Case 1:09-bk GM Doc 234 Filed 03/23/10 Entered 03/23/10 14:41:25 Desc Main Document Page 1 of 20

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1 Main Document Page of 0 Leonard M. Shulman Bar No. Robert E. Huttenhoff Bar No. Towne Centre Drive, Suite 00 Foothill Ranch, California -0 Telephone: () 0-00 Facsimile: () lshulman@shbllp.com rhuttenhoff@shbllp.com General Counsel for A. Cisneros, the Chapter Trustee UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA, SAN FERNANDO VALLEY DIVISION 0 In re LENNY KYLE DYKSTRA, Debtor. Case No. :0-bk-0-GM Chapter CHAPTER TRUSTEE S OPPOSITION TO DEBTOR S MOTION UNDER U.S.C. 0(A) FOR VOLUNTARY DISMISSAL OF BANKRUPTCY; AND DECLARATIONS OF A. CISNEROS AND ROBERT E. HUTTENHOFF IN SUPPORT THEREOF [Declaration Of Anne Marie Vernon Filed Concurrently Herewith] Hearing Date: April, 0 Time: :00 a.m. Place: Courtroom 0 Burbank Boulevard Woodland Hills, CA -0 Towne Centre Drive Suite 00 Foothill Ranch, CA 0-000\EXP.

2 Main Document Page of 0 0 A. Cisneros, Chapter trustee ( Trustee ) for the bankruptcy estate ( Estate ) of Lenny Kyle Dykstra ( Debtor ), hereby files his Opposition ( Opposition ) to the Debtor s Motion Under U.S.C. 0(a) for Voluntary Dismissal of Bankruptcy ( Motion ), and respectfully represents the following: I. INTRODUCTION The Debtor makes a number of self-serving statements in his Motion which are unsupported and directly contrary to the Debtor s actions both before and after the filing of the instant bankruptcy proceeding. Specifically, the Debtor asserts that he has attempted to work with the Trustee and his counsel toward the goal of paying off legitimate creditors by aggressively pursuing disclosed assets to provide necessary income for this purpose. See Motion, page, Para.. However, the Debtor s actions to date have been far from cooperative with the Trustee. As addressed in greater detail below, the Debtor s actions involving the Trustee s efforts to investigate the assets of the Estate consist of the following: The Debtor s failure to appear at his first (a) Meeting of Creditors ( Meeting of Creditors ). The Debtor did appear at the continued Meeting of Creditors. However, the Debtor failed to adequately respond to numerous inquiries regarding the location of certain assets of the Estate (including his failure to adequately account for property removed from the Newbern Residence). The Meeting of Creditors was continued for an additional examination. The Debtor failed to appear at the third and fourth continued Meeting of Creditors despite proper notice by U.S. Mail and reminders by the Trustee in open court regarding the continued hearing date. The Debtor also failed to appear at a Court ordered 00 examination. Towne Centre Drive Suite 00 Foothill Ranch, CA 0-000\EXP.

3 Main Document Page of 0 0 There are also multiple instances of the Debtor s attempts to directly interfere with the Trustee s administration of this case. After the Trustee s appointment, the Debtor initiated two () lawsuits against parties for pre-petition claims while the Trustee was in the process of negotiating settlements of these claims. Specifically, on March, 0, the day before the Court s March th continued hearing to approval the settlement of Estate s claims with Fireman s Fund Insurance Company ( Fireman s Fund ), the Debtor initiated a lawsuit against Fireman s Fund asserting the same claims that were being resolved in the proposed settlement. In addition, on March, 0, the Debtor initiated a $0,000,000 lawsuit against JP Morgan Chase & Co., Inc. ( JP Morgan Chase ) for pre-petition claims alleging predatory lending. The Debtor did this with full knowledge that the Trustee was currently in the process of negotiating a settlement on behalf of the Estate with JP Chase. Contrary to the Debtor s statements, his actions reveal a complete lack of cooperation and apparent intent to interfere with the Trustee s administration of this case. The Debtor also makes a number of self-serving statements in his Motion regarding his desire to retain control of his assets so that creditors can be paid the full value of what they are owed. However, once again, the Debtor s actions to date have been far from a fiduciary with the best interests of his creditors in mind. As addressed in detail below, the Debtor s actions of preserving his assets for the benefit of creditors are as follows: The Newbern Residence (which the Debtor purchased for $,0,000, including furniture and fixtures) is missing countless items of furniture and numerous fixtures from the property. The fixtures were removed post-petition and remain unaccounted for by the Debtor. Among the missing fixtures are the following: two () expensive stoves removed from the kitchen, one () home entertainment theater, multiple chandeliers from various rooms throughout the house and built-in speakers from numerous rooms throughout the house. The value of these items have been estimated well in excess of $0,000. Towne Centre Drive Suite 00 Foothill Ranch, CA 0-000\EXP.

