Moez, LLC vs. Jvs Development, LLC.

Opposition

Cal. Super. - 4th Dist.December 12, 2017

Oo 0 S N A W N D — BN O N ND N N N N N ee e m e m o m e d e m p m p m RX N N BA W N = O 0 X N N N R W N D = O LORI C. HERSHORIN, ESQ. (SBN 155977) [3019-127] CLAUDIA MOURAD, ESQ. (SBN 211139) HERSHORIN & HENRY, LLP 26475 Rancho Parkway South Lake Forest, California 92630 T: (949) 859-5600 ¢ F: (949) 859-5680 Attorneys for Defendant, SGFC, LLC, a California limited liability company ELECTRONICALLY FILED Superior Court of California, County of Orange 01/25/2018 at 05:14:00 PM Clerk of the Superior Court By Angelina Mguyen-Do, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER MOEZ, LLC, a California limited liability company, and MOHAMAD TAHAMI, an individual Plaintiffs, vs. JVS DEVELOPMENT, LLC, a California limited liability company; et al. Defendants. CASE NO.: 30-2017-00960538-CU-FR-CIC [Assigned for All Purposes to: Hon. James L. Crandall, Dept. C33] DEFENDANT SGFC, LLC’S OPPOSITION TO REQUEST FOR PRELIMINARY INJUNCTION [Request for Judicial Notice Filed Under Separate Cover] OSC Hearing Date: February 8, 2018 Time: 1:30 p.m. Dept.: C33 Action Filed: December 12, 2017 Trial Date: None Set Defendant, SGFC, LLC, a California limited liability company (“SGFC”), respectfully submits this memorandum of points and authorities in support of its Opposition to Plaintiffs MOEZ, LLC, a California limited liability company, and MOHAMAD TAHAMTI’s, an individual (collectively “Plaintiffs”), Request for Preliminary Injunction. -1- SGFC, LLC’S OPPOSITION TO REQUEST FOR PRELIMINARY INJUNCTION A L N Oo ee 3 O N Wi n 10 11 12 13 14 15 16 17 18 19 20 21 . 99 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IL. INTRODUCTION This action arises out of a grant deed from plaintiff Moez, LLC (“Moez”) to defendant JVS Development, LLC (“JVS”) for the real property located at 811 S. Woodbury Drive, Orange, California 92866 (“Property”). Plaintiffs claim the grant deed was forged, and that a deed of trust recorded against the Property in favor of SGFC to secure a $505,000.00 loan to JVS (“Deed of Trust”) is invalid. Plaintiffs seek a preliminary injunction to enjoin SGFC and Del Toro Servicing, Inc. the trustee handling the foreclosure of the Deed of Trust, from proceeding with a foreclosure. Plaintiffs’ Request for Preliminary Injunction should be denied as there is currently in place an automatic stay imposed by 11 U.S. Code § 362 due to the pending bankruptcy of JVS, the borrower on the loan secured by the Deed of Trust upon which SGFC is foreclosing. JVS filed a Chapter 11 bankruptcy petition on November 29, 2017, and listed SGFC as a secured creditor. That automatic stay prevents SGFC and its trustee from foreclosing on the Deed of Trust until the automatic stay is lifted. That stay also bars SGFC from propounding any discovery in this action to JVS. Thus, SGFC cannot gather the facts and evidence needed to evaluate the merits of Plaintiffs’ claim of forgery and, if proper, to prepare its Opposition to the requested injunctive relief. That Opposition may involve claims by SGFC that (1) the signature attributed to Moez was not a forgery or, (2) was part of an overall conspiracy, or (3) was a forgery that was authorized and/or ratified by Plaintiffs or, (4) that Plaintiffs are estopped by their actions from disputing the validity of the grant deed. The bankruptcy automatic stay also bars Plaintiffs’ request for injunctive relief from proceeding in the State Court because in its Amended Schedule of Creditors in the bankruptcy action, JVS has listed Moez as a disputed creditor. (See, Request for Judicial Notice, Exhibits 1 and 2.) Indeed, because the Bankruptcy Court’s stay is now in place, it has the identical effect as the injunction Plaintiffs are seeking from the State Court and, consequently, Plaintiffs are in no imminent risk of foreclosure by SGFC or its trustee. Accordingly, the State Court is barred from taking any action against JVS, including making any order affecting title to the Property or the validity of the Grant Deed Moez executed in favor of 7. SGFC, LLC’S OPPOSITION TO REQUEST FOR PRELIMINARY INJUNCTION O w 1 SN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JVS but is now disputing. If the State Court were to take any action, while the JVS bankruptcy stay is still in effect, it would render such order voidable as a willful violation of the automatic stay. In the very unlikely event that the State Court is inclined to grant the preliminary injunction, then Plaintiffs should be ordered to post a bond in an amount not less than $550,000.00, pursuant to California Rules of Court, Rule 3.1150(f). That sum represents the unpaid principal balance of SGFC’s loan ($505,000), plus accruing interest, plus reasonable costs of litigation and attorney’s fees of $45,000 to litigate the merits of Plaintiffs’ claim. 