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FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 notsatments RECEIVED NYSCEF: 02/18/2021 2012751 FILED 03/08/2012 01:02:48PM INDEX NUMBERS Kathleen A Marchione Saratogm Co Clerk SUPREME COURT THE STATE OF NEW YORK: COUNTY OF SARATOGA ------------------------------------------------X DEUTSCHE BANK NATIONAL TRUST COMPANY, AS Index No. INDENTURE TRUSTEE, FOR NEW Date Filed: CENTURY HOME EQUITY LOAN TRUST 2004-4 SUMMONS Plaintiff. Plaintiff designates -against- Saratoga County DAVID J. MICHALOWSKI as the place of MICHELLE M. MICHALOWSKI A/K/A MICHELLE M. trial based on MICHAELOWSKI the location of SOLOMON APARTMENT MANAGEMENT, LLC the mortgaged PORTFOLIO RECOVERY ASSOCIATES LLC . premises in this #1" #10," "JOHN DOE to "JOHN DOE the last 10 names being action. fictitious and unknown to plaintiff the persons or parties intended being the persons or parties, if any, having or claiming an interest Plaintiff s in or lien upon the mortgaged premises described in the verified principal place complaint, of business is PO Box 54285, Defendants. Irvine, California 92619. ------------------------------------- ---------X To the above-named defendants: YOU ARE HEREBY SUMMONED to ãüs cr the complaint in this action and to serve a copy of your answer, or, ifthe complaint is not served with this sü=ñons, to serve a notice of appearance, on the plaintiffs attorneys within twenty (20) days after the service of this summons, exclusive of the day of service (or within thirty (30) days after the service is complete ifthis summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. 1 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME IF YOU DO NOT RESPOND TO THIS SUMMONS AND COMPLAINT BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE MORTGAGE COMPANY WHO FILED THIS FORECLOSURE PROCEEDING AGAINST YOU AND FILING THE ANSWER WITH THE COURT, A DEFAULT JUDGMENT MAY BE ENTERED AND YOU CAN LOSE YOUR HOME. SPEAK TO AN ATTORNEY OR GO TO THE COURT WHERE YOUR CASE IS PENDING FOR FURTHER INFORMATION ON HOW TO ANSWER THE SUMMONS AND PROTECT YOUR PROPERTY. SENDING A PAYMENT TO YOUR MORTGAGE COMPANY WILL NOT STOP THIS FORECLOSURE ACTION. YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT. Dated: New Rochelle, New York March 6, 2012 McCABE, WEISBERG & CONWAY, P.C. By: MfCHAEL LEHRMAN, ESQ. Attorneys for Plaintiff 145 Huguenot Street, Suite 499 New Rochelle, New York 10801 (914) 636-8900 File # 109-0021 2 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 TO: David J. Michalowski 42 Redfield Park Clifton Park, New York 12065 David J. Michalowski PO Box 4223 Clifton Park, New York 12065 David J. Michalowski 102 Verbeck Lane Clifton Park, New York 12065 Michelle M. Michalowski a/k/a Michelle M. Michaelowski 42 Redfield Park Clifton Park, New York 12065 Michelle M. Michalowski a/k/a Michelle M. Michaclewski PO Box 4223 Clifton Park, New York 12065 Michelle M. Michalowski a/k/a Michelle M. Michaelowski 102 Verbeck Lane Clifton Park, New York 12065 Portfolio Recovery Associates LLC Solomon Apartment Management, LLC 1" 10" "JOHN DOE NO. through "JOHN DOE NO. 42 Redfield Park Clifton Park, New York 12065 3 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 SUPREME COURT THE STATE OF NEW YORK: COUNTY OF SARATOGA ---------------------------------------------X DEUTSCHE BANK NATIONAL TRUST Index No. COMPANY, AS INDENTURE TRUSTEE, FOR Date Filed: NEW CENTURY HOME EQUITY LOAN TRUST 2004-4 COMPLAINT ²°''²¹™'²¹° RLED 2012761 Plaintiff 03/D8/201201:02:48 PM -againSt- INDEX NUMBERS Kathleen A Marchione Saratoga Co Clark DAVID J. MICHALOWSKI MICHELLE M. MICHALOWSKI A/K/A MICHELLE M. MICHAELOWSKI SOLOMON APARTMENT MANAGEMENT, LLC PORTFOLIO RECOVERY ASSOCIATES LLC #1" #10," "JOHN DOE to "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. ---------------------------------- ----------- X Plaintiff, by its attorneys, McCabe, Weisberg & Conway, P.C., complains and alleges, upon information and belief, as follows: FIRST. Plaintiff is, and at all times relevant herein is a domestic National Trust organized under the laws of the United States of America with itsprincipal place of business at PO Box 54285, Irvine, California 92619. SECOND. On or about the following date, the following named obligor, for the purpose of an indebte-hea in the amount and evidencing following interest, duly executed, acicüowledged and delivered to the following named obligee the following instrument, a copy of 4 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 "A" which is hereto annexed and marked