THE BEST SERVICE CO. VS MITSUMASA OKAMOTO-ET AL

Tentative Rulings

Case Number: VC032122    Hearing Date: October 29, 2020    Dept: C

THE BEST SERVICE CO. v. OKAMOTO

CASE NO.: VC032122

HEARING: 10/29/2020

#13

TENTATIVE ORDER

Judgment Creditor WV SPE 2018-3A, LLC’s unopposed application for issuance for order of sale of dwelling is GRANTED in part.

Moving Party to give Notice

No Opposition filed as of October 27, 2020.

Judgment Creditor’s unopposed Application is GRANTED. Judgment Creditor is an assignee of a $98,669.84 Judgment against Judgement Debtors MITSUMASA OKAMOTO and AKIKO OKAMOTO. Judgment Creditor indicates that Judgment Debtors fraudulently transferred the Subject Property to their non-party daughters in an effort to prevent Judgment Creditor from collecting on the Judgment. “A creditor who is damaged by a transfer described in either Civil Code section 3439.04 or Civil Code section 3439.05 can set the transfer aside or seek other appropriate relief under Civil Code section 3439.07. [Citation.]” (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 121-122.) “If a creditor has obtained a judgment on a claim against the debtor, the creditor may levy execution on the asset transferred or its proceeds.” (Cal. Civ. Code §3439.07.)

The judgment creditor must file the application for an order of sale in the county where the dwelling is located. (See CCP 704.750.) 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. 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. (CCP 704.780(b).)

Homestead Exemption

If the records of the county tax assessor indicate that there is 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 judgment creditor has the burden of proof that the dwelling is not a homestead. 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. (CCP 704.780(a)(1).)

(a) The amount of the homestead exemption is one of the following: (1) Seventy-five thousand dollars ($75,000) unless the judgment debtor or spouse of the judgment debtor who resides in the homestead is a person described in paragraph (2) or (3). (2) One hundred thousand dollars ($100,000) if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at the time of the attempted sale of the homestead a member of a family unit, and there is at least one member of the family unit who owns no interest in the homestead or whose only interest in the homestead is a community property interest with the judgment debtor. (3) One hundred seventy-five thousand dollars ($175,000) if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at the time of the attempted sale of the homestead any one of the following: (A) A person 65 years of age or older. (B) A person physically or mentally disabled who as a result of that disability is unable to engage in substantial gainful employment. There is a rebuttable presumption affecting the burden of proof that a person receiving disability insurance benefit payments under Title II or supplemental security income payments under Title XVI of the federal Social Security Act satisfies the requirements of this paragraph as to his or her inability to engage in substantial gainful employment. (C) A person 55 years of age or older with a gross annual income of not more than twenty–five thousand dollars ($25,000) or, if the judgment debtor is married, a gross annual income, including the gross annual income of the judgment debtor’s spouse, of not more than thirty–five thousand dollars ($35,000) and the sale is an involuntary sale. (CCP 704.730.)

The current fair market value of the property is approximately $850,000.00 as of 02/21/19. The Application is GRANTED in part. Judgment Creditor indicates that Judgment Debtors are both over 65 years of age. Consequently, Judgement Debtors are entitled to a statutory homestead exemption in the amount of $175,000.00. Where no Opposition has been filed, it is unclear if any other exemptions apply.