In re: Mardiros Mihranian

FILED
DEC 04 2017
1 NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
2 U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
4
5 In re: ) BAP No. CC-17-1048-KuSA
)
6 MARDIROS MIHRANIAN, ) Bk. No. 2:13-bk-39026-BR
)
7 Debtor. )
______________________________)
8 )
SAM S. LESLIE, Chapter 7 )
9 Trustee, )
)
10 Appellant, )
)
11 v. ) M E M O R A N D U M*
)
12 HAIG LEO MIHRANIAN; MICHAEL )
MIHRANIAN; SUSAN CHOBANIAN; )
13 TAKOUHIE BARTAMIAN; MEDICAL )
CLINIC AND SURGICAL )
14 SPECIALTIES OF GLENDALE, INC.,)
)
15 Appellees. )
______________________________)
16
Argued and Submitted on November 30, 2017
17 at Pasadena, California
18 Filed - December 4, 2017
19 Appeal from the United States Bankruptcy Court
for the Central District of California
20
Honorable Barry Russell, Bankruptcy Judge, Presiding
21 _____________________________________
22 Appearances: Robert Michael Aronson argued for appellant Sam
Leslie, Chapter 7 Trustee; David B. Golubchik of
23 Levene, Neale, Bender, Yoo & Brill L.L.P. argued
for appellees Haig Leo Mihranian, Michael
24 Mihranian, Susan Chobanian, Takouhie Bartamian,
and Medical Clinic and Surgical Specialties of
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8013-1.
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1 Glendale, Inc.
______________________________________
2
Before: KURTZ, SPRAKER, and ALSTON,** Bankruptcy Judges.
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Chapter 71 trustee, Sam S. Leslie (Trustee), filed a motion
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to substantively consolidate the estate of the debtor, Mardiros
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Mihranian (Debtor), with the estates of non-debtor parties which
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included: Debtor’s (1) sons, Haig Mihranian (Haig) and Michael
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Mihranian (Michael); (2) ex-wife, Susan Chobanian (Susan);
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(3) office manager, Takouhie Bartamian (Takouhie); and
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(4) Debtor’s solely owned corporation, Medical Clinic and
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Surgical Specialities of Glendale, Inc. (MCSSG) (collectively,
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the Non-Debtor Parties).
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Trustee alleged that the financial affairs of Debtor,
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Susan, and MCSSG were so commingled such that it would be
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impossible to disentangle them without considerable expense and
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effort. Trustee further asserted that Debtor, individually, or
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through Susan or MCSSG, had made numerous transfers to Takouhie
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and Debtor’s sons, which were potentially subject to fraudulent
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conveyance claims.
19
The bankruptcy court denied Trustee’s motion, finding that
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the entanglement alleged by Trustee was not that complex and
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could be resolved by forensic accounting. The court further
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found that there was no evidence showing who the creditors of
23
the Non-Debtor Parties were and what the effect of consolidation
24
25 **
Hon. Christopher M. Alston, United States Bankruptcy
26 Judge for the Western District of Washington, sitting by
designation.
27
1
Unless otherwise indicated, all chapter and section
28 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
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1 would be on those creditors.
2 We may affirm on any ground supported by the record and we
3 do so here because there is no evidence in the record showing
4 that the creditors of the Non-Debtor Parties were served with
5 notice of Trustee’s motion thereby depriving them of an
6 opportunity to be heard. In addition, Trustee did not identify
7 those creditors or provide any evidence showing the nature of
8 their debt. It is thus impossible to tell whether substantive
9 consolidation would be equitable or fair to the absent and
10 unidentified creditors of the Non-Debtor Parties. Accordingly,
11 we AFFIRM.
12 I. FACTS
13 Debtor, a medical doctor, filed a chapter 7 petition in
14 December 2013.2 His schedules showed that he owned no real
15 property and had no secured debt. Debtor’s amended Schedule F
16 showed his unsecured debt consisted of two large judgments
17 against him and several malpractice lawsuits. Debtor listed his
18 100% ownership in MCSSG with a value of $100 which Debtor
19 claimed as exempt.
20 A. The Judgment Creditor
21 Creditor Paykar Construction, Inc. (Paykar) obtained a
22 judgment against Debtor and Susan for over $259,000 in 2000.
23 Paykar assigned the right to collect the judgment to S. Kohn dba
24
25 2
Debtor and MCSSG are no strangers to bankruptcy. In 1993,
26 MCSSG filed a chapter 11 petition. At the same time, Debtor and
Susan filed a chapter 11 petition. In 1998, MCSSG filed a
27 chapter 11 petition. In early 2014, MCSSG again filed a
chapter 11 petition. All these cases were dismissed without plan
28 confirmation.