4 Main Document Page of 0 0 The Debtor also removed valuable, non-exempt personal property from his office space at the Avantair building post-petition over the strenuous objection of the Trustee. Despite warnings from the Trustee s counsel that removal of the property could result in denial of the Debtor s discharge and constitute violation of criminal bankruptcy statutes, the Debtor proceeded to remove all the contents of the office space, including one () large safe [contents unknown], multiple pieces of office furniture, multiple pieces of sports memorabilia, two () antique furniture pieces and one () wine refrigerator. The removal occurred within minutes of the Debtor giving the Trustee s counsel his word that he would not remove anything. Shortly before filing for bankruptcy, the Debtor pawned certain personal property (consisting of valuable watches, World Series and All-star rings, World Series and All-star trophies). In doing so, the Debtor received far less than reasonably equivalent value for these assets (which were subsequently sold at auction). The proceeds from the sale have not been accounted for. Assuredly, the funds did not go to pay outstanding creditors. The Debtor seeks dismissal of the pending Chapter proceeding for cause based on his purported intention to repay creditors in full once he regains control of his assets. However, as addressed herein, the Debtor s statements are not consistent with his actions and his actions thus far have not been in the best interest of his creditors. As of March, 0, the claims register for the Debtor s case reflects a total amount of debt of $,,00 (including secured, unsecured and priority claims). The Court s docket also reflects that there are currently four () non-discharge proceedings pending against the Debtor pursuant to Bankruptcy Code. The Motion provides no explanation for how the Debtor intends to repay these creditors. In consideration of the interest of the creditors of the Estate and the proper administration of this Estate, the Trustee requests that the Court deny the Motion in its entirety. Towne Centre Drive Suite 00 Foothill Ranch, CA The Trustee is still in the process of investigating these claims. The amount is based on the figure identified in the PACER s claims register \EXP.

5 Main Document Page of 0 0 II. STATEMENT OF FACTS A. Background Information on Bankruptcy Case The Debtor commenced the instant bankruptcy case under Chapter by filing a voluntary petition on July, 00. The Debtor is married to Terri Dykstra however Mrs. Dykstra has not filed a bankruptcy petition. The Debtor and Mrs. Dykstra separated in or about April 00. Mrs. Dykstra has filed a marital dissolution action which is currently pending in Ventura County. At a hearing held on September, 00, the Court granted motions to appoint a trustee filed by the Office of the United States Trustee and Index Investors, LLC. Pursuant to the Court Order entered on September, 00, A. Cisneros was appointed as the Chapter trustee for the Debtor s bankruptcy estate. On or about September, 00, the Trustee file a motion to convert the case from a Chapter proceeding to one under Chapter pursuant to Bankruptcy Code (b). Pursuant to the Court Order entered on November 0, 00, the case was converted to a Chapter proceeding. On or about December, 00, A. Cisneros was appointed as Chapter trustee for the bankruptcy estate. B. 00 Examination of the Debtor Failure to Appear On or about October, 00, the Trustee filed a Motion for: ) an Order Pursuant to Federal Rules of Bankruptcy Procedure 00 and 0 for an Examination of the Identified Entities and Request for Production of Documentation; and ) Application to Expedite Discovery Pursuant to Federal Rules of Procedure for the Debtor ( 00 Motion ). On or about October, 00, the Court entered an order granting the 00 Motion. On or about October, 00, the Trustee by and through his counsel served a Subpoena for the Debtor to appear at a deposition in accordance with the 00 Motion. The 00 examination and production of documents were scheduled to take place on October, 00 at :00 a.m. Towne Centre Drive Suite 00 Foothill Ranch, CA 0-000\EXP.

