Gajiu v. Ehrenberg (In re Goldshtadt)
| Decision Date | 04 September 2019 |
| Docket Number | Adv. No. 2:16-ap-01569-SK,BAP No. CC-18-1333-LSTa |
| Parties | In re: ALEKSANDR GOLDSHTADT, Debtor. EVGHENIA GAJIU, Appellant, v. HOWARD M. EHRENBERG, Chapter 7 Trustee, Appellee. |
| Court | U.S. Bankruptcy Appellate Panel, Ninth Circuit |
NOT FOR PUBLICATION
MEMORANDUM*Submitted Without Oral Argument August 12, 2019
Appeal from the United States Bankruptcy Court for the Central District of California
Appearances: Leslie A. Cohen and J'aime K. Williams of Leslie Cohen Law PC on brief for Appellant; Daniel A. Lev and Asa S. Hami of SulmeyerKuptez, A Professional Corporation on brief for Appellee.
Before: LAFFERTY, SPRAKER, and TAYLOR, Bankruptcy Judges.
Evghenia Gajiu appeals the bankruptcy court's grant of summary judgment in favor of the chapter 71 trustee, Howard Ehrenberg. The judgment determined that real property owned by Ms. Gajiu and the Debtor, her husband, is community property and thus property of the estate. The bankruptcy court found that (1) the properties were presumed to be community property despite the fact that they were held by the couple as joint tenants, and (2) Ms. Gajiu did not produce evidence sufficient to raise a genuine issue of material fact regarding the character of the ownership of the properties.
We AFFIRM.
During their marriage, Debtor and Ms. Gajiu purchased two parcels of real property in Los Angeles, California (the "Properties"). They took title to the Properties as "husband and wife as joint tenants." Specifically, the couple purchased property on Alla Road (the "Alla Property") in June 2008 and another property on Cardwell Place (the "Cardwell Property") in November 2013.
In September 2008, after purchasing the Alla Property but before purchasing the Cardwell Property, the couple entered into a post-nuptial agreement (the "Moldova Agreement"),2 which provided, in relevant part, that each spouse's interest in any subsequently purchased real property would be determined by the amounts their respective relatives contributed toward the purchase.
In February 2015, Debtor filed for chapter 11 relief, listing the Properties on his schedules as jointly held with Ms. Gajiu.3 About a year later, the bankruptcy court appointed Appellee Howard Ehrenberg as chapter 11 trustee ("Trustee"). Thereafter, on Trustee's motion, thebankruptcy court converted the case to chapter 7,4 with Mr. Ehrenberg continuing in his capacity as trustee.
In December 2016, Trustee filed an adversary proceeding against Ms. Gajiu. In the First and Second Claims for Relief, Trustee sought authorization to sell both the estate's interests and Ms. Gajiu's interests in the Properties. Trustee's Third Claim for Relief sought a declaration of the parties' respective ownership interests in the Properties. In August 2017, pursuant to the parties' stipulation, the court entered judgment on the First and Second Claims for Relief, authorizing Trustee to sell the Properties. The Properties were both sold, resulting in net proceeds to the estate of approximately $1.8 million.
Trustee thereafter moved for summary judgment on the Third Claim for Relief, seeking a declaration that Ms. Gajiu's interest in the Properties was community property and property of the estate. Trustee argued that under California law, the fact that the couple took title as joint tenants was not sufficient to overcome the presumption that property acquired by a couple during marriage is community property, citing Brace v. Speier (In re Brace), 566 B.R. 13 (9th Cir. BAP 2017).
Ms. Gajiu filed an opposition, arguing that under the MoldovaAgreement and California law, her interest in the Properties was separate property because some of the funds for their purchases had been contributed by Ms. Gajiu's relatives. Specifically, she testified in her declaration that her uncle, Leonid Kossinov, had gifted her $444,940 of the down payment for the Cardwell Property, and her mother, Tatiana Shakgeldyan, had gifted her $287,000 of the down payment for the Alla Property. She argued that, at a minimum, there was a genuine issue of material fact regarding her ownership interests that precluded summary judgment.
The bankruptcy court issued a tentative ruling granting Trustee's motion. After hearing argument, it adopted that ruling as final. The court concluded that (1) under California law, Ms. Gajiu's interest in the Properties was presumptively community property; and (2) Ms. Gajiu had not rebutted that presumption. Specifically, the bankruptcy court found that the Moldova Agreement by its terms did not apply to the Alla Property because that property was purchased before the Moldova Agreement was executed, and the agreement stated that it applied only to any subsequently purchased properties. Additionally, the court found that the Moldova Agreement was not binding on Trustee because it was not recorded. The bankruptcy court also found that Ms. Gajiu's documentary evidence of "gifts" from her relatives, purportedly to purchase the Properties, was insufficient to corroborate her declaration testimony to thateffect.
Thereafter, the bankruptcy court entered judgment for Trustee, declaring that the entirety of the Properties was community property as of the petition date and thus was property of the estate; as a result, all of the sale proceeds were property of the estate.
Ms. Gajiu timely appealed.
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.
Did the bankruptcy court err in granting summary judgment declaring that the Properties co-owned by Debtor and his non-debtor spouse were community property and thus property of Debtor's bankruptcy estate?
We review de novo the bankruptcy court's grant of summary judgment. Plyam v. Precision Dev., LLC (In re Plyam), 530 B.R. 456, 461 (9th Cir. BAP 2015). "When we conduct a de novo review, we look at the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered, giving no deference to the bankruptcy court's determinations." Barnes v. Belice (In re Belice), 461 B.R. 564, 572-73 (9th Cir. BAP 2011) (citations omitted). We must apply the same legalstandards that all federal courts are required to apply in considering the propriety of summary judgment. Marciano v. Fahs (In re Marciano), 459 B.R. 27, 35 (9th Cir. BAP 2011), aff'd, 708 F.3d 1123 (9th Cir. 2013).
Summary judgment is appropriate "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Wank v. Gordon (In re Wank), 505 B.R. 878, 886 (9th Cir. BAP 2014) (). An issue is genuine if there is enough evidence for a reasonable trier of fact to make a finding in favor of the non-moving party, and an issue is material if it might legally affect the outcome of the case. Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)).
When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case. Once the moving party comes forward with sufficient evidence, the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense. A motion for summary judgment may not be defeated, however, by evidence that is merely colorable or is not significantly probative.
C.A.R. Transp. Brokerage Co. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations and internal quotations omitted).
In considering summary judgment, the court is not permitted to weigh the evidence. In re Wank, 505 B.R. at 886. Nor may a court make credibility determinations or make inferences on summary judgment, if it is possible to reasonably infer otherwise. See Anderson, 477 U.S. at 255. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id.
Under California law, the community property presumption embodied in California Family Code § 7605 generally trumps the record title presumption found in California Evidence Code § 662.6 In re Brace, 566 B.R. at 19-20; Valli v. Valli (In re Marriage of Valli), 58 Cal. 4th 1396, 1400 (2014). This rule applies not only in marital dissolution proceedings, but also in other contexts, including bankruptcy. In re Brace, 566 B.R. at 20; see also In re Obedian, 546 B.R. 409, 422 (Bankr. C.D. Cal. 2016).
The presumption does not apply to property acquired duringmarriage if the property is: (1) traceable to a separate property source; (2) acquired by gift or bequest; or (3) earned or accumulated while the spouses are living separate and apart. Valli, 58 Cal. 4th at 1400. Further, In re Brace, 566 B.R. at 18 (quoting California Family Code § 852(a)).
In her opening brief, Ms. Gajiu does not seem to dispute the holdings of the above-cited cases, but she asserts that those holdings have not been adopted as controlling law in either California or the Ninth...
To continue reading
Request your trial