Preview
(FILED: KINGS COUNTY CLERK 0971772014 12:24 PM INDEX NO. 508529/2014NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/17/2014SUPREME COURT OF THE STATE OF NEW YORK INDEX NO.COUNTY OF KINGSUS. BANK NATIONAL ASSOCIATION, ASTRUSTEE FOR RESIDENTIAL ASSET MORTGAGEPRODUCTS, INC., MORTGAGE ASSET-BACKEDPASS-THROUGH CERTIFICATES, SERIES 2005-EFC?,Plaintiff designates KINGS as the place ofPlaintiff, trial situs of the real propertyVS.SUMMONSTHE BOARD OF MANAGERS OF SEAVJEWESTATES CONDOMINIUM; DAWN BURKE;SEAVIEW ESTATES CONDOMINIUM,"JOHN DOE #1" through "JOHN DOE #12," thelast twelve names being fictitious and unknown toplaintiff, the persons or parties intended being thetenants, occupants, persons or corporations, if any,having or claiming an interest in or lien upon thepremises, described in the complaint,Defendants.To the above named DefendantsYOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy ofyour answer, or, if the complaint is not served with this summons, to serve a notice of appearance on thePlaintiffs Attorney within 20 days after the service of this summons, exclusive of the day of service (orwithin 30 days after the service is complete if this summons is not personally delivered to you within theState of New York) in the event the United States of America is made a party defendant, the time toanswer for the said United States of America shall not expire until (60) days after service of theSummons; and in case of your failure to appear or answer, judgment will be taken against you by defaultfor the relief demanded in the complaint.HAN AAA14-41034 - jg Drafter: Jennifer GalezynskiNOTICEYOU ARE IN DANGER OF LOSING YOUR HOMEIf you do not respond to this summons and complaint by serving a copy of the answer on theattorney for the mortgage company who filed this foreclosure proceeding against you and filing theanswer 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 howto answer the summons and protect your property.Sending a payment to the mortgage company will not stop the foreclosure action.YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FORTHE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THECOURT: ~Dated: 7/18/2014RAS Boriskin, LLCAttorney WOBY: /MH ANTHONY CELLUCCTI, ESQ.[' ] LISA SOAVE, ESQ.[ ] SARA BORISKIN, ESQ.900 Merchants Concourse, Suite LL-13Westbury, NY 11590(516) 280-767514-41034 - jg Drafter: Jennifer GalezynskiSUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGSINDEX NO.U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEEFOR RESIDENTIAL ASSET MORTGAGE PRODUCTS,INC., MORTGAGE ASSET-BACKED PASS-THROUGHCERTIFICATES, SERIES 2005-EFC7,COMPLAINTPlaintiff,vs.THE BOARD OF MANAGERS OF SEAVIEW ESTATESCONDOMINIUM; DAWN BURKE; SEAVIEW ESTATESCONDOMINIUM,"JOHN DOE #1" through “JOHN DOE #12," thelast twelve names being fictitious and unknown toplaintiff, the persons or parties intended being thetenants, occupants, persons or corporations, if any,having or claiming an interest in or lien upon thepremises, described in the complaint,Defendants.The complaint of the above-named plaintiff, by RAS Boriskin, LLC, its attorneys, alleges uponinformation and belief as follows:1. Plaintiff is organized under the laws of the United States of America or its state of formation.2. On October 5, 2005, DAWN BURKE duly executed and delivered a note whereby DAWNBURKE promised to pay the sum of $285,000.00 plus interest as set forth in said note.A copy of said note is annexed hereto.3. Plaintiff, directly or through an agent has possession of said note, which note is secured by themortgage identified below, and the said note ts either made payable to Plaintiff or is duly indorsed.4. That to secure the payment of the sum represented by said note, DAWN BURKE, dulyexecuted and delivered a mortgage which was recorded and the mortgage tax thereon was duly paid.The subject mortgage was recorded on November 18, 2005, at CRFN 2005000642516, of the PublicRecords of KINGS County, New York and was re-recorded on January 17, 2013, at CRFNNgo4 - ig Drafter: Jennifer Galezynski2013000023594, of the Public Records of KINGS County, New York for the purpose of attaching thepre-payment penalty rider. Said mortgage was assigned to Plaintiff by assignment of mortgage dulyexecuted on a date prior to the filing of the complaint.5. Said mortgage secured the real property known as 108-15 SEAVIEW AVENUE, #40C,BROOKLYN, NEW YORK 11236 and by Block 8273, Lot 1388 together with all fixtures and articlesof personal property annexed to, installed in, or used in connection with the mortgaged premises, all asis more fully set forth in said mortgage. A copy of the legal description is set forth on Schedule Aannexed,6. Plaintiff is the owner and holder of said note and mortgage or has been delegated the authorityto institute a mortgage foreclosure action by the owner and holder of the said note and mortgage.7. Upon information and belief, Plaintiff complied with RPAPL 1304 and RPAPL 1306 unlessexempt from doing so. Moreover, Plaintiff has complied with all conditions precedent contained in themortgage, if any.8. That Defendants failed to comply with the conditions of the note and mortgage by failing tomake the payment that became due on May 1, 2011 and each subsequent payment thereafter.9. That by reason of such defaults, Plaintiff hereby declares the balance of the principalindebtedness immediately due and payable.10. That there is now due and owing to the plaintiff, the principal sum of $270,982.05 with interestthereon from the April 1, 2011 plus accumulated late charges together with any sums advanced by theplaintiff on behalf of defendant.11. That plaintiff shall not be deemed to have waived, altered, released or changed the electionhereinbefore made by reason of the payment after the date of the commencement of this action, of anyor all of the defaults mentioned herein; and such election shall continue and remain effective until thecosts and disbursem*nts of this action, and any and all future defaults under the aforesaid bond or noteand mortgage, and occurring prior to the discontinuance of this action are fully paid.12. That to protect its security afforded by said note and mortgage, it may be necessary for theplaintiff to pay taxes, assessments, water rates and insurance premiums which are, or may become liens14-41034 - jg Drafter: Jennifer Galezynskion the mortgaged premises, and any other charges for the protection of the premises, and plaintiffhereby demands that any amounts which may be so expended shall be added to the amount of theprincipal sum secured by said note and mortgage, together with interest from the time of any suchpayment, and that the same be paid to the plaintiff from the proceeds of the foreclosure sale herein.13. That the plaintiff alleges that no other proceedings have been had for the recovery of themortgage indebtedness or if any such action is pending, a final judgment was not rendered in favor ofPlaintiff and such action is intended to be discontinued.14, That the said premises and title thereto are subject to the following:a) The state of facts an accurate survey will show;b) All covenants, restrictions, easem*nts, agreements and reservations, if any, of record, and toany and all violations thereof;c) Any and all building and zoning regulations, restrictions and ordinances of the municipalityin which said premises are situated, and to any violations of the same, including, but not fimited to,reapportionment of lot lines, and vault charges, if any;d) Any and all orders or requirements issued by any governmental body having jurisdictionagainst or affecting said premises and any violation of the same;e) The physical condition of any building or structure on the premises as of the date of closinghereunder;f} Rights of tenants in possession, if any;2) Prior mortgages and judgments, if any, now liens of record;h) Right of Redemption of United States of America, if any;i) Rights of any defendants pursuant to CPLR Section 317, CPLR Section 2003 and CPLR.Section 5015, if any;j) Any and all Hazardous Materials in the premises including, but not limited to, flammableexplosives, radioactive materials, hazardous wastes, asbestos or any material containing asbestos, andtoxic substances; andk) Other conditions as set forth in the terms of sale more particularly to be announced at the14-41034 - jg, Drafter: Jennifer Galezynskisale,15, That plaintiff further alleges that all the defendants have, or may claim to have, some interestin, or lien upon the mortgaged premises, or some part thereof, which interest or lien, if any, is subjectand subordinate to the lien of the mortgage being foreclosed.16. The description of each of the named party defendants interest is set out on Schedule "B"annexed,17. The interest or lien of each of the named party defendants, if any, is set forth in Schedule “C”annexed,18. The terms of said mortgage provide that defendants shall be liable to plaintiff for reasonableattorneys’ fees incurred by plaintiff to protect or enforce plaintiff's security interest in the premises.19. That the sale of the mortgaged premises and title thereto are subject to the state of facts anaccurate survey will show; all covenants, restrictions, easem*nts, agreements and reservations, if any, ofrecord, and to any and all violations thereof; any and all building and zoning regulations, restrictionsand ordinances of the municipality in which said premises are situated, and to any violations of thesame, including, but not limited to, reapportionment of lot lines, and vault charges, if any; any and allorders or requirements issued by any governmental body having jurisdiction against or affecting saidpremises and any violation of the same; the physical condition of any building or structure on thepremises as of the date of closing hereunder; rights of tenants in possession, if any; prior mortgages andjudgments, if any, now liens of record; right of Redemption of United States of America, ifany; rightsof any defendants pursuant to CPLR Section 317, CPLR Section 2003 and CPLR Section 5015, ifany;any and all Hazardous Materials in the premises including, but not limited to, flammable explosives,radioactive materials, hazardous wastes, asbestos or any material containing asbestos, and toxicsubstances; and other conditions as set forth in the terms of