Exhibit with the same force and effect as if set forth at length herein: INSTRUMENT: Note DATE: November 2, 2004 OBLIGOR: David J. Michalowski OBLIGEE: New Century Mortgage Corporation AMOUNT: $295,800.00 (modified to $355,644.80 by loan modification agreement dated September 30, 2009) (See Exhibit B). THIRD. For the purpose of securing payment for the said indebtedness, as more fully set forth in said instrument, the said obligor and Michelle M. Michalowski a/k/a Michelle M. Michaelowski, as mortgagor, on or about said date executed, acknowledged and delivered to said obligee, as mortgagee, a certain mortgage, a copy of which is hereto annexed and marked "B" Exhibit with the same force and effect as if set forth at length herein, wherein and whereby said obliger and Michelle M. Michalowski a/k/a Michelle M. Michaelowski, as mortgagor, mortgaged to said obligec, as mortgagee, certain real property, which mortgaged premises are more particularly described in said mortgage. FOURTH. Said mortgage was duly recorded as follows in the office for the recording of mortgages in the county in which said mortgaged premises were then and are now situated, and the recording data (and section, block and lot indexing) is as follows: RECORDED IN OFFICE OF: County Clerk of Saratoga DATE OF RECORDING: November 30, 2004 BOOK NUMBER 03716 PAGE NUMBER 00093 SECTION BLOCK LOT IN WHICH INDEXED: SECTION 277.5 BLOCK 2 LOT 26 5 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 t FIFTH. The mortgages premises are co~~only known as 42 Redfield Park "Premises" Clifton Park, New York 12065, County of Saratoga and State of New York (the ), and is more fully described in Schedule A attached hereto. SIXTH. Any applicable recording tax was duly paid at the time of recording said last mentioned mortgage. SEVENTH. Plaintiff is the holder of said note and mortgage. Said Note was indorsed by specific indorsem*nt and delivered to Plaintiff prior to comm~~cement of this action. — Said mortgage was assigned from New Century Mortgage Corporation to De -=-: Bank National Trust as Indenture for New Home Loan Trust 2004- Comp —.z, Trustee, Century Equity 4, Plaintiff, Assignment of Mortgage dated May 16, 2005 recorded on May 25, 2005 in Book by — number 00167 Page number P00280 in the Office of the County Clerk of Sa ~pa County. See Exhibit B. EIGHTH. The defendant(s) have failed to comply with the terms and provisions of said mortgage and said instrument secured by the mortgage, by failing to pay principal and pre:..'-:.— interest and/or taxes, insurance escrows "."=', and/or other charges co=--======-=cingwith the January 1, 2010 payment, as more fully set forth below. NINTH. More than fifteen (15) days have elapsed since the first of said defaults occurred, and by reason thereof, Plaintiff has elected and hereby elects to declare immediately due and payable the entire unpaid balance of principal, together with monies ~+~.ced for taxes, m~' as <=-:"=—.-:, well as the allowances and reasonable fees to insurance, property costs, attorney the extent permitted by the mortgage, 6 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 TENTH. The following amounts are now due and owing on said mortgage and the said instrument secured by the mortgage, no part of which has been paid although duly demanded: ENTIRE PRINCIPAL BALANCE: $354,483.77 INTEREST THEREON FROM: December 1, 2009 AT THE RATE AS SET FORTH IN THE INSTRUMENT SECURED BY THE MORTGAGE ELEVENTH. In order to protect its security interest, Plaintiff, or its agents, has paid or may be compelled to pay during the pendency of this action, taxes, assessments, water rates, insurance premiums, and other charges affecting the Premises. Plaintiff requests that any sums it or its agent has paid, together with interest, be included in the sum due as provided for and secured by the mortgage being foreclosed herein. TWELFTH. Each of the above-named defendants has or claims to have or may claim to have some interest in or lien upon said mortgaged premises or some part thereof, which interest or lien, if any, has accrued subsequent to, and is subject and subordinate to, the lien of said mortgage. Pursuant to the provisions of CPLR 5203(a)(2) and/or RPAPL 1311, said judgment is subject and subordinate to plaintiffs mortgage. Portfolio Recovery Associates LLC and Solomon Apartment Management, LLC, are made a party to this action solely for purposes iñdicated above and for no other reason, Defendants lien or interest is described with specificity in Exhibit C herein. THIRTEENTH. Plaintiff has