Bai Limited vs. Brett J Kacura

Opposition

Cal. Super. - 4th Dist.June 10, 2014

© 0 NN S N wn bh WwW V O N N N N N N N N = e s m m e s s e e s 0 ~-_ N O N Wn BA W N = OO VW N Y RR W N D e o CENTURY LAW GROUP LLP Edward O. Lear, State Bar #132699 Marisol Ocampo, State Bar #198087 5200 W. Century Boulevard, Suite 345 Los Angeles, California 90045 (310) 642-6900 Attorneys for Plaintiff BAI LIMITED SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE BAI LIMITED, a limited liability company, Plaintiff, V. BRETT JOHN KACURA, an individual; DENISE KACURA, an individual; LEAD RESULTS, INC., a business entity of unknown form; and DOES 1 through 50, inclusive, Defendants. AND RELATED CROSS-ACTION N a r ” N r ” N a r ” N e ” N a e ” N e ” S e ” M e ” a N e ” N e ” N e N e N e a N e ae N e a S e Case No.: 30-2014-00727440-CU-FR-CJC Assigned to Judge Sheila Fell PLAINTIFF BAI LIMITED’S OPPOSITION TO DEFENDANTS’ MOTION TO SET ASIDE MINUTE ORDER RULING/VERDICT ON COURT TRIAL; DECLARATION OF HEIDI M. SEE DECLARATION OF EDWARD .LE [Updated (Proposed) Judgment Submitted Concurrently Herewith!] Hearing Date: January 3, 2018 Time: 10:00 a.m. Dept.: C25 Complaint Filed: June 10, 2014 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Plaintiff BAI Limited hereby submits its opposition to Defendants’ motion to set aside the Court’s Minute Order, dated October 4, 2016, which issued a ruling/verdict in Plaintiff’s favor after the court trial on October 3, 2016. | Plaintiff is resubmitting the (Proposed) Judgment with an updated interest calculation. PLAINTIFF BAI LIMITED’S OPPOSITION TO DEFENDANTS® MOTION TO SET ASIDE COURT’S MINUTE ORDER © 60 NN O&O Ww» Hh w d = N O N N N N = e em e m m e e e R R R R I R O S 2 8 08 6 0 9 a « v n 2 NO - © MEMORANDUM OF POINT AND AUTHORITIES A. Introduction After Defendants failed to appear for trial on October 3, 2016, Judge Mary Fingal Schulte proceeded with the trial that morning. Plaintiff BAI Limited (“Plaintiff” and/or “Bai”) tried its case in chief through witnesses and documentary evidence through early afternoon. By approximately 2:45 p.m. on October 3" the case had been fully tried and taken under submission. Declaration of Edward O. Lear (“Lear Decl.”), §3, attached hereto. The following day, on October 4, 2016, Judge Schulte issued the Court’s verdict by way of a minute order. The Court found in favor of Plaintiff Bai on all causes of action pled in Plaintiffs First Amended Complaint, including, inter alia, Plaintiff’s causes of action for: (1) Fraud, (2) Conspiracy to Commit Fraud, (3) Wrongful Conversion, (4) Conspiracy to Convert, (5) Breach of Oral Contract, (6) Breach of Written Contract; (7) B&P Code 17200, (8) Unfair Competition, and (9) Implied in Fact Contract. The Court ordered damages against Defendants in the sum of $252,476.41, with prejudgment interest at the legal rate of 10% calculated from March 1, 2014. A true and correct copy of the Minute Order reflecting the Court’s verdict is attached hereto as Ex. “27. In the interim, after the case had been fully tried and taken under submission, Defendants filed for bankruptcy. To wit, Defendants concede in their moving papers that they did not file for bankruptcy until “October 3, 2016 at 3:15 p.m.2’ Now, over a year later, as Plaintiff Bai has repeatedly sought to have this Court sign off on the submitted Judgment after the Bankruptcy Court first dismissed Defendants’ Bankruptcy Proceedings on October 21, 2016°, and again after the Bankrutpcy Court confirmed through a 2 See Declaration of Jeffrey Jacobs (“Jacobs Decl.”) filed in support of Defendants’ Motion to Set Aside Court’s Minute Order, par. 2, and attached Ex. “A”. 3 The Bankruptcy Court dismissed Defendants’ bankruptcy proceedings and vacated the automatic stay, for defendants’ failure to file necessary documents with the bankruptcy court required under FRCP 1007 or 2015(b). J PLAINTIFF BAI LIMITED’S OPPOSITION TO DEFENDANTS’ MOTION TO SET ASIDE COURT’S MINUTE ORDER OO 0 NN O N nn hk W d N O N O N N N N N N = e e s e s e e e d e s © uN O N Nn RAR W N O R , OS YO N N N B W N N O court order on August 8, 2017* that the automatic stay had been terminated, Defendants have filed a Motion to Set Aside the Court’s 10/4/16 Minute Order, contending that it was in violation of the automatic stay in effect as of 3:15 p.m. on October 3, 3016. However, Defendants’ Motion to Set Aside the Court’s 10/4/16 Minute Order, must be denied as: (1) The Bankruptcy Court has annulled the automatic stay that was in effect, such that there was no automatic stay in effect on October 4, 2016, and the 10/4/16 Minute Order stands as a valid ruling. See Declaration of Bai’s Bankruptcy Counsel Heidi M. Cheng (“Cheng Decl.”), attached hereto, par. 2-4, and Tentative Ruling attached hereto as Ex. “1”; See Lear Decl., §5, and Bai’s Motion for Annullment and U.S. Bankruptcy Court Docket, attached as Ex. “4” & “3”, respectively. (2) Assuming arguendo, that the Bankruptcy Court had not annulled the automatic stay, the postpetition entry of an order on a concluded proceeding before the stay is in effect, i.e., trial on the merits, is not stayed by the automatic bankruptcy stay”. (3) Assuming arguendo, that the Bankruptcy Court had not annulled the automatic stay, the 10/4/16 Order is not absolutely void, it is only voidable, and should not be voided here because Defendants unduly delayed over a year in seeking to void the Order®. As such, for all the foregoing reasons, Defendants” Motion to Vacate Order should be denied, and the (Proposed) Judgment that Plaintiff submitted for the Court’s approval on August 15, 2017, should be signed and entered forthwith. B. The Bankruptcy Court Has Annulled the Automatic Stay That Was In Effect on October 4, 2016. As Such, the 10/4/16 Minute Order Stands As a Valid Ruling On November 16, 2017, Bai filed a motion in Defendants’ (debtors) bankruptcy court proceedings, seeking an annulment of the bankruptcy stay that was in effect on October 4, 2016, 4 See Plaintiff Bai’s Request for Immediate Entry of Judgment, on file herein, filed August 15, 2017, and attached Bankruptcy Order dated August 8, 2017, Ex. “B”. 5 Michael Shorr v. Kenneth Kind (1991) 1 Cal. App.4™h 249, 258. 