This case was last updated from Los Angeles County Superior Courts on 09/22/2017 at 03:20:14 (UTC).

CADLES OF WEST VIRGINIA VS. GALE G. WAVRA

Case Summary

On 09/14/2017 CADLES OF WEST VIRGINIA filed an Other - Sister State Judgment lawsuit against GALE G WAVRA. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The case status is Disposed - Judgment Entered.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****1033

  • Filing Date:

    09/14/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Other - Sister State Judgment

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

CADLES OF WEST VIRGINIA LLC ASSIGNEE

Defendant

WAVRA GALE G.

Attorney/Law Firm Details

Plaintiff Attorney

LEVY STEPHANIE M.

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 09/14/2017
  • Appl for Entry-Sister State Judgmt Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 09/14/2017
  • Miscellaneous-Other (CIVIL CASE COVER SHEET ) Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 09/14/2017
  • Declaration (RE: ACCRUED INTEREST ) Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 09/14/2017
  • Notice of Entry of Judgment (NOTICE OF ENTRY OF SISTER STATE JUDGMENT ) Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 09/14/2017
  • Sister State Judgment Filed by Attorney for Plaintiff

    Read MoreRead Less

Tentative Rulings

Case Number: KS021033    Hearing Date: February 10, 2020    Dept: J

HEARING DATE: Monday, February 10, 2020

NOTICE: OK[1]

RE: Cadles of West Virginia LLC v. Wavra (KS021033)

______________________________________________________________________________

 

Judgment Creditor Cadles of West Virginia LLC’s APPLICATION FOR ORDER FOR

THE SALE OF DWELLING

Responding Party: None (unopposed, as of 2/4/20, 1:26 p.m.)

Tentative Ruling

See below.

Background

On September 14, 2017, “Judgment Based on Sister-State Judgment” was filed in favor of Cadles of West Virginia LLC, Assignee of Record for National Credit Union Administrative Board in its capacity as Liquidating Agent for Huran River Area Credit Union (“Judgment Creditor”) and against Defendant Gale G. Wavra (“Judgment Debtor”). On February 20, 2018, an “Abstract of Judgment” was filed.

On February 20, 2018, an abstract of judgment was issued. On August 13, 2019, a writ of execution was issued. On September 10, 2019 an Order to Show Cause Why an Order for Sale of Dwelling Should Not Issue was filed.

Legal Standard

“[T]he interest of a natural person in a dwelling may not be sold under this division to enforce a money judgment except pursuant to a court order for sale…” (CCP § 704.740(a).)

“Section 704.740 is part of the homestead laws. ‘Homestead laws are designed to protect the sanctity of the family home against a loss caused by a forced sale by creditors. . . The homestead exemption ensures that insolvent debtors and their families are not rendered homeless by virtue of an involuntary sale of the residential property they occupy. Thus, the homestead law is not designed to protect creditors. . . This strong public policy requires courts to adopt a liberal construction of the law and facts to promote the beneficial purposes of the homestead legislation to benefit the debtor [and his family].’” (Wells Fargo Financial Leading, Inc. v. D&M Cabinets (2009) 177 Cal.App.4th 59, 67-68.)

Discussion

Judgment Creditor applies for an order for sale of the dwelling commonly known as 419 Willowgrove Avenue, Glendora, California (“the Property”) owned by Judgment Debtor.

Request for Judicial Notice

The court rules on Judgment Creditor’s Request for Judicial Notice (“RJN”) as follows: GRANTED as to Exhibit B (i.e., Abstract of Judgment recorded April 27, 2018); GRANTED as to Exhibit C (i.e., grant deed recorded March 20, 1991) and GRANTED as to Exhibit D (i.e., Affidavit—Death of Trustor, Trustee and Beneficiary recorded April 20, 2009).

The court rules on Judgment Creditor’s Supplemental RJN as follows: GRANTED as to Exhibit A (i.e., grant deed recorded August 14, 1973); GRANTED as to Exhibit B (i.e., trust transfer deed recorded March 20, 1991); GRANTED as to Exhibit C (i.e., Affidavit—Death of Trustor, Trustee and Beneficiary recorded April 20, 2009).