sale more particularly to be announced atthe sale.THIS SPACE IS INTENTIONALLY LEFT BLANK14-41034 - jg Drafter: Jennifer GalezynskiWHEREFORE, plaintiff demands judgment against the defendants as follows:A. The defendants and each of them, and all persons claiming under them, or any of themsubsequent to the commencement of this action and the filing of the Notice of Pendency thereof,may be barred and foreclosed of all right, title, claim, lien and equity of redemption in themortgaged premises;B. Said mortgaged premises be sold subject to the state of facts an accurate survey willshow; all covenants, restrictions, easem*nts, agreements and reservations, if any, of record, andto any and all violations thereof; any and all building and zoning regulations, restrictions andordinances of the municipality in which said premises are situated, and to any violations of thesame, including, but not limited to, reapportionment of lot lines, and vault charges, if any; anyand all orders or requirements issued by any governmental body having jurisdiction against oraffecting said premises and any violation of the same; the physical condition of any building orstructure on the premises as of the date of closing hereunder; rights of tenants in possession, ifany; prior mortgages and judgments, if any, now liens of record; right of Redemption of UnitedStates of America, if any; rights of any defendants pursuant to CPLR Section 317, CPLR Section2003 and CPLR Section 5015, if any; any and all Hazardous Materials in the premises including,but not limited to, flammable explosives, radioactive materials, hazardous wastes, asbestos or anymaterial containing asbestos, and toxic substances; and other conditions as set forth in the termsof sale more particularly to be announced at the sale.c. Said premises may be decreed to be sold in one parcel according to law subject to thevarious items set forth in allegations of the complaint herein;Dd. The monies arising from the sale may be brought into court;E. Plaintiff may be paid the amount due on said note and mortgage as alleged herein,together with interest to the time of such payment, together with the sums expended by plaintiffprior to and during the pendency of this action, and for thirty days after any sale demanded hereinfor taxes, water rates, sewer rents, assessments, insurance premiums and other necessary andessential charges or expenses in connection therewith to protect the mortgage lien, plus any sumsexpended for the protection or preservation of the property covered by said mortgage and note,and the amount secured thereby, with interest thereon from the time of such payment and thecosts and expenses of this action including reasonable attorneys’ fees so far as the amount ofsuch monies properly applicable thereto will pay the same:FE The plaintiff be decreed to be the owner of any and all personal property used inconnection with the said mortgaged premises;14-41034 - jg Drafter: Jennifer GalezynskiG. The obligors may be adjudged to pay any deficiency which may remain after applying allof said monies so applicable thereto unless the obligors were discharged in bankruptcy;H. awarding the relief requested in the additional causes of action stated in the complaint, ifany;I. Plaintiff shall have such other and further relief or both, in the premises as shall be justand equitable.RAS BORISIKIN, LLCAttorneyf for PlaintiffBY:HONY CELLUCCL, ESQ.[{] LISA SOAVE, ESQ.{ ] SARA BORISKIN, ESQ.900 Merchants ConcourseWestbury, NY 11590(516) 280-767514-41034 - jg Drafter: Jennifer GalezynskiCUM > seteNOTE , +»October §, 2008 Brooktyn NYare} cay) (San)108-15 Seaview Avenue #40C, Brooklyn, NY 11236(Propeny Adiress)tL. BORROWER'S PROMISE TO PAYIn Tetum for a loan that [have received, I promise to pay U.S. 5 285,000.00 (this amount ig called “principal”},plus interest, to the order of the Lender. ‘The Lender is EquiFirst CorporationI veiil make all payments under this Note in the form of cash, check or momtey order.Tuaderstand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transferand whe is entitled to receive paymcals under this note is called the "Note Halder.”2. INTERESTinterest will be charged on unpaid principal until the full amount of principal has been paid. T will payinterest at a yearly rate of 6.950%. The infatest rate required by this Section 2 is the rate [ will pay both beforeand after any default described in Seotion 6(B} af this Kote,3.. PAYMENTS .{A) Time and Place of Payments‘will pey principal and interest by making a payment every month,{will make my monthly payrent oa te It day'of each month begining on December 2, 2008, 1 wil makethese payments every month unl] I have paid ai} of ihe principa? and interest and any other charges desewibedbelow that I may owe under this Note, Each reonthly payment will be applied as of i's scheduled due date andwill be applied to interest before principal. If on, Naveniber 2, 2035 , I still owe ameunis under thés Note, | willpay those amourts in fail on that date, whick is called the "marurity date.”Iwill make roy mondily payments atEquiFirst Carparation , $0 Forest Point Cirel2 , Chariatte, NC 28273or st a different place if requiced by the Note Holder,(B) Amount of Monthly PaymentsMy monthly payment will be in the smount af U.S. $ 1,886.56 .4, BORROWER'S RIGHT TO PREPAY :(A) Prepayment — have the right to make payments of principal at any time before they are due, A payment ofprincipal only is known as a'"prepayment”. When T maze a prepayment, [will tell the Note Holder in writing that | amGoing 39. 4] make a partial prepayment, there will be no changes in the due date or in the amount of my monlypayment unless the Note Holder ngrees in writing to those chranges. “(@) Prepayment PenaltyIe thie even, during the first-1 years efter the execution of this Note, i make a prepayment.ond-the prepayment.exceeds twenty percent (20%) of the original principe! amount of the Joan in any fwetve (12} mantit period, F will pay @prepayment charge in ant ampunt equal (a six (6) months’ advance interest on the amount prepaid which is in excess oftwenty percent (70%) of the original principal amount of the laan within che twelve (12} month period. The NoteHolder wili not assess a prepayment penalty afer the Ist anniversary of the date of execution of this Note.Mulitstste Fixed Rate Note-Single Family(EFSN} 2/00 (New York Version) .Loan Numbe Page tof 3 tnitiais >—_—«_—7!, ee5. LOAN CHARGESIfa law, shich applies wo this loan and which sets maximum loan charges; is Snally imerpreted so gt theinterest or other loa charges collected or to be callected in connection with this loan eacced the permitted limits,- then: G) eny such foun clisrge shall be ceducod by thu: uromunt neevsyury to reduce the charge 1 the permitted limit:and (ii) any sums already collected from ms which exceeded permitted limits willbe refended to me. The NoteHolder may chaose to make this refund by seducing the principal ] owe under this Note or by making a directpayment to ine. Ifa tofiind seduces principal, the reduction will be treated as a partial prepayment,6. BORROWER'S FAILURE TO PAY AS REQUIRED(A) Late Charge for Overdue PaysnentsIf the Note Holder las not received the ful amount of any monthly payment by the end of 15 calendar daysaftr the doe it isd wl pay Jte change tothe Note Hetdcs, The amount ofthe charg willbe, 2.00 cf myoverdue payment of principal and interest, I vill pay this late change prompily but only once on each late payment.(B) DofauttIT do not pay the full amount of each raoathly payment on the dale it is due, I will he in default,{C) Notiec of DofauitIf Tam in default, the Note holder mey send mes written notice telting me thet if do not pay the overdueamount by a cermaia date, the Note Holder may require me to pay immediately the full ameoat of principal whichfhas not been paid and all the iovecest diac f ove om that amount, ‘Thust dats smst he at feast 39 duys after the date onwhieh the notice is meiled to me cr delivered by otter means.(0) No Waiver By Nate HolderEven if, aia time when J em in default, the Nore Holder does not reauire me 10 pay immediately in full asdescribed above; the Nots Holder wail stil have.the.cight.to.do.so if 1am in default at a later time,(£) Payment of Note Holder's Costs and Expensesifthe Note Holder has required me in pay immediately in full as described above, the Nate Holder will have theright to be paid back by me Jar all of ifs costs and expenses in enforcing this Noic to the extest ot prohibized byapplicable law. Those exponses inchide, for example, reasonable auomeys' fees,7. GIVING OF NOTICES -‘Unless applicabis law requires a diffecent method, any notice that must be given to me uciler this Note will begiven by delivering it or by mailing it by frst class mail to me at the Property Address shove or at a differentaddvess if 1 give the Note Helder 2 notice of my different address.