLASS U.S. MAIL: by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Reno, Nevada, addressed to the foregoing parties.
[ ] BY PERSONAL SERVICE: by personally hand-delivering or causing to be hand delivered by such designated individual whose particular duties include delivery of such on behalf of the firm, addressed to the individual(s) listed, signed by such individual or his/her representative accepting on his/her behalf. A receipt of copy signed and dated by such an individual confirming delivery of the document will be maintained with the document and is attached.
[ ] VIA COURIER: by delivering a copy of the document to a courier service for over-night delivery to the foregoing parties.
[X] VIA ELECTRONIC SERVICE: by electronically filing the document with the Clerk of the Court using the CM/ECF system which served the foregoing parties electronically.
/s/ Jeff Tillison
Employee of Brownstein Hyatt Farber Schreck, LLP
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