Timeliness of Application

“Promptly after a dwelling is levied upon…, the levying officer shall serve notice on the judgment creditor that the levy has been made and that the property will be released unless the judgment creditor complies with the requirements of this section. Service shall be made personally or by mail. Within 20 days after service of the notice, the judgment creditor shall apply to the court for an order for sale of the dwelling and shall file a copy of the application with the levying officer. If the judgment creditor does not file the copy of the application for an order for sale of the dwelling within the allowed time, the levying officer shall release the dwelling.” (CCP § 704.750(a).)

Plaintiff has provided the court with a copy of the levying officer’s notice dated August 23, 2019. (Strom Decl., ¶11, Exh. F.) The application was filed on August 29, 2019, less than 20 days from the date of the levying officer’s notice; as such, CCP § 704.750(a) is satisfied.

Service Requirements

“Upon the filing of the application by the judgment creditor, the court shall set a time and place for hearing and order the judgment debtor to show cause why an order for sale should not be made in accordance with the application. The time set for hearing shall be not later than 45 days after the application is filed or such later time as the court orders upon a showing of good cause.” (CCP § 704.770(a).)

“Not later than 30 days before the time set for hearing, the judgment creditor shall do both of the following:

(1) Serve on the judgment debtor a copy of the order to show cause, a copy of the application of the judgment creditor, and a copy of the notice of the hearing in the form prescribed by the Judicial Council. Service shall be made personally or by mail.

(2) Personally serve a copy of each document listed in paragraph (1) on an occupant of the dwelling or, if there is no occupant present at the time service is attempted, post a copy of each document in a conspicuous place at the dwelling.” (CCP § 704.770(b) [emphasis added].)

The proof of service filed on October 15, 2019 reflects that on September 23, 2019 “Occupant/or Gale G. Wavra” was served with the “Notice – Important Legal Notice to Homeowner” (i.e., Judicial Council Form EJ-180, Order to Show Cause, and application via posting at the Property.

Requirements of Application

“The judgment creditor's application 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.” (CCP § 704.760 [emphasis added].)

Judgment Creditor states there is no homeowner’s exemption or disabled veteran’s exemption reflected in the records of the Los Angeles Country Recorder for the dwelling. (Strom Decl.,¶7.) Judgment Creditor is informed and believes that Wavra is over 65 years of age and thus entitled to a statutory homestead exemption as set forth in CCP § 704.730(3)(a) in the amount of $175,000.00. (Id., ¶12.)

Judgment Creditor provides an appraisal report by Randy Sonns (“Sonns”) issued as of March 21, 2019, which appraises the Property at $790,000.00. (Sonns Decl., ¶3, Exh. A.) Judgment Creditor states that there are no liens and encumbrances either senior or junior to Judgment Creditor’s abstract of judgment. (Strom Decl., ¶¶14-15.)

 

Judgment Creditor has stated the maximum amount of homestead exemption to be $175,000. On January 21, 2020, Judgment Creditor filed a supplemental application, wherein attorney Mark Strom attests that Plaintiff is informed and believes that the Property is the homestead of Judgment Debtor, that Judgment Debtor has resided at the Property as of the date that Judgment Creditor’s lien attached to the dwelling and that the Property is the principal dwelling of Judgment Debtor. (Supplemental Application, ¶2.)

On January 20, 2020, Strom emailed Lawyers Title Company (“LTC”), the firm which provided the Litigation Guarantee, requesting a statement as to whether or not a declaration of homestead has been recorded; whether a current homeowner’s exemption or disabled veteran’s exemption has been filed with the county assessor, and the person claiming such exemption. (Strom Decl., ¶2.) Pay Hilyard (“Hilyard”) at LTC responded in an email purportedly stating, “That is not something we do in a guarantee. The Guarantee tells what is of record. If there is a Homestead or tax exemption then it would show in the guarantee.” (Id.) Strom did not attach this email from Hilyard, however. On January 21, 2020, Strom downloaded from the Los Angeles County Assessor’s Office the Parcel Detail for the Property. (Id., ¶3, Exh. A.) The Parcel Detail indicates that no Homestead Declaration has been filed with the Assessor and only that a Homestead Exemption is claimed with the Assessor. (Id.)