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1 SK Judgment Enforcement (Kohn).
2 In July 2010, Kohn filed an action to renew the judgment
3 and moved for summary judgment. The state court granted the
4 unopposed motion for summary judgment finding that: (1) MCSSG
5 owed $587,588 in damages, $636,561 in interest and costs
6 according to the cost memorandum; (2) Susan owed $288,865 in
7 damages and $288,653 in interest and costs according to the cost
8 memorandum; and (3) Debtor owed $291,865 in damages and $315,694
9 in interest and costs according to the cost memorandum. Kohn’s
10 attorney submitted a judgment, but it was never signed or
11 entered by the state court.
12 Although there was no entry of the judgment, Kohn pursued
13 collection and sought the appointment of a receiver. During
14 those proceedings, Kohn learned that the judgment was not
15 properly entered. Kohn then filed a motion in the state court
16 seeking nunc pro tunc entry of the judgment. The hearing on the
17 motion was stayed due to Debtor’s bankruptcy filing.
18 In late December 2013, Kohn filed a motion for relief from
19 stay to pursue the pending state court matter, which was granted
20 by the bankruptcy court. Subsequently, the state court granted
21 Kohn’s motion for entry of judgment, but decided to enter the
22 judgment as January 23, 2013, and not nunc pro tunc. In October
23 2014, the state court entered a correct form of judgment in
24 favor of Kohn in the following amounts: (1) Debtor was jointly
25 and severally liable for the amount of $80,362.55, and
26 separately liable for the amount of $50,904.42, for a total
27 judgment of $131,256.97; (2) MCSSG was jointly and severally
28 liable for the amount of $80,362.66, and separately liable for
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1 the amount of $770,159.48, for a total judgment of $850,522.03;
2 and (3) Susan was jointly and severally liable for the amount of
3 $80,362.55. Susan paid the joint and several debt, but Debtor
4 still owed his separate liability in the amount of $50,894.00.
5 Kohn also filed an adversary proceeding against Debtor
6 seeking nondischargeability of the judgment debt under
7 § 523(a)(2) and (6). [Adv. No. 2:14-ap-01171]. The bankruptcy
8 court found the judgment debt in the amount of $50,894.00
9 nondischargeable and entered judgment in favor of Kohn.
10 B. The Preference/Fraudulent Transfer Adversary Proceedings
11 In December 2015, Trustee commenced adversary proceedings
12 against Takouhie, Susan, Haig, and Michael, to collect corporate
13 transfers made by MCSSG under §§ 547 and 548. The bankruptcy
14 court dismissed these adversary proceedings with prejudice while
15 Trustee’s substantive consolidation motion was pending. On
16 appeal, the Panel affirmed the bankruptcy court’s rulings. See
17 Leslie v. Mihranian (In re Mihranian), Adv. No. 2:15-ap-01668-
18 BR, 2017 WL 2775044 (9th Cir. BAP June 26, 2017); Leslie v.
19 Mihranian (In re Mihranian), Adv. No. 2:15-ap-01667-BR, 2017 WL
20 2775036 (9th Cir. BAP June 26, 2107); Leslie v. Mihranian
21 (In re Mihranian), Adv. No. 2:15-ap-01665-BR, 2017 WL 27704322 (9th Cir. BAP June 26, 2107); Leslie v. Mihranian
23 (In re Mihranian), Adv. No. 2:15-ap-01666-BR, 2017 WL 277424524 (9th Cir. BAP June 26, 2107).
25 C. The Motion For Substantive Consolidation
26 In June 2016, Trustee filed his motion to substantively
27 consolidate Debtor’s estate with the estates of the Non-Debtor
28 Parties. The primary basis for Trustee’s motion was Debtor’s
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1 alleged twenty-year scheme to defraud his judgment creditors.
2 According to Trustee, Debtor and Susan devised a scheme to
3 remove their assets from the reach of their judgment creditors
4 by: (1) transferring title to their residence to Takouhie for
5 minimal consideration; (2) siphoning off millions of dollars
6 from medical billings owed to Debtor, MCSSG, and Susan and
7 transferring those monies to Takouhie, their disabled son
8 Michael, and their other son Haig; (3) maintaining a phony
9 divorce to keep assets away from creditors; and (4) depositing
10 funds into Susan’s deceased mother’s account to maintain the
11 illusion that the funds were her separate property and could not
12 be deemed community property. Trustee’s expert estimated that
13 between $4.5 and $5 million dollars in cash were diverted away
14 from Debtor and MCSSG along with Debtor’s residence.
