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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)
oe. Shas ot ELECTRONICALLY
Phone: (510) 227-4406 FILED
-_ . 2 Jel 1 Superior Court of California,
Email: knowyourightsinsf@ gmail.com County of San Francisco
08/07/2017
Attorneys for Plaintiff Phillip Garcia Clerk of the Court
BY:RONNIE OTERO
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PHILLIP GARCIA, an individual, } Case No. CGC-14-538560
Plaintiff, ) DECLARATION OF PLAINTIFF’S
) COUNSEL BENNY MARTIN IN
vs. ) SUPPORT OF MOTION IN LIMINE
) NO. 7: FOR JUDICIAL ESTOPPEL ON
) DEFENDANT TRUST’S
) AGENCY/EMPLOYMENT OF
) DEFENDANT ANGELO WILSON
Defendants. )
) Motion in Limine 7 of 9
)
ANGELO WILSON, an individual, et. al.
I, Benny Martin, hereby declare:
1. Tam Plaintiffs trial counsel in this matter. Everything in this declaration is based upon my
own personal knowledge. If called as a witness to testify, I can and would competently do so.
2. On May 3, 2013, Angelo Wilson brought a UD Complaint against Plaintiff to recover
possession of the Subject Premises in this courthouse, in which Defendant disclosed on the
face of the verified UD Complaint his interest in the property as “Property Manager.”
Attached hereto as Exhibit A is a true and correct copy of the Original UD Complaint.
3. In the course of discovery during the UD action, Angelo Wilson provided the following
response to Form Interrogatory 2.11 inquiring whether he was acting as an agent or employee
for any person in the action, “Yes. I manage the property for owner Carrie Wilson[.]”
Attached hereto as Exhibit B is a true and correct copy of Angelo Wilson’s verified discovery
response.
Cae
DECLARATION OF PLAINTIFF’S COUNSEL BENNY MARTIN IN SUPPORT OF MOTION IN LIMINE NO. 7:
FOR JUDICIAL ESTOPPEL ON DEFENDANT TRUST’S AGENCY/EMPLOYMENT OF DEFENDANT ANGELO
WILSONnD
4. Attached hereto as Exhibit C is a true and correct copy of Angelo Wilson’s opposition to
Plaintiff's motion for summary judgment.
5. Attached hereto as Exhibit D is a true and correct copy of Angelo Wilson’s declaration in
support of his opposition to Plaintiff's motion for summary judgment.
6. Attached hereto as Exhibit E is a true and correct copy of the bankruptcy court’s order
denying Plaintiff's motion for summary judgment against Angelo Wilson.
I declare under the penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed in San Francisco, CA.
DATE: March 22, 2017
LAW OFFICES OF BENNY MARTIN
Benny Martin,
Attorney for Plaintiff
2-
DECLARATION OF PLAINTIFF’S COUNSEL BENNY MARTIN IN SUPPORT OF MOTION IN LIMINE NO. 7:
FOR JUDICIAL ESTOPPEL ON DEFENDANT TRUST’S AGENCY/EMPLOYMENT OF DEFENDANT ANGELO
WILSONEXHIBIT AUD-100
ATTORNEY OR PARTY WTHOUT ATTORNEY (Name, Stole Bar number, and adress):
MICHABE RAR SNIDER ae
;~ Attorney at Law/ Bar No, 100110
109 Geary Street, Fourth Floor
San Francisco, California 94108
TetepHoNE NO: 415-398-9001
E-MAIL ADDRESS (Optionat):
ATTORNEY FOR (Name): ANGELO WILSON
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
streeraooress: 400 McAllister Street
FAX NO. (Optional):
FOR COURT USE OMY |
ENDORSED
[LED
San Francisce Calinty Supe-ing Cour
MAY 03 2013
DEFENDANT: PHILLIP GARCIA.
DOES 1 TO 25
MAILING ADDRESS:
arvanoze cove: San Francisco, California 94102 CLERK OF THE COURT
RANCH Nate: ys KEI TOM |
PtaintiFF; ANGELO WILSON Deputy ler
COMPLAINT — UNLAWFUL DETAINER* CASE
-13-64524(
&
COMPLAINT AMENDED COMPLAINT (Amendment Number}: __CUD
Jurisdiction (check all that apply):
[4] ACTIONS A LIMITED CIVIL CASE
Amount demanded [7] does not exceed $10,000
C1 exceeds $10,000 but does not exceed $28,000
[1 action ts AN UNLIMITED CIVIL CASE (amount demanded exceeds $25,000)
from unlawful detainer to general unilmited civil (possession not In Issue)
from untawful detainer to general limited civit (possession not in issue)
ACTION IS RECLASSIFIED by this amended complaint or cross-complaint (check all that apply):
from limited to untimited
from unlimited to limited
1. PLAINTIFF (name each):
ANGELO WILSON
alleges causes of action against DEFENDANT (name each):
PHILLIP GARCIA, DOES 1 TO 25
2. a. Plaintiftis (1) an individual over the age of 18 years. (4) [—] a partnership.
(2) C2) a public agency. (5) Ja corporation.
(3) C1 other (specity):
>. [J Plaintiff has complied with the fictitious business name laws and is doing business under the fictitious name of (specify):
5. Defendant named above is in possession of the premises located at (street address, apt. no., city,
1665 Hayes Street, San Francisco, California 94117
4. Plaintiffs interest in the premises is [C7] as owner
5. The true names and capacities of defendants sued as Does are unknown to plaintiff.
6. a. On or about (date): February 1, 2008 defendant (name each):
PHILLIP GARCIA
zip code, and county):
other (specify): Property manager
month-to-month tenancy [_] other.tenancy (specify):
b.
(1) agreed fo rent the premises as a
(2) agreed to pay rent of $ 700.00
(3) agreed to pay rent on the
This written [—] oral
(1) COD plaintitt
(2) J plaintifrs agent.
payable [7
agreement was made with
(3) CJ piaintit?s predecessor in interest,
other (specify) master tenant Spain Willingham
* NOTE: Do not use this form for evictions afier sale (Code Civ, Proc., § 1161a).
4 WI
(71 monthly (7)
first of the month [—] other day (specify):
other (specify frequency)
Page 1 of 3
for Optional Use
Fern Approved
Judldal Counc of Calorie
U0-100 Rev duty 4, 2005}
COMPLAINT—UNLAWFUL DETAINER
Cini Code, § 1940 et seq,
‘Code of Chl Procedure §§ 425.12, 1165
‘warwcourtings.ca.gov(CASE NUMBER:
|_ PLAINTIFF (Name): ANGELO WILSON
OEFENDANT(Name): PHILLIP GARCIA
6.6. The defendants not named in item 6a are
(1) subtenants.
(2) assignees.
(3) other (specify): All others claiming a right to posession
d. The agreement was later changed as foliows (specify):
Phillip Garcia became the master tenant about July of 2010 and rent was raised lawfully to
$2,100.00
A copy of the written agreement, including any addenda or attachments that form the basis of this complaint, is attached
and labeled Exhibit 1. (Required for residential property, unless item 6f is checked. See Code Civ. Proc., § 1166.)
(For residential property) A copy of the written agreement is not attached because (specify reason):
(1) £1 the written agreement is not in the possession of the landlord or the landlord's employees or agents.
(2) £1 this action is solely for nonpayment of rent (Code Civ. Proc., § 1161(2)).
a. Defendant (name each}:
PHILLIP GARCIA, DOES 1 to 25
was served the following notice on the same date and in the same manner:
(1) C21 3-day notice to pay rentor quit (4) [_] 3-day notice to perform covenants or quit
(2) LJ 20-day notice to quit (5) LJ 3-day notice to quit
(3) [1 0-day notice to quit 6) Other (specify): Notice to Termination of Tenancy
b. (1) On (date): April 30, 2013 the period stated in the notice expired at the end of the day.
(2) Defendants failed to comply with the requirements of the notice by that date.
c. All facts stated in the notice are true.
The notice included an election of forfeiture.
A copy of the notice is attached and labeled Exhibit 2. (Required for residential property. See Cade Civ. Proc.,
§ 1166.)
£ [2 One or more defendants were served (1) with a different notice, (2) on a different date, or (3) in a different
manner, as stated in Attachment 8c. (Check item 8c and attach a statement providing the information required
by items 7a-e end 8 for each defendent.)
The notice in item 7a was served on the defendant named in item 7a as follows:
(1) 1 by personally handing a copy to defendant on (date):
(2) E21 _ by leaving a copy with (name or description):
a person of suitable age and discretion, on (date): at defendant's
[7] residence [[—] business AND Mailing a copy to defendant at defendant's place of residence on
(date): because defendant cannot be found at defendant's residence orusual ,
place of business. afte t
by posting a copy on the premises on (date): April 18, 2013 ANBryiving-e-cepy-te-e
person-found-residing-atthe-premises AND mailing a copy to defendant at the premises on
(date): April 18, 2013
(a) C2) because defendant's residence and usual place of business cannot be ascertained OR
(b) because no person of suitable age or discretion can be found there.
