Goldman v. Dardashti (In re Tootian)
| Decision Date | 05 October 2021 |
| Docket Number | Case No.: 1:20-bk-10069-MT,Adv No: 1:20-ap-01068-MT |
| Parties | IN RE: Shawn Sharon Melamed Jenous TOOTIAN, Debtor(s). Amy L Goldman, Plaintiff(s), v. Shawn Dardashti, Defendant(s). |
| Court | United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Central District of California |
Scott E. Gizer, Early Sullivan Wright Gizer & McRae LLP, Los Angeles, CA, for Plaintiff.
Michael H. Weiss, Michael H. Weiss, Esq., P.C., West Hollywood, CA, for Defendant.
This is a motion for summary judgment in a complicated fraudulent transfer action brought by the Chapter 7 Trustee Amy Goldman (the "Trustee") in the case of Shawn Melamed and Jenous Tootian, bankruptcy case no. 1:20-bk-10069-MT. Sometime in 2004, Debtors Shawn Sharon Melamed and Jenous Tootian (collectively, "Debtors," individually as "Debtor Melamed" and "Debtor Tootian") purchased real property at 4360 Estrondo Pl., Encino CA 91436 (the "Property"). Complaint for Avoidance and Recovery of Fraudulent Transfers (the "Complaint"), ¶ 8. Trustee alleges that in the years following the purchase, Debtors incurred substantial debts and by 2012, the Property was encumbered by five liens. Id., 2:20-23. In October 2009, Steward Financial, holder of the first position deed of trust, gave notice of a trustee's sale. Trustee contends that Debtors formed a scheme to protect their equity in the Property from their creditors. Id., 2:21-3:1. Trustee alleges that it was then that Shawn Dardashti ("Defendant") made the first offer to purchase the Property for $1.5 million. This offer was allegedly communicated to Steward Financial by Debtor Melamed's agent with the request that the foreclosure be postponed. Id., 3:18-19. While the sale did not happen, the foreclosure was apparently canceled or postponed. Id. Trustee alleges that it became routine that, whenever the Property was threatened by foreclosure, Defendant would make a low offer on the Property to Debtor Melamed in order to postpone foreclosure. Id., 3:10-4:3. Defendant again made an offer on the Property in February 2012, for $1.1 million, which was accepted by Debtors (the "February 2012 Offer"). Id., 3:22-24. The February 2012 Offer named the listing agent as "Wealth Road Realty," which Trustee alleges is a d.b.a. of Rebeka Shadpour ("Shadpour"). Id., 4:1-3. The February 2012 Offer did not result in a completed sale. Id.
On or about March 2012, Farahnaz Khoshnood ("Khoshnood"), whom Trustee alleges is Debtor Shawn Sharon Melamed's aunt, purchased a deed of trust in favor of Trilfish LLC that secured the third-position lien. Id. at 2:24-16. Trustee alleges that Khoshnood was merely a "straw owner," in an arrangement where she was holding title for the benefit of Debtors. Id., 3:3-8.
After Khoshnood foreclosed on the Property in August 2012, the fourth and fifth position liens in favor of Mazakoda, Inc. and Elyas Babadjouni were "wiped out." Id., 2:27-28. Thereafter, in November 2012, Khoshnood and Debtor signed a listing agreement with Wealth Road Realty and Shadpour to list the Property at $1.15 million. Id., 4:4-6. Defendant offered $990,000 to Debtor Melamed, which was rejected by the lender as a short sale because the offer was too low. Id., 4:7-16.