6 Main Document Page of 0 0 Despite an oral agreement that he would appear the Debtor failed to attend the duly notice and scheduled 00 examination. C. Meeting of Creditors Failure to Appear and Failure to Properly Explain Loss of Assets The initial Meeting of Creditors (defined above) was scheduled for December, 00. The Debtor failed to appear at the initial Meeting of Creditors after previously agreeing to be there. This resulted in the Trustee and creditors of the Estate appearing for the examination to no avail. The Meeting of Creditors was then continued to January, 0. The Debtor appeared at the continued Meeting of Creditors. However, the Debtor s testimony failed to adequately explain the disposition of certain personal property, including but not limited to personal property and fixtures that had been removed from the Newbern Residence. The Trustee continued the Meeting of Creditors to February, 0. The Debtor failed to appear. The Trustee continued the Meeting of Creditors to March, 0. The Debtor again failed to appear. D. Disposition of Estate Assets from Newbern Residence and Failure to Properly Explain Loss/Disposition of Assets Prior to filing bankruptcy, the Debtor purchase the Newbern Residence for approximately $,0,000 which included all furniture contained in the residence. Since that time, all of the furniture in the Newbern Residence has been removed and the Debtor has failed to adequately explain the disposition of these valuable assets. In addition, shortly before the Trustee s appointment, the Debtor proceeded to remove valuable fixtures from the Newbern Residence, including two () expensive stoves removed from the kitchen, one () home entertainment theater, multiple chandeliers from various rooms throughout the house and built-in speakers from numerous rooms throughout the house. The value of these items have been estimated well in excess of $0,000. The Debtor has failed to adequately explain the disposition of these valuable assets. Towne Centre Drive Suite 00 Foothill Ranch, CA 0-000\EXP.

7 Main Document Page of 0 0 As this Court is aware, the Debtor also engaged in destructive testing at the Newbern Residence which resulted in significant damages damages which will likely be paid for by the Estate and to the detriment of the creditors existing prior to the petition date. E. Disposition of Estate Assets from Avantair Office Space Prior to filing bankruptcy, the Debtor leased certain office space from Avantair, Inc. located in Camarillo, California ( Avantair Office Space ). On or about February, 0, the Debtor removed certain Estate property from the Avantair Office Space, including one () large safe [contents unknown], multiple pieces of office furniture, multiple pieces of sports memorabilia, two () antique furniture pieces and one () wine refrigerator. Prior to removing the property the Debtor was warned by the Trustee s counsel that removal of the property would likely result in denial of his discharge and constitute violation of various criminal bankruptcy statutes. Despite this, and within minutes of the Debtor giving the Trustee s counsel his word that he would not remove anything, the Debtor proceeded to remove all the property located at the Avantair Office Space. F. Interference with Trustee s Administration of Case After the Trustee s appointment, the Debtor initiated two () lawsuits against parties involving pre-petition claims that belonged to the Estate and without the consent of the Trustee. Specifically, on March, 0, the day before the Court s March, 0 continued hearing to approve the settlement with Fireman s Fund, the Debtor initiated a lawsuit against Fireman s Fund asserting the same claims that were being resolved in the proposed settlement. Attached as Exhibit to the Declaration of A. Cisneros ( Cisneros Declaration ) is a copy of the lawsuit entitled Dykstra v. Fireman s Fund Insurance Company, et. al. filed by the Debtor in the Superior Court of California, County of Ventura. At the hearing on March, 0, the Debtor again sought a continuance of the Trustee s pending settlement with Fireman s Fund while failing to disclose to the Court or Trustee the actions he had taken the day before. The Trustee did not learn of the new complaint until several days after the March th hearing. Clearly, the Debtor initiated the action against Fireman s Fund with full knowledge that the Trustee had Towne Centre Drive Suite 00 Foothill Ranch, CA 0-000\EXP.

