Judge: Mark E. Windham, Case: 24STCP02260, Date: 2024-11-18 Tentative Ruling
Case Number: 24STCP02260 Hearing Date: November 18, 2024 Dept: 26
Barry A. Ross, APC v. Simon, et al.
ORDER
TO SHOW CAUSE WHY ORDER FOR SALE OF DWELLING
SHOULD
NOT ISSUE
(CCP
§§ 704.760 and 704.780)
TENTATIVE RULING:
Judgment Creditor Barry A. Ross,
APC’s Application for Order for Sale of Real Property
Dwelling and Issuance of Order to Show Cause Why Order for Sale of Real
Property Dwelling Should Not Be Made is CONTINUED TO FEBRUARY 18, 2025 AT 8:30
AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY JANUARY 28, 2025,
JUDGMENT CREDITOR IS TO FILE AND SERVE A SUPPLEMENTAL DECLARATION DEMONSTRATING
(1) THE APPLICATION WAS TIMELY FILED WITH THE LEVYING OFFICER; (2) COMPLIANCE
WITH THE REQUIREMENTS OF CODE OF CIVIL PROCEDURE SECTION 704.770, SUBDIVISION
(B)(2); AND (3) COMPLIANCE WITH THE REQURIEMENTS OF CALIFORNIA RULES OF COURT,
RULE 3.223. FAILURE TO DO SO MAY RESULT IN THE APPLICATION BEING DENIED.
On July 15, 2024, Judgment Creditor Barry A.
Ross, APC (“Judgment Creditor”) filed
the instant Application for Order for
Sale of Real Property Dwelling and Issuance of Order to Show Cause Why Order
for Sale of Real Property Dwelling Should Not Be Made (the
“Application”) against Judgment Debtor Jacques Simon (“Judgment Debtor”). No
response to the Application has been filed to date.
Legal Standard
Under Code of Civil
Procedure section 700.180, real property of a judgment debtor may be levied
upon. (Code Civ. Proc., § 700.180, subd. (a)(1).) “Section 704.740 [] says[] a
dwelling may not be sold to enforce a money judgment ‘except pursuant to a court order for sale obtained
under this article ....’ (§ 704.740, subd. (a).)
The ‘article’ referred to is article 4, “Homestead Exemption,” sections
704.710 through 704.850.” (Wells Fargo Financial Leasing, Inc. v. D
& M Cabinets (2009) 177 Cal.App.4th 59, 67.)
“Section 704.740
is part of the homestead laws.
‘Homestead laws are designed to protect the sanctity of the family home
against a loss caused by a forced sale by creditors .... 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. Thus,
the homestead law is not designed to protect creditors .... This strong public policy requires courts to adopt a liberal
construction of the law and facts to promote the beneficial purposes of
the homestead legislation to benefit the debtor [and his family].’” (Id. at 67–68.)
Discussion
Timeliness
of Application—Code of Civil Procedure section 704.750, subdivision (a)
Code
of Civil Procedure section 704.750, subdivision (a) states:
“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.”
(Code Civ. Proc., § 704.750, subd. (a).) A judgment
was entered on or about September 22, 2022 in favor of Creditor and against
Debtor in the amount of $18,785.01. (App., Ross Decl., ¶3; Exh. 1.) Notice of
the levy on the dwelling was mailed to Judgment Creditor on June 18, 2024. (App., Hemme Decl., Exh. 7.) This Application
was timely filed on July 15, 2025. (See Code Civ. Proc., § 684.120, subd.
(b)(1) [adding five days to the deadline for service by mail].) However, the
Application does not indicate whether it was timely filed with the levying
officer such that the dwelling has been released.
Requirements of
Application -- Code of Civil
Procedure section 704.760
Code of Civil Procedure section
704.760 requires the judgment creditor’s application 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.”
Judgment
Creditor states there is no Homestead declaration, or homeowner’s exemption or
disabled veteran’s exemption reflected in the records of the Los Angeles
Country Recorder for the dwelling. (App., Froelich
Decl., ¶¶11-12 and Exh. 5.) Judgment Creditor also provides a report by First
American DataTree issued on June 21, 2024 for a statement of liens or
encumbrances on the Dwelling, and the name and address of the entity holding a lien
or encumbrance as required by Code of Civil Procedure section 704.760,
subdivision (c). (Id. at Exh. 3.) This report was cross-referenced
against the records of the Los Angeles County Recorder’s Office. (Id. at
¶7.) The DataTree report values the dwelling at between $372,000 and $458,000.
