2016-00203963-CU-PT

In Re: 1968 University Park Drive, Sacramento, CA 95825

Nature of Proceeding: Motion to Modify Order

Filed By: Eagleton, Benjamin H.

Alfred D’Souza’s unopposed motion to “modify order in part based on equitable relief; claim for surplus funds and motion for order to distribute surplus funds” is granted.

Moving Party’s request for judicial notice is granted.

On February 8, 2017, this issued an order for the Hearing re: Surplus Funds following the Trustee’s Sale of Real Property Located at 1968 University Park Drive Sacramento, California 95825. As noted in that order, $114,163.66 in surplus funds

was deposited with the clerk and the Court received a single claim in response to the

Notice of Hearing that was issued on December 1, 2016. Specifically, Claimant
University Park Homes of Sacramento submitted a verified claim for $16,165.22 based
on its status as a junior lienholder in connection with an assessment lien, based on the
former owner’s failure to pay regular assessments. The Court ordered that $16,165.22
shall be distributed to Claimant University Park Homes of Sacramento from the
$114,163.66 in surplus funds. The Court also ordered that the remaining funds are
subject to escheat in accordance with the Unclaimed Property Law (CCP § 1500 et
seq.)

Moving Party is the administrator of the estate of Austin E. D’Souza who was the owner of the subject real property prior to his death. The Trustee’s Sale was completed shortly after the decedent’s death. The hearing on the claim for surplus funds took place after the decedent died and before moving party was appointed as the administrator of the estate and thus no claim was made. Moving Party now seeks to modify the order so that the remaining funds are not sent to the State Controller’s Unclaimed Property fund and instead distributed to the administrator of the decedent’s estate so that the Probate proceeding is not delayed. Here, pursuant to CCP § 2924k, $16,165.22 of the $114,163.66 was first distributed to satisfy liens/encumbrances. Given that the decedent was the trustor, the estate is entitled to the remaining funds. (CCP § 2924k(4).) Further, moving party attached an “affidavit for collection of personal property” pursuant to Probate Code § 13100. Where the value of a decedent’s real and personal property is less than $150,000, such an affidavit may be used by a successor to collect property where the affiant shows that at least 40 days have passed since the death of the decedent as shown in a certified copy of a death certificate attached to the affidavit and contains a number of required statements. (Prob. Code § 13101.) The affidavit contains all of the required information. Moving party is thus entitled to collect the surplus funds that were due the decedent.

As a result, the February 8, 2017, order shall be modified to reflect that the surplus funds remaining after the distribution of the $16,165.22 to Claimant University Park Homes of Sacramento shall be distributed to moving party and shall not escheat to the State.

The Court will sign the proposed order.