Khionidi v. Cummins-Cobb (In re Cummins-Cobb)
| Decision Date | 10 February 2020 |
| Docket Number | No. 2:17-bk-24993-RK,Adv. No. 2:18-ap-01066-RK,2:17-bk-24993-RK |
| Court | U.S. Bankruptcy Court — Central District of California |
| Parties | In re: MARY CUMMINS-COBB, Debtor. KONSTANTIN KHIONIDI, as Trustee of the COBBS TRUST, Plaintiff, v. MARY CUMMINS-COBB, Defendant. |
NOT FOR PUBLICATION
Time: 11:00 a.m.
Place: Courtroom1675
Roybal Federal Building
Los Angeles, California 90012 This adversary proceeding came on for hearing before the undersigned United States Bankruptcy Judge on December 17, 2019 on the Motion of Defendant Mary Cummins-Cobb, for Summary Judgment. Defendant Mary Cummins-Cobb appeared for herself at the hearing on December 17, 2019, and Philip H. Stillman, of Stillman & Associates, appeared for Plaintiff Kostantin Khionidi, as Trustee of the Cobbs Trust. Defendant filed and served her motion for summary judgment on October 8, 2019. Electronic Case Filing "ECF" 91. Defendant's motion requested summary judgment (1) on Plaintiff's Fourth Cause of Action in his adversary complaint to determine the nondischargeability of a judgment rendered in Texas state court against Defendant for Defamation on August 27, 2012, and the California Sister-State judgment entered on the Texas judgment by the Superior Court of California for the County of Los Angeles, (2) that Plaintiff lacks standing and (3) that the case should be dismissed for "unclean hands." Plaintiff who is the nonmoving party has asked that this court grant partial summary judgment on his Fourth Cause of Action as there is no longer any issue of fact regarding either the validity of the Cobbs Trust or the validity of the Assignment of Judgment to the Trust. This court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157(b) and 1334(b). This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (I), and (J). Venue is appropriate in this court. 28 U.S.C. § 1409(a).
Having considered the papers and pleadings relating to the motion and the arguments of the parties, the court adopts the following Statement of Uncontroverted Facts and Conclusions of Law regarding Defendant's Motion for Summary Judgment based on its independent review of the proposed Statement of Uncontroverted Facts and Conclusions of Law submitted by Plaintiff styled "Plaintiff's Findings of Facts and Conclusions of Law," lodged on December 27, 2019, and Defendant's reply and declaration in opposition thereto, filed on January 8, 2020. The court hereby denies Defendant's Motion for SummaryJudgment and pursuant to Federal Rule of Civil Procedure 56(f)(1), grants partial summary judgment in favor of Plaintiff on his Fourth Cause of Action in the Adversary Complaint, based on the court's prior May 24, 2019 Order granting Summary Adjudication of Facts Nos. 1-30 and the uncontroverted facts set forth below.
The court determines that the following material facts are not genuinely in dispute and that such facts are uncontroverted and are deemed established in this case.
The motion of Plaintiff Konstantin Khionidi ("Plaintiff"), as Trustee of the Cobbs Trust, for partial summary judgment on its fourth cause of action in its adversary complaint pursuant to 11 U.S.C. § 523(a)(6) ("Plaintiff's Motion"), filed on November 26, 2018 (ECF 35), came on for hearing before the undersigned United States Bankruptcy Judge on March 27, 2019.
On May 24, 2019, the court entered its Order Granting in Part and Denying in Part the Motion of Plaintiff Konstantin Khionidi for Partial Summary Judgment on the Fourth Cause of Action, Denying Partial Summary Judgment and Granting Summary Adjudication of Certain Facts (the "May 24, 2019 Order"). ECF 82. In the May 24, 2019 Order, the court summarily adjudicated Facts 1 through 30, finding that "these facts numbered 1 through 30 are uncontroverted and deemed established in this case." Id. at 7. However, in the May 24, 2019 Order, the court stated "that there are genuine issues of material fact for trial as to whether Plaintiff Konstantin Khionidi, as Trustee of the Cobbs Trust, created a valid trust and has standing to pursue a judgment in this adversary proceeding and whether the Assignment meets all of the requirements for a valid assignment of a judgment because there is outstanding discovery that Defendant needs in order to respond to the motion for partial summary judgment or summary adjudication of facts pursuant to Federal Rule of Bankruptcy Procedure and Federal Rule of Civil Procedure 56(d)." ECF 82 at 8.
