Judge: Melvin D. Sandvig, Case: 22CHCP00251, Date: 2025-02-21 Tentative Ruling
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Case Number: 22CHCP00251 Hearing Date: February 21, 2025 Dept: F47
Dept. F47
Date: 2/21/25
Case #22CHCP00251
MOTION TO RE-OPEN
CASE & DISBURSE CLAIMED SURPLUS FUNDS
Motion filed on 6/24/24.
MOVING PARTY: Respondent/Claimant Randy Odell
RESPONDING PARTY: all other parties/claimants
NOTICE: ok
RULING: The motion is granted.
SUMMARY OF FACTS & PROCEDURAL HISTORY
Petitioner Total Lender Solutions, Inc. (Petitioner) was
the Trustee under a Deed of Trust
executed by Oril Odell, a single man.
Said Deed of Trust was secured by real property commonly known as 23122
West Calvello Drive, Valencia, CA 91354 which was sold at a non-judicial
foreclosure sale on 2/17/22 as a result of a default under the terms of the
Deed of Trust. Said nonjudicial
foreclosure sale resulted in the receipt of funds that exceeded the amount of
the funds due and owing under the Deed of Trust foreclosed upon and the costs
and expenses of such sale.
After providing notice, Petitioner received two claims
for the surplus funds.
The first claim was from George Packard through US
Consumer Law Group and Joseph Rosenblit, Esq.
(Petition, Attachment 11, Ex.A, B, E).
In this claim, Petitioner was provided a copy of a Death Certificate for
Oril Odell (Decedent) which indicates he died on 4/2/19. (Id., Ex.C). The claim also provided a copy of the Last
Will and Testament of Oril Odell/Decedent dated 8/6/02, partial pages of a
Durable Power of Attorney and what appear to be pages of Decedent’s trust. (Id., Ex.D, F).
The foregoing documents (of which evidence of
notarization was not provided) indicate that Packard was named executor of Decedent’s
estate via his Last Will and Testament. (Petition,
Attachment 11, Ex.D). Petitioner also
received Decedent’s incomplete trust agreement from Packard’s attorneys, which
allegedly includes page 3 of the trust naming George E. Packard as the
recipient of Decedent’s entire trust estate and page 12, which names George E.
Packard as the successor trustee to the Odell Trust. No other pages of the Odell trust agreement
were provided to Petitioner. Petitioner
indicated that it was informed and believed that the attorney who constructed
the Odell trust agreement has been disbarred and is not in the possession of
the trust agreement. Petitioner also
noted that the title to the Property was not formally in the Odell Trust at the
time of Decedent’s death. (See,
Petition, Attachment 5).
Petitioner indicated that while it was discussing the
issues of Decedent’s/Odell’s trust and Decedent’s estate with Packard’s
attorney, Petitioner received an assignment of claim and a claim from The
Hendricks Group LLC pursuant to an Affidavit of Assignment signed by
Packard. (Petition, Ex.G, H).
Based on the foregoing, Petitioner was unable to
reasonably determine how said “surplus funds” should be distributed and
therefore sought to deposit said surplus funds with the Clerk of the Court
pursuant to California Civil Code Section 2924j(c).
On 7/20/22, the Court signed an order to deposit surplus
funds in the amount of $45,573.21 and upon such deposit discharged Petitioner
of further responsibility for the disbursement of the surplus funds and excused
Petitioner from further participation in the case, including attendance at
future hearings.
On 7/26/22, the Court sent notice to all claimants of the
9/27/22 hearing on claims to determine surplus funds.
Despite being sent notice of Petitioner’s intent to
deposit the surplus funds and notice of the instant hearing on claims to
determine disbursement of surplus funds, neither Packard nor The Hendricks
Group LLC filed claims to the surplus funds with the court as required by Civil
Code 2924j(d). Therefore, the Court
ordered that the surplus funds in the amount of $45,573.21 deposited with the Clerk
of the Court on 7/25/22 (receipt number CH-2022-0135856.1) will be escheated
according to law and dismissed the petition without prejudice. (See 9/27/22 Minute Order; 11/30/22
Nunc Pro Tunc Order).
In April 2023, the court’s administrative office
transferred the surplus funds to the California State Controller. (Carlyle Decl. ¶15). On 6/18/24, Respondent/Claimant Randy Odell
(Respondent) signed a small estates affidavit in connection with the surplus
funds. (Id. ¶16, Ex.I).
