This case was last updated from Los Angeles County Superior Courts on 12/16/2022 at 11:57:55 (UTC).

EASTERN SAVINGS BANK, FSB VS MASSOUD MAZHARI, ET AL.

Case Summary

On 09/25/2020 EASTERN SAVINGS BANK, FSB filed a Property - Foreclosure lawsuit against MASSOUD MAZHARI,. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are DAVID A. ROSEN, JOHN J. KRALIK and CURTIS A. KIN. The case status is Disposed - Judgment Entered.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0773

  • Filing Date:

    09/25/2020

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Property - Foreclosure

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DAVID A. ROSEN

JOHN J. KRALIK

CURTIS A. KIN

 

Party Details

Plaintiff

EASTERN SAVINGS BANK FSB

Defendants

CITY OF GLENDALE A PUBLIC ENTITY

MAZHARI MASSOUD

MARCUS CABLE ASSOCIATES L.L.C.

Attorney/Law Firm Details

Defendant Attorney

SAUNDERS GARY S.

 

Court Documents

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

11/15/2022: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Application for Issuance of Writ of Execution, Possession or Sale

11/15/2022: Application for Issuance of Writ of Execution, Possession or Sale

Writ - Return

11/14/2022: Writ - Return

Application for Issuance of Writ of Execution, Possession or Sale

9/2/2022: Application for Issuance of Writ of Execution, Possession or Sale

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

9/2/2022: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER

6/22/2022: Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER

Order - [PROPOSED] AMENDED JUDGMENT AND ORDER OF FORECLOSURE SALE

6/6/2022: Order - [PROPOSED] AMENDED JUDGMENT AND ORDER OF FORECLOSURE SALE

Notice of Intent to Move for New Trial

11/16/2021: Notice of Intent to Move for New Trial

Notice - NOTICE OF ERRATA TO DEFENDANT'S NOTICF. OF INTFNT TO MOVE FOR NEW TRIAL

12/16/2021: Notice - NOTICE OF ERRATA TO DEFENDANT'S NOTICF. OF INTFNT TO MOVE FOR NEW TRIAL

Notice of Intent to Move for New Trial

12/16/2021: Notice of Intent to Move for New Trial

Declaration - DECLARATION OF CHRISTINE E. HOWSON IN SUPPORT OF MOTION FOR ORDER DETERMINING PLAINTIFF EASTERN SAVINGS BANK, FSBS STATUS AS PREVAILING PARTY, AND FIXING THE AMOUNT OF ATTORNEYS AND PA

1/7/2022: Declaration - DECLARATION OF CHRISTINE E. HOWSON IN SUPPORT OF MOTION FOR ORDER DETERMINING PLAINTIFF EASTERN SAVINGS BANK, FSBS STATUS AS PREVAILING PARTY, AND FIXING THE AMOUNT OF ATTORNEYS AND PA

Declaration - DECLARATION OF CHRIS JOHNSON IN SUPPORT OF MOTION FOR ORDER DETERMINING PLAINTIFFS STATUS AS PREVAILING PARTY AND THE AMOUNT OF ATTORNEYS AND PARALEGALS FEES AND LEGAL EXPENSES TO BE

1/7/2022: Declaration - DECLARATION OF CHRIS JOHNSON IN SUPPORT OF MOTION FOR ORDER DETERMINING PLAINTIFFS STATUS AS PREVAILING PARTY AND THE AMOUNT OF ATTORNEYS AND PARALEGALS FEES AND LEGAL EXPENSES TO BE

Motion for Attorney Fees

1/7/2022: Motion for Attorney Fees

Substitution of Attorney

3/25/2022: Substitution of Attorney

Minute Order - MINUTE ORDER (COURT ORDER)

4/4/2022: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/04/2022

4/4/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/04/2022

Opposition - OPPOSITION TO PLAINTIFF'S NOTICE OF MOTION & MOTION FOR ORDER DETERMINING PLAINTIFF STATUSES PREVAILING PARTY, & FIXING THE AMOUNT OF ATTORNEYS' & PARALEGAL'S FEES & LEGAL EXPENSES TO BE

5/9/2022: Opposition - OPPOSITION TO PLAINTIFF'S NOTICE OF MOTION & MOTION FOR ORDER DETERMINING PLAINTIFF STATUSES PREVAILING PARTY, & FIXING THE AMOUNT OF ATTORNEYS' & PARALEGAL'S FEES & LEGAL EXPENSES TO BE

Reply - REPLY TO OPPOSITION OF DEFENDANT MASSOUD MAZHARI TO MOTION FOR ORDER DETERMINING PLAINTIFF EASTERN SAVINGS BANK, FSB'S STATUS AS PREVAILING PARTY AND FIXING THE AMOUNT OF ATTORNEYS' AND PARALE

