Harbans v. Santa Cruz County Bank (In re Grewal)

499 B.R. 736
CourtUnited States Bankruptcy Court, N.D. California
DecidedSeptember 30, 2013
DocketCase No. 10-60800; Adversary No. 11-5067
StatusPublished

This text of 499 B.R. 736 (Harbans v. Santa Cruz County Bank (In re Grewal)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harbans v. Santa Cruz County Bank (In re Grewal), 499 B.R. 736 (Cal. 2013).

Opinion

Chapter 7

MEMORANDUM DECISION AND ORDER FOLLOWING TRIAL

Arthur S. Weissbrodt, U.S. Bankruptcy Judge

This matter came before the Court for a trial on claims asserted by Plaintiffs Har-bans and Manjit Grewal (“the Grewals”)1 against Defendant, Santa Cruz County Bank (“SCCB”). The Grewals were represented by attorney William Healy, and SCCB was represented by attorney William Thomas Lewis.

At trial, each side called witnesses to testify. The Grewals testified on their own behalf. Debra Crawford, Rich Dun-ham, Jorge Reguerin, and Susan Chandler testified on behalf of SCCB. The testimony of Jayant Trivedi was entered by deposition.

After considering the parties’ evidence and arguments of counsel, the Court finds and concludes that SCCB’s post-petition possession of the refrigerator and water cooler violated the stay (and possibly also the discharge injunction), but no other violation of the stay or discharge injunction was proven.

This Memorandum Decision constitutes the Court’s findings of fact and conclusions of law, pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.

I. SUMMARY

Facing a balloon payment Mr. Grewal could not afford, Mr. Grewal successfully refinanced Mr. Grewal’s loan on a gas and service station located in Gilroy, California with SCCB in August of 2007. SCCB placed liens against both the real property and against the business, Mr. Grewal’s wholly owned corporation, All American Gas and Auto, Inc. (hereafter, “All American”), as collateral for this loan.

On September 29, 2010, SCCB foreclosed, and changed the business’ locks. The Grewals filed a personal bankruptcy petition on October 18, 2010. At that time, certain property, including a smog machine, was located inside the business. The Grewals now contend that the property left inside the business was the personal property of Mr. Grewal, not the property of All American, and that SCCB’s failure and/or refusal to return that property to Mr. Grewal violated the automatic stay and discharge injunction, 11 U.S.C. §§ 362 and 524. SCCB contends the property belonged to All American, not Mr. Grewal, [739]*739and that SCCB received insufficient notice of what property was included in the bankruptcy case due to the schedules filed by the Grewals.

The issue for this Court to determine is whether SCCB committed a violation of the automatic stay (11 U.S.C. § 362) or of the discharge injunction (11 U.S.C. § 524).

II. FINDINGS OF FACT

A. Mr. Grewal and Grewal Shell

In May 2000, Mr. Grewal purchased Ellis & Larry’s Shell, a gas station business, located at 8395 Monterey Street in Gilroy, California, from Larry Nardinochhi for $155,000. Mr. Grewal began to do business at that location as “Grewal Shell.” The building consisted of a gas station, store, and service bay for doing automotive work. As part of the purchase, Mr. Gre-wal also took possession of the business’ equipment, fixtures, and inventory, including an old smog machine. At the time, it was Mr. Grewal’s intention to take what Mr. Grewal perceived to be a troubled business, turn it around, and then sell the business so that Mr. Grewal could finance the purchase of a separate business closer to Mr. Grewal’s home in Milpitas, California.

In 2003, Mr. Grewal replaced the old smog machine that was purchased with the business with a new smog machine. The old smog machine was donated to a mechanic’s school in 2003, and Mr. Grewal leased a new smog machine from BWC Equipment Leasing. The new smog machine consisted of three components: a dynamometer, cooling fan, and computer unit. The dynanometer was a large device that sat in a concrete bay in the ground, where a car could park its tires on top of it. The dynamometer was not attached or bolted to the structure. The cooling fan and computer unit were separate devices, and could be moved around. This lease included a $1 buyout provision upon completion of the lease payments; it is unclear from the evidence whether or when the buyout occurred, or under what circumstances it could occur in the future.2

B. Formation of All American and Purchase of Real Property

In 2004, Shell Corporation contacted Mr. Grewal and informed him that Shell would be closing the gas station, and Mr. Grewal could either purchase the real property for $1,000,000 or leave. Mr. Grewal was given 45 days to decide. Grewal Shell had not posted a profit since 2002. Mr. Grewal decided to purchase the gas station, including the associated real property, and formed a corporation, All American, in March 2004 to effectuate the purchase. In order to finance the purchase, Mr. Grewal obtained a hard money loan from Coast Capital. Escrow closed in June 2004.

Mr. Grewal testified that in forming All American, it was Mr. Grewal’s intent to use All American as a real estate holding company. In this regard, Mr. Grewal intended that All American would hold the real estate as well as the equipment needed for the gas station, such as the underground tanks and pumps.' According to Mr. Grewal, he intended that the smog check and mechanic’s businesses would remain separate.

[740]*740Upon formation of All American, Mr. Grewal transferred a number of assets to the corporation. Mr. Grewal’s accountant, Jayant Trivedi, via deposition entered into evidence, testified that it was Mr. Trivedi’s understanding that all assets of Grewal Shell were transferred to All American. According to Mr. Trivedi, it would have been Mr. Trivedi’s practice to ask Mr. Grewal if any assets were not to be transferred to All American.

From the formation of All American through its demise in 2010, All American maintained insurance on the business and equipment in All American’s name. No separate policy was created to cover a different business operating at that location; the only policies offered into evidence were the old policy for Grewal Shell, then the new policies for All American. Mr. Grewal testified that Mr. Grewal believed that because Mr. Grewal was a mechanic, Mr. Grewal’s personal property was covered under the insurance agreement. However, the policies were business policies- — -renewed from year to year — which only provided coverage to All American for its building and “business personal property.” Mr. Grewal was not a named insured or an additional insured. There was no expert testimony as to whether Mr. Gre-wal’s personal property was covered under the insurance agreement.

All American also filed 571-L Business Property Statements with the County of Santa Clara from inception to termination; no other Business Property Statements were filed by Mr. Grewal for any other business entity. SCCB’s witness, Rick Dunham, CPA, testified based on Mr.

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499 B.R. 736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harbans-v-santa-cruz-county-bank-in-re-grewal-canb-2013.