Case Number: KS021033 Hearing Date: January 22, 2020 Dept: J

HEARING DATE: Wednesday, January 22, 2020

NOTICE: OK[1]

RE: Cadles of West Virginia LLC v. Wavra (KS021033)

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Judgment Creditor Cadles of West Virginia LLC’s APPLICATION FOR ORDER FOR

THE SALE OF DWELLING

Responding Party: None (unopposed, as of 1/16/20, 7:53 a.m.)

Tentative Ruling

Judgment Creditor Cadles of West Virginia LLC’s Application for Order for the Sale of Dwelling is DENIED.

Background

On September 14, 2017, “Judgment Based on Sister-State Judgment” was filed in favor of Cadles of West Virginia LLC, Assignee of Record for National Credit Union Administrative Board in its capacity as Liquidating Agent for Huran River Area Credit Union (“Judgment Creditor”) and against Defendant Gale G, Wavra (“Judgment Debtor”). On February 20, 2018, an “Abstract of Judgment” was filed.

On February 20, 2018, an abstract of judgment was issued. On August 13, 2019, a writ of execution was issued. On September 10, 2019 an Order to Show Cause Why an Order for Sale of Dwelling Should Not Issue was filed.

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…” (CCP § 704.740(a).)

“Section 704.740 is part of the homestead laws. ‘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.)

Discussion

Judgment Creditor applies for an order for sale of the dwelling commonly known as 419 Willowgrove Avenue, Glendora, California (“the Property”) owned by Judgment Debtor.

Request for Judicial Notice

The court rules on Judgment Creditor’s Request for Judicial Notice as follows: GRANTED as to Exhibit B (i.e., Abstract of Judgment recorded April 27, 2018); GRANTED as to Exhibit C (i.e., grant deed recorded March 20, 1991) and GRANTED as to Exhibit D (i.e., Affidavit—Death of Trustor, Trustee and Beneficiary recorded April 20, 2009).

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.” (CCP § 704.750(a).)

Plaintiff has provided the court with a copy of the levying officer’s notice dated August 23, 2019. (Strom Decl., ¶11, Exh. F.) The application was filed on August 29, 2019, less than 20 days from the date of the levying officer’s notice; as such, CCP § 704.750(a) is 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.” (CCP § 704.770(a).)

“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.” (CCP § 704.770(b) [emphasis added].)

The proof of service filed on October 15, 2019 reflects that on September 23, 2019 “Occupant/or Gale G. Wavra” was served with the “Notice – Important Legal Notice to Homeowner” (i.e., Judicial Council Form EJ-180, Order to Show Cause, and application via posting at the Property.

The court notes, however, that there is no proof of service indicating that Plaintiff served a copy of the OSC, application and EJ-180 notice on Wavra via personal or mail-service, as per CCP § 704.770(b)(1)); as such, it appears CCP § 704.770(b) is not satisfied.

Requirements of Application

“The judgment creditor’s application shall be made under oath, shall describe the dwelling, and shall contain all of 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.” (CCP § 704.760 [emphasis added].)

Judgment Creditor states there is no homeowner’s exemption or disabled veteran’s exemption reflected in the records of the Los Angeles Country Recorder for the dwelling. (Strom Decl.,¶7.) Judgment Creditor is informed and believes that Wavra is over 65 years of age and thus entitled to a statutory homestead exemption as set forth in CCP § 704.730(3)(a) in the amount of $175,000.00. (Id., ¶12.)

Judgment Creditor provides an appraisal report by Randy Sonns (“Sonns”) issued as of March 21, 2019, which appraises the Property at $790,000.00. (Sonns Decl., ¶3, Exh. A.) Judgment Creditor states that there are no liens and encumbrances either senior or junior to Judgment Creditor’s abstract of judgment. (Strom Decl., ¶¶14-15.)

However, while Judgment Creditor has stated the maximum amount of homestead exemption to be $175,000, Judgment Creditor fails to clearly state “whether the dwelling is a homestead” and “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” as required by CCP § 704.760(b).

The requirements of CCP § 704.760, therefore, have not been satisfied.

Evidentiary Requirements

“An application for an order for sale of a dwelling must provide at the hearing competent evidence of the following:

(1) The fair market value of the property by a real estate expert;

(2) Litigation guarantee or title report that contains a legal description of the property, the names of the current owners, a list of all deeds of trust, abstracts of judgments, tax liens and other liens recorded against the property, whether a declaration of homestead has been recorded, whether a current homeowner’s exemption or disabled veteran’s exemption has been filed with the county assessor, and the persons claiming such exemption;

(3) The amount of any liens or encumbrances on the dwelling, and the names and addresses of the lienholders and when the judgment creditor’s lien attached. The judgment creditor must ascertain the precise amounts of obligations secured by senior liens by making a written demand for beneficiary statements from senior lienholders pursuant to Civil Code section 2943. The judgment creditor may need to conduct an examination pursuant to Code of Civil Procedure sections 708.120 or 708.130 to determine the precise amounts of the junior liens, the daily rate of interest due on the senior and junior liens, and encumbrances of record; and

(4) The date of service on the judgment creditor of the levying officer’s notice that the dwelling was levied upon.” (Local Rule 3.223(a).)

Plaintiff has submitted a real estate appraisal of the Property by Sonns, as well as a litigation guarantee; the latter document, however, does not contain all of the information listed in Local Rule 3.223(a)(2).

For the foregoing reasons, the application is DENIED.

[1] The application was filed August 29, 2019 and originally set for hearing on December 13, 2019. On December 6, 2019, the court reset the December 13, 2019 hearing, on its own motion, to January 22, 2020. On December 17, 2019, moving party filed and mail-served a Notice of Continuance of Hearing and Order of Application for Issuance of Order for Sale of Dwelling.