compliad with all of the provisions of Banking Law, Section 595-a [NYCLS], Section 6-1, Section 6-m, RPAPL§ 1304, RPAPL§ 1306, UCC §9-611. Exhibit D. 7 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 F OURTEENTH. John Doe No. 1 to Jane Doe No. 10 are fictitious and unknown to Plaintiff. They are named as defendants to designate any and all persons or parties, c' if any, having or -it; an interest in or lien upon the mortgaged Premises They may be judgment creditors or may have, or claim to have a subordinate mortgage, all of which are subordinate to the interest of the Plaintiff herein. FIFTEENTH. No other action or precêêding has been commenced or maintainad or is now at law or otherwise for the foreciesüre of said mortgage or for the pending recovery of the said sum secured by said note and mortgage or any part thereof. SIXTEENTH. Plaintiff requests that in the event that this action proceed to judgment of foreclosure and sale, said premises shall be sold subject to the following: 1. Any state of facts that an inspection of the premises would disclose; 2. Any state of facts that an accurate survey of the premises would show; 3. Covenants, restrictions, easem*nts and public utility agreements, if any, 4. Building and zoning ordinances of the municipality in which the mortgaged premises are located and possible violations of same; 5. Any rights of tenants in possession of the subject premises; 6. Any equity of redemption of the United States of America to redeem the premises within 120 days from the date of sale; 7. Prior mortgage liens of record, and any advances and arrears thereunder; 8. Prior lien(s) of record, if any. SEVENTEENTH. Plaintiff shall not be deemed to have waived, altered, released or changed the election hereinbefore made, by reason of any payment after the 8 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 commencement of this action, of any or all of the defaults mentiond herein, and such election shall continue and remain effective. WHEREFORE, Plaintiff demands judgment against the defendants as follows: a. That each and all of the defendants in this action, and any and allpersons claiming by, through and under any of them, subsequent to the commencement of this action and the filing of the notice of pendency thereof in the Office of the County Clerk of Saratoga County in the State of New York, which is the county in which the Premises are located, may be forever barred and foreclosed of any and all right, title and interest, claim, lien and equity of redemption in the Premises; b. That a receiver of rents may be appointed without notice as provided in the Mortgage; c. That the Court direct that the Premises can be sold according to law, in one parcel or otherwise as equity may require; d. That the monies arising from the sale of the Premises may be brought into Court; e. That the monies due to Plaintiff on the Note and Mortgage may be adjudged and computed; f. That Plaintiff may be paid the amount adjudged to be due on the Note and the Mortgage with interest at the time of such 9 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 payment, together with any monies advanced and paid pursuant to any term or provision of the Note and Mortgage so as to protect the lien of the Mortgage, and together with taxes, insurance premiums and all other charges and liens paid thereon with interest upon said amount from the date of the respective payments and advances, together with all amounts due by virtue of statutory costs, allowances and attorney's fees, together with any reasonable attorney's fees over and above the amounts covered the attor- by statutory ney's fees, together with the expenses of the sale insofar as the amount of such monies properly applicable thereto will pay the same; g. That ifthe proceeds of the sale of the Premises are insufficient to pay the amount found due to Plaintiff as set forth in the immediately preceding paragraph, the officer making the sale be required by the judgment of sale herein to specify the amount of such deficiency in the report of sale so that application may be made by Plaintiff to the Court pursuant to Section 1371 of the Real Property Actions and Proceedings Law for a deficiency judgment against the Defendant Obligors David J. Michalowski, which will include the amount of any such deficiency, unless (1) said 10 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 debt has been listed and discharge in a bankruptcy petition or (2) Plaintiff is unable to produce a copy of the note; h. If the Court, upon such application shall so