‘Any notice that mist be given ia the Note Holder under this Note will be given by delivering it or by mailing itby Gest clase mail to the Note Holder at the address stated in Section 3(A) above or a differen: address if i am givennotice of that different address. -8. OBLIGATIONS OF PERSONS UNDER THIS NOTEifmore than ane person signs this Note, euch person is fully and personally obiigated to keep all of thepromises made i this Note, including the promise to pay the full amount awed, Any person who is a guarantor,Surety or endorser of this Note is also obligated to do these things. Amy person whe takes over these obingelons,including the obligations of 3 guarantor, surety or endorser of this Note, is aiso obligated to kesp all of the premisesmade in this Note, The Note Holder may enforce its rights under this Note against cach person individually oragainst al! of us togetticr. This means that sny onc of us may be tequired ta pay all of the amounts owed under chisNote.B WAIVERS:Tand any ather person who has obligations under this Note waive the sights of presentment and notice ofdishonor, "Prosentinent” menns the right Io require the Note Holder to demand payment of amounts due. “Notice ofdishonor" means tic Fight to requice the Note Holder to give notice (o other gersony that emounts due have nut beespaid,Loon Number ia . Page 2 of 3 Initials SYEDClap 2 teers10. UNIFORM SECURED Ni _ 4‘This Note is a uniform instrument with limited variations in some jurisdictions, In a¢dition to the protectionsgiven to the Note Holser under this Nate, a Mengege, Deed of Trust of Security Deed {the “SecurityInsqrument”}, dated the same date a5 this Nate, protects the Note Holder fee pascible lasses whick might result ifI do not keep the promises which I make in this Note. Thai Security instr:ment describes how and under what. conditions I may be requited to make immediace payment ivi full of all amounts Tawe under this Note. Same ofthose conditions arc desecibed as follows:Lender may cequire immediate nayment in full of @l3 Sums Scoured by this Security Instrument if all of enypart of the Property, or ifeny zight in tne Property, is sold or Gansferred without Lender's prioe waiitenpermission. if Borrower is not a natural person and a benefiefal interest in Borznwer is sold or transferred .withont Lender’ prior written permission, Lender algo nay eequire inumediate payment in full, Flowever, thisOption shall not be exercised by Lender if such exercise is prohibited by Applicable Law.iflaender requires immediate payment in fll uoder this Section 18, Lender will give me a notice whichsintes this requirement. ‘The natice will give me at least 30 days to make the required payment, Tne 30-dayperiod will bene on the date the notice is piven to me in the manner required by Section 1S of this Securityinstrument. ITT do not make the requiced payment Curing that period, Lender may act to enforce its rightsunder this Scourity Instrument without giviig mie ary further notice or demand for payment.WITNESS THE HAND(S) AND SEAL(S) OF THR UNDERSIGNEDhoe (Sent)— (Seal)Dien Burke Bonover Borrowertt SHH)Barrow- (Seal) SealyBonwwer -Bomrawer(eal) wn (Seal)Berower BorrowerERSNNYLoan Nunise< ae Page 3 of 3 itiats Your,2 SeoeNote Endorsem*ntsBorrower(s): Dawn BurkeProperty Address: 108-15 Seaview Avenue #40C, Brooklyn, NY 11236PAY TO THE ORDER OFU.S, Bank National Association as Trustee *WITHOUT RECOURSEResidential Furiing CorporationByFaber, Vice President alWithout Recourse, Pay to the Order of: RESIDENTIAL FUNDING CORPORATIONEquiFirst Corporation 4” Jukte-Goomey, ip. $eAssistant Vice PresidentPage I of LEFSnendr (7/03)SCHEDULE A — LEGAL DESCRIPTIONTHE CONDOMINIUM UNIT (THE "UNIT (S)’) IN THE PREMISES KNOWN AS SEAVIEW ESTATESCONDOMINIUM IN THE BOROUGH OF BROOKLYN, COUNTY OF KINGS AND THE CITY AND STATEOF NEW YORK. SAID UNIT(S) BEING DESIGNATED AND DESCRIBED AS RESIDENTIAL UNIT(S) #40CIN THE DECLARATION (‘DECLARATIONS’) ESTABLISHING A PLAN FOR CONDOMINIUMOWNERSHIP OF SAID PREMISES UNDER ARTICLE 9-B OF THE REAL PROPERTY LAW OF THE STATEOF NEW YORK (THE CONDOMINIUM ACT) DATED JUNE 20, 1989 AND RECORDED IN THE KINGSCOUNTY OFFICE OF THE REGISTER OF THE CITY OF NEW YORK ( THE "CITY REGISTER’S OFFICE”)ON SEPTEMBER 6, 1990 IN REEL 2608 PAGE 110, AND ALSO DESIGNATED AS TAX LOT(S) 1388 INBLOCK 8273 OF THE BOROUGH OF BROOKLYN ON THE TAX MAP OF THE REAL PROPERTYASSESSMENT DEPARTMENT OF THE CITY OF NEW YORK AND ON THE FLOOR PLANS OF SAIDBUILDING, CERTIFIED BY PAUL MOK, P.E. ON APRIL 19, 1990 AND FILED IN THE REAL PROPERTYASSESSMENT DEPARTMENT OF THE CITY REGISTER’S OFFICE ON SEPTEMBER 6, 1990 ASCONDOMINIUM PLAN NO. 330 AND ALSO FILED IN THE CITY REGISTER'S OFFICE ON SEPTEMBER 6,1990 AS CONDOMINIUM MAP NO. 4895. THE PREMISES WITHIN WHICH THE UNIT(S) IS (ARE)LOCATED ARE MORE PARTICULARLY DESCRIBED IN SCHEDULE A ATTACHED HERETO ANDMADE A PART HEREOF, ALL CAPITALIZED TERMS HEREIN WHICH ARE NOT SEPARATELYDERINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THOSE TERMS IN THE DECLARATIONORIN THE BY-LAWS OF SEAVIEW ESTATES CONDOMINIUM (SAID BY-LAWS AS THE SAME MAYBE AMENDED FROM TIME ARE HEREINAFTER REFERRED TO AS THE "BY-LAWS”).TOGETHER WITH AN UNDIVIDED 0.638139 (AS TO RESIDENTIAL UNIT(S) 0 PERCENTAGE OFINTEREST IN THE COMMON ELEMENTS (AS SUCH TERM IS DEFINED IN THE DECLARATION).‘THE LAND UPON WHICH THE BULLDING CONTAINING THE UNITS IS SITUATE IS BOUNDED ANDDESCRIBED AS FOLLOWS:ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND SITUATE LYING AND BEING IN THEBOROUGH OF BROOKLYN, COUNTY OF KINGS, CITY AND STATE OF NEW YORK, BOUNDED ANDDESCRIBED AS FOLLOWS:BEGINNING AT. THE.CORNER FORMED. BY. THE INTERSECTION. OF.THE. NORTHERLY SIDE OFSEAVIEW AVENUE AND THE EASTERLY SIDE OF EAST 108TH STREET;RUNNING THENCE EASTERLY ALONG THE NORTHERLY SIDE AT SEAVIEW" AVENUE, 300 FEET TOTHE UNITED STATES PIERHEAD AND BULKHEAD LINE;THENCE NORTHERLY ALONG THE UNITED STATE PIERHEAD AND BULKHEAD LINE ON THEWESTERLY SIDE OF FRESH CREEK BASIN, 480 FEET TO THE SOUTHERLY LINE OF TAX LOT 26 INBLOCK 8273, AS SHOWN ON THE PRESENT TAX MAP OF THE CITY OF NEW YORK FO THEBOROUGH OF BROOKLYN;THENCE WESTERLY ALONG THE SOUTHERLY LINE OF SAID TAX LOT 26 TO THE POINT WHERETHE SAID TAX LOT 26 INTERSECTS FLATLANDS 9TH STREET;THENCE WESTERLY ALONG THE SOUTHERLY SIDE OF FLATLANDS 9TH STREET AS IT WINDSTURNS, TO THE POINT FORMED BY THE INTERSECTION OF THE EASTERLY SIDE OF EAST 108THSTREET AND THE SOUTHERLY SIDE OF FLATLANDS 9 STREET;THENCE SOUTHERLY ALONG THE EASTERLY SIDE OF EAST STREET, 470 FEET TO THE POINT ORPLACE OF BEGINNING,14-41034 - jg Drafter: Jennifer GalczynskiSCHEDULE B~ PARTY DEFENDANTSPARTY DEFENDANTTHE BOARD OFMANAGERS OF SEAVIEWESTATES CONDOMINIUMDAWN BURKESEAVIEW ESTATESCONDOMINIUM14-4 1034 - jgDEFENDANT TYPEFee Owner and lienor for possible unpaid common charges orhomeowner's association feesMortgagor/Obligor/Fee Ownerlienor for possible unpaid common charges or homeowner'sassociation feesDrafter: Jennifer GalezynskiSCHEDULE C — PARTY INTERESTSPARTY DEFENDANTTHE BOARD OFMANAGERS OF SEAVIEWESTATES CONDOMINIUMDAWN BURKESEAVIEW ESTATESCONDOMINIUM.14-41034 - jgREASON NAMED AS PARTY DEFENDANT.Record owner of property and/or obligor of note and mortgagebeing foreclosed and Named a party defendant by virtue ofpossible unpaid common charges of homeowner associationliens, all of which are subject to and subordinate to the mortgagebeing foreclosedRecord owner of property and/or obligor of note and mortgagebeing foreclosedNamed a party defendant by virtue of possible unpaid commoncharges-of homeowner association: liens; all-of which-are-subjectto and subordinate to the mortgage being foreclosed.Drafter: Jennifer GalezynskiIndex Number:SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KingsU.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FORRESIDENTIAL ASSET MORTGAGE PRODUCTS, INC,MORTGAGE ASSET-BACKED PASS-THROUGHCERTIFICATES, SERIES 2005-EFC7,Plaintiff-against-THE BOARD OF MANAGERS OF SEAVIEW ESTATESCONDOMINIUM; DAWN BURKE; SEAVIEW ESTATESCONDOMINIUM,"JOHN DOE #1" through "JOHN DOE #12," the last twelvenames being fictitious and unknown to plaintiff, the personsor parties intended being the tenants, occupants, persons orcorporations, if any, having or claiming an interest in or lienupon the premises, described in the complaint,DefendantsSUMMONS AND COMPLAINTRAS BORISKIN, LLCAttorneys for Plaintiff900 Merchants ConcourseWestbury, New York 11590Telephone (516) 280-7675] LISA SOAVE, ESQ.] SARA BORISKIN, ESQ.14-4 1034 - jg Drafter: Jennifer Galezynski
Related Contentin Kings County
Case
Nationstar Mortgage Llc v. Moshe Horowitz, New York City Environmental Control Board, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, John Doe And Jane Doe
Aug 16, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |522150/2024
Case
Jenelle Petty On Behalf Of The Estate Of Bernice Welch v. Winifred Younge
Aug 13, 2024 |Real Property - Other (Ejectment) |Real Property - Other (Ejectment) |522382/2024
Case
US BANK TRUST NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE FOR VRMTG ASSET TRUST v. HONOVICH, ILIYA et al
Dec 16, 2022 |Edwards, Hon. Cenceria P. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |536745/2022
Case
WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT INDIVIDUALLY BUT AS TRUSTEE FOR PRETIUM MORTGAGE ACQUISITION TRUST, v. UNGER, TOBY et al
Jun 21, 2024 |Edwards, Hon. Cenceria P. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |517182/2024
Case
Loandepot.Com, Llc v. Heng Ming Li, New York City Environmental Control Board, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, Board Of Managers Of Ocean Place Condominiums, John Doe #1 Through John Doe #10, The Last Ten Names Being Fictitious And Unknown To The Plaintiff, The Person 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 Complaint
Apr 09, 2024 |Cenceria Edwards |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |510061/2024
Case
NYCTL 1998-2 TRUST v. NOAM PROPERTIES INC
Feb 23, 2018 |Partnow, Hon. Mark I. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |1336/2017
Case
Wilmington Savings Fund Society, Fsb, As Trustee Of Upland Mortgage Loan Trust B v. Unknown Heirs Of The Estate Of Migdalia Martinez Sanabria, United States Of America, New York State Department Of Taxation And Finance
Aug 22, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |522702/2024
Case
Wilmington Savings Fund Society, Fsb, Not In Its Individual Capacity But Solely As Trustee For Isv Trust 1a v. 1041 Herkimer St. Inc., Ismaeel Khan, Muhituddin Malik, New York City Department Of Finance, New York State Department Of Taxation And Finance, New York City Environmental Control Board, New York City Transit Adjudication Bureau, New York City Parking Violations Bureau, John Doe And Jane Doe
Aug 20, 2024 |Real Property - Mortgage Foreclosure - Commercial |Real Property - Mortgage Foreclosure - Commercial |522480/2024
Case
U.S. Bank Trust National Association, Not In Its Individual Capacity But Solely As Owner Trustee Of Gs Mortgage-Backed Securities Trust 2022-Rpl4 v. Eangeline Hunter, Yoganand Ramnarain, John Doe #1 Through John Doe #12
Aug 23, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |522816/2024
Ruling
SECOND CHANCE ORGANIZATION, LLC VS KELLIE MADISON
Aug 23, 2024 |24SMCV02150
