Judge Randolph M. Hammock, Case 20STCV15044 2022-10-05 Tentative Ruling

Plaintiff claims title to the property located at 4945 Wawona Street in Los Angeles, California, 90041 (the “Property”). In 2006, Plaintiff contends he refinanced the Property, resulting in a first deed of trust of $650,000 and a second deed of trust of $95,000 on the Property, both held by American General Mortgage Association (“AMGA”). On or about November 16, 2006, AMGA assigned the second deed of trust to IndyMac Bank, FSB (“IndyMac”). Plaintiff contends that in or around 2012 or 2013, under a Department of Justice settlement pertaining to the Great Recession of 2008 and 2009, the $95,000 loan underlying the second deed of trust was forgiven by IndyMac (as well as much of the first lien). Plaintiff claims he received a document confirming the $95,000 loan was forgiven but cannot now locate it.

In or around January 2018, Plaintiff obtained a home equity line of credit from Pentagon Federal Credit Union (“Pentagon”). On May 11, 2018, an assignment of deed of trust was recorded which purported to assign the second deed of trust from IndyMac to Deutsche Bank National Trust Company, and which bore a date of execution of November 27, 2006. On August 14, 2019, another assignment was recorded transferring the second deed of trust to Wilmington. On September 17, 2019, a notice of default and election to sell was recorded on the Property pursuant to the second deed of trust, identifying a balance due of $284,911.17, and directing Plaintiff to contact Wilmington through Statebridge, its attorney in fact. On December 20, 2019, a notice of trustee’s sale was recorded.

On January 10, 2020, Plaintiff initiated a Chapter 7 bankruptcy proceeding in the U.S. Bankruptcy Court for the Central District of California, Case No. 2:20-bk-10263-vz (the “Chapter 7 Case”). On February 2, 2020, Plaintiff filed an adversary proceeding, No. 2:20-ap-01026-vz (the “Adversary Proceeding”). The Adversary Proceeding included as defendants all the defendants in this case, with the exception of CAM (who was not yet the owner of the Property). By the Adversary Proceeding, Plaintiff sought a determination that the Assignment [from IndyMac to Deutsche Bank National Trust Company] … (a). Was forged and fraudulent and invalid; (b) That the notice of default…and notice of sale…are defective among other things based upon the inaccurate calculations of the amount claimed to be owing as well as the Assignment…; (c) That Defendants and each of them knew that it was forged or invalid and that they may not proceed with any foreclosure; (d) that Defendants be required to record a Notice of Rescission of Notice of Sale and further record any order issued herein declaring the Assignment and Modification are invalid[.]

Plaintiff also sought compensatory and punitive damages, attorney fees, and a determination of whether he owed any money to Pentagon due to its “inept investigation of the liens on his house before approving the loan it made to him” and damages caused by Pentagon holding off on funding its loan to him.

On March 12, 2020, Statebridge, Wilmington, and ZBS Law, LLP (the foreclosure trustee) filed a motion to dismiss the Adversary Proceeding. Plaintiff did not oppose the motion. On or about March 24, 2020, Wilmington received relief from the 11 U.S.C. § 362 automatic bankruptcy stay, and on April 3, 2020, a foreclosure sale was conducted, with the Property being sold to CAM. A trustee’s deed upon sale was recorded on April 6, 2020.

For a motion to be relieved as counsel under CCP section 284, subdivision¿(2), California Rules of Court rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel – Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP section 284(2) is brought instead of filing a consent under CCP section¿284(1) (made on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel – Civil form (MC-052)); (3) service of the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney’s Motion to be Relieved as Counsel – Civil form (MC-053)).¿ (Cal. Rules of Court, rule 3.1362.)¿

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

Counsel filed Civil forms MC-051, MC-052, and MC-053. The moving papers were served on the client and opposing counsel by overnight delivery on September 7, 2022. (See Proof of Service.) Counsel attests that his health conditions require that he cease practicing law. (MC-052 ¶ 2.) He has retained co-counsel Robert J. Evans of Anderholt Evan, LLP, to assist him in winding-up his law practice. (Id.) The client, however, would not sign a Substitution of Attorney Form. (Id.)

There is no opposition to this motion. “Good cause” has been adequately demonstrated by movant. Trial in this matter is not set until September 5, 2023, leaving Plaintiff adequate time to retain new counsel, if necessary. Moreover, it appears that Plaintiff is still represented by Mr. Ira Bibbero as the primary attorney of record.

Any party may submit on the tentative ruling by contacting the courtroom via email at smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.