Professional Documents
Culture Documents
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JEREMY W. FAITH (State Bar No. 190647) MEGHANN TRIPLETT (State Bar No. 268005) GOODMAN FAITH, LLP 21550 Oxnard Street, Suite 830 Woodland Hills, California 91367 Telephone: (818) 887-2500 Facsimile: (818) 887-2501 E-mail: jfaith@goodmanfaith.com E-mail: mtriplett@goodmanfaith.com Attorneys for Elissa D. Miller, Chapter 7 Trustee UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA LOS ANGELES DIVISION
Plaintiff, (1) AVOIDANCE OF INTENTIONAL FRAUDULENT TRANSFER AND RECOVERY OF SAME ABACUS IT, INC., a California Corporation [11 U.S.C. 544, 548, 550; CAL. CIV. and JIRKA AMBROZ, an individual, CODE 3439.04; 3439.07]; Defendants. (2) AVOIDENCE OF CONSTRUCTIVE FRAUDULENT TRANSFER AND RECOVERY OF SAME [11 U.S.C. 544, 548, 550; CAL. CIV. CODE 3439.04; 3439.07]; (3) CONVERSION; (4) UNJUST ENRICHMENT; (5) ALTER EGO (6) INJUNCTIVE RELIEF; AND (7)TURNOVER OF PROPERTY OF THE ESTATE [11 U.S.C. 542];
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TO THE HONORABLE BARRY RUSSEL, UNITED STATES BANKRUTPCY JUDGE: Elissa D. Miller (Trustee or Plaintiff), solely in her capacity as the duly appointed and acting Chapter 7 trustee for the bankruptcy estate of Computer Czech, LLC (Debtor), respectfully complains and alleges as follows: I. 1. JURISDICTION AND VENUE
This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C.
151, 157 and 1334 as this is a core proceeding under 28 U.S.C. 157(b)(2)(A), (H) and (O) and to the extent any related claims are determined not to be a core proceeding, the Plaintiff consents to an entry of final judgment and orders by the Bankruptcy Court. Venue is proper in this District under 28 U.S.C. 1409(a), as this adversary proceeding arises under title 11 or arises in or relates to a case under title 11 which is pending in this District in that this proceeding arises in and is related to the Debtors bankruptcy case, which was commenced through the filing of a voluntary petition for relief under Chapter 7 of the Bankruptcy Code on June 25, 2011 (the Petition Date) pending in the Central District of California, Los Angeles Division as In re Computer Czech, LLC, Case No. . 2:10-bk-37453-BR. 2. This is an adversary proceeding filed pursuant to the Federal Rule of Bankruptcy
Procedure 7001(1) (a proceeding to recover money or property). 3. Plaintiff, as Trustee, has standing to bring this action under 11 U.S.C. 323, 542,
544, 548, and 550. 4. To the extent that the Plaintiff asserts claims under 11 U.S.C. 544, the Plaintiff is
informed and believes and based thereon alleges that there exists in this case one or more creditors holding unsecured claims allowable under 11 U.S.C. 502 or are not allowable under 11 U.S.C. 502(e), who can avoid the respective transfers as set forth below under California or other applicable law. II. 5. PARTIES
Plaintiff is the duly appointed, qualified and acting Chapter 7 Trustee for the
Debtors bankruptcy estate (Estate), and brings the claims asserted herein in that capacity. /// 2
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6.
