Case Number: EC063548 Hearing Date: February 14, 2020 Dept: A

Han v Jiang

Motion for Order to Sell Dwelling

Calendar:

10

Case No.:

EC063548

Hearing Date:

February 14, 2020

Action Filed:

February 13, 2015

Judgment:

March 15, 2019

MP:

Plaintiff Yu Xuan Han

RP:

Defendant Yan Dong Jiang

ALLEGATIONS:

In this action, Plaintiff Yu Xuan Han (“Plaintiff”) alleges that he loaned Defendant Yan Dong Jiang (“Defendant”) 15,000,000.00 RMB (approximately $2,500,000.00 USD) on December 7, 2013, while in the People Republic of China. (Compl., ¶6.) The parties memorialized the loan in the form of an executed promissory note, such that the loan was to be repaid by March 18, 2014. (Id., ¶6, Ex. A.) Han alleges Defendant acknowledged receipt of the loan. (Id., ¶7, Ex. B.) On June 20, 2014, Defendant executed a guaranty to post all of his personal or real estate assets to satisfy the loan obligation. (Id., ¶8, Ex. B.) Han alleges that Defendant defaulted on the loan. (Id., ¶¶10-11.) Han is seeking damages in the amount of 18,000,000.00 RMB (approximately $3,000,000.00 USD) and a declaration that he has an interest and a constructive trust over real property that Defendant purchased with the loan money. (Id., ¶¶18, 21, 26.)

The Complaint, filed February 13, 2015, alleges causes of action for: (1) Breach of Contract; (2) Money Had and Received; and (3) Declaratory Relief.

PRESENTATION:

Judgment was originally entered on May 25, 2018, in favor of Plaintiff, and thereafter an Amended Judgment was entered on March 15, 2019. Pursuant to the Amended Judgment, Plaintiff was entitled to a total of $1,303,269.84 as-of May 25, 2018.

The instant application for an order to sell dwelling was filed by on October 04, 2019. Defendant opposed the application on December 02, 2019. A Declaration by Pablo Torres was additionally received by the Court on January 09, 2020.

RELIEF REQUESTED:

Plaintiff moves for an order compelling the sale of Defendant’s interest in the real property commonly known as 2331 S. Second Avenue, Arcadia, CA 91006 (the “Property”).

DISCUSSION:

Standard of Review – Real property dwellings may not be sold to enforce a money judgment except pursuant to a court order for sale obtained under Code of Civ. Proc. §704.710(a) and §704.740(a). See In re Marriage of Schenck (1991) 228 Cal. App. 3d 1474, 1480; see also Gonzalez v. Toews (2003) 111 Cal. App. 4th 977, 981 (Sale of judgment debtor’s dwelling to third party after levy is absolute under Code of Civ. Proc. §701.680, regardless of failure to obtain court order under Code of Civ. Proc. §704.140). Promptly after a real property dwelling has been levied upon, the levying officer must serve notice on the judgment creditor that the levy has been made and that the property will be released from the levy unless the creditor applies to the court for an order of sale. Code of Civ. Proc. §704.750(a); see also Marriage of Schenck, supra, 228 Cal. App. 3d at 1480. After the creditor files an application for an order of sale, the court sets a time and place for hearing and orders the debtor to show cause why an order for sale should not be made. Code of Civ. Proc. §704.770(a); see also Marriage of Schenck, supra, 228 Cal. App. 3d at 1481. The hearing must be scheduled not later than forty-five (45) days after the application is filed, unless the time is extended for good cause. Code of Civ. Proc. §704.770(a); see also Marriage of Schenck, supra, 228 Cal. App. 3d at 1481. The creditor is required to serve notice of the hearing on the debtor and an occupant of the dwelling under Code of Civ. Proc. §704.770(b). See Marriage of Schenck, supra, 228 Cal. App. 3d at 1479.

Pursuant to the grant deed attached as Exhibit 1 to the Declaration of Yan Dong Jiang, Defendant has established that the Property is owned by both Defendant and Lina Fan in joint tenancy, entitling Lina Fan to the protections provided under Code of Civ. Proc. §704.820. Pursuant to Code of Civ. Proc. §704.820, the execution for sale of a dwelling is limited only to the judgment debtor’s interest in the Property, and not the sale of the dwelling itself. Code of Civ. Proc. §704.820(a).

Additionally, the Court notes that Defendant represents the ability to raise sufficient funds to satisfy the judgment debt on or before February 15, 2020. As the instant hearing is set for February 14, 2020, and no additional information has been provided to the Court regarding satisfaction of the judgment debt, the Court will consider any information brought to the Court at the hearing.

Finally, to the extent that Defendant raises the unavailability of a fair market assessment of the Property, the Court notes that Plaintiff has submitted the Declaration of Pablo Torres on January 09, 2020, as an effort to cure any defect in the fair market value assessment. As no papers have been provided in response to the Declaration of Torres, the Court will consider any arguments provided to the Court at the hearing.

—

RECOMMENDED RULING: TBD

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff Yu Xuan Han’s Application for Order to Sell Dwelling came on regularly for hearing on February 14, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

TBD

DATE: _______________ _______________________________

JUDGE