3 PLAINTIFF BAI LIMITED’S OPPOSITION TO DEFENDANTS’ MOTION TO SET ASIDE COURT’S MINUTE ORDER © 0 NN Oo wn AA W N N O N O N D N N N em es e s E e e m ® a A&A hh BR WL W N = © VV e e N N Wn R W ND = Oo when the 10/4/16 Minute Order in these proceedings was entered. Lear Decl., 15, and Motion for Relief from the Automatic Stay, attached as Ex. “4”. Among the grounds raised in the Motion for annulment of the bankruptcy stay, was that Defendants (Debtors) filed the bankruptcy case in bad faith [i.e., that the timing of the bankruptcy petition (on the same date that this case was set for trial) indicates that it was intended to delay or interfere with this civil case, and that Defendants (Debtors) only filed a few case commencement documents, which caused the bankruptcy case to be dismissed after only 18 days for failure to file required documents]. See Ex. 4, Motion for Relief, at p. 4, par. 4 & 5. On December 14, 2017, the Bankruptcy Court annulled the automatic stay that was in effect, such that there was no automatic stay in effect on October 4, 2016, and the 10/4/16 Minute Order stands as a valid ruling. See Cheng Decl., attached hereto, par. 2-4, and Tentative Ruling attached hereto as Ex. “1”; See Lear Decl., §5, and U.S. Bankruptcy Court Docket, attached as Ex. “3”. The Bankruptcy’s Court’s formal order granting the motion for annulment of the automatic stay has not yet been signed by the Bankruptcy Court as of this filing, but will be submitted to this Court as soon as it is received by Bai’s counsel. Accordingly, there was no automatic stay in effect at the time of the Court’s 10/4/16 Minute Order and the Court’s rulings in Plaintiff Bai’s favor on its various causes of actions against Defendants must stand. Plaintiff therefore respectfully requests that the Court enter Judgment forthwith in Plaintiff's favor (which Proposed Judgment has been previously submitted to the Court by Plaintiff), based on its 10/4/16 ruling in the Minute Order. C. Assuming, Arguendo, That the Bankruptcy Court Had Not Annulled the Bankruptcy Stay, the PostPetition Entry of an Order on a Concluded Proceeding Before The Stay Is In Effect, i.e., Trial On The Merits, Is Not Stayed By the Automatic Bankrutpcy Stay § Failure to timely challenge an entered Judgment until two years after the Judgment was entered, was fatal to the argument that the judgment was void because it was entered in violation of the automatic bankruptcy stay. Michael Shorr v. Kenneth Kind (1991) 1 Cal. App.4'™ 249. 4 PLAINTIFF BAI LIMITED’S OPPOSITION TO DEFENDANTS’ MOTION TO SET ASIDE COURT’S MINUTE ORDER © © NN 4& 4 wn A W N N O N RN N N N N N N = m e s e = e e em ® a A A BR W N = Oo VW N N W R W ND = O The postpetition entry of a decision of a concluded proceeding is not stayed by the automatic bankruptcy stay even where the entry is a default judgment in an action against the debtor. Michael Shorr v. Kenneth Kind (1991) 1 Cal. App.4™ 249, 258 [citing with approval to In re James T. Wilson (Bkrtcy.M.D.Fla.1987) 72 B.R. 956, 958, which held that: “Where parties to a proceeding have concluded all activity and the court makes an oral ruling or takes the matter under advisement pre-petition, the entry of decision post-petition by the court is not an action which is stayed under § 362(a). This situation is significantly different than if one of the parties to the action tries to enforce the decision after it is entered post-petition, or takes some other type of affirmative action without first seeking relief from § 362(a).” (emphasis added)] Here, there was a full trial on the merits of Plaintiff Bai’s claims against Defendants, which entirely concluded prior to Defendants’ bafikrutey filing, at which time the Court took the matter under submission. To wit, after Defendants failed to appear for trial on October 3, 2016, Judge Mary Fingal Schulte proceeded with the trial that morning. Plaintiff Bai tried its case in chief through witnesses and documentary evidence through early afternoon. By approximately 2:45 p.m. on October 3" the case had been fully tried and taken under submission. Lear Decl., 3. Defendants concede in their moving papers that they did not file for bankruptcy until “October 3, 2016 at 3:15 p.m.” Thus, the Court “took the matter under advisement pre-petition”, and the entry of the Court’s Minute Order the following day, on October 4, 2016, is not an action which is stayed by the automatic bankruptcy stay. It therefore stands as a valid Court Order. D. Assuming arguendo, that the Bankruptcy Court had Not Annulled the Automatic Stay, the 10/4/16 Order is Not Absolutely Void - If Anything, It is Only Voidable, and Should Not Be Voided Here Because Defendants Unduly Delayed Over a Year in Seeking to Void the Order. Defendants have inexcusably filed their instant Motion to Vacate the 10/4/16 Minute Order, over a year after the Order was entered. Failure to timely challenge a court order with dispositive rulings on a party’s causes of action, is fatal to a request to void the court order on the 7 See Declaration of Jeffrey Jacobs (“Jacobs Decl.”) filed in support of Defendants’ Motion to Set Aside Court’s Minute Order, par. 2, and attached Ex. “A”. 5 PLAINTIEF BAI LIMITED’S OPPOSITION TO DEFENDANTS’ MOTION TO SET ASIDE COURT’S MINUTE ORDER OO 00 3 O&O wn HH W N e e N O N O N N N R N D N N N = es e s = em e e = © --N A hh AE W N = Oo V W X N UM B A L DN DN = O basis that it was issued in violation of the automatic bankrupty stay. See, e.g., Michael Shorr v. Kenneth Kind (1991) 1 Cal. App.4™ 249 (failure to timely challenge an entered Judgment until two years after the Judgment was entered, was fatal to the argument that the judgment was void because it was entered in violation of the automatic bankruptcy stay). Here, Defendants inexplicably delayed over a year in seeking to void this Court’s 10/4/16 Minute Order. As such, Defendants’ motion should be denied as untimely. DATED: December! 9 2017 CENTURY LAW GROUP LLP Yr == =- == Marisol Ocampo Attorneys for Plaintiff BAI LI 6 PLAINTIEF BAI LIMITED’S OPPOSITION TO DEFENDANTS’ MOTION TO SET ASIDE COURT’S MINUTE ORDER DECLARATION OF HEIDI M. CHENG O O o NN o y t h A W N N O N O N O R N O N O N O N N N R e e s e e e R el R e d 0 uN O N hh BR A L N R D YC 0 0 N D Oo Steven P. Chang, SBN: 221783 Heidi M. Cheng, SBN: 289419 LAW OFFICES OF STEVEN P. CHANG 13200 Crossroads Parkway North, Suite 165 City of Industry, CA 91746 Tel.: (626)281-1232 Fax: (626)281-2919 Email: heidi@spclawoffice.com Bankruptcy Counsel for Creditor BAI LIMITED SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE BAI LIMITED, a limited liability company, Case No.: 30-2014-00727440-CU-FR-CIC Plaintiff, DECLARATION OF HEIDI M. CHENG Vv. RE: CREDITOR BAI LIMITED’S MOTION FOR RELIEF FROM THE BRETT JOHN KACURA, an individual; A STAY UNDER 11 U.S.C. DENISE KACURA, an individual; LEAD RESULTS, INC., a business entity of unknown form; and DOES 1 through 50, inclusive, Defendants. DECLARATION OF HEIDI M. CHENG I, Heidi M. Cheng, declare as follows: 1. I am an attorney at law, duly qualified and licensed to practice before the above- entitled court. The following is based on my personal knowledge and if called upon as a witness, I could and would competently testify thereto. DECLARATION OF HEIDI M. CHENG - | © 0 0 9 O&O n s W N N O N O N O N O N N N N N E e e d p e e d 2 em 0 ~~ O N BA W N =m D Y N S N Bs R O 2, This office represents Creditor BAI LIMITED in the bankruptcy matter entitled In re: Brett John Kacura and Denise Marie Kacura, case number 8:16-bk-14114-ES. 3. On November 16, 2017, BAI LIMITED filed its Motion for Relief from the Automatic Stay Under 11 U.S.C. §362 seeking retroactive annulment of the automatic stay. 4, On December 14, 2017, the bankruptcy court adopted its tentative ruling granted BAI LIMITED’s motion with annulment. Attached hereto as Exhibit 1 is a true and correct copy of the court’s tentative ruling in this matter. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed this 18" day of December 2017 in City of Industry, California. WW Heidi M\Cheng gon DECLARATION OF HEIDI M. CHENG - 2 EXHIBIT 1 United States Bankruptcy Court Central District of California Santa Ana Judge Erithe Smith, Presiding Courtroom 5A Calendar Thursday, December 14, 2017 Hearing Room SA 10:00 AM 8:16-14114 Brett John Kacura and Denise Marie Kacura Ch apter 7 #13.00 Hearing RE: Motion for relief from automatic stay [ACTION IN NON-BANKRUPTCY FORUM] BAI LIMITED VS. DEBTORS Docket 20 Courtroom Deputy: SPECIAL NOTE: Order Dismissing Case for Failure to File Schedules, Statements, and/or Plan Entered 10/26/2016; Case Closed 11/10/2016; Order Granting Credit Bai Limited's Motion to Reopen Chapter 7 Case Entered 11/7/2017; This Motion to Remain on Calendar - td (11/1 6/2017) Tentative Ruling: December 14, 2017 Grant motion with annulment. Overrule Debtors’ objections as unpersuasive. Debtors have previously admitted in the joint status report filed in Adversary 17-01 107 [docket #6] that the Adversary Proceeding should be stayed until the matter is determined in state court. See below from Defendants’ Additional Comments in the status report: "First, Plaintiffs complaint is predicated on a state court "judgment" that is actually an "Under Submission Order," a copy of which is attached hereto as Exhibit A. No judgment has actually been entered. Defendant is planning to file a motion with the state court to vacate this order, or to vacate a judgment based on this order if one is entered. If defendant is successful in 12/13/2017 8:13:43 PM Page 33 of 100 United States Bankruptcy Court Central District of California Santa Ana Judge Erithe Smith, Presiding Courtroom 5A Calendar Thursday, December 14,2017 Hearing Room 5A 10:00 AM CONT... Brett John Kacura and Denise Mar ie Kacura Chapter 7 such a motion, the matter will be set for a trial in state court, which will establish whether defendant is liable to plaintiff . If that occurs, it would be in the interest of judicial economy to stay this adv ersary proceeding until the state court has established liability for the under lying action.” Joint Status Report (emphasis added). The court notes parenthetically that the fact that pu nitive damages were not imposed does not necessarily mean that frau d within the meaning of 523(a) (2) was not demonstrated. Further, the Advers ary Complaint alleges additional non-fraud claims for relief -- 523(a)( 4) (embezzlement) and 523(a) (8) (willful and malicious injury.) Finally, as to Debtors’ alleged cross-complaint agai nst Movant, such claim is property of the bankruptcy of the estate and can o nly be prosecuted by the chapter 7 Trustee. Stated otherwise, Debtors hav e no standing to prosecute claims the estate may have against other parti es, absent abandonment under 554. Debtor(s): Brett John Kacura Repr esented By Jeffrey G Jacobs Joint Debtor(s): Denise Marie Kacura Rep resented By Jeffrey G Jacobs Movant(s): BAI LIMITED R epresented By Steven P Chang Trustee(s): Jeffrey I Golden (TR) Pro Se A TT 12/13/2017 8:13:43 PM Page 34 of 100 DECLARATION OF EDWARD O. LEAR © 00 NN O&O wn hr W N = R O N N N N N N N = m m e s e E e m E RR N _ N W R HA BE L N ~~ SS WV N n R A W s o DECLARATION OF EDWARD O. LEAR I, Edward O. Lear, declare as follows: 1. I am an attorney duly licensed to practice before the Courts of the State of California. I am an attorney at the firm of Century Law Group LLP, which is representing Plaintiff Bai Limited (“Bai”) in this action. The following matters are within my personal knowledge, and if called upon to testify, I could and would testify competently thereto. On the morning of October 3, 2016, I appeared on behalf of my client, BAI Limited, for the first day of trial in the case of BAI Limited v. Brett John Kacura et al., Orange County Superior Court Case No. 30-2014-00727440-CU-FR-CJC. Neither Defendants nor their counsel, Jeff Jacobs, appeared for trial that morning. After Defendants failed to appear for trial on October 3, 2016, Judge Mary Fingal Schulte proceeded with the trial that morning. Plaintiff BAI Limited tried its case in chief through witnesses and documentary evidence through early afternoon. By approximately 2:45 p.m. on October 3', the case had been fully tried and Judge Schulte took the matter under submission. The following day, on October 4, 2016, Judge Schulte issued the Court’s verdict by way of a minute order. The Court found in favor of Plaintiff Bai on all causes of action pled in Plaintiff's First Amended Complaint, including, infer alia, Plaintiff's causes of action for: (1) Fraud, (2) Conspiracy to Commit Fraud, (3) Wrongful Conversion, (4) Conspiracy to Convert, (5) Breach of Oral Contract, (6) Breach of Written Contract; (7) B&P Code 17200, (8) Unfair Competition, and (9) Implied in Fact Contract. The Court ordered damages against Defendants in the sum of $252,476.41, with prejudgment interest at the legal rate of 10% calculated from March 1, 2014. A true and correct copy of the Minute Order reflecting the Court’s verdict is attached hereto as Ex. “2”. On November 16, 2017, Bai (through its bankruptcy counsel) filed a motion in Defendants’ (debtors) bankruptcy court proceedings, seeking an annulment of the bankruptcy stay that was in effect on October 4, 2016, when the 10/4/16 Minute Order in the se proceedings was entered. A true and correct copy of the Motion for Relief from the 7 PLAINTIFF BAI LIMITED’S OPPOSITION TO DEFENDANTS’ MOTION TO SET ASIDE COURT’S MINUTE ORDER © 0 ~~ O N wn A W N = R O N N N R R R N N = = = e m e e E s VR 0 & G0 BEB © 0 =m © © © 91 0 » Ww N = Oo Automatic Stay (“Motion”), is attached as Ex. “4”. 1 obtained a copy of the Motion by visiting the U.S. Bankruptcy Court, Central District of California’s (Santa Ana) Online Pa cer System and downloading it from the Court’s docket for Defendants/Debtors bankrup tcy proceedings in the case entitled In re: Brett John Kacura and Denise Marie Kacura, C ase No. 8:16-bk-14114-ES. A true and correct copy of the Court’s docket for this case is attached hereto as Ex. “3”. The court docket also reflects at Entry #26, that the hearing on Bai’s Motion for Annulment of the Bankruptcy Stay was held on December 14, 2017, and that the Motion was granted “With Annulment”. See Ex. “3”, p. 2. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, except as to those matters stated upon information and belief, and as to those matters, I believe them to be true. Executed this 18" day of December 2017 at Los 7 te Z Angeles, California. 8 PLAINTIFF BAI LIMITED’S OPPOSITION TO DEFENDANTS’ MOTION TO SET ASIDE COURT’S MINUTE ORDER EXHIBIT 2 Ny 7) ' 5 JPERIOR COURT OF CALIFORwiA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER MINUTE ORDER DATE: 10/04/2016 TIME: 03:17:00 PM DEPT: C21 JUDICIAL OFFICER PRESIDING: Mary Fingal Schulte CLERK: Alma Bovard REPORTER/ERM: None BAILIFF/COURT ATTENDANT: CASE NO: 30-2014-00727440-CU-FR-CJC CASE INIT.DATE: 06/10/2014 CASE TITLE: BAI LIMITED vs. Kacura CASE CATEGORY: Civil - Unlimited CASE TYPE: Fraud EVENT ID/DOCUMENT ID: 72458055 EVENT TYPE: Under Submission Ruling APPEARANCES There are no appearances by any party. The Court, having taken the above-entitled matter under submission on 10/03/2016 and having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows: Defendants did not appear at trial, so trial proceeded in their absence. The Court considered and weighed all the evidence, including portions of deposition transcripts submitted for the Court to read. The Court finds for plaintiff and against defendants in the sum of $252,476.41 plus accrued interest at the legal rage from March 2014 to the present, plus costs. The Court declines to award punitive damages as plaintiff has not met its burden of proof in that regard. Trial took less than a day, so a statement of decision is not required. CCP section 632. The Court | directs counsel for plaintiff to prepare the judgment. All exhibits returned to the submitting party. Court orders Clerk to give notice. DATE: 10/04/2016 MINUTE ORDER DEPT: C21 Page 1 Calendar No. SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE Central Justice Center 700 W. Civic Center Drive Santa Ana, CA 92702 SHORT TITLE: BAI LIMITED vs. Kacura CLERK'S CERTIFICATE OF MAILING/ELECTRONIC CASE NUMBER: SERVICE 30-2014-00727440-CU-FR-CJC I certify that I am not a party to this cause. I certify that the following document(s), Minute Order dated 10/04/16, have been transmitted electronically by Orange County Superior Court at Santa Ana, CA. The transmission originated from email address on October 4, 2016, at 3:21:19 PM PDT. The electronically transmitted document(s) is in accordance with rule 2.251 of the California Rules of Court, addressed as shown above. The list of electronically served recipients are listed below: CENTURY LAW GROUP LLP CENTURY LAW GROUP LLP KATHY@CENTURYLAWGROUP.COM LEAR@CENTURYLAWGROUP.COM THE LAW OFFICE OF JEFFREY G. JACOBS JEFFI@DANE-MEMORY.COM Clerk of the Court, by: Ay JQ. BAK CLERK'S CERTIFICATE OF MAILING/ELECTRONIC SERVICE V3 1013a (June 2004) Code of Civ. Procedure , § CCP1013(a) EXHIBIT 3 REOPENED, Incomplete, DISMISSED U.S. Bankruptcy Court Central District of California (Santa Ana) Bankruptcy Petition #: 8:16-bk-14114-ES Assigned to: Erithe A. Smith Chapter 7 Voluntary No asset Debtor disposition: Dismissed for Failure to File Information Joint debtor disposition: Dismissed for Failure to File Information Debtor Brett John Kacura 5620 Costa Maritime San Clemente, CA 92673 ORANGE-CA 949-400-1337 SSN / ITIN: xxx-xx-5688 Tax ID / EIN: 77-0510588, 20-2235148 dba Lead Results Inc . dba Lead Generations Inc dba Networkmngt Inc. Joint Debtor Denise Marie Kacura 5620 Costa Maritime San Clemente, CA 92673 ORANGE-CA 949-400-9655 SSN / ITIN: xxx-xx-6584 aka Denise Marie Deberry-Kacura aka Denise Marie Deberry Trustee Jeffrey I Golden (TR) Weiland Golden LLP Date filed: 10/03/2016 Date reopened: 11/07/2017 Debtor dismissed: 10/21/2016 Joint debtor dismissed: 10/21/2016 341 meeting: 11/16/2016 Deadline for objecting to discharge: 01/17/2017 Deadline for financial mgmt. course 01/17/2017 : C (db): Deadline for financial mgmt. course 01/17/2017 (db): represented by Douglas A Crowder Crowder Law Center 350 S. Figueroa Street Suite 190 Los Angeles Los Angeles, CA 90071 usa 213-325-3040 Fax : 877-772-7094 Email: dcrowder@crowderlaw.com Jeffrey G Jacobs 15770 Laguna Canyon Rd #100 Irvine, CA 92618 949-450-2968 Fax : 949-450-9368 represented by Douglas A Crowder (See above for address) Jeffrey G Jacobs (See above for address) P.O. Box 2470 Costa Mesa, CA 92628-2470 (714) 966-1000 U.S. Trustee United States Trustee (SA) 411 W Fourth St., Suite 7160 Santa Ana, CA 92701-4593 (714) 338-3400 Filing Date # Docket Text 1 12/14/2017 26 Hearing Held (RE: related document(s)20 Motion for Relief from Stay - ACTION IN NON-BANKRUPTCY FORUM filed by Creditor BAI LIMITED) - MOTION GRANTED WITH ANNULMENT. (Duarte, Tina) (Entered: 12/18/2017) 12/14/2017 25 (5 pgs) Notice of lodgment of Order Granting Motion for Relief from the Automatic Stay Under 11 U.S.C. 362 Filed by Creditor BAI LIMITED (RE: related document(s)20 Notice of motion and motion for relief from automatic stay with supporting declarations ACTION IN NON-BANKRUPTCY FORUM RE: . Fee Amount $181, Filed by Creditor BAI LIMITED). (Chang, Steven) (Entered: 12/14/2017) 12/07/2017 24 (8 pgs) Reply to (related document(s): 20 Notice of motion and motion for relief from automatic stay with supporting declarations ACTION IN NON-BANKRUPTCY FORUM RE: . Fee Amount $181, filed by Creditor BAI LIMITED) Creditor Bai Limited's Reply in Support of Motion for Relief From the Automatic Stay Under 11 U.S.C. Section 362 Filed by Creditor BAI LIMITED (Chang, Steven) (Entered: 12/07/2017) 12/01/2017 23 (14 pgs) Opposition to (related document(s): 20 Notice of motion and motion for relief from automatic stay with supporting declarations ACTION IN NON-BANKRUPTCY FORUM RE: . Fee Amount $181, filed by Creditor BAI LIMITED) Filed by Debtor Brett John Kacura, Joint Debtor Denise Marie Kacura (Crowder, Douglas) (Entered: 12/01/2017) 11/18/2017 22 (1 pg) Request for courtesy Notice of Electronic Filing (NEF) Filed by Crowder, Douglas. (Crowder, Douglas) (Entered: 11/18/2017) 11/16/2017 21 Hearing Set (RE: related document(s)20 Motion for Relief from Stay - ACTION IN NON-BANKRUPTCY FORUM filed by Creditor BAI LIMITED). The Hearing date is set for 12/14/2017 at 10:00 AM at Crtrm 5A, 411 W Fourth St, Santa Ana, CA 92701. The case judge is Erithe A. Smith (Duarte, Tina) (Entered: 11/16/2017) 11/16/2017 Receipt of Motion for Relief from Stay - ACTION IN NON-BANKRUPTCY FORUM(8:16-bk-14114-ES) [motion,nman] ( 181.00) Filing Fee. Receipt number 45971101. Fee amount 181.00. (re: Doc# 20) (U.S. Treasury) (Entered: 11/16/2017) 11/16/2017 20 (12 pgs) Notice of motion and motion for relief from automatic stay with supporting declarations ACTION IN NON- BANKRUPTCY FORUM RE: . Fee Amount $181, Filed by Creditor BAI LIMITED (Chang, Steven) (Entered: 11/16/2017) 11/09/2017 19 (3 pgs) BNC Certificate of Notice - PDF Document. (RE: related document(s)18 Order on Motion to Reopen Case (BNC- PDF)) No. of Notices: 2. Notice Date 11/09/2017. (Admin.) (Entered: 11/09/2017) 