Plaintiff is informed and believes that Defendant Abacus, IT, Inc. (Abacus) is a
California Corporation with its principal place of business in Los Angeles California. 7. Plaintiff is informed and believes that Defendant Jirka Ambroz (Ambroz) is an
individual residing in Los Angeles County, California. Plaintiff is informed and believes and alleges thereon that Ambroz is the president, CEO and majority shareholder of Computer Czech, Inc., is and was at all relevant times herein an insider, as that term is defined by Section 101(31) of the Bankruptcy Code (an Insider), of the Debtor. 8. At all times mentioned herein, a unity of interest and ownership existed between
the Debtor and Abacus and Ambroz, such that the separateness of these Defendants from the Debtor never existed. Plaintiff is further informed and believes and based thereon alleges that the Debtor failed to adhere to corporate formalities and that its corporate form should be ignored. 9. Adherence to the fiction of the separate existence of the individually named
defendant Ambroz as entities distinct from the Debtor and Abacus would permit an abuse of the corporate privilege and would sanction fraud and promote injustice. III. 10. GENERAL ALLEGATIONS
Plaintiff is informed and believes that Ambroz formed Abacus on May 12, 2011,
approximately one month prior to the Petition Date. 11. Plaintiff is informed and believes that Abacus and Ambroz has taken over the
Debtors operations and its assets without purchasing them from the Estate (the Transfer). These assets include the Debtors telephone numbers, business location, the Debtors contracts, the Debtors customer list and contacts, the Debtors software, inventory, intellectual properties (including, but not limited to concepts, trademarks and trade names), and equipment. 12. Plaintiff is informed and believes that on May 17, 2011, Ambroz sent an email to
the Debtors entire customer list announcing that [he] along with all of the best Computer Czech technicians, will be technicians and employees of Abacus IT, Inc. Computer Czech LLC has formally closed. . . and further, that Abacus IT ha[s] acquired the same phone numbers used by Computer Czech and [Ambrozs] personal cell remains the same to assist you with all your /// 3
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computer needs. Attached hereto as Exhibit 1 is a true and correct copy of the email announcement from Computer Czech LLC. 13. Abacus is answering the Debtors telephone number as Abacus IT and by all
accounts is carrying on business as if it were the Debtor. 14. Based on a preliminary analysis, the Debtors assets include but are not limited to:
(1) goodwill for the client list and a profitable operating business, (2) the Debtors entire business infrastructure; (3) accounts receivable, and (4) cash in the Debtors bank accounts; and (5) inventory. FIRST CLAIM FOR RELIEF Avoidance and Recovery of Intentional Fraudulent Transfers as to All Defendants [11 U.S.C. 544, 548, 550; Cal. Civ. Code 3439.04, 3439.07] 15. Plaintiff hereby realleges and incorporates by reference the allegations set forth in
Paragraphs 1 through 14 as though set forth in full. 16. The Transfer alleged in paragraph 14 is of the Debtors property. Plaintiff
specifically reserves the right to amend this Complaint to allege additional transfers which may become known after further investigation and discovery. 17. Plaintiff is informed and believes and based thereon alleges that the Transfer
occurred on or after May 12, 2011, within two (2) years before the Petition Date. 18. made: (a) (b) (c) with actual intent to hinder, delay, or defraud the Debtors creditors; for no consideration or for less than reasonably equivalent value; and at a time when the Debtor was insolvent and/or rendered insolvent as a Plaintiff is informed and believes and based thereon alleges that the Transfer was
result of the Transfer. 19. Plaintiff is informed and believes and based thereon alleges that the Transfer was
for the benefit of an insider of the Debtor. 20. Plaintiff is informed and believes and based thereon alleges that the Defendants
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21.
Plaintiff is informed and believes and based thereon alleges that the Transfer was
of substantially all of the Debtors assets. 22. Plaintiff is informed and believes and based therein alleges that the Debtor became
insolvent shortly after the Transfer was made or concurrent therewith. 23. Based on the foregoing, Plaintiff may avoid the Transfer and recover the
equivalent value for the Estate from the Defendants for whose benefit the Transfer was made pursuant to 11U.S.C. 544, 548 and 550, and California Civil Code 3439.04 and 3439.07. SECOND CLAIM FOR RELIEF Avoidance of Constructive Fraudulent Transfers Against All Defendants [11 U.S.C. 544, 548, 550; Cal. Civ. Code 3439.04, 3439.05, 3439.07] 24. Plaintiff hereby realleges and incorporates by reference the allegations set forth in
Paragraphs 1 through 23 as though set forth in full. 25. Plaintiff is informed and believes and based thereon alleges that there are present
creditors of the Debtor which were listed at the time of the Transfer that still remain unpaid as of the Petition Date. Plaintiff is informed and believes and based thereon alleges that future creditors of the Debtor existed following the Transfer who remain unpaid as of the Petition Date. 26. Plaintiff is informed and believes and based thereon alleges that the Transfer was
made within two (2) years before the Petition Date. 27. Plaintiff is informed and believes and based thereon alleges that the Transfer was
for less than reasonably equivalent value or any value, in exchange for said
believed the Debtor would incur debts beyond the Debtors ability to pay them as they became due; and/or (c) at a time when the Debtor was insolvent and/or was rendered insolvent
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28.
