Judge: John J. Kralik, Case: EC043183, Date: 2023-12-22 Tentative Ruling

Case Number: EC043183    Hearing Date: December 22, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations and Relevant Background

Plaintiff Resurgence Financial, LLC (“Plaintiff”) alleges that it is the successor in interest to New Century Financial Services Inc./Citibank (South Dakota), N/Citibank AA World CA (Platinum).  It alleges that Defendant Ricardo Gieseken (“Defendant”) entered into a credit card application (“Agreement”) for credit card privileges.  Plaitniff alleges that on May 30, 2005, Plaintiff’s assignor transferred all rights, title, and interest to the Agreement.  Plaintiff alleges that Defendant has breached the terms of the Agreement by failing to make payments since October 12, 2004, such that there is an outstanding balance of $38,558.63. 

The complaint, filed July 20, 2006, alleges causes of action for: (1) breach of contract; (2) account stated; (3) money lent; (4) open book account; and (5) indebtedness. 

On December 19, 2006, the default of Defendant was entered.  That same day, the default judgment of Defendant was entered in the amount of $38,918.63. 

The Judgment was renewed on November 9, 2015 in the amount of $72,092.45.

A writ of execution (money judgment) dated July 21, 2023 shows that Defendant owes $123,423.28. 

B.     Motion on Calendar

On September 27, 2023, Judgment Creditor Assignee, Collect Access, LLC (“Creditor”) filed an application for order for sale of dwelling of the property located at APN 5726-008-010.

The Court is not in receipt of an opposition brief.

LEGAL STANDARD

CCP § 704.740 provides:

(a) Except as provided in subdivision (b), the interest of a natural person in a dwelling may not be sold under this division to enforce a money judgment except pursuant to a court order for sale obtained under this article and the dwelling exemption shall be determined under this article.

(b) If the dwelling is personal property or is real property in which the judgment debtor has a leasehold estate with an unexpired term of less than two years at the time of levy:

(1) A court order for sale is not required and the procedures provided in this article relating to the court order for sale do not apply.

(2) An exemption claim shall be made and determined as provided in Article 2 (commencing with Section 703.510).

(CCP § 704.740.) 

            CCP § 704.750 states:

(a) Promptly after a dwelling is levied upon (other than a dwelling described in subdivision (b) of Section 704.740), the levying officer shall serve notice on the judgment creditor that the levy has been made and that the property will be released unless the judgment creditor complies with the requirements of this section. Service shall be made personally or by mail. Within 20 days after service of the notice, the judgment creditor shall apply to the court for an order for sale of the dwelling and shall file a copy of the application with the levying officer. If the judgment creditor does not file the copy of the application for an order for sale of the dwelling within the allowed time, the levying officer shall release the dwelling.

(b) If the dwelling is located in a county other than the county where the judgment was entered:

(1) The judgment creditor shall apply to the superior court of the county where the dwelling is located.

(2) The judgment creditor shall file with the application an abstract of judgment in the form prescribed by Section 674 or, in the case of a judgment described in Section 697.320, a certified copy of the judgment.

(3) The judgment creditor shall pay the filing fee for a motion as provided in subdivision (a) of Section 70617 of the Government Code.

(CCP § 704.750.) 

Under CCP § 704.760, the judgment creditor must submit an application made under oath that describes the dwelling and includes the following:

(a) A statement whether or not the records of the county tax assessor indicate that there is a current homeowner's exemption or disabled veteran's exemption for the dwelling and the person or persons who claimed any such exemption.

(b) A statement, which may be based on information and belief, whether the dwelling is a homestead and the amount of the homestead exemption, if any, and a statement whether or not the records of the county recorder indicate that a homestead declaration under Article 5 (commencing with Section 704.910) that describes the dwelling has been recorded by the judgment debtor or the spouse of the judgment debtor.

(c) A statement of the amount of any liens or encumbrances on the dwelling, the name of each person having a lien or encumbrance on the dwelling, and the address of such person used by the county recorder for the return of the instrument creating such person's lien or encumbrance after recording.