Case Number: 24SMCV02150 Hearing Date: August 23, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 SECOND CHANCE ORGANIZATION, LLC, Plaintiff, v. KELLIE HALIHAN, et al., Defendants. Case No.: 24SMCV02150 Hearing Date: August 23, 2024 [TENTATIVE] ORDER RE: DEFENDANTS DEMURRER TO THE COMPLAINT FOR UNLAWFUL DETAINER BACKGROUND This is an unlawful detainer action. The real property at issue is located at 1123 N. Vista Street, West Hollywood, CA 90046 (the Premises). Non-party Leonila Lizarzabura leased the Premises to Defendant Kellie Halihan pursuant to a written lease agreement (Lease). Plaintiff Second Chance Organization, LLC bought the Premises through a nonjudicial foreclosure sale, which title was perfected by recordation of a Corrective Trustees Deed Upon Sale on April 23, 2024, and it is the successor lessor on the Lease. Defendant failed to pay rent. Plaintiff served a 3 day notice to pay rent or quit. Defendant failed to comply with the notice. This hearing is on Defendants demurrer to the Complaint. Defendant demurs on the grounds that (1) the three-day notice alleged in the Complaint fails to include the payment information required by Code Civ. Proc. §1161(2); (2) the three-day notice fails to include the proper notice requirements; (3) the Complaint fails to state Plaintiffs capacity and standing to sue; (4) the three-day notice overstates the amount of rent due as it requests money that was already paid to the previous landlord; (5) the Complaint was not properly served pursuant to Code Civ. Proc. §418.10; (7) the three-day notice did not list Defendants proper name; the three-day notice had the name Kellie Madison that is not Defendants legal name. MEET AND CONFER In¿unlawful detainer proceedings, there is¿no requirement that a demurring defendant¿meet and confer with the party who filed the pleading being demurred to. (Code Civ. Proc., §430.41 (d),¿(d)(2)). Accordingly, there is no consequence to Defendant not having sought to meet and confer with Plaintiff. LEGAL STANDARD [A] demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) DISCUSSION Defendant raises various grounds for the demurrer, for which she fails to provide any explanation. For example, Defendant argues the three day notice fails to include the payment information required by Code Civ. Proc. 1161(2), but she fails to identify what payment information is missing. She argues that the three day notice fails to include the proper notice requirements, but she does not specify what those notice requirements are or why they were not satisfied. She argues that the claim for unlawful detainer fails to state facts to constitute a cause of action or is vague and uncertain, but she offers no reasoning as to why that is. She argues that the complaint must state the plaintiffs capacity and standing to sue, yet she does not elaborate on why the Complaint fails to allege standing. The only ground that is stated with any specificity is that the three-day notice had the name Kellie Madison which is not Defendants legal name. But as Plaintiff points out, that fact is of no moment because the notice was also served on All Other Occupants in Possession of the Premises Described, which includes Defendant. In any event, the Court concludes that Plaintiff properly pled its Complaint for unlawful detainer. To establish a cause of action for unlawful detainer after foreclosure, a plaintiff must only allege that: (1) it purchased the Subject Property at a trustees sale and duly perfected its title; (2) it served a three-day written notice to vacate the Subject Property to the occupants; and (3) the foreclosed trustor or other occupant(s) holds over and continues in possession of the subject property after expiration of that notice. (Code Civ. Proc., §1161a(b)(3); Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 Cal.5th 474, 479.) In the case of a purchaser at foreclosure, title is duly perfected by recording a Trustees Deed Upon Sale. (Dr. Leevil, LLC, 6 Cal.5th at 479.) Here, the Complaint sufficiently alleges each of the three required elements as follows: First, Plaintiff obtained title to the subject property and duly perfected its title by recording a Corrective Trustees Deed Upon Sale on April 23, 2024. (Compl. ¶16). Second, Plaintiff served a notice to vacate to the occupants (i.e., Defendant) that contained all the requisite information. (Id. ¶¶ 17-19, Exs. 3-4.) It demanded in writing that Defendant pay $8,224.56 to Plaintiff at 18301 Von Karman Avenue, Suite 330, Irvine CA 92612, between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday, and provided its counsels telephone number. Third, Defendant has held over and wrongfully continues in possession of the Property after expiration of the notice to vacate. (Id. ¶22.) Given these allegations, the Complaint sufficiently alleges a cause of action for unlawful detainer. After Plaintiff filed its unlawful detainer complaint, it thereafter obtained authorization from this Court to serve Defendant by posting and mailing on grounds that despite attempts on five consecutive days at different times of day and night, Plaintiff was unable to effect personal service on Defendant at the Subject Property. (See Courts May 31, 2024 Order.) As such, Plaintiffs service of the summons and complaint was proper. Moreover, by filing her demurrer, Plaintiff has waived any right to claim that the Court lacks personal jurisdiction. Because all the necessary facts have been alleged in the Complaint and because the Court may not consider the extraneous facts outside the Complaint that are improperly raised by Defendant in her demurrer, the Court overrules the demurrer. CONCLUSION For the foregoing reasons, the Court OVERRULES Defendants demurrer to the Complaint. IT IS SO ORDERED. DATED: August 23, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court
Ruling
Nathanial Gonzalez vs. Najafi Enterprises, LLC
Aug 20, 2024 |23CECG03529
Re: Gonzalez v. Najafi Enterprises, LLC Superior Court Case No. 23CECG03529Hearing Date: August 20, 2024 (Dept. 503)Motion: Default Prove-UpTentative Ruling: To continue to Thursday, September 12, 2023, at 3:30 p.m. in Department 503. Anynew filings for this continued hearing must be done on or before September 5, 2024.Explanation: No Request for Court Judgment Plaintiff has not filed, and served on defendants, the Request for Court Judgment(Judicial Council form CIV-100), which is mandatory. (Simke, Chodos, Silberfeld & Anteau,Inc. v Athans (2011) 195 Cal.App.4th 1275, 1287; Candelaria v. Avitia (1990) 219Cal.App.3d 1436, 1444.) While plaintiffs used this form when requesting default, this dual-purpose form must be used again when requesting judgment. The “Application for Entryof Default Judgment” plaintiff filed, while containing useful information, does notsubstitute for the use of the CIV-100 form. No Lis Pendens Code of Civil Procedure section 761.010, subdivision (b) provides that immediatelyupon commencement of a quiet title action, plaintiff “shall file” a notice of pendency ofaction (lis pendens) in the office of the recorder. The complaint does not state thatplaintiff has recorded a lis pendens, nor is there a lis pendens filed in this action. The failureto record a lis pendens does not deprive the court of jurisdiction to enter a quiet titlejudgment. (Rutledge v. Rutledge (1953) 119 Cal.App.2d 114, 120 (failure to record lispendens does not deprive court of jurisdiction [there, a partition action]).) However, thisfailure can result in subsequent bona fide purchasers and encumbrancers of record notbeing bound by the judgment quieting title. (See Code Civ. Proc., §§ 764.030, 764.045,subd. (a);1 If plaintiff desires the protection a lis pendens affords and needs more time thanthe above continuance allows, he may request a longer continuance.1Also,service by publication is ineffective unless a lis pendens is recorded. (Code Civ. Proc., §763.020, subd. (b).) However, since plaintiff has dismissed the “unknown” defendants and thus didnot publish, this is not an issue here. No Costs on Default Plaintiff has filed a memorandum of costs and asked for costs in the proposedjudgment. However, in a quiet title action a plaintiff cannot recover costs against adefendant who disclaims an interest in the property or allows a default judgment to betaken against him. (Code Civ. Proc. § 761.030, subd. (b); Bulwer Consol. Mining Co. v.Standard Consol. Mining Co. (1890) 83 Cal. 589, 597.) 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: jyh on 8/19/24 . (Judge’s initials) (Date)
Ruling
Phillips vs. Murphy, et al.
Aug 21, 2024 |22CV-0201197
PHILLIPS VS. MURPHY, ET AL.Case Number: 22CV-0201197This matter is on calendar for review regarding status. The Court notes that since today’s hearingdate was set, the Court granted Plaintiff’s Motion for Court Order Appointing Real EstateAppraiser, and a future hearing date for Confirmation of Filing the Appraisal was set. Therefore,today’s review hearing is unnecessary, and is VACATED. The future hearing date forConfirmation of Filing the Appraisal on Monday, September 9, 2024, at 9:00 a.m. inDepartment 64 is confirmed. No appearance is necessary on today’s calendar.
Ruling
DAVID E. BELLOSO, JR., ET AL. VS PBM 2, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Aug 23, 2024 |23BBCV01201
Case Number: 23BBCV01201 Hearing Date: August 23, 2024 Dept: NCB CASE NAME: David E. Belloso, Jr., et al. v. PBM 2, LLC, et al. CASE NUMBER: 23BBCV01201 HEARING DATE: 8/23/2024 ______________________________________________________________________________ SUBJECT: Minors Compromise MOVING PARTY: Plaintiff RESP. PARTY: No opposition TENTATIVE RULING: GRANTED The Court has reviewed the petitions and finds the settlements fair and reasonable. The parties have an agreement for attorneys fees, which is attached to the petition, the Declaration of Counsel is sufficient to substantiate the work done in connection with this matter, and the petition is properly verified by Petitioner. The Court is therefore inclined to grant the petitions. Per CRC Rule 7.952, Petitioner and the Claimants are required to attend the hearing on the petition. The Court will therefore require attendance at the hearing in order to grant the petition. As an alternative to personal appearance by the Guardian Ad Litem, the Court will accept a declaration signed by the parents stating that the minors have fully recovered from any injury they suffered in the incident.
Ruling
LLOYD VS. LLOYD, ET AL
Aug 22, 2024 |CVCV20-0195922
LLOYD VS. LLOYD, ET ALCase Number: CVCV20-0195922This matter is on calendar for review regarding status of case and Plaintiff’s counsel. As discussed at multipleprevious hearings, Plaintiff may not proceed in pro per as she is representing the trust. An appearance isnecessary on today’s calendar.
