Case Number: KC051120 Hearing Date: February 21, 2018 Dept: J

Re: Jesus Aguilar v. Cimax Home Mortgage, et al. (KC051120)

MOTION FOR AN ASSIGNMENT ORDER AND RESTRAINING ORDER

Moving Party: Plaintiffs’ Assignee Adam Harari dba Express Judgment Recovery

Respondent: No timely opposition filed (due 2/6/18)

POS: Moving OK

This was a fraud/breach of contract action arising out of the listing and sale of Plaintiffs Jesus Aguilar’s and Marisol Aguilar’s (“Plaintiffs”) restaurant business, Elia’s Tepeyac. The Complaint was filed on 8/2/07. The FAC was filed on 3/10/08. The SAC, filed on 7/10/08, asserts causes of action for:

Breach of Contract

Fraud

Specific Performance

Professional Negligence

Breach of Fiduciary Duty

Accounting

On 10/3/08, Defendants Cimax Home Mortgage (“Cimax”)’s, Business Wizard, Inc. (“Business Wizard”)’s, Carlos Aguirre (“Aguirre”)’s and Carlos Flores Carillo (“Carillo”)’s defaults were entered. On 10/29/08, default judgment was entered for Plaintiffs and against Defendants Cimax, Business Wizard, Aguirre and Carillo in the amount of $50,577.49.

On 5/18/15, an Acknowledgment of Assignment of Judgment was filed, wherein Plaintiffs assigned the 10/29/08 judgment to “Adam Harari dba Express Judgment Recovery” (“Harari”). On 3/11/16, Harari filed an “Affidavit of Identity and Order” as to “Rokitto Enterprises dba Cimax Home Mortgage, a California corporation.” On 5/16/16, an Order Restraining Third Party Trustee from Disbursing Money was filed.

On 2/1/17, Harari filed an “Affidavit of Identity and Order” as to “Broker Settlement Services.”[1] On 10/19/17, the court granted Harari’s motion to amend judgment to add Broker Settlement Services, Inc. as a judgment debtor. On 10/24/17, the “Amended Judgment” was filed. On 11/9/17, a “Temporary Restraining Order and Order Advancing Hearing on Motion for Assignment Order” was filed.

Plaintiffs’ Assignee, Adam Harari dba Express Judgment Recovery (“Harari”) moves the court for an order, per CCP § 708.510, instructing Broker Settlement Service, Inc. (“BSS”) to assign all its interests in rights to payment related to any loans due to it, to Harari to the extent necessary to pay the judgment in full, including accrued interest, costs and attorney’s fees through the date of payment.

“Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the judgment creditor or to a receiver appointed pursuant to Article 7 (commencing with Section 708.610) all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments, including but not limited to the following types of payments: (1) Wages due from the federal government that are not subject to withholding under an earnings withholding order. (2) Rents. (3) Commissions. (4) Royalties. (5) Payments due from a patent or copyright. (6) Insurance policy loan value.” CCP § 708.510(a). “The notice of the motion shall be served on the judgment debtor. Service shall be made personally or by mail.” CCP § 708.510(b). “[I]n determining whether to order an assignment or the amount of an assignment pursuant to subdivision (a), the court may take into consideration all relevant factors, including the following: (1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported in whole or in part by the judgment debtor. (2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments, including earnings assignment orders for support. (3) The amount remaining due on the money judgment. (4) The amount being or to be received in satisfaction of the right to payment that may be assigned.” CCP § 708.510(c).

“A right to payment may be assigned pursuant to this article only to the extent necessary to satisfy the money judgment.” CCP § 708.510(d). “When earnings or periodic payments pursuant to a pension or retirement plan are assigned pursuant to subdivision (a), the amount of the earnings or the periodic payments assigned shall not exceed the amount that may be withheld from a like amount of earnings under Chapter 5 (commencing with Section 706.010) (Wage Garnishment Law).” CCP § 708.510(e). “Where a specific amount of the payment or payments to be assigned is exempt by another statutory provision, the amount of the payment or payments to be assigned pursuant to subdivision (a) shall not exceed the amount by which the payment or payments exceed the exempt amount.” CCP § 708.510(f).

“The court has broad discretion in determining whether to order an assignment, and in fixing the amount to be assigned.” Ahart, CAL. PRAC. GUIDE: ENFORCING JUDGMENTS AND DEBTS (The Rutter Group 2017) ¶ 6:1440.

Additionally, “[w]hen an application is made pursuant to Section 708.510 or thereafter, the judgment creditor may apply to the court for an order restraining the judgment debtor from assigning or otherwise disposing of the right to payment that is sought to be assigned. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte.” CCP § 708.520(a). “The court may issue an order pursuant to this section upon a showing of need for the order. The court, in its discretion, may require the judgment creditor to provide an undertaking.” CCP § 708.520(b).

Harari’s counsel, Nathaniel R. Cowden (“Cowden”), is informed and believes that BSS is the beneficiary of “numerous deeds of trust, and has an assignable right to payment in such deeds of trust.” (Cowden Decl. ¶ 7). Although Cowden purports to attach each of these deeds of trust as Exhibits “C”-“M” to his declaration, they are not, in fact, attached. Accordingly, the motion is denied without prejudice.

[1] Note: Harari explains, in footnote one, that “Broker Settlement Services is the fictitious name of judgment debtor Rokitto Enterprises dba Cimax Home Mortgage. This motion seeks to add Broker Settlement Services, Inc. as a judgment debtor.”