On 6/24/24, Respondent filed the instant motion seeking
an order re-opening this case and naming Respondent as the sole owner of the
funds previously held in trust by the court that were subsequently transferred
to the California State Controller without a named owner, with such funds to be
provided to the Client Trust Account for Plummer Carlyle Williams LLP for
distribution to Respondent. On 1/21/25,
Respondent served the instant motion on the interested parties/the same parties
provided notice of the underlying hearing on claim to surplus funds. No opposition or other response to the motion
has been filed.
ANALYSIS
The Court has the power to re-open the case to determine
Respondent’s right to the surplus funds.
See Lord (1946) 27 C2d 855, 857-858; CCP 128(a)(8).
Since Decedent was the trustor and last listed owner of
the subject property, when it was sold by Petitioner, the surplus funds are the
rightful property of the estate of Decedent.
See Civil Code 2924-2924k.
There is no evidence before the court to establish that
Decedent died with a valid will. As
such, Decedent died intestate and the surplus funds pass to Decedent’s heirs by
intestate succession. See Probate
Code 6400, et seq. If there is no
surviving issue, parent or issue of a parent, grandparent or issue of a
grandparent, or issue of a predeceased spouse, but the decedent is survived by
next of kin, the property passes to the next of kin. Probate Code 6402(f).
The successor of the decedent may collect an item of
property without procuring letters of administration or awaiting probate. See Probate Code 13100. The successor must present an affidavit or
declaration to the holder (along with a copy of the decedent’s death
certificate) stating under penalty of perjury (a) the decedent’s name, (b) the
date and place of the decedent’s death, (c) that at least 40 days have elapsed
since the death of the decedent, (d) that no proceeding is now being or has
been conducted in California for administration of the decedent’s estate, (e)
that the current gross fair market value of the decedent’s property does not
exceed the statutorily set dollar amount (currently $166,250), (f) a
description of the property requested, (g) the name of the successor(s), (h)
that the affiant or declarant is a successor of the decedent, (i) that no other
person has a superior right to the interest in the described property, and (j)
that the affiant or declarant requests that the described property be paid to
the affiant or declarant. See Probate
Code 13101. If available, the affidavit
should include evidence of ownership (Probate Code 13102(a)) and show proof of
identity of the affiant or declarant, with a notary’s acknowledgment deemed
reasonable proof. See Probate
Code 13104(e). If the above requirements
are satisfied, the person(s) executing the affidavit or declaration is entitled
to have the property paid to them. See
Probate Code 13105(a)(1). If the holder
of the property refuses to pay within a reasonable time, the successor may
recover the property in an action brought against the holder and recover
attorney’s fees. See Probate Code
13105(b). If the requirements of Probate
Code 13100 – 13104 are satisfied, the affidavit is sufficient proof to pay and
discharges the holder from any further liability; further, the holder can rely
on the statements in the affidavit or declaration with no further duty to
inquire into the truth of any statement in the affidavit or declaration. See Probate Code 13106.
As noted above, there is no evidence before the court
that Decedent died with a valid will. The
alleged will presented to Petitioner was not witnessed and cannot pass as a
holographic will because the material terms of the will were not in the
Decedent’s handwriting. Therefore, the
law of intestate succession governs. Decedent
died having never married, having had no children, having no living parent, no
living sibling, no living grandparent, or no living sibling of a grandparent. Decedent had two siblings that pre-deceased
Decedent: Decedent’s sister died with no children and Decedent’s brother died
with one child (Decedent’s nephew) – Respondent. As the
sole next of kin, the entirety of Decedent’s estate would be left to
Respondent. Respondent has provided a
notarized affidavit fulfilling the requirements of Probate Code 13100 – 13104
along with a copy of Decedent’s death certificate as well as proof of
entitlement to the Surplus Funds.
(Carlyle Decl., Ex.C, Ex.I). As
such, Respondent is entitled to stand in the shoes of Decedent and be disbursed
the entirety of the Surplus Funds and any accrued interest.
CONCLUSION
The motion is granted.
The subject surplus funds and accrued interest are ordered to be paid to
the Client Trust Account of Respondent’s attorney for disbursement to
Respondent.