Ruling
MAHRT vs Cornerstone et al
Aug 21, 2024 |SCV-270601
SCV-270601, MAHRT v. Cornerstone et al. This matter comes on calendar for defendant CHASE BANK’S demurrer to the two COAs allegedagainst defendant in plaintiff’s Second Amended Complaint - the 10th COA (negligence) and the 11th COA(conversion). The grounds for the demurrer are that the two claims fail to state causes of action (CCP section430.10(e)) and are uncertain (CCP section 430.10(f)). Plaintiffs oppose the demurrer and defendant filed a Reply. For the reasons set forth below, the demurrer is SUSTAINED as to both COAs WITHOUT leave toamend.Facts and Procedure Plaintiffs Garry and Gillian MAHRT allege that they were victims of a wire fraud scheme inconnection with their attempt to purchase real property. In August 2021, plaintiffs had their bank (defendantExchange Bank) wire transfer $2.6 million to an account at defendant Chase Bank (hereinafter referred to as“defendant”), which was meant to complete the property purchase. That account was in the name ofdefendant CASL INTERNATIONAL, LLC. According to plaintiffs, the principals of the CASLINTERNATIONAL LLC (defendants Yang Liu and/or Xinyue Chang) hacked into computers in Californiaand misappropriated information pertaining to the plaintiff’s anticipated real estate transaction and thenfraudulently induce plaintiffs to wire them the funds that were intended for the property purchase. Uponreceiving the funds sent by plaintiffs, defendant Chase Bank credited the account identified in the wireinstructions sent by Exchange Bank. Plaintiffs were not Chase Bank customers; nor did they have an account with Chase Bank. Plaintiffs filed their original complaint on April 14, 2022, alleging a single COA against defendant forcommon law negligence. On April 13, 2023, plaintiffs filed an “amendment” to the complaint which addedlanguage to the negligence COA and added four additional COAs against defendant. On May 16, 2023,defendant demurred to the complaint, arguing (among other things) that plaintiffs’ claims were preempted bythe Commercial Code and that defendant had no duty to plaintiff because they were not defendant’scustomers. On September 21, 2023, the Court sustained the demurrer as to all COAs against defendant, withleave to amend. On October 11, 2023, plaintiffs filed a First Amended Complaint (FAC), which added language to thenegligence COA, added a COA for conversion against defendant, and modified language regarding existingCOAs alleged against defendant. On November 11, 2023, defendant filed a demurrer as to all COAs against defendant in the FAC.Within that demurrer, defendant argued that the negligence COA failed to state sufficient facts because theclaim is “displaced” by the California Commercial Code; and that the claim would still fail if not “displaced”because defendant owes no duty of care to plaintiffs. Defendant also argued that the conversion claim failedto state sufficient facts because that claim is also “displaced” by the Commercial Code; and that the claimwould still fail if not “displaced” because defendant fails to allege any “wrongful act” on the part ofdefendant. On April 5, 2024, the Court sustained the demurrer in its entirety, but granted plaintiffs leave toamend the negligence and conversion COAs. Defendant now demurs to the negligence and conversion COAs in the SAC. Plaintiffs filed an Opposition Brief, and defendant filed a Reply brief.Standard on Demurrer A demurrer tests whether the complaint sufficiently states a valid cause of action. Hahn v. Merda(2007) 147 Cal.App.4th 740, 747. Complaints are read as a whole, in context, and are liberally construed.Blank v. Kirwan (1985) 39 Cal.3d 311, 318. In reviewing the sufficiency of a complaint, courts accept astrue all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law, or theconstruction of instruments pleaded, or fats impossible in law. Rekestraw v. California Physicians’ Service(2000) 81 Cal.App.4th 39, 43. Matters which may be judicially noticed are also considered. Serrano v.Priest (1971) 5 Cal.3d 584, 591.The 10th COA for Negligence Fails to State Facts Constituting a COA The elements of a negligence cause of action are: (1) duty, (2) breach of duty; (3) proximate cause;and (4) damages. Predia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687. Defendant argues that the common law negligence COA fails to state a claim for two reasons: (1) theclaim is “displaced” by Article 4, Division 11 of the California Commercial Code, which exclusively governsclaims arising from “fund transfers,” including wire transfers such as the wire transfer that occurred in thiscase; and (2) even if the common law negligence claim is not “displaced,” defendant did not owe any duty ofcare to plaintiffs. Plaintiffs oppose the demurrer, arguing that the UCC does not bar plaintiff’s negligence claim.Relying on QDOS v. Signature Fin., LLC (2017) 17 Cal.App.5th 990 and Sun ‘N Sand, Inc. v. UnitedCalifornia Bank (1978) 21 Cal.3d 671, plaintiffs further argue that defendant owed a duty to plaintiffs withrespect to the wire transfer and with respect to activities occurring after the completion of the wire transfer.Plaintiffs further argue that defendant committed negligence per se by violating statutory standards ofconduct. Pursuant to Zengen, Inc. v. Comerica Bank, Inc. (2007) 41 Cal.4th 239, this Court finds that plaintiffs’negligence claim is “displaced” by the California Commercial Code. Under Zengen, common law causes ofaction based on allegedly unauthorized “funds transfers” are preempted in two specific areas: (10 where thecommon law claims would create rights, duties, or liabilities inconsistent with Division 11; and (2) where thecirc*mstances giving rise to the common law claims are specifically covered by the provisions of division11. Zengen at 253. The wire transfer at issue in this case are “fund transfers” to which Division 11 applies. Here,defendant complied with its obligations under Division 11 by accepting the fund transfer at issue perinstructions provided from plaintiffs’ bank, who initiated the transfers and sent the wires. Under UCCsection 4A-212, a receiving bank cannot be held liable under common law theories for merely accepting awire transfer. Chino Commercial Bank, N.A. v. Peters (2010) 1163, 1174. Pursuant to CaliforniaCommercial Code section 11404, if a beneficiary’s bank accepts a payment order, the bank is obliged to paythe amount of the order to the beneficiary of the order. Comment 3 to section 11404 provides that after awire transfer has been processed, “the beneficiary’s bank may safely ignore any instruction by the originatorto withhold payment to the beneficiary.” This Court finds that plaintiffs’ common law negligence claim would be inconsistent with Division11 of the California Commercial Code and therefore the negligence claim is displaced by the CommercialCode. This Court further finds that plaintiffs’ attempt to redirect the negligence cause of action as a post-transfer claim of negligence is not persuasive, as this Court finds that the alleged post-transfer conduct is stillcovered and displaced by Division 11. The Court further notes that, with respect to the Commercial Code“displacement” issue, plaintiffs have not alleged any new facts that are materially different from the factscontained in the FAC which were found to be deficient. Additionally, even if plaintiffs’ common law negligence claim is not “displaced” by the CommercialCode, plaintiffs’ allegations fail to demonstrate that defendant had any “duty” of care towards plaintiffs. Abank’s duty of care – to act with reasonable care in its transactions with its customers, arises out of the bank’scontract with its customer. Rodriguez v. Bank of the West (2008) 162 Cal.App.4th 454, 460. Although bankshave a duty to act with reasonable care toward their depositors, including to ensure a person making awithdrawal has authority to do so, Financial Code section 1451 addresses the longstanding principle firstcodified in the 1925 Bank Act that banks have no duty to monitor withdrawals made by authorized parties inan authorized manner. The Law Firm of Fox and Fox v. Chase Bank, N.A. (2023) 95 Cal.App.5th 182, 201.The California Supreme Court in Sun ‘n Sand Inc. v. United California Bank (1978) 21 Cal.3d 671, 695carved out a narrow duty of inquiry for banks to make reasonable inquires when “checks, not insignificant inamount, are drawn payable to the order of a bank and are presented to the payee bank by a third partyseeking to negotiate the checks for his own benefit. Id. At 201-202. Aside from the narrow Sun ‘n Sandexception, courts have refrained from imposing on banks a duty to third parties to monitor bank accounttransactions for suspicious activity. Id. At 202. Here, plaintiffs fail to allege facts bringing them within the narrow exception set forth in the Sun ‘nSand decision; nor do plaintiffs allege facts that are sufficiently similar to the narrow exception set forth inSun ‘n Sand. To the extent plaintiffs claim that defendant’s internal policies and procedures and/or various statutes,regulations, banking practices establish that defendant owes plaintiff a duty of care, the Court is notpersuaded that any of these provisions created any duty of care towards plaintiffs with respect to the wiretransfer in this case. Nor is the Court persuaded that any of these provisions create a private right of actionfor plaintiffs. Nor have plaintiffs alleged facts demonstrating that defendants violated any of theseprovisions (including the alleged Penal Code section 496 violation now alleged in plaintiffs’ opposition briefbut not actually alleged in the SAC). Nor have plaintiffs alleged facts demonstrating that a violation of anyof the provisions proximately caused plaintiffs’ injury. Finally, the Court notes that, with respect to the negligence COA, plaintiffs’ allegations in SAC arenot materially different from the allegations in the FAC. The only real difference in the two complaintsappears to be new allegations that defendant owed a duty of care to plaintiffs as a result of defendant’sinternal policies and procedures regarding detecting fraudulent wire transfers. These new allegations do notestablish that defendant owed plaintiffs any duty of care and do not establish any private right of action for aviolation. The demurrer to the negligence COA is SUSTAINED WITHOUT LEAVE TO AMEND.The 11th COA for Conversion Fails to State Facts Constituting a COA The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of theproperty; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.Lee v. Hanley (2015) 61 Cal.4th 1225, 1240. Defendant argues that the conversion claim is also “displaced” by the Commercial Code, and that(even if not displaced) plaintiffs fail to allege facts demonstrating any “wrongful act” on the part ofdefendant. Plaintiffs argue the conversion claim is not “displaced” by the Commercial Code, and that defendant“wrongfully disposed” of plaintiffs’ property by distributing it to third parties after defendant knew themoney belonged to plaintiffs, thereby denying plaintiffs their right to possession. This Court agrees with defendant that the SAC does not contain any new material allegations of factregarding the conversion cause of action. The only real difference between the allegations in the SAC andthe FAC (for which this Court previously sustained defendant’s demurrer with leave to amend) is thatplaintiffs now list out specific transactions (relating to the wire transfer) that plaintiffs claim constituteconversion. The Court finds that the conversion claim (which is based upon the wire transfer) is also “displaced”under the Commercial Code. Additionally, even if the claim is not “displaced,” plaintiffs’ allegations (which are not materiallydifferent from the FAC) fail to allege that any funds/money were obtained by defendant through a wrongfulact. Pursuant to Commercial Code 11404(a), once the wire transfer was received by defendant, it wasrequired to pay the amount of the order to the beneficiary of the order. The demurrer to the conversion COA is SUSTAINED WITHOUT LEAVE TO AMEND. Defendant’s counsel shall submit a written order consistent with this tentative ruling and incompliance with Rule 3.1312.2-3. SCV-267688, Oak Grove Construction Co., Inc. v. Kelly This is a concurrent ruling on the Claim of Exemption filed by Law Offices of Thomas P. Kelly III,P.C. and the Order of Examination. All objections raised by both parties are OVERRULED. 