Gateway One Lending & Finance LLC v. Raziyan (In re Raziyan)

501 B.R. 387, 2013 WL 6144798, 2013 Bankr. LEXIS 4947
CourtUnited States Bankruptcy Court, C.D. California
DecidedNovember 19, 2013
DocketBankruptcy No. 2:12-bk-18736-TD; Adversary No. 2:12-ap-01708-TD
StatusPublished

This text of 501 B.R. 387 (Gateway One Lending & Finance LLC v. Raziyan (In re Raziyan)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gateway One Lending & Finance LLC v. Raziyan (In re Raziyan), 501 B.R. 387, 2013 WL 6144798, 2013 Bankr. LEXIS 4947 (Cal. 2013).

Opinion

MEMORANDUM DECISION

THOMAS B. DONOVAN, Bankruptcy Judge.

On August 15, 2007, Platinum Auto Haus entered into a retail sales contract (Contract) for the purchase of a 2003 Mercedes Benz (VIN WDBLK70G53144109) with Defendant Sara Raziyan (Raziyan). Platinum Auto Haus immediately assigned the Contract to Gateway One Lending & Finance, LLC (Plaintiff). Pursuant to the Contract, Raziyan agreed not to sell, rent, lease, or transfer any interest in the car or the Contract without permission. Tr. Ex. 1, Contract, paragraph 2(b). She also agreed not to expose the car to misuse, seizure, confiscation, or involuntary transfer. Id. According to the Contract, Razi-yan was required to make monthly payments of $508.16 beginning September 14, 2007, through August 14, 2013. Raziyan failed to complete all of the monthly payments. She made her last payment to Plaintiff in February 2011. After this default, and without Plaintiffs knowledge or permission, Raziyan did not return the car to Plaintiff but instead turned over possession of the car to her husband, Ali Lavas-sani, from whom she was separated; they were living separately and in the process of divorce.

Upon Raziyan’s default, Plaintiff attempted to contact Raziyan to recover the car. Raziyan did not respond constructively or helpfully. Raziyan acknowledged at trial that she did not return the car to Plaintiff, then or later, but turned it over to her husband who worked in the “car business” and that she expected him to “take care of’ the car for her.

Although Plaintiff recovered the car later after considerable investigative effort and expense, Plaintiff has not been paid the defaulted balance and remains unable to resell the car because California DMV records no longer reflect Plaintiffs lien. [390]*390Plaintiff discovered that its registered lien on the car’s title had been improperly removed from California DMV records; title to the car was inexplicably transferred to a third party without Plaintiffs knowledge or consent. See Tr. Ex. 4. Plaintiffs evidence reasonably established that it suffered proximate economic loss of about $20,000 due to Defendant’s non-payment of the Contract balance, her unauthorized transfer of possession, and the unexplained transfer of title to a third party. The circumstantial evidence suggests that Ra-ziyan’s husband, or an agent her husband may have enlisted, participated in the unauthorized transfer of title.

On March 12, 2012, Raziyan filed a voluntary chapter 7 petition. On May 16, 2012, Plaintiff timely filed an adversary complaint seeking an exception to discharge under 11 U.S.C. § 523(a)(6) against Raziyan. The complaint alleges that Razi-yan made an unauthorized transfer of the car legally owned by the Plaintiff to a third party, Raziyan’s husband, resulting in damages to the Plaintiff of $20,000. The trial was held on September 26, 2013, and the matter was taken under advisement based on the testimony and documentary evidence, both of which were minimal.

Pursuant to 11 U.S.C. § 523(a)(6), a debt is nondischargeable by an individual when such debt is “for willful and malicious injury by the debtor to another entity or to the property of another entity....” In order for a debt to be non-dischargeable under § 523(a)(6), the bankruptcy court must find the injury inflicted by defendant was both willful and malicious. Matter of Ormsby, 591 F.3d 1199, 1206 (9th Cir.2010). “The Supreme Court in Kawaauhau v. Geiger (In re Geiger), 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998), made it clear that for section 523(a)(6) to apply, the actor must intend the consequences of the act, not simply the act itself.” Ormsby at 1206, citing Geiger at 60, 118 S.Ct. 974. “The Debtor is charged with the knowledge of the natural consequences of his [or her] actions.” Ormsby at 1206 [citations omitted]. “In addition to what a debtor may admit to knowing, the bankruptcy court may consider circumstantial evidence that tends to establish what the debtor must have actually known when taking the injury-producing action.” Id. See also Carrillo v. Su (In re Su) 290 F.3d 1140, 1146 n. 6 (9th Cir.2002).

A willful injury requires “a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Geiger at 61, 118 S.Ct. 974. The willful requirement of 523(a)(6) is met when it is shown either (a) that the debtor had a subjective intent to cause harm or (b) knowledge that harm is substantially certain to occur as a result of his [or her] conduct. Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1208 (9th Cir.2001). In re Su at 1144-45 n. 3.

The next step of the inquiry is whether the injury was “malicious.” “An injury is ‘malicious,’ as that term is used in Section 523(a)(6), when it is: (1) a wrongful act; (2) done intentionally; (3) which necessarily causes injury; and (4) is done without just cause and excuse.” Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1106 (9th Cir.2005).

Raziyan intended to inflict harm on Plaintiff. Plaintiffs loss was the result of a deliberate, intentional act on Raziyan’s part in transferring and abandoning the car to her husband in direct violation of her obligations to Plaintiff. Raziyan’s act was wrongful at best, done intentionally, and was, in this instance, the direct cause of Plaintiffs injury. These conclusions are based on the following reasons:

[391]*391Raziyan concedes that she turned the car over to her husband. She did so without the Plaintiffs knowledge or permission. Her conduct led directly to an egregious violation of Plaintiffs property rights. Her testimony regarding the reason for giving the car to her husband was vague and unpersuasive; essentially, she evaded her financial responsibility to Plaintiff by saying she knew that her husband was in the car business and thought he would “take care” of the car for her. The court infers from this evidence that Raziyan expected her husband to dispose of the car, but otherwise she disregarded any further responsibility to Plaintiff. Instead Raziyan sought the respite of chapter 7 bankruptcy and the hope of an easy discharge of her debt to Plaintiff.

Raziyan was required by the Contract with Plaintiff to return the car to the Plaintiff when she could not pay. Because Raziyan intentionally concealed the car from Plaintiff and instead gave the car to her husband without the Plaintiffs knowledge or permission after she defaulted on the Contract, she had to know that she was depriving Plaintiff of its property and Plaintiffs immediate right to possession of the car. She had to know that avoiding or delaying Plaintiffs recovery of the car would aggravate Plaintiffs economic loss resulting from her contractual default and that harm to Plaintiff was substantially certain to occur as a result of her conduct.

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Bluebook (online)
501 B.R. 387, 2013 WL 6144798, 2013 Bankr. LEXIS 4947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gateway-one-lending-finance-llc-v-raziyan-in-re-raziyan-cacb-2013.