2017-00220709-CU-PT

In Re: 5703 28th Street, Sacramento, CA 95824

Nature of Proceeding: Hearing Re: Surplus Funds

Filed By: Walker, Katherine S.

This matter was continued from December 20 to this date to allow the filing of a Declaration by Lloyd Hubbard in support of his claim to the funds.

The Court has reviewed the supplemental papers filed by Lloyd Hubbard on January 5, 2018.

The Trustee deposited $83,043.12 with the Court as surplus funds after the sale of the property. The property was sold on August 22, 2017 for the price of $146,200.

Trustee noted in Attachment 11a, 11b, and 12 that by way of joint tenancy it would appear the funds would be returned to Lloyd E. Hubbard, only son and living heir to Ishmel F. Hubbard, as these are the former owners of the property by joint tenancy. However, the trustee received a letter from Dorothy Franklin on October 2, 2017 disputing return of funds to Lloyd E. Hubbard, thus the funds were deposited due to conflicting claims.

On November 27, 2017, Dorothy Franklin filed a claim in response to the Clerk’s Notice of Hearing that was sent to the parties on October 18, 2017. Claimant Dorothy Franklin (hereinafter “Franklin”) is the daughter of Ishmel’s sister,

Earline Fletcher (hereinafter “Earline”). According to Franklin’s declaration accompanying her claim, Earline died in 2000. Franklin seeks a determination that Earline’s heirs are entitled to a share of the Surplus Funds based on Franklin’s allegations that misrepresentations were made to Earline regarding the Subject Property.

Lloyd E. Hubbard was the trustor of the property at the time of the sale. Lloyd Hubbard submitted a document dated November 20 [but not filed until December 14, 2017] entitled “Notice of Statement of Lloyd E. Hubbard’s Claim to Surplus funds by Trustors Pursuant to Their Interest under California Civil Code section 2924k(a)(4). The one page document referred to “such supplemental declarations, affidavits, memorandums of points and authorities as may hereinafter be filed with the court.” The Court continued the matter to this date to allow the filing of supplemental papers to support the claim of Lloyd Hubbard.

Claimant has filed supporting evidence that Lloyd E.Hubbard (“Claimant”) held title to the Subject Property as a joint tenant with his mother Ishmel F. Hubbard. When Ishmel died in 2013, the entirety of the Subject Property

became the property of Claimant via the right of survivorship characteristic of joint tenancies. On or about August 22, 2017, Petitioner Western progressive, LLC sold the Subject Property. (Decl. Hubbard ¶ 2) After the repayment of the underlying securitization, $83,043.12 in excess funds remained. (Id., ¶ 3.) At the time of the Trustee’s Sale, title to the Subject Property just prior to the non-judicial foreclosure sale was held by Ishmel F. Hubbard (hereinafter “Ishmel”) and Lloyd E. Hubbard as joint tenants. (Hubbard Decl., ¶ 5, Exhibit 2) Ishmel is the mother of Claimant. (Id.) Ishmel passed away on or about May 28, 2013. (Id. ¶ 6, Exhibit 3 (Death Certificate).) Claimant is the only heir to Ishmel. (Id., ¶ 7.) When the Subject Property was foreclosed on in 2017, Claimant held sole title to the subject property. Per §2924k(a)

(4), the court is to distribute the surplus proceeds “[t]o 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.” Civil Code section 2924k(a)

(4). Because Claimant was the sole owner of the Subject Property at the time of the trustee’s sale, per §2924k(a)(4), this Court orders the funds be distributed to him.

Parenthetically, it would appear Claimant Frankilin is time barred from making her claims. Any alleged misrepresentations made by Claimant to Earline must have

occurred in or before 2000, the year Earline died. This was almost 18 years ago. All of the applicable status of limitations for any potential claims have run. Franklin was not a vested owner of record of the Subject Property. If Franklin wishes to bring an action against Claimant for any alleged misrepresentations or fraud, she must file a separate civil action bringing any such claims. The statutes governing this hearing concern surplus funds, and Civ. Code §2924 et seq., requires that the court distribute the funds to vested owner of record. Claimant, at the time of the trustee’s sale.

The funds are awarded to Lloyd E. Hubbard.

The Court will sign the proposed order.