11/07/2017 18 (2 pgs) Order Granting Motion To Reopen Case (for the purposes of allowing Creditor to file a Motion for Relief from the Automatic Stay under 11 USC Section 362. If no such motion is filed within the 30 day timeframe, the case shall be re-closed without further notice) (BNC-PDF) (Related Doc # 17) Signed on 11/7/2017. (Reid, Rick) (Entered: 11/07/2017) 11/06/2017 Receipt of Motion to Reopen Case(8:16-bk-14114-ES) [motion,mreop] ( 260.00) Filing Fee. Receipt number 45905354. Fee amount 260.00. (re: Doc# 17) (U.S. Treasury) (Entered: 11/06/2017) 11/06/2017 17 (6 pgs) Motion to Reopen Chapter 7 Case . Fee Amount $260 Filed by Creditor BAI LIMITED (Chang, Steven) (Entered: 11/06/2017) PACER Service Center Transaction Receipt 12/18/2017 12:42:31 Tosi centurylaw:2555650:0 a BAI 8:16-bk-14114-ES Fil or Ent: filed From: 9/19/2017 To: Co Search 12/18/2017 Doc From: Description: |{Docket Report ~~. [0 Doc To: 99999999 Criteria: . Term: included Format: html Page counts for documents: included Part 2 Cost: 0.20 EXHIBIT 4 Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:26 Desc Main Document Page 1 of 12 Attorney or Party Name, Address, Telephone & FAX FOR COURT USE ONLY Nos., State Bar No, & Email Address Steven P. Chang, SBN: 221783 Heidi M. Cheng, SBN: 289419 LAW OFFICES OF STEVEN P. CHANG 13200 Crossroads Parkway North, Suite 165 City of Industry, CA 91746 Tel.: (626)281-1232 Fax: (626)281-2919 Email: heidi@spclawoffice.com Individual appearing without attorney Attorney for: Creditor BAI Limited UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA - SANTA ANA DIVISION Inre: CASE NO.: 8:16-bk-14114-ES BRETT JOHN KACURA and DENISE MARIE KACURA, | CHAPTER: 7 NOTICE OF MOTION AND MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER 11 U.S.C. § 362 (with supporting declarations) (ACTION IN NONBANKRUPTCY FORUM) DATE: 12/14/2017 TIME; 10:00 am COURTROOM: 5A Debtor(s). Movant: BAI Limited 1. Hearing Location: : [J] 255 East Temple Street, Los Angeles, CA 80012 411 West Fourth Street, Santa Ana, CA 92701 [J 21041 Burbank Boulevard, Woodland Hills, CA 81367 [] 1415 State Street, Santa Barbara, CA 93101 [J 3420 Twelfth Street, Riverside, CA 92501 2. Notice is given to the Debtor and trustee (if any)(Responding Parties), their attorneys (if any), and other interested parties that on the date and time and in the courtroom stated above, Movant will request that this court enter an order granting relief from the automatic stay as to Debtor and Debtor's bankruptcy estate on the grounds set forth in t he attached Motion. - 3. To file a response to the motion, you may obtain an approved court form at www.cach.uscourts.gov/forms for use in preparing your response (optional LBR form F 4001-1 .RFS.RESPONSE), or you may prepare your response using the format required by LBR 8004-1 and the Court Manual. This form Is mandatory. It has been approved for use in the United States Bankruptcy Count for the Central District of California. June 2014 Page 1 F 4001-1.AFS.NONBK.MO TION Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:26 Desc Main Document Page 2 of 12 4. When serving a response to the motion, serve a copy of it upon the Movant's attorney (or upon Movant, if the motion was filed by an unrepresented individual) at the address set forth above. 5. If you fail to timely file and serve a written response to the motion, or fail to appear at the hearing, the court may deem such failure as consent to granting of the motion. 6. This motion is being heard on REGULAR NOTICE pursuant to LBR 9013-1(d). If you wish to oppose this motion, you must file and serve a written response to this motion no later than 14 days before the hearing and appear at the hearing. 7. [J This motion is being heard on SHORTENED NOTICE pursuant to LBR 9075-1(b). If you wish to oppose this motion, you must file and serve a response no later than (date) and (time) ; and, you may appear at the hearing. a. [] An application for order setting hearing on shortened notice was not required (according to the calendaring procedures of the assigned judge). b. [J An application for order setting hearing on shortened notice was filed and was granted by the court and such motion and order have been or are being served upon the Debtor and upon the trustee (if any). c. [J An application for order setting hearing on shortened notice was filed and remains pending. After the court rules on that application, you will be served with another notice or an order that specifies the date, time and place of the hearing on the attached motion and the deadline for filing and serving a written opposition to the motion. Date: _¢ | | le (tH _Law Offices of Steven P. Chang Printed name of law firm (if applicable) Steven P. Chang Printed name of individual Movant or attorney for Movant mC -----..... Naarell5E rg eo ee -- Signature of individual Movant or attorney for Movant This form is mandatory. It has been approved for use in the United States Bankruptcy Court for the Central District of California. June 2014 Page 2 F 4001-1.RFS.NONBK.MOTION Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:26 Desc Main Document Page 3 of 12 MOTION FOR RELIEF FROM THE AUTOMATIC STAY AS TO NONBANKRUPTCY ACTION 1. In the Nonbankruptcy Action, Movant is: a. Plaintiff b. [J] Defendant c. [1 Other (specify): 2. The Nonbankruptey Action: There is a pending lawsuit or administrative proceeding (Nonbankruptcy Action) involving the Debtor or the Debtor's bankruptcy estate: a. Name of Nonbankruptcy Action: Bai Limited v. Brett John Kacura, et. al. b. Docket number. 30-2014-00727440-CU-FR-CJC c. Nonbankruptcy forum where Nonbankruptcy Action is pending: Superior Court of California, County of Orange d. Causes of action or claims for relief (Claims): fraud, conspiracy to commit fraud, conversion, conspiracy to convert, breach of oral contract, breach of written contract, B&P Code 17200, unfair competition, implied in fact contract, accounting 3. Bankruptcy Case History: a. A voluntary [] An involuntary petition under chapter [X17 [111 [112 [113 was filed on (date) _10/03/2016 . b. [1 An order to convert this case to chapter []7 [11112 []13 was entered on (date) ; c. [J A plan was confirmed on (date) 4. Grounds for Relief from Stay: Pursuant to 11 U.S.C. § 362(d)(1), cause exists to grant Movant relief from stay to proceed with the Nonbankruptcy Action to final judgment in the nonbankruptey forum for the following reasons: a. [J] Movant seeks recovery only from applicable insurance, if any, and waives any deficiency or other claim against the Debtor or property of the Debtor's bankruptcy estate. b. [0 Movant seeks recovery primarily from third parties and agrees that the stay will remain in effect as to enforcement of any resulting judgment against the Debtor or bankruptcy estate, except that Movant will retain the right to file a proof of claim under 11 U.S.C. § 501 and/or an adversary complaint under 11 U.S.C. § 523 or § 727 in this bankruptcy case. ¢. [1 Mandatory abstention applies under 28 U.S.C. § 1334(c)(2), and Movant agrees that the stay will remain in effect as to enforcement of any resulting judgment against the Debtor or bankruptcy estate, except that Movant will retain the right to file a proof of claim under 11 U.S.C. § 501 and/or an adversary complaint under 11 U.S.C. § 523 or § 727 in this bankruptcy case. : d. IX The Claims are nondischargeable in nature and can be most expeditiously resolved in the nonbankruptcy forum. 