15 Trustee argued that his request for substantive
16 consolidation met the entanglement requirement set forth in
17 Alexander v. Compton (In re Bonham), 229 F.3d 750 (9th Cir.
18 2000). Due to the millions of dollars flowing in and out of
19 MCSSG into the bank accounts of Haig, Mary (Susan’s mother) and
20 Takouhie, coupled with the lack of a complete set of books and
21 records, Trustee asserted that he could not accurately trace and
22 unscramble the commingling that had occurred. Trustee further
23 argued that any effort at unscrambling would be so substantial
24 and burdensome as to threaten the realization of any net assets
25 for Debtor’s creditors and end up being needlessly expensive and
26 possibly futile. In support of his motion, Trustee submitted
27 numerous declarations with hundreds of exhibits allegedly
28 showing the fraudulent scheme.
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1 In opposition, the Non-Debtor Parties argued that Trustee
2 had not made the required showing of impossible entanglement or
3 cost necessary to justify consolidation. According to the
4 Non-Debtor Parties, their financial information was not a
5 confusing entanglement of affairs and that any entanglement was
6 completely among themselves and not with Debtor.
7 They also asserted that consolidation would be inequitable
8 and unjust because Trustee analyzed the fairness to creditors
9 based only on the estate’s creditors and did not consider
10 fairness as to the Non-Debtor Parties’ creditors. They further
11 argued that there was no showing of benefit to all creditors and
12 noted that Trustee had not provided notice to their creditors.
13 Finally, the Non-Debtor Parties refuted Trustee’s allegations
14 regarding numerous transfers, alleging that many of them had
15 never occurred.
16 The bankruptcy court held an evidentiary hearing on
17 January 25, 2017. A number of evidentiary objections were
18 resolved and no witnesses were cross-examined. After argument,
19 the bankruptcy court denied Trustee’s motion and placed its
20 findings and conclusions on the record. The court found that
21 the entanglement alleged by Trustee was not that complex and
22 could be resolved by forensic accounting. The court further
23 found that Trustee failed to show that consolidation was not
24 prejudicial to the creditors of the Non-Debtor Parties — Trustee
25 did not know who the creditors were or the nature of their debt.
26 The bankruptcy court implicitly found that the equities weighed
27 in favor of the Non-Debtor Parties and their creditors.
28 The bankruptcy court entered the order denying Trustee’s
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1 motion on February 2, 2017. Trustee filed a timely notice of
2 appeal.3
3 II. JURISDICTION
4 The bankruptcy court had jurisdiction over this proceeding
5 under 28 U.S.C. §§ 1334 and 157(b)(2)(A) and (O). We have
6 jurisdiction under 28 U.S.C. § 158.
7 III. ISSUE
8 Whether the bankruptcy court erred by denying Trustee’s
9 motion to substantively consolidate Debtor’s estate with the
10 estates of the Non-Debtor Parties.
11 IV. STANDARDS OF REVIEW
12 Substantive consolidation presents a mixed question of law
13 and fact that we review de novo. In re Bonham, 229 F.3d at 763.
14 A mixed question exists when the relevant facts are established,
15 the legal standard is clear, and the issue is whether the facts
16 satisfy the legal standard. Wechsler v. Macke Int’l Trade, Inc.
17 (In re Macke Int’l Trade, Inc.), 370 B.R. 236, 245 (9th Cir. BAP
18 2007).
19 De novo review requires that we consider a matter anew, as
20 if no decision had been made previously. B–Real, LLC v.
21 Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP
22 2008).
23 We review findings of fact for clear error. A finding of
24 fact is clearly erroneous if illogical, implausible or “without
25 support in inferences that may be drawn from the facts in the
26
3
27 A motions panel found the order on appeal sufficiently
final for purposes of appeal. Alternatively, to the extent the
28 order was not final, the motions panel granted leave to appeal.
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1 record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th
2 Cir. 2009) (en banc).
3 We may affirm the bankruptcy court on any ground supported
4 by the record. Heers v. Parsons (In re Heers), 529 B.R. 734,
5 740 (9th Cir. BAP 2015).
6 V. DISCUSSION
7 A. Substantive Consolidation: Legal Standards
8 Substantive consolidation is an uncodified, equitable
9 doctrine allowing the bankruptcy court, for purposes of the
10 bankruptcy, to “combine the assets and liabilities of separate
11 and distinct—but related—legal entities into a single pool and
12 treat them as though they belong to a single entity.”
13 In re Bonham, 229 F.3d at 764. Although it is a case-by-case
14 inquiry, the Ninth Circuit has adopted a two factor test to
15 guide the determination of whether substantive consolidation is
16 appropriate: “(1) whether creditors dealt with the entities as
17 a single economic unit and did not rely on their separate
18 identity in extending credit; or (2) whether the affairs of the
19 debtor are so entangled that consolidation will benefit all
20 creditors.” Id. at 766 (quotation omitted) (adopting the test
21 set forth by the Second Circuit in Union Sav. Bank v.