8 Main Document Page of 0 0 asserted dominion and control of these claims and was in the process of obtaining Court approval of an existing settlement. In addition, on March, 0, the Debtor initiated a $0,000,000 lawsuit against JP Morgan Chase & Co, Inc. ( JP Morgan Chase ) for pre-petition claims alleging predatory lending in connection with the acquisition of the Newbern Residence. Attached as Exhibit to the Cisneros Declaration is a copy of the lawsuit entitled Dykstra v. JP Morgan Chase & Co, Inc. filed by the Debtor in the United States District Court for the Southern District of New York. The Debtor initiated the action against JP Morgan Chase with full knowledge that the Trustee was currently in the process of negotiating a settlement on behalf of the Estate as this had been disclosed multiple times in open court. The Trustee is currently in the process of demanding that the attorneys of record in these actions dismiss these complaints voluntarily. Otherwise, the Trustee will take whatever action is necessary to assert dominion and control of this lawsuit for the benefit of the Estate and its creditors. III. POINTS AND AUTHORITIES The Debtor requests dismissal of the Chapter proceeding for cause pursuant to Bankruptcy Code 0(a). However, the appropriate section for such a dismissal is Bankruptcy Code 0(a). Bankruptcy Code Section 0(a) provides, in part, as follows: The court may dismiss a case under this chapter only after notice and a hearing and only for cause. Dismissal may only occur after a hearing on notice and only for cause. U.S.C. 0(a); Bankruptcy Rule (a). Although the phrase "for cause" is illustrated by nonexhaustive examples in the Code, it is not defined. Towne Centre Drive Suite 00 Foothill Ranch, CA 0-000\EXP.

9 Main Document Page of 0 0 A. The Debtor Failed to Serve All Creditors as Required by Federal Rules of Bankruptcy Procedure (a) Federal Rule of Bankruptcy Procedure, Rule, entitled Dismissal or Conversion of Case; Suspension provides as follows: (a) Voluntary dismissal; dismissal for want of prosecution or other cause. Except as provided in 0(b), 0(b), and 0(b) of the Code, a case shall not be dismissed on motion of the petitioner or for want of prosecution or other cause or by consent of the parties prior to a hearing on notice as provided in Rule 00. For such notice the debtor shall file a list of all creditors with their addresses within the time fixed by the court unless the list was previously filed. If the debtor fails to file the list, the court may order the preparing and filing by the debtor or other entity. In this case, the Debtor was required to provide notice to all creditors of his intention to dismiss the pending bankruptcy case. However, as addressed in the Declaration of Anne Marie Vernon, the Debtor failed to properly provide notice to all creditors of the Estate of his intention to dismiss the pending proceeding, including parties who have filed Requests for Notice of all pleadings filed in the case. For this reason, the Motion must be denied. Despite the defective notice, the Trustee requests that the Court issue a formal ruling denying the Motion on substantive grounds. B. Cause Does Not Exist for the Dismissal of the Debtor s Bankruptcy Case "While a debtor may voluntarily choose to place himself in bankruptcy, he does not enjoy the same discretion to withdraw his case once it has been commenced." Leach v. United States (In re Leach), 0 B.R., n. (B.A.P. th Cir. ) (quoting In re Klein, B.R. 0, (Bankr. E.D.N.Y. )). If dismissal will prejudice interested parties, a court may refuse to allow a debtor to dismiss the petition. Leach., 0 B.R. at (affirming the bankruptcy court's refusal to allow debtor to dismiss case where prejudice would have resulted to debtor's creditors). See also In re Simmons, 00 F.d, (th Cir. 000) ("When dismissal will only allow the Debtor to hinder creditors, secrete assets, and further the Debtor's abuse of the system, dismissal of her voluntary petition is not warranted."); In re Atlas Supply Corp., F.d, (th Cir. Towne Centre Drive Suite 00 Foothill Ranch, CA 0-000\EXP.

