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FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA US BANK NATIONAL ASSOCIATION , Index No. 3770/2012 ( , J.) Plaintiffs, Motion to __...__.___...... . - against - Restore LITTLE, et at Defendants. REDACTION COVER PAGE CHECK ALL THAT APPLY: The document filedcontains no confidential personal in 22 NYCRR as defined information. 202..5(e). The document filedis REDACTED in accordancewith 22 NYCRR 202.5(e). The document filedis UN-REDACTED in accordancewith 22 NYCRR 202.5(e). (a) The document filedcontainsSSN (as authorizedby the order specifiedbelow) (b) The document filedcontainsconfidential personal informationas defined p under 22 NYCRR 202 5(e)(as authorized by the orderspecifiedbelow). This document was previouslyfiledREDACTED. O Date: This document was previouslyfiledUN-REDACTED. Date: The document filedseeks a remedyunder 22 NYCRR 202,5(e)(2) The document filedseeks a remedyunder 22 NYCRR 202.5(e)(3). Additionalinformation: There is a previouslyfiledorderof theCourt regarding thisdocument: yes / Q no Date of order: 12/22/2014 Date orderfiled: 01/05/2015 Other information identifying forsuch order: The order ofthe Court is beingfiledwith the redacted / un-redacteddocument: O yes/ O no Date of order: Other identifyinginformationforsuch order: Signatisseof filer: Print Name: Counsel appearing for:Plain ffl/ (name of party) Fileris Unrepresented / Prose: O yes /O no Date: 11/18/2017 1 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR RASC 2006-KS3, Index No: 3770/2012 Plaintiff, AFFIRMATION IN SUPPORT -against- OF VACATING DISCONTINUANCE, DONALD LITTLE A/K/A DONALD C. LITTLE RESTORING CASE TO A/K/A DONALD C. LITTLE JR. A/K/A DONALD CALENDAR LITTLE JR., UNITED STATES OF AMERICA O/B/O INTERNAL REVENUE SERVICE, EQUIFIRST CORPORATION, MORTGAGE as to ELECTRONIC REGISTRATION SYSTEMS, INC., DISCOVER BANK, CAPITAL ONE BANK (USA), -n N.A., COUNTY OF SARATOGA DEPARTMENT OF SOCIAL SERVICES, MIDLAND FUNDING LLC q D/B/A IN NEW YORK AS MIDLAND FUNDING OF C3 DELAWARE, LLC, APO BANK OF AMERICA, a Ê to ASSET ACCEPTANCE LLC AS SUCCESOR IN G3 INTEREST TO CITIBANK, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, #1" LVNV FUNDING LLC, "JOHN DOE to #10," "JOHN DOE the last 10 names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, Defendants. -- Jeff G. Winston, Esq., an attorney at law admitted to practice before the courts of the State of New York, affirms the following under penalty of perjury and pursuant to CPLR §2106: 1. I am an associate of LEOPOLD & ASSOCIATES, PLLC, the attorneys of record for the US BANK NATIONAL ASSOCIATION AS TRUSTEE 2 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 FOR RASC 2006-KS3 ("Plaintiff") in the within foreclosure action. I have reviewed the file maintained in this office, and based on the documents, pleadings, notes and other memoranda contained therein, I am familiar with the proceedings heretofore had herein and the subject foreclosure action. 2. I make this affirmation in support of plaintiff's application for an order vacating the discontinuance, restoring the instant case to the court's active calendar, and restoring this case to the Court's active calendar. RELEVANT PROCEDURAL HISTORY 3. As more fully set forth in the summons, complaint and notice of pendency of action heretofore filed with the Clerk of the County of Saratoga on November 8, 2012, this is an action to foreclose a mortgage on real property situated in Saratoga County, known as and by street number 238 Woodin Road, Clifton Park, NY 12065, pursuant to obligation and mortgage dated August 16, 2006 made by defendant(s), DONALD LITTLE A/K/A DONALD C. LITTLE A/K/A DONALD C. LITTLE JR. A/K/A DONALD LITTLE JR. to EQUIFIRST CORPORATION, which mortgage was in the Office of the Clerk of the County of Saratoga on January 5, 2006, which mortgage was ultimately assigned to US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR RASC 2006-KS3, by assignment of mortgage executed April 17, 2008. Copies of the Summons and Complaint and Notice of Pendency are 3 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 "A." annexed hereto collectively as Exhibit Copies of the subject "B." Note and Mortgage are annexed hereto as Exhibit Copies of "C." the assignments of mortgage are annexed hereto as Exhibit 4. At the time the proceeding was commenced, the plaintiff was the owner and holder of the subject mortgage and note, or has been delegated the authority to institute a foreclosure action by the owner and holder of the note. Originals of the subject mortgage and note are in the plaintiff's possession and control or that of the custodian. 