Case Number: 19PSCP00030 Hearing Date: March 02, 2020 Dept: J

HEARING DATE: Monday, March 2, 2020

NOTICE: OK

RE: Pentech Financial Services, Inc. v. Medina, et al. (19PSCP00030)

______________________________________________________________________________

WVJP 2017-2, as Assignee for Judgment Creditor Pentech Financial Services, Inc.’s

APPLICATION FOR ORDER FOR THE SALE OF DWELLING

Responding Party: Judgment Debtors, Rene Medina and Maria Medina

Tentative Ruling

See below.

Background

On April 20, 2009, a judgment was filed in case styled Pentech Financial Services, Inc. v. Medina, et al., Case No. 1-08-CV-127466 (“Underlying Action”), in favor of Plaintiff Pentech Financial Services, Inc. (“Pentech”) and against Defendants Rene Medina, individually and dba Cuertitos and Botanas Coahuila, and Maria Medina (collectively, “Judgment Debtors”) in the amount of $47,563.40. (Tehrani Decl., ¶3, Exh. 1.) On March 14, 2018, an “Acknowledgment of Assignment of Judgment Filed on April 20, 2009” was filed in the Underlying Action, which reflected that the April 20, 2009 judgment had been assigned on March 6, 2018 to WVJP 2017-2, LP (“WVJP”). (Id., ¶4, Exh. 2.) On July 31, 2018, WVJP filed an “Application for and Renewal of Judgment.” (Id., ¶5, Exh. 3.)

On June 20, 2011, an abstract of judgment was issued; it was filed and recorded on August 3, 2011, with the Recorder’s Office for Los Angeles County. (Id., ¶6, Exh. 4.) On July 30, 2018, an amended abstract of judgment was issued; it was filed and recorded on August 9, 2018 with the Recorder’s Office for Los Angeles County. (Id., ¶7, Exh. 5.)

On December 5, 2018, a writ of execution was issued. (Id., ¶14, Exh. 10.)

On January 15, 2019 an Order to Show Cause Why Order of Sale of Dwelling Should Not Be Made was filed. On March 12, 2019, the Order to Show Cause hearing was vacated, on the basis that Rene Medina had filed for Chapter 13 bankruptcy. On December 23, 2019, the bankruptcy was dismissed.

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 414 W. Center St., Pomona, CA 91768 (“the Property”) owned by Judgment Debtors.

CCP § 2015.5 Non-Compliance

At the outset, the court notes that the Declaration of Mahammad Tehrani (“Tehrani”) was executed “under penalty of perjury under the laws of the United States of America.” Tehrani is instructed to refile his declaration at or before the time of the hearing in compliance with CCP § 2015.5.

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 December 27, 2018. (Tehrani Decl., ¶15, Exh. 11.) The application was filed on January 4, 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].)

Proofs of service filed on February 4, 2019 reflects that “Jose Veliz, Occupant” was personally served on January 24, 2019 with the order to show cause, application and notice of hearing and that the aforesaid documents were mailed to Rene Medina and to Maria Medina on January 30, 2019.

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 advises that the most recent tax report from the Los Angeles County Tax Assessor reflects that there is no homeowner’s exemption or disabled veteran’s exemption on the Property. (Tehrani Decl., ¶10, Exh. 7.) Based on the Title Report and the Tax Report, Tehrani is informed and believes that the Property is not the Judgment Debtors’ primary residence. (Id., ¶11.) It is believed that the dwelling is thus not a homestead ands it not subject to the homestead exemption. (Application, ¶15.)

Judgment Creditor represents that there are total liens of $518,446.92 on the Property, but that senior liens on the Property total $265,998.90. (Tehrani Decl., ¶8, Exh. 6.)

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).)

Judgment Creditor provides an appraisal report by Anthony Whitmarsh of A.D. Whitmarsh Appraisal issued as of July 2, 2018, which appraises the Property at $450,000.00. (Id., ¶13, Exh. 9.) Judgment Creditor has also submitted a litigation guarantee. (Id., ¶8, Exh. 6.)

Judgment Creditor attaches demand letters to, and responses from, lienholders, which were used to determine the total number and amount of liens on the Property. (Id., ¶12, Exh. 8.) Judgment Creditor served Judgment Debtors with the notice of levy, writ of execution, and exemption information via mail on December 18, 2019, personally served an occupant with same on December 17, 2018 and posted same in a conspicuous place on the Property on December 17, 2018. (Id., ¶18, Exh. 14.)