5/13/2022: Reply - REPLY TO OPPOSITION OF DEFENDANT MASSOUD MAZHARI TO MOTION FOR ORDER DETERMINING PLAINTIFF EASTERN SAVINGS BANK, FSB'S STATUS AS PREVAILING PARTY AND FIXING THE AMOUNT OF ATTORNEYS' AND PARALE

79 More Documents Available

 

Docket Entries

  • 11/15/2022
  • DocketApplication for Issuance of Writ of Execution, Possession or Sale; Filed by: EASTERN SAVINGS BANK, FSB (Plaintiff)

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  • 11/15/2022
  • DocketMemorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest; Filed by: EASTERN SAVINGS BANK, FSB (Plaintiff); As to: MASSOUD MAZHARI (Defendant); Costs: 0.00; Interest: 61739.75; Credits: 0.00; Service Date: 10/24/2022

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  • 11/15/2022
  • DocketWrit of Sale (Los Angeles); Issued by: EASTERN SAVINGS BANK, FSB (Plaintiff); As to: MASSOUD MAZHARI (Defendant)

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  • 11/14/2022
  • DocketWrit - Return ( ); EASTERN SAVINGS BANK, FSB (Plaintiff); As to: MASSOUD MAZHARI (Defendant); Costs Credits: 0.00; Interest Credits: 0.00; Principal Credits: 0.00; Possession: No

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  • 09/02/2022
  • DocketApplication for Issuance of Writ of Execution, Possession or Sale; Filed by: EASTERN SAVINGS BANK, FSB (Plaintiff)

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  • 09/02/2022
  • DocketWrit of of Sale (Los Angeles); Issued by: EASTERN SAVINGS BANK, FSB (Plaintiff); As to: MASSOUD MAZHARI (Defendant)

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  • 09/02/2022
  • DocketMemorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest; Filed by: EASTERN SAVINGS BANK, FSB (Plaintiff); As to: MASSOUD MAZHARI (Defendant); Costs: 0.00; Interest: 52607.11; Credits: 0.00; Service Date: 08/26/2022

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  • 06/22/2022
  • DocketNotice of Entry of Judgment or Order; Filed by: EASTERN SAVINGS BANK, FSB (Plaintiff)

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  • 06/06/2022
  • Docket[Proposed] Amended Judgment and Order of Foreclosure Sale; Filed by: EASTERN SAVINGS BANK, FSB (Plaintiff)

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  • 06/06/2022
  • DocketUpdated -- [Proposed] Amended Judgment and Order of Foreclosure Sale: Filed By: EASTERN SAVINGS BANK, FSB (Plaintiff); Result: Granted; Result Date: 06/06/2022

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123 More Docket Entries
  • 10/16/2020
  • DocketProof of Personal Service; Filed by: EASTERN SAVINGS BANK, FSB (Plaintiff); As to: CITY OF GLENDALE, a public entity (Defendant); Service Date: 10/06/2020; Service Cost: 142.90; Service Cost Waived: No

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  • 09/25/2020
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by: Clerk

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  • 09/25/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/04/2020 at 08:30 AM in Glendale Courthouse at Department E

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  • 09/25/2020
  • DocketNotice of Case Management Conference; Filed by: Clerk

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  • 09/25/2020
  • DocketCase Management Conference scheduled for 12/08/2020 at 08:30 AM in Glendale Courthouse at Department E

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  • 09/25/2020
  • DocketComplaint; Filed by: EASTERN SAVINGS BANK, FSB (Plaintiff); As to: MASSOUD MAZHARI (Defendant); CITY OF GLENDALE, a public entity (Defendant); MARCUS CABLE ASSOCIATES, L.L.C. (Defendant)

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  • 09/25/2020
  • DocketSummons on Complaint; Issued and Filed by: EASTERN SAVINGS BANK, FSB (Plaintiff); As to: MASSOUD MAZHARI (Defendant); CITY OF GLENDALE, a public entity (Defendant); MARCUS CABLE ASSOCIATES, L.L.C. (Defendant)

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  • 09/25/2020
  • DocketCivil Case Cover Sheet; Filed by: EASTERN SAVINGS BANK, FSB (Plaintiff); As to: MASSOUD MAZHARI (Defendant); CITY OF GLENDALE, a public entity (Defendant); MARCUS CABLE ASSOCIATES, L.L.C. (Defendant)

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  • 09/25/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by: Clerk

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  • 09/25/2020
  • DocketCase assigned to Hon. Curtis A. Kin in Department E Glendale Courthouse

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Tentative Rulings

Case Number: *******0773 Hearing Date: May 20, 2022 Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

eastern savings bank, FSB,

Plaintiff,

v.

massoud mazhari, et al.,

Defendants.