5. By virtue of subsequent defaults of several months by said defendant(s), plaintiff was caused to commence this foreclosure action. 6. Since the filing of said notice of pendency of action, as aforesaid, the summons, complaint and notice of pendency of action have not been amended or supplemented by making new parties to the action, or so as to affect other property not described in said notice, or so as to extend the claim of the Plaintiff beyond the mortgaged premises. 7. No Defendant herein is an infant, absentee or incompetent 8. As appears by the affidavits of service heretofore filed, all of the defendants were served with copies of the supplemental summons and amended complaint and none of the defendants answered, moved or appeared with respect thereto, 4 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 although the time for them to do so has expired and has not been extended by Court order or otherwise, except Defendants UNITED STATES OF AMERICA O/B/O INTERNAL REVENUE SERVICE and LVNV FUNDING LLC, who both appeared by separate Notice of Appearance and who both waived notice of the instant application. Copies of the "D." Affidavits of Service are annexed hereto as Exhibit Copies "E." of the Notices of Appearance are annexed hereto as Exhibit 9. Upon information and belief, pursuant to CPLR §3408, foreclosure settlement conferences were held on September 27, 2013 and October 18, 2013. Upon information and belief, this action remained not settled and Plaintiff was directed to proceed with the foreclosure action. A copy of the WebCivil Supreme Appearance annexed "F." Detail is hereto as Exhibit 10. By Order of the Honorable Thomas D. Nolan, Jr. dated December 22, 2014, entered January 5, 2015, this action was discontinued (hereinafter referred to as "Discontinuance"). Copies of the Discontinuance, along with attorney affirmation in "G." support, are annexed hereto collectively as Exhibit 11. Subsequent to commencement of this action, representation of Plaintiff was transferred to law firm Leopold & Associates, PLLC in order to continue with prosecution of the action. A copy of the Notice of Appearance, being submitted concurrently with this motion for filing, is annexed hereto as "H." Exhibit 5 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 12. Plaintiff now submits the instant affirmation in support of an Order vacating the discontinuance and restoring the action to the court's active calendar. It is respectfully submitted that Plaintiff's motion should be granted in its entirety. PLAINTIFF' RESTORE SHOULD BE GRANTED S MOTION TO VACATE AND A. VACATING DISCONTINUANCE 13. A diligent review of the file for this action revealed that the discontinuing of this action, done by prior counsel McCabe, Weisberg & Conway, P.C., was done in error. This action has merit and Plaintiff wishes to continue to prosecute this action upon its restoration to the Court's active calendar. It is respectfully requested pursuant to CPLR §2211 that said discontinuance be vacated and this action be restored to the active calendar. It is respectfully submitted that this action has merit and no party will be prejudiced by the granting of said relief. 14. CPLR §2221 provides: (a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that: 1. if the order was made upon a default such motion may be made, on notice, to any judge of the court; and 6 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 2. if the order was made without notice such motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court. 15. A motion to vacate or restore pursuant to CPLR §2221(a) shall be made on notice to the Judge who decided the prior Order and shall be granted where plaintiff can show "that it was proper to vacate the dismissal, that the action had merit, that delays were to some extent excusable, and that the delays had not defendant." prejudiced the See Ben Goldin, Inc. v. English, 104 A.D.2d 960, 480 N.Y.S.2d 753(2d Dept. 1984). 