Case Number: TC027825 Hearing Date: March 22, 2018 Dept: A

# 10. First American Title Insurance Co. v. Fred Hanes, et al.

Case No.: TC027825

Matter on calendar for: Application for order for sale of dwelling

Tentative ruling:

I. Background

This is an action by First American Title Insurance Co. against Defendants Fred Hanes, et al. for unjust enrichment, money paid, and breach of written contract – subrogation. First American obtained a judgment of $229,720.36, entered on September 4, 2014 against Defendants James William Buckley and John Whitney Buckley. On the same date, the Court, upon First American’s request, dismissed with prejudice Defendants Fred Hanes and Kathleen Ann Buckley Hanes.

First American has submitted an unopposed application for order for sale of dwelling. A proposed order has been submitted. The Court denied without prejudice First American’s previous application on June 8, 2017.

II. Discussion

A. Standard

A court order of sale is required to conduct a sale of a real property dwelling owned and resided in by a natural person judgment debtor. The “dwelling” may be an individual debtor’s house, condominium, planned development, or mobile home affixed to land. (CCP § 704.740(a).)

After levying on a real property dwelling, the levying officer must promptly notify the judgment creditor that the levy has been made. 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. (CCP § 704.750(a).)

The judgment creditor must file the application for an order of sale in the county where the dwelling is located. The application must be executed under penalty of perjury, and must state the following:

· The legal description of the property and the street address of the dwelling;

· Whether the records of the county tax assessor indicate that there is a current homeowner’s or disabled veteran’s exemption for the dwelling and, if so, the persons claiming such exemption;

· Whether the dwelling is a homestead and the amount of the homestead exemption, if any (this statement may be based on information and belief);

· Whether the county recorder’s records indicate that a homestead declaration has been recorded by the judgment debtor or his or her spouse; and

· The amount of any liens or encumbrances on the dwelling, and the names and addresses of the lienholders (the addresses should be those used by the county recorder for return of the instruments creating the liens after recording).

(See CCP § 704.760.)

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).) The court must also issue an order requiring the judgment debtor to appear and show cause (“OSC”) why an order for sale should not be made in accordance with the judgment creditor’s application. (CCP § 704.770(a).)

At least 30 days before the hearing, 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. (CCP § 704.770(b)(1).) 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).)

B. Analysis

The Los Angeles County Sheriff levied on the property pursuant to the writ of execution. (See Application, Exh. F.) Within 20 days after receipt of such notice, First American applied to the Court for an order for sale of the dwelling on February 13, 2018. It is unclear whether First American filed a copy of the application with the levying officer, as required by CCP § 704.750(a).

Next, the application was executed under penalty of perjury, and satisfied all the requirements of CCP § 704.760:

· The legal description of the property and the street address of the dwelling (Application, ¶ 5);

· Whether the records of the county tax assessor indicate that there is a current homeowner’s or disabled veteran’s exemption for the dwelling and, if so, the persons claiming such exemption (Id., ¶ 8);

· Whether the dwelling is a homestead and the amount of the homestead exemption, if any (this statement may be based on information and belief) (Id.);

· Whether the county recorder’s records indicate that a homestead declaration has been recorded by the judgment debtor or his or her spouse (Id., ¶ 9); and

· The amount of any liens or encumbrances on the dwelling, and the names and addresses of the lienholders (the addresses should be those used by the county recorder for return of the instruments creating the liens after recording) (Id., ¶¶ 11-12).

A hearing date was set within 45 days (March 22, 2018) of the filing of the application (February 13, 2018) in compliance with CCP § 704.770(a).

First American served the judgment debtors, within 30 days of the hearing, with copies of the OSC, application for order of sale, and the official notice of hearing form. (CCP § 704.770(b)(1).) First American posted the application documents in a conspicuous place at the dwelling because no occupant was present when service is attempted. (CCP § 704.770(b)(2).)

The Court will inquire whether First American filed a copy of the application with the levying officer, as required by CCP § 704.750(a). The Court is otherwise prepared to grant the application.