Case No.: *******0773

Hearing Date: May 20, 2022

[TENTATIVE] order RE:

motion for order determining Plaintiff’s status as prevailing party and the amount of attorneys’ and paralegal’s fees and legal expenses to be awarded

BACKGROUND

A. Allegations

On September 25, 2020, Plaintiff Eastern Savings Bank, FSB (“Plaintiff”) filed a complaint for judicial foreclosure against Defendants Massoud Mazhari (“Mazhari”), City of Glendale (“City”), and Marcus Cable Associates, L.L.C. (“MCA”). The real property at issue is located at 719 East Acacia Avenue, Glendale, California 91205. Plaintiff alleges that Mazhari acquired the property in 1989 and was the obligor under a commercial loan. Plaintiff alleges that Mazhari is in default under the note in the principal balance of $475,907.62, plus additional amounts which total $517,258.34 as of September 4, 2020. As a result of the default and breach, Plaintiff seeks a judicial foreclosure of the property and deed of trust.

On December 17, 2020, Plaintiff dismissed without prejudice Defendant Marcus Cable Associates, LLC from the action. On September 1, 2021, Plaintiff dismissed without prejudice Defendant City of Glendale from the complaint. Thus, the only remaining defendant is Mazhari.

On November 5, 2020, Plaintiff filed a Notice of Pendency of Action (Lis Pendens), which was recorded on November 4, 2020.

B. Relevant Background

On April 2, 2021, Plaintiff filed a motion for summary judgment on the complaint for judicial foreclosure against Defendant Mazhari. The motion was unopposed.

On October 15, 2021, the Court granted the motion for summary judgment.

On October 26, 2021, the Court signed the Judgment and Order of Foreclosure Sale. The judgment stated that the total amount due and owing to Plaintiff from Defendant as of March 31, 2021 was $537,288.61, and that daily prejudgment interest from March 31, 2021 to the date of entry of judgment was $98.17. The property was ordered to be sold. The judgment stated that Plaintiff may apply to the Court for attorney’s fees, legal expenses, and court costs incurred in this action by submission of a motion for attorney’s fees and a memorandum of costs.

On November 16, 2021, Defendant Mazhari filed his first notice of intent to move for new trial. This notice was stricken as it was filed by attorney Gary Saunders, who was not the attorney of record for Defendant.

On November 18, 2021, Defendant Mazhari filed a second notice of intent to move for new trial. Concurrently, he filed substitutions of attorney stating that Gary Saunders was representing him.

On November 19, 2021, the Clerk of the Court issued a Notice of Hearing of Motion for New Trial, stating that the Court had set a hearing for the motion on December 17, 2021.

On November 23, 2021, a Notice of Entry of Judgment or Order was filed.

On November 29, 2021, Plaintiff filed a Memorandum of Costs, seeking $3,092.80 in costs.

On December 16, 2021, Defendant Mazhari filed a notice of errata to the notice of intent to move for new trial stating that the November 16, 2021 notice of intent was filed in error because the notice of entry of judgment had not yet been served at that time.

On December 16, 2021, Defendant Mazhari filed a third notice of intent to move for new trial.

C. Motion on Calendar

On January 7, 2022, Plaintiff filed a motion for order determining Plaintiff as the prevailing party and fixing the amount of attorneys’ fees and paralegal’s fees to be awarded.

On May 9, 2022, Defendant filed Mazhari filed an opposition to the motion.

On May 13, 2022, Plaintiff filed a reply brief.

DISCUSSION

A. Defendant’s Arguments that the Fees Motion is Premature

In the opposition papers, Defendant argues that this motion for attorney’s fees is premature because Defendant filed a notice of intent to move for new trial on December 16, 2021, which stays the execution of the judgment pending the Court’s ruling on the motion for new trial.[1]

Although Defendant filed a notice of intent to move for new trial, Defendant did not file any memorandum in support of the motion for new trial. CRC Rule 3.1600 states:

(a) Time for service of memorandum

Within 10 days after filing notice of intention to move for a new trial in a civil case, the moving party must serve and file a memorandum in support of the motion, and within 10 days thereafter any adverse party may serve and file a memorandum in reply.

(b) Effect of failure to serve memorandum

If the moving party fails to serve and file a memorandum within the time prescribed in (a), the court may deny the motion for a new trial without a hearing on the merits.

(CRC Rule 3.1600; see also CCP 659a.) Defendant did not file any memorandum in support of the motion, which would amount to a denial of the motion for new trial.

In addition, CCP 660(c) states: “Except as otherwise provided in Section 12a of this code, the power of the court to rule on a motion for a new trial shall expire 75 days after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 75 days after service on the moving party by any party of written notice of entry of judgment, whichever is earlier….” It is well over 75 days from the mailing of the notice of entry of judgment, such that this Court lacks jurisdiction to rule on a motion for new trial at this point.

Thus, the motion for attorney’s fees is not premature based on Defendant’s argument that there is a pending motion for new trial. Accordingly, the Court will consider the merits of the motion.

B. Entitlement to Fees and Prevailing Party

Civil Code, 1717 states in relevant part:

(a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.