16. Here, Plaintiff seeks to vacate the Discontinuance "G." dated December 22, 2014, entered January 5, 2015, Exhibit 17. Prior counsel, after this matter was released from the foreclosure settlement conference part, submitted a motion to discontinue this action. Generally, a motion to discontinue an action pursuant to CPLR §3217 should be freely granted absent any prejudice to the parties. In general, absent a showing of special circ*mstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice (see CPLR 3217(c); Tucker v Tucker, 55 NY2d 378, 383-384, 434 NE2d 1050, 449 NYS2d 683 (1982); American Tr. Ins. Co. v. Roberson, 114 AD3d 821, 980 NYS2d 778 (2014); Wells Fargo Bank, [*680) N.A. v. Chaplin, 107 AD3d 881, 883, 969 NYS2d 67 (2013); Blackwell v. Mikevin Mgt III, LLC, 88 AD3d 836, 837, 931 NYS2d 116 (2001)). New York Mtge. Trust, Inc. v. Dasdemir, 116 A.D.3d 679, 985 N.Y.S.2d 86 (2d Dept. 2014); Wells Fargo Bank v. Chaplin, 107 7 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 A.D.3d 881, 969 N.Y.S.2d 67 (2d Dept. 2013); Emigrant Mtqe. Co., Inc. v. Carrera, 126 A.D.3d 853, 6 N.Y.S.3d 88 (2d Dept. 2015). 18. The exception being if there is a substantial right of a party being affected or other improper consequences. New York Mtge. Trust, Inc. v. Dasdemir, supra. 19. In vacating an Order of discontinuance, the Court is to consider "the circ*mstances and the rights of the parties, controlling." whatever they are ...the exception to the rule and are See Davidson v. Ream, 98 Misc. 72, 162 N.Y.S. 174 (N.Y. Sup. Ct. 1916). 20. The Court in Davidson, granted a motion to set aside a voluntary discontinuance as it found that when a substantial right of a party is affected, those will be considered as an exception to the general rule that discontinuances should not be summarily denied by the Court. 21. As discussed infra, Plaintiff submits to the Court that this action has merit and it will be prejudiced if the discontinuance is maintained and its rights substantially affected. It is respectfully submitted that the Court vacate the Discontinuance of this action. 8 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 B. THE DELAY WAsEXCUSABLE 22. Admittedly, there was a delay in proceeding following prior counsel's commencement of the action, however the delay was excusable. 23. The action was delayed simply as a result of law office failure by prior counsel in mistakenly discontinuing this action, discussed infra. Neglect by prior counsel has been accepted by the court to be a reasonable excuse for failure to proceed with litigation See Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 634 (N.Y. 2003). It has been held that plaintiff has shown a justifiable excuse for the delay where such delay was not willful or with intent to abandon the action, but rather was the result of neglect on the part of the [plaintiff's] previous attorneys, Id. citing Carte v Segall, 134 A.D.2d 397, 398, 520 N.Y.S.2d 944 (2d Dept. 1987). 24. Plaintiff recently substituted counsel to the herein law firm, Leopold & Associates, PLLC, in an effort to advance the litigation. After a thorough and diligent review of the file, it is apparent that the prior attorneys has discontinued this aciton to the detriment of plaintiff. It would be unduly prejudicial for plaintiff to forego its rights in the foreclosure action due to prior counsel's neglect. At no time during the pendency of the action did plaintiff willfully delay or intend to abandon the action 9 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 C. THE ACTION HAS Mli:RIT 25. Plaintiff's action herein has merit. It has long been held that a prima facie showing of entitlement to judgment of foreclosure is achieved by demonstrating the existence of a promissory note executed by the defendant(s), the unconditional terms of repayment, and the defendant's default thereunder. (See eg Independence Bank v. Valentine, 113 A.D.3d 62, 976 N.Y.S.2d 504 (2d Dept. 2013); Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 964 N.Y.S.2d 548 (2d Dept. 2013); East N.Y. Sav. Bank v Baccaray, 214 A.D.2d 601, 625 N.Y.S.2d 88 (2d Dept. 1995). 