2008-00013967-CU-OR

Robert Wagner vs. Feliciano Olivares

Nature of Proceeding: OSC Re: Sale of Dwelling (8005 Sunset Ave., Fair Oaks, Ca 95628)

Filed By: Danielson, Anthony I.

On May 21, 2018, this Court entered an order on Judgment Creditor Piedmont Capital Management, LLC’s (“Judgment Creditor”) application for issuance of order to show cause why order for sale of dwelling should not be made. Judgment Creditor seeks an order to sell property owned by Judgment Debtor Feliciano Olivares (“Judgment Debtor”) at 8005 Sunset Avenue in Fair Oaks, California, to enforce a judgment obtained against Olivares in 2010. Judgment Creditor also seeks an order to sell another property owned by Olivares located at 4849 Marietta Way in Carmichael, California.

The original judgment, entered on July 22, 2010, was for $150,000. The judgment was renewed on January 31, 2018 in the amount of $260,536.88. The entirety of the judgment remains unsatisfied. The judgment was recorded on May 23, 2011.

The Code of Civil Procedure requires that the judgment creditor must serve the judgment debtor with copies of the OSC, application for order of sale, and the official notice of hearing form. This service may be made personally or by mail. (See Code Civ. Proc. § 704.770(b)(1).) Here, Judgment Creditor has filed one proof of service indicating service on Judgment Debtor but the proof of service is unclear. The proof indicates that on May 23, 2018, the Judgment Creditor served by mail the following documents: “NOTICE OF HEARING; ORDER ON APPLICATION FOR ORDER OF SALE OF DWELLING; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF ANTHONY I. DANIELSON, ESQ.” The proof of service does not indicate to which property the documents pertained. The proof of service also does not indicate that the application for order of sale was included with the documents served

by mail. Therefore, Judgment Creditor must clarify what documents were served on Judgment Debtor, both in terms of specific documents and the property to which the documents pertained.

Assuming valid service is proven, the Court rules as follows:

Default judgment against Judgment Debtor was entered on July 22, 2010. (See Danielson Decl. ¶ 3, Exh, B.) An abstract of judgment was recorded on May 23, 2011 in the official records of the Sacramento County Recorder’s Office. (Danielson Decl. ¶ 6, Exh. E.) On November 30, 2017, Plaintiffs Robert and Amber Wagner assigned their judgment interest to Judgment Creditor. Judgment Creditor filed its assignment of judgment with the Court on December 8, 2017, which was then served on Judgment Debtor on February 18, 2018. (See Danielson Decl. ¶ 5, Exh. D.)

Judgment Debtor owns the subject property through a grant deed dated October 27, 2000. (See Danielson Decl. ¶ 12, Exh. J (copy of grant deed); ¶ 15, Exh. L (litigation guarantee).) A writ of execution related to the judgment was issued by the Court on January 25, 2018. (Danielson Decl. ¶ 7, Exh. F.) Judgment Creditor recorded a levy on the subject property as of April 6, 2018 in the official records of the Sacramento County Recorder’s Office. (Danielson Decl. ¶ 8, Exh. G.) Judgment Creditor then filed an application for order of sale of dwelling on May 16, 2018. On May 21, 2018, the Court entered the order setting the OSC hearing date.

At the OSC hearing, the Court must determine (1) the amount of the homestead exemption, if any; (2) determine the fair market value of the dwelling; and (3) determine whether the sale of the dwelling is likely to produce a bid high enough to satisfy any part of the judgment creditor’s judgment. (See Code Civ. Proc. § 704.780 (b).)

The judgment creditor’s application must be made under oath, must describe the dwelling, and contain the following: (a) a statement of whether the records of the county tax assessor indicate 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 the records of the county recorder indicate that a homestead declaration under Article 5 (commencing with Code of Civil Procedure section

704.910) that describes the dwelling has been recorded by the judgment debtor or the spouse of the judgment debtor; and (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. (Code Civ. Proc. § 704.760.) If an order for sale of the property is issued, Code of Civil Procedure section 704.850(a)(1) requires that the levying officer shall distribute the proceeds of sale of a homestead in a certain order, with discharge of all liens and encumbrances, if any, on the property being distributed first.

Judgment Creditor does not believe the subject property is a homestead, and the records of the Sacramento County Assessor do not show any homestead exemption or disabled veteran’s exemption on file. (See Danielson Decl. ¶ 13, Exh. K.) If the county tax assessor’s records do not show a current homeowner’s or disabled veteran’s exemption, the burden of proof is on the judgment debtor as to whether the

dwelling is a homestead. (Code Civ. Proc. § 704.780(a)(1).) To date, Judgment Debtor has not filed anything with the Court regarding the application for order of sale.

With regard to the amount of any liens or encumbrances, Judgment Creditor includes a litigation guarantee related to the property. (See Danielson Decl. ¶ 15, Exh. L.) The declaration states that a request for beneficiary statement under Code of Civil Procedure section 2943 was mailed regarding a first mortgage on the property and that Judgment Creditor will inform the Court as to the current balance remaining on the mortgage at the OSC hearing. (See Danielson Decl. ¶ 16.) Additionally, the Court notes that Judgment Creditor has filed an application and order for appearance and examination of judgment debtor, scheduled for hearing on August 10, 2018. Presumably this hearing is to determine the amounts of the [any] junior liens or encumbrances showing on the property.

Therefore, at this point in time it does not appear that the Court may determine the current outstanding amount of all liens or encumbrances on the property. This is true even if Judgment Creditor provides an updated amount for the first mortgage on the property at the date of the hearing. The statutory scheme prevents the court from ordering the sale of the residence if the liens and encumbrances thereon will not be paid by the sale of the property. (Code Civ. Proc. §§ 704.800, 704.850; see also Little v. Community Bank (1991) 234 Cal.App.3d 355, 361.) A creditor who fails to set forth the amount of all liens and encumbrances on the dwelling may be liable to a purchaser at the execution sale. (See Little, 234 Cal.App.3d at 361 (judgment creditor’s failure to disclose tax liens on property subject to sale resulted in damages to purchaser).)

Additionally, Judgment Creditor did not submit a declaration from an independent appraiser regarding the fair market value of the dwelling. The Court may appoint a qualified appraiser to help determine the value of the dwelling. (See Code Civ. Proc. § 704.780(d).) Judgment Creditor attached printouts purportedly from Zillow and Trulia showing the “online estimates” of the fair market value. (See Danielson Decl. ¶ 17, Exh. M.) Zillow and Trulia are not public records or official publications. The estimates are not authenticated or dated, and are insufficient. Authentication problems aside, even if it had been requested [and it was not] there is “no official Web site” provision for judicial notice in California. (See L.B. Research & Education Foundation v. UCLA Foundation (2005) 130 Cal.App.4th 171, 180, fn. 2.) “Simply because information is on the Internet does not mean that it is not reasonably subject to dispute.” (Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1605, fn. 10.) Any future application should include a declaration from an independent appraiser, or such person who would have personal knowledge and could authenticate information based on his/her expertise.

Based on the foregoing, Judgment Creditor’s application is DENIED without prejudice.