(b)(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.

(Civ. Code, 1717(b)(1).)

Paragraph 7(E) of the Adjustable Rate Note states:

(E) Payment of Note Holder’s Costs and Expenses

If I am in default as described above, or I do not comply with any of the terms or conditions of this Note or the Deed of Trust securing this Note, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. These expenses include, for example: (i) the costs of collections (including reasonable foreclosure fees and costs, and attorneys’ fees) in the case default is made in the payment of this Note; . . . .”

(Johnson Decl., Ex. 1 [Adjustable Rate Note at 7(E).].)

The Deed of Trust securing Defendant’s obligations under the Adjustable Rate Note also contained a fees and costs provision:

8. PROTECTION OF LENDER’S SECURITY. If Borrower fails to perform the covenants and agreements contained in this Instrument, . . . then Lender at Lender’s option may make such appearances, disburse such sums and take such action as Lender deems necessary, in its sole discretion, to protect Lender’s interest, including, but not limited to, (i) disbursement of attorney’s fees, . . .

27. ACCELERATION; REMEDIES. Upon Borrower’s breach of a covenant or agreement of Borrower in this Instrument, including, but not limited to, the covenants to pay when due any sums secured by this Instrument, Lender at Lender’s option may declare all of the sums secured by this Instrument to be immediately due and payable without further demand, and may invoke the power of sale and any other remedies permitted by applicable law or provided herein. … Lender shall be entitled to collect all costs and expenses in pursuing such remedies, including but not limited to, attorney’s fees and costs of documentary evidence, abstracts and title reports.

(Johnson Decl., Ex. 2 [Deed of Trust at p. 4, 8 and p. 7, 27].)

Plaintiff has established the basis for attorney’s fees based on the Note and Deed of Trust. In addition, Plaintiff has prevailed against Defendant on this action for the enforcement of the Note and Deed of Trust in connection with this judicial foreclosure action.

In opposition, Defendant argues that Plaintiff cannot be deemed the prevailing party because Defendant filed a notice of intent to move for new trial, which stays any order that Plaintiff is the prevailing party. However, for the reasons discussed above, this argument fails.

C. Reasonableness of Fees

Plaintiff moves for attorney’s fees in the amount of $56,899.25.

Plaintiff provides the declaration of its counsel Christine E. Howson. Ms. Howson (senior litigator at the firm) provides the billing records for the matter through December 30, 2021. (Howson Decl., 9, Ex. 5.) She states that her billing rate is $285/hour, which is reasonable in light of her experience and her admission to the bar since 1988. (Id., 10-11.) She states that the attorneys at her firm spent 235.10 hours on this case, but they are seeking only 181.80 hours, for a total of $51,813.00 (= $285/hour x 181.80 hours). (Id., 17.) Ms. Howson also states that the billing reflects 12.4 hours spent on this action by her paralegals Sabrina Eckels, Cara Rictor, and Randall Szabo,[2] but counsel is only seeking 8.8 hours of paralegal time. (Id., 12, 17.) For the paralegals, counsel is seeking $1,386 (= [1.5 hours x $95] + [1.2 hours x $125/hour) + [8.1 hours x $135/hour]). (Id., 17.) Total, for the time spent on the action, counsel is seeking $52,929.00 for attorney and paralegal time. In addition, counsel seeks $2,137.50 for work on this motion for attorney’s fees (= $285/hour x 7.5 hours). (Id., 19.) Finally, counsel seeks legal expenses other than fees in the amount of $1,832.75 that were not sought in the memorandum of costs. (Id., 20.)

Ms. Howson’s hourly rate is reasonable and justified at $285 per hour. The Court will not make any adjustments to the hourly rate. The Court has reviewed the billing records and finds that the records reflect time that was relevant for the litigation of this action from February 18, 2020 to the present.

With respect to the work performed by the paralegals, the time spent by the paralegals in the sum of 8.8 total hours is modest. The work they performed included preparing requests for dismissals, drafting stipulations, drafting notices, and preparing an initial draft of this motion. The Court will allow the fees incurred by the paralegals to be awarded.

Ms. Howson states that she seeks $1,832.75 in costs that were not requested in the memorandum of costs. Specifically, she seeks: “attorneys’ service fees for servicing and delivering documents which are not recoverable as court costs ($1,115.45); charges for the obtaining of public records pertaining to Defendant Mazhari and the subject real property ($162.50); fees to obtain copies of pleadings and court documents ($103.20); additional charges in connection with the filing and delivery of court documents not recoverable as court costs ($359.00); postage and mailing charges ($2.60); LA Court Connect Appearance fee ($15.00); and for an endorsement from a title company (post-issuance of the litigation guaranty) pertaining to the subject real property ($75.00).” (Howson Decl., 20.) The Court finds that these costs are reasonable and necessary to the conduct of the litigation and will allow these costs to be recoverable as well.