22 Augie/Restivo Banking Co., Ltd. (In re Augie/Restivo Baking Co.,
23 Ltd.), 860 F.2d 515, 519 (2d Cir. 1988)). Either factor is
24 sufficient to support substantive consolidation. Id.25 However, “when the Bonham case is considered in its
26 complete context, it is clear that the Ninth Circuit did not
27 require bankruptcy courts to look only to the two [factors]...
28 set forth above, in some ‘Pavlovian’ way.” In re Bashas’ Inc.,
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1 437 B.R. 874, 929 (Bankr. D. Ariz. 2010) (citing In re Bonham,
2 229 F.3d at 767). “The basic rules, and the discretion to apply
3 them, stem solely and completely from a weighing of the
4 equities, and a decision which emanates from one guiding light:
5 “Is this reasonable under the circumstances?” Id. at 929.
6 B. Analysis
7 Trustee relied upon the second Bonham factor in support of
8 his motion for substantive consolidation, contending that
9 Debtor’s and the Non-Debtor Parties’s affairs were so entangled
10 that no net assets could be realized for all the creditors
11 without substantial time and expense. Substantive consolidation
12 is appropriate under this factor when “the affairs of the
13 debtors are so entangled that consolidation will benefit all
14 creditors.” In re Bonham, 229 F.3d at 765. The language
15 “benefit of all creditors” does not mean each and every
16 creditor. Rather, it means benefit to the creditor body as a
17 whole. Substantive consolidation is premised on a sole aim:
18 fairness to all creditors. In re Bonham, 229 F.3d at 766, 767
19 (emphasis added).
20 Here, fairness to all creditors was not shown. “‘Courts
21 have stated that, at a minimum, due to the nature of substantive
22 consolidation of debtor and non-debtor entities, notice must be
23 provided to all creditors, and such creditors must have an
24 opportunity to be heard.’” SE Prop. Holdings, LLC v. Stewart
25 (In re Stewart), 571 B.R. 460, 473 (Bankr. W.D. Okl. 2017)
26 (quoting Kapila v. S & G Fin. Servs., LLC (In re S & G Fin.
27 Servs. of S. Fla., Inc.), 451 B.R. 573, 585 (Bank. S.D. Fla.
28 2011) and collecting cases); see also In re Bonham, 229 F.3d at
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1 765 n.9 (“[A] bankruptcy court may order substantive
2 consolidation as a contested matter upon motion by the involved
3 parties, as was done in the instant appeal, or via an adversary
4 proceeding or other procedural device, as long as there is
5 notice and an opportunity to be heard.” Emphasis added);
6 Crawforth v. Wheeler (In re Wheeler), 444 B.R. 598, 609 (Bankr.
7 D. Idaho 2011) (“‘[R]esort to consolidation should not be
8 Pavlovian, but...should be used sparingly,’ with a heightened
9 degree of due process and due consideration for the harm or
10 economic prejudice that such a remedy would occasion.”) (citing
11 In re Bonham, 229 F.3d at 767). Trustee’s failure to serve the
12 creditors of the Non-Debtor Parties with notice of his motion
13 for substantive consolidation deprived them of an opportunity to
14 be heard. This alone precluded substantive consolidation.
15 Furthermore, although substantive consolidation would
16 clearly benefit Debtor’s judgment creditor Kohn, Trustee
17 provided no evidence that showed application of the doctrine was
18 fair to the creditors of the Non-Debtor Parties. Nor could he
19 when he did not know who those creditors were or the nature of
20 their debt. Indeed, the bankruptcy court observed that some
21 debt may simply be reoccurring debt. “Because substantive
22 consolidation is purely an equitable remedy, a court should not
23 employ it when it would benefit one set of creditors at the
24 expense of another unless the proponent can advance some
25 equitable reason for such a redistribution.” In re Archdiocese
26 of St. Paul and Minneapolis, 553 B.R. 693 (Bankr. D. Minn. 2016)
27 (citing In re Huntco Inc., 302 B.R. 35, 40 (Bankr. E.D. Mo.
28 2003)). Trustee has not advanced any equitable reason for a
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1 redistribution especially when he could not identify the
2 creditors of the Non-Debtor Parties or the nature of their debt.
3 In light of the above, substantive consolidation was
4 neither equitable nor reasonable under the circumstances.
5 Accordingly, the bankruptcy court properly denied Trustee’s
6 motion for substantive consolidation.
7 VI. CONCLUSION
8 For the reasons stated, we AFFIRM.
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