FILED
DEC 16 2022
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
NOT FOR PUBLICATION OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. CC-22-1114-FTL
ROBERT JACOB KULICK,
Debtor. Bk. No. 9:21-bk-10017-RC
ROBERT JACOB KULICK,
Appellant,
v. MEMORANDUM*
LEISURE VILLAGE ASSOCIATION,
INC.,
Appellee.
Appeal from the United States Bankruptcy Court
for the Central District of California
Ronald A. Clifford III, Bankruptcy Judge, Presiding
Before: FARIS, TAYLOR, and LAFFERTY, Bankruptcy Judges.
INTRODUCTION
After debtor Robert Jacob Kulick obtained dismissal of his third
chapter 131 case, creditor Leisure Village Association, Inc. (“Leisure
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
Unless specified otherwise, all chapter and section references are to the
1
Bankruptcy Code,
11 U.S.C. §§ 101-1532.
Village”) sought a two-year refiling bar. The bankruptcy court agreed in
part and barred Mr. Kulick from refiling a bankruptcy petition through the
end of 2022, a period of about ten months.
Mr. Kulick appeals the bankruptcy court’s refiling bar. We discern no
error and AFFIRM.
FACTS 2
A. Mr. Kulick’s prior litigation
In 2013, Leisure Village filed a breach of contract lawsuit against
Mr. Kulick and obtained a state court judgment for approximately
$430,000. Mr. Kulick paid that judgment in full but then sued Leisure
Village and others in state court for defamation. The defendants eventually
prevailed against Mr. Kulick in the superior court and on appeal and were
awarded attorneys’ fees and costs totaling $504,965 plus interest. Leisure
Village holds a judgment lien against Mr. Kulick’s residential real property
located in Camarillo, California.
During the second lawsuit, Mr. Kulick filed two chapter 13 petitions.
He filed his first petition in January 2018, which the court dismissed on his
motion in April of that year. He filed another petition in October, which he
2
Mr. Kulick did not provide us with any excerpts of record, other than the
hearing transcript. We exercise our discretion to review the court’s docket, as
appropriate, see Woods & Erickson, LLP v. Leonard (In re AVI, Inc.),
389 B.R. 721, 725 n.2
(9th Cir. BAP 2008), but we have not “scour[ed] the record to try to make [appellant’s]
case[,]” Wells Fargo Bank, N.A. v. Loop 76, LLC (In re Loop 76, LLC),
465 B.R. 525, 545 (9th
Cir. BAP 2012), aff’d,
578 F. App’x 644 (9th Cir. 2014).
2
again voluntarily dismissed a month later.
Additionally, Mr. Kulick filed at least five complaints against Leisure
Village in the U.S. District Court for the Central District of California
between 2018 and 2020. The district court dismissed each of those cases in
short order.
B. Mr. Kulick’s current chapter 13 case
In January 2021, with the aid of counsel, Mr. Kulick filed another
chapter 13 petition. He filed a chapter 13 plan (and an amended plan) to
which the chapter 13 trustee (“Trustee”) and Leisure Village objected.
Just before the third hearing on plan confirmation, Mr. Kulick filed a
motion for voluntary dismissal. The bankruptcy court granted the motion
and dismissed the case.3
C. Leisure Village’s motion to impose a bar on refiling
On May 5, 2022, Leisure Village filed a motion to bar Mr. Kulick from
refiling a bankruptcy petition for two years (“Motion”), pointing to his
“history of bankruptcy filings, misrepresentations of assets and liabilities,
and egregious conduct . . . .”
Leisure Village characterized Mr. Kulick as a “serial chapter 13 filer,
who has demonstrated no intent to reorganize his financial affairs and
instead only abuses the bankruptcy process to hinder and delay [Leisure
Village’s] judgment collection efforts.” It pointed out various misleading or
3
Two days after the bankruptcy court granted the motion to dismiss, the case
was reassigned from Judge Saltzman to Judge Clifford.
3
untrue statements, as well as an undisclosed apartment lease and
unscheduled assets such as cash and jewelry. It also outlined his attempts
to avoid any inquiry into his assets and frustrate the § 341 meeting of
creditors and Rule 2004 examination. It argued that, based on the totality of
the circumstances, Mr. Kulick abused the bankruptcy process and should
be barred from refiling a bankruptcy petition for at least two years.