(4) [1] (Not for 3-day notice; sae Civil Cade, § 1946 before using) by sending a copy by certified or registered
mail addressed to defendant on (date):
(5) [2] (Not for residential tenancies; see Civil Code, § 1953 before using) in the manner specified in a written
commercial lease between the parties.
(Name):
was served on behalf of all defendants who signed a joint written rental agreement.
Information about service of notice on the defendants alleged in item 7f is stated in Attachment 8c.
Proof of service of the notice in item 7a is attached and labeled Exhibit 3.
Page 2 0f 3
oy 88
oe COMPLAINT—UNLAWFUL DETAINERPLAINTIFF (Name): ANGELO WILSON CASE NUMBER:
DEFENDANT (Name): PHILLIP GARCIA.
Plaintiff demands possession from each defendant because of expiration of a fixed-term lease.
oo
10. LJ tthe time the 3-day notice to pay rent or quit wes served, the amount of rent due was $ eeEet
The fair rental value of the premises is $ 9.04 * per day. for the purpose of this action
(1 Defendants continued possession Is maticious, and plaintiff is entited to statutory damages under Code of Civil
Procedure section 1174(b}. (State specific facts supporting 2 claim up to $600 in Attachment 12.)
[} Awitten agreement between the parties provides for attomey fees,
Defendant's tenancy is subject to the local rent cantrot or eviction control ordinance of (city or county, title of ordinance,
and date of passage): :
The Residential Rent Stabilization and Arbitration Ordinance of the City and County of San Francisco,
State of California, original ordinance number 276-79, effective June 13, 1979, Chepter 37 of the San
Francisco Administrative Code, as amended.
Plaintiff has met all applicable requirements of the ordinances
15. [J . other allegations are stated in Attachment 16.
16. Plaintiff accepts the jurtsdictional lim, if any, of the courk.
17. PLAINTIFF REQUESTS
a. possession af the premisas.
t. EZT damages at the rate stated in item 14 from
'b. Costs Incurred in this Proceeding: (date): May 1, 2013 jor each day that
c. [2] pastdue rent of $ defendants remain In possession through entry of judgment.
d. [""] reasonable attorney ices, g CJ statutory damages up (0 $600 for the conduct alleged in item 12.
e forfelture of the agreement h other (specify):
Such other relief that is proper and just
Number of pages attached (specify): 5
UNLAWFUL DETAINER ASSISTANT (Bus, & Prof. Code, §§ 8400-6415)
didnot [—] id for compensation give advice or assistance
19. (Complete in all cases.) An unlawtul detainer assistant
pay from an unlawful detainer assistant, state:)
with this form. (If plaintiff has received any. ‘help or advice ior,
a, Assistant's name: ©. . Telephone No,:
b, Street address, city, and zip code: 4. County of registration;
e, Reglstration No,:
Expires on (date):
Date; May ¢ , 2013, /
> ( om,
MICHAEL RAIFSNIDER (ct:
(TYPE OR PRINT NAME)
77 SOMATURE OF PLAINTIFF |
Pee COMPLAINT—UNLAWFUL DETAINER iEXHIBIT BLee CUD-15-645240
1 | MICHAEL RATFSNIDER_
oo ee ‘100110
FE ‘ oor
? |Igan Francisco, CA 94108
3 || Telephone 415/398-9001
4 At for Plaintiff
WILSON
4 a
6 SUPERIOR COURT OF CALIFORNIA
> COUNTY OF SAN FRANCISCO _
8 LIMITED JURISDICTION
a
CIVIL NO. CUD-13-645240
10 || ANGELO WILSON,
’ tom PLAINTIFF ANGELO WILSON’S
2 we } So i
'3 || PHILLIP GARCIA, DOES 1 to 25, _ 2
~ 4 | De }
ce
6 ee
PROPOUNDING PARTY: | Defendant PHILLIP GARCIA
o a :
NDING PARTY: "Plaintiff ANGELO WILSON
s
SET NUMBER: ONE
19 : -
Plaintiff ANGELO WILSON to defendant’s Form Interrogatories - General, as follows:|
ot ce a
22
1.0 Identity of Persons Answering These ntrrvgstoris a
: My atom Mitel Raine, nd my nephew Shown ot
| Se ee a
2
16
: a7
Le
8tatory 2.2: February 11, 1957, Kentucky. :
2.5: 1675 Hayes Street, San Francisco, California 94117,
6: San Francisco Department of Public Works, 161 Erie Street, San
esp 01 m Interr ry 2. :Obccion, inelevant nd not reasonsbe cleus ned tothe
6 Hct wie ici Without waiver, | painted thom Weshington High School in 1975,
ig
a
: Not L.
2: Not applicable.
y 7.3: Not applicable.
24
5 » Form Interrogatory 9.1: Yes. (a) Attorney's fees and court costs. (b) These damages
26 texas pro the pron ofthe Nae 0 Tomnatin of omc anv coined
27 date. (c) Approximately $10,000 to date. (d) Michael Raifsnider.
28
PLAINTIFF ANGELO WILSON’S | espoused TO FORM INTERROGATORIES - 1 GENERAL.
CUD-13-645240|, the undersigned, declare:
‘am over the age of eighteen years, employed in the City and County of San Francisco, State of
California, and not a party tothe within action, My business address is 109 Geary Street, Fourth Foor,
San Francisco, California 94108. Oe eee are Oe lorig eme
PLAINTIFF ANGELO WILSON’S
prepaid, soc placing hc mune ia the Usted Sina i, ade
Benjamin Martin, Esq.
Law Offices of Benny Martin
564 Market Steet, Suite 321 :
San Francisco, California 94104 :
| declare under penalty of perjury under the laws of the State of California that the foregoing is
PROOF OF SERVICE BY PERSONAL DELIVERYpat
: |, the undersigned, state and declare as follows:
: Tam the plaintiff inthis action. Ihave read the foregoing:
. RESPONSES TO FORM INTERROGATORIES - GENERAL
6 kotha ste cae ht te cone a acre ov
a true and correct and that this declaration was executed on the date below. -
nome Alef a
ANGEL!
=
26
nil
: : ; : |
PLAINTIFF ANGELO WILSON'S RESPONSES TO FORM INTERROGATORIES - GENERAL
D eeeOo
3.0
oO
2.14 Atthe time of the INCIDENT were you acting as an
agent or employee for any PERSON? If so, state:
(a) the name. ADDRESS, and telephone number of that
PERSON: and
(b) a deseription of your duties
2.12 At the time of the INCIDENT did you or any other
person have any physical, emotional, or mental disability or
condition that may have contributed to the occurrence of the
INCIDENT? If so, for each person state:
(a) the name, ADDRESS, and telephone number;
(b) the nature of the disability or condition; and
(c) the manner in which the disability or
contributed to the occurrence of the INCIDENT.
condition
2.13 Within 24 hours before the INCIDENT did you or any
person involved in the INCIDENT use or take any of the
following substances: alcoholic beverage, marijuana, or
other drug or medication of any kind (prescription or not)? If
80, for each person state:
(a) the name, ADDRESS, and telephone number;
(b) the nature or description of each substance;
(c) the quantity of each substance used or taken;
(d) the date and time of day when each substance was used
or taken;
(e) the ADDRESS where each substance was used or
taken;
(f) the name, ADDRESS, and telephone number of each
person who was present when each substance was used
or taken; and
(g) the name, ADDRESS, and telephone number of any
HEALTH CARE PROVIDER who prescribed or furnished
the substance and the condition for which it was
prescribed or furnished.
General Background Information—Business Entity
3.1 Are you a corporation? If so, state:
(a) the name stated in the current articles of incorporation;
{b) all other names used by the corporation during the past
10 years and the dates each was used;
(c) the date and place of incorporation;
(d) the ADDRESS of the principal place of business; and
(e) whether you are qualified to do business in California.
3.2 Are you a partnership? If so, state:
(a) the current partnership name;
(b) all other names used by the partnership during the past
10 years and the dates each was used;
(c) whether you are a limited partnership and, if so, under
the laws of what jurisdiction;
(d) the name and ADDRESS of each general partner; and
(e) the ADDRESS of the principal place of business.
3.3 Are you a limited liability company? If so, state:
(a) the name stated in the current articles of organization;
(b) all other names used by the company during the past 10
years and the date each was used;
(c) the date and place of filing of the articles of organization;
(d) the ADDRESS of the principal place of business; and
{e) whether you are qualified to do business in California.
oO
oO
oO
O
DISC-001
[1 34 Are you a joint venture? If so, state:
(a) the current joint venture name;
(b) all other names used by the joint venture during the
past 10 years and the dates each was used;
(c) the name and ADDRESS of each joint venturer, and
(d) the ADDRESS of the principal place of business.
3.5 Are you an unincorporated association?
If so, state:
(a) the current unincorporated association name;
(b) all other names used by the unincorporated association
during the past 10 years and the dates each was used;
and
(c) the ADDRESS of the principal place of business.
3.6 Have you done business under a fictitious name during
the past 10 years? If so, for each fictitious name state:
(a) the name;
(b) the dates each was used;
(c) the state and county of each fictitious name filing; and
(d) the ADDRESS of the principal place of business.
