{ Converted to text. The PDF is the controlling document. The Exhibits are in the PDF. JM}
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REC'D & FILED
2016 May -3 PM 2:05
Susan Merriwether. CLERK
BY DEPUTY _________
Matthew D. Francis (6978)
Adam P. McMillen (10678)
Brownstein Hyatt Farber Schreck, LLP
Telephone: 775-324-4100
Facsimile: 775-333-8171
Attorneys for
Plaintiff Jed Margolin
In The First Judicial
District Court of the State of
In and for
|
JED MARGOLIN, an individual,
Plaintiff,
vs.
OPTIMA TECHNOLOGY
CORPORATION, a
Defendants.
|
Case No.: 090C00579 1B Dept. No.: 1
MOTION TO VOID
DEEDS, ASSIGN PROPERTY, FOR WRIT OF EXECUTION AND TO CONVEY |
Plaintiff Jed Margolin ("Plaintiff'), by and through his attorneys of record, hereby files the following Motion to Void Deeds, Assign Property, for Writ of Execution and to Convey.
MEMORANDUM OF
POINTS AND AUTHORITIES
I. Introduction
The Complaint and Amended Complaint
in this matter are based upon Defendant Reza Zandian's
("Zandian") fraudulent assignment of patents. Shortly after the Court
denied Zandian's motion to set aside the default
judgment Zandian filed fraudulent deeds in five
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an attempt to avoid execution of the judgment. More recently, Zandian attempted to bribe the undersigned by offering to pay $30,000 to $50,000 to the undersigned if the undersigned would resolve this matter without giving any money or consideration to Plaintiff. Zandian has made it clear he will do anything to keep from having to pay the judgment.
Plaintiff now moves the Court to void the fraudulent deeds,
transfer Zandian's interest in certain
II.
Procedural Background
As the Court is well aware, Plaintiff filed his original Complaint on December 11, 2009. Plaintiff alleged five claims: (1) Conversion, (2) Tortious Interference with Contract, (3) Intentional Interference with Prospective Economic Advantage, (4) Unjust Enrichment, and (5) Unfair and Deceptive Trade Practices. The claims are based upon Zandian's fraudulent assignment of patents. After several motions to dismiss, Zandian filed a General Denial to the Amended Complaint on March 5, 2013. Thereafter, Zandian's counsel withdrew and a Default Judgment was entered against Zandian on June 24, 2013.
On December I I, 2013, Plaintiff filed a Motion for Debtor's Examination and to Produce Documents. On December 20, 2013, Zandian filed a Motion to Set Aside the Default Judgment. On January 13, 2014, the Court entered an Order Granting the Motion for Debtor's Examination and to Produce Documents. On February 6, 2014, the Court entered an Order Denying Zandian's Motion to Set Aside the Default Judgment. On March 12, 2014, Zandian filed a Notice of Appeal regarding the Court's Order Denying the Motion to Set Aside the Default Judgment.
On June 10, 2015, Plaintiff filed another Motion for Judgment Debtor Examination and to Produce Documents. On October 19, 2015, the Nevada Supreme Court affirmed the Court's orders denying Zandian's motion to set aside the default judgment and awarding fees and costs. On November 6, 2015, the Court entered an Order Granting the Motion for Debtor's Examination and to Produce Documents, whereby Zandian was required to produce documents by December 21, 2015 and to appear for a debtor's examination in February of
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2016, On February 3, 2016, the Court held Zandian in contempt for failing to produce documents as ordered by the Court and issued a warrant for his arrest,
On February 24, 2016, pursuant to
the Court's November 6, 2015 Order, Plaintiff held the duly noticed debtor's
examination of Zandian in
III. Pertinent Additional Factual Background
A. Fraudulent Deeds
On February 6, 2014, the Court
entered an Order Denying Zandian's Motion to Set
Aside the Default Judgment. Shortly thereafter, Zandian dirtied the title to 22
parcels of real property throughout
On March 17, 2014, Zandian recorded
a grant deed with
On March 18, 2014, Zandian
similarly dirtied the titles to three parcels in
On March 18, 2014, Zandian
similarly dirtied the title to one parcel in
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This parcel was also purchased after August 21, 2003 and the purchase documents do not refer to the alleged "financial agreement." See McMillen Declaration, Exhibit 11.
Zandian dirtied the title to nine
other parcels in
On May 21, 2014, Zandian dirtied
the titles to six parcels in
On May 30, 2014, Zandian similarly
dirtied the titles to two parcels in
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23. All of these parcels were purchased after August 21, 2003 and none of the purchase documents refer to the alleged "financial agreement." See McMillen Declaration, Exhibits 24- 25.
