Judge: Latrice A. G. Byrdsong, Case: LAV07E03270, Date: 2024-01-17 Tentative Ruling
Case Number: LAV07E03270 Hearing Date: January 17, 2024 Dept: 25
Hearing Date: Wednesday, January 17, 2024
Case Name: NDS, LLC v. Aline N. Apelian
Case No.: LAV07E03270
Motion: Order to Show Cause Re: Why Defendant/Judgment Debtor’s Interest in Real Property Should Not be Sold to Satisfy Judgment
Moving Party: Plaintiff NDS, LLC
Responding Party: None
Notice: OK
Tentative Ruling: Plaintiff NDS, LLC’s Application for Order of Sale of Dwelling
filed on November 8, 2023, is DENIED WITHOUT PREJUDICE.
BACKGROUND
On April 11, 2007, Plaintiff NDS, LLC (“Plaintiff”) filed this action against Defendant Aline N. Apelian (“Defendant”).
The original judgment in this case was entered on July 24, 2007, and recorded with the County of Los Angeles. See Application for and Renewal of Judgment, filed May 18, 2020 (“Application for Renewal”), Item 3.
The judgment was thereafter renewed on July 23, 2013. Application for Renewal, Item 4.
On May 18, 2020, Plaintiff, as judgment creditor, applied to renew the judgment again. The money judgment of $14,367.17 consisted of the following amounts: total judgment of $8,522.80, post-judgment interest of $5,799.37, and renewal application filing fee of $45. Application for Renewal, Item 5.
On May 19, 2020, the clerk filed a Notice of Renewal of Judgment, renewing the judgment for 10 years from the date the application for renewal was filed on May 18, 2020. Defendant did not file any motion to vacate or modify the renewal. Therefore, the judgment will expire on May 18, 2030.
On November 8, 2023, Plaintiff filed the instant Application for Order of Sale of Dwelling set for hearing on January 17, 2024.
The same day, on November 8, 2023, Plaintiff also filed and served Defendant a Notice of Hearing on Order to Show Cause, informing Defendant that the hearing for the OSC is scheduled for January 17, 2024.
On January 16, 2024, the Court was informed by staff that a document titled “Defendant’s Homestead Declaration” was filed at the Hall of Records on January 4, 2024.
MOVING PARTY’S POSITION
Plaintiff seeks an order approving the sale of the Defendant’s interest in the real property located at 7957 Sale Avenue, Canoga Park, California (the “Dwelling”) to satisfy the judgment. Plaintiff’s counsel reviewed the records of the Los Angeles County Tax Assessor and noted that there were no disabled veteran exemptions for that Dwelling. In addition, counsel is informed and believes that Defendant is not entitled to a homestead exemption for that Property.
OPPOSITION
Defendant’s Homestead Declaration states that the Dwelling is a homestead and Defendant is currently living in it as her primary residence.
REPLY
None.
ANALYSIS
I. APPLICATION FOR ORDER OF SALE OF DWELLING
A. Legal Standard
Code of Civil Procedure section 704.750, subdivision (a), provides:
Promptly after a dwelling is levied upon (other than a dwelling described in subdivision (b) of Section 704.740 [concerning leaseholds]), 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.
Emphasis added.
“‘Homestead’ means the principal dwelling (1) in which the judgment debtor or the judgment debtor’s spouse resided on the date the judgment creditor’s lien attached to the dwelling, and (2) in which the judgment debtor or the judgment debtor’s spouse resided continuously thereafter until the date of the court determination that the dwelling is a homestead.” Code Civ. Proc., § 704.740(c). According to counsel, record title to the Dwelling is held in the name of: James G. Piretti and Nataly Apelian Piretti, as Trustees of the James & Nataly Piretti Living Trust.
“Homestead laws are designed to protect the sanctity of the family home against a loss caused by a forced sale by creditors.” Amin v. Khazindar (2003) 112 Cal.App.4th 582, 588. “The homestead exemption ensures that insolvent debtors and their families are not rendered homeless by virtue of an involuntary sale of the residential property they occupy.” Ibid. “Thus, the homestead law is not designed to protect creditors, but protects the home against creditors of the declarant, thereby preserving the home for the family.” Ibid.
Under Code of Civil Procedure section 704.760, an application for order for sale of a dwelling 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.
(d) A statement that the judgment is based on a consumer debt, as defined in subdivision (a) of Section 699.730, or that the judgment is not based on a consumer debt, and if the judgment is based on a consumer debt, whether the judgment is based on a consumer debt that was secured by the debtor’s principal place of residence at the time it was incurred or a statement indicating which of the exemptions listed in subdivision (b) of Section 699.730 are applicable. If the statement indicates that paragraph (7) of subdivision (b) is applicable, the statement shall also provide the dollar amount of the original judgment on which the lien is based. If there is more than one basis, the statement shall indicate all bases that are applicable.