26. To demonstrate same, Plaintiff submits copies of a properly endorsed note and duly executed mortgage, annexed hereto "B," as Exhibit the assignments of mortgage, annexed hereto as "C," Exhibit and the Complaint which attests to the default of Defendant DONALD LITTLE A/K/A DONALD C. LITTLE A/K/A DONALD C. LITTLE JR. A/K/A DONALD LITTLE JR., a copy of same annexed hereto "A." as Exhibit Thus, plaintiff has established a prima facie case entitling plaintiff to a judgment of foreclosure upon the instant mortgage. D. DEFENDANTS HAVE NOT BEEN PRE JUDICED 27. Since March 1, 2008, Defendant DONALD LITTLE A/K/A DONALD C. LITTLE A/K/A DONALD C. LITTLE JR. A/K/A DONALD LITTLE JR. has failed to tender the required monthly payments on the loan 10 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 and has continued to benefit from the benefits of owning the free" subject premises "mortgage since the default. Additionally, all defendants are in default for their failure to answer the complaint and remain in default. If the instant action were to remain discontinued, commencement of a new action would result in unnecessary additional fees, expenses, time, and judicial resources. 28. Plaintiff herein is prejudiced by the discontinuance of this action by prior counsel. As is evident within the affirmation in support of discontinuing this action, "Plaintiff avers that it is in the best interests of all parties and in the interests of judicial economy to discontinue the action without prejudice ... due to the to compliance with pre- inability verify requirements," "G." acceleration notice Exhibit "restart" 29. Significantly, a should not have been necessary with this action based on the alleged "inability to requirements." verify compliance with pre-acceleration notice As is evident in this action, all defendants are in default for failing to submit an Answer to the complaint and have waived any challenge to any notices required by law in a typical foreclosure action. See HSBC Bank_ USA, N.A. v. Clayton, 146 A.D.3d 942, 45 N.Y.S.3d 543 (2d Dept. 2017) ([i]nasmuch as the defendant failed to demonstrate a reasonable excuse for his default, we need not consider whether he offered a potentially meritorious defense to 11 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 the action, including the plaintiff's purported failure to comply with RPAPL 1304); 1199 Housing Corp. v. Int'l Fidelity Ins. Co., 14 A.D.3d 383, 788 N.Y.S.2d 88 (1st Dept. 2005) ([i]f the defendant fails to specifically plead the plaintiff's failure to comply with a condition precedent, the defense is waived"); HSBC Bank USA v. Serafin, 2017 NY Slip Op 30702(U) (N.Y. Sup. Ct. Suffolk Cty. February 2, 2017) ([t]o the extent that ... defendants attempt to assert a defense based upon noncompliance with the default notice requirements of the mortgage, they waived such by failing to assert same in [the] answer). 30. It is respectfully submitted that the steps taken by prior counsel to discontinue a meritorious cause of action constitutes unilateral mistake. A mortgage foreclosure action, which lies on the basis of equity, allows a Court to exercise its judicial discretion and vacate a Discontinuance on the basis of equity and the interests of justice . See Wells Fargo v. Meyers, 30 Misc. 3d 697 (NYS Sup. Suffolk Cty, 2010); see also Notey v. Darien Constr. Corp., 41 NY 2d 1055; Jamaica Savings Bank v. M.S. Investing Co., 274 NY 215; Mortgage Electronic Regis. Sys v. Horkan, 68 A.D. 3d 948 (2d Dept. 2009)). "Once equity is invoked, require." the court's power is as broad as equity and justice See Mortgage Electronic Regis. Sys v. Horkan, supra quoting Norstar Bank v. Morabito, 201 A.D. 2d 545 (2d Dept. 1994) 12 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 31. Moreover, New York courts have unequivocally held that public policy favors the resolution of cases on the merits. See U.S. Bank, N.A. v. Dick, 67 A.D. 3d 900, 902 (2d Dept. 2009) see also Schonfeld v. Blue & White Food Prods. Corp., 29 A.D. 3d 673, 814 N.Y.S. 2d 711 (2d Dept. 2006); Yonkers Rib House v. 1789 Cent Park Corp., 19 A.D. 3d 687, 799 N.Y.S. 2d 62 (2d Dept. 2005); Trimble v. SAS Taxi Co. Inc., 8 A.D. 3d 557, 778 N.Y.S. 2d 707 (2d Dept. 2004). 32. As such, it is respectfully submitted that the Discontinuance be vacated and Plaintiff be allowed to continue prosecution of this action. CONCLUSION 33. Plaintiff wishes to duly prosecute this action in good faith and it will be prejudiced if the Court was to maintain the discontinuance. The Court should note that, upon information and belief, Defendant DONALD LITTLE A/K/A DONALD C. LITTLE A/K/A DONALD C. LITTLE JR. A/K/A DONALD LITTLE JR. has been living rent free while Plaintiff pays the taxes and insurance and fails to collect on a loan in default for more than nine (9) years. It would be a miscarriage of justice for Plaintiff to be unable to collect on a loan that Defendant DONALD LITTLE A/K/A DONALD C. LITTLE A/K/A DONALD C. LITTLE JR. A/K/A DONALD LITTLE JR. knowingly and voluntarily entered into. Given the foregoing, plaintiff's motion 13 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 . . NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 06/28/2021 . . to vacate the discontinuance and to restore this matter to the Court's calendar, should be granted. 