11. STATEMENT OF ALLEGED FACTS Plaintiffs contend that on or about March 28, 2017, the defendants forged plaintiff Mohammad Tahami’s signature on a Grant Deed from Moez, LLC to JVS. (Compl., § 53, Ex. 3.) In addition, a notary public by the name of Jasmine Nguyen, who is the current wife of defendant Stephen Nguyen, allegedly notarized the signature of Mohammad Tahami. (Compl., 53.) The Complaint further alleges that the Nguyen Defendants then recorded the disputed Grant Deed in the Official Records of the Orange County Recorder as Document No. 2017000133226, on April 3, 2017. (Compl., § 54, Exh. 3.) Plaintiffs also allege that Stephen Nguyen used the disputed Grant Deed to falsely claim he was acting on behalf of JVS, the grantee of the Property, to obtain a loan in the amount of $505,000.00 from SGFC. (Compl., § 55.) JVS then executed a Deed of Trust in favor of SGFC to secure the new loan from SGFC. That Deed of Trust was then recorded along with the disputed Grant Deed on April 3, 2017, in the Official Records of the Orange County Recorder as Document No. 2017000131227. (Compl, | 55, Ex. 4.) The ex parte application states that sometime in April 2017, plaintiff Mohammad Tahami received a letter from the Orange County Recorder’s Office telling him that the Property had been sold, and Stephen Nguyen apologized and said it was a mistake of Amerilink Escrow and that he would take care of it. (Ex Parte Application, p. 4:17-21.) The Complaint further alleges that on or about April 11, 2017, Stephen Nguyen, acting on behalf of JVS, executed another Grant Deed that purported to convey the Property back to Moez, LLC, and which Moez, LLC then recorded on June 1, 2017, in the Official Records of the Orange County -3- SGFC, LLC’S OPPOSITION TO REQUEST FOR PRELIMINARY INJUNCTION Recorder as Document No. 2017000223559. (Compl., { 56-57, Ex. 5.) Plaintiffs allege that when Moez, LLC thereafter discovered SGFC’s Deed of Trust on the Property, Mohammad Tahami contacted Stephen Nguyen who informed him that another individual named Jimmy Phan had taken the SGFC loan funds and neither Stephen Nguyen nor JVS would pay off the loan. (Compl., § 58.) III. ARGUMENT 11 U.S. Code § 362 (a) provides that the filing of a bankruptcy petition “operates as a stay [of] action[s] or proceeding[s] against the debtor.” Thus, when an entity files for bankruptcy, the automatic stay prevents creditors from taking any action to collect or enforce a debt, including inter alia, continuing ongoing litigation. Accordingly, SGFC is already currently barred from proceeding with its foreclosure until the automatic stay is lifted, and SGFC cannot proceed in the instant action, such as conduct necessary written discovery and take depositions of all the various parties involved in the Property’s transfer and the loan described above. Thus, SGFC cannot gather the facts and information necessary in order to evaluate the merits of any opposition it has to the injunction or the claims Plaintiffs are making that the Grant Deed is void. At this time with the bankruptcy stay in effect, SGFC would be severely and unfairly prejudiced if the Court were to proceed and grant the requested injunction. IV. CONCLUSION Based on the foregoing, Plaintiffs’ request for a preliminary injunction should be denied. DATED: January 25, 2018 HERSHORIN & HENRY, LLP (pd LORI C. HERSHORIN, ESQ. CLAUDIA MOURAD, ESQ. Attorneys for Defendant, SGFC, LLC, a California limited liability company 4. SGFC, LLC’S OPPOSITION TO REQUEST FOR PRELIMINARY INJUNCTION OO 0 N Y L n h w N e N O N N O N O N N N N N e e e m e m pe em e d e d e d ed ®w ~~ ] nn B R A W N = O o N S y in E W N = O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 years and not a party to the within action. My business address is 26475 Rancho Parkway South, Lake Forest, California 92630. On January 25, 2018, 1 served the foregoing document(s) described as DEFENDANT SGFC, LLC’S OPPOSITION TO REQUEST FOR PRELIMINARY INJUNCTION on all interested parties in this action by placing a true copy(ies) in sealed envelope(s) addressed as follows: SEE ATTACHED SERVICE LIST. METHOD OF SERVICE [1] (BY U.S. MAIL) I caused each such envelope(s), with postage thereon fully prepaid, to be placed in the United States mail at Lake Forest, California. I am readily familiar with the practice of this law firm for collection and processing of correspondence for mailing, said practice being that in the ordinary course of business, mail is deposited in the United States Postal Service the same day as it is placed for collection. [X] (BY OVERNIGHT DELIVERY) I am readily familiar with the practice of Hershorin & Henry, LLP for the collection and processing of correspondence for overnight delivery and know that the document(s) described herein will be deposited on a box or other facility regularly maintained by Federal Express/United Postal Service/GSO-Norco Ovemite Express for overnight delivery. [1 (BY FACSIMILE TRANSMISSION) The above-referenced document(s) was transmitted by facsimile transmission and the transmission was reported as complete and without error. Pursuant to C.R.C. 2009(1), I caused the transmitting facsimile machine to issue a transmission report, a copy of which is maintained in this office and is available for inspection upon reasonable demand. [1 (BY PERSONAL DELIVERY) By causing a true copy of the within document(s) to be personally hand-delivered to the office(s) of the addressee(s) set forth above, on the date set forth above. [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on January 25, 2018, at Lake Forest, California. = Anna Phaivhasa -1- PROOF OF SERVICE BS Oo 0 1 O Y Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST OCSC Case No.: 30-2017-00960538-CU-FR-CJC COUNSEL/PARTIES REPRESENTING Gregory L. Bosse, Esq. (SBN 103641) LAW OFFICES OF GREGORY L. BOSSE 940 W. 17" Street, Suite F Santa Ana, CA 92706 Tel: (714) 550-9555 Fax: (714) 316-1344 E-mail: greg@lawbosse.com Attorney for Plaintiffs, MOEZ, LLC and MOHAMMAD TAHAMI a, PROOF OF SERVICE