10 Main Document Page of 0 0 Towne Centre Drive Suite 00 Foothill Ranch, CA ) (no abuse of discretion in denial of dismissal where dismissal would have prejudiced creditors). The Ninth Circuit has explained that debtors who seek the protection of the bankruptcy court "must also assume the responsibilities attendant to this protection, including accounting for the assets and completing schedules in good faith, and... the debtor may not engage in questionable or fraudulent conduct and then dismiss the case once such conduct is discovered." In re Bartee, B.R., - (th Cir. 00) (quoting A Am.Jur.d. Bankruptcy 0) (explaining that debtor's failure to comply with trustee's request for additional information about its assets, income, pre-petition transfers and alleged gambling losses would have constituted an independent basis for affirming the refusal to dismiss). In this case, there is no evidence that the Debtor has the ability to repay creditors outside of the bankruptcy proceeding or that his creditors will not be prejudiced in the event that the case is dismissed. With this, the Trustee submits that the Debtor has failed to meet his burden in establishing that cause exists for the dismissal of the instant proceeding. In sharp contrast to the Debtor s self-serving statements, the record before the Court involving the Debtor s actions both before and after the petition date reveal the following: ) the Debtor has failed to cooperate with the Trustee in connection with the administration of this case by failing to appear at multiple (a) Meetings of Creditors and a 00 examination; ) the Debtor has taken action to directly interfere with the Trustee s ability to perform his fiduciary duties by commencing litigation postpetition against third parties involving pre-petition claims; ) the Debtor has failed to act in good faith throughout this proceeding; and ) the Debtor has absconded with Estate property and failed to adequately explain the disposition of these assets. In addition, there are currently four () non-discharge proceedings pending against the Debtor pursuant to Bankruptcy Code Section. Based on the Debtor s past conduct in this case, the Trustee believes that it is necessary to file an action against the Debtor seeking to deny his discharge pursuant to Bankruptcy Code Section. As noted In re Bartee, the debtor may not engage in questionable or fraudulent conduct and then dismiss the case once such fraudulent conduct is discovered \EXP.

11 Main Document Page of 0 IV. CONCLUSION Accordingly, the Trustee requests that the Motion be denied in its entirety and for any additional relief that the Court deems just. 0 Dated: March, 0 Respectfully submitted, By: /s/ Robert E. Huttenhoff Leonard M. Shulman Robert E. Huttenhoff General Counsel for A. Cisneros, Chapter Trustee Towne Centre Drive Suite 00 Foothill Ranch, CA 0-000\EXP.

12 Main Document Page of 0 DECLARATION

13 Main Document Page of 0 0 DECLARATION OF A. CISNEROS I, A. Cisneros, declare and state as follows:. I am currently the Chapter Trustee for the bankruptcy estate ( Estate ) of Lenny Kyle Dykstra ( Debtor ). I have personal knowledge of the facts set forth herein and could, if called as a witness, competently testify thereto.. I make this Declaration in support of my Opposition ( Opposition ) to the Debtor s Motion Under U.S.C. 0(a) for Voluntary Dismissal of Bankruptcy ( Motion ). I have read and I am aware of the contents of the Opposition. The facts stated in the Opposition are true to the best of my knowledge.. The Debtor commenced the instant bankruptcy case under Chapter by filing a voluntary petition on July, 00.. The initial (a) Meeting of Creditors ( Meeting of Creditors ) was scheduled for December, 00.. The Debtor failed to appear at the initial Meeting of Creditors. I was present along with multiple creditors of the Estate.. The Meeting of Creditors was then continued to January, 0. The Debtor appeared at the continued Meeting of Creditors. However, the Debtor s testimony failed to adequately explain the disposition of certain personal property, including but not limited to the personal property and fixtures that had been removed from the Newbern Residence.. I continued the Meeting of Creditors to February, 0. The Debtor failed to appear.. I continued the Meeting of Creditors to March, 0. The Debtor again failed to appear.. I am also informed that the Debtor failed to appear at a duly noticed and scheduled 00 examination scheduled for October, 00 at :00 a.m. Towne Centre Drive Suite 00 Foothill Ranch, CA 0-000\EXP.