34. No prior application has been filed for the relief requested herein. WHEREFORE, your affirmant prays that the relief requested in plaintiff's notice of motion be in all respects granted, together with the costs of this motion. Dated: New York, New York November 18, 2017 f G. Winston, Esq 80 Business Park Drive, Suite 110 Armonk, New York 10504 Telephone: (914) 219-5787 jwinston@leopoldassociates.com Attorneys for Plaintiff 14 of 180 FILED: SARATOGA COUNTY CLERK 03/22/2018 10:20 AM INDEX NO. 20123770 . NYSCEF . DOC. NO. 35 RECEIVED NYSCEF: 0
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DANIEL CROWLEY VS EVA NORRIS, ET AL.
Aug 12, 2024 |24VECV00706
Case Number: 24VECV00706 Hearing Date: August 12, 2024 Dept: W DANIEL CROWLEY v. EVA NORRIS, et al. motion for interlocutory judgment of partition and appointment of refeeree Date of Hearing: August 12, 2024 Trial Date: None Set Department: W Case No.: 24VECV00706 Moving Party: Plaintiff Daniel A. Crowley Responding Party: No opposition BACKGROUND On February 16, 2024, Plaintiff Daniel A. Crowley filed a complaint for partition of real property against Eva Norris and Preferred Ventures Corp. (erroneously sued as Preferred Lending Group). Plaintiff alleges Defendant has refused to voluntarily sell the Property or buy out Plaintiffs interest. Accordingly, Plaintiff has filed this complaint to have the Property partitioned, thereby ending the co-ownership relationship. Plaintiff dismissed Preferred Lending Corp. on June 18, 2024. A Lis Pendens on the subject property was filed February 29, 2024. [Tentative] Ruling Plaintiffs Motion for Interlocutory Judgment of Partition and Appointment of Referee is GRANTED. DISCUSSION Plaintiff Daniel A. Crowly moves this court for an interlocutory judgment of partition and appointment of referee with regard to the partition of the condominium located at 20950 Oxnard Street, Apartment 34, Woodland Hills, CA 91367, Assessors Parcel Number 2149-018-048 (the Property). Code of Civil Procedure section 872.720(a) provides that if the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition and the manner of partition. (CCP § 872.720(a).) A partition action may be commenced and maintained by any of the following persons: (1) A co-owner of personal property. (2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates. (CCP §872.210(a).) The court shall order that the property be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment. (CCP §872.810.) Here, the court finds the elements for partition have been met. First, there is no indication that Plaintiff has waived their right to petition the Property. (See Crowley Decl. ¶6.) Second, Plaintiff and Defendant each hold an undisputed 50% title interest in the Property. (Talkov Decl. ¶5, Exhs. 1, 3.) Third, the manner of partition must be partition by sale since the condominium cannot be divided. Further, Plaintiff has nominated Matthew Taylor, Esq. as referee, and there being no objection to the nomination, the court finds good cause to appoint Mr. Taylor as referee to market and sell the Property. Mr. Taylor attests to being an experienced attorney in the field and will hire a real estate broker to market the Property. (Taylor Decl. ¶8.) There is also no objection to any of the proposed instructions to the referee so the instructions should be approved. Mr. Taylor is to post a $5,000 bond within four court days as set forth in the Motion. As referee, Mr. Taylor shall perform an accounting to determine an equitable allocation of partition costs and disbursem*nt of proceeds. (See CCP 872.140; 873.820(d).) Mr. Taylor shall also file a report with the court upon the completion of the sale in conformance with Code of Civil Procedure section 873.710. Accordingly, Plaintiffs Motion for Interlocutory Judgment of Partition and Appointment of Referee is GRANTED.