(Ibid.) Finally, the application sets forth the liens and encumbrances
on the dwelling. (App., Froelich Decl., ¶8.) The combined estimated loan
balance for the Property is $208,033, leaving an estimated $163,967 to $458,000
in equity. (Id. at Exhs. 2-3.) This evidence satisfies the requirements
of Code of Civil Procedure section 704.760.
Service Requirements
– Code of Civil Procedure section 704.770
Code of Civil Procedure section
704.770 states:
“(a) Upon the filing of the
application by the judgment creditor, the court shall set a time and place for
hearing and order the judgment debtor to show cause why an order for sale
should not be made in accordance with the application. The time set for hearing shall be not later
than 45 days after the application is filed
or such later time as the court orders upon a showing of good cause.
(b) Not later than 30 days before
the time set for hearing, the judgment creditor shall 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.”
Judgment Creditor has filed proof of mail of the Application for
Order to Show Cause, and Notice of the Order to Show Cause on Judgment Debtor.
(Proof of Service by Mail, filed 07/18/24.) However, the Application does not
demonstrate personal service or posting of the papers with respect to the
occupants of the dwelling, or at the dwelling itself. The court, therefore,
finds that Judgment Creditor has not satisfied the service requirements of Code
of Civil Procedure section 704.770, subdivision (b)(2).
D. Evidentiary Requirements—CRC 3.223
Finally,
California Rules of Court, rule 3.223(a) states: “[a]n application for an order
for sale of a dwelling must provide at the hearing competent evidence of the
following:
(1) The fair market value of the
property by a real estate expert;
(2) Litigation guarantee or title report that contains a legal description of
the property, the names of the current owners, a list of all deeds of trust,
abstracts of judgments, tax liens and other liens recorded against the
property, whether a declaration of homestead has been recorded, whether a
current homeowner's exemption or disabled veteran's exemption has been filed
with the county assessor, and the persons claiming such exemption;
(3) The amount of any liens or
encumbrances on the dwelling, and the names and addresses of the lienholders
and when the judgment creditor's lien attached. The judgment creditor must ascertain the
precise amounts of obligations secured by senior liens by making a written
demand for beneficiary statements from senior lienholders pursuant to Civil Code section 2943. The judgment creditor may need to conduct an
examination pursuant to Code of Civil Procedure sections 708.120 or 708.130 to
determine the precise amounts of the junior liens, the daily rate of interest
due on the senior and junior liens, and encumbrances of record; and
(4)
The date of service on the judgment creditor of the levying officer's notice
that the dwelling was levied upon.”
Judgment Creditor’s evidence above is not a real
estate appraisal of the dwelling by a real estate expert. (App., Froelich
Decl., Exh. 3 at p. 7.) Nor is the statement of liens or encumbrances on
the dwelling demonstrated by written demand for beneficiary statements from
senior lienholders pursuant to Civil Code
section 2943. The only evidence shown with respect to Rule 3.223 is that the levying officer’s notice was served on Judgment
Creditor on June 18, 2024. (App., Hemme Decl., Exh. 7.)
Conclusion
Based on the foregoing, Judgment
Creditor Barry A. Ross, APC’s Application for
Order for Sale of Real Property Dwelling and Issuance of Order to Show Cause
Why Order for Sale of Real Property Dwelling Should Not Be Made is CONTINUED TO
FEBRUARY 18, 2025 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.
BY JANUARY 28, 2025, JUDGMENT CREDITOR IS TO FILE AND SERVE A SUPPLEMENTAL
DECLARATION DEMONSTRATING (1) THE APPLICATION WAS TIMELY FILED WITH THE LEVYING
OFFICER; (2) COMPLIANCE WITH THE REQUIREMENTS OF CODE OF CIVIL PROCEDURE
SECTION 704.770, SUBDIVISION (B)(2); AND (3) COMPLIANCE WITH THE REQURIEMENTS
OF CALIFORNIA RULES OF COURT, RULE 3.223. FAILURE TO DO SO MAY RESULT IN THE
APPLICATION BEING DENIED.
Moving party to give notice.