Evidentiary Requirements

 

“An application for an order for sale of a dwelling must provide at the hearing competent evidence of the following:

(1) The fair market value of the property by a real estate expert;

(2) Litigation guarantee or title report that contains a legal description of the property, the names of the current owners, a list of all deeds of trust, abstracts of judgments, tax liens and other liens recorded against the property, whether a declaration of homestead has been recorded, whether a current homeowner’s exemption or disabled veteran’s exemption has been filed with the county assessor, and the persons claiming such exemption;

(3) The amount of any liens or encumbrances on the dwelling, and the names and addresses of the lienholders and when the judgment creditor’s lien attached. The judgment creditor must ascertain the precise amounts of obligations secured by senior liens by making a written demand for beneficiary statements from senior lienholders pursuant to Civil Code section 2943. The judgment creditor may need to conduct an examination pursuant to Code of Civil Procedure sections 708.120 or 708.130 to determine the precise amounts of the junior liens, the daily rate of interest due on the senior and junior liens, and encumbrances of record; and

(4) The date of service on the judgment creditor of the levying officer’s notice that the dwelling was levied upon.” (Local Rule 3.223(a).)

Judgment Creditor has submitted a real estate appraisal of the Property by Sonns, as well as a litigation guarantee.

On January 27, 2020, Judgment Creditor filed a Second Supplemental Application. The documents which are the subject of Judgment Creditor’s Supplemental RJN (filed January 24, 2020) reflect that Judgment Debtor and her husband, non-party, John M. Wavra (“John”) acquired the Property in or around August of 1973 as joint tenants (Supp. RJN, Exh. A.); that on March 20, 1991, a trust transfer deed was recorded, wherein John and Judgment Debtor transferred all of their interest in the Property to “John M. Wavra and Gale G. Wavra, Co-Trustees in Community Property of the John M. Wavra and Gale G. Wavra Family Trust dated August 15, 1990” (Id., Exh. B); that the trust transfer deed provides that “[t]his conveyance transfers grantor’s interest into his or her revocable living trust” (Id.); that on April 20, 2009, an Affidavit—Death of Trustor, Trustee and Beneficiary (“Affidavit”) was recorded, wherein Judgment Debtor attached a Death Certificate indicating that John had passed away on September 5, 2008 (Id., Exh. C); and that the Affidavit states that Judgment Debtor is the successor trustee and beneficiary of the Wavra Family Trust Dated August 15, 1990 (Id.). The Affidavit does not state that Judgment Debtor is one of other beneficiaries or that there is more than one beneficiary under the Wavra Family Trust dated August 15, 1990, although it is unclear to the court that this information would necessarily be reflected on such a document.

Plaintiff does not cite any authority for its statement that “[w]hether or not there are any other beneficiaries of the revocable trust including, her two children, is immaterial to this proceeding, because at this point in time, Judgment Debtor GALE G. WAVRA has the power to revoke the John M. Wavra and Gale G. Wavra Family Trust dated August 15, 1990 trust at any time, and cancel any proposed future beneficial interest to her children that may have been granted.” (Second Supplemental Application, 5:10-14.) It is unclear whether after John’s death, the entire remaining trust estate, including that portion belonging to John, remained revocable by Judgment Debtor or if, on John’s death, John’s separate property (if any) and his interest in any community or quasi-community property was distributed to one or more irrevocable trusts (i.e., often referred to as “A-B” or “A-B-C” trusts.) It would appear to the court that the court must review the terms of the Wavra Family Trust dated August 15, 1990, specifically language therein addressing what happens to the trust estate at the death of each trustor.


[1] The application was filed August 29, 2019 and originally set for hearing on December 13, 2019. On December 6, 2019, the court reset the December 13, 2019 hearing, on its own motion, to January 22, 2020. On December 17, 2019, moving party filed and mail-served a “Notice of Continuance of Hearing and Order of Application for Issuance of Order for Sale of Dwelling.”