Mr. Kulick opposed the Motion and argued that he filed the petition
in good faith with the intent to save his home from foreclosure. He said
that he had no plans to file another bankruptcy petition. He explained that
his deceased wife owned the unscheduled jewelry and that he could not
locate it. He also said that he had not resided at the rental apartment since
2000 and kept it only as a “safe house” in the event of a natural disaster. He
argued that his conduct was not so egregious as to warrant a lengthy
refiling bar. He pointed to his medical disabilities and his good faith efforts
to save his home from foreclosure.
Before the hearing on the Motion, the bankruptcy court issued a
tentative ruling and published it on its public calendar. The court did not,
however, place the tentative decision on the docket.
At the hearing, Leisure Village pointed out that Mr. Kulick had filed
approximately seven district court cases and three bankruptcy court cases,
which showed egregious conduct that called for an extended bar on
refiling. Mr. Kulick’s counsel countered that Mr. Kulick had filed the
present chapter 13 case in good faith and intended to use exempt assets to
4
fund his chapter 13 plan. Speaking for himself, Mr. Kulick echoed his
counsel’s statements and explained his learning and medical disabilities to
the court. He also told the court that, if “you still will permit me to have my
six months’ bar date, well, then I would accept that, Your Honor, but I
don’t think it’s fair that I should be barred for a year.”
The bankruptcy court ruled from the bench. It adopted the reasoning
of its tentative ruling but revised the length of the refiling bar. It stated that
it did not believe that “Mr. Kulick is without fault here or that the
allegations made hold no merit[,]” but it was “of the mindset that there do
seem to be some factors here that seem to at least weigh into some of the
things that Mr. Kulick has done including his age and what appear to be
serious health issues . . . .” It thus granted the Motion and imposed a bar on
refiling a bankruptcy petition under any chapter from the date the case was
dismissed (February 16, 2022) through the end of the year.
D. The appeal to the BAP
Mr. Kulick, proceeding pro se, timely appealed. The notice of appeal
requested a stay of the bankruptcy court’s order, which was “in
retaliation/an abuse of judicial court authority & Unconstitutional.”
Additionally, Mr. Kulick filed numerous motions before the BAP. In
one motion, he argued that Leisure Village was not a proper appellee and
that only the bankruptcy court should be a party to the appeal. In another,
he sought an injunction to stay foreclosure of his property.
On July 8, 2022, the BAP motions panel entered an order (the “July 8
5
Order”) that denied Mr. Kulick’s motions and required him to complete the
record on appeal and pay certain fees by a deadline. The July 8 Order
provided that, if Mr. Kulick did not comply, the BAP would dismiss the
appeal “without further notice to the parties.” Mr. Kulick complied with
the Panel’s order.
JURISDICTION
The bankruptcy court had jurisdiction under
28 U.S.C. §§ 1334 and
157(b)(2)(A). We have jurisdiction under
28 U.S.C. § 158.
ISSUE
Whether the bankruptcy court abused its discretion in granting the
Motion and barring Mr. Kulick from refiling a bankruptcy petition through
December 31, 2022.
STANDARD OF REVIEW
We review for an abuse of discretion the bankruptcy court’s decision
to impose a refiling bar following dismissal. In re Bayati, BAP No. CC-16-
1072-KiTaKu,
2016 WL 5848892, at *3 (9th Cir. BAP Oct. 5, 2016) (“The
decision to dismiss a bankruptcy case with prejudice and impose a filing
bar is also reviewed for abuse of discretion.”).
To determine whether the bankruptcy court has abused its discretion,
we conduct a two-step inquiry: (1) we review de novo whether the
bankruptcy court “identified the correct legal rule to apply to the relief
requested” and (2) if it did, we consider whether the bankruptcy court’s
application of the legal standard was illogical, implausible, or without
6
support in inferences that may be drawn from the facts in the record.
United States v. Hinkson,
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).
DISCUSSION
Mr. Kulick filed three informal briefs that identify the bankruptcy
court’s order granting the Motion as the basis for the appeal. His
substantive arguments are difficult to understand, but they seem to focus
on naming the bankruptcy court as an appellee, asserting undefined bias
by the court and the Trustee, and referencing matters presented in district
court cases. None of his arguments suggest reversible error.
A. The bankruptcy court did not err in imposing a limited bar on
refiling.