Based on the foregoing, Plaintiff may avoid the Transfer and recover the
equivalent value for the Estate from the Defendants for whose benefit the Transfer was made pursuant to 11U.S.C. 544, 548 and 550, and California Civil Code 3439.04 and 3439.07. THIRD CLAIM FOR RELIEF Conversion Against All Defendants [Cal. Civ. Code 1033] 29. Plaintiff hereby realleges and incorporates by reference the allegations set forth in
Paragraphs 1 through 28 as though set forth in full. 30. At all time herein mentioned, the Debtor was, and still is, entitled to possession of
the following personal property: accounts receivable, telephone number, customer list, cash, inventory and equipment transferred to Defendants. 31. Plaintiff is informed and believes and based thereon alleges that, Defendants, by
falsely and fraudulently transferring the accounts receivable, telephone number, customer list, cash, inventory and equipment of the Debtor to Defendants, misappropriated and converted to their own personal use and possession, property of the Estate. 32. On or about May 2011, the above-mentioned property had a value in an amount to
be determined at trial. 33. As a direct and proximate result of the acts of Defendants as herein alleged, the
Estate was damaged, thereby depriving the Estate of assets which could be liquidated for the benefit of creditors. 34. The aforementioned acts of Defendants were willful, wanton, malicious, and
oppressive. Defendants conduct was done with the intent to deprive the Estate of property which could be used to benefit creditors; such conduct justifies the awarding of exemplary and punitive damages in an amount to be determined at trial. FOURTH CLAIM FOR RELIEF Unjust Enrichment as to All Defendants 35. Plaintiff hereby realleges and incorporates by reference the allegations set forth in
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36.
Plaintiff is informed and believes and based thereon alleges that the assets subject
to the Transfer generate substantial revenues for Defendants; all of which, but for the Transfer would have flowed to the Debtor. 37. The Transfer (including any other transfers from the Debtor to the Defendants
discovered after the date of this Complaint) is recoverable from the Defendants pursuant to 11 U.S.C. 550 to the extent such Transfer is avoided. FIFTH CLAIM FOR RELIEF Alter Ego Against Defendant Jirka Ambroz 38. Plaintiff hereby realleges and incorporates by reference the allegations set forth in
paragraphs 1 through 36 as though set forth in full. 39. Plaintiff is informed and believes and based thereon alleges that Ambroz was the
alter ego of the Debtor. 40. Plaintiff is informed and believes and based thereupon alleges that Ambroz ran the
financial and business operations of the Debtor without regard to the requirements of applicable law, and purported to deal with its capital, equity, assets, business, trade name and property contrary to the requirements of applicable law in California, including the California Corporations Code. Further, that this was done as part of a plan or scheme to run the Debtor for the personal and corporate benefit of Ambroz. Further, that the Debtor was adversely dominated and controlled by Ambroz for his own benefit and not that of the Debtor, and as part of intentional breaches of fiduciary duty and actual fiduciary conflicts of interest, proximately resulting in the damages to the Debtor and its Estate as set forth above. 41. Plaintiff is informed and believes and based thereon alleges that the Debtor was
further deprived of independent legal advice at all stages of its existence, and was unable to effectively defend itself from breaches of duty, conversion, waste, and fraud perpetrated on it by Ambroz, at all times in issue. /// /// /// 7
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Plaintiff hereby realleges and incorporates by reference the allegations set forth in
Paragraphs 1 through 41 as though set forth in full. 43. Plaintiff is informed and believes and based thereon alleges that the Defendants
have conspired to transfer and/or conceal assets of the Debtor and have no rightful interest in the Debtors property. 44. As such, Plaintiff request, an interim, interlocutory and permanent injunction
restraining Abacus and Ambroz from disposing of their assets and business records, pending trial, including an order freezing any bank or financial accounts of the Defendants and preserving their business records, other than in the ordinary course of business or as ordered and approved by the Court. SEVENTH CLAIM FOR RELIEF Turnover of Property of the Estate [11 U.S.C. 542] Plaintiff hereby realleges and incorporates by reference the allegations set forth in
Paragraphs 1 through 44 as though set forth in full. 46. Defendants are in possession of property of the Estate, namely the Debtors
customer list, telephone number, accounts receivable, and other assets. 47. Pursuant to 11 U.S.C. 542, Plaintiff, as Trustee, is entitled to turnover of this
property which is currently being used by Abacus. WHEREFORE, Plaintiff prays for Judgment against Defendant as follows: 1. For avoidance of the Transfer under 11 U.S.C. 544, 548 and/or Cal. Civ. Code
3439.04, 3439.05, 3439.07, 3439.09, and for an order recovering the Transfer under 11 U.S.C. 550 for the benefit of the Estate or the value of said Transfer for the benefit of the Estate; /// /// 8
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2.
