Judge: Peter A. Hernandez, Case: 20PSCV00155, Date: 2023-10-03 Tentative Ruling

Case Number: 20PSCV00155    Hearing Date: October 3, 2023    Dept: K

Plaintiff Bank of the West’s Application for Issuance of Order for Sale of Dwelling is DENIED without prejudice.

Background   

Plaintiff Bank of the West (“Plaintiff”) alleges as follows:

On September 13, 2017, Defendant Rodney Michael Lindsay (“Defendant”) entered into a Retail Installment Sale Contract (“Contract”) with Plaintiff’s assignor for the purchase of a 2016 Chevrolet Silverado, VIN #1GC1KVE85GF124055. Defendant failed to make payments due under the Contract.

On February 26, 2020, Plaintiff filed a complaint, asserting causes of action against Defendant and Does 1-60 for:

1.                  Breach of Retail Installment Sale Contact

2.                  Money Lent

3.                  Recovery of Personal Property (Claim and Delivery)

4.                  Conversion

On May 1, 2020, Defendant’s default was entered. On August 24, 2020, default judgment was filed.

On August 28, 2020, an abstract of judgment was issued.

On April 18, 2023, a writ of execution was issued.

Legal Standard

“[T]he interest of a natural person in a dwelling may not be sold under this division to enforce a money judgment except pursuant to a court order for sale…” (Code Civ. Proc., § 704.740, subd. (a).)

Section 704.740 is designed to protect a person’s domain:

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].

(Wells Fargo Financial Leading, Inc. v. D&M Cabinets (2009) 177 Cal.App.4th 59, 67-68, quoting Amin v. Khazindar (2003) 112 Cal.App.4th 582, 585.)

Discussion

Plaintiff (“Judgment Creditor”) applies for an order for sale of the dwelling commonly known as 937 N. Soldano Avenue, Azusa, CA 91702 (“the Property”) owned by Defendant (“Judgment Debtor”).

Timeliness of Application

“Promptly after a dwelling is levied upon…, 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).)

Plaintiff has provided the court with a copy of the levying officer’s “Notice to Creditor of Levy on Dwelling” dated October 10, 2022. (Olson Decl., ¶ 9, Exh. E.) The application was filed on July 19, 2023, well in excess of 20 days from the date of the levying officer’s notice; as such, the court determines that Code of Civil Procedure § 704.750, subdivision (a) has not been satisfied.

            Service Requirements

“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.” (Code Civ. Proc. § 704.770, subd. (a).)

Further, under subsection (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.”

(Code Civ. Proc., § 704.770, subd. (b) [emphasis added].)

Here, Judgment Creditor submitted a “[Proposed] Order to Show Cause Why Order for Sale of Dwelling Should Not Issue” (“Proposed OSC”)[1] on July 19, 2023. There is no evidence that an order to show cause was issued by the court, however; rather, Judgment Creditor appears to have reserved the October 3, 2023 hearing date.

Judgment Creditor filed a proof of service reflecting personal and mail service on July 19, 2023 of a “Notice of Hearing on Plaintiff/Judgment Creditor MS Services LLC Application for Order to Show Cause for Issuance of Order for Sale of Dwelling Pursuant to California Code of Civil Procedure Section 704.750(a)” (“Notice of Hearing”), but not of the actual “Application for Issuance of Order for Sale of Dwelling Pursuant to California Code of Civil Procedure § 704.750(a)” (“Application”) or OSC.

Judgment Creditor also filed a proof of service on July 26, 2023, reflecting that the Notice of Hearing, Application and Proposed OSC were posted on the dwelling on July 25, 2023.

The application is denied without prejudice, based on the timeliness and service deficiencies noted above.