Although the Bankruptcy Code does not explicitly authorize the
bankruptcy court to bar a debtor from refiling a petition for a particular
amount of time, we have previously stated that “[s]ection 349(a)4 is not
ambiguous, and plainly provides that the bankruptcy court may, at its
discretion and for cause, bar the discharge of existing debt. Inherent in this
authority is the power to bar subsequent bankruptcy petitions that seek to
discharge such debt.” Leavitt v. Soto (In re Leavitt),
209 B.R. 935, 942 (9th Cir.
4 Section 349(a) provides:
Unless the court, for cause, orders otherwise, the dismissal of a case under
this title does not bar the discharge, in a later case under this title, of debts
that were dischargeable in the case dismissed; nor does the dismissal of a
case under this title prejudice the debtor with regard to the filing of a
subsequent petition under this title, except as provided in section 109(g) of
this title.
7
BAP 1997), aff’d,
171 F.3d 1219 (9th Cir. 1999). In other words, the
bankruptcy court may “dismiss a bankruptcy case with a bar preventing a
debtor from re-filing in cases of abuse. . . . [T]he issue of the length of the
bar is a matter for the Court’s discretion.” In re Craighead,
377 B.R. 648, 657
(Bankr. N.D. Cal. 2007); see also TICO Constr. Co. v. Van Meter (In re Powell),
644 B.R. 181, 187 (9th Cir. BAP 2022) (recognizing that a chapter 13 debtor
has a right to dismiss his petition, but the bankruptcy court can prevent
abuse by “impos[ing] a bar on refiling or other conditions under § 105”).
The bankruptcy court did not place its findings on the record at the
hearing on the Motion. It largely adopted its tentative ruling that was part
of the court’s calendar but never docketed. It directed counsel not to attach
a copy of the tentative ruling to the order. As a result, the tentative ruling is
not formally part of the record and not readily accessible to the public or to
litigants who are unfamiliar with this bankruptcy court’s practices.
We frequently affirm orders where the appellant fails to provide an
adequate record for us to review. See Goldstein v. Weeks St., LLC, No. 16-CV-
00856-BLF,
2017 WL 567254, at *7 (N.D. Cal. Feb. 13, 2017) (“[A] lack of an
adequate record does not mandate an automatic dismissal but rather,
provides this Court the discretion to dismiss the appeal on this basis.”),
aff’d sub nom. In re Weeks St., LLC,
764 F. App’x 602 (9th Cir. 2019); see also
McCarthy v. Prince (In re McCarthy),
230 B.R. 414, 417 (9th Cir. BAP 1999)
(stating that the requirement to provide an adequate record on review is
“mandatory, not optional”); Burkhart v. FDIC (In re Burkhart),
84 B.R. 658,
8
660 (9th Cir. BAP 1988) (“The responsibility to file an adequate record also
rests with the Appellants.”). We will overlook this point for three reasons.
First, Mr. Kulick is proceeding pro se and may not have understood the
importance of placing the tentative ruling in the record. Second, the
bankruptcy court took an affirmative step to keep the tentative ruling out
of the formal record (when it told appellee’s counsel not to attach the
tentative ruling to the order). Third, we are aware that the bankruptcy
court sometimes places tentative rulings on its online calendar and not on
its docket. Therefore, we are able to access it. (A copy of the tentative ruling
is attached to this memorandum.)
The reasons given in the tentative ruling are sufficient to justify a
refiling bar. Mr. Kulick’s conduct clearly supported a finding of bad faith
or abuse of the bankruptcy process. He filed three bankruptcy cases for the
express purpose of frustrating Leisure Village’s attempts to enforce its
judgment lien. He never seriously tried to confirm a chapter 13 plan;
instead, he voluntarily dismissed each case when Leisure Village and the
trustees began to scrutinize his schedules and the details of his plan.
Furthermore, Leisure Village and the Trustee pointed out his failure to
provide information about his income and assets and his multiple false
statements in his schedules; he does not dispute that he failed to schedule
valuable assets such as jewelry and cash and a long-term lease of another
property. The record establishes his egregious conduct and his attempts to
manipulate the bankruptcy process. A refiling bar through the end of 2022
9
was not an abuse of discretion.
On appeal, Mr. Kulick does not take issue with anything related to
the bar on refiling. This is a sufficient basis to affirm the bankruptcy court’s
order. See United States v. Kama,
394 F.3d 1236, 1238 (9th Cir. 2005)
(“Generally, an issue is waived when the appellant does not specifically
and distinctly argue the issue in his or her opening brief.”).
