Case No BK-15-14956-ABL Chapter 11
EX PARTE APPLICATION FOR ORDER DIRECTING EXAMINATION PURSUANT TO FED.R.BANKR.P.2004 OF MARC J. RANDAZZA
Creditors Excelsior Media Corp. (“Excelsior”) and Liberty Media Holdings, LLC
(“Liberty” and together with Excelsior, “Creditors”), by and through their counsel, James D.
Greene, Esq. of Greene Infuso, LLP pursuant to section 105 of the Bankruptcy Code and Rule
2004 of the Federal Rules of Bankruptcy Procedure and Rule 2004 of the Local Rules of
Bankruptcy Practice and Procedure, hereby apply to the Court for entry of order directing Debtor
Marc J. Randazza (“Debtor”) to appear for and submit to examination under oath before certified
court reporter at the office of Greene Infuso, LLP, 3030 South Jones Blvd. Suite 101, Las Vegas,
Nevada 89146 on a date and time to be determined, providing that notice of said examination is to
be provided no less than 10 judicial days before such examination date. In support of this
application (“Application”), Creditors state as follows:
FACTUAL BACKGROUND
Debtor filed his bankruptcy petition on August 28, 2015 (“Petition Date”). Prepetition,
Creditors had been awarded sums by an arbitrator pursuant to an Interim Arbitration Award
(“IAA”) that was issued after a 5-day arbitration hearing in February 2015.
On or about November 30, 2015, Creditors filed an adversary proceeding seeking a
determination that the debts owed to Creditors were non-dischargeable pursuant to Bankruptcy
Code section 523(a) (2), (4) and (6). There has been extensive motion practice in the adversary
proceeding and to date no discovery has been conducted.
During the course of the bankruptcy case, Debtor has operated his law practice and
otherwise carried on ordinary living activities. Most recently, Debtor filed a motion seeking court
approval of a refinancing transaction (docket no. 176) (“Refinance Motion”) supported by a
declaration of Debtor (docket no. 177).
Numerous statements and representations made in these documents raise question about Debtor’s ownership interests in certain entities, a marital pre-nuptial agreement and certain financial dealings.
Creditors also have questions about certain pre-petition activities of Debtor and assets listed or, perhaps not listed, on his schedules.
In conjunction with this examination, Creditor intends to issue one or more subpoenas seeking production of certain documents from Debtor.
No relief is being sought from the Court in connection with production of documents.
The statute of limitations for Debtor to pursue avoidance actions is, in this case, two years
from the Petition Date, or August 28, 2017. Debtor has not filed any avoidance actions and has
given no hint of his intent to do so. Creditors do not presently have information sufficient to
make a demand of Debtor to commence any such action, but seek to examine Debtor and to
review certain records to determine whether grounds are present to make such a demand.
Accordingly, Creditors request that the Court enter an order requiring Debtor to appear at the
office of Creditors’ counsel to be examined upon not less than 10 judicial days’ notice.
LEGAL ARGUMENT
An examination pursuant to Bankruptcy Rule 2004 can be ordered [o]n motion of any
party in interest.” In re Stasz, 387 B.R. 271, 273 n.3 (B.A.P. 9th Cir. 2008); see also In re Lifeco
Inv. Grp., Inc., 173 B.R. 478, 480 (Bankr. D. Del 1994), quoting Fed. R. Bankr. P. 2004(a).
Bankruptcy Rule 2004 further provides that the Court may order the examination and the
production of documentary evidence concerning any matter that relates “to the liabilities and
financial condition of the debtor, or to any matter which may affect the administration of the
debtor’s estate, or... any other matter relevant to the case or tot the formulation of a plan.” Fed.
R. Bankr. P. 2004(b);
see also In re Dinubilo, 177 B.R. 932, 936 n.6 (E.D. Cal. 1993) (noting that “[u]nder Rule 2004, a court may order the examination of any person on motion of any party in interest.”). Generally, examinations under Bankruptcy Rule 2004 are for the “purpose of discovering assets and unearthing frauds.” In re Rafsky, 300 B.R. 152, 153 n.2 (Bankr. D. Conn. 2003) (citation omitted); In re N. Plaza LLC, 395 B.R. 113, 122 n.9 (S.D. Cal. 2008).
The scope of a Bankruptcy Rule 2004 examination is “unfettered and broad,” as the plain
language of the rule indicates. See 9 Collier on Bankruptcy ¶ 2004.02[1] at 2004-6 (15th ed. Rev.
1997); In re Dinublilo, 177 B. R. at 939 quoting In re GHR Energy Corp., 33 B.R. 451, 453
(Bankr. D. Mass. 1983).
The broad latitude of Bankruptcy Rule 2004 examination furthers the purpose of the rule, which is “to allow the court to gain a clear picture of the condition and the whereabouts of the bankrupt’s estate. In re Int’l Fibercom, Inc., 283 B.R. 290, 292 (Bankr. D. Ariz. 2002) (permitted Bankruptcy Rule 2004 examination aimed at “obtaining information that will ... potentially uncover additional claims that may exist for the benefit of the estate”); see also In re W & S Investments, Inc., 985 F.2d 577 (9th Cir. 1993) (“Bankruptcy Rule 2004 is a broadly construed discovery device...”); In re French, 145 B. R 991, 992 (Bankr. D.S.D. 1992) (“Bankruptcy Rule 2004... does not offer the procedural safeguards available under Rule 26 of the Federal Rule Rules of Civil Procedure.”)
matters that are clearly with the permitted scope of Rule 2004, including: (i) property of the
Debtor’s bankruptcy estate; (ii) transactions and business dealings involving the Debtor and
family members and corporate entities; (iii) potential claims the Creditor may have against third
parties; and (iv) other matters affecting the administration of the Debtor’s estate."
Source
http://ia600807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.187.0.pdf
No comments:
Post a Comment