B. Zandian's
Attempted Bribery
From April 12-19, 2016, Zandian
emailed the undersigned. See McMillen Declaration,
Exhibit 26. Zandian stated that he wanted to pay (bribe) the undersigned
because he believes the undersigned has been "unfairly exploited for 8
years based on a judgment obtained by fraudulent service and address."
The undersigned told Zandian he
represents the interests of Plaintiff and would not accept an offer (bribe) to
settle this matter outside of Plaintiffs interests and requested a serious
offer to settle this matter.
The email communications from Zandian show Zandian is well aware of the Court's orders regarding the debtor's examination and the ensuing bench warrant for disobeying the Court's orders. The email communications show Zandian is willing to continue committing fraud upon Plaintiff and the Court and that he has no regard for Plaintiff, the Court or the rule of law.
IV. Argument
A. Zandian's Fraudulent Transfers Should Be Declared Void
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A "transfer made ... by a debtor is fraudulent as to a creditor ... if the debtor made the transfer ... [w]ith actual intent to hinder, delay or defraud any creditor of the debtor[.]" NRS 112.180(1)(a). Actual intent may be determined by considering the following factors as to whether:
(a) The transfer or obligation was to an insider;
(b) The debtor retained possession or control of the property transferred after the transfer;
(c) The transfer or obligation was disclosed or concealed;
(d) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(e) The transfer was of substantially all the debtor's assets;
(f) The debtor absconded;
(g) The debtor removed or concealed assets;
(h) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
(i) The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
j) The transfer occurred shortly before or shortly after a substantial debt was incurred; and
(k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.
NRS 112.180(2)(a-k).
Many of the NRS 112.180(2) factors apply to Zandian's
conduct. Zandian recorded fraudulent deeds in five
While the fraudulent deeds were
recorded with the county recorders' offices, the 2003 "financial agreement"
was not disclosed and remains concealed by Zandian. Also, Zandian has absconded
and he refuses to comply with this Court's orders and refuses to produce
documents or to appear for a debtor's examination and says he is now living in
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As a result of the fraudulent transfers, Plaintiff may obtain avoidance of such transfers "to the extent necessary to satisfy the creditor's claim." NRS 112.210(1). "Subject to applicable principles of equity and in accordance with applicable rules of civil procedure" this Court may also provide "[ajny other relief the circumstances may require." NRS 112.210(1)(c). Accordingly, Plaintiff requests the Court issue an order voiding the transfers detailed in Section III(A), above.
B.
Application Of Property Toward Satisfaction Of
Judgment
"All goods, chattels, money and other property, real and personal, of the judgment debtor, or any interest therein of the judgment debtor not exempt by law, and all property and rights of property seized and held under attachment in the action, are liable to execution." NRS21.080(1), "The judge or master may order any property of the judgment debtor not exempt from execution, in the hands of such debtor or any other person, or due to the judgment debtor, to be applied toward the satisfaction of the judgment." NRS 21.320; see also NRS 112,210(2) ("If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.") (emphasis added). [1]
Plaintiff requests the Court order the following property of Zandian, which is not exempt from execution,[2] to be applied toward satisfaction of the judgment by ordering the transfer of Zandian's interest in the following properties to Plaintiff:
|
Parcel |
acres |
Assessed Value (Washoe County (Assessor 2016) |
Assignment Value |
|
079-150-09 |
560.0 |
$2,822 |
$3,200 |
|
079-150-13 |
560.0 |
$2,822 |
$3,200 |
|
084-040-04 |
640.08 |
$3,226 |
$3,700 |
______________
[1]
In
[2] See NRS 21.090; see also McMillen Declaration, Exhibit 26.
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|
084-040-06 |
633.03 |
$6,197 |
$ 7,000 |
|
084-040-10 |
390.0 |
$1,966 |
$ 2,300 |
|
084-140-17 |
160.0 |
$ 806 |
$ 1,000 |
|
Totals |
2,943.11 |
$17,839 |
$20,400 |
|
Parcel |
acres |
Assessed Value ( |
Assignment Value |
|
006-052-04 |
.220 |
$15,560 |
$ 5,187 |
|
006-052-05 |
.220 |
$15,560 |
$ 5,187 |
|
006-052-06 |
.220 |
$15,560 |
$ 5,187 |
|
Totals |
.66 |
$46,680 |
$15,561 |
|
Parcel |
Acres |
Assessed Value ( |
Assignment Value |
|
009-331-04 |
50.0 |
$2,625 |
$1,500 |
|
Totals |
50.0 |
$2,625 |
$1,500 |
C. Writ
of Execution
On June 24, 2013, the Court entered a Default Judgment against Defendants. On June 27, 2013, a Notice of Entry of the Default Judgment was filed. In the Default Judgment, the Court entered judgment in favor of Plaintiff against Zandian in the sum of $1,495,775.74, plus interest at the legal rate, pursuant to NRS 17.130, therein from the date of default until the judgment is satisfied.
