Judge: Latrice A. G. Byrdsong, Case: 22STLC07663, Date: 2023-11-16 Tentative Ruling
Case Number: 22STLC07663 Hearing Date: November 16, 2023 Dept: 25
Hearing Date: Thursday, November 16, 2023
Case Name: SURFSIDE VILLAS v. THOMAS BROWN
Case No.: 22STLC07663
Motion: APPLICATION FOR AN ORDER TO SELL DWELLING
Moving Party: Judgment Creditor/Plaintiff Surfside Villa
Responding Party: None as of November 14, 2023
Notice: OK
Tentative Ruling:
Plaintiff’s Application for Order of Sale of Dwelling is GRANTED.
An OSC re: Sale of Dwelling is set for December 29, 2023 at 9:30 a.m. in Department 25 of the Spring Street Courthouse, per CCP §704.700(a).
Plaintiff is ordered to serve Defendant Vanessa Brown with copies of the OSC, the Application for Order of Sale and the official notice of hearing form prescribed by the Judicial Council. (CCP §704.770(b)(1).) Service must be personally or by mail. (Id.). Plaintiff must also personally serve these documents 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. (CCP §704.770(b)(2).)
BACKGROUND
Plaintiff Surfside Villa, homeowners’ association, alleges Defendants failed to pay all monthly assessments, special assessments, late fees, interest and collection costs, including fees, as condominium owners. Plaintiff alleges there are $3,503.92 in outstanding assessments and fees. Plaintiff filed this action on November 14, 2022 to recover the outstanding balance.
On December 22, 2022, Plaintiff filed the operative First Amended Complaint. The FAC alleges (1) Breach of Contract and (2) Common Counts.
On February 2, 2023, Defendants Thomas Brown, Double Eagle Limited Corporation, PSF REO, LLC and South Bay Promotions, Inc. were voluntarily dismissed. The only remaining defendant is Defendant Vanessa Brown.
On April 24, 2023, the Court entered default against Defendant Vanessa Brown. On June 12, 2023, the Court entered default judgment against Defendant Vanessa Brown in the amount of $3,503.92.
On July 13, 2023, the Court issued a Writ of Execution in the amount of $3,543.92 against Defendant Vanessa Brown.
On September 6, 2023, Plaintiff filed an Application for Order of Sale of Dwelling. On October 12, 2023, the Court continued the Application for Order of Sale of Dwelling to November 16, 2023, so that Plaintiff could cure the deficiencies identified in the October 12, 2023 order.
APPLICABLE LAW
A. Application for sale of dwelling
A court order of sale is required to conduct a sale of a real property dwelling owned and resided in by a natural person judgment debtor. The “dwelling” may be an individual debtor's house, condominium, planned development or mobilehome affixed to land. CCP § 704.740(a); Wells Fargo Fin'l Leasing, Inc. v. D & M Cabinets (2009) 177 Cal.App.4th 59, 77–78 (“The statute thus clearly and unambiguously makes a section 704.740 order a requirement for sale of a dwelling subject to a homestead exemption, without differentiation between a sale by a sheriff and a sale by a receiver”).
An application for sale of the dwelling under CCP §704.740 must first be brought in accordance with CCP §704.760. The application “shall be made under oath, shall describe the dwelling, and shall contain all of 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.
B. Post-application for sale of dwelling
After the application is filed, the court must do the following: (1) set a hearing date no later than 45 days after the application is filed (unless a showing of good cause is made for a later date) and (2) issue an order requiring the judgment debtor to appear and show cause (OSC) why an order for sale should not be made in accordance with the judgment creditor's application. (CCP §704.770(a).)
At least 30 days before the hearing, the judgment creditor must serve the judgment debtor with copies of the OSC, application for order of sale and the official notice of hearing form. CCP § 704.770(b)(1). Service may be made personally or by mail. (Id.) The creditor must also personally serve the above documents on an occupant of the dwelling; or, if there is no occupant present when service is attempted, must post the documents in a conspicuous place at the dwelling. (CCP § 704.770(b)(2).)
At the OSC, the Court must determine whether a homestead exemption applies under CCP §704.780. Where Judgment Creditor’s application sets forth an amount of exemption, the burden is on Judgment Debtor to establish the inapplicability of that exemption amount. (CCP §704.780(a)(2).)
The Court must then make a determination as to (1) whether the property is exempt; (2) if so, the amount of the exemption and the FMV of the property. (CCP §704.780(b).) If the Court determines that the dwelling is exempt, the Court shall determine the amount of the homestead exemption and the fair market value of the dwelling. (CCP §704.780(b).) The Court must then order sale of the dwelling subject to the exemption, unless it finds that the sale of the dwelling would not produce a sufficient bid to satisfy the homestead exemption and any outstanding liens or encumbrances, including the judgment of Judgment Creditor. Id. If there are insufficient bids, the dwelling shall be released and not subject to a subsequent order for application of sale by the same judgment creditor for one year. (CCP §704.800(a).)
If the court determines that the dwelling is not exempt, the court shall make an order for sale of the property in the manner provided in Article 6 (commencing with Section 701.510) of Chapter 3. (CCP §704.780(b).)
The Court previously continued hearing on this application from October 12, 2023, to November 16, 2023, so that Plaintiff could file a supplemental declaration in conformity with the certification requirements under CCP §2015.5. Plaintiff submitted a supplemental declaration on October 13, 2023, with a certification per CCP §2015.5. Therefore, the Plaintiff’s Application for Order of Sale of Dwelling is GRANTED.
CONCLUSION
Plaintiff’s Application for Order of Sale of Dwelling is GRANTED.
An Order to Show Cause Re: Sale of Dwelling is set for December 29, 2023 at 9:30 a.m. in Department 25 of the Spring Street Courthouse, per CCP §704.700(a).
Plaintiff is ordered to serve Defendant Vanessa Brown with copies of the OSC, the Application for Order of Sale and the official notice of hearing form prescribed by the Judicial Council. (CCP §704.770(b)(1).) Service must be personal or by mail. (Id.). Plaintiff must also personally serve these documents 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. (CCP §704.770(b)(2).)