Judge: Lee W. Tsao, Case: 23NWCP00224, Date: 2023-09-14 Tentative Ruling
Case Number: 23NWCP00224 Hearing Date: February 7, 2024 Dept: C
quality loan service
corp. v. all claimants
CASE NO.: 23NWCP00224
HEARING: 2/7/24 @ 9:30 AM
#12
1.
Movant Asset Recovery, Inc.’s Motion for Disbursement of Surplus Funds
is GRANTED.
2.
Movant Jennifer Rivera’s Motion for Disbursement of Surplus Funds is GRANTED.
Moving Party to give NOTICE.
Jennifer
Rivera and Asset Recover Inc. (Asset Recovery) have both made claims to the
excess funds from the foreclosure sale by Petitioner Quality Loan Service.
Jennifer Rivera makes a claim for 60 percent of the surplus based on a 20
percent claim for herself and the assigned 20 percent claims of both Erika Curp
and Victor Ayala. Asset Recovery Inc. makes a claim for “all or a portion” of
the surplus based on an assignment of Anthony Ayala Jr.
Legal
Standard
“The
trustee, or the clerk of the court upon order to the clerk pursuant to
subdivision (d) of Section 2924j, shall distribute the proceeds, or a portion
of the proceeds, as the case may be, of the trustee's sale conducted pursuant
to Section 2924h in the following order of priority:
(1) To the costs and
expenses of exercising the power of sale and of sale, including the payment of
the trustee's fees and attorney's fees permitted pursuant to subdivision (b) of
Section 2924d and subdivision (b) of this section.
(2) To the payment of
the obligations secured by the deed of trust or mortgage which is the subject
of the trustee's sale.
(3) To satisfy the
outstanding balance of obligations secured by any junior liens or encumbrances
in the order of their priority.
(4) To the trustor or
the trustor's successor in interest. In the event the property is sold or
transferred to another, to the vested owner of record at the time of the
trustee's sale.
(CCP
§ 2924k(a).)
Discussion
Quality Loan Service conducted a non-judicial
foreclosure sale of real property commonly known as 8151 Evergreen Avenue,
South Gate, 90280 on March 10, 2023 (the Property). The Property was previously
owned by Anthony Ayala Sr. (Decedent) prior to his passing on April 24, 2020.
There was no proceeding conducted for the administration of Decedent’s estate.
(Fox Decl., Ex. B.) Thus, Decedent’s estate would pass equally to his issue. There
was initially conflicting evidence regarding Decedent’s issue. Based on the
additional declarations, both Claimants agree that Decedent had five children. The
children are Jennifer Rivera, Erika Curp, Victor Ayala, Anthony Ayala Jr., and
Alexander Ayala.
Rivera is making a claim for 60 percent of the
surplus funds consisting of 20 percent on her behalf, 20 percent on behalf of
Erika Curp, and 20 percent on behalf of Victor Ayala. Erika Curp and Victor
Ayala assigned their right to collect from the surplus to Rivera. (Rivera
Decl., Exs. 1 and 2.) Asset Recovery is making a claim for Anthony Ayala Jr.’s
interest. Anthony Ayala Jr. assigned his right to collect form the surplus to
Asset Recovery. (Ayala Decl., Ex. E.) Each heir is to take equally, thus, Asset
Recovery is entitled to a 20 percent share of the surplus funds. Here,
$165,947.40 in funds were deposited with the Clerk of Court as surplus from the
trustee’s sale. The surplus was calculated after the accounting for costs
pursuant to Civil Code § 2924k(1) and (2). Thus, Rivera is entitled to
$99,568.44 and Asset Recovery is entitled to $33,189.48.
Accordingly, Rivera’s Motion for
Disbursement of Surplus Funds is GRANTED in the amount of $99,568.44 and Asset
Recovery’s Motion for Disbursement of Surplus Funds is GRANTED in the amount of
$33,189.48.