3.7 Within the past five years has any public entity regis-
tered or licensed your business? If so, for each license or
registration:
(a) identify the license or registration;
(b) state the name of the public entity; and
(c) state the dates of issuance and expiration.
4.0 Insurance
4.1 Atthe time of the INCIDENT, was there in effect any
policy of insurance through which you were or might be
insured in any manner (for example, primary, pro-rata, or
excess liability coverage or medical expense coverage) for
the damages, claims, or actions that have arisen out of the
INCIDENT? If so, for each policy state:
(a) the kind of coverage:
(b) the name and ADDRESS of the insurance company;
(c) the name, ADDRESS, and telephone number of each
named insured;
(a) the policy number;
(e) the limits of coverage for each type of coverage con-
tained in the policy;
(f) whether any reservation of rights or controversy or
coverage dispute exists between you and the insurance
company; and
(g) the name, ADDRESS, and telephone number of the
custodian of the policy.
4.2 Are you self-insured under any statute for the damages,
claims, or actions that have arisen out of the INCIDENT? If
80, specify the statute.
5.0 [Reserved]
6.0 Physical, Mental, or Emotional Injuries
6.1 Do you attribute any physical, mental, or emotional
injuries to the INCIDENT? (If your answer is “no,” do not
answer interrogatories 6.2 through 6.7).
6.2 Identify each injury you attribute to the INCIDENT and
the area of your body affected.
DISC-O57 FRev- January 7, 2008]
FORM INTERROGATORIES—GENERAL
Page 3 0f 8EXHIBIT C1 | DAVID A. SMYTH, SBN 058339
Attorney at Law
2 || 3478 Buskirk Ave., #1000
Pleasant Hill, CA 94523
3 || Tel: 925/933-4541
Fax: 925/932-7077
4 || dsmyth2_@hotmail.com
5 || Attorney for Defendant
ANGELO WILSON
6
7
8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
9 SAN FRANCISCO DIVISION
10
11 }f In re: CHAPTER 7
BK CASE NO. 15-30483 HLB
ADV. PRO. NO. 15-03064 HLB
12 || ANGELO WILSON,
13 Debtor. /
14 || PHILLIP GARCIA,
15 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
16 || vs. DEFENDANT’S OPPOSITION TO
PLAINTIFF’S MOTIONS TO AMEND,
17 | ANGELO WILSON, FOR SUMMARY JUDGMENT AN
FOR RELIEF FROM THE
18 AUTOMATIC STAY
Hearing -
19 Date: 3/16/17
Time: 2:00p.m.
20 Ctrm: 19
450 Golden Gate Ave., 16 Floor
21 San Francisco, CA
The Honorable Hannah L. Blumenstiel
22
Pre Trial ANO/T
23 Trial 5/31/17
24 Defendant. /
25 INTRODUCTION
26 Each of the plaintiff's three motions set for March 16, 2017 should be denied.
27 The plaintiff requests relief from the automatic stay alleging that Angelo Wilson, through
28 || his attorney Dana Tom, is continuing to defend the Superior Court lawsuit, Garcia vs. Wilson,
Case 15-03064 Doc#65 Filed: 03/01/17 ae 03/01/17 14:36:29 Page 1 of 6Case
Case No. CGC 14-53860, when in fact Attorney Tom is now only defending the defendant’s
mother, Carrie Wilson, in said lawsuit which is set for trial on March 27, 2017. All parties
understand that Angelo Wilson is no longer a defendant in that case.
The plaintiff, (hereinafter referred to as “Garcia”), alleges that the defendant (hereinafter
referred to as “Wilson’’), committed fraud on the Superior Court and on the plaintiff when
Wilson alleged that he had authority to file the unlawful detainer lawsuit, CUD 13-645240, as the
landlord for his parents property situated at 1665 Hayes Street, San Francisco, CA 94117. There
is no dispute that Wilson’s parents, the owners of the property, permitted Wilson full discretion
to manage the property and evict tenants. The plaintiff's attorney equates lack of specific
instructions with lack of authority.
The plaintiff alleges that Wilson failed to schedule an “under market rate oral lease.”
This “lease” was Wilson’s agreement with his mother as to the rent that he would pay at his
parents’ Hayes Street property. It was a “tenancy at will,” which cannot be assigned and which
has no value.
The plaintiff alleges that the defendant’s major obligation in the bankruptcy, the attorney
fees owing to Garcia based upon Wilson’s unsuccessful attempt to evict Garcia, was fraudulently
listed as a “business debt” rather than a consumer debt. However, it is an obvious business debt
since the parties’ dealings did not involve Garcia providing goods and services to Wilson and his
parents.
I.
PLAINTIFF’S MOTION TO REVOKE THE DEBTOR/DEFENDANT’S DISCHARGE
MUST BE DENIED BECAUSE IT WAS FILED MORE THAN ONE YEAR
AFTER THE CASE WAS DISCHARGED AND CLOSED
The defendant received his discharge in the underlying bankruptcy, Case No. 15-30483,
on July 28, 2015 and the case was closed the following day on July 29, 2015. The plaintiff first
raised the issue of revocation of discharge on January 31, 2017, Docket Entry No. 49, more than
one year after the bankruptcy was discharged and the case closed. The one year time limit is
jurisdictional and cannot be tolled. See Elliott v. Weil (In re Elliott), 529 B.R. 747, 752 - 754
(9 Cir. BAP 2015) and Car Care Ctr. of Crystal Lake, Ltd. v. Miller (In re Miller), 336 B.R. 408,
15-03064 Doc#65 Filed: 03/01/17 ee 03/01/17 14:36:29 Page 2 of 6wv
Case
410-411 (U.S. Bk. Ct., E.D. Wisconsin 2005).
I.
PLAINTIFF’S SECOND CAUSE OF ACTION IN HIS PROPOSED
THIRD AMENDED COMPLAINT DESCRIBES NO INCOMPLETE OR FALSE
STATEMENTS IN SUPPORT OF HIS MOTION TO REVOKE
THE DEBTOR/DEFENDANT’S DISCHARGE
The plaintiff's second cause of action in his proposed Third Amended Complaint
(Exh. A, Pgs. 9 & 10, Docket Entry No. 55-1, 2/17/17), states only bare conclusions that the
defendant made false and/or incomplete statements in his schedules and statement of financial
affairs. This is not sufficient, even under the modern rules regarding pleadings. ServiceLink
NLS, LLC vy. Cooper Castle, LLC 2017 U.S. Dist. LEXIS 13505 (U.S. Dist. Ct. Nev. 1/27/17).
THE DEBTOR/DEFENDANT'S FAILURE TO SCHEDULE HIS
“BELOW MARKET RATE” ORAL LEASE WITH HIS MOTHER WAS NOT
A FRAUDULENT OMISSION
The “under market rate lease” that the plaintiff refers to is the agreed rent that the
defendant paid his mother to live in her building. (Exh. C, Pg. 70, In. 24 and Pg. 71, In. 3,
Docket Entry No. 55-1 2/17/17( (Exhibit page numbers are in red.)
The arrangement described above is a “tenancy at will,” which cannot be assigned.
McLeran vy. Benton (1887) 73 Cal. 329, 339. While it could initially be considered “property of
the estate” under 11 U.S.C. §542, it has no value. Neither an attorney nor a layman would view
this as an asset and most attorneys would not list it in a bankruptcy.
THE MOST REASONABLE CLASSIFICATION OF WILSON’S DEBTS
ARE AS “BUSINESS DEBTS”
The defendant scheduled two debts, $9000 to the IRS and $42,500 owed to Garcia.
Wilson testified in his deposition and in his declaration in response to this motion, that he filed
the unlawful detainer complaint in the Superior Court as the acting manager of his parents’ real
property. As explained in the following section. Wilson had a right to file the unlawful detainer
action as the (implied) agent for his parents, the owners of the property. Wilson undertook this
15-03064 Doc#65 Filed: 03/01/17 ae 03/01/17 14:36:29 Page 3 of 6Case
roll as a son and because his parents had helped him financially in the past. (Exh. C, Pg. 68,
Ins. 13 - Pg. 69, In. 2, Docket Entry No. 55-1 2/17/17)
The obvious purpose of a lease or rental is not to provide the owner/landlord with goods
or services but rather it is a common business transaction the purpose of which, from the
owner/landlord’s perspective, is to generate money for the owner. This fits the definition of a
‘business debt.” Bushkin v. Singer (n re Bushkin), 2016 Bankr. LEXIS 2688, Pgs. 16 - 18 (9"
Cir. BAP 2016). Even if a legal argument could somehow be made to characterize this as a
consumer debt, it was not a deliberately false/fraudulent statement to classify this as a “business
debt.”
Vv.
