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In re Irizarry

filed: August 23, 1994.

IN RE RENEE STEWART IRIZARRY, DEBTOR. RENEE STEWART IRIZARRY, APPELLANT,
v.
MARION LUETTE SCHMIDT, APPELLEE.



Appeal from the United States Bankruptcy Court for the Northern District of California. BK No. 92-54912-JRG, ADV No. 93-5414. Honorable James R. Grube, Bankruptcy Judge, Presiding

Before: Greenwald,*fn1 Meyers and Perris,*fn2 Bankruptcy Judges.

Author: Greenwald

GREENWALD, Bankruptcy Judge:

Renee Stewart Irizarry, the Debtor, filed a complaint in bankruptcy court against Marion Luette Schmidt. The bankruptcy court denied the Debtor's request for a restraining order, and granted Schmidt's motion for summary judgment. The Debtor appeals these rulings. We AFFIRM.

I. FACTS

The parties do not dispute the relevant facts. The Debtor owns real property located at 16621 Kennedy Road in Los Gatos, California ("Los Gatos Property"). Marion Guyton ("Decedent") transferred the property to the Debtor via a grant deed recorded on September 25, 1987. The Decedent passed away on February 24, 1989, leaving Marion Luette Schmidt, Milton Guyton and Jacqueline Taylor as his heirs ("Heirs").

On February 2, 1990, the Heirs filed a complaint against the Debtor in California Superior Court, County of Santa Clara ("state court"). The complaint contains six causes of action and requests the following relief:

1. Money damages in the amount of $66,161.95, plus interest at the legal rate for breach of contract to repay a $66,161.95 loan;

2. Money damages in the amount of $26,965.00, plus interest at the rate of 7% per annum, and attorney's fees for failure to repay a note in the amount of $26,965.00;

3. Money damages in the amount of $30,000, plus interest at the rate of 9% per annum, and attorney's fees for failure to repay a note in the amount of $30,000;

4. Money damages in the amount of $66,161.95, plus interest for money lent in the amount of $61,161.95;

5. Money damages in the principal amount of all of the outstanding loans, plus interest and punitive damages, for fraudulently entering into loan agreements with no intent to repay;

6. Cancellation of voidable grant deed and underlying contracts; reconveyance of the Los Gatos Property to the Heirs; reasonable rental value of the Los Gatos Property from 2/24/89 until present; and payment in an amount equal to any and all encumbrances placed on the Los Gatos Property by the Debtor.

On February 27, 1990, the Heirs subsequently filed a Notice of Pending Action against the Los Gatos Property with the County of Santa Clara.

On August 13, 1992, the Debtor filed a voluntary Chapter 7 petition with the United States Bankruptcy Court in San Jose. The Debtor listed the Los Gatos Property in her schedules and claimed a $50,000 exemption in the property pursuant to Cal. Civ. Proc. Code §§ 704.720 - 704.730. Further, the Debtor listed Marion Luette Schmidt as the holder of two unsecured claims in the amount of $50,000 and $79,000.*fn3

On November 16, 1992, the Bankruptcy Court entered a discharge in favor of the Debtor. The Chapter 7 Trustee issued a final report, and the case was closed ...


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