direct, Plaintiff should have judgment against the Defendants David J. Michalowski for the amount of such deficiency; i. That Plaintiff be awarded reasonable attorney's fees as provided in the Note and Mortgage, as well as the costs and disbursem*nts of this action. DATED: New Rochelle, New York March 6, 2012 McCABE, WEISBERG & CONWAY, P.C. By: MICHAEL LEHRMAN, ESQ. Attorneys for Plaintiff 145 Huguenot St.,Suite 499 New Rochelle, New York 10801 914-636-8900 914-636-8901 facsimile 11 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 PolicyNo. SCHEDULE "A " TitleNa 04-2160-SAR LEGAL DESCRIPTION Allthat certain piece or pucci of land, aituate, lying and beinginthe Town of Clif ton Park, County ofSaratogaand State of New York, more shown particularly and designatedas Lot42 on a subdivision anap entitled "Revised SubdivisionPlan, Redfield Acres, Lands of Walter S. Gifford. prepared by Gilbert Jr.", Van Ouilder& Associates, dated Februiny 1, 1995 in the Saratoga County Clerk's and later revised Office, February9, 1996 and refiled in the Saratoga CountyClerk'sOfficeon March 1996 in Drawer"R" 6, as Map No. 305 C. Togetherwiththerightof ingrees and egress over that road way asshown on the above-referenced map designated as RedfieldPark until such timeas amid roadway is dedicated to and accepted by the Town of Clif ton Park. Akbudca UComag AmOtmy Rud, R US AmestM8s@00Funs1WF854999 12 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 EXHIBIT A 13 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 ONFIDENTIAlt Webermbycerd@aistobeatme 2 YEAR RATR LOCK andcamectcopyafthectiginal By- ADJUSTABLE RATE NOTE (LIBOR SAn-M=sh Indez (as FahEmbedInhWsilSpeerfamrano - Bate Caps) THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY INTEREST RATE AND MY MONTHLY PAYMENT.THISNOTE LIMITSTHE AMOUNTMY INTERESTRATE CAN CHANGEATANYONE TIMEANDTHEMAXIMUMRATEIMUSTPAY. November 2, 2804 CLIFTON PARK NEW YORK 42 REDFIELR PARK CLIFTON PARK, NEV YORK 12005 L BORROWER'S FROMBETOFAY InmazaforalomatiusIlmenceived,IpaxmisotopayU.S.3 285,808.00 ObisamommiscaAmi -Pduciper), plusatzeM, a as ader d Izeds.Imader is NEW CEIRURY NORTAARE CORPORATION IwitankcaB ympusemis ader IbisNotphthefaunafcash, check cr macmay caler. I=rimm••IthalanglermnytmasRzthisNote.LeadercramycnowhetatestbisNotebytn=6r and who is catidedto seceivepaymeeManderghisNonsincaEedibe"NoteWnhkr." 1 DfIEREST InsuestwiRhechasedemangsidPámcipalum@1hofuR =•amm of PancipalItas beam paid. I wiR pay intenesa a yeuly manor T.7500 £ThetsurgraselwiRgaymaychmusch arennharawilb5cstima4cf1hisNong. TheinawansenquiMdbythissectiom2andSecdon4efthisNottisthemseIwiRyay bolhteRxcandaRuracy ! deRudgshmihrst in Section'4B)eftisNcap. 1 FAYREENTS (A)TtmeandPInceefPaymemAs IwiBpsyPerip•Iandinguembymakingapaymenteverysicalk. I wiR make paymcss an thc fkgtdayofeachmonghbegimmingen January 1, 2005 . my =unhly I wiB susts Ibese payments orcry nicagh untB I bave paid allof Ibs gxincipal and ingenest ami any other chages sharrilw•IbelowthstIaMyewoundershisNotc.Bach minrhly paylauntwiR be applied m of itg•rkshdrat due dese andwillbe appDodaminamesthefosePgmmipal.II,an December 1, 2034 .ImiBowe••===m•underthis whichiscaBedibe"WhenityDme." None,Iwimpayghose••nn•a•in fmR cm that dege, gMPAmengrat 18480 VON BARNAN, SUITE 1000 Iwillamatomymmughly IRVINE. CA 92612 cr madinimesplaceifregaindby meNoneEnkhr. QB) AssomutefMy EnMnlMn•shts Fayamusts Pash of imidal payamnis wiRho heemonuatefU.3.3 2,119.15 .Thism my annddy may chage. • (c)me-aty Paymat Changes Chages inmy mmWhlygagementwRaflectchmqpxhibcumpaidPtincipatefanylommandimibeimsemannetbatInsent pay. TheNoteHeMerwBa•=irmysewhementaneandthecingedmmonatormysmonddypsymentin•mudsecowi Section4efabisNote. MULTISTATE ADJUSTABLE RATE NOTE - UBOR SIX-MONTH tMDEX (AS PtfBLISHED In THE 1VALL STREET JollRNAL) - sineIn - FemaleMae RAAFDRM AOSTRUMENT Fanny se=.m-> --- .....'."."³"" _ --,.mm.- Page1at 4 14 of 67 FILED: SARATOGA COUNTY CLERK 03/08/2012 03:16 PM INDEX NO. 2012751 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/18/2021 KONFIDENTIAIy 4. XinmlÃT RLTR AND il%9NFIKY PAYMENT CHhNGRS (It)Change Debs lbohmessn~l cbeagooadse5athy of Sacanbtnr 2006 . aadcasdsetdctyoracy wiRpny~ 6th aesop Ihcrcaher.Hach tbdeon wbich arynnmat~ooumduaseeic caRed u Cbccigelbnc. NI) ~ lbelaha Bcgimieg oifcrcl Sr wids ck dse Rat mocuh US. 