NEITHER WILSON NOR HIS PARENTS HAVE EVER ALLEGED THAT
WILSON WAS NOT AUTHORIZED TO MANAGE THE PROPERTY
OR TO BRING THE UNLAWFUL DETAINER LAWSUIT
Wilson managed the property at a time when his father was terminally ill and his mother
was understandably focused on her husband’s health. (Exh. C, Pg. 68, Ins. 2 - 7, Docket Entry
No. 55-1 2/17/17) Wilson and his parents understood that Wilson would make all the decisions
regarding management of the property and evicting tenants. (xh. C. Pg. 68 In 13 - Pg. 69, In 2.
Docket Entry No. 55-1 2/17/17) Under this arrangement. Wilson was an implied agent.
Thayer v. Pacific (1961) 55 Cal. 2d 430, 438. Wilson had the authority to file the unlawful
detainer lawsuit even though he was not on title to the property. National Reserve Co. v.
Metropolitan Trust Co. (1941) 17 Cal. 2d 827, 831 - 834.
Most importantly, no party has ever claimed in any proceeding that Wilson was not
authorized to act as the manager of the property or was not authorized to bring the unlawful
detainer action. No party is making such a claim to gain advantage or avoid liability in the
Superior Court or in any proceeding. There was no intent to defraud. Therefore, no allegation of
fraud can be made under 11 U.S.C. §523(a)(2). See Citibank ($.D.) N.A. v. Eashai (In re Eashai)
87 F. 3d 1082, 1086 - 1087 (9" Cir 1995) for elements under 11 U.S.C. §523(a)(2).
Mf
df
15-03064 Doc#65 Filed: 03/01/17 a 03/01/17 14:36:29 Page 4 of 6Case
VI.
THE DEBTOR/DEFENDANT DID NOT FRAUDULENTLY OMIT THE FACT
THAT THE PLAINTIFF GARNISHED HIS CHECKING ACCOUNT
EIGHT MONTHS BEFORE THE BANKRUPTCY
The plaintiff accuses the defendant of fraudulently failing to list the garnishment of his
checking account in August 2014. The lawsuit was mentioned in Item 5 of the statement of
financial affairs and the levy on the defendant’s bank account was disclosed in Item 11. The
garnishment should have also been listed in Item 5 but it was not. The garnishment was for
$2700.00 (Exh. C, Pg. 5, In. 5, Docket Entry No. 55-1 2/17/17) and was too old to be returned to
the estate as a preference.
THE DEBTOR/DEFENDANT WAS LEGALLY ENTITLED TO LIST HIS
FOUR CHILDREN WHO STAYED WITH HIM AS DEPENDENTS
At the time the defendant filed bankruptcy, he financially supported his four children and
they could, and would, stay with him anytime that they so desired. Under these circumstances, it
was proper to list them as dependents who resided with the debtor. See In re De Bruyn Kops
2012 Bankr. LEXIS 775 (Bk. Ct. Idaho 2012).
VIL.
THE PLAINTIFF IS NOT ENTITLED TO RELIEF FROM THE
DISCHARGE INJUNCTION AT THIS TIME
In the case at bar, the defendant obtained his discharge on July 28, 2015. On that date,
the automatic stay terminated and was replaced by the “discharge injunction.”
See Henry and Assoc. Home Equity Servs. (In re Henry) 266 B.R. 457, 473 (Bk. C.D.Cal 2001)
“The discharge injunction is permanent. It survives the bankruptcy case and applies
forever with respect to every debt that is discharged... The permanency « of the discharge
injunction contrasts with the temporary character of the automatic stay.” See In re Henry, supra.
Apart from revoking a discharge in a proper case, the Court does not have the power to
modify the discharge injunction. See Ruvacalba v. Munoz (In re Munoz) 287 B.R. 546, 553
(9" Cir. BAP 2002)
In addition, even if the plaintiffs motion has been made before the discharge, there
15-03064 Doc#65 Filed: 03/01/17 eee 03/01/17 14:36:29 Page 5 of 6Case
would be no reason to grant a relief from stay. The defendant is no longer defending the Superior
Court lawsuit; he has no need to defend because of his bankruptcy. Garcia was deposed on
February 28, 2017 by Attorney Dana Tom. Ms. Tom is still defending Carrie Wilson, the
defendant’s mother, who has not filed bankruptcy. This is a common scenario. A state court trial
man proceed against associates of a bankrupt debtor who are not in bankruptcy. See
Practice Service Corp. v. HCA Health Services (1995) 37 Cal. App. 4" 1003, 1006 - 1007.
THE FACTS IN THIS CASE DO NOT JUSTIFY THE REVOCATION
OF THE DEFENDANT’S DISCHARGE
The denial of a debtor’s discharge is an “extraordinary remedy” reserved only for debtors
who deliberately and fraudulently file false or misleading or incomplete information with the
Bankruptcy Court with the intent to defraud creditors. See In re Bowman 173 B.R.922, 924 -
926 (9" Cir. BAP 1994). No such conduct has been shown by the defendant in the case at bar.
CONCLUSION
The debtor/defendant’s discharge cannot be revoked because the plaintiff first sought to
revoke the discharge more than one year after it was granted and the underlying bankruptcy case
closed. Apart from this, the plaintiff has presented no evidence that would justify the revocation
of the debtor/defendant’s discharge.
And, the plaintiff's motion to amend his complaint to allege fraud under
11 U.S.C. §523(a)(2) should be denied. He has not shown that the defendant was not authorized
to file the unlawful detainer complaint against Garcia. The plaintiff has not shown that any party
is, or has, alleged a lack of authorization as a defense or for their benefit.
DATED: March 1, 2017 Respectfully submitted,
is/ David A. Smyth
DAVID A. SMYTH
Attorney for Defendant
ANGELO WILSON
15-03064 Doc#65 Filed: 03/01/17 eee 03/01/17 14:36:29 Page 6 of 6EXHIBIT DCase
DAVID A. SMYTH, SBN 058339
Attorney at Law
3478 Buskirk Ave., #1000
Pleasant Hill, CA 94523
Tel: 925/933-4541
Fax: 925/932-7077
dsmyth2_@hotmail.com
Attorney for Defendant
ANGELO WILSON
IN THE UNITED STATES BANKRUPTCY COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA.
SAN FRANCISCO DIVISION
In re: CHAPTER 7
BK CASE NO. 15-30483 HLB
ADV. PRO. NO. 15-03064 HLB
ANGELO WILSON,
Debtor. /
PHILLIP GARCIA,
Plaintiff, DECLARATION OF
ANGELO WILSON IN SUPPORT OF
vs. DEFENDANT’S OPPOSITION TO
PLAINTIFF’S MOTIONS TO AMEND,
ANGELO WILSON, FOR SUMMARY JUDGMENT AN
FOR RELIEF FROM THE
AUTOMATIC STAY
Hearing -
Date: 3/16/17
Time: 2:00p.m.
Ctrm: 19
450 Golden Gate Ave., 16 Floor
San Francisco, CA
The Honorable Hannah L. Blumenstiel
Pre Trial ANO/T
Trial 5/31/17
Defendant. /
I, Angelo Wilson, declare under penalty of perjury as follows:
1. Lam the debtor in the underlying bankruptcy and the defendant in this adversary
proceeding.
2. At the time that I filed bankruptcy I was newly divorced. As noted on my
15-03064 Doc#66 Filed: 03/01/17 ae 03/01/17 14:38:42 Page 1 of 2Case
Schedules I and J, I paid $1515/Mo. child support and $800/Mo. for child care and education
expenses. I have four children. At the time I filed bankruptcy, one of my children stayed
primarily with me and the other three children stayed primarily with their mother, my ex-wife.
Those three children could, and would, occasionally stay with me.
3. At the time I filed this bankruptcy, I was residing at a property owned by parents for
an agreed rent of $1700/Mo. That rental amount was below fair market value.
4. At the time I filed the unlawful detainer complaint against Phillip Garcia (hereinafter
referred to as “Garcia”), which is the subject of this adversary proceeding, I was acting as the
manager of my parents’ property where Garcia was a tenant. | exercised my own discretion
concerning operations of the property, renting units and evicting tenants with my parents’
knowledge but without their explicil instructions. My father was terminally ill and my mother
was understandably concerning primarily with taking care of my father.
5. [informed my bankruptcy attorney that Attorney Benny Martin had garnished my
bank account eight months before the bankruptcy was filed under Garcia’s judgment in the above
mentioned unlawful detainer action.
6. Since | filed bankruptcy in 2015, I have not been defending the most recently filed
superior court case, Garcia vs. Wilson, Case No. CGC 14-53860, which is now set for trial on
March 27, 2017. My former attorney in this most recently filed case, Dana Tom, continues to
defend my mother. My mother has not filed bankruptcy and she must still defend herself.
Executed under penalty of perjury ths 1“ day of March, 2017 at San Francisco, California.
/s/ Angelo Wilson
ANGELO WILSON
Defendant
15-03064 Doc#66 Filed: 03/01/17 ee 03/01/17 14:38:42 Page 2 of 2EXHIBIT EnN
main it, cuir
EDWARD J. EMMONS, CLERK
U.S. BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
HANNAH L. BLUMENSTIEL
U.S. Bankruptcy Judge
UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re: Case No. 15-30483 HLB
ANGELO WILSON, Chapter 7
Debtor.