1. Claim of Exemption The claim of exemption filed by Law Offices of Thomas P. Kelly III, P.C. is DENIED. JudgmentCreditor, John A. Kelly’s request for attorney’s fees is DENIED without prejudice. Such request is notappropriately raised in opposition to a claim of exemption filed by a third party and must rather be raised bynoticed motion. Counsel for Judgment Creditor shall submit a written order consistent with this tentativeruling and in compliance with Rule 3.1312. On March 11, 2024, this Court issued an order granting Judgment Creditor, John A. Kelly, $29,170 inattorney’s fees and costs after partially prevailing on an Anti-SLAPP motion. The Court signed the Abstractof Judgment on March 19, 2024. On April 4, 2024, Judgment Creditor requested an Order of Examination ofJudgment Debtor, Thomas P. Kelly, III. The Order of Examination was originally set for June 24, 2024, andultimately continued to be heard in conjunction with the hearing on this claim of exemption. On April 12,2024, the Court issued a Writ of Execution for satisfaction of the $29,170 judgment. On April 13, 2024,Judgment Creditor submitted the writ to the Sheriff’s Office along with a notice of levy on all accounts andother property held by Judgment Debtor at Exchange Bank, including those in the name of Law Office ofThomas P. Kelly III. On April 15, 2024, Judgment Debtor filed Articles of Incorporation to transform his law practice,which had the former name of Law Offices of Thomas P. Kelly III, to a corporation under the new name ofLaw Offices of Thomas P. Kelly III, P.C (also referred to herein as “the corporation”). The corporation hasthe same physical address, mailing address, and phone number as Judgment Debtor’s law practice.According to the April 29, 2024 Statement of Information, Thomas P. Kelly III is the CEO, CFO, Secretary,and only Director of the corporation. On May 31, 2024, the Sheriff’s Office issued a Notice of Levy of any and all accounts, includingSafe Deposit Boxes, in the name of Judgment Debtor, including any personal property held as an attorney orin the name of his law firm, Law Offices of Thomas P. Kelly, III. The corporation (not Judgment Debtor)subsequently filed this claim of exemption claiming that the property is exempt because it is not the propertyof the Judgment Debtor and the corporation is not a party to the action or the judgment. In support of the claim of exemption, Law Offices of Thomas P. Kelly III, P.C. submitted courtfilings to show that it is not a party to the action or the judgment. It is true that the corporation was not aparty to the action or the judgment because it did not exist until after the judgment was entered. Thecorporation did not submit any evidence proving ownership of the property being levied.Analysis: Judgment Creditor first argues in opposition to the claim of exemption that Law Offices of Thomas P.Kelly III, P.C. may not assert this claim of exemption because it is brought under CCP § 703.520 and CCP §703.020(a) provides that “The exemptions provided by this chapter apply only to property of a naturalperson.” The corporation argues in reply that the claim of exemption was not necessarily brought under CCP§ 703.520. Rather, this code section was merely imposed as a footnote on the judicial counsel form chosen tofile this claim. Furthermore, the corporation argues that the following language in CCP § 703.520(b)(2)establishes that a claim of exemption may be brought by a party who is not the judgment debtor, “The nameand last known address of the judgment debtor if the claimant is not the judgment debtor.” Judgment Creditor is correct that Law Offices of Thomas P. Kelly III, P.C. may not claim anexemption under CCP § 703.010, et seq. CCP § 703.020 clearly outlines the persons who may make claimsof exemptions under the chapter as being only: (1) In all cases, by the judgment debtor or a person acting on behalf of the judgment debtor. (2) In the case of community property, by the spouse of the judgment debtor, whether or not the spouse is also a judgment debtor under the judgment. (3) In the case of community property, by the domestic partner of the judgment debtor, as defined in Section 297 of the Family Code, whether or not the domestic partner is also a judgment debtor under the judgment.Furthermore, while the corporation argues that it did not necessarily bring the claim of exemption under CCP§ 703.520, it has provided no alternative authority that would allow a third party corporation to assert anexemption. Rather, a third party corporation claiming ownership of the property would need to file a claim underCCP § 720.110, et seq. As provided in § 720.130, “The third-party claim shall be executed under oath andshall contain all of the following: (1) The name of the third person and an address in this state where service by mail may be made on the third person. (2) A description of the property in which an interest is claimed. (3) A description of the interest claimed, including a statement of the facts upon which the claim is based. (4) An estimate of the market value of the interest claimed.The corporation did not make such a claim. The form filed by the corporation does not include the requiredinformation. Even if the Court did consider the merits of the application, as the Court has noted above, thecorporation has not submitted any evidence of ownership of the property. “At a hearing on a third-partyclaim, the third person has the burden of proof.” (CCP § 720.360.) “The third party claimant is required tointroduce evidence that it owns the attached property…Once the third party accomplishes this, the burdenshifts to the creditor to establish that the transfers represented by the deeds were fraudulent.” (Whitehouse v.Six Corp. (1995) 40 Cal. App. 4th 527, 535.) Judgment Creditor also argues in opposition that any transfer of ownership of the property to thecorporation would have been fraudulent, and thus reversible under the Uniform Voidable Transfer Act(UTVA). At this juncture, the Court is unable to assess whether the transfer of ownership was fraudulentbecause no transfer of ownership has been shown. The Court will direct the parties to the case of Potter v.All. United Ins. Co. (2019) 37 Cal.App.5th 894, 903-904, for a detailed description of the standards forassessing whether a fraudulent transfer occurred. While the Court cannot make a final determinationregarding fraudulent intent, the Court will note that the timing of the creation of the law corporation beingjust days after the Court issued the Writ of Attachment is suspect. This is especially so given that The LawOffices of Thomas P. Kelly III, P.C. did not respond to these arguments in his reply. 2. Order of Examination The Court continued the hearing on this order of examination for it to be heard concurrently with theclaim of exemption and allowed the parties to submit briefing regarding the issues raised at the last hearing.The issues raised at the last hearing included 1) whether the Court should order Judgment Debtor to turn overall shares in his Law Corporation; 2) whether Judgment Debtor should be required to disclose the identitiesof all his legal clients; and 3) whether the Court should order Judgment Debtor to pay the judgment inmonthly installments. Judgment Creditor submitted further briefing. Judgment Debtor did not. After considering the briefing by Judgment Creditor and considering the concurrent denial ofJudgment Debtor’s Law Corporation’s claim of exemption, the Court finds that Judgment Creditor has notshown sufficient necessity for requiring Judgment Debtor to identify his clients or to turn over his shares inthe corporation. Since the claim of exemption is denied and since the law corporation has not shownownership of the property in question, that property may be used to satisfy the judgment. The lawcorporation stock is apparently worth only $100. Furthermore, Judgment Creditor has not shown a sufficientneed for the identities of Judgment Debtor’s clients. The Court was not persuaded by Judgment Creditor’scited authorities as this case is not a class action and Judgment Creditor is a third party to Judgment Debtor’sclients. However, the Court does find garnishment of Judgment Debtor’s wages to be appropriate. JudgmentDebtor has not submitted briefing in response to Judgment Creditor’s representations regarding his incomeor the appropriate amount for monthly garnishments. Judgment Creditor argues that Judgment Debtortestified that his income has recently been found to be approximately $100,000 per year by the Family LawCourt. The Court finds this testimony sufficient to set the monthly garnishment at $1,650, which is 20% ofhis monthly income ($8,333.33). (CCP § 706.050.) Counsel for judgment creditor shall submit a writtenorder consistent with this tentative ruling and in compliance with Rule 3.1312.4. 23CV01052, Looney v. Maretti Plaintiff’s unopposed motion to compel answers to post judgment discovery is GRANTED.Plaintiff’s request for monetary sanctions is granted in the amount of $60.00. Defendant is ordered to payPlaintiff $60.00 within 30 days of service of the Court’s order on this motion. Defendant is also ordered torespond to Plaintiff’s discovery requests within 30 days of service of the order on this motion. BecauseDefendant failed to timely respond to Plaintiff’s discovery requests, objections to such discovery are waived.(CCP § 2031.300.) Plaintiff shall submit a written order to the Court consistent with this tentative ruling.Due to the lack of opposition, compliance with Rule 3.1312 is excused.
Ruling
BVK COURTYARD COMMONS, LLC, A DELAWARE LIMITED LIABILITY COMPANY VS CALABASAS MEDICAL CENTER, INC., A CALIFORNIA CORPORATION
Aug 21, 2024 |24VECV00580
Case Number: 24VECV00580 Hearing Date: August 21, 2024 Dept: W BVK COURTYARD COMMONS, LLC vs CALABASAS MEDICAL CENTER, INC. plaintiffs motion to fix attorney fees and memorandum of costs Date of Hearing: August 21, 2024 Trial Date: None set. Department: W Case No.: 24VECV00580 Moving Party: Plaintiff BVK Courtyard Commons, LLC Responding Party: No opposition BACKGROUND This is an unlawful detainer action. On April 16, 2020, Plaintiff conveyed to JANA, LLC a leasehold interest in the Premises for a term of approximately ten years. On March 10, 2022, JANA assigned the Lease to Tenant. Plaintiff alleges Tenant breached the Lease by failing to pay Rent and on November 21, 2023, Plaintiff notified Tenant in writing that it had defaulted in its payment of Rent. Despite the written notice, Plaintiff alleges Tenant failed to bring its Rent current and on January 24, 2024, Plaintiff served Tenant with a statutory Five Day Notice to Pay Rent or Quit. On May 1, 2024, this court granted Plaintiffs Motion for Summary Judgment and entered judgment in Plaintiffs favor on May 16, 2024. Plaintiff now seeks attorney fee and costs. [Tentative] Ruling Plaintiffs Motion to Fix Attorney Fees is GRANTED. discussion Plaintiff BVK Courtyard Commons LLC moves this court to fix attorney fees in the amount of $28,645.50 pursuant to California Civil Code section 1717. This motion is made on the grounds that Plaintiff is the prevailing party under the contract that provides for the recovery of attorney fees and costs. In any action on a contract that provides for the prevailing partys recovery of attorneys fees, the prevailing party shall be entitled to [an award of] reasonable attorneys fees.¿ (Civ. Code, § 1717; see also Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1071 (Drybread) (in action arising out of lease agreement, prevailing party entitled to attorneys fees, costs, and expenses incurred).) Here, Plaintiff presents a copy of the lease agreement underlying Plaintiffs complaint. (Byrne Decl., Exh. A.) The lease includes an attorney fees provision which states, In the event it becomes for either party hereto to file suit to enforce this Lease or any provision contained herein, the prevailing party in such suit shall be entitled to recover, in addition to all other remedies or damages, as provided herein, reasonable attorneys fees and expenses incurred in connection with such suit. (Byrne Decl., Exh. A, ¶43.) On May 1, 2024, the court granted Plaintiffs motion for summary judgment finding Defendant was in possession of the premises after defaulting on payment of the lease. (Bryne Decl., Exh. B.) Accordingly, Plaintiff is entitled to recover their attorney fees and costs against Defendant as the prevailing party. Plaintiff seeks to recover $28,645.50 in attorney fees, representing billing at an hourly rate from $150 to $295. (Byrne Decl. ¶6, Exh. C.) The trial court will award reasonable attorneys fees according to the lodestar.¿ (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096; see also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The court finds the hourly rate reasonable for a firm of their experience and expertise. The court has now reviewed all of the billing records and finds that the work performed was reasonably necessary to prosecution of this case and that the hours expended on each task were also reasonable. Accordingly, the motion for attorney fees is GRANTED. Memorandum of Costs Plaintiff seeks $2,480.00 in costs including $935.00 for filing and motion fees, $190.00 in service of process fees, $906.00 in in court reporter fees, and $449.00 in fees for electronic filing or service fees. The Memorandum of Costs is GRANTED.