Construing his briefs liberally, Mr. Kulick argues that the bankruptcy
court (specifically, Judge Saltzman) and the Trustee exhibited bias toward
him and denied him due process; that he has debilitating health issues, and
the bankruptcy court and the parties violated the Americans with
Disabilities Act; and that he is a veteran who loves the United States of
America and its Constitution. None of these arguments demonstrate any
error in the bankruptcy court’s decision to impose a refiling bar. He offered
no evidence that the bankruptcy court was biased against him. He said that
he could tell that Judge Saltzman hated him by the way she looked at him;
but this is not evidence and, in any event, Judge Saltzman did not enter the
order on appeal. The Americans with Disabilities Act does not apply to the
federal courts. See Roman v. Jefferson at Hollywood LP,
495 F. App’x 804, 806
(9th Cir. 2012) (“While the [ADA] requires state courts to make disability
accommodations, the ADA does not apply to federal courts.”). Mr. Kulick’s
military service, while laudable, does not exempt him from the
consequences of his failure to pay his debt to Leisure Village. He was not
denied due process.
10
B. The BAP motions panel did not deprive Mr. Kulick of any due
process or constitutional right in denying his motions on appeal.
Mr. Kulick’s three informal briefs challenge the BAP motions panel’s
July 8 Order. We see no reason to alter that order. The bankruptcy court
was not a proper appellee: the court before which an action is pending is
never a party to the action; and the court that entered an order is never a
party to an appeal from that order. Mr. Kulick did not satisfy the standard
for a stay pending appeal. And the Panel did not deny him due process
when it warned that, if he did not comply with the order, the Panel would
dismiss the appeal without further notice. Notice is of course an essential
attribute of due process, but the Panel gave him notice when it entered the
July 8 Order. Due process did not require us to give him a second notice
when he failed to comply. More importantly, however, Mr. Kulick
complied with the July 8 Order, so we did not dismiss his appeal. His
challenge to the “without notice” provision of the order is hypothetical at
best.
CONCLUSION
The bankruptcy court did not abuse its discretion. We AFFIRM.
11
United States Bankruptcy Court
Central District of California
Northern Division
Ronald A Clifford III, Presiding
Courtroom 201 Calendar
Thursday, May 26, 2022 Hearing Room 201
11:00 AM
9:21-10017 Robert Jacob Kulick Chapter 13
#3.10 Hearing
RE: [77] Motion - NOTICE OF MOTION AND MOTION TO IMPOSE REFILING
BAR; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF
HOWARD I. CAMHI AND JEFF F. TCHAKAROV IN SUPPORT THEREOF
Docket 77
Tentative Ruling:
May 26, 2022
Appearances required.
Background
Debtor Robert Jacob Kulick ("Kulick") and the movant, creditor Leisure Village
Association, Inc. ("Leisure Village"), have been engaged in litigation since Leisure
Village filed a breach of contract lawsuit against Kulick in November 2013 (the "First
State Court Action"). Leisure Village is the homeowners’ association for Kulick’s
real property located at 38122 Village 38, Camarillo, CA 93012 (the "Camarillo
Residence"). In February 2016, the Debtor filed a defamation lawsuit against Leisure
Village and several individual defendants in the Ventura County Superior Court, (the
"Second State Court Action"). See Tchakarov Decl., ¶ 4. Leisure Village ultimately
obtained a judgment against Kulick in the First State Court Action for approximately
$430,000.00, (the "First Judgment"). See Docket No.77, Declaration of Jeff
Tchakarov, Esq. (the "Tchakarov Decl."), ¶ 3. On January 29, 2018, Kulick filed a
Chapter 13 case with this Court, Case No. 9:18-bk-10119, which he voluntarily
dismissed on April 12, 2018 (the “First 2018 Case”). On October 1, 2018 Kulick filed
Chapter 13 Case No. 9:18-bk-11609, (the “Second 2018 Case”), which he voluntarily
dismissed on November 8, 2018.
In December 2019, Kulick paid the First Judgment in full. See Docket No.77, Ex. A.