)
)
)
)
)
)
PHILLIP GARCIA, ) Adv. Proc. No. 15-3064 HLB
)
Plaintiff, )
)
ve )
)
ANGELO WILSON, )
)
)
Defendant.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
This adversary proceeding came before the court on March
16, 2017 for a hearing on Plaintiff Phillip Garcia’s Motion for
Summary Judgment (the “Motion”). Appearances were as noted on
the record. For the reasons stated in the court’s March 15,
2017 tentative ruling, the Motion is DENIED.
**END OF ORDER**
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nD LAW OFFICES OF BENNY MARTIN Benjamin Martin (SBN 257452) oe. Shas ot ELECTRONICALLY Phone: (510) 227-4406 FILED -_ . 2 Jel 1 Superior Court of California, Email: knowyourightsinsf@ gmail.com County of San Francisco 08/07/2017 Attorneys for Plaintiff Phillip Garcia Clerk of the Court BY:RONNIE OTERO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PHILLIP GARCIA, an individual, } Case No. CGC-14-538560 Plaintiff, ) DECLARATION OF PLAINTIFF’S ) COUNSEL BENNY MARTIN IN vs. ) SUPPORT OF MOTION IN LIMINE ) NO. 7: FOR JUDICIAL ESTOPPEL ON ) DEFENDANT TRUST’S ) AGENCY/EMPLOYMENT OF ) DEFENDANT ANGELO WILSON Defendants. ) ) Motion in Limine 7 of 9 ) ANGELO WILSON, an individual, et. al. I, Benny Martin, hereby declare: 1. Tam Plaintiffs trial counsel in this matter. Everything in this declaration is based upon my own personal knowledge. If called as a witness to testify, I can and would competently do so. 2. On May 3, 2013, Angelo Wilson brought a UD Complaint against Plaintiff to recover possession of the Subject Premises in this courthouse, in which Defendant disclosed on the face of the verified UD Complaint his interest in the property as “Property Manager.” Attached hereto as Exhibit A is a true and correct copy of the Original UD Complaint. 3. In the course of discovery during the UD action, Angelo Wilson provided the following response to Form Interrogatory 2.11 inquiring whether he was acting as an agent or employee for any person in the action, “Yes. I manage the property for owner Carrie Wilson[.]” Attached hereto as Exhibit B is a true and correct copy of Angelo Wilson’s verified discovery response. Cae DECLARATION OF PLAINTIFF’S COUNSEL BENNY MARTIN IN SUPPORT OF MOTION IN LIMINE NO. 7: FOR JUDICIAL ESTOPPEL ON DEFENDANT TRUST’S AGENCY/EMPLOYMENT OF DEFENDANT ANGELO WILSONnD 4. Attached hereto as Exhibit C is a true and correct copy of Angelo Wilson’s opposition to Plaintiff's motion for summary judgment. 5. Attached hereto as Exhibit D is a true and correct copy of Angelo Wilson’s declaration in support of his opposition to Plaintiff's motion for summary judgment. 6. Attached hereto as Exhibit E is a true and correct copy of the bankruptcy court’s order denying Plaintiff's motion for summary judgment against Angelo Wilson. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in San Francisco, CA. DATE: March 22, 2017 LAW OFFICES OF BENNY MARTIN Benny Martin, Attorney for Plaintiff 2- DECLARATION OF PLAINTIFF’S COUNSEL BENNY MARTIN IN SUPPORT OF MOTION IN LIMINE NO. 7: FOR JUDICIAL ESTOPPEL ON DEFENDANT TRUST’S AGENCY/EMPLOYMENT OF DEFENDANT ANGELO WILSONEXHIBIT AUD-100 ATTORNEY OR PARTY WTHOUT ATTORNEY (Name, Stole Bar number, and adress): MICHABE RAR SNIDER ae ;~ Attorney at Law/ Bar No, 100110 109 Geary Street, Fourth Floor San Francisco, California 94108 TetepHoNE NO: 415-398-9001 E-MAIL ADDRESS (Optionat): ATTORNEY FOR (Name): ANGELO WILSON SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO streeraooress: 400 McAllister Street FAX NO. (Optional): FOR COURT USE OMY | ENDORSED [LED San Francisce Calinty Supe-ing Cour MAY 03 2013 DEFENDANT: PHILLIP GARCIA. DOES 1 TO 25 MAILING ADDRESS: arvanoze cove: San Francisco, California 94102 CLERK OF THE COURT RANCH Nate: ys KEI TOM | PtaintiFF; ANGELO WILSON Deputy ler COMPLAINT — UNLAWFUL DETAINER* CASE -13-64524( & COMPLAINT AMENDED COMPLAINT (Amendment Number}: __CUD Jurisdiction (check all that apply): [4] ACTIONS A LIMITED CIVIL CASE Amount demanded [7] does not exceed $10,000 C1 exceeds $10,000 but does not exceed $28,000 [1 action ts AN UNLIMITED CIVIL CASE (amount demanded exceeds $25,000) from unlawful detainer to general unilmited civil (possession not In Issue) from untawful detainer to general limited civit (possession not in issue) ACTION IS RECLASSIFIED by this amended complaint or cross-complaint (check all that apply): from limited to untimited from unlimited to limited 1. PLAINTIFF (name each): ANGELO WILSON alleges causes of action against DEFENDANT (name each): PHILLIP GARCIA, DOES 1 TO 25 2. a. Plaintiftis (1) an individual over the age of 18 years. (4) [—] a partnership. (2) C2) a public agency. (5) Ja corporation. (3) C1 other (specity): >. [J Plaintiff has complied with the fictitious business name laws and is doing business under the fictitious name of (specify): 5. Defendant named above is in possession of the premises located at (street address, apt. no., city, 1665 Hayes Street, San Francisco, California 94117 4. Plaintiffs interest in the premises is [C7] as owner 5. The true names and capacities of defendants sued as Does are unknown to plaintiff. 6. a. On or about (date): February 1, 2008 defendant (name each): PHILLIP GARCIA zip code, and county): other (specify): Property manager month-to-month tenancy [_] other.tenancy (specify): b. (1) agreed fo rent the premises as a (2) agreed to pay rent of $ 700.00 (3) agreed to pay rent on the This written [—] oral (1) COD plaintitt (2) J plaintifrs agent. payable [7 agreement was made with (3) CJ piaintit?s predecessor in interest, other (specify) master tenant Spain Willingham * NOTE: Do not use this form for evictions afier sale (Code Civ, Proc., § 1161a). 4 WI (71 monthly (7) first of the month [—] other day (specify): other (specify frequency) Page 1 of 3 for Optional Use Fern Approved Judldal Counc of Calorie U0-100 Rev duty 4, 2005} COMPLAINT—UNLAWFUL DETAINER Cini Code, § 1940 et seq, ‘Code of Chl Procedure §§ 425.12, 1165 ‘warwcourtings.ca.gov(CASE NUMBER: |_ PLAINTIFF (Name): ANGELO WILSON OEFENDANT(Name): PHILLIP GARCIA 6.6. The defendants not named in item 6a are (1) subtenants. (2) assignees. (3) other (specify): All others claiming a right to posession d. The agreement was later changed as foliows (specify): Phillip Garcia became the master tenant about July of 2010 and rent was raised lawfully to $2,100.00 A copy of the written agreement, including any addenda or attachments that form the basis of this complaint, is attached and labeled Exhibit 1. (Required for residential property, unless item 6f is checked. See Code Civ. Proc., § 1166.) (For residential property) A copy of the written agreement is not attached because (specify reason): (1) £1 the written agreement is not in the possession of the landlord or the landlord's employees or agents. (2) £1 this action is solely for nonpayment of rent (Code Civ. Proc., § 1161(2)). a. Defendant (name each}: PHILLIP GARCIA, DOES 1 to 25 was served the following notice on the same date and in the same manner: (1) C21 3-day notice to pay rentor quit (4) [_] 3-day notice to perform covenants or quit (2) LJ 20-day notice to quit (5) LJ 3-day notice to quit (3) [1 0-day notice to quit 6) Other (specify): Notice to Termination of Tenancy b. (1) On (date): April 30, 2013 the period stated in the notice expired at the end of the day. (2) Defendants failed to comply with the requirements of the notice by that date. c. All facts stated in the notice are true. The notice included an election of forfeiture. A copy of the notice is attached and labeled Exhibit 2. (Required for residential property. See Cade Civ. Proc., § 1166.) £ [2 One or more defendants were served (1) with a different notice, (2) on a different date, or (3) in a different manner, as stated in Attachment 8c. (Check item 8c and attach a statement providing the information required by items 7a-e end 8 for each defendent.) The notice in item 7a was served on the defendant named in item 7a as follows: (1) 1 by personally handing a copy to defendant on (date): (2) E21 _ by leaving a copy with (name or description): a person of suitable age and discretion, on (date): at defendant's [7] residence [[—] business AND Mailing a copy to defendant at defendant's place of residence on (date): because defendant cannot be found at defendant's residence orusual , place of business. afte t by posting a copy on the premises on (date): April 18, 2013 ANBryiving-e-cepy-te-e person-found-residing-atthe-premises AND mailing a copy to defendant at the premises on (date): April 18, 2013 (a) C2) because defendant's residence and