Case Number: KS018189    Hearing Date: September 03, 2014    Dept: J

Re: James S. Davis v. Robert J. Cullen (KS018189)

APPLICATION FOR ORDER FOR SALE OF DWELLING

Moving Party: James S. Davis

Respondents: Robert J. Cullen and Teresa Cullen

Alleged Judgment Creditor James S. Davis (“Judgment Creditor”) applies for an order for sale of the dwelling of Judgment Debtors Robert J. Cullen and Teresa Cullen (collectively “Judgment Debtors”) pursuant to CCP §704.750. The application is made on the ground that Judgment Creditor has obtained a judgment against Judgment Debtors in the Superior Court of the State of California, Riverside County, Case No. RIC 349949, on August 27, 2003 and renewed on August 23, 2013.

A judgment creditor must obtain a court order of sale after a noticed hearing before a judgment debtor’s real property dwelling may be sold at an execution sale. The main purpose of the hearing procedure is to determine whether the dwelling is subject to the homestead exemption, and to ensure that the debtor is paid the amount of the exemption if the property is sold. A court order for sale and compliance with the homestead exemption are required whether it is an execution sale conducted by the sheriff or a judicial sale by a court-appointed receiver. (Wells Fargo Fin’l Leasing, Inc. v. D & M Cabinets (2009) 177 Cal.App.4th 59, 77–78.)

NOTICE OF LEVY; APPLICATION FOR ORDER OF SALE; FILING ABSTRACT OR COPY OF JUDGMENT (CCP § 704.750)

After levying on a real property dwelling, the levying officer must promptly notify the judgment creditor that the levy has been made. (Proof of the date of service may have to be shown at the court hearing; see L.A. Super.Ct. Rule 3.222(a)(4).) Within 20 days after receipt of such notice (longer if the notice is served by mail), the judgment creditor must: (1) apply to the court for an order for sale of the dwelling; and (2) file a copy of the application with the levying officer. The property will be released (and a new levy will have to be made) if the judgment creditor fails to timely comply with both of these steps. (CCP § 704.750(a).)

If the dwelling is not located in the county where the judgment was entered, the judgment creditor must also file with the application an abstract of judgment and pay a $40 fee. (CCP § 704.750 (b).)

It appears that the Judgment Creditor has not levied against the subject property nor received notice from the levying officer that the levy has been made, and he has not filed a copy of the present application with the levying officer as required under CCP § 704.750(a). (See Application ¶ 13: “The Judgment Debtor will be served with the Writ of Execution based on my Judgment and with Notice of Levy by the Los Angeles County Sheriff Office.”) Further, the subject dwelling is located in a county other than the county where the judgment was entered, but Judgment Creditor failed to file with the application an abstract of judgment and pay a $40 fee.

TIME SET FOR HEARING; ORDER TO SHOW CAUSE; SERVICE OF COPY OF ORDER AND DOCUMENTS (CCP § 704.770):

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).)

The Judgment Creditor has failed to submit an OSC for issuance when the application was filed and thus, and an OSC was never set by the court. Further, service and/or posting requirements under CCP § 704.770(b) have not been satisfied.

MERITS:

Even if the application complied with all procedural requirements, it appears that Judgment Creditor does not have standing to file this application since the underlying judgment was assigned to A-United, Inc. (Application, Exh. 7, Application for and Renewal of Judgment filed on August 23, 2013.) While the Judgment Creditor disputes the assignment, the issue concerning the validity of the assignment was previously litigated in Case No. KC061317, and the court ruled that A-United, Inc. was the valid assignee of the judgment entered in the underlying case. (Opposition, Exh. A, Judgment in KC061317, Pars. 5-8.) While Judgment Creditor contends that the judgment in Case No. KC061317 is not final because an appeal has been filed, the Judgment Debtors submit evidence that the appeal was dismissed. (Id., Exh. E.) While it also appears that Judgment Creditor moved to reinstate the appeal, it is unclear whether his motion was granted. Moreover, even if the appeal was reinstated and is pending, the judgment in Case No. KC061317 has not been reversed and therefore, the Judgment Creditor cannot apply for the sale of the dwelling at this time.

Also, the Judgment Debtors represent that on or about September 25, 2013, after the judgment was entered in Case No. KC061317, they transferred the subject property to Collect Access, LLC, an affiliated company of A-United, Inc. (Opposition, Page 3, Lines 8-23.) It appears that the Judgment Creditor was aware of the transaction and has filed an action in the Riverside Court to set aside the transfer. (Ibid.; Reply, Pars. 8-14.) However, at this time, the Judgment Debtors apparently do not own the subject property.

The application is denied.