Plaintiff requests the Court
authorize all applicable
Based on the foregoing and the attached Memorandum of Post-Judgment Costs and Fees, attached hereto as Exhibit 2, Plaintiff also hereby requests that the Court direct the Court Clerk to issue the attached proposed Writs of Execution, attached hereto as Exhibit 3, so that the appropriate authorities may assist Plaintiff in executing the Default Judgment against Zandian. If the properties are not enough to satisfy the Judgment, Plaintiff requests the Court order and direct that any further appropriate writs of execution that are provided to the Court Clerk by Plaintiff also be issued, until the Judgment is satisfied.
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In addition, Plaintiff seeks the following orders with regards to the following parcels in order to protect and satisfy Plaintiffs claim. See NRS 112.210(1)(c)(1) and (3) ("In an action for relief against a transfer or obligation under this chapter, a creditor ... may obtain: ... (1) An injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property; ... or (3) Any other relief the circumstances may require.").
Zandian has an interest in two
parcels in
Zandian has an interest in parcel
007-151-77 in
Zandian has an interest in parcel
001-660-034 in
D. Conveyance
Of Property Sold At Auction
On December 9, 2014, the Clark
County Sheriff sold at public auction Zandian's
interest in two
|
|
Acres |
Bought at auction 12/9/2014 |
Assessed Value ( |
|
APN 071-02-000-013 |
20.0 |
$16,000 |
$ 7,000 |
|
APN 071-02-000-005 |
10.0 |
$ 8,000 |
$ 3,500 |
|
Total |
30.0 |
$24,000 |
$10,500 |
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On April 3, 2015, the Washoe County
Sheriff sold at public auction Zandian's interest in
four
|
|
Acres |
Bought at auction 4/3/2015 |
Assessed Value ( |
|
APN 079-150-12 |
160 |
$15,000 |
$16,800 |
|
APN 079-150-10 |
639.58 |
$ 5,000 |
$ 3,224 |
|
APN 084-040-02 |
627.24 |
$ 5,000 |
$ 3,161 |
|
APN 084-130-07 |
275.83 |
$ 3,000 |
$ 1,390 |
|
Total |
1702.65 |
$28,000 |
$24,575 |
"Upon a sale of real property,
the purchaser shall be substituted to and acquire all the right, title,
interest and claim of the judgment debtor thereto." NRS
21.190. Such sales are subject to redemption.
It has been more than 1 year since
the above
V. Conclusion
Based upon the foregoing, Plaintiff respectfully requests this motion be granted in its entirety.
The undersigned does hereby affirm that the preceding document does not contain the social security number of any person. Dated this 3rd day of May, 2016.
BY ________________________
Matthew D. Francis (6978)
Adam P. McMillen (10678)
Telephone: 775-324-4100
Facsimile: 775-333-8171
Attorneys for
Plaintiff Margolin
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CERTIFICATE OF SERVICE
Pursuant to NRCP 5(b), I certify that I am an employee of Brownstein Hyatt Farber Schreck, and that on this date, I deposited for mailing, in a sealed envelope, with first-class postage prepaid, a true and correct copy of the foregoing document, MOTION TO VOID DEEDS, ASSIGN PROPERTY AND FOR WRIT OF EXECUTION, addressed as follows:
Reza Zandian
c/o Alborz Zandian
rezazand@hotmail.com
Severin A. Carlson
Tara C. Zimmerman
Kaempfer Crowell
Former counsel of Reza Zandian
Dated: May 3, 2016
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EXHIBIT LIST
|
EXHIBIT NO. |
DESCRIPTION |
PAGE(S) |
|
1 |
Declaration of Adam McMillen |
275 |
|
2 |
Consolidated Memorandum of Post-Judgment Fees and Costs |
6 |
|
3 |
Proposed Writs of Execution (Lyon, Elko and |
4 |
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