Judge: Michael Shultz, Case: 20CMCP00132, Date: 2023-08-10 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 20CMCP00132 Hearing Date: August 10, 2023 Dept: A
20CMCP00132
Thursday, August
10, 2023 at 8:30 a.m.
[TENTATIVE] ORDER
Petitioner, National Default Servicing,
commenced this action on November 19, 2020, with a petition to distribute surplus
funds of $30,371.48 remaining after a foreclosure sale and after deducting expenses
attendant to the sale. Petitioner identified all parties with a recorded
interest as Edelmira Mezquita (“Mezquita”), Felner W. Quezada, and Carime
Quezada. Petitioner received one claim
to the proceeds from Greenday Finance I, LLC whose junior lien was paid from
the sale proceeds. Petitioner could not determine
the priority of claims after receiving no contact from the remaining joint
tenants despite efforts to contact them. (Petition, .pdf p. 134). Petitioner
determined that Edelmira Mezquita passed away on October 31. 2017 (Petition, .pdf p. 136.)
Petitioner conducted a trustee’s
sale on the property known as 1425 East 110th Street, Los Angeles, CA 90059.
The subject property sold for $366,000, of which $330,549.57 was disbursed to
the foreclosing creditor. On December 11, 2020, the Hon. Maurice A. Leiter,
confirmed receipt of Petitioner’s deposit of $26,888.39 representing the
surplus funds available for distribution. The Court continued the hearing on
multiple occasions to permit any claimant to file a claim with the Court.
On July 27, 2023, Felner Quezada
and Carime Quezada (“Claimants”), filed their request for disbursement of the
surplus funds. The Hon. Kristin S. Escalante previously identified Claimants as
the only trustors who have a vested interest in the surplus funds. (Motion, Ex. 1, .pdf. p. 11.)
The order of priority for
distribution of the proceeds is established by statute:
1.
Costs and expenses incurred from
the sale, including the trustee’s fees and attorney’s fees.
2.
Obligations secured by the deed of
trust or mortgage.
3.
Outstanding balance of obligations secured by junior liens or
encumbrances in the order of their priority.
4.
Finally, 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. (Civ.
Code, § 2924k.)
Joint
tenants are entitled to the whole of the property on the death of the others. (Prob. Code, § 223.) Claimants
submit a copy of a grant deed recorded on October 25, 2017, wherein Edelmira
Mezquita transferred ownership of the real property to Edelmira Mezquita, Felner
Walberto Quezada, and Carime Quezada all as joint tenants. (Motion, Ex. 4, .pdf p. 19; see also
Petition filed 11/19/20, .pdf p. 76.) Claimant, Felner Quezada, declares that
his mother, Edelmira Mezquita, died on October 31, 2017. (Felner Quezada decl.,
¶2.)
The public record does not
establish the fact of Mezquita’s death. The fact of death is established by
recording an affidavit of death by a person with knowledge and including a
certified death certificate pursuant to Health & Saf. Code, section 103526 or by recording a certified copy of a court order that determines
the fact of death. (Prob. Code, § 210.) A document
establishing the fact death is prima facie evidence of the death of that
person. (Prob. Code, § 212.)
As Claimants have not established
that they recorded the documents required by Probate Code § 210 to establish
Mezquita’s death or submitted a certified copy of the death certificate to this
Court to enable it to determine that fact, the hearing is continued to October
13, at 8:30 a.m. in Department A of the
Compton courthouse. Claimants can submit a certified copy of the death
certificate 10 days prior to the hearing.