For a return of the Debtors client list, intellectual property, telephone number,
accounts receivable, inventory and other property of the Estate or payment of the value of such property to Plaintiff; 3. For entry of a Judgment against the Defendants for the value of the Transfer,
together with interest thereon at the legal rate from the date of each of the Transfers; 4. 5. For an award of attorneys fees along with costs of suit incurred herein; For equitable relief against Defendants in the form of such injunctive, and related
relief as might be appropriate in accordance with 18 U.S.C. 1964(a), including an interim, interlocutory and permanent injunction restraining the Defendants from disposing of the assets of the Debtor, as approved by this Court, pending trial; and 6. For such other and further relief as the Court may deem just and proper under the
circumstances of this case. RESERVATION OF RIGHTS Plaintiff reserves all of her rights to amend this Complaint as she deems necessary and appropriate, including, without limitation, adding any additional allegations, claims for relief, or prayer for relief. DATED: March 29, 2012 GOODMAN FAITH, LLP By: _ /s/ Meghann Triplett_________ Jeremy W. Faith Meghann Triplett Attorneys for Elissa Miller, Chapter 7 Trustee
https://mail.google.com/mail/?ui=2&ik=5df85b0479&view=pt&cat=Schw...
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Exhibit 1
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FORM B104 (08/07)
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ADVERSARY PROCEEDING NUMBER
(Court Use Only)
Goodman Faith, LLP 21550 Oxnard St. Ste 830, Woodland Hills, CA 91367 Phone: (818) 887-2500
PARTY (Check One Box Only) PARTY (Check One Box Only)
CAUSE OF ACTION (WRITE A BRIEF STATEMENT OF CAUSE OF ACTION, INCLUDING ALL U.S. STATUTES INVOLVED) (1) AVOIDANCE OF INTENTIONAL FRAUDULENT TRANSFER AND RECOVERY OF SAME - 11 U.S.C. 544, 548, 550; (2) AVOIDENCE OF CONSTRUCTIVE FRAUDULENT TRANSFER AND RECOVERY OF SAME - 11 U.S.C. 544, 548, 550; (3) INJUNCTIVE RELIEF; AND (4) TURNOVER OF PROPERTY OF THE ESTATE - 11 U.S.C. 542
NATURE OF SUIT
(Number up to five (5) boxes starting with lead cause of action as 1, first alternative cause as 2, second alternative cause as 3, etc.) FRBP 7001(1) Recovery of Money/Property
4 G G 1 G 2 G
11-Recovery of money/property - 542 turnover of property 12-Recovery of money/property - 547 preference 13-Recovery of money/property - 548 fraudulent transfer 14-Recovery of money/property - other
G G G G G G 3 G G G G G G
FRBP 7001(6) Dischargeability (continued) 61-Dischargeability - 523(a)(5), domestic support 68-Dischargeability - 523(a)(6), willful and malicious injury 63-Dischargeability - 523(a)(8), student loan 64-Dischargeability - 523(a)(15), divorce or separation obligation (other than domestic support) 65-Dischargeability - other
G G G G G G G
FRBP 7001(7) Injunctive Relief 71-Injunctive relief imposition of stay 72-Injunctive relief other
FRBP 7001(3) Approval of Sale of Property 31-Approval of sale of property of estate and of a co-owner - 363(h)
FRBP 7001(9) Declaratory Judgment 91-Declaratory judgment FRBP 7001(10) Determination of Removed Action 01-Determination of removed claim or cause Other SS-SIPA Case 15 U.S.C. 78aaa et.seq. 02-Other (e.g. other actions that would have been brought in state court if unrelated to bankruptcy case)
FRBP 7001(5) Revocation of Confirmation 51-Revocation of confirmation FRBP 7001(6) Dischargeability 66-Dischargeability - 523(a)(1),(14),(14A) priority tax claims 62-Dischargeability - 523(a)(2), false pretenses, false representation, actual fraud 67-Dischargeability - 523(a)(4), fraud as fiduciary, embezzlement, larceny (continued next column)
G Check if this case involves a substantive issue of state law G Check if a jury trial is demanded in complaint
Other Relief Sought
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FORM B104 (08/07), page 2
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BANKRUPTCY CASE NO.
