Case Number: KC048582 Hearing Date: July 02, 2014 Dept: O

Rose v. Atiga (KC048582)

Assignee of Judgment, San Marino Holdings, Inc.’s APPLICATION FOR ORDER FOR SALE OF DWELLING

Respondent: Judgment Debtor Atiga

TENTATIVE RULING

Assignee of Judgment, San Marino Holdings, Inc.’s application for order for sale of dwelling is DENIED without prejudice.

The judgment creditor must file the application for an order of sale in the county where the dwelling is located. (See CCP 704.750.) The court shall determine whether the dwelling is exempt. If the court determines that the dwelling is exempt, the court shall determine the amount of the homestead exemption and the fair market value of the dwelling. 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. (CCP 704.780(b).)

Procedural Requirements

1. Hearing

A hearing date must be set no later than 45 days after the application is filed (unless a showing of good cause is made for a later date). (CCP 704.770(a).)

Although the hearing date (7/2/14) is not within 45 days from the date the application was filed (5/21/14), good cause exists for a later date because of the court’s heavy docket.

2. OSC re Sale of Dwelling

The court must also issue an OSC why an order for sale should not be made in accordance with the judgment creditor’s application. (CCP 704.770(a) – The judgment creditor should submit the OSC for issuance when the application is filed.)

Plaintiff has submitted an OSC.

3. Service

At least 30 days before the hearing, the judgment creditor must satisfy the following service requirements:

1. Service on judgment debtor: The creditor must serve the judgment debtor with copies of the OSC, application for order of sale and the official notice of hearing form. Service may be made personally or by mail. (CCP 704.770(b)(1))

2. Service at dwelling: The creditor must also personally serve the above documents on an occupant of the dwelling; or, if there is no occupant present when service is attempted, must post the documents in a conspicuous place at the dwelling. (CCP 704.770(b)(2))

Judgment Creditor failed to file a proof of service, establishing that it satisfied the service requirements. Judgment debtor avers he was never properly or timely served with a copy of the OSC, as does his attorney. Application is DENIED without prejudice.

Even if Service is cured, application is Denied for the following reason:

The minimum bid under CCP 704.800(a) is calculated by adding the amounts of the homestead exemption, trust deeds and judgment liens while excluding the value of the lien of the executing lienholder. (Bratcher v. Buckner (2001) 90 Cal.App.4th 1177, 1190.)

Judgment creditor has submitted sufficient evidence establishing the market value of the property at $1,450,000.00. The parties agree that the amount of the exemption is $175,000.00. However, there are multiple federal tax liens on the property, but it is unclear how much the lien is. Further, there is a senior lien owned by Steven Wales for $75,000.00.

Because the federal tax lien is unknown, it is unclear if there is sufficient equity in the property to partially satisfy Plaintiff’s judgment in the sum of $123,049.84.

Application is DENIED without prejudice.