On October 8, 2019, Defendant filed her "Motion for Summary Judgment" ("Defendant's Motion"). ECF 91. Because the court has already summarily adjudicated the facts necessary to determine nondischargeability of Plaintiff's judgment, the first part ofDefendant's Motion for Summary Judgment, seeking to determine that the judgment debt is dischargeable must be denied.
On April 10, 2017, Amanda Lollar ("Lollar") assigned the judgment to the Plaintiff in this adversary proceeding, Konstantin Khionidi, as Trustee of the Cobbs Trust, pursuant to California Code of Civil Procedure § 673. May 24, 2019 Order, ECF 82 at 7 (Fact 26).
"An assignee of a right represented by a judgment may become an assignee of record by filing with the clerk of the court which entered the judgment an acknowledgment of assignment of judgment." California Code of Civil Procedure § 673(a)
Reviewing the Acknowledgment of Assignment of Judgment and contrary to Defendant's unsubstantiated arguments, the Assignment meets all of the requirements for a valid assignment of a judgment required by California Code of Civil Procedure § 673(b). Revocable Living Trust Agreement for the Cobbs Trust ("Trust Agreement"), Exhibit 1 to Opposition to Defendant's Motion for Summary Judgment, Declaration of Philip H. Stillman in Support of Opposition to Motion for Summary Judgment ("Stillman Declaration"), ECF 99.
Defendant also claimed in her Motion that the "Cobbs Trust" was "invalid." However, Defendant has presented no evidence of facts to support her argument that the Cobbs Trust is not a valid revocable trust created pursuant to California Probate Code §§ 15200 et seq.
The Trust Agreement, which is attached to the Stillman Declaration as Exhibit 1, clearly references the Trustor's intent to create a trust, an intention on the part of the settlor to create a trust, the subject matter of the trust, the purpose of the trust, a beneficiary, and acceptance of the trust by the trustee.
The Trust Agreement evidences the intent to create a trust by the settlor or trustor, Plaintiff Konstantin Khionidi. Trust Agreement, Exhibit 1 to Stillman Declaration. The TrustAgreement states: "THIS REVOCABLE LIVING TRUST AGREEMENT, (hereinafter "Trust")is being made as of the 20th day of March 2017, by and between Konstantin Khionidi of Anapa, Krasnodarskii Krai, Russian Federation County, [sic] State of California, [sic] hereinafter referred to as the Trustor and the Trustee designated below." Trust Agreement, Exhibit 1 to Stillman Declaration. Those are clearly stated words of the Trustor or Settlor indicating his intent to create a trust.
Article II of the Trust Agreement identifies the Trustor or Settlor and beneficiaries: Trust Agreement, Exhibit 1 to Stillman Declaration.
Article IV of the Trust Agreement identifies the property of the Trust: "All rights, title, and interest in and to all real and personal property, tangible or intangible, listed on the attached Exhibit 'A'" and provides in Article IV, ¶ 5 that "Additional property may be conveyed to the Trust by the Trustor, or any other third party at any time." Trust Agreement, Exhibit 1 to Stillman Declaration.
The business of the Trust and the powers of the Trustee are spelled out in Article V of the Trust Agreement, see also, California Probate Code § 15204 (), and the Trust document is signed by Plaintiff as the Trustor and the Trustee of the Trust. Trust Agreement, Exhibit 1 to Stillman Declaration.
Defendant seeks summary judgment in her favor based on what Defendant refers to as Plaintiff's "unclean hands." However, Defendant has presented no admissible evidence that any conduct in this case by Plaintiff amounts to unclean hands.
Defendant moves for summary judgment in her favor on grounds that the debt from Plaintiff's judgment is dischargeable under 11 U.S.C. §523(a)(6) because it does not rise to the level of malice in the California courts, that Plaintiff has no legal standing in the case and that Plaintiff has unclean hands. Defendant's Motion, ECF 91 at 2.
In this case, Plaintiff has the burden of proof or persuasion at trial on his claim that the debt owed by Defendant is non-dischargeable under 11 U.S.C. §523(a)(6), which is the claim on which Plaintiff moved for summary judgment. See Plaintiff's Motion, ECF 35. Plaintiff also has the burden of proof or persuasion at trial to show that he has standing to bring such a claim. However, as to the affirmative defense of unclean hands raised by Defendant, she has the burden of proof or persuasion at trial on that defense.
As to Defendant's first and second assertions that she is entitled to summary judgment on Plaintiff's debt dischargeability claim under 11 U.S.C. §523(a)(6) and Plaintiff purportedly lacks standing, which are matters on which she does not have the ultimate burden of...
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