In July 2020, Leisure Village obtained a judgment against the Debtor in the Second
State Court Action for $504,965 (the "Second Judgment"). See Tchakarov Decl. ¶ 5,
Ex. B. On August 18, 2020, Leisure Village subsequently recorded the abstract of
judgement with the Ventura County clerk resulting in a judgment lien (the "Judgment
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United States Bankruptcy Court
Central District of California
Northern Division
Ronald A Clifford III, Presiding
Courtroom 201 Calendar
Thursday, May 26, 2022 Hearing Room 201
11:00 AM
CONT... Robert Jacob Kulick Chapter 13
Lien") against the Camarillo Residence. See Tchakarov Decl. ¶ 6, Ex. C. On January
9, 2021 Kulick filed the instant Chapter 13 case (this “Third Case”). On February 15,
2022, Leisure Village filed a Notice of Intent to Seek Conversion to Chapter 7. See
Docket No. 62. On the same date, Kulick filed Debtor’s Motion for Voluntary
Dismissal of Chapter 13 Case (the “Motion to Dismiss”). See Docket No.63. The
order dismissing this Third Case was entered on February 16, 2022. See Docket No.
64.
Leisure Village has now filed the Motion to Impose a Refiling Bar (the “Motion’) in
which they allege that Kulick’s history of bankruptcy filings, misrepresentations of
assets and liabilities, and egregious conduct with respect to this Court, Leisure Village
and its counsel constitute good cause to set a bar on the Debtor’s refiling of a
bankruptcy case pursuant to 11 U.S.C. § 349(a) and applicable case law for no less
than two (2) years. See Docket No.77, p.2, lines 10-14.
Legal Standard
Pursuant to
11 U.S.C. § 349(a), "[u]nless the court, for cause, orders otherwise, the
dismissal of a case under this title does not bar the discharge, in a later case under this
title, of debts that were dischargeable in the case dismissed; nor does the dismissal of
a case under this title prejudice the debtor with regard to the filing of a subsequent
petition under this title, except as provided in section 109(g) of this title." "Section
349(a) is not ambiguous, and plainly provides that the bankruptcy court may, at its
discretion and for cause, bar the discharge of existing debt. Inherent in this authority is
the power to bar subsequent bankruptcy petition that seek to discharge such debt." In
re Leavitt,
209 B.R. 935, 942 (9th Cir. BAP 1997).
For Chapter 13 cases, Section 1307(b) of the Bankruptcy Code provides that “[o]n
request of the debtor at any time, if the case has not been converted [], the court shall
dismiss a case under this Chapter.
While the Motion to Dismiss was approved as required by the Court, the Order and
Notice of Dismissal Arising from Debtor’s Request for Voluntary Dismissal of
Chapter 13 specifically provides that “the court retains jurisdiction on all issues
involving sanctions, any bar against being a debtor in bankruptcy, all issues arising
under Bankruptcy Code §§ 105, 109(g), 110, 329, 349 and 362, and to any additional
extent provided by law.” See Docket No. 64. Courts in this Circuit have dismissed
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United States Bankruptcy Court
Central District of California
Northern Division
Ronald A Clifford III, Presiding
Courtroom 201 Calendar
Thursday, May 26, 2022 Hearing Room 201
11:00 AM
CONT... Robert Jacob Kulick Chapter 13
cases, as requested by the debtor, but have also retained jurisdiction on issues related
to, inter alia, bars to refiling. In re Leavitt,
209 B.R. at 937.
“‘Cause’ under § 349 has not been defined by the Code. A review of the case law
indicates that ‘egregious’ conduct must be present, but that a finding of bad faith
constitutes such egregiousness.” Id. at 939. At bottom, the Ninth Circuit instructs
bankruptcy courts to conduct a totality of the circumstances test in determining bad
faith. In re Leavitt,
171 F.3d 1219, 1224 (9th Cir. 1999). The Ninth Circuit has held
that the factors the bankruptcy court should consider in this totality of the
circumstances test are: (1) whether the debtor "misrepresented facts in his [petition or]
plan, unfairly manipulated the Bankruptcy Code, or otherwise [filed] his Chapter 13
[petition or] plan in an inequitable manner;" (2) "the debtor's history of filings and
dismissals;" (3) whether "the debtor only intended to defeat state court litigation;" and
(4) whether egregious behavior is present.
Id.
