Judge Thomas Falls, Case KC051923 2022-08-15 Tentative Ruling

Fidelity National Title Ins. Co., Assignee of Stewart Title Guaranty Co. v. Janelle Nava (KC051923)

Plaintiff’s APPLICATION FOR ORDER FOR SALE OF REAL PROPERTY INTEREST OF DEFENDANT/JUDGMENT DEBTOR JANELLE NAVA IN A DWELLING

Plaintiff’s APPLICATION FOR ORDER FOR SALE OF REAL PROPERTY INTEREST OF DEFENDANT/JUDGMENT DEBTOR JANELLE NAVA IN A DWELLING is TBD/TBC.

This action first commenced in 2006 when Plaintiff filed suit against Defendants/Judgment Debtors, Janelle Nava and Joseph Nava, (hereafter “Defendants”) in case no. KC048238J (hereafter “Action #1”) for breach of the promissory note, money had and received restitution to avoid unjust enrichment and conversion. The parties reached a settlement in Action #1, but Defendants failed to comply, leading to the instant breach of contract case (“Instant Case”). In the Instant Case, Defendants failed to answer, thus leading to the entry of default and default judgment. The Abstract of Judgment was recorded with the Los Angeles County Recorder on May 7, 2008. In 2009, the subject property was conveyed to the Judgment Debtor, Janelle Irene Nava, as her sole and separate property. On December 4, 2019, only the other Defendant, Joseph Angel Nava, (hereafter “Debtor”) filed a Chapter 13 petition under the U.S. Bankruptcy Court, case no. 2:19-bk-24187WB. However, his Schedules indicate that the Debtor has no interest in this Property and that this property is rental property. On June 20, 2020, the Bankruptcy Court

The Debtor’s Motion to Avoid Lien under 11 U.S.C. Section 522 (f). As a result of this Order, Plaintiff filed its Amended Proof of Claim in the Chapter 13 case in the amount of $114,026.08 on August 10, 2020. No payments have been received by Plaintiff from the Chapter 13 Trustee on this claim.

Plaintiff brings forth the instant motion pursuant to California Code of Civil Procedure section 704.740.

“The 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 obtained under this article and the dwelling exemption shall be determined under this article.” (Code Civ. Proc., § 704.740(b).)

Code of Civil Procedure section 704.750(b) states in pertinent part: “If the dwelling¿is located¿in a county other than the county where the judgment¿was entered:¿

(1) The judgment creditor shall apply to¿the superior¿court of the county where the¿dwelling¿is located.”¿

Here, the Abstract of Judgment was amended and recorded with the Los Angeles County Recorder’s Office on September 29, 2009. This court is in the County of Los Angeles.

Therefore, as the Property is located in¿the same county, Los Angeles, California, the Application¿was properly filed¿in this court.¿¿¿

“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 of Civil Procedure section 704.760¿requires the judgment creditor's application to contain all 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.”¿

Here, the Application states that the subject property is not subject to a homestead exemption because the property is a rental, by her own admission. First, Plaintiff explains that Janelle resides with Joseph in Glendora. This is evidenced by Joseph’s Schedule A/B wherein he states that this Property is rental property. Second, she (the judgment debtor) has already claimed a homestead exemption on the property in Glendora as reflected on the Schedule C that was filed with the Debtor’s Chapter 13 petition in December 2019. Considering that only one homestead is exempt, this subject property is not exempt.

Moreover, the Application states that the Property the Judgment Creditor lien is in the senior position in the amount of $114,026.08 in that its Abstract of Judgment was originally recorded in 2008.

“(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.”¿ (Emphasis¿added.)¿

Here, no Order to Show Cause Re: Sale of Dwelling (“OSC”) has been scheduled. Moreover, the application was filed in March but with a hearing date past 45 days as the hearing is in August.

Based on the foregoing, the Court wishes to hear from the parties as to the CCP § 704.750(a) and¿the CCP § 704.770 requirements.

[1] To the extent the creditor seeks to appoint a receiver to sell the property rather than proceed with a sheriff’s sale, it has not explained so.