Ruling
PALM COURT PROPERTIES, INC., A CALIFORNIA CORPORATION VS 427 SOUTH ELM LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Aug 20, 2024 |24STCV18012
Case Number: 24STCV18012 Hearing Date: August 20, 2024 Dept: 85 Palm Court Properties, Inc.. v. 427 South Elm LLC, et al., 24STCV18012 Tentative decision on application for preliminary injunction: granted Plaintiff Palm Court Properties, Inc. (Palm Court) seeks a preliminary injunction against Defendant Bank of America, N.A. (Bank of America) to freeze the bank account held in the name of Defendant 427 South Elm, LLC (Elm LLC) such that the funds are not accessible to 427 South or its agents. The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision. A. Statement of the Case 1. Complaint On July 19, 2024, Plaintiff Palm Court filed a Complaint against Defendants Elm LLC, Zhan Hairong aka Zhan Hai Rong aka Hai Rong Zhan (Hai Rong), Bank of America, Eric Gallego (Gallego), and Merchants Bonding Company (Merchants) alleging causes of action for (1) declaratory relief, (2) conversion, (3) unjust enrichment, and (4) negligence of notary public and for recovery on notary bond. The Complaint alleges in pertinent part as follows. The real property which is the subject of this action is located at 427 S. Elm Drive, Beverly Hills, CA 90212 (Elm Drive Property). Compl., ¶10. On May 26, 2016, Ming Lu acquired title to the Elm Drive Property pursuant to the recordation of a grant deed in the Recorders Office of Los Angeles County (County). Compl., ¶11. A deed of trust between Ming Lu, as borrower, and BOFI Federal Bank, as lender, was also recorded (BOFI Deed of Trust). Compl., ¶12. The BOFI Deed of Trust secured Ming Lus repayment of a $1,400,000 promissory note (BOFI Note) with the Elm Drive Property. Compl., ¶12. On January 17, 2023, Elm LLC was created by David Turner with Defendant Hai Rong as its manager. Compl., ¶13. Elm LLC was organized for the sole purpose of fraudulently acquiring title to the Elm Drive Property and unlawfully converting proceeds from its sale. Compl., ¶15. The Statement of Information filed with the California Secretary of State listed the registered members of Defendant Elm LLC as Ming Lu and David Turner. Compl., ¶14. On February 26, 2024, a grant deed was recorded purporting to convey title to the Elm Drive Property from Ming Lu to Elm LLC (Fraudulent Grant Deed). Compl., ¶16. The Fraudulent Grant Deed contains the notarial acknowledgement of Defendant Gallego, a California notary public. Compl., ¶17. The Fraudulent Grant Deed states that it merely confirms title to the grantee [Elm LLC] who continues to hold the same interest acquired [by Ming Lu] on 5/26/2016, Document No. 20160606114. Compl., ¶18. On March 20, 2024, a Statement of Information for Elm LLC removed David Turner and Ming Lu as members and replaced them with Defendant Hai Rong as the sole member and Chief Executive Officer. Compl., ¶19. On or about March 2024, Palm Court entered into a purchase agreement with Elm LLC to purchase the Elm Drive Property for $1,950,000. Compl., ¶¶ 20-21. Escrow was first opened with Pacific Escrow before being moved to Escrow Hub, and a title order was opened with Fidelity National Title Company (FNTC). Compl., ¶22. Palm Court deposited a down payment in the amount of $60,000 with Escrow Hub for its purchase of the Elm Drive Property. Compl., ¶23. During the transaction, Palm Court asked Escrow Hub about Ming Lus prior conveyance of the Elm Drive Property to Elm LLC. Palm Court was informed that Hai Rong provided Escrow Hub with (a) a statement from Ming Lus husband, Long Jia, (b) an agreement between Ming Lu and Hai Rong, and (c) an email from Hai Rong to Escrow Hub and FNTC indicating that Ming Lu wanted to sell the Elm Drive Property because she is in default on her debts. Compl., ¶¶24-25. Palm Court agreed to purchase the Elm Drive Property primarily based on the marketable fee simple title purportedly held by Elm LLC, Hai Rongs representations that Elm LLC legally acquired title from Ming Lu, and the signatures and documents it received for the transaction. Compl., ¶27. On June 21, 2024, in anticipation of the closing, Palm Court deposited additional funds with FNTC via wire transfer in the amount of $1,893,333.21. Compl., ¶28. The same day, FNTC wired the sum of $1,199,401.75 to Axos Bank to pay off the balance due on the BOFI Note and cause a reconveyance of the BOFI Deed of Trust. Compl., ¶29. FNTC also wired the sum of $687,691.46 to Escrow Hubs bank, Wells Fargo Bank, for further disbursem*nt. Compl., ¶30. Pursuant to wire instructions previously made by Hai Rong and Elm LLC, Escrow Hub then wired the sum of $743,704.51 to Elm LLCs Bank of America bank account number ending in 7346 (Deposit). Compl., ¶31. All or a portion of the Deposit remains in the possession of Bank of America for the benefit of Hai Rong and Elm LLC. Compl., ¶32. A grant deed was recorded in the County Recorders Office with Elm LLC as grantor and Palm Court as grantee. Compl., ¶33. On June 23, 2024, Ming Lu visited the Elm Drive Property to check on the progress of improvements to the home and discovered a three-day notice to vacate posted on the home notifying all occupants that Palm Court was the new owner. Compl., ¶34. The next day, Ming Lu filed a police report with the Beverly Hills Police Department reporting fraud and contacted Escrow Hub concerning the same. Compl., ¶35. Ming Lu denies ever signing the Fraudulent Grant Deed or appearing before Gallego to sign the Fraudulent Grant Deed and asserts that her signature was forged. She was not even in the United States when it was purportedly signed on February 13, 2024. She contends that she did not participate in the sale transaction and did not receive any of the Deposit. Compl., ¶36. That same day, Palm Court was informed of Ming Lus claims that the sale was fraudulent. Compl., ¶37. If Ming Lus assertions are true, Hai Rong and Elm LLC fraudulently stole title to the Elm Drive Property from Ming Lu via the Fraudulent Grant Deed and unlawfully converted a portion of Palm Courts purchase money in the form of the Deposit. Compl., ¶38. Ming Lu remains the lawful fee simple title holder of the Elm Drive Property because the Fraudulent Grant Deed is void. Compl., ¶39. Bank of America has refused to voluntarily freeze the bank account and the Deposit from withdrawal or disbursem*nt and will only do so upon receipt of a court order instructing it to do so. Compl., ¶40. Palm Court seeks an order and judicial declaration that it is the owner in fee of the Elm Drive Property or alternatively, in the event Ming Lus claim of fraud is verified, that Palm Court be deemed the owner of the Deposit and for an order that the balance of the Deposit be disbursed to Palm Court. Palm Court also seeks damages for conversion in the amount of $743,704.51, pre-judgment interest, and compensatory damages for the lost use of money and for the time expended of no less than $250,000. Palm Court further seeks costs of suit incurred herein and other and further relief the court deems proper and just. Compl., at 14-16. 2. Course of Proceedings On July 29, 2024, the court issued a temporary restraining order (TRO) and issued an order to show cause (OSC) against Defendants Elm LLC, Hai Rong, Bank of America, Gallego, and Mutual. Proofs of service on file show that Defendant Bank of America was served with Summons, Complaint, and the TRO/OSC on July 31 and August 2, 2024. Proofs of service on file show that Defendant 427 South Elm LLC was served with Summons, Complaint, and the TRO/OSC on July 31 and August 2, 2024. A proof of service on file show that Defendant Merchants was served with Summons and Complaint on August 2, 2024. B. Applicable Law An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. CCP §525. An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[1] It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424. The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623. The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowners Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402. A preliminary injunction is issued after hearing on a noticed motion. The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).[2] Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150. Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. See CCP §527(a). For this reason, a pleading alone rarely suffices. Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007). The burden of proof is on the plaintiff as moving party. OConnell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481. A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. The concept of inadequacy of the legal remedy or inadequacy of damages dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the irreparable harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. CCP §526(a)(2); 14859 Moorpark Homeowners Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636. Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304. The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255. A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920. C. Statement of Facts 1. Moving Plaintiffs Evidence a. Fassai Declaration Plaintiff Palm Court is a real estate investment corporation in Torrance, CA, which invests in real estate, manages properties, buys and holds, and fixes and flips properties. Fassai Decl., ¶¶1, 3. Ebrahim Fassai (Fassai) is the Chief Executive Officer, Chief Financial Officer, and Director of Palm Court. Fassai Decl., ¶1. At all relevant times, Fassai was acting as the authorized representative of Palm Court. Fassai Decl., ¶2. In March 2024, Fassai was introduced to the Elm Drive Property by a friend who informed him that the property was abandoned and the seller wanted to sell. Fassai Decl., ¶3. Upon Fassais physical inspection, the Elm Drive Property appeared to be suffering from deferred maintenance. Fassai Decl., ¶3. After some discussion with a woman who Fassai was told represented the seller, Palm Court offered to purchase the Elm Drive Property for $1,950,000. An escrow for the purchase was opened with Pacific Escrow, and a title order was opened with Lawyers Title Company. Fassai Decl., ¶4. Palm Court could not find a suitable lender to fund its purchase of the Elm Drive Property and the title company did not want to insure Palm Court's purchase. Fassai Decl., ¶5. It was then suggested to Fassai by a friend that the transaction be moved to Escrow Hub, as the new escrow company, and FNTC as the new title company. Fassai Decl., ¶6. Following the opening of the escrow with Escrow Hub, Palm Court made a good faith deposit in the amount of $60,000 towards the purchase of the Elm Drive Property. Fassai Decl., ¶7. Fassai received a Preliminary Report which identified Elm LLC as the owner of the Elm Drive Property. Fassai Decl., ¶8. Fassai received from both Escrow Hub and FNTC typical documents on which Palm Court relied in deciding to purchase the Elm Drive Property, including that Hai Rong represented that Elm LLC owned the Elm Drive Property and that the prior owner, Ming Lu, no longer held any interest in the Elm Drive Property and was consenting to the sale. Fassai Decl., ¶9. Fassai was also made aware that Hai Rong had deposited an executed grant deed in favor of Palm Court which was to be recorded when all the conditions to the sale had been satisfied. Fassai Decl., ¶10. Palm Court agreed to purchase the Elm Drive Property based upon Elm LLCs representations that it was the owner of the Elm Drive Property. Fassai Decl., ¶11. On or about June 19, Palm Court wired to FNTC the balance of its purchase-money funds in the amount of $1,893,333.21. Fassai Decl., ¶12. On or about June 21, 2024, Fassai was informed that the transaction had closed and that the grant deed executed by Hai Rong on behalf of Elm LLC was out for recording. Fassai Decl., ¶13. On June 23, 2024, Fassai caused a three-day notice to vacate to be posted on the Elm Drive Property. Fassai Decl., ¶15. The following day, a grant deed between Elm LLC, as grantor, and Palm Court, as grantee, was recorded as Document No. 20240405883 in the County Recorders Office. Fassai Decl., ¶16, Ex. 1. Fassai received a call from FNTC, who told him that there was someone living in the