Analysis
Whether the Debtor Misrepresented Facts in His Petition or Plan, Unfairly
Manipulated the Bankruptcy Code, or Otherwise Filed His Chapter 13 Petition or
Plan in an Inequitable Manner
Leisure Village alleges that the Petition and Schedules filed in this case were
incomplete and far less than forthright due to misrepresentations and omissions
committed by Kulick. Specifically, Leisure Village argues that Kulick failed to
disclose that he leases an apartment located at 1377 S. Beverly Glen Blvd., Apt. 405,
Los Angeles, CA 90024 (the “Los Angeles Residence”) for $1,874.00 per month on
Schedule G and that Schedule J listed a peculiar “Savings” expense of $2,200.00 until
counsel for the Leisure Village inquired about the lease obligations at the initial
341(a) meeting held on March 10, 2021. See Docket No. 12; Camhi Decl. ¶ 3.
Leisure Village also alleges that Kulick misrepresented the status of his business
entities and also had undisclosed assets and income. See Tchakarov Decl. ¶ 20. The
Petition states that Kulick has not used any business names or EINs in the last 8 years
(Petition, Part I, Q. 4) and Kulick is not a sole proprietor (Petition, Part III, Q. 12).
However, Schedule A/B discloses that Kulick has a 100% ownership interest in six
(6) business entities [Docket. No. 12] and Kulick sued Leisure Village in the Second
State Court Action as “Robert J. Kulick dba Leisure Village News.” Leisure Village
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United States Bankruptcy Court
Central District of California
Northern Division
Ronald A Clifford III, Presiding
Courtroom 201 Calendar
Thursday, May 26, 2022 Hearing Room 201
11:00 AM
CONT... Robert Jacob Kulick Chapter 13
further asserts that Kulick has undisclosed assets and income from his involvement in
jewelry inventory and sales through his businesses East Asia Gems, Ltd and Jewelry
Club of America. Docket No. 77, p.12, lines 4-14. Specifically, Leisure Village
claims that Kulick’s prior Chapter 13 case (Case No. 18-11609), Schedules A/B
[Docket. No. 1] lists jewelry inventory of another one of his deceased wife’s
businesses, Jewelry Club of America worth $69,442. However, Kulick could not
recall the location of said proceeds or records of the jewelry sales. See Ex. K,
Deposition transcript, 54, 58-59. Leisure Village also alleges that Kulick failed to
disclose “residual” income from “Ginnie Mae certificates of deposit, in addition to his
Social Security income and VA benefits in the schedules. Ex. K., p. 59, and Dkt. No.
12. When asked about the approximate amount of the undisclosed residual income,
Kulick could not recall. Ex. K., p. 60. Furthermore, Leisure Village claims that
Kulick admitted to being actively involved in Leisure BRK Enterprises CA-1, which
is the Debtor’s “dba” and a pass-through entity for proceeds from real estate
investments to be diverted to tax-exempt third parties. Ex. K Depo Tr., pp. 24-29.
In opposition of Leisure Village’s claims regarding the undisclosed jewelry inventory,
Kulick asserts that he failed to list the jewelry because he does not believe it is in his
possession since he has trouble locating where his now deceased wife stored the
inventory. See Docket No. 79, p. 3, lines 8-19. Regarding the Los Angeles
residence, Kulick states that he signed the lease agreement in 1979 and that he and his
wife lived there until the year 2000.
Id. at lines 21-22. Although he retained the
apartment after moving to the Camarillo residence Kulick asserts that his failure to
disclose the lease in his schedules was an oversight, which he corrected once the
discrepancy was brought to his attention.
Id. at lines 21-28; p.3 lines 1-3.
It is clear that the Kulick’s disclosures in his bankruptcy schedules have been
inaccurate, at best. There appears to the Court to have been a pattern of filing
inaccurate schedules by Kulick with this Court in the prior Chapter 13 cases. The
inaccurate disclosures when viewed singularly may not rise to the level of bad faith or
egregious conduct, but when viewed as a whole, the Court views this factor as
breaking in favor of the Motion.