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Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282.) If the complaint fails to state a cause of action or the allegations do not support the demand for relief, the plaintiff is no more entitled to that relief by default judgment than if the defendant had expressly admitted all the allegations. Such a default judgment is erroneous, and will be reversed on appeal. (6 Witkin, Cal. Proc. (6th ed. 2021), PWT, §223).) Plaintiff fails to state a claim for cancellation of instrument Civil Code section 3412 states that a written instrument may be cancelled if there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable. To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alternation of one's position. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193-1194.) Plaintiff fails to plead any basis to cancel Cloud One DOT or Cloud Two DOT. Defendants have therefore not admitted to any facts that would entitle Plaintiff to the cancellation of either DOT. Plaintiff fails to allege any facts entitling them to a declaratory order finding that it has priority over Cloud One DOT or Cloud Two DOT Plaintiff fails to allege a declaratory relief cause of action. To be entitled to declaratory relief the party need not establish a right to a favorable declaration. A complaint for declaratory relief is legally sufficient if its sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court. (Lockheed Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 221.) The complaint is sufficient if it shows an actual controversy; it need not show that plaintiff is in the right. (Id. at 222.) Plaintiff fails to allege an actual controversy with Defendants. Plaintiff contends that its right, title and interest is first priority, paramount, and free and clear of all interest of Defendant and all other parties, as of April 28, 2008, and at all times thereafter. (Complaint, ¶15.) However, Plaintiff fails to allege that Defendants affirmatively dispute this position. Plaintiff alleges, Plaintiff is informed and believes that each of the Defendants may dispute Plaintiffs contentions therein. (Complaint, ¶16.) Plaintiff has not alleged an actual controversy. Plaintiff has alleged a possible controversy. Plaintiffs Request for Default Judgment is denied for failure to state a cause of action against Defendants Plaintiff fails to state a cause of action against Defendants. Plaintiffs request for default judgment must therefore be denied.
Ruling
FAMILY CHRISTIAN CATHEDRAL A CALIFORNIA NONPROFIT RELIGIOUS CORPORATION, ET AL. VS GOAL PROPERTIES INVESTMENTS, A CALIFORNIA CORPORATION, ET AL.
Aug 14, 2024 |21STCV24343
Case Number: 21STCV24343 Hearing Date: August 14, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: August 14, 2024 Case Name: Family Christian Cathedral, et al. v. Goal Properties Investments, et al. Case No.: 21STCV24343 Matter: Motions to Compel (3x) Moving Party: Defendant Goal Properties Investments Responding Party: Plaintiffs Family Christian Cathedral Notice: OK Ruling: The Motions are granted. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. Defendant Goal Properties Investments seeks to compel Plaintiff Family Christian Cathedral to provide initial responses to its special interrogatories (SI), set three, and requests for production, set two. Defendant Goal Properties Investments also seeks to compel further responses to its SI, set two, from Plaintiff Family Christian Cathedral. With respect to initial responses, Plaintiff indicates that responses were served on April 8, 2024. Defendant argues that the responses are nonsensical and that Plaintiff Dr. Jynonna Norwood cannot and should not be allowed to be responding to discovery requests on behalf of an entity, as the Court previously agreed. Because responses were provided when Plaintiff was unrepresented, the Court deems the responses a nullity. The two Motions to Compel initial responses are granted. Responses, without objections, are to be served within 30 days. The Court awards reduced sanctions in the total amount of $1,250. As to further responses for SI, set two, Plaintiff argues the Motion is untimely. This lacks merit; there was an agreement by former counsel that the deadline should be stayed until we can work this out (or not). Furthermore, the record clearly shows meet and confer attempts through at least February 2024 when the Motion was filed. Because Plaintiff has failed to address the propriety of its responses, the Motion to Compel is granted. Further responses are to be provided within 30 days. The Court awards reduced sanctions in the amount of $1,250. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Ruling
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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