2:10-bk-37453-B
NAME OF JUDGE
LOS ANGELES
RELATED ADVERSARY PROCEEDING (IF ANY)
BARRY RUSSEL
PLAINTIFF
DEFENDANT
DIVISIONAL OFFICE
NAME OF JUDGE
DATE
3/29/12
Meghann Triplett
INSTRUCTIONS
The filing of a bankruptcy case creates an "estate" under the jurisdiction of the bankruptcy court which consists of all of the property of the debtor, wherever that property is located. Because the bankruptcy estate is so extensive and the jurisdiction of the court so broad, there may be lawsuits over the property or property rights of the estate. There also may be lawsuits concerning the debtors discharge. If such a lawsuit is filed in a bankruptcy court, it is called an adversary proceeding. A party filing an adversary proceeding must also must complete and file Form 104, the Adversary Proceeding Cover Sheet, unless the party files the adversary proceeding electronically through the courts Case Management/Electronic Case Filing system (CM/ECF). (CM/ECF captures the information on Form 104 as part of the filing process.) When completed, the cover sheet summarizes basic information on the adversary proceeding. The clerk of court needs the information to process the adversary proceeding and prepare required statistical reports on court activity. The cover sheet and the information contained on it do not replace or supplement the filing and service of pleadings or other papers as required by law, the Bankruptcy Rules, or the local rules of court. The cover sheet, which is largely selfexplanatory, must be completed by the plaintiffs attorney (or by the plaintiff if the plaintiff is not represented by an attorney). A separate cover sheet must be submitted to the clerk for each complaint filed. Plaintiffs and Defendents. Give the names of the plaintiffs and defendants exactly as they appear on the complaint. Attorneys. Give the names and addresses of the attorneys, if known. Party. Check the most appropriate box in the first column for the plaintiffs and the second column for the defendants. Demand. Enter the dollar amount being demanded in the complaint. Signature. This cover sheet must be signed by the attorney of record in the box on the second page of the form. If the plaintiff is represented by a law firm, a member of the firm must sign. If the plaintiff is pro se, that is, not presented by an attorney, the plaintiff must sign.
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Attorney or Party Name, Address, Telephone & FAX Numbers, and California State Bar Number
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JEREMY W. FAITH (State Bar No. 190647) MEGHANN TRIPLETT (State Bar No. 268005) GOODMAN FAITH, LLP 21550 Oxnard Street, Suite 830 Woodland Hills, California 91367 Telephone: (818) 887-2500 Facsimile: (818) 887-2501
Defendant(s).
TO THE DEFENDANT: A Complaint has been filed by the Plaintiff against you. If you wish to defend yourself, you must file with the Court a written pleading, in duplicate, in response to the Complaint. You must also send a copy of your written response to the party shown in the upper left-hand corner of this page. Unless you have filed in duplicate and served a responsive pleading by ____________________________, the Court may enter a judgment by default against you for the relief demanded in the Complaint. A Status Conference on the proceeding commenced by the Complaint has been set for: Hearing Date: Time: Courtroom: Floor:
255 East Temple Street, Los Angeles 21041 Burbank Boulevard, Woodland Hills 3420 Twelfth Street, Riverside
411 West Fourth Street, Santa Ana 1415 State Street, Santa Barbara
PLEASE TAKE NOTICE that if the trial of the proceeding is anticipated to take less than two (2) hours, the parties may stipulate to conduct the trial of the case on the date specified, instead of holding a Status Conference. Such a stipulation must be lodged with the Court at least two (2) Court days before the date set forth above and is subject to Court approval. The Court may continue the trial to another date if necessary to accommodate the anticipated length of the trial. KATHLEEN J. CAMPBELL Clerk of Court
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. February 2010 (COA-SA)
F 7004-1
Case 2:11-bk-37453-BR
In re COMPUTER CZECH, LLC
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(SHORT TITLE) Debtor(s). CASE NO.: 2:10-bk-37453-BR
NOTE: When using this form to indicate service of a proposed order, DO NOT list any person or entity in Category I. Proposed orders do not generate an NEF because only orders that have been entered are placed on a CM/ECF docket.
A true and correct copy of the foregoing document described as will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d), and (b) in the manner indicated below:
I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) - Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) (LBR), the foregoing document will be served by the court via NEF and hyperlink to the document. On ________________________ I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email addressed indicated below:
II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL (indicate method for each person or entity served): On _________________________ I served the following person(s) and/or entity(ies) at the last known address(es) in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail, first class, postage prepaid, and/or with an overnight mail service addressed as follow. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.
III. SERVED BY PERSONAL DELIVERY, FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on _______________________ I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method) by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.
G
_________________________________________________________ Date Type Name
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. _____________________________________ Signature
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. February 2010 (COA-SA)
F 7004-1