14 Main Document Page of 0 0 Towne Centre Drive Suite 00 Foothill Ranch, CA. I am informed that prior to filing bankruptcy the Debtor purchased the Newbern Residence for approximately $,0,000. I am further informed that the purchase of the Newbern Residence included substantially all of the furniture contained in the residence.. Currently, all of the furniture in the Newbern Residence has been removed. As noted above, the Debtor has failed to adequately explain the disposition of these valuable assets.. Upon my first visit to the Newbern Residence shortly after my appointment, I was shocked at the condition of the property. The Debtor s destructive testing revealed a complete disregard for preserving the value of the Newbern Residence. It was apparent that the Debtor had acted with reckless disregard in his attempt to validate claims against Fireman s Fund, including cutting x foot squares into the expensive wood floors in different areas throughout the house, cutting into walls and digging into the foundation of the property to search for water leaks.. In addition, my inspection of the Newbern Residence revealed that the house had been completely gutted with all fixtures removed. It was also apparent that the Debtor did not take care to protect the surrounding areas when removing of these fixtures leaving a wake of destruction, including but not limited to, wires sticking out of the walls, toilets removed from the floor and a kitchen with all appliances removed (including countertop).. In fact, shortly before my Chapter appointment, I am informed that the Debtor proceeded to remove valuable fixtures from the Newbern Residence including, but not limited to, two () expensive stoves removed from the kitchen, one () home entertainment theater, multiple chandeliers from various rooms throughout the house and built-in speakers from numerous rooms throughout the house. I am informed that the value of these items have been estimated well in excess of $0,000. The Debtor has failed to adequately explain the disposition of these valuable assets.. After my appointment, I am informed that the Debtor initiated two () lawsuits against parties involving pre-petition claims that belonged to the Estate and without my consent \EXP.

15 Main Document Page of 0 0 Towne Centre Drive Suite 00 Foothill Ranch, CA. I am informed that on March, 0, the day before the Court s continued hearing on March, 0 to approve the settlement with Fireman s Fund, the Debtor initiated a lawsuit against Fireman s Fund Insurance Company ( Fireman s Fund ) asserting the same claims that were being resolved in the proposed settlement. Attached hereto as Exhibit is a true and correct copy of the lawsuit entitled Dykstra v. Fireman s Fund Insurance Company, et. al. filed by the Debtor in the Superior Court of California, County of Ventura.. At the hearing on March, 0, the Debtor requested an additional continuance of the pending motion to approve the settlement with Fireman s Fund while failing to disclose to the Court or myself of the actions he had taken the day before. I did not learn of the new lawsuit against Fireman s Fund until a couple of days after the March th hearing.. I am further informed that on March, 0 the Debtor initiated a $0,000,000 lawsuit against JP Morgan Chase & Co., Inc. ( JP Morgan Chase ) for pre-petition claims alleging predatory lending in connection with the acquisition of the Newbern Residence. Attached hereto as Exhibit is a true and correct copy of the lawsuit entitled Dykstra v. JP Morgan Chase & Co., Inc. filed by the Debtor in the United States District Court for the Southern District of New York.. I believe that the Debtor initiated the action against JP Morgan Chase with full knowledge that I was currently in the process of negotiating a settlement on behalf of the Estate as this had been disclosed multiple times in open Court. 0. Through my counsel, I have made a formal demand on the attorneys of record in these actions to immediately dismiss these complaints. Otherwise, I will be forced to take whatever action is necessary to assert dominion and control of these lawsuits for the benefit of the Estate and its creditors.. I do not believe that the Debtor has been cooperative in this proceeding. In fact, I believe that he has attempted to interfere with my duties as trustee in disregard of the Court s appointment.. I believe that the dismissal of the instant bankruptcy case would result in considerable delay and harm for the creditors of the Estate and is not in their best interest \EXP.