usual place of business cannot be ascertained OR (b) because no person of suitable age or discretion can be found there. (4) [1] (Not for 3-day notice; sae Civil Cade, § 1946 before using) by sending a copy by certified or registered mail addressed to defendant on (date): (5) [2] (Not for residential tenancies; see Civil Code, § 1953 before using) in the manner specified in a written commercial lease between the parties. (Name): was served on behalf of all defendants who signed a joint written rental agreement. Information about service of notice on the defendants alleged in item 7f is stated in Attachment 8c. Proof of service of the notice in item 7a is attached and labeled Exhibit 3. Page 2 0f 3 oy 88 oe COMPLAINT—UNLAWFUL DETAINERPLAINTIFF (Name): ANGELO WILSON CASE NUMBER: DEFENDANT (Name): PHILLIP GARCIA. Plaintiff demands possession from each defendant because of expiration of a fixed-term lease. oo 10. LJ tthe time the 3-day notice to pay rent or quit wes served, the amount of rent due was $ eeEet The fair rental value of the premises is $ 9.04 * per day. for the purpose of this action (1 Defendants continued possession Is maticious, and plaintiff is entited to statutory damages under Code of Civil Procedure section 1174(b}. (State specific facts supporting 2 claim up to $600 in Attachment 12.) [} Awitten agreement between the parties provides for attomey fees, Defendant's tenancy is subject to the local rent cantrot or eviction control ordinance of (city or county, title of ordinance, and date of passage): : The Residential Rent Stabilization and Arbitration Ordinance of the City and County of San Francisco, State of California, original ordinance number 276-79, effective June 13, 1979, Chepter 37 of the San Francisco Administrative Code, as amended. Plaintiff has met all applicable requirements of the ordinances 15. [J . other allegations are stated in Attachment 16. 16. Plaintiff accepts the jurtsdictional lim, if any, of the courk. 17. PLAINTIFF REQUESTS a. possession af the premisas. t. EZT damages at the rate stated in item 14 from 'b. Costs Incurred in this Proceeding: (date): May 1, 2013 jor each day that c. [2] pastdue rent of $ defendants remain In possession through entry of judgment. d. [""] reasonable attorney ices, g CJ statutory damages up (0 $600 for the conduct alleged in item 12. e forfelture of the agreement h other (specify): Such other relief that is proper and just Number of pages attached (specify): 5 UNLAWFUL DETAINER ASSISTANT (Bus, & Prof. Code, §§ 8400-6415) didnot [—] id for compensation give advice or assistance 19. (Complete in all cases.) An unlawtul detainer assistant pay from an unlawful detainer assistant, state:) with this form. (If plaintiff has received any. ‘help or advice ior, a, Assistant's name: ©. . Telephone No,: b, Street address, city, and zip code: 4. County of registration; e, Reglstration No,: Expires on (date): Date; May ¢ , 2013, / > ( om, MICHAEL RAIFSNIDER (ct: (TYPE OR PRINT NAME) 77 SOMATURE OF PLAINTIFF | Pee COMPLAINT—UNLAWFUL DETAINER iEXHIBIT BLee CUD-15-645240 1 | MICHAEL RATFSNIDER_ oo ee ‘100110 FE ‘ oor ? |Igan Francisco, CA 94108 3 || Telephone 415/398-9001 4 At for Plaintiff WILSON 4 a 6 SUPERIOR COURT OF CALIFORNIA > COUNTY OF SAN FRANCISCO _ 8 LIMITED JURISDICTION a CIVIL NO. CUD-13-645240 10 || ANGELO WILSON, ’ tom PLAINTIFF ANGELO WILSON’S 2 we } So i '3 || PHILLIP GARCIA, DOES 1 to 25, _ 2 ~ 4 | De } ce 6 ee PROPOUNDING PARTY: | Defendant PHILLIP GARCIA o a : NDING PARTY: "Plaintiff ANGELO WILSON s SET NUMBER: ONE 19 : - Plaintiff ANGELO WILSON to defendant’s Form Interrogatories - General, as follows:| ot ce a 22 1.0 Identity of Persons Answering These ntrrvgstoris a : My atom Mitel Raine, nd my nephew Shown ot | Se ee a 2 16 : a7 Le 8tatory 2.2: February 11, 1957, Kentucky. : 2.5: 1675 Hayes Street, San Francisco, California 94117, 6: San Francisco Department of Public Works, 161 Erie Street, San esp 01 m Interr ry 2. :Obccion, inelevant nd not reasonsbe cleus ned tothe 6 Hct wie ici Without waiver, | painted thom Weshington High School in 1975, ig a : Not L. 2: Not applicable. y 7.3: Not applicable. 24 5 » Form Interrogatory 9.1: Yes. (a) Attorney's fees and court costs. (b) These damages 26 texas pro the pron ofthe Nae 0 Tomnatin of omc anv coined 27 date. (c) Approximately $10,000 to date. (d) Michael Raifsnider. 28 PLAINTIFF ANGELO WILSON’S | espoused TO FORM INTERROGATORIES - 1 GENERAL. CUD-13-645240|, the undersigned, declare: ‘am over the age of eighteen years, employed in the City and County of San Francisco, State of California, and not a party tothe within action, My business address is 109 Geary Street, Fourth Foor, San Francisco, California 94108. Oe eee are Oe lorig eme PLAINTIFF ANGELO WILSON’S prepaid, soc placing hc mune ia the Usted Sina i, ade Benjamin Martin, Esq. Law Offices of Benny Martin 564 Market Steet, Suite 321 : San Francisco, California 94104 : | declare under penalty of perjury under the laws of the State of California that the foregoing is PROOF OF SERVICE BY PERSONAL DELIVERYpat : |, the undersigned, state and declare as follows: : Tam the plaintiff inthis action. Ihave read the foregoing: . RESPONSES TO FORM INTERROGATORIES - GENERAL 6 kotha ste cae ht te cone a acre ov a true and correct and that this declaration was executed on the date below. - nome Alef a ANGEL! = 26 nil : : ; : | PLAINTIFF ANGELO WILSON'S RESPONSES TO FORM INTERROGATORIES - GENERAL D eeeOo 3.0 oO 2.14 Atthe time of the INCIDENT were you acting as an agent or employee for any PERSON? If so, state: (a) the name. ADDRESS, and telephone number of that PERSON: and (b) a deseription of your duties 2.12 At the time of the INCIDENT did you or any other person have any physical, emotional, or mental disability or condition that may have contributed to the occurrence of the INCIDENT? If so, for each person state: (a) the name, ADDRESS, and telephone number; (b) the nature of the disability or condition; and (c) the manner in which the disability or contributed to the occurrence of the INCIDENT. condition 2.13 Within 24 hours before the INCIDENT did you or any person involved in the INCIDENT use or take any of the following substances: alcoholic beverage, marijuana, or other drug or medication of any kind (prescription or not)? If 80, for each person state: (a) the name, ADDRESS, and telephone number; (b) the nature or description of each substance; (c) the quantity of each substance used or taken; (d) the date and time of day when each substance was used or taken; (e) the ADDRESS where each substance was used or taken; (f) the name, ADDRESS, and telephone number of each person who was present when each substance was used or taken; and (g) the name, ADDRESS, and telephone number of any HEALTH CARE PROVIDER who prescribed or furnished the substance and the condition for which it was prescribed or furnished. General Background Information—Business Entity 3.1 Are you a corporation? If so, state: (a) the name stated in the current articles of incorporation; {b) all other names used by the corporation during the past 10 years and the dates each was used; (c) the date and place of incorporation; (d) the ADDRESS of the principal place of business; and (e) whether you are qualified to do business in California. 3.2 Are you a partnership? If so, state: (a) the current partnership name; (b) all other names used by the partnership during the past 10 years and the dates each was used; (c) whether you are a limited partnership and, if so, under the laws of what jurisdiction; (d) the name and ADDRESS of each general partner; and (e) the ADDRESS of the principal place of business. 3.3 Are you a limited liability company? If so, state: (a) the name stated in the current articles of organization; (b) all other names used by the company during the past 10 years and the date each was used; (c) the date and place of filing of the articles of organization; (d) the ADDRESS of the principal place of business; and {e) whether you are qualified to do business in California. oO oO oO O DISC-001 [1 34 Are you a joint venture? If so, state: (a) the current joint venture name; (b) all other names used by the joint venture during the past 10 years and the dates each was used; (c) the name and ADDRESS of each joint venturer, and (d) the ADDRESS of the principal place of business. 3.5 Are you an unincorporated association? If so, state: (a) the current unincorporated association name; (b) all other names used by the unincorporated association during the past 10 years and the dates each was used; and (c) the ADDRESS of the principal place of business. 