Judge Lee W. Tsao, Case Number: VC053821, Date: 2024-06-25 Tentative Ruling

Judge: Lee W. Tsao, Case: VC053821, Date: 2024-06-25 Tentative Ruling

Case Number: VC053821 Hearing Date: June 25, 2024 Dept: C

Carmenita Plaza, LLC vs Miguel C. Oyoque

Case No.: VC053821

Date: June 25, 2024 @ 10:30 AM

Tentative Ruling

Defendant Miguel Oyoque’s Motion to Vacate is GRANTED.

Defendant to give notice.

Background

On June 17, 2009, a Complaint was filed by Plaintiff Carmenita Plaza, LLC (“Plaintiff”) against Defendant Miguel Oyoque (“Defendant”), for a breach of contract matter. It was alleged that Defendants had failed to pay rents to Plaintiff. The Attorney of Record was Nico N. Tabibi, Esq. , Law Office of Nico N. Tabibi, APC, 9454 Wilshire Boulevard., PH, Beverly Hills, CA 90212.

A default by court was entered against the Defendant, Miguel Oyoque, on April 9, 2010. Judgement was entered at $803,935.53. (See 4-19-2020 Default Judgment Memo.)

On March 16, 2011, Defendant Miguel Oyoque filed for Chapter 7 Bankruptcy protection under case # 2:11-bk-21221-RN. (Bankruptcy Notice attached as Exhibit 1). This Bankruptcy was filed in the Central District of California. Although the Complaint by Carmenita Plaza, LLC vs Miguel Oyoque was listed in the bankruptcy petition, Attorney Nico N. Tibibi, Esq., nor this Court, were given actual notice of the bankruptcy filed by Defendant.

An Order of Discharge was rendered on October 17, 2011 under 727 of the Bankruptcy Code. (Ibarra Decl., Exhibit 2.)

On or about January 6, 2020, an Application for Renewal of Judgment was filed by Attorney Nico N. Tibibi, on behalf of Carmenita Plaza, LLC. On January 7, 2020, a Proof of Service - Mail was filed with this Court (Ibarra Decl., Exhibit 3), which indicated service on Defendant was sent to 2478 Via Cielo, Hacienda Heights, CA 91745.

On or about October of 2023, Defendant Miguel Oyoque was made aware by a title company that the Default and Default Judgment were still pending in Norwalk Superior Court. The Defendant was further advised that the Default Judgment had been Renewed on January 6, 2020.

On or about October 20, 2023, Counsel for Defendant Antonio J. Ibarra, personally contacted Plaintiff’s Counsel for Nico N. Tibibi placing him on Notice that Defendant Miguel Oyoque had filed Chapter 7 bankruptcy on March 16, 2011 and was given a Discharge Order on October 17, 2011. (Ibarra Decl., Exhibit 4). During our phone conversation Defense Counsel told Attorney Nico N. Tibibi that the Application 7 and Renewal of Judgment was defective, in light of the fact that the Defendant had not lived at the address/residence stated in the proof of service for over 20 years. The real property had been foreclosed and/or sold in July of 2012.

Legal Standard

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473 (d).)

Discussion

The Central District of California for the United States Bankruptcy Court stated in its’ discharge of debtor order that “Chapter 7 discharge order eliminates a debtor's legal obligation to pay a debt that is discharged. Most, but not all, types of debts are discharged if the debt existed on the date the bankruptcy case was filed.” (Ibarra Decl., Ex. 2.)

Here, a default by court was entered against the Defendant, Miguel Oyoque, on April 9, 2010. (See 4-19-2020 Default Judgment Memo.) On March 16, 2011, Defendant Miguel Oyoque filed for Chapter 7 Bankruptcy protection. An Order of Discharge was rendered on October 17, 2011 under 727 of the Bankruptcy Code. (Ibarra Decl., Ex. 2.)

Therefore, the debt existed prior to the date the bankruptcy case was filed.

This motion is unopposed, as of June 20, 2024, and the Court does not find any other facts as to why this debt should be not discharged due to the Chapter 7 Bankruptcy.

Accordingly, the Motion to Set Aside Judgment is GRANTED.