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17 Main Document Page of 0 DECLARATION

18 Main Document Page of 0 0 Towne Centre Drive Suite 00 Foothill Ranch, CA DECLARATION OF ROBERT E. HUTTENHOFF I, Robert Huttenhoff, declare as follows:. I am an associate employed by the law firm of Shulman Hodges & Bastian LLP, general counsel for A. Cisneros, Chapter trustee ( Trustee ) for the bankruptcy estate ( Estate ) of Lenny Kyle Dykstra ( Debtor ).. I have personal knowledge of the facts stated in this declaration and, if called upon and sworn as a witness to testify thereto, I could and would competently do so. I make this declaration in support of the Trustee s Opposition ( Opposition ) to the Debtor s Motion Under U.S.C. 0(a) for Voluntary Dismissal of Bankruptcy ( Motion ).. On or about October, 00, on behalf of the Trustee, I caused to be filed a Motion for: ) an Order Pursuant to Federal Rules of Bankruptcy Procedure 00 and 0 for an Examination of the Identified Entities and Request for Production of Documentation; and ) Application to Expedite Discovery Pursuant to Federal Rules of Procedure for the Debtor ( 00 Motion ).. On or about October, 00, the Court entered an order granting the 00 Motion.. On or about October, 00, I caused to be served a Subpoena for the Debtor to appear at his deposition in accordance with the 00 Motion. The 00 examination and production of documents were scheduled to take place on October, 00 at :00 a.m.. Prior to the deposition I spoke with the Debtor and received his assurance that he would attend. Despite this agreement, the Debtor failed to attend the duly noticed and scheduled 00 examination.. The initial (a) Meeting of Creditors ( Meeting of Creditors ) was scheduled for December, 00.. Prior to the Meeting of Creditors, I contacted the Debtor to remind him of the examination and received his assurance that he would attend. I am informed that despite this assurance the Debtor failed to appear for the examination \EXP.

19 Main Document Page of 0 0 Towne Centre Drive Suite 00 Foothill Ranch, CA. I am further informed that prior to filing the instant bankruptcy proceeding the Debtor leased certain office space from Avantair, Inc. ( Avantair ) located in Camarillo, California ( Avantair Office Space ).. On or about February, 0, with the consent of the Debtor, I inspected the Avantair Office Space to investigate potential claims that the Debtor was asserting against Avantair. In the course of my inspection, I noted a considerable amount of the Debtor s personal property located in the Avantair Office Space. I proceeded to take photos of all the property located in the Avantair Office Space.. I subsequently advised the Debtor that the majority of the property located in the Avantair Office Space constituted property the Estate and that the Trustee would be removing said property especially in light of the pending eviction being pursued by Avantair.. I also advised the Debtor that it would be best for the Estate if he did not appear at the Avantair Office Space any more. The Debtor agreed that he would no longer go back to the Avantair Office Space.. On or about Saturday, February, 0, I received an from counsel for Avantair informing me that the Debtor had shown up at the Avantair Office Space sometime after midnight and proceeded to spend the night in his office area.. At approximately :0 a.m. on February, 0, I called the Debtor on his cell phone and talked with him for approximately one () hour regarding his intentions with the personal property located at the Avantair Office Space. During the course of this discussion I informed the Debtor that removal of any property would likely result in denial of his discharge and constitute violation of various criminal bankruptcy statutes.. After a lengthy discussion, the Debtor agreed that he would not remove anything from the Avantair Office Space with the exception of some personal clothing. The Debtor gave me his word that he would not remove anything else because he wanted to the work with the Trustee in this case \EXP.

20 Main Document Page 0 of 0. Within minutes of concluding my telephone call with the Debtor, I received a call from the representative for Avantair who informed me that a moving van had pulled up and the Debtor was in the process of removing all of the property located in the Avantair Office Space.. Specifically, the Debtor removed property from the Avantair Office Space consisting, in part, of the following: one () large safe [contents unknown], multiple pieces of office furniture, multiple pieces of sports memorabilia, two () antique furniture pieces and one () wine refrigerator. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this rd day of March 0 at Foothill Ranch, California. /s/ Robert E. Huttenhoff Robert Huttenhoff 0 Towne Centre Drive Suite 00 Foothill Ranch, CA 0-000\EXP.