Thus, the motion for attorney’s fees and costs is granted in the sum of $56,899.25.

CONCLUSION AND ORDER

Plaintiff Eastern Savings Bank, FSB’s motion for attorney’s fees and costs is granted in the amount of $56,899.25.

Plaintiff shall provide notice of this order.


[1] The Court notes that while Defendant filed a notice of errata as to the November 16, 2021 notice of intent to move for new trial, the Court had issued a hearing date for the motion for new trial based on the November 18, 2021 notice of intent to move for new trial.

[2] Ms. Howson informs the Court that Cara Rictor is a licensed attorney in Oregon and Washington and Randall Szabo is now a licensed attorney. (Howson Decl., 12.)



b'

Case Number: *******0773 Hearing Date: October 15, 2021 Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

eastern savings bank, FSB,

Plaintiff,

v.

massoud mazhari, et al.,

Defendants.

Case No.: *******0773

Hearing Date: October 15, 2021

[TENTATIVE] order RE:

motion for summary judgment

BACKGROUND

A. Allegations

On September 25, 2020, Plaintiff Eastern Savings Bank, FSB (“Plaintiff”) filed a complaint for judicial foreclosure against Defendants Massoud Mazhari (“Mazhari”), City of Glendale (“City”), and Marcus Cable Associates, L.L.C. (“MCA”). The real property at issue is located at 719 East Acacia Avenue, Glendale, California 91205. Plaintiff alleges that Mazhari acquired the property in 1989 and was the obligor under a commercial loan. Plaintiff alleges that Mazhari is in default under the note in the principal balance of $475,907.62, plus additional amounts which total $517,258.34 as of September 4, 2020. As a result of the default and breach, Plaintiff seeks a judicial foreclosure of the property and deed of trust.

On December 17, 2020, Plaintiff dismissed without prejudice Defendant Marcus Cable Associates, LLC from the action. On September 1, 2021, Plaintiff dismissed without prejudice Defendant City of Glendale from the complaint. Thus, the only remaining defendant is Mazhari.

On November 5, 2020, Plaintiff filed a Notice of Pendency of Action (Lis Pendens), which was recorded on November 4, 2020.

B. Motion on Calendar

On April 2, 2021, Plaintiff filed a motion for summary judgment on the complaint for judicial foreclosure against Defendant Mazhari. Plaintiff argues that it is the holder of the original note and current beneficiary under the subject deed of trust, Mazhari is in default under the subject note, the note as modified, and the deed of trust, and the debt secured by the deed of trust has not been repaid. Plaintiff seeks a judgment that: (a) the deed of trust may be foreclosed upon, (b) ordering the sale of the property according to law by the Sheriff of Los Angeles County, (c) the proceeds of the sale be applied in payment of the amounts due to Plaintiff, and (d) Mazhari and all persons claiming any liens under any title instruments subsequent to the execution and original recordation of the deed of trust be barred and foreclosed from all rights, claims, or equity redemption in the property.

The Court is not in receipt of an opposition brief.

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests that the Court take judicial notice of Exhibits: (2) the Corporation Grant Deed recorded on April 14, 1989; (4) License Information regarding Mazhari from the records of the California Department of Real Estate showing that he is a licensed real estate broker; (6) the Multifamily Deed of Trust, Assignment of Rents and Security Agreement recorded on April 14, 1989; (8) the Assignment of Beneficial Interest in the Deed of Trust recorded on March 15, 1996; (9) the Assignment of Deed of Trust/Mortgage recorded on May 14, 2007; (19) the Property Tax inquiry information from the lacounty.gov website; and (22) the Assessors ID number for the property downloaded from the https: maps.assessor.lacounty.gov/m/ website. The Court takes judicial notice of these documents.

Plaintiff also requests judicial notice of the facts that: (1) the real property at issue is commonly known as 719 East Acacia Avenue; (2) the property is identified as Assessor ID No. 5675-029-108; and (3) the deed of trust is the only lien of any type recorded against the property. The Court will take judicial notice of the first two facts, but not the third fact.

DISCUSSION

A. Relevant Law

A mortgagee may foreclose the right of redemption of the mortgagor in the manner prescribed by the Code of Civil Procedure.” (Civ. Code, ; 2931.) “The beneficiary or trustee named in a deed of trust or mortgagee named in a mortgage with power of sale upon real property or any interest therein to secure a debt or other obligation, or if there be a successor or successors in interest of such beneficiary, trustee or mortgagee, then such successor or successors in interest, shall have the right to bring suit to foreclose the same in the manner and subject to the provisions, rights and remedies relating to the foreclosure of a mortgage upon such property.” (CCP ; 725a.)

CCP ; 726(a) states in relevant part:

In the action the court may, by its judgment, direct the sale of the encumbered real property or estate for years therein (or so much of the real property or estate for years as may be necessary), and the application of the proceeds of the sale to the payment of the costs of court, the expenses of levy and sale, and the amount due plaintiff, including, where the mortgage provides for the payment of attorney\'s fees, the sum for attorney\'s fees as the court shall find reasonable, not exceeding the amount named in the mortgage.