3.6 Have you done business under a fictitious name during the past 10 years? If so, for each fictitious name state: (a) the name; (b) the dates each was used; (c) the state and county of each fictitious name filing; and (d) the ADDRESS of the principal place of business. 3.7 Within the past five years has any public entity regis- tered or licensed your business? If so, for each license or registration: (a) identify the license or registration; (b) state the name of the public entity; and (c) state the dates of issuance and expiration. 4.0 Insurance 4.1 Atthe time of the INCIDENT, was there in effect any policy of insurance through which you were or might be insured in any manner (for example, primary, pro-rata, or excess liability coverage or medical expense coverage) for the damages, claims, or actions that have arisen out of the INCIDENT? If so, for each policy state: (a) the kind of coverage: (b) the name and ADDRESS of the insurance company; (c) the name, ADDRESS, and telephone number of each named insured; (a) the policy number; (e) the limits of coverage for each type of coverage con- tained in the policy; (f) whether any reservation of rights or controversy or coverage dispute exists between you and the insurance company; and (g) the name, ADDRESS, and telephone number of the custodian of the policy. 4.2 Are you self-insured under any statute for the damages, claims, or actions that have arisen out of the INCIDENT? If 80, specify the statute. 5.0 [Reserved] 6.0 Physical, Mental, or Emotional Injuries 6.1 Do you attribute any physical, mental, or emotional injuries to the INCIDENT? (If your answer is “no,” do not answer interrogatories 6.2 through 6.7). 6.2 Identify each injury you attribute to the INCIDENT and the area of your body affected. DISC-O57 FRev- January 7, 2008] FORM INTERROGATORIES—GENERAL Page 3 0f 8EXHIBIT C1 | DAVID A. SMYTH, SBN 058339 Attorney at Law 2 || 3478 Buskirk Ave., #1000 Pleasant Hill, CA 94523 3 || Tel: 925/933-4541 Fax: 925/932-7077 4 || dsmyth2_@hotmail.com 5 || Attorney for Defendant ANGELO WILSON 6 7 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION 10 11 }f In re: CHAPTER 7 BK CASE NO. 15-30483 HLB ADV. PRO. NO. 15-03064 HLB 12 || ANGELO WILSON, 13 Debtor. / 14 || PHILLIP GARCIA, 15 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16 || vs. DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTIONS TO AMEND, 17 | ANGELO WILSON, FOR SUMMARY JUDGMENT AN FOR RELIEF FROM THE 18 AUTOMATIC STAY Hearing - 19 Date: 3/16/17 Time: 2:00p.m. 20 Ctrm: 19 450 Golden Gate Ave., 16 Floor 21 San Francisco, CA The Honorable Hannah L. Blumenstiel 22 Pre Trial ANO/T 23 Trial 5/31/17 24 Defendant. / 25 INTRODUCTION 26 Each of the plaintiff's three motions set for March 16, 2017 should be denied. 27 The plaintiff requests relief from the automatic stay alleging that Angelo Wilson, through 28 || his attorney Dana Tom, is continuing to defend the Superior Court lawsuit, Garcia vs. Wilson, Case 15-03064 Doc#65 Filed: 03/01/17 ae 03/01/17 14:36:29 Page 1 of 6Case Case No. CGC 14-53860, when in fact Attorney Tom is now only defending the defendant’s mother, Carrie Wilson, in said lawsuit which is set for trial on March 27, 2017. All parties understand that Angelo Wilson is no longer a defendant in that case. The plaintiff, (hereinafter referred to as “Garcia”), alleges that the defendant (hereinafter referred to as “Wilson’’), committed fraud on the Superior Court and on the plaintiff when Wilson alleged that he had authority to file the unlawful detainer lawsuit, CUD 13-645240, as the landlord for his parents property situated at 1665 Hayes Street, San Francisco, CA 94117. There is no dispute that Wilson’s parents, the owners of the property, permitted Wilson full discretion to manage the property and evict tenants. The plaintiff's attorney equates lack of specific instructions with lack of authority. The plaintiff alleges that Wilson failed to schedule an “under market rate oral lease.” This “lease” was Wilson’s agreement with his mother as to the rent that he would pay at his parents’ Hayes Street property. It was a “tenancy at will,” which cannot be assigned and which has no value. The plaintiff alleges that the defendant’s major obligation in the bankruptcy, the attorney fees owing to Garcia based upon Wilson’s unsuccessful attempt to evict Garcia, was fraudulently listed as a “business debt” rather than a consumer debt. However, it is an obvious business debt since the parties’ dealings did not involve Garcia providing goods and services to Wilson and his parents. I. PLAINTIFF’S MOTION TO REVOKE THE DEBTOR/DEFENDANT’S DISCHARGE MUST BE DENIED BECAUSE IT WAS FILED MORE THAN ONE YEAR AFTER THE CASE WAS DISCHARGED AND CLOSED The defendant received his discharge in the underlying bankruptcy, Case No. 15-30483, on July 28, 2015 and the case was closed the following day on July 29, 2015. The plaintiff first raised the issue of revocation of discharge on January 31, 2017, Docket Entry No. 49, more than one year after the bankruptcy was discharged and the case closed. The one year time limit is jurisdictional and cannot be tolled. See Elliott v. Weil (In re Elliott), 529 B.R. 747, 752 - 754 (9 Cir. BAP 2015) and Car Care Ctr. of Crystal Lake, Ltd. v. Miller (In re Miller), 336 B.R. 408, 15-03064 Doc#65 Filed: 03/01/17 ee 03/01/17 14:36:29 Page 2 of 6wv Case 410-411 (U.S. Bk. Ct., E.D. Wisconsin 2005). I. PLAINTIFF’S SECOND CAUSE OF ACTION IN HIS PROPOSED THIRD AMENDED COMPLAINT DESCRIBES NO INCOMPLETE OR FALSE STATEMENTS IN SUPPORT OF HIS MOTION TO REVOKE THE DEBTOR/DEFENDANT’S DISCHARGE The plaintiff's second cause of action in his proposed Third Amended Complaint (Exh. A, Pgs. 9 & 10, Docket Entry No. 55-1, 2/17/17), states only bare conclusions that the defendant made false and/or incomplete statements in his schedules and statement of financial affairs. This is not sufficient, even under the modern rules regarding pleadings. ServiceLink NLS, LLC vy. Cooper Castle, LLC 2017 U.S. Dist. LEXIS 13505 (U.S. Dist. Ct. Nev. 1/27/17). THE DEBTOR/DEFENDANT'S FAILURE TO SCHEDULE HIS “BELOW MARKET RATE” ORAL LEASE WITH HIS MOTHER WAS NOT A FRAUDULENT OMISSION The “under market rate lease” that the plaintiff refers to is the agreed rent that the defendant paid his mother to live in her building. (Exh. C, Pg. 70, In. 24 and Pg. 71, In. 3, Docket Entry No. 55-1 2/17/17( (Exhibit page numbers are in red.) The arrangement described above is a “tenancy at will,” which cannot be assigned. McLeran vy. Benton (1887) 73 Cal. 329, 339. While it could initially be considered “property of the estate” under 11 U.S.C. §542, it has no value. Neither an attorney nor a layman would view this as an asset and most attorneys would not list it in a bankruptcy. THE MOST REASONABLE CLASSIFICATION OF WILSON’S DEBTS ARE AS “BUSINESS DEBTS” The defendant scheduled two debts, $9000 to the IRS and $42,500 owed to Garcia. Wilson testified in his deposition and in his declaration in response to this motion, that he filed the unlawful detainer complaint in the Superior Court as the acting manager of his parents’ real property. As explained in the following section. Wilson had a right to file the unlawful detainer action as the (implied) agent for his parents, the owners of the property. Wilson undertook this 15-03064 Doc#65 Filed: 03/01/17 ae 03/01/17 14:36:29 Page 3 of 6Case roll as a son and because his parents had helped him financially in the past. (Exh. C, Pg. 68, Ins. 13 - Pg. 69, In. 2, Docket Entry No. 55-1 2/17/17) The obvious purpose of a lease or rental is not to provide the owner/landlord with goods or services but rather it is a common business transaction the purpose of which, from the owner/landlord’s perspective, is to generate money for the owner. This fits the definition of a ‘business debt.” Bushkin v. Singer (n re Bushkin), 2016 Bankr. LEXIS 2688, Pgs. 16 - 18 (9" Cir. BAP 2016). Even if a legal argument could somehow be made to characterize this as a consumer debt, it was not a deliberately false/fraudulent statement to classify this as a “business debt.” Vv. NEITHER WILSON NOR HIS PARENTS HAVE EVER ALLEGED THAT WILSON WAS NOT AUTHORIZED TO MANAGE THE PROPERTY OR TO BRING THE UNLAWFUL DETAINER LAWSUIT Wilson managed the property at a time when his father was terminally ill and his mother was understandably focused on her husband’s health. (Exh. C, Pg. 68, Ins. 2 - 7, Docket Entry No. 55-1 2/17/17) Wilson and his parents understood that Wilson would make all the decisions regarding management of the property and evicting