(CCP § 704.760.) 
            Upon the filing of the application, CCP § 704.770 authorizes the Court to set an OSC for the judgment debtor to show cause why an order for the sale of the property should not occur.  Not later than 30 days before the OSC, the judgment creditor must do both of the following:

(1)   Serve on the judgment debtor a copy of the order to show cause, a copy of the application of the judgment creditor, and a copy of the notice of the hearing in the form prescribed by the Judicial Council. Service shall be made personally or by mail

(2)   Personally serve a copy of each document listed in paragraph (1) on an occupant of the dwelling or, if there is no occupant present at the time service is attempted, post a copy of each document in a conspicuous place at the dwelling.

DISCUSSION

Creditor moves for an order for sale of Defendant’s interest in the real property located at 826 Chapman Ave., Pasadena, CA 91103.  In support of the application, Creditor provides the declaration of its counsel, Tappan Zee.  In his declaration, Mr. Zee makes the following statements under oath:

·         The address and legal description of the property.  (Zee Decl., ¶2.) 

·         He states there is an immediate need for an order for sale of the dwelling because Creditor has initiated a levy on the property and the levying officer recorded a Notice of Levy on September 1, 2023.  (Id., ¶¶3, 10, Ex. B.)

·         Judgment was entered on December 19, 2006 against Defendant and renewed on November 9, 2015 in the amount of $72,092.45, of which only $4,896.45 has been paid.  (Id., ¶¶4-6.)  An abstract of judgment was recorded on February 4, 2020.  (Id., ¶7, Ex. A.)

·         On January 6, 2016, Defendant acquired the levied property and Defendant (an unmarried man) is shown to be the record title holder.  (Id., ¶9.) 

·         The instant judgment was based on a consumer debt, which was not secured by Defendant’s principal place of residence at the time it was incurred.  (Id., ¶15.) 

·         CCP § 704.760(a): The records of the county tax assessor do not reflect the filing of a homestead declaration, a homeowner’s exemption, or a veteran’s exemption for the levied property.  (Id., ¶¶12-14.)

·          CCP § 704.760(b): The records of the county recorder do not reflect the filing of a homestead declaration that describes the dwelling and that has been recorded by the judgment debtor or his spouse.  Creditor lacks information which would indicate that the dwelling is a homestead and the amount of the homestead exemption, if any.  (Id., ¶11.) 

·         CCP § 704.760(c): The lien/encumbrance(s) on the subject dwelling include: (1) Majestic Home Loan at 9680 Haven Ave., Rancho Cucamonga, CA 91730 in the lien amount of $616,706.  (Id., ¶16.) 

·         The fair market value of the levied property is in excess of $1,076,700, which is based on his experience as a licensed California real estate broker and publicly available data of comparable valued properties.  (Id., ¶17.) 

·         The notice of the application and the Notice of Hearing on Right to Homestead Exemption were served on Defendant and the record titleholder of the levied property.  (Id., ¶¶18-21.)

Mr. Zee’s declaration discusses the factors listed in CCP § 704.760.  Creditor has established its burden in showing that a sale of the property is proper after the Notice of Levy. 

Mr. Zee believes the property is valued at over $1,076,700 based on his real estate knowledge.  The outstanding judgment amount is $123,423.28 (as of July 21, 2023), such that the sale of the dwelling would likely produce a sufficient bid and sales price that would satisfy the monetary judgment.  The Court notes that an appraisal has not been provided.  While there is some doubt because a formal appraisal has not been submitted, the real estate market generally does support the evaluation provided sufficiently to justify an order to show cause regarding the sale of a dwelling.

As such, the application is granted and the Court will set an OSC date. 

CONCLUSION AND ORDER 

Judgment Creditor Assignee, Collect Access, LLC’s Application for Order for Sale of Dwelling is granted.  The Court sets an OSC re Why an Order for the Sale of the Defendant’s Real Property Should Not Occur for February 12, 2024 at 8:30 a.m. 

Service of the OSC hearing shall be made pursuant to CCP §704.770. 

Creditor shall provide notice of this order.

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DATED: December 22, 2023                                                 ___________________________

                                                                                          John J. Kralik

                                                                                          Judge of the Superior Court