The Debtor's History of Filings and Dismissals
Throughout the course of litigation with Leisure Village, Kulick has filed three (3)
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United States Bankruptcy Court
Central District of California
Northern Division
Ronald A Clifford III, Presiding
Courtroom 201 Calendar
Thursday, May 26, 2022 Hearing Room 201
11:00 AM
CONT... Robert Jacob Kulick Chapter 13
Chapter 13 bankruptcy cases in the Central District of California, Northern Division
since January 2018, all of which he has dismissed. Regarding the First Case, Kulick
asserts that he requested dismissal when it became clear that he would not be able to
propose a feasible plan. Id. at p. 2, lines 14-15. He further asserts that he received a
$223,722 award from the VA for past due disability compensation after the First Case
was dismissed which he believed would allow him to be able to propose a feasible
plan. Id. at lines 22-23. Kulick filed the Second Case approximately six (6) months
after dismissal of the First Case, which required him to file a motion to impose the
automatic stay. However, Leisure Village opposed the motion and the court ultimately
denied Kulick’s request to impose the stay. Kulick dismissed the second case because
"without the protection of the stay, he concluded that there would be no benefit of
continuing the case." Id. at lines 19-25.
On January 9, 2021 Kulick filed this Third Case. On February 15, 2022, Leisure
Village filed a Notice of Intent to Seek Conversion to Chapter 7. See Docket No. 62.
On the same date, Kulick filed the Motion to Dismiss.
In support of the Court’s authority to dismiss a case with a bar to refiling, Leisure
Village cites a number of cases (i.e., In re Craighead,
377 B.R. 648 (Bankr. N.D. Cal.
2007); In re Duran,
630 B.R. 797 (BAP 9th Cir. 2021); In re Ross,
858 F.3d 779 (3d
Cir. 2017); In re Sinischo,
561 B.R. 176 (Bankr. D. Colo. 2016) and In re McInnis,
No. BAP NC-17-1336-FBKU, 2018 WL6565413 (BAP 9th Cir. Dec. 10, 2018)). The
Court finds this Third Case distinguishable from the cases cited regarding the number
of filings and the succession of the repeated filings. In this case, Kulick has filed
three (3) Chapter 13 bankruptcy cases between January 2018 and January 2021. Two
(2) of the three (3) cases were filed in the year 2018, however, Kulick filed this Third
Case over two (2) years after the Second Case. In Craighead the Debtor and his
family filed twenty-two cases in the prior decade with six (6) being filed by the debtor
himself. See In re Craighead,
377 B.R. 648, 651 (Bankr. N.D. Cal. 2007). In
Sinischo, the debtor made numerous omissions and filed “several Plans in bad faith.”
In that case, the court only imposed a 180-day bar to refiling. What is more, here,
Kulick paid the Judgment from the First State Court Action in full in December 2019.
Whether the Debtor Only Intended to Defeat State Court Litigation
Leisure Village alleges that Kulick filing the third case shortly after they obtained
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United States Bankruptcy Court
Central District of California
Northern Division
Ronald A Clifford III, Presiding
Courtroom 201 Calendar
Thursday, May 26, 2022 Hearing Room 201
11:00 AM
CONT... Robert Jacob Kulick Chapter 13
their judgement in the Second State Court Action was a clear attempt to frustrate their
collection efforts. In the Opposition to the Motion (the “Opposition’) Kulick contends
that he filed this case in good faith and to retain his home. Docket No.79, p.1, line 26.
According to the Opposition, Kulick intended to completely avoid a senior judgment
lien and partially avoid the Leisure Village’s lien, pursuant to § 522(f) and the
remaining amount that could not be avoided would be paid in full through the
[Debtor’s] plan. He further stated that he intended to devote largely exempt funds into
the plan to pay creditors. Id. at p.2, lines 1-5.
On February 1, 2021, Kulick filed a Chapter 13 plan which proposed to pay Leisure
Village approximately $115,000 of its $504,965.00 claim in Class 3B. Docket No.15,
p.6-7. Kulick also included his intent to file a separate motion to avoid creditor,
Leisure Village’s judgment lien pursuant to under
11 U.S.C. section 522(f) in section
4 of the plan.
Id. at p.12. On May 5, 2021, Kulick filed an amended plan which
proposed to increase the payment of Leisure Village’s claim to $125,000.00. Docket
No. 28, p. 6-7.
Utilizing
11 U.S.C. § 522(f) to avoid any portion of Leisure Village’s Judgment that
affected Kulick’s homestead exemption was certainly an aim of Kulick’s filing of this
Third Case, and he assuredly planned on using Chapter 13 to seek a discharge of
certain of his debts, including, perhaps, a portion of the Leisure Village Judgment.
The Judgement was just that, however, a judgment. The only issue to defeat was
collection efforts on the Judgment, which prompts many debtors to file bankruptcy.