Ruling
Alexis Garcia vs. Fabiola Garcia
Aug 06, 2024 |20CECG02573
Re: Garcia v. Garcia et al. Superior Court Case No. 20CECG02573Hearing Date: August 6, 2024 (Dept. 403)Motion: Default JudgmentTentative Ruling: To deny without prejudice.Explanation: Plaintiff in this action is one of three persons each holding a 1/3 interest in the realproperty described in the Complaint. Plaintiff seeks an order selling the property. Whilethe two named co-owners are in default, the papers submitted are deficient. On 8/22/22 the court denied default judgment because plaintiff failed to serve“All Persons who claim an interest in Real Property Described in the Complaint”(hereinafter “All Persons …”). While that deficiency has been cured, the court directedthat, “in any future request for court judgment, plaintiff must file a prove-up brief(memorandum of points and authorities) summarizing the evidence to be submitted andthe relief to be requested, and any legal analysis needed. In this case, plaintiff is seekingpartition. The partition statutes (Code Civ. Proc., §§ 872.010 - 874.240) have no specialprovisions for obtaining default judgment, so plaintiffs must follow the procedures toobtain default in a civil action (id., §§ 585 – 587.5). A prove-up brief provides the criticalfocus for the court’s attention. And particularly in a partition action, it helps inform thecourt that plaintiffs are aware of the unique procedural requirements involved, includingthe fact that the judgment proceeds in two stages (interlocutory and final) and that areferee will usually need to be nominated and appointed for the interlocutory stage.”(See 8/18/22 Minute Order.) Under Local Rule 2.1.14 default judgment packets are to be filed at least 10 courtdays prior to the reserved hearing date. Inasmuch as plaintiff has not submitted anythingin connection with this hearing, or even requested court judgment on Judicial Councilform CIV-100, the court cannot rule on the matter at this time. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: JS on 8/2/2024 . (Judge’s initials) (Date)
Ruling
MARY LOU KRAMER, TRUSTEE OF THE KRAMER FAMILY TRUST DATED DECEMBER 2, 2003 VS RICARDO OROSCO MARTINEZ, TRUSTEE OF THE MARTINEZ FAMILY REVOCABLE LIVING TRUST DATED JUNE 18, 2018, ET AL.