A homestead means “the principal dwelling (1) in which the judgment debtor or the judgment debtor’s spouse resided on the date the judgment creditor’s lien attached to the dwelling, and (2) in which the judgment debtor or the judgment debtor’s spouse resided continuously thereafter until the date of the court determination that the dwelling is a homestead.” (CCP § 704.710(c).) The amount of the homestead exemption is $175,000.00 if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at the attempted sale of the homestead a person 65 years of age or older. (CCP § 704.730(a)(3)(A).) “If the records of the county tax assessor indicate that there is not a current homeowner’s exemption or disabled veteran’s exemption for the dwelling claimed by the judgment debtor or the judgment debtor’s spouse, the burden of proof that the dwelling is a homestead is on the person who claims that the welling is a homestead.” (CCP § 704.780(a)(1).)

Judgment Creditors, in turn, submit that there is no equity in the Property (R. Medina Decl., ¶8), that the Property was appraised at $350,000.00 as of November 17, 2019 (Id., ¶9, Exh. F); that the current mortgage on the Property is $238,085.71 (Id., ¶11, Exh. G); that Rene Medina owes the Los Angeles Tax Collector $2,491.01 (Id., ¶12, Exh. H), Superior Packaging Solutions, Inc. $28,875.00 (Id., ¶13, Exh. I), the State of California Employment Development Department $2,500.00 (Id., ¶14) and the Internal Revenue Service $5,000.00 for 2018 and $10,000 for 2019 (Id., ¶15, Exh. J); and that he and his wife are over the age of 65 years and claim a homestead exemption of $175,000.00 (Id., ¶16.) Judgment Creditors further argue that they have not undergone a debtor’s examination and that they have other real property that is available to be sold to pay Judgment Creditor, including vacant land in Pomona that has an estimated value between $75,000.00 and $175,000.00 (assessed value $94,549.00) and which has no mortgage. (Response, ¶22.)

Judgment Debtors, however, have not refuted Judgment Creditor’s contention that the Property is not the principal residence of Judgment Debtors. Judgment Debtors have also failed to provide the court with any documentary evidence regarding their ages.

The court determines that Judgment Debtors have not carried their burden of proof as to whether the Property is a homestead. Accordingly, the court need not make a determination as to the fair market value of the Property because the sale of the Property may proceed in the same manner as like nonexempt property. (CCP § 704.780(b) [“If the court determines that the dwelling is not exempt, the court shall make an order for sale of the property in the manner provided in Article 6 (commencing with Section 701.510) of Chapter 3”].)

The court makes an order for sale of the Property in the manner provided in Article 6 (commencing with Section 701.510) of Chapter 3.

Case Number: 19PSCP00043 Hearing Date: March 02, 2020 Dept: J

HEARING DATE: Monday, March 2, 2020

NOTICE: OK

RE: Pentech Financial Services, Inc. v. Medina, et al. (19PSCP00043)

______________________________________________________________________________

WVJP 2017-2, as Assignee for Judgment Creditor Pentech Financial Services, Inc.’s

APPLICATION FOR ORDER FOR THE SALE OF DWELLING

Responding Party: Judgment Debtors, Rene Medina and Maria Medina

Tentative Ruling

See below.

Background

On April 20, 2009, a judgment was filed in case styled Pentech Financial Services, Inc. v. Medina, et al., Case No. 1-08-CV-127466 (“Underlying Action”), in favor of Plaintiff Pentech Financial Services, Inc. (“Pentech”) and against Defendants Rene Medina, individually and dba Cuertitos and Botanas Coahuila, and Maria Medina (collectively, “Judgment Debtors”) in the amount of $47,563.40. (Tehrani Decl., ¶3, Exh. 1.) On March 14, 2018, an “Acknowledgment of Assignment of Judgment Filed on April 20, 2009” was filed in the Underlying Action, which reflected that the April 20, 2009 judgment had been assigned on March 6, 2018 to WVJP 2017-2, LP (“WVJP”). (Id., ¶4, Exh. 2.) On July 31, 2018, WVJP filed an “Application for and Renewal of Judgment.” (Id., ¶5, Exh. 3.)

On June 20, 2011, an abstract of judgment was issued; it was filed and recorded on August 3, 2011, with the Recorder’s Office for Los Angeles County. (Id., ¶6, Exh. 4.) On July 30, 2018, an amended abstract of judgment was issued; it was filed and recorded on August 9, 2018 with the Recorder’s Office for Los Angeles County. (Id., ¶7, Exh. 5.)

On December 5, 2018, a writ of execution was issued. (Id., ¶14, Exh. 10.)

On January 16, 2019 an Order to Show Cause Why Order of Sale of Dwelling Should Not Be Made was filed. On March 12, 2019, the Order to Show Cause hearing was vacated, on the basis that Rene Medina had filed for Chapter 13 bankruptcy. On December 23, 2019, the bankruptcy was dismissed.