Code Civ. Proc., § 704.760 (emphasis added).
“If the records of the county tax assessor indicate that there is not a current homeowner’s exemption or disabled veteran’s exemption for the dwelling claimed by the judgment debtor or the judgment debtor’s spouse, the burden of proof that the dwelling is a homestead is on the person who claims that the dwelling is a homestead.” Code Civ. Proc., § 704.760, subd. (a)(1).
B. Discussion
As an initial matter, on January 16, 2024, the Court was informed by staff that a document titled “Defendant’s Homestead Declaration” was filed at the Hall of Records on January 4, 2024. The document was enclosed in an envelope titled “Courtesy copy.” However, the document has not been electronically filed and there is no proof of service attached. Therefore, it is unclear whether it is intended to be an opposition and whether Plaintiff received notice of the document. Given those issues, the Court did not consider that declaration in rendering its ruling below.
The Court has reviewed Plaintiff’s instant Application for Order for Sale of Dwelling (which is in the form of a declaration by Plaintiff’s counsel, Michael D. Schulman).
Plaintiff’s counsel testifies that “Plaintiff/judgment creditor … obtained a Judgment against defendant/judgment debtor Aline N. Apelian (‘Judgment Debtor’), on July 24, 2007, in [this case], in the amount of $5,308.85. The Judgment was renewed on July 23, 2013, in the amount of $8,522.80. The judgment was renewed a second time on May 18, 2020, in the amount of $14,367.17. The balance due on the judgment as of the date of [counsel] signing … this [instant] application is 24,638.89 ($14,367.17 in principal plus $5,000.00 in post judgment costs: plus $5,271.72 in post judgment interest through January 17, 2024) plus interest after January 17, 2024, at the per diem rate of $3.94, plus costs and attorney fees in an as of yet undetermined amount.” Application for Order for Sale (“Schulman Decl.”), ¶ 1. Plaintiff is now moving for “an order to sell all of the Judgment Debtor’s right, title and interest in the real property commonly known as: 7957 Sale Avenue, Canoga Park, California,” in order to satisfy the outstanding judgment of $24,638.89. Schulman Decl., ¶ 3.
The Court finds the application, for the most part, satisfies the requirements of Code of Civil Procedure section 704.760. The application is made under oath and describes the Dwelling. Schulman Decl., ¶ 3; p. 6:19-24. The application includes a statement that the records of the county tax assessor indicate that there is no current homeowner’s exemption or disabled veteran’s exemption for the Dwelling. Schulman Decl., ¶¶ 4, 8. The application also includes a statement, based on information and belief, that the Dwelling is not a homestead. Counsel testifies that “[r]ecord title to the dwelling is held in the name of: James G. Piretti and Nataly Apelian Piretti, as Trustees of the James & Nataly Piretti Living Trust.” Schulman Decl., ¶ 5. “As the Judgment Debtor does not appear to be the owner of the Property, the Applicant is informed and believes and thereon alleges that the Judgment Debtor is not entitled to a homestead exemption in the Property.” Schulman Decl., ¶ 6. The application also provides the amount of any liens on the dwelling, including the name of each lienholder and the address of such persons used by the county recorder. Schulman Decl., ¶ 9. Plaintiff is one of the lien holders. Schulman Decl., ¶ 10.
However, as stated above, if a judgment is based on a consumer debt, an application for an order for sale of a dwelling must state “whether the judgment is based on a consumer debt that was secured by the debtor’s principal place of residence at the time it was incurred or a statement indicating which of the exemptions listed in subdivision (b) of [Code of Civil Procedure] Section 699.730 are applicable. If the statement indicates that paragraph (7) of subdivision (b) [of Section 699.730] is applicable, the statement shall also provide the dollar amount of the original judgment on which the lien is based. If there is more than one basis, the statement shall indicate all bases that are applicable.” Code Civ. Proc., § 704.760, subd. (d).
Here, the application does not comply with the requirement above. For example, counsel testifies that “[t]his judgment is based upon a consumer debt” Schulman Decl., ¶ 7, but the application does not indicate (as required) whether the judgment is based on a consumer debt that was secured by the debtor’s principal place of residence when it was incurred or which of the exemptions listed in Code of Civil Procedure section 699.730, subdivision (b), if any, are applicable.
Accordingly, the application for order of sale of dwelling is denied, without prejudice.
II. CONCLUSION
Plaintiff NDS, LLC’s Application for Order of Sale of Dwelling is DENIED, without prejudice.
Moving party to give notice.