8. The Claims arise under nonbankruptcy law and can be most expeditiously resolved in the nonbankruptcy forum. This form is mandatory. It has been approved for use In the United States Bankruptcy Gourt for the Central District of California. June 2014 Page 3 F 4001-1.RFS.NONBK.MOTION f. Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:26 Desc Main Document ~~ Page 4 of 12 The bankruptcy case was filed in bad faith. (1) [J Movant is the only creditor, or one of very few creditors, listed or scheduled in the Debtor's case commencement documents. (2) XX The timing of the filing of the bankruptcy petition indicates that it was intended to delay or interfere with the Nonbankruptcy Action. (3) [XI Multiple bankruptcy cases affect the Nonbankruptcy Action. (4) The Debtor filed only a few case commencement documents. No schedules or statement of financial affairs (or chapter 13 plan, if appropriate) has been filed. g. [1 Other (specify): 5. Grounds for Annulment of Stay. Movant took postpetition actions against the Debtor. a. The actions were taken before Movant knew that the bankruptcy case had been filed, and Movant would have been entitled to relief from stay to proceed with these actions. b. [J Although Movant knew the bankruptcy case was filed, Movant previously obtained relief from stay to proceed in the Nonbankruptcy Action in prior bankruptcy cases affecting the Nonbankruptcy Action as set forth in Exhibit. ; c. Other (specify): Debtors filed this instant Chapter 7 petition the same day that trial was to begin in the state court nonbankruptcy action. The bankruptcy case was dismissed merely 18 days later for failure to file documents 6. Evidence in Support of Motion: (Important Note: declaration(s) in support of the Motion MUST be signed under penalty of perjury and aitached to this motion.) a. b. X ( 0 O The DECLARATION RE ACTION IN NONBANKRUPTCY FORUM on page 6. Supplemental declaration(s). The statements made by Debtor under penalty of perjury concerning Movant's claims as set forth in Debtor's case commencement documents. Authenticated copies of the relevant portions of the Debtor's case commencement documents are attached as Exhibit. : : Other evidence (specify). 7. [0 An optional Memorandum of Points and Authorities is attached to this Motion. Movant requests the following relief: 1. Relief from the stay pursuant to 11 U.S.C. § 362(d)(1). 2. Movant may proceed under applicable nonbankruptcy law to enforce its remedies to proceed to final judgment in the nonbankruptoy forum, provided that the stay remains in effect with respect to enforcement of any judgment against the Debtor or property of the Debtor's bankruptcy estate. 3. The stay is annulled retroactively to the bankruptcy petition date. Any postpetition acts taken by Movant in the Nonbankruptey Action shall not constitute a violation of the stay. This form is mandatory. It has been approved for use in the United States Bankruptcy Court for the Central District of Californ ia, June 2014 Page 4 F 4001-1.RFS.NONBK.MOTION Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:26 Desc > Main Document Page 5 of 12 [J The co-debtor stay of 11 U.S.C. § 1201(a) or § 1301 (a) is terminated, modified, or annulled as to the co-debtor, on the same terms and condition as to the Debtor. wo or . The 14-day stay prescribed by FRBP 4001(a)(3) is waived. . [1 The order is binding and effective in any bankruptcy case commenced by or against the Debtor for a period of 180 days, so that no further automatic stay shall arise in that case as to the Nonbankruptcy Action. 7. [J The order is binding and effective in any future bankruptcy case, no matter who the debtor may be, without further notice 8. [J Other relief requested. Date: _W\ us] vi Law Offices of Steven P. Chang Printed name of law firm (if applicable) Steven P. Chang Printed name of individual Mavant or attorney for Movant - CoG i A Signature of individual Movant or attorney for Movant This form is mandatory. It has been approved for use in the United States Bankruptcy Courl for the Central District of Californ ia. June 2014 Page § F 4001-1.RFS.NONBK.MOTION Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:26 Desc Main Document Page 6 of 12 DECLARATION RE ACTION IN NONBANKRUPTCY FORUM 1, (name of Declarant) _Jennifer Tsui , declare as follows: 1. | have personal knowledge of the matters set forth in this declaration and, if called upon to testify, | could and would competently testify thereto. | am over 18 years of age. | have knowledge regarding (Nonbankruptcy Action) because: [1 1am the Movant. [J 1am Movant's attorney of record in the Nonbankruptcy Action. | am employed by Movant as (title and capacity): Chief Executive Officer and authorized agent [J Other (specify): | am one of the custodians of the books, records and files of Movant as to those books, records and files that pertain to the Nonbankruptcy Action. | have personally worked on books, records and files, and as to the following facts, | know them to be true of my own knowledge or | have gained knowledge of them from the business records of Movant on behalf of Movant, which were made at or about the time of the events recorded, and which are maintained in the ordinary course of Movant's business at or near the time of the acts, conditions or events to which they relate. Any such document was prepared in the ordinary course of business of Movant by a person who had personal knowledge of the event being recorded and had or has a business duty to record accurately such event. The business records are available for inspection and copies can be submitted to the court if required. in the Nonbankruptcy Action, Movant is: Plaintiff [J Defendant [0 Other (specify): The Nonbankruptcy Action is pending as: a. Name of Nonbankruptcy Action: Bai Limited v. Brett John Kacura, et. al. b. Docket number: 30-2014-00727440-CU-FR-CJC ¢. Nonbankruptcy court or agency where Nonbankruptcy Action is pending: Superior Court of California, County of Orange Procedural Status of Nonbankruptey Action: a. The Claims are: Fraud, Conspiracy to Commit Fraud, Wrongful Conversion, Conspiracy to Convert, Breach of Oral Contract, Breach of Written Contract, Business and Professions Cod 17200, Unfair Competition, Implied