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 516 Lincoln Ave., Pomona, California 91767 (“the Property”) owned by Judgment Debtors.

CCP § 2015.5 Non-Compliance

At the outset, the court notes that the Declaration of Mahammad Tehrani (“Tehrani”) was executed “under penalty of perjury under the laws of the United States of America.” Tehrani is instructed to refile his declaration at or before the time of the hearing in compliance with CCP § 2015.5.

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 December 27, 2018. (Tehrani Decl., ¶15, Exh. 11.) The application was filed on January 4, 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].)

Proofs of service filed on February 4, 2019 reflects that “Occupant” was served on January 30, 2019 with the order to show cause, application and notice of hearing via a posting of said documents on the door and that the aforesaid documents were mailed to Rene Medina and to Maria Medina on January 31, 2019.

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 advises that the most recent tax report from the Los Angeles County Tax Assessor reflects that the Property is subject to a homeowner’s exemption, though it does not specify the amount. (Tehrani Decl., ¶10, Exh. 7.) It does not specify whether there is a disabled veteran’s exemption. (Id.) Based on the Title Report and the Tax Report, Tehrani is informed and believes that the Property is the Judgment Debtors’ primary residence. (Id., ¶11.)

Judgment Creditor represents that there are total liens of $906,067.64 on the Property, but that senior liens on the Property total $653,619.62. (Application, ¶16; Tehrani Decl., ¶8, Exh. 6.)

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).)

Judgment Creditor provides an appraisal report by Anthony Whitmarsh of A.D. Whitmarsh Appraisal issued as of July 2, 2018, which appraises the Property at $900,000.00. (Id., ¶13, Exh. 9.) Judgment Creditor has also submitted a litigation guarantee. (Id., ¶8, Exh. 6.)

Judgment Creditor attaches demand letters to, and responses from, lienholders, which were used to determine the total number and amount of liens on the Property. (Id., ¶12, Exh. 8.) Judgment Creditor served Judgment Debtors with the notice of levy, writ of execution, and exemption information via mail on December 18, 2019, personally served an occupant with same on December 17, 2018 and posted same in a conspicuous place on the Property on December 17, 2018. (Id., ¶18, Exh. 14.)

A homestead means “the principal dwelling (1) in which the judgment debtor or the judgment debtor’s spouse resided on the date the judgment creditor’s lien attached to the dwelling, and (2) in which the judgment debtor or the judgment debtor’s spouse resided continuously thereafter until the date of the court determination that the dwelling is a homestead.” (CCP § 704.710(c).) The amount of the homestead exemption is $175,000.00 if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at the attempted sale of the homestead a person 65 years of age or older. (CCP § 704.730(a)(3)(A).)

Judgment Creditors, in turn, submit that there is no equity in the Property (R. Medina Decl., ¶8), that the Property was appraised at $820,000.00 as of November 17, 2019 (Id., ¶9, Exh. F); that the current mortgage on the Property is $612,570.00 (Id., ¶11, Exh. G); that Rene Medina owes the Los Angeles Tax Collector $2,491.01 (Id., ¶12, Exh. H), Superior Packaging Solutions, Inc. $28,875.00 (Id., ¶13, Exh. I), the State of California Employment Development Department $2,500.00 (Id., ¶14) and the Internal Revenue Service $5,000.00 for 2018 and $10,000 for 2019 (Id., ¶15, Exh. J); and that he and his wife are over the age of 65 years and claim a homestead exemption of $175,000.00 (Id., ¶16.) Judgment Creditors further argue that they have not undergone a debtor’s examination and that they have other real property that is available to be sold to pay Judgment Creditor, including vacant land in Pomona that has an estimated value between $75,000.00 and $175,000.00 (assessed value $94,549.00) and which has no mortgage. (Response, ¶22.)

Judgment Debtors have failed to provide the court with any documentary evidence regarding their ages. Judgment Creditor, however, do not appear to dispute a $175,000.00 homestead but contend that even if a $175,000.00 homestead is given to Judgment Creditors, there remains equity in the Property. The Superior Packaging Solutions, Inc. lien is currently valued at $12,000.00, not $28,875.00. (Tehrani Decl., ¶12, Exh. 8.) The IRS liens are for tax years after WVJP’s lien and are thus junior to it.

With that said, the court notes that there is an $80,000.00 discrepancy between Judgment Creditors’ and Judgment Debtors’ respective appraisals of the Property. The court is inclined to appoint a qualified appraiser to assist the court in determining the fair market value of the property, as per CCP § 704.780(d).