(CCP ; 726(a).)

The Court of Appeal in Arabia v. BAC Home Loans Servicing, L.P. (2012) 208 Cal.App.4th 462 discussed judicial foreclosures as follows:

Judicial foreclosure does not require a similar comprehensive statutory scheme as nonjudicial foreclosure because of the degree of court oversight. As its name implies, to commence a judicial foreclosure, the foreclosing party must file a lawsuit. Therefore, instead of merely causing a notice of default to be recorded and proceeding toward a foreclosure sale per the Civil Code without court involvement, the plaintiff must prove its case to the satisfaction of the court. The plaintiff must establish the subject loan is in default and the amount of default. (See 1 Bernhardt, Mortgages, Deeds of Trust, and Foreclosure Litigation (Cont.Ed.Bar 4th ed. 2011) Judicial Foreclosure, ; 3.1, p. 181 (Bernhardt).) If successful in proving the loan is in default, the plaintiff will ask the court to order the property sold to satisfy the loan balance. (Ibid.) Inherent in this process, the plaintiff must prove it has the right to initiate the judicial foreclosure.

In addition, under certain circumstances that are not disputed here, a judicial foreclosure allows the plaintiff to seek a deficiency judgment against the borrower, if the property is sold for less than the amount of indebtedness. The amount of the deficiency judgment will be the difference between the fair market value of the property at the time of the foreclosure sale (as determined by the court) and the amount of indebtedness. (See Alliance, supra, 10 Cal.4th at p. 1236, 44 Cal.Rptr.2d 352, 900 P.2d 601.) “However, the debtor has a statutory right of redemption, or an opportunity to regain ownership of the property by paying the foreclosure sale price, for a period of time after foreclosure.” (Ibid.)

(Arabia v. BAC Home Loans Servicing, L.P. (2012) 208 Cal.App.4th 462, 470–471.)

B. Undisputed Facts and Discussion

Plaintiff moves for summary judgment against Mazhari, seeking a judicial foreclosure on the subject property. Plaintiff provides the following undisputed facts. In 1989, Mazhari received a commercial loan in the original principal amount of $1,500,000.00 ("Loan") from Western Federal Savings and Loan Association ("Western Federal"). (Fact 1.) The documents evidencing the Loan include an Adjustable Rate Note dated March 31, 1989 in favor of Western Federal and the attached Rider to Promissory Note (collectively, the "Note"). (Fact 1; Mot., Ex. 5.) The repayment of the Loan evidenced by the Note, and all renewals, extensions and modifications thereof, was and is secured by a Multifamily Deed of Trust, Assignment of Rents and Security Agreement dated March 31, 1989, executed by Mazhari (as borrower and trustor) in favor of Western Federal (as lender) with an attached Adjustable Rate Rider, recorded on April 14, 1989. (Fact 2; Mot. Ex. 6; RJN Ex. 3.) The Deed of Trust provides that it is to secure the "(a) the repayment of the indebtedness evidenced by Borrower\'s note dated March 31, 1989 (herein "Note") in the principal amount of ONE MILLION FIVE HUNDRED THOUSAND and NO/100 Dollars, with interest thereon, with the balance of the indebtedness, if not sooner paid, due and payable on MAY 1, 2019, and all renewals, extensions and modifications thereof; (b) the repayment of any future advances, with interest thereon, advanced in accordance herewith to protect the security of this Instrument; and (c) the performance of the covenants and agreements of Borrower herein contained." (Fact 3; Mot., Ex. 6.) The real property encumbered by the Deed of Trust as security for the repayment of the Loan is owned by Mazhari and is commonly known as 719 East Acacia Avenue, Glendale, California 91205 ("Property"). (Fact 4.)

In December 1995, Plaintiff purchased the Loan from the Resolution Trust Corporation ("RTC") at a public auction. (Fact 5; Mot., Exs. 7, 10.) Plaintiff is the current holder of the original Note, and following Plaintiff\'s purchase of the Loan, an Allonge for the Note was executed in favor of Plaintiff. (Fact 6; Mot., Ex. 7.) Plaintiff is the current beneficiary and holder of the beneficial interest in the Deed of Trust. (Fact 7.)

In 1997, Plaintiff and Mazhari entered into the first of three Modification Agreements pertaining to the Loan. (Fact 8; Mot., Exs. 10-12.) During the time Mazhari negotiated the Modification Agreements with Plaintiff, he held and presently holds a Broker’s license issued by the State of California Department of Real Estate. (Fact 18.)