Aug 08, 2024 |22NWCV01016
Case Number: 22NWCV01016 Hearing Date: August 8, 2024 Dept: C KRAMER v. MARTINEZ CASE NO.: 22NWCV01016 HEARING: 08/08/24 #7 Defendant RICARDO OROSCO MARTINEZs Moton to Compel MARCUS MARTINEZ to (1) Provide Verified Responses to Request for Production of Documents (set one); and (2) to Compel Compliance with Responses to Request for Production of Documents (set one) is GRANTED. Moving Party to give Notice. Defendant RICARDO OROSCO MARTINEZ (Ricardo) moves to compel Defendant MARCUS MARTINEZs (Marcus) to verify his responses to Request for Production of Documents (set one); and to compel Marcus compliance with his responses agreeing to produce documents to Request for Production of Documents (set one). The relevant facts are as follows: Ricardo served document demands on July 24, 2023. In unverified responses served on September 12, 2023, Marcus agreed to produce documents to Request Nos. 1, 2, 4, 6, 7, 8, 9, and 10 by October 26, 2023. (Martinez Decl., ¶8.) To date, Marcus, has not produced a verification or documents in response to Request for Production of Documents (set one). As of August 5, 2024, no Opposition and no Reply has been filed/lodged with the Court. The party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections. (CCP §2031.250(a).) Where verification is required, an unverified response is equivalent to no response at all. (See Appleton v. Sup. Ct. (1988) 206 Cal.App.3d 632. 636.) Marcus served hybrid response which contained objections and some substantive answers. Marcus hybrid responses are not verified. The Motion to Compel Verified discovery responses is GRANTED. Marcus is ORDERED to provide the outstanding verification(s) to Request for Production of Documents (set one) by no later than 10 days from the date of the Courts issuance of this Order . (a) Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond. (b) The documents shall be produced on the date specified in the demand& unless an objection has been made to that date. If the date for inspection has been extended& the documents shall be produced on the date agreed to pursuant to that section. (CCP §2031.280 (a-b).) It is undisputed that, to date, Marcus has failed to produce documents that he had agreed to produce. The Motion is GRANTED. Marcus is ORDERED to produce documents responsive to Request for Production of Documents (set one) by no later than 10 days from the date of the Courts issuance of this Order. The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (CCP §2023.030(a).) Except as provided in subdivision (d), the court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (CCP §2031.320(b).) The Court finds that reasonable sanctions in favor of Defendant Ricardo Orosco Martinez are warranted. Defendant Marcus Martinez is ORDERED to pay Defendant Ricardo Orosco Martinez and their counsel of record reasonable sanctions in the total amount of $650.00 ($325/hr. x 2) by no later than 30 days from the Courts issuance of this Order.
Ruling
SANDERS vs ARCPE 1, LLC, A FLORIDA LIMITED LIABILITY COMPANY,
Aug 07, 2024 |Unlimited Civil (Other Real Property (not emin...) |24CV008962
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV008962: SANDERS vs ARCPE 1, LLC, A FLORIDA LIMITED LIABILITY COMPANY,08/08/2024 Hearing on Motion - Other to Stay Unlawful Detainer Action in Department 54Tentative RulingPlaintiff Linda Sanders’ (“Plaintiff” or “Ms. Sanders”) motion to stay unlawful detainer action orin the alternative to consolidate is DENIED as follows.This is an action to set aside a non-judicial foreclosure and for declaratory relief arising out ofthe non-judicial foreclosure sale of property located at 236 Edelweiss Way, Galt, CA 95632 (the“Property”). (See, generally, First Am. Compl.)Ms. Sanders filed the Complaint on May 7, 2024, and the operative First Amended Complaint onJune 5, 2024 (“FAC”). She alleges in the FAC, in pertinent part: 5. Plaintiff’s ex-husband, Willie Sanders, executed a Promissory Note and a Deed of Trust in favor of Harborside Financial Network, Inc. when he was the sole owner of the Property. Ms. Sanders is not a signatory to either the note or deed of trust. 6. Subsequently, in or about 2010, Mr. Sanders deeded an interest in the Property to Ms. Sanders and that deed was recorded with the Sacramento County Recorder's Office. 7. After Mr. Sanders filed for bankruptcy, the Deed of Trust became a Zombie Mortgage. That is, neither Harborside or any subsequent assignee of the Deed of Trust provided the monthly statements required under 15 USCA 1638 and 12 CFR 7026.7. 