The motion was heard on January 22, 2020; on that date, the hearing was continued, on the court’s own motion, to January 22, 2019. The January 22, 2020 minute order states, in relevant part: “Parties are to meet and confer this week to try to resolve matter.” Plaintiff was ordered to give notice. On January 24, 2020, Plaintiff filed and mail-served a “Notice of Continuance of Hearing and Order of Application for Issuance of Order for Sale of Dwelling” (“Notice”); said Notice advised that the court order counsel to meet and confer “regarding the family trust issue” by “no later than 4:00 p.m., Friday, January 24, 2020.”

Case Number: KS021033    Hearing Date: January 22, 2020    Dept: J

HEARING DATE: Wednesday, January 22, 2020

NOTICE: OK[1]

RE: Cadles of West Virginia LLC v. Wavra (KS021033)

______________________________________________________________________________

 

Judgment Creditor Cadles of West Virginia LLC’s APPLICATION FOR ORDER FOR

THE SALE OF DWELLING

Responding Party: None (unopposed, as of 1/16/20, 7:53 a.m.)

Tentative Ruling

Judgment Creditor Cadles of West Virginia LLC’s Application for Order for the Sale of Dwelling is DENIED.

Background

On September 14, 2017, “Judgment Based on Sister-State Judgment” was filed in favor of Cadles of West Virginia LLC, Assignee of Record for National Credit Union Administrative Board in its capacity as Liquidating Agent for Huran River Area Credit Union (“Judgment Creditor”) and against Defendant Gale G, Wavra (“Judgment Debtor”). On February 20, 2018, an “Abstract of Judgment” was filed.

On February 20, 2018, an abstract of judgment was issued. On August 13, 2019, a writ of execution was issued. On September 10, 2019 an Order to Show Cause Why an Order for Sale of Dwelling Should Not Issue was filed.

Legal Standard

“[T]he interest of a natural person in a dwelling may not be sold under this division to enforce a money judgment except pursuant to a court order for sale…” (CCP § 704.740(a).)

“Section 704.740 is part of the homestead laws. ‘Homestead laws are designed to protect the sanctity of the family home against a loss caused by a forced sale by creditors. . . The homestead exemption ensures that insolvent debtors and their families are not rendered homeless by virtue of an involuntary sale of the residential property they occupy. Thus, the homestead law is not designed to protect creditors. . . This strong public policy requires courts to adopt a liberal construction of the law and facts to promote the beneficial purposes of the homestead legislation to benefit the debtor [and his family].’” (Wells Fargo Financial Leading, Inc. v. D&M Cabinets (2009) 177 Cal.App.4th 59, 67-68.)

Discussion

Judgment Creditor applies for an order for sale of the dwelling commonly known as 419 Willowgrove Avenue, Glendora, California (“the Property”) owned by Judgment Debtor.

Request for Judicial Notice

The court rules on Judgment Creditor’s Request for Judicial Notice as follows: GRANTED as to Exhibit B (i.e., Abstract of Judgment recorded April 27, 2018); GRANTED as to Exhibit C (i.e., grant deed recorded March 20, 1991) and GRANTED as to Exhibit D (i.e., Affidavit—Death of Trustor, Trustee and Beneficiary recorded April 20, 2009).

Timeliness of Application

“Promptly after a dwelling is levied upon…, the levying officer shall serve notice on the judgment creditor that the levy has been made and that the property will be released unless the judgment creditor complies with the requirements of this section. Service shall be made personally or by mail. Within 20 days after service of the notice, the judgment creditor shall apply to the court for an order for sale of the dwelling and shall file a copy of the application with the levying officer. If the judgment creditor does not file the copy of the application for an order for sale of the dwelling within the allowed time, the levying officer shall release the dwelling.” (CCP § 704.750(a).)

Plaintiff has provided the court with a copy of the levying officer’s notice dated August 23, 2019. (Strom Decl., ¶11, Exh. F.) The application was filed on August 29, 2019, less than 20 days from the date of the levying officer’s notice; as such, CCP § 704.750(a) is satisfied.