(1) The 1997 Modification Agreement, effective as of March 1, 1997, concerned Mazhari\'s disputes regarding certain alleged loan accounting discrepancies purportedly made prior to the acquisition of the Loan by Plaintiff. (Fact 9.) Pursuant to the 1997 Modification Agreement, effective as of March 1, 1997, among other things, Mazhari agreed "not to claim any setoff rights against the Loan or to pursue any claim which challenges or impairs the validity of the Mazhari Loan." (Fact 10.)

(2) In 2007, Plaintiff and Mazhari entered into the 2007 Modification Agreement for the Loan, which to pertains to Mazhari\'s failure to pay certain real property taxes, protective advances made by Plaintiff, accrued late charges, the interest rate floor, the required amount to bring the Loan current, and the monthly principal, interest and escrow payment due on the Note effective April 1, 2007. (Fact 11.) Pursuant to the terms of the 2007 Modification Agreement, Mazhari agreed that there are no set-offs or defenses against the Note or Deed of Trust securing the Loan. (Fact 12.)

(3) On or about May 23, 2009, Plaintiff and Mazhari entered into a third agreement to modify the terms of the Loan. (Fact 13.) Pursuant to the 2009 Modification Agreement, among other things, Plaintiff and Mazhari agreed that after receipt and application of his monthly payment due April 1, 2009, the principal balance due on the Note was $874,977.50. (Fact 14.) The 2009 Modification Agreement, at Mazhari\'s request, reduced the principal and interest portion of his monthly loan payment (but not any escrow payment that may be due), effective beginning with the May 1, 2009 payment to $6,915.61 which was a decrease of nearly $3,300.00 from the prior monthly principal and interest payments of $10,214.47. (Fact 15.) The monthly principal and interest payments due by Mazhari on the Loan were reduced by re-amortizing the principal balance due on the Loan of $874,977.50, after receipt and application of the April 1, 2009 payment, using a 240 month term beginning on April 1, 2009, with the May 1, 2019 maturity date of the Note remaining unchanged and resulting in a balloon payment due on the maturity date. (Fact 16.) Mazhari again acknowledged and agreed that there are no set-offs or defenses against the Note or the Deed of Trust securing the Note. (Fact 17.)

The Note, and the Note as modified, matured on May 1, 2019. (Fact 19.) Prior to the maturity date of the Loan, Plaintiff sent Mazhari a letter dated April 12, 2019 regarding the maturity of the Loan and the balance due of $600,870.34 on the May 1, 2019 maturity date, which also stated the terms upon which Plaintiff was willing to forebear from enforcing the maturity date for the loan until September 1, 2019; a payoff statement for the Loan showing that amount of the balloon payment due on the May 1, 2019 maturity date was enclosed with that letter. (Fact 20; Mot., Ex. 13.) Plaintiff prepared the April 12, 2019 forbearance letter because Mazhari informed Plaintiff that he intended to refinance the Loan, and he requested that Plaintiff agree to provide him a few additional months to do so beyond the May 1, 2019 maturity date of the Loan. (Fact 21.) To accommodate Mazhari, but without waiving any of its rights, Plaintiff offered to accept monthly payments in the amount of $11,718.42 ($6,915.61 for the principal and interest portions of the payment + $4,802.81 for the escrow portion of the payment) in May, June, July, and August 2019, with the payments due by the first of the month, and to forbear on the enforcement of the maturity date for the payoff of the Loan in full until September 1, 2019. (Fact 22.) Mazhari accepted the terms, signed, and returned the April 12, 2019 forbearance letter to Plaintiff. (Fact 23.)

Prior to the September 1, 2019 expiration of the forbearance period set forth in the April 12, 2019 forbearance letter, Mazhari requested another forbearance of the enforcement of the maturity date of the Loan and Plaintiff agreed that Mazhari could continue making the monthly payments of $11,718.42 during the months of September, October, and November 2019, and that the Loan was to be paid in full no later than December 1, 2019. (Fact 24.) The forbearance period from September 1 to December 1, 2019 (“Second Forbearance”) was memorialized in a letter from Plaintiff to Mazhari dated August 16, 2019, which was signed by Plaintiff and Mazhari. (Fact 25; Mot., Ex. 14.)

On November 15, 2019, approximately two weeks before the expiration of the Second Forbearance, Mazhari paid his November 1, 2019 monthly loan payment in the sum of $11,718.42, and at that time Plaintiff\'s representative, Chris Johnson, and Mazhari communicated regarding a possible further modification to the Loan if Mazhari made a payment in the amount of $100,000 to reduce the outstanding balance due on the Loan. (Fact 26; Mot., Ex. 15.) On November 22, 2019, Mazhari made the $100,000 payment to reduce the Loan balance, and from that payment, $89,182.47 was applied to the principal, and $10,817.53 was applied to an amount due on the Loan as a result of a prior payment deferral in September 2010; however, Mazhari then declined to enter into the proposed written loan modification agreement which was sent to him by email on December 10, 2019. (Fact 27.)

