{Converted to html. The PDF is the controlling document. JM}

 

 

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

Nevada Bar No. 14258

BROWNSTEIN HYATT FARBER SCHRECK, LLP

5371 Kietzke Lane

Reno, NV 89511

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 Paris, France to explain the status of the alleged French proceedings. Attached hereto as Exhibit 1 is the declaration of Isabelle Victoria Carbuccia, attorney to the Appeal Court of Paris, dated November 12, 2019, and accompanying records filed in the French Courts. (“Carbuccia Decl.”).[1]

 

__________________

 

[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.

 

Id.

 

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]

__________________

 

[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 Commerce Court about the above

 

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); Id., Exhibits A (French) – B (English).

 

 

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 French Court on October 10, 2018 to close the COMPUTER WORLD bankruptcy estate. Declaration of Isabelle Victoria Carbuccia, dated December 5, 2019 attached hereto as Exhibit 3 at Ex. A (French) & Ex. B (English) (“By application dated October 10, 2018, SCP CANET as Authorized

____________________________

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 French Court. Carbuccia Decl., § 6.

 

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. Id. At the same time, Mr. Margolin provided evidence of Mr. Zandian’s nefarious behavior. Id.

 

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 French Court to initiate or maintain the instant Chapter 15. It is clear that there is no, and has never been any basis to maintain a Chapter 15 proceeding.

 

It is clear from the Declaration of Ms. Carbuccia, and the accompanying French Court

 

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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

5371 Kietzke Lane

Reno, NV 89511

 

Attorneys for JED MARGOLIN

 

_________________________________

 

[3]  Bankruptcy jurisdiction is "'grounded in, and limited by, statute.'" Battle Ground Plaza, LLC v. Ray (In re Ray), 624 F.3d 1124, 1130 (9th Cir. 2010) (quoting Celotex Corp. v. Edwards, 514 U.S. 300, 307 (1995)). Pursuant to 28 U.S.C. § 1334(b) federal district courts have “original but not exclusive jurisdiction” over “all civil proceedings arising under title 11, or arising in or related to cases under title 11.” Section 157 of Title 28, United States Code provides the means by which the district courts share bankruptcy jurisdiction with bankruptcy courts. In this District of Nevada, such matters are referred to the bankruptcy courts. It is axiomatic to say that if there is no basis in this case for a Chapter 15 ever to have been initiated or maintained, then there is nothing which can be deemed to have be “arising under title 11.” Thus, this Court lacks, and has lacked, subject matter jurisdiction over these entire proceedings.

 

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Case 16-50644-btb     Doc 66            Entered 12/05/19 15:55:37     Page 6 of 6

 

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

400 South Fourth Street

Las Vegas, NV 89101

rholley@nevadafirm.com

 

Jeffrey L. Hartman, Esq.

HARMAN & HARTMAN

510 West Plumb Lane, Suite B

Reno, NV 89509

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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