Kulick was not only seeking to reduce the amount of the Judgment he would need to
pay, but also to reorganize his affairs.
Whether Egregious Behavior is Present
Leisure Village claims that Kulick unscrupulously hindered and delayed his Rule
2004 examination by cancelling it [twice] at the last moment due to alleged
unspecified health issues and that he purposefully used his alleged health issues as a
means to circumvent being subjected to the standard oath of affirmation to tell the
truth under the penalty of perjury. See Tchakarov Decl. ¶ 12-13. Additionally,
Leisure Village alleges that Kulick’s refusal to be sworn under oath is [yet another]
indication that he has no intention of making full disclosures with regard to his
financial affairs.
Id. at ¶¶ 12, 20.
5/26/2022 9:21:06 AM Page 11 of 47
United States Bankruptcy Court
Central District of California
Northern Division
Ronald A Clifford III, Presiding
Courtroom 201 Calendar
Thursday, May 26, 2022 Hearing Room 201
11:00 AM
CONT... Robert Jacob Kulick Chapter 13
On November 12, 2021, the court entered an order approving the stipulation in which
Kulick agreed to appear for a Rule 2004 Examination by Leisure Village. See Docket
Nos. 44-45. According to the stipulation, the parties agreed to initially conduct the
examination on September 15, 2021, however on the evening of September 14, 2021,
Kulick advised Leisure Village that he was unable to appear due to medical issue. See
Docket No. 44, p. 2, lines 20-13. The examination was rescheduled to October 27,
2021.
Id. On October 13, 2021, Kulick notified counsel for Leisure Village via fax
that he was canceling the scheduled examination due to a medical issue. Ex. E- fax
correspondence from Debtor. However, on October 13, 2021, Kulick also file a
Petition for a Writ of Certiorari with the Supreme Court of the United States. Ex. F-
A. Thereafter the parties stipulated that the Rule 2004 examination will be conducted
remotely on November 19, 2021. Docket No. 46. The November 19 examination was
not completed, and the parties agreed to reschedule the examination for January 18,
2022. Docket No. 77, p.26, lines 8-10. On February 7, 2022, the 2004 examination
was conducted however, the examination could not be completed in the allotted time
and the parties agreed to coordinate an agreeable to date to reconvene. Ex. K
Deposition Transcript. On February 15, 2022, Leisure Village filed a Notice of Intent
to Seek Conversion to Chapter 7. Docket No. 62. On the same date, Kulick filed a
Motion to Dismiss, and the order dismissing the case was entered on February 16,
2022. See Docket No. 64.
Kulick asserts that his medical issues severely impacted his ability to attend the 2004
Examination and that any apparent obfuscation in his answers was not in bad faith but
rather due to these medical conditions and the side effects of the medications. See
Docket No. 79, p.3, lines 1-6. However, he does not address the filing of the
Supreme Court Writ on the same date that he claimed to be unable to appear at the
examination due to illness.
The Court notes that Kulick’s health impairments due to his age and his medical
conditions have made completing the 2004 examination difficult for Leisure Village
but the Court also notes that Kulick has provided some proof to support his health
conditions. That is not to say that Kulick has completely clean hands, but Leisure
Village has not proven that Kulick’s actions in this case warrant a two-year bar to
filing.
5/26/2022 9:21:06 AM Page 12 of 47
United States Bankruptcy Court
Central District of California
Northern Division
Ronald A Clifford III, Presiding
Courtroom 201 Calendar
Thursday, May 26, 2022 Hearing Room 201
11:00 AM
CONT... Robert Jacob Kulick Chapter 13
Conclusion
In weighing the Leavitt factors, and analyzing the totality of the circumstances, the
Court does not believe that a two-year bar to re-filing is appropriate in this case.
However, the Court does find that some bar to re-filing is appropriate, and will enter
an order barring a further bankruptcy filing by Kulick from the date that this Third
Case was dismissed, through 180 days from the date the order approving the Motion
is entered.
The Movant is to file a conforming order within 7 days.
Party Information
Debtor(s):
Robert Jacob Kulick Represented By
Reed H Olmstead
Movant(s):
Leisure Village Association, Inc. Represented By
Howard Camhi
Trustee(s):
Elizabeth (ND) F Rojas (TR) Pro Se
5/26/2022 9:21:06 AM Page 13 of 47