8. At some point in time, the note and Deed of Trust were purchased by ARCPE [1, LLC (“ARCPE”)] and Mr. Sanders apparently defaulted under the note. 9. However, even though Ms. Sanders was on title to the Property and ARCPE had constructive notice of her interest in the Property, she was not provided a Notice of Default and Intent to Sell and she was never served a Notice of Trustee Sale all in violation of Civil Code § 2924b. . . . .... 11. In or about 2024, ARCPE conducted a non-judicial foreclosure sale of the Property and purchased the Property under a credit bid. Page 1 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV008962: SANDERS vs ARCPE 1, LLC, A FLORIDA LIMITED LIABILITY COMPANY,08/08/2024 Hearing on Motion - Other to Stay Unlawful Detainer Action in Department 54 12. Thereafter, ARCPE served a notice to vacate on all occupants of the Property. This is when Ms. Sanders learned that the Property had been sold at a non-judicial foreclosure sale. . . . ARCPE is now seeking to evict Ms. Sanders from the Property.(FAC ¶¶ 5-12.)As referenced in Ms. Sanders’ allegations, ARCPE sought to obtain possession of the Propertyafter the foreclosure sale. It filed a verified complaint for unlawful detainer against Ms. Sanderson April 11, 2024. The unlawful detainer (“UD”) action is captioned ARCPE 1, LLC v. Sanders;its case number is 24UD02344.In the instant motion, Ms. Sanders seeks an order staying the UD action or, in the alternative,consolidating the two cases since this action concerns title and equitable rights in the sameproperty as the UD action.Ms. Sanders filed this motion on May 9, 2024. Since that time, default judgment has beenentered against her in the UD action. (See Judgment – Unlawful Detainer, July 22, 2024 in24UD02344.[1]) Review of the UD action’s register of actions reflects that Ms. Sanders demurredto the UD action on May 10, 2024. The Honorable Stephen Lau overruled the demurrer on June10, 2024, and ordered Ms. Sanders to file an answer by June 18, 2024 by 4:00 p.m. (OrderRegarding Demurrer, June 11, 2024 in 24UD02344.) Judge Lau’s Order stated that if Ms.Sanders “fails to answer, a default may be requested and a default judgment be entered.” (Ibid.)Default was entered against Ms. Sanders in the UD action on July 19, 2024, and judgment wasentered by the clerk by default (possession only) on July 22, 2024.[2] The judgment states thatARCPE “is entitled to possession of the [Property].” (Judgment – Unlawful Detainer, July 22,2024 in 24UD02344 at p. 2.)As judgment has been entered in the UD action, there is nothing to stay or consolidate with thisaction. Accordingly, the motion is denied as moot.Further, the Court notes that Ms. Sanders filed this motion in the wrong department and/oraction. To the extent the motion sought a stay of the UD action, Ms. Sanders did not provide anyauthority to support that this Court has the authority to stay the earlier-filed UD action. Further,motions to consolidate are to be heard by the Presiding Judge. (See Local Rule 1.05 [Unlessotherwise directed by the Presiding Judge, in civil and limited civil actions, all motions forconsolidation . . . shall be heard by the Presiding Judge.”].)For the stated reasons, Ms. Sanders' motion is denied.This minute order is effective immediately. No formal order or other notice is required. (CodeCiv. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.) Page 2 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV008962: SANDERS vs ARCPE 1, LLC, A FLORIDA LIMITED LIABILITY COMPANY, 08/08/2024 Hearing on Motion - Other to Stay Unlawful Detainer Action in Department 54[1] The Court takes sua sponte judicial notice of the filings in the UD action.[2] “The clerk’s entry of default cuts off the defendant's right to take furtheraffirmative steps such as filing a pleading or motion, and the defendant is not entitled tonotices or service of pleadings or papers. ‘A defendant against whom a default isentered is out of court and is not entitled to take any further steps in the cause affectingplaintiff's right of action.’ Thus, the defendant may not, until the default is set aside in aproper proceeding, file pleadings or move for a new trial, or demand notice ofsubsequent proceedings. If the judgment were vacated it would be the duty of the courtimmediately to render another judgment of like effect, and the defendants, still being indefault, could not be heard in opposition to it. (6 Witkin Cal. Proc. Proceedings WithoutTrial (2024) § 215 [citing cases].)NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporter Page 3 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV008962: SANDERS vs ARCPE 1, LLC, A FLORIDA LIMITED LIABILITY COMPANY,08/08/2024 Hearing on Motion - Other to Stay Unlawful Detainer Action in Department 54services at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf.A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 4 of 4
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