Elm Drive Property who claimed to be the owner of the property. Fassai Decl., ¶17. Fassai has since learned through his lawyers and the title insurance company that Ming Lu, a prior owner and the grantor of title to Elm LLC, was claiming that her signature had been forged on a recorded deed purportedly vesting title to the Elm Drive Property in Elm LLC. She asserted that she did not know about the sale, had not participated in it, had not agreed to sell the Elm Drive Property, did not convey title to Elm LLC, and did not receive any proceeds of sale. Fassai Decl., ¶18. b. Declaration of Diego Salazar Diego Salazar (Salazar) is an escrow officer with Escrow Hub, the escrow company which was engaged to handle the sale between Elm LLC and Palm Court. Salazar Decl., ¶1. On or about June 17, 2024, Escrow Hub was engaged to act as the escrow holder for Palm Courts purchase of the Elm Drive Property. Salazar Decl., ¶3. A file was opened and assigned the escrow file number 100649-DS, with the DS representing Salazars initials as the escrow officer assigned. Salazar Decl., ¶3. Palm Court made an initial good faith deposit of $60,000 upon the opening of the escrow. Salazar Decl., ¶4. During the course of the transaction, Elm LLC, by and through its purported manager, Hai Rong, deposited several items concerning how and why it acquired its interest in the Elm Drive Property from Ming Lu, including: (a) a statement by Long Jia, the husband of Ming Lu, who stated that Ming Lu knew the property on Elm was being sold and agrees to the sale of it; (b) an agreement between Ming Lu and Hai Rong; and (3) an email from Hai Rong to Escrow Hub and FNTC wherein Hai Rong attempted to justify the low sales price by attesting that Ming Lu is on the Chinese Government watchlist and was selling the Elm Drive Property because she is in default of her debts. Salazar Decl., ¶5. On June 21, 2024, Escrow Hub received Palm Courts purchase money funds from FNTC. Salazar Decl., ¶6. Subsequently, the escrow closed. After the payment of customary costs and fees, Escrow Hub disbursed via wire transfer the amount of $743,704.51 to a bank account at Bank of America for the benefit of Elm LLC, with the last four digits of the bank account number ending in 7346. Salazar Decl., ¶7. On June 24, 2024, Escrow Hub was notified by Richard Stine that Ming Lu was claiming the transaction was fraudulent, that she did not participate in it, and that she had not signed the grant deed that purportedly vested title in Elm LLC. Salazar Decl., ¶8. Escrow Hub attempted to recall the wire transfer of the proceeds, but the request was not honored by Bank of America. Salazar Decl., ¶9. c. Declaration of Ming Lu Ming Lu has owned the Elm Drive Property since April 2016. Lu Decl., ¶2, Ex. 1. Ming Lu briefly occupied the Elm Drive Property before using it as a rental property until around mid-2023. Lu Decl., ¶2. Subsequently, Ming Lu started some remodeling and improvements at the Elm Drive Property. Lu Decl., ¶2. On June 15, 2024, Ming Lu started living at the Elm Drive Property. Lu Decl., ¶3. On June 23, 2024, Ming Lu left the Elm Drive Property in the morning. When she returned in the afternoon, she saw a notice on the door that Palm Court was the new owner and instructing all occupants to vacate within three days. Lu Decl., ¶3. Upon further investigation, Ming Lu discovered that her name and signature appeared on a grant deed recorded on February 26, 2024, pursuant to which she purportedly transferred title and ownership of the Elm Drive Property to Elm LLC. Lu Decl., ¶4, Ex. 2. Ming Lu filed a police report with the Beverly Hills Police Department later that day. Lu Decl., ¶4, Ex. 2. The signature on that grant deed is not Ming Lus signature and she did not appear before the notary public to have her signature acknowledged. Lu Decl., ¶6. In fact, Ming Lu was not in the United States on February 13, 2024, the date on which she purportedly signed the grant deed; she was in Thailand with her family on vacation. Lu Decl., ¶6. Ming Lu did not authorize anyone to sign her name to the grant deed and did not know that it had been recorded. Lu Decl., ¶7. Ming Lu also did not know that a sale occurred until the week of June 23, 2024. Lu Decl., ¶7. Ming Lu has never held an interest in Elm LLC, does not know anyone associated with that entity, never sold her property, and did not receive any proceeds from the attempted sale of the Elm Drive Property. Lu Decl., ¶7. 2. Bank of Americas Evidence On June 27, 2024, Bank of America closed and immediately froze all funds in Elm LLCs account ending in 7346, which total $331,721.57. Watkins Decl., ¶4. Bank of America continues to hold these funds and intends to do so pending further court order, including possibly via interpleader. Watkins Decl., ¶4. Bank of America is a mere stakeholder and claims no interest in or right to the frozen funds. It is ready, willing, and able to pay these monies to the person or persons legally entitled to them. Watkins Decl., ¶5. Bank of Americas own investigation regarding the origin and disposition of the funds is ongoing. Watkins Decl., ¶5. D. Analysis Plaintiff Palm Court seeks a preliminary injunction against Defendants Elm LLC, Hai Rong, Bank of America, Gallego, and Merchants to prevent them from accessing $743,704.51 in Bank of America account number XXXXXX7346, owned by 427 South Elm, LLC. As only Defendants Elm LLC and Bank of America have been served with the TRO/OSC, the court has jurisdiction only over those two Defendants and their agents. Palm Court presents evidence that it entered into a purchase agreement with Elm LLC to buy the Elm Drive Property on or about March of 2024. The parties agreed on a $1,950,000 purchase price. An escrow was opened with Pacific Escrow but later moved to Escrow Hub. In connection with Palm Court's anticipated purchase of the Elm Drive Property, Palm Court deposited an initial $60,000 with Escrow Hub. During the course of the transaction, questions were asked by Escrow Hub concerning Ming Lu's prior conveyance of the Elm Drive Property to Elm LLC and of her interest, if any, in Elm LLC. Hai Rong provided Escrow Hub with the following items, all of which are claimed by Ming Lu to be fraudulent: (a) A statement by Long Jia, the husband of Ming Lu, in which Long Jia states that Ming Lu "knows that the property on Elm is being sold and agrees to the sale of it." (b) An "Agreement Between Lu Ming and Zhan Hai Rong" which, inter alia, states that "Lu Ming wishes to sell her house at 427 South Elm Drive.... Lu Ming wishes to sell her house through her company (427 South Elm, LLC) and wishes to use the services of Zhan Hai Rong to do this." (c) an email from Escrow Hub and FNTC in which Hai Rong attempts to justify the low sales price on the basis that Ming Lu is on Chinese government watch list, and that she is selling the Elm Drive Property because she is in default of her debts. Hai Rong deposited a grant deed in favor of Palm Court with Escrow Hub. On June 2I,2024, and in anticipation of closing, Palm Court caused additional purchase money funds to be deposited in the amount of $1,893,333.21. On June 21, 2024, FNTC wired the sum of $687,691.46 to Escrow Hub's bank, Wells Fargo Bank, for further disbursem*nt. Escrow Hub thereafter wired $743,704.51 to Elm LLC's Bank of America account. On June 21, 2024, a grant deed was recorded with Palm Court as grantee. On June 23, 2024, Ming Lu visited the Elm Drive Property to check in on the progress of improvements she was making to the home and discovered a notice on the home that Palm Court was the new owner of the Elm Drive Property and that any and all occupants had three days to vacate the premises. The next day, she filed a police report with the Beverly Hills Police Department reporting the alleged fraud. Ming Lu denies that she ever signed the Fraudulent Grant Deed, denies that she appeared before Gallego to sign the Fraudulent Grant Deed, asserts that her signature was forged thereon, and that she was not in the United States on the February 13, 2024 date the Fraudulent Grant Deed was purportedly signed by her in front of Gallego. She contends that she did not participate in the sale and did not receive any of the sale proceeds. Palm Court has presented a prima facie case of fraud by at least Defendants Elm LLC and Hai Rong in the purported acquisition and then sale of the Elm Drive Property. The result is that Palm Court has shown a probability of success on its claim for conversion of $743,704.51 that was sent to the Elm LLC account at Bank of America.[3] Bank of America opposes, but only to the extent that Palm Court asks that it hold more than the $331,721.57 currently in the account or seeks additional relief from it. The preliminary injunction will prevent access to funds in the account up to the $743,704.51 amount that is part of the sale. If there is less than that in the account, Bank of America is not required by the preliminary injunction to retrieve funds; it can only freeze the funds that are there. As for the issue of Palm Courts potential further relief against Bank of America, that is not an issue in this application. E. Conclusion The preliminary injunction is granted against Bank of America and their agents. Palm Court will be required to post a nominal bond of $100. [1] The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713. A mandatory injunction one that mandates a party to affirmatively act, carries a heavy burden: [t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established. Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493. [2] However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3). [3] Palm Court does not address the issue of irreparable harm, but obviously a party which has been defrauded of money will suffer irreparable harm if the fraudster accesses those funds in its bank account.
Document
Wells Fargo Bank, N.A. v. Pnina Moskovits, Yakov Moskovits, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, Agness Moskovits, Trustee Or Their Successors In Trust, Under The Pnina Moskovits Trust Dated March 12, 2013, And The Yaakov Moskovits Trust Dated March12, 2013, New York City Emvironmental Control Board, Thomas Moskovits, Trustee Or Their Successors In Trust, Under The Pnina Moskovits Trust Dated March 12, 2013, And The Yaakov Moskovits Trust Dated March 12, 2013, Tanya Sikar, Beatrice Moskovits
Mar 16, 2015 |Cenceria Edwards |Foreclosure (residential mortgage) |Foreclosure (residential mortgage) |502952/2015
Document
Newrez Llc D/B/A Shellpoint Mortgage Servicing, v. Namik Lipe, Merjeme Lipe, Endri Lipe, New York State Department Of Taxation And Finance, John Doe # 1 Through John Doe # 12
Jul 10, 2024 |Cenceria Edwards |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |518687/2024
Document
Towd Point Mortgage Trust 2020-2, U.S. Bank National Association, As Indenture Trustee v. Melissa Almonte, Alexandro Villa, New York City Parking Violations Bureau, New York City Environmental Control Board, New York City Transit Adjudication Bureau, Sustainable Neighborhoods Llc, John Doe 1-JOHN DOE 12 THE LAST TWELVE NAMES BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF,THE PERSONS OR PARTIES INTENDED BEING THE TENANTS, OCCUPANTS, PERSONS OR CORPS, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE PREMISES, DESCRIBED IN THE COMPLAINT
Oct 05, 2023 |Cenceria Edwards |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |528899/2023
Document
Lloyd Myers v. Edward Folks, Jack Soto, Myron Leary
Sep 11, 2023 |Francois A. Rivera |Real Property - Other (Ejectment) |Real Property - Other (Ejectment) |526187/2023
Document
Us Bank National Association AS TRUSTEE FOR STRUCTURED ASSET INVESTMENT LOAN TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-3 v. Anthony Noel, Bank Of America N.A., New York City Transit Adjudication Bureau, New York City Environmental Control Board, New York State Child Support Enforcement, Felicia Harper
Apr 23, 2009 |Cenceria Edwards |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |7491/2008
Document
Palermo Lender Llc, 1060 Brickell Llc, Embert Investments Llc, Bm2 Investment I Llc, Somalumi Investments Llc And Julian Sruber v. Nigel Laughton Llc, Omar Stewart, Albany Avenue Partners Llc, New York City Environmental