tenants. (xh. C. Pg. 68 In 13 - Pg. 69, In 2. Docket Entry No. 55-1 2/17/17) Under this arrangement. Wilson was an implied agent. Thayer v. Pacific (1961) 55 Cal. 2d 430, 438. Wilson had the authority to file the unlawful detainer lawsuit even though he was not on title to the property. National Reserve Co. v. Metropolitan Trust Co. (1941) 17 Cal. 2d 827, 831 - 834. Most importantly, no party has ever claimed in any proceeding that Wilson was not authorized to act as the manager of the property or was not authorized to bring the unlawful detainer action. No party is making such a claim to gain advantage or avoid liability in the Superior Court or in any proceeding. There was no intent to defraud. Therefore, no allegation of fraud can be made under 11 U.S.C. §523(a)(2). See Citibank ($.D.) N.A. v. Eashai (In re Eashai) 87 F. 3d 1082, 1086 - 1087 (9" Cir 1995) for elements under 11 U.S.C. §523(a)(2). Mf df 15-03064 Doc#65 Filed: 03/01/17 a 03/01/17 14:36:29 Page 4 of 6Case VI. THE DEBTOR/DEFENDANT DID NOT FRAUDULENTLY OMIT THE FACT THAT THE PLAINTIFF GARNISHED HIS CHECKING ACCOUNT EIGHT MONTHS BEFORE THE BANKRUPTCY The plaintiff accuses the defendant of fraudulently failing to list the garnishment of his checking account in August 2014. The lawsuit was mentioned in Item 5 of the statement of financial affairs and the levy on the defendant’s bank account was disclosed in Item 11. The garnishment should have also been listed in Item 5 but it was not. The garnishment was for $2700.00 (Exh. C, Pg. 5, In. 5, Docket Entry No. 55-1 2/17/17) and was too old to be returned to the estate as a preference. THE DEBTOR/DEFENDANT WAS LEGALLY ENTITLED TO LIST HIS FOUR CHILDREN WHO STAYED WITH HIM AS DEPENDENTS At the time the defendant filed bankruptcy, he financially supported his four children and they could, and would, stay with him anytime that they so desired. Under these circumstances, it was proper to list them as dependents who resided with the debtor. See In re De Bruyn Kops 2012 Bankr. LEXIS 775 (Bk. Ct. Idaho 2012). VIL. THE PLAINTIFF IS NOT ENTITLED TO RELIEF FROM THE DISCHARGE INJUNCTION AT THIS TIME In the case at bar, the defendant obtained his discharge on July 28, 2015. On that date, the automatic stay terminated and was replaced by the “discharge injunction.” See Henry and Assoc. Home Equity Servs. (In re Henry) 266 B.R. 457, 473 (Bk. C.D.Cal 2001) “The discharge injunction is permanent. It survives the bankruptcy case and applies forever with respect to every debt that is discharged... The permanency « of the discharge injunction contrasts with the temporary character of the automatic stay.” See In re Henry, supra. Apart from revoking a discharge in a proper case, the Court does not have the power to modify the discharge injunction. See Ruvacalba v. Munoz (In re Munoz) 287 B.R. 546, 553 (9" Cir. BAP 2002) In addition, even if the plaintiffs motion has been made before the discharge, there 15-03064 Doc#65 Filed: 03/01/17 eee 03/01/17 14:36:29 Page 5 of 6Case would be no reason to grant a relief from stay. The defendant is no longer defending the Superior Court lawsuit; he has no need to defend because of his bankruptcy. Garcia was deposed on February 28, 2017 by Attorney Dana Tom. Ms. Tom is still defending Carrie Wilson, the defendant’s mother, who has not filed bankruptcy. This is a common scenario. A state court trial man proceed against associates of a bankrupt debtor who are not in bankruptcy. See Practice Service Corp. v. HCA Health Services (1995) 37 Cal. App. 4" 1003, 1006 - 1007. THE FACTS IN THIS CASE DO NOT JUSTIFY THE REVOCATION OF THE DEFENDANT’S DISCHARGE The denial of a debtor’s discharge is an “extraordinary remedy” reserved only for debtors who deliberately and fraudulently file false or misleading or incomplete information with the Bankruptcy Court with the intent to defraud creditors. See In re Bowman 173 B.R.922, 924 - 926 (9" Cir. BAP 1994). No such conduct has been shown by the defendant in the case at bar. CONCLUSION The debtor/defendant’s discharge cannot be revoked because the plaintiff first sought to revoke the discharge more than one year after it was granted and the underlying bankruptcy case closed. Apart from this, the plaintiff has presented no evidence that would justify the revocation of the debtor/defendant’s discharge. And, the plaintiff's motion to amend his complaint to allege fraud under 11 U.S.C. §523(a)(2) should be denied. He has not shown that the defendant was not authorized to file the unlawful detainer complaint against Garcia. The plaintiff has not shown that any party is, or has, alleged a lack of authorization as a defense or for their benefit. DATED: March 1, 2017 Respectfully submitted, is/ David A. Smyth DAVID A. SMYTH Attorney for Defendant ANGELO WILSON 15-03064 Doc#65 Filed: 03/01/17 eee 03/01/17 14:36:29 Page 6 of 6EXHIBIT DCase DAVID A. SMYTH, SBN 058339 Attorney at Law 3478 Buskirk Ave., #1000 Pleasant Hill, CA 94523 Tel: 925/933-4541 Fax: 925/932-7077 dsmyth2_@hotmail.com Attorney for Defendant ANGELO WILSON IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA. SAN FRANCISCO DIVISION In re: CHAPTER 7 BK CASE NO. 15-30483 HLB ADV. PRO. NO. 15-03064 HLB ANGELO WILSON, Debtor. / PHILLIP GARCIA, Plaintiff, DECLARATION OF ANGELO WILSON IN SUPPORT OF vs. DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTIONS TO AMEND, ANGELO WILSON, FOR SUMMARY JUDGMENT AN FOR RELIEF FROM THE AUTOMATIC STAY Hearing - Date: 3/16/17 Time: 2:00p.m. Ctrm: 19 450 Golden Gate Ave., 16 Floor San Francisco, CA The Honorable Hannah L. Blumenstiel Pre Trial ANO/T Trial 5/31/17 Defendant. / I, Angelo Wilson, declare under penalty of perjury as follows: 1. Lam the debtor in the underlying bankruptcy and the defendant in this adversary proceeding. 2. At the time that I filed bankruptcy I was newly divorced. As noted on my 15-03064 Doc#66 Filed: 03/01/17 ae 03/01/17 14:38:42 Page 1 of 2Case Schedules I and J, I paid $1515/Mo. child support and $800/Mo. for child care and education expenses. I have four children. At the time I filed bankruptcy, one of my children stayed primarily with me and the other three children stayed primarily with their mother, my ex-wife. Those three children could, and would, occasionally stay with me. 3. At the time I filed this bankruptcy, I was residing at a property owned by parents for an agreed rent of $1700/Mo. That rental amount was below fair market value. 4. At the time I filed the unlawful detainer complaint against Phillip Garcia (hereinafter referred to as “Garcia”), which is the subject of this adversary proceeding, I was acting as the manager of my parents’ property where Garcia was a tenant. | exercised my own discretion concerning operations of the property, renting units and evicting tenants with my parents’ knowledge but without their explicil instructions. My father was terminally ill and my mother was understandably concerning primarily with taking care of my father. 5. [informed my bankruptcy attorney that Attorney Benny Martin had garnished my bank account eight months before the bankruptcy was filed under Garcia’s judgment in the above mentioned unlawful detainer action. 6. Since | filed bankruptcy in 2015, I have not been defending the most recently filed superior court case, Garcia vs. Wilson, Case No. CGC 14-53860, which is now set for trial on March 27, 2017. My former attorney in this most recently filed case, Dana Tom, continues to defend my mother. My mother has not filed bankruptcy and she must still defend herself. Executed under penalty of perjury ths 1“ day of March, 2017 at San Francisco, California. /s/ Angelo Wilson ANGELO WILSON Defendant 15-03064 Doc#66 Filed: 03/01/17 ee 03/01/17 14:38:42 Page 2 of 2EXHIBIT EnN main it, cuir EDWARD J. EMMONS, CLERK U.S. BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA HANNAH L. BLUMENSTIEL U.S. Bankruptcy Judge UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA In re: Case No. 15-30483 HLB ANGELO WILSON, Chapter 7 Debtor. ) ) ) ) ) ) PHILLIP GARCIA, ) Adv. Proc. No. 15-3064 HLB ) Plaintiff, ) ) ve ) ) ANGELO WILSON, ) ) ) Defendant. ORDER DENYING MOTION FOR SUMMARY JUDGMENT This adversary proceeding came before the court on March 16, 2017 for a hearing on Plaintiff Phillip Garcia’s Motion for Summary Judgment (the “Motion”). Appearances were as noted on the record. For the reasons stated in the court’s March 15, 2017 tentative ruling, the Motion is DENIED. **END OF ORDER** he 4 AONAA Dank FA Clad NOMI | Cataradd NOMTIMTNO91-9 Dana dt AtoCourt Service List [None] Rraen IE NONGA Rant 7A CilAd: NOMA Crtarad NOMATMAT NOIR Dann Ako