After Mazhari\'s November 22, 2019 payment, Mazhari refused, and continues to refuse, to pay the remaining amount due on the Loan. (Fact 28.) Plaintiff sent a formal demand letter to Mazhari regarding his failure to pay off the matured loan on January 16, 2020 which states that the amount then due was $474,393.50. (Fact 29; Mot., Ex. 18.) Mazhari is also in default under the terms of the Deed of Trust by failing to pay the real property taxes which are presently delinquent in the amount of $27,088.86 because after the loan matured; Mazhari agreed that he would be responsible for the payment of the taxes for the Property directly, rather than through escrow payments made to Plaintiff. (Fact 30.)

Plaintiff argues that the Deed of Trust is in first lien position and is the only lien encumbering the Property. (Fact 35; Howson Decl., ¶¶4-5, 9-10; Mot., Exs. 1, 3.) Plaintiff provides the Litigation Guarantee and the Endorsement update for the Property from WFG National Title Insurance Company, which shows that the Deed of Trust is in the first priority position and that no junior liens exist or encumber the Property.

Based on the undisputed facts presented by Plaintiff, Plaintiff has shown that it is the holder of the Note and beneficiary under the deed of trust encumbering the Property. Plaintiff has also presented evidence showing that Mazhari defaulted on the Loan by refusing to pay off the remaining amount due on the matured loan on January 16, 2020 and by failing to pay the real property taxes due on the Property, which became delinquent on December 10, 2020. (Fact 28-29, 30; Mot., Ex. 18.) Thus, Plaintiff has upheld its burden in showing that it has the right to foreclose on Mazhari’s defaults pursuant to the terms of the Loan documents. (Fact 3; Mot., Ex. 6.)

As of March 31, 2021, Plaintiff provides undisputed facts showing that the unpaid principal, interest and fees and charges (excluding Plaintiff\'s attorneys\' and paralegals\' fees, legal expenses and court costs) due and owing to Plaintiff from Mazhari in sum of $537,288.61 is the total of the following amounts (Fact 33-34):

(a) Unpaid Principal Balance of $475,907.62

(b) Prejudgment Interest at 7.250% from 11/1/2019 to 3/31/2021 of $48,879.68

· Pursuant to Paragraph 9 of the 2007 Modification Agreement, the Note was modified to establish the interest rate floor of 7.250%, and no higher interest rate is sought by Plaintiff in connection with any unpaid amounts due on the Loan. (Fact 31.) The interest accruing at the rate of 7.250% on the Unpaid Principal Balance of $475,907.62 and the Negative Escrow Balance of $11,585.56 amounts to $98.17 per day. (Fact 32.)

(c) Negative Escrow/Impound Overdraft from 3/16/2020 to 3/31/2021 of $11,585.56

(d) Interest due on Negative Escrow/Impound Overdraft of $873.75

(e) Property Inspection Charges of $30.00,

(f) Title Fees for Recording of Assignment in 2007 of $12.00

Plaintiff has upheld its burden on showing the amount owed by Mazhari to Plaintiff in the sum of $537,288.61.

Pursuant to the terms of the Note and the Deed of Trust, the amount of the indebtedness includes the attorneys\' fees, legal expenses and court costs incurred by Plaintiff in the enforcement of its rights collect the amounts due on the Loan. (Fact 36.) As of March 31, 2021; the attorneys\' fees and paralegals\' fees, legal expenses and court costs incurred by Plaintiff in connection with this Judicial Foreclosure action are no less than $37,451.00. (Fact 37.) It is estimated by Plaintiff\'s counsel that additional attorneys\' fees of no less than $2,850 will be incurred by Plaintiff from April 1, 2021 through the submittal of the Order on this Motion and-proposed Judgment (if the motion is granted). (Fact 38.) At this time, the Court declines to award attorney’s fees and costs in connection with this motion for summary judgment. Instead, Plaintiff should file a separate motion for attorney’s fees and submit a memorandum of costs in order to seek these amounts.

Thus, the motion for summary judgment on the complaint for judicial foreclosure is granted such that the deed of trust may be foreclosed upon, the Court will order the sale of the property according to law by the Sheriff of Los Angeles County, the proceeds of the sale be applied in payment of the amounts due to Plaintiff, and Mazhari and all persons claiming any liens under any title instruments subsequent to the execution and original recordation of the deed of trust be barred and foreclosed from all rights, claims, or equity redemption in the property.

CONCLUSION AND ORDER

Plaintiff Eastern Savings Bank, FSB’s motion for summary judgment against Defendant Massoud Mazhari on the complaint for judicial foreclosure is granted. Plaintiff is ordered to submit a judgment in conformity with the Court’s order within 10 court days of this order. To the extent Plaintiff seeks attorney’s fees and costs, Plaintiff should file the appropriate memorandum of costs and motion for attorney’s fees pursuant to code.

Plaintiff shall provide notice of this order.

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