Salehsari v. Aalam (In re Aalam)

538 B.R. 812
CourtUnited States Bankruptcy Court, C.D. California
DecidedFebruary 24, 2014
DocketCase No. : 1:09-bk-20792-VK; Adv. No.: 1: 10-ap-01533-VK
StatusPublished
Cited by5 cases

This text of 538 B.R. 812 (Salehsari v. Aalam (In re Aalam)) 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
Salehsari v. Aalam (In re Aalam), 538 B.R. 812 (Cal. 2014).

Opinion

MEMORANDUM DECISION

Victoria S. Kaufman, United States Bankruptcy Judge

Farhad Salehsari (“Salehsari” or the “Plaintiff’) is requesting a determination that, pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(6), obligations of Mahnaz Aalam (“Aalam”) and Mehdy Gharachehdaghy. (“Gharachehdaghy” and together with Aa-lam, the “Defendants”) to the Plaintiff are nondischargeable. The Court conducted the trial on February 24, 2014; the Plaintiff and the Defendants submitted trial briefs and post-trial briefs. Having considered the declarations of Salehsari, Aa-lam and Gharachehdaghy submitted for trial, the witnesses’ testimony at trial, the remainder of the evidentiary record, the parties’ legal memoranda, and the arguments of counsel, the Court will enter a judgment in part for the Defendants and in part for the Plaintiff, based upon the following findings of fact and conclusions of law made pursuant to Fed. R. Civ. P. 52(a), as incorporated into Fed. R. Bankr. P. 7052.

I. STATEMENT OF FACTS

On August 20, 2009, the Defendants filed a chapter 7 petition. On August 5, 2010, Salehsari filed a motion to vacate the Defendants’ discharge as to him only, because he did not receive proper notice of the Defendants’ bankruptcy petition. On September 22, 2010, the Court entered an order granting that motion.

On December 2, 2010, the Court entered an order granting Salehsari’s motion for relief from the automatic stay. This order authorized Salehsari to liquidate nondis-chargeable claims against the Defendants in state court.

On December 9, 2010, Salehsari initiated this adversary proceeding, alleging that the Defendants had fraudulently induced Salehsari into making a $250,000 loan and that the Defendants had forged his signature on applications for a contractor’s license, a contractor’s bond and the renewal of a contractor’s license.

A. Salehsari’s $250,000 Loan

Salehsari and Gharachehdaghy became acquainted while both were working on several construction projects: Salehsari as a construction superintendent/project manager and Gharachehdaghy as a plastering subcontractor.1 Before making the $250,000 loan now at issue, Salehsari had loaned approximately $30,000-$50,000 to Gharachehdaghy and $100,000 to a friend of Gharaehehdaghy’s. Both loans were unsecured, • loosely documented (at best) and repaid without incident. See Closing Argument, filed by the Plaintiff on March 24, 2014 [doc. 109], ¶¶3,4.

Either shortly before or after Salehsari made the $250,000 loan, he met Aalam at a party at the Defendants’ home. Declaration of Mahnaz Aalam (“Aalam Dec.”) ¶ 4; Declaration of Farhad Salehsari (“Saleh-sari Dec.”) ¶ 1. Although Salehsari contends that “the Defendants” made various promises and statements to him about the loan (see, e.g., Salehsari Dec. ¶¶ 1, 3, 6), on cross-examination, Salehsari admitted that he discussed the loan only with Gharacheh-daghy.

In June 2005, after meeting at the Defendants’ home in Tarzana, Salehsari and [817]*817Gharachehdaghy played tennis together at a property located on Brewster Drive in Tarzana (the “Brewster Property”). The Defendants had acquired the Brewster Property for approximately $1.8 million; Gharachehdaghy was renovating the Brewster Property. While at the Brewster Property, Gharachehdaghy and Saleh-sari agreed that Salehsari would loan $250,000 (the “Loan”) for the completion of a condominium construction project located at 6939-6941 Greeley Street (the “Greeley Project”). 6939 Greeley Street LLC (“6939 Greeley”) owned the Greeley Project; the Defendants owned 6939 Greeley.

Regarding the terms of the Loan, Saleh-sari represented that: (1) Gharachehdaghy asked him to make the Loan; (2) the Loan was to be repaid in one year with interest (Salehsari never testified to the specific interest rate that he anticipated); (3) Aa-lam would be the borrower; and (4) Ghar-achehdaghy promised that the Loan proceeds would be held as reserves, in a “safe and secure bank account which was to remain untouched.” Salehsari Dec. ¶¶2, 5. In contrast, Gharachehdaghy testified that: (1) Salehsari was eager to provide loans for real property projects and first raised the possibility of doing so; (2) Sa-lehsari demanded 20% interest, to which Gharachehdaghy agreed; (3) the Loan was to be made to 6939 Greeley; and (4) Ghar-achehdaghy never promised to hold the Loan proceeds untouched in a bank account. Declaration of Mehdy Gharacheh-daghy (“Gharachehdaghy Dec. ”) ¶¶ 4, 8, 11.

Salehsari stated that he decided to make the Loan because the Defendants appeared to be rich and prosperous, e.g., they had a beautiful home, and Gharachehda-ghy had told Salehsari that he bought the Brewster Property for all cash. Salehsari Dec-¶¶ 1, 3. As a result, Salehsari believed that the Defendants could easily repay the Loan. Id. ¶ 3. (The Brewster Property was, in fact, subject to a large mortgage, and Gharachehdaghy denied ever telling Salehsari that he paid all cash to acquire the Brewster Property. Gharachehdaghy Dec.\ 6.)

On June 20, 2005, Salehsari obtained a cashier’s check for $250,000 payable to 6939 Greeley (the “Cashier’s Check”). Plaintiffs Exhibit 1. According to Saleh-sari, although the parties agreed that Aa-lam would borrow the money, while Saleh-sari was in line at the bank to obtain the Cashier’s Check, Gharachehdaghy called and said that the Defendants’ lender wanted the check to be made out to 6939 Greeley. Salehsari Dec. ¶ 5. Gharachehdaghy, on the other hand, testified that he and Salehsari had agreed from the outset that the Loan would be made to 6939 Greeley. Gharachehdaghy Dec. ¶ 11. In any event, Salehsari gave the Cashier’s Check to Gharachehdaghy [Salehsari Dec. ¶ 5], and it was deposited in 6939 Greeley’s bank account [Aalam Dec. ¶ 5].

On June 21, 2005, the Plaintiff signed a typewritten “Loan Agreement and Promissory Note” between Salehsari, as lender, and 6939 Greeley, as borrower (the “Loan Agreement”). Plaintiffs Exhibit 2. The Loan Agreement originally had “6941 West Greeley, LLC” (which was not an existing legal entity) as borrower. Saleh-sari interlineated the Loan Agreement on the first page and the signature page to change the borrower to 6939 Greeley. (Gharachehdaghy testified that the inclusion of “6941 West Greeley, LLC” as the borrower in the Loan Agreement was a simple mistake.)

Aalam subsequently signed the Loan Agreement on behalf of 6939 Greeley. Aa-lam Dec. ¶ 5. Among other things, the Loan Agreement provided for a 20% interest rate and a lump sum repayment at the end of one year, i.e., in June 2006. Plain[818]*818tiff’s Exhibit 2. The Loan Agreement also states that the payment of the loan shall be made “by sending a check or other negotiable instrument made payable to Farhad Salehsari at the address set forth in Section L., below.” Although there is no Section L., the parties’ addresses are set out in Section K. Id. at 3.

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538 B.R. 812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salehsari-v-aalam-in-re-aalam-cacb-2014.