in Fact Contract, and Accounting b. True and correct copies of the documents filed in the Nonbankruptcy Action are attached as Exhibit 1. ¢. The Nonbankruptcy Action was filed on (date) 06/10/2014 d. Trial or hearing began/is scheduled to begin on (date) 10/03/2016 . e. The trial or hearing is estimated to require nfa__ days (specify). f. Other plaintiffs in the Nonbankruptcy Action are (specify): none This form is mandatory. it has been approved for use in the United States Bankruptcy Court for the Central District of California. June 2014 Page 6 F 4001-1.RFS.NONBK.MOTION Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:2 6 Desc Main Document ~~ Page 7 of 12 g. Other defendants in the Nonbankruptcy Action are (specify): LEAD RESULTS, INC. (Debtors' DBA) 5. Grounds for relief from stay: a. [J b. [J c. Od Movant seeks recovery primarily from third parties and agrees that the stay will remain in effect as to enforcement of any resulting judgment against the Debtor or the Debtor's bankruptcy estate, except that Movant will retain the right to file a proof of claim under 11 U.S.C. § 501 and/or an adversary complaint unde r 11 U.S.C. § 523 or § 727 in this bankruptcy case. Mandatory abstention applies under 28 U.S.C. § 1334(c)(2), and Movant agrees that the stay will remain in effect as to enforcement of any resulting judgment against the Debtor or the Debtor's bankruptcy estate, except that Movant will retain the right to file a proof of claim under 11 U.S.C. § 501 and/or an adversary complaint under 11 U.S.C. § 523 or § 727 in this bankruptcy case. Movant seeks recovery only from applicable insurance, if any, and waives any deficiency or other claim against the Debtor or property of the Debtor's bankruptcy estate. The insurance carrier and policy number are (specify): d. [ The Nonbankruptcy Action can be tried more expeditiously in the nonbankruptcy forum. (1) O tis currently set for trial on (date) ©) [J tis in advanced stages of discovery and Movant believes that it will be set for trial by (date) . The basis for this belief is (specify). (3) [0 The Nonbankruptcy Action involves non-debtor parties and a single trial in the nonbankruptey forum is the most efficient use of judicial resources. The bankruptcy case was filed in bad faith specifically to delay or interfere with the prosecution of the Nonbankruptey Action. (1) OO Movant is the only creditor, or one of very few creditors, listed or scheduled in the Debtor's case commencement documents. 2 IX The timing of the filing of the bankruptcy petition indicates it was intended to delay or interfere with the Nonbankruptcy Action based upon the following facts (specify): Trial was set to commence on October 3, 2016. That same day, Debtors filed this Chapter 7 case. Debtors never gave notice of filing. The case was dismissed 18 days later for Debtors’ failure to file all documents. Trial proceeded that day via default, the Court found in favor of Plaintiff, and judgment is pending to be issued pending this motion. See Attachment 1. (3) Muttiple bankruptcy cases affecting the Property include: (A) Case name: In re Brett John Kacura and Denise Marie Kacura Case number; 8:17-bk-11716 Chapter: 7 Date filed: 04/28/2017 Date discharged: 08/21/2017 Date dismissed: Relief from stay regarding this Nonbankruptcy Action was []wasnot granted. This form Is mandatory. It has been approved for use in the United States Bankruptcy Court for the Central District of California. June 2014 Page 7 F 4001-1,RFS. NONBK.MOTION Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:26 Desc Main Document Page 8 of 12 (B) Case name: Case number: Chapter: Date filed: Date discharged: Date dismissed: Relief from stay regarding this Nonbankruptcy Action [1] was [1 was not granted. {C) Case name: Case number: Chapter: Date filed: Date discharged: Date dismissed: Relief from stay regarding this Nonbankruptcy Action [was [was not granted. [0 See attached continuation page for information about other bankruptcy cases affecting the Nonbankruptcy Action. See attached continuation page for additional facts establishing that this case was filed in bad faith. f See attached continuation page for other facts justifying relief from stay. 6. Actions taken in the Nonbankruptcy Action after the bankruptcy petition was filed are specified in the attached supplemental declaration(s). a. These actions were taken before Movant knew the bankruptcy petition had been filed, and Movant would have been entitled to relief from stay to proceed with these actions. b. [J Movant knew the bankruptcy case had been filed, but Movant previously obtained relief from stay to proceed with the Nonbankruptcy Action enforcement actions in prior bankruptcy cases affecting the Property as set forth in Exhibit c. For other facts justifying annulment, see attached continuation page. | declare under penalty of perjury under the laws of the United States that the for >) rt! / [7 Jennifer Tsui Date’ Printed name This form is mandatory. It has been approved for use in the United States Bankruptcy Court for the Central District of California. June 2014 Page 8 F 4001-1.RFS.NONBK.MOTION Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:26 De sc Main Document Page 9 of 12 ATTACHMENT 1 TO DECLARATION RE ACTION IN NONBANKRUPTCY FORUM The State Court Case in this matter has been pending since 2014. After numerous delays by Debtors, on October 3, 2016, the same day that trial was set to commence, Defendants failed to appear and never provided any notice to the Court or Plaintiff. Plaintiff, a foreign Corporation based in Hong Kong, therefore proceeded with a prove-up of trial. Plaintiff rested its case in chief on October 3, 2016 and the Court took the matter under submission and issued a minute order on October 4, 2016 finding in favor of Plaintiffs on Fraud and other causes of action and award judgment against Debtors / Defendants. It was not until about one week later when Plaintiff was first provided notice of bankruptcy. The notice of bankruptcy was sent from the Bankruptcy Court itself; no such notice was ever given to Plaintiff by Defendants. To compound the matter further, Defendants never prosecuted the bankruptcy case and ultimately, it was dismissed for failure to file schedules, statements and/or plan on October 21, 2016. See attached Order of Dismissal. Defendants never attempted to set aside the Order. Defendants also never attempted to set aside the minute order and issuance of the judgment with the State Court. On April 28, 2017, a full six (6) months later, Defendants again filed for bankruptcy and despite this being the second bankruptcy within one (1) year, Debtors never sought a motion to extend the stay. Plaintiff/Movant met and conferred with Debtors relating to relief from stay or confirmation that no stay was effective but Debtors refused. Plaintiff/Movant was forced to bring a motion confirming termination of stay under 11 USC 362. The motion was granted and entered on August 8, 2017. No further discussions between Movant and Debtors were held relating to stay. Plaintiff/Movant filed an adversary complaint on June 21, 2017 for its judgment to be protected and deem non-dischargeable. On October 26, 2017, Plaintiff/Movant received, for the first time, Defendants/Debtors’ motion to set aside void order of October 4, 2016 (a full year and 22 days after the order had been entered). The ground for Defendants/Debtors” motion was the contention that their first bankruptcy was filed in the afternoon after trial had concluded but before the minute order was formally entered by the court. Plaintiff / Movant was therefore forced to file this Motion to seek relief. Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:26 D esc Main Document Page 10 of 12 Exhibit 1 cn Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:2 6 Desc Main Document Page 11 of 12 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER MINUTE ORDER DATE: 10/04/2016 TIME: 03:17:00 PM DEPT: C21 JUDICIAL OFFICER PRESIDING: Mary Fingal Schulte CLERK: Alma Bovard REPORTER/ERM: None BAILIFF/COURT ATTENDANT: CASE NO: 30-2014-00727440-CU-FR-CJC CASE INIT.DATE: 06/10/2014 CASE TITLE: BAI LIMITED vs. Kacura CASE CATEGORY: Civil - Unlimited CASE TYPE: Fraud EVENT ID/DOCUMENT ID: 72458055 EVENT TYPE: Under Submission Ruling APPEARANCES There are no appearances by any party. The Court, having taken the above-entitled matter under submission on 10/03/2016 and havin fully one Ce the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows: Defendants did not appear at trial, so trial proceeded in their absence. The Court considered and welghed all the evidence, including portions of deposition transcripts submitted for the Court to read. The Court finds for plaintiff and against defendants In the sum of $252,476.41 plus accrued interest at the legal rage from March 2014 to the present, plus costs. The Court declines to award punitive damages as plaintiff has not met its burden of proof in that regard. Trial took less than a day, so a statement of decision is not required. CCP section 632. The Court directs counsel for plaintiff to prepare the judgment. All exhibits returned to the submitting party. Court orders Clerk to give notice. DATE: 10/04/2016 MINUTE ORDER Page 1 DEPT: C21 Calendar No. Case 8:16-bk-14114-ES Doc 20 Filed 11/16/17 Entered 11/16/17 15:07:26 Desc Main Document Page 12 of 12 PROOF OF SERVICE OF DOCUMENT | am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 13200 Crossroads Parkway North, Suite 165, City of Industry, CA 91746 A true and correct copy of the foregoing document entitled: NOTICE OF MOTION AND MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER 11 U.S.C. § 362 (with supporting declarations) (ACTION IN NONBANKRUPTCY FORUM) will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner stated below: 1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) Orders and LBR, the foregoing document will be served by the court via NEF and hyperlink to the document. On (date) 11/16/2017 , | checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following persons are on the Electronic Mail Notice List to receive NEF transmission at the email addresses stated below: Marian Garza on behalf of Creditor BMW Bank of North America, ecfnotices@ascensioncapitalgroup.com Jeffrey 1 Golden (TR): ljones@wglip.com, jig@trustsolutions.net, kadele@wgllp.com, Ifisk@wglip.com United States Trustee (SA): ustpregion16.sa.ecf@usdoj.gov [C1 Service information continued on attached page 2. SERVED BY UNITED STATES MAIL: On (date) 11/16/2017 _, I served the following persons and/or entities at the last known addresses in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States mail, first class, postage prepaid, and addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed. Honorable Erithe A. Smith Jeffrey |. Golden Jeffrey G. Jacobs Brett and Denise Kacura US Bankruptcy Court Chapter 7 Trustee Attorney for Debtors Debtors 411 W. Fourth St., Suite 5040 650 Town Center Dr. #950 15615 Alton Pkwy. #270 5620 Costa Maritime Santa Ana, CA 92701 Costa Mesa, CA 92626 Irvine, CA 92618 San Clemente, CA 92673 [7] Service information continued on attached page 3. SERVED BY PERSONAL DELIVERY, OVERNIGHT MAIL, FACSIMILE TRANSMISSION OR EMAIL (state method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on (date) , | served the following persons and/or entities by personal delivery, overnight mail service, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on, or overnight mail to, the judge will be completed no later than 24 hours after the document is filed. [1 Service information continued on attached page | declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. 7 A 1116/2017 Sarah Wu Zon) A u Date Printed Name Signature This form is mandatory. It has been approved for use In the United States Bankruptcy Court for the Central Distri ct of California. June 2014 Page 9 F 4001-1.RFS.NONBK.MOTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (1013a,2015.5C.CP.) Re: BAI LIMITED v. BRETT JOHN KACURA et al. Case No.: 30-2014-00727440-CU-FR-CJC I, Kathy Ferrera, am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action; my business address is 5200 W. Century Blvd Suite 345 Los Angeles, CA 90045 On December 19, 2017, 1 served the following document(s) described as: 1. PLAINTIFF BAI LIMITED’S OPPOSITION TO DEFENDANTS’ MOTION TO SET ASIDE MINUTE ORDER RULING/VERDICT ON COURT TRIAL; DECLARATION OF HEIDI M. CHENG; DECLARATION OF EDWARD O. LEAR 2. [PROPOSED] JUDGMENT AGAINST DEFENDANT BRETT JOHN KACURA, DENISE KACURA, AND LEAD RESULTS, INC. on the interested parties in this action by placing a true copy thereof in a sealed envelope addressed as follows: Jeffrey G. Jacobs The Law Office of Jeffrey G. Jacobs 15770 Laguna Canyon Road, Suite 100 Irvine, California 92618 [X](BY MAIL) On said date I placed such envelope with postage thereon fully prepaid in the United States mail at Los Angeles, California. [ ] Iam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. [] (BYE-MAI) On said date I e-mailed the above-referenced document to the attention of Jeffrey G. Jacobs at JEFF@JGJESQ.COM. [1] (BY OVERNIGHT DELIVERY) I am readily familiar with the business practice of Century Law Group LLP for collection and processing of documents for overnight delivery and know that the document(s) described herein will be deposited in a box or other facility regularly maintained by Federal Express or Overnite Express for overnight delivery or by Express mail via the United States Postal Service. I declare under penalty of perjury that the above is true and correct and that this declaration/certificate is executed at Los Angeles, California on December 19, 2017. 5 nm Kathy Ferrera -