On or about May 7, 2014, Select Portfolio Servicing, Inc. ("SPS") sent a letter to Debtor Melamed approving a short sale of the Property at $1.15 million, on certain conditions. Id., 4:28-5:1-19. (the "SPS Agreement"). Trustee alleges that, at the time Defendant and Debtor Melamed entered into these agreements, the Property was worth substantially more than the $1.15 million sale price proposed to SPS, and that Defendant and Debtor Melamed stood to sequester substantial amounts of equity in the Property from Debtors' creditors by short-selling the Property to Defendant. Id., 7:7-12. Trustee alleges that Defendant, would buy the Property in a short sale for much less than it was worth. In exchange, he would pay kickbacks to Debtors and their listing agent, give an option to Debtors (through a proxy) to repurchase the Property once the storm had passed, would sign a sham lease with the proxy to conceal Debtors' continued presence at the Property, and would generally go along with the scheme, while receiving rental income from Debtors. Id., 4:20-27. To effectuate the short sale, the following transactions, among others, were completed:
Trustee alleges that after the "sale" to Defendant was complete, a number of other transfers were made out of escrow as sham "Settlement Charges" to entities controlled by Debtors' and Khoshnood's families, and to entities controlled by Shadpour and her family. Id., 9:20-10:26. Trustee alleges that these sham "Settlement Charges" were a way for the parties to obtain money from the short sale over and above the monetary limits provided for in the SPS Agreement. Id.
On or about June 11, 2014, Trustee alleges that Defendant entered into an Option Agreement with Edwin Safaeipour, on behalf of Estrondo Place, LLC, whereby Defendant, in exchange for $50,000, granted Estrondo Place, LLC an option to repurchase the Property for $1.4 million. Id., Ex. 6. Trustee alleges that Edwin Safaeipour is the brother of Rozita Safaeipour, a.k.a. Rozita Melamed, who is married to Debtor Shawn Sharon Melamed's brother, Edmond Melamed. In other words, Safaeipour is Shawn Sharon Melamed's brother's brother-in-law ("Safaeipour"). Id., 7:22-25. Trustee alleges that Safaeipour was a full-time student and did not have the financial ability to pay either the $50,000 for the option or the contemplated $1.4 million for the Property. Id., 7:25-28. Trustee contends that this arrangement was a back-door method for Debtors to reacquire the Property should they so desire, using their family member, Safaeipour, as a straw buyer. Id., 7:28-8:2.
Also on June 11, 2014, Defendant and Estrondo Place, LLC (by Safaeipour) entered into a Lease Agreement whereby Estrondo Place, LLC would lease the Property for $10,825 per month. Id., Ex. 7. Trustee maintains that this was a sham, as Safaeipour was a full-time student, and never had any intention or ability to pay $10,825 per month to occupy the Property, and never did pay any rent to Defendant. Id., at 8:6-9. The Lease Agreement was to conceal Debtors' continued occupancy of the Property and payment of rent to Defendant. Id., 9-12. Trustee maintains that at all relevant times and to this day, Debtor Melamed pays rent directly Defendant. Id.
On May 25, 2018, creditor Mazakoda, Inc. filed a lawsuit against Debtors and Defendant, as well as Khoshnood and her spouse Roben Yomtobian, and Defendant's wife Sara Dardashti, for fraudulent transfer under Cal. Civ. Code §§ 3439.04 and 3439.05 and conspiracy, among other claims. Defendant demurred to the complaint, but Trustee contends that his demurrer was overruled in its entirety on October 18, 2018. The state court case remains pending, although stayed, in the Los Angeles County Superior Court, entitled Mazakoda, Inc. v. Shawn Sharon Melamed et al., Case No. BC707954. 41. As discovery progressed, Trustee alleges that the above facts and others came to light, and Defendant's and Debtors' depositions were set for the week of January 13, 2020.
On Friday, January 10, 2020, before their depositions could be taken, Debtors initiated this bankruptcy proceeding and filed a notice of bankruptcy stay as to all parties. On July 8, 2020, Trustee filed this Complaint, seeking to set aside as a fraudulent transfer the June 6, 2014 transfer of the Property from Debtor Melamed to Defendant under 11 U.S.C. § 544 and the Uniform Fraudulent Transfer Act, adopted by California as Civil Code § 3439 et seq . (the "UFTA").
Defendant has now filed a Motion for Summary Judgment which is opposed.
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FRCP 56(c) (incorporated by FRBP 7056 ).
Defendant, as the moving party, has the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir.1982). The nonmoving party must show more than "the mere existence of some alleged factual dispute ... the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th...
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