Service Requirements

“Upon the filing of the application by the judgment creditor, the court shall set a time and place for hearing and order the judgment debtor to show cause why an order for sale should not be made in accordance with the application. The time set for hearing shall be not later than 45 days after the application is filed or such later time as the court orders upon a showing of good cause.” (CCP § 704.770(a).)

“Not later than 30 days before the time set for hearing, the judgment creditor shall do both of the following:

(1) Serve on the judgment debtor a copy of the order to show cause, a copy of the application of the judgment creditor, and a copy of the notice of the hearing in the form prescribed by the Judicial Council. Service shall be made personally or by mail.

(2) Personally serve a copy of each document listed in paragraph (1) on an occupant of the dwelling or, if there is no occupant present at the time service is attempted, post a copy of each document in a conspicuous place at the dwelling.” (CCP § 704.770(b) [emphasis added].)

The proof of service filed on October 15, 2019 reflects that on September 23, 2019 “Occupant/or Gale G. Wavra” was served with the “Notice – Important Legal Notice to Homeowner” (i.e., Judicial Council Form EJ-180, Order to Show Cause, and application via posting at the Property.

The court notes, however, that there is no proof of service indicating that Plaintiff served a copy of the OSC, application and EJ-180 notice on Wavra via personal or mail-service, as per CCP § 704.770(b)(1)); as such, it appears CCP § 704.770(b) is not satisfied.

Requirements of Application

“The judgment creditor's application 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.” (CCP § 704.760 [emphasis added].)

Judgment Creditor states there is no homeowner’s exemption or disabled veteran’s exemption reflected in the records of the Los Angeles Country Recorder for the dwelling. (Strom Decl.,¶7.) Judgment Creditor is informed and believes that Wavra is over 65 years of age and thus entitled to a statutory homestead exemption as set forth in CCP § 704.730(3)(a) in the amount of $175,000.00. (Id., ¶12.)

Judgment Creditor provides an appraisal report by Randy Sonns (“Sonns”) issued as of March 21, 2019, which appraises the Property at $790,000.00. (Sonns Decl., ¶3, Exh. A.) Judgment Creditor states that there are no liens and encumbrances either senior or junior to Judgment Creditor’s abstract of judgment. (Strom Decl., ¶¶14-15.)

 

However, while Judgment Creditor has stated the maximum amount of homestead exemption to be $175,000, Judgment Creditor fails to clearly state “whether the dwelling is a homestead” and “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” as required by CCP § 704.760(b).

The requirements of CCP § 704.760, therefore, have not been satisfied.

Evidentiary Requirements

 

“An application for an order for sale of a dwelling must provide at the hearing competent evidence of the following:

(1) The fair market value of the property by a real estate expert;

(2) Litigation guarantee or title report that contains a legal description of the property, the names of the current owners, a list of all deeds of trust, abstracts of judgments, tax liens and other liens recorded against the property, whether a declaration of homestead has been recorded, whether a current homeowner’s exemption or disabled veteran’s exemption has been filed with the county assessor, and the persons claiming such exemption;

(3) The amount of any liens or encumbrances on the dwelling, and the names and addresses of the lienholders and when the judgment creditor’s lien attached. The judgment creditor must ascertain the precise amounts of obligations secured by senior liens by making a written demand for beneficiary statements from senior lienholders pursuant to Civil Code section 2943. The judgment creditor may need to conduct an examination pursuant to Code of Civil Procedure sections 708.120 or 708.130 to determine the precise amounts of the junior liens, the daily rate of interest due on the senior and junior liens, and encumbrances of record; and

(4) The date of service on the judgment creditor of the levying officer’s notice that the dwelling was levied upon.” (Local Rule 3.223(a).)

Plaintiff has submitted a real estate appraisal of the Property by Sonns, as well as a litigation guarantee; the latter document, however, does not contain all of the information listed in Local Rule 3.223(a)(2).

For the foregoing reasons, the application is DENIED.


[1] The application was filed August 29, 2019 and originally set for hearing on December 13, 2019. On December 6, 2019, the court reset the December 13, 2019 hearing, on its own motion, to January 22, 2020. On December 17, 2019, moving party filed and mail-served a Notice of Continuance of Hearing and Order of Application for Issuance of Order for Sale of Dwelling.