KEY CAPITAL FUND LLC VS SAMUIL PREYS

Tentative Rulings

Case Number: BC511990    Hearing Date: August 10, 2020    Dept: 58

Hearing Date: August 10, 2020

Case Name: Key Capital Fund, LLC v. Preys, et al.

Case No.: BC511990

Matter: Application for Sale of Dwelling

Moving Party: Plaintiff/Judgment creditor Key Capital Fund, LLC

Responding Party: Defendant Samuil Preys and his spouse, nonparty Polina Preys

Tentative Ruling: The Application is granted.

On October 16, 2013, a judgment in the amount of $498,553 was entered against Defendant Samuil Preys and in favor of Plaintiff Key Capital Fund, LLC. Subsequently, Plaintiff obtained a writ of execution and levied Defendant’s real property located at 17619 Arvida Dr., Granada Hills, CA 91344 (“Property”). Plaintiff also recorded an abstract of judgment with respect to the Property.

Plaintiff now seeks an order of sale for the Property so as to enforce the judgment in this action. (Code Civ. Proc. § 704.750.)

Code Civ. Proc. § 704.760 provides that an application for sale of a dwelling

shall be made under oath, shall describe the dwelling, and shall contain all of the following:

(a) A statement whether or not the records of the county tax assessor indicate that there is a current homeowner's exemption or disabled veteran's exemption for the dwelling and the person or persons who claimed any such exemption.

(b) A statement, which may be based on information and belief, whether the dwelling is a homestead and the amount of the homestead exemption, if any, and a statement whether or not the records of the county recorder indicate that a homestead declaration under Article 5 (commencing with Section 704.910 ) that describes the dwelling has been recorded by the judgment debtor or the spouse of the judgment debtor.

(c) A statement of the amount of any liens or encumbrances on the dwelling, the name of each person having a lien or encumbrance on the dwelling, and the address of such person used by the county recorder for the return of the instrument creating such person's lien or encumbrance after recording.

Defendant Samuil Preys and his spouse who resides at the Property, Polina Preys, (“Opposing Parties”) oppose the Application. They argue any sale should be subject to a $175,000 homestead exemption. Further, they contend the Application should be denied because sufficient evidence of the fair market value of the Property was not provided by Plaintiff.

Code Civ. Proc. § 704.780(b) provides,

The court shall determine whether the dwelling is exempt. If the court determines that the dwelling is exempt, the court shall determine the amount of the homestead exemption and the fair market value of the dwelling. The court shall make an order for sale of the dwelling subject to the homestead exemption, unless the court determines that the sale of the dwelling would not be likely to produce a bid sufficient to satisfy any part of the amount due on the judgment pursuant to Section 704.800 . The order for sale of the dwelling subject to the homestead exemption shall specify the amount of the proceeds of the sale that is to be distributed to each person having a lien or encumbrance on the dwelling and shall include the name and address of each such person. Subject to the provisions of this article, the sale is governed by Article 6 (commencing with Section 701.510 ) of Chapter 3. If the court determines that the dwelling is not exempt, the court shall make an order for sale of the property in the manner provided in Article 6 (commencing with Section 701.510 ) of Chapter 3.

Further, “If the records of the county tax assessor indicate that there is not a current homeowner's exemption or disabled veteran's exemption for the dwelling claimed by the judgment debtor or the judgment debtor's spouse, the burden of proof that the dwelling is a homestead is on the person who claims that the dwelling is a homestead.” (Code Civ. Proc. § 704.780(a)(1).)

Opposing Parties have carried their burden to show a homestead exemption in the amount of $175,000 as Opposing Parties are over the age of 65 and have used the Property as their principal dwelling since the judgment in this action. (Code Civ. Proc. §§ 704.710(c), 704.730(a)(3)(A); Samuil Decl. ¶¶ 2-4; Polina Decl. ¶¶ 2-4.) Plaintiff does not contest this.

On the other hand, the Court overrules Opposing Parties’ objections to the fair market value of the Property asserted by Plaintiff. The Court finds that the value asserted—$930,000—is reasonably substantiated. (Supplemental Application, Exhibit S.)^[1]

In sum, the Application is granted. The Property is to be sold at a value of $930,000 with a $175,000 homestead exemption. Plaintiff is to provide a proposed order which complies with Code Civ. Proc. § 704.780.