In re Miller
| Decision Date | 16 November 2020 |
| Docket Number | Case No. 20-20175-E-11 |
| Parties | In re HERBERT EDWARD MILLER, Debtor. |
| Court | U.S. Bankruptcy Court — Eastern District of California |
In re HERBERT EDWARD MILLER, Debtor.
Case No. 20-20175-E-11
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF CALIFORNIA
November 16, 2020
NOT FOR PUBLICATION
Docket Control No. UST-1
This Memorandum Decision is not appropriate for publication.
It may be cited for persuasive value on the matters addressed.
MEMORANDUM OPINION AND DECISION GRANTING MOTION TO DISMISS CHAPTER 11 CASE
Herbert Miller, the Debtor and serving as the Debtor in Possession ("Debtor Herbert Miller"), commenced this voluntary Chapter 11 case on January 13, 2020 ("2020 Case"), and has served as the debtor in possession since the commencement of this bankruptcy case. This is not the Debtor Herbert Miller's first or second recent bankruptcy case, he having filed and had dismissed three prior cases since March 6, 2013. Debtor Herbert Miller has a fourth prior case, a Chapter 7 case that he filed September 4, 2009 ("2009 Case"), in which he was granted a discharge. That case was reopened in 2015 for the Chapter 7 Trustee to administer an undisclosed pre-petition judgment and judgment lien of the Debtor Herbert Miller that was property of the Chapter 7 bankruptcy estate. The court discusses Debtor Herbert Miller's personal cases below.
On July 28, 2020, the United States Trustee, Tracy Hope Davis ("U.S. Trustee"), filed this Motion seeking dismissal of the Chapter 11 case pursuant to 11 U.S.C. § 1112(b)(1) and the imposition of a one-year bar against filing a new case pursuant to 11 U.S.C. § 349(a). Motion,
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Dckt. 108.1 The court summarizes the Motion to Dismiss as follows.
The U.S. Trustee asserts that the Debtor Herbert Miller has used multiple bankruptcy filings in an effort to stave off foreclosures on properties by creditors. The U.S. Trustee goes all the way back to 2009 and identifies twelve different bankruptcy cases that either Debtor Herbert Miller filed (or was identified on the pleadings as filing) or that were filed for an entity related to Debtor Herbert Miller. Of the twelve, ten of those cases were dismissed with no bankruptcy plan having been confirmed. The properties that are the subject of this 2020 Case are not indicated in the related entity cases, but are included in Debtor Herbert Miller's three prior personal bankruptcy cases.
The court now reviews the twelve bankruptcy cases identified by the U.S. Trustee and reviews what appears from the dockets in those cases. First, the court summarizes the bankruptcy cases filed by Debtor Herbert Miller himself.
Debtor Herbert Miller
Prior Cases
A. Herbert Miller - Chapter 7 Case 09-39991, E.D. Cal. Bankruptcy (2009 Case)
1. Case Filed.................September 17, 2009
a. Debtor Herbert Miller represented by Gregory Flahive, Esq.
2. Discharge Entered...........................March 10, 2010
3. Schedule A; 09-39991, Dckt. 30; lists the following real property owned by Debtor as of the commencement of the 2009 bankruptcy case:
a. 305 Hilton Drive, Applegate, CA (listed as an asset in the 2020 Case now before the court)
b. 19696 Shasta Street Lakehead, CA
c. 11356 Alta Mesa E. Road, Wilton, CA (listed as an asset in the 2020 Case now before the court)
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Debtor's Chapter 7 case would appear to have been an uneventful proceeding, but for a pre-petition judgment that was secured by a pre-petition judgment lien (recorded in the amount of $43,479.00) that Debtor Herbert Miller had obtained but failed to disclose on his Chapter 7 bankruptcy schedules.
The Chapter 7 Trustee reopened Debtor's 2009 Chapter 7 case in 2015 to administer the undisclosed asset.2
B. Herbert Miller - Chapter 11 Case 13-23040, E.D. Cal. Bankruptcy ("2013 Case")
1. Case Filed.....................March 6, 2013
a. Debtor in the 2013 Case represented by Gilbert E. Maines, Esq.
2. Case Dismissed.....................................December 2, 2015
a. The case was dismissed based on a Motion filed by JPMorgan Chase Bank, N.A. and CitiMortgage, Inc. 13-23040; Motion, Dckt. 135. The court's Order dismissing the case imposed the 11 U.S.C. § 109(g) 180 day bar on filing another case. Id.; Order, Dckt. 148.
3. Amended Schedule A; Id., Dckt. 26; lists the following real property owned by Debtor as of the commencement of the 2013 case:
a. 305 Hilton Drive, Applegate, CA (listed as an asset in the 2020 Case now before the court)
b. 11356 Alta Mesa E. Road, Wilton, CA (listed as an asset in the 2020 Case now before the court)
4. Schedule I filed by Debtor states that his income as of the March 19, 2019 filing of the Chapter 11 case consisted of:
a. $3,000.00 a month net income from property and $3,500.00 wages as the manager of Sharif Jewelers. Id.; Dckt. 1 at 24.
5. The Statement of Financial Affairs filed by Debtor states:
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a. $8,000.00 gross income in 2013,
b. $24,000.00 income in 2012, and
c. $32,500.00 in 2011. Id. at 28.
6. Debtor filed a Motion to Vacate the dismissal of the 2013 Case. The court denied the requested relief, making detailed findings. Id.; Civil Minutes, Dckt. 169.
C. Herbert Miller - Chapter 13 Case 18-26373, E.D. Cal. Bankruptcy ("2018 Case")
1. Case Filed........................October 9, 2018
a. Debtor in the 2018 Case filed the Chapter 13 case in pro se.
2. Case Dismissed....................................November 7, 2018
a. Case was dismissed due to Debtor failing to timely file the required documents of a debtor on the commencement of a bankruptcy case (the time having been extended by the court). 18-26373; Order Dismissing, Dckt. 23.
3. Schedule A; Id., Dckt. 13; lists the following real property owned by Debtor as of the commencement of the 2013 case:
a. 11155 Shadow Ct, Auburn, CA (listed as an asset in the 2020 Case now before the court)
b. 18414 North East 391st Street, Amboy, WA
4. Amended Schedule I filed by Debtor states that his income as of the March 19, 2019 filing of the Chapter 11 case consisted of:
a. $1,500.00 a month net income from operation of his business and property. Id.; Dckt. 56 at 30-31.
5. The Amended Statement of Financial Affairs filed by Debtor states:
a. $4,500.00 income in 2018,
b. $17,500.00 income in 2017, and
c. $17,500.00 in 2016. Id., Dckt. 58 at 2.
6. Motion to Vacate Dismissal and Motion to Convert Case
a. On January 9, 2020, Judson Henry, Esq. (Debtor's attorney in the 2020 Case) appeared in the 2018 Case for Debtor, filing a Motion to Vacate the Dismissal. Id; Motion, Dckt. 30.
(1) The court denied the Motion to Vacate the Dismissal. Id.; Civil Minutes, Dckt. 59.
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b. On February 28, 2020, Judson Henry, Esq. filed a Motion to Convert the case from one under Chapter 13 to Chapter 11. Id.; Motion, Dckt. 47. Debtor sought the conversion rather than commencing a new case, having subsequently (presumably with the assistance of counsel) recognized that Debtor Herbert Miller's debts exceeded the limits imposed by 11 U.S.C. § 109(e).
(1) The court denied the Motion to Convert the case, making detailed findings in the Civil Minutes. Id., Dckt. 60.
D. Herbert Miller - Chapter 11 Case 19-23392, E.D. Cal Bankruptcy ("2019 Case")
1. Filed...................May 29, 2019
a. Debtor in the 2019 Case represented by Allen Hassan, Esq.
2. Dismissed.................................July 15, 2019
a. The case was dismissed pursuant to an Order to Show Cause due to Debtor's failure to pay the $1,717.00 filing fee. 19-23392; OSC, Order, Dckts. 20, 35.
3. Amended Schedule A; Id., Dckt. 26; lists the following real property owned by Debtor as of the commencement of the 2019 case:
a. 3252 Rayall Court, Loomis, CA
b. 18414 NE 391st Street, Amboy, WA
4. Schedule I filed by Debtor states that his income as of the May 29, 2019 filing of the Chapter 11 case consisted of:
a. $1,500.00 a month net income from operation of his business and property. Id.; Dckt. 21.
5. The Statement of Financial Affairs filed by Debtor states:
a. There was no income for Debtor in the first five months of 2019 (the fields left blank),
b. $4,500.00 income in 2018, and
c. $17,500.00 income in 2017. Id.; Dckt. 21 at 39.
The U.S. Trustee then directs the court to eight other bankruptcy cases which are stated to be related to Debtor Herbert Miller. At oral argument, Counsel for Debtor Herbert Miller asserted that for some of these, they were filed by others in the business and not something that Debtor Herbert Miller was aware of.
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Cases Asserted to Being
Related to Debtor Herbert Miller
E. Moreno Real Estate, LLC, Chapter 11 Case No. 19-27515, E.D. Cal. Bankruptcy
1. Filed..............................December 5, 2019
a. Filed "In Pro Se"
b. Petition signed by Keith Wenger, as "Agent for Service of Process."
2. Dismissed..............................December 31, 2019
a. Dismissed for failure to file documents. 19-27515; Order, Dckt. 26.
3. Debtor states having an 80% ownership interest of Moreno Estates, LLC on Amended Schedule A/B in the current bankruptcy case. Dckt. 79 at 20. No interest in this entity was disclosed on the original Schedules filed by Debtor in this case (Dckt. 22) or in his prior cases.
4. The address for Acres Imperial, LLC is stated to be 203 Gunston Court, El Dorado Hills, California.
The Gunston Court address is not included in any of Debtor Herbert Miller bankruptcy cases. However, in the Amended Schedule A/B and the Amended Statement of Financial Affairs in the 2019 Case, Debtor Herbert Miller disclosed an 80% ownership of an entity named 203 Gunston, LLC. 19-23392; Amended Schedule A/B, Dckt. 21 at 7.
F. Acres Imperial, LLC, Chapter 11 Case No. 19-27917, E.D. Cal. Bankruptcy
1. Filed..............................December 12, 2019
a. Filed "In Pro Se"
(1) The Petition is signed by Herb E. Reichle, as "Authorized Agent for Acres Imperial."
2. Dismissed....................................January 14, 2020
a. Dismissed for failure to file documents. 19-27917; Order, Dckt. 19.
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3. The address for Acres Imperial, LLC is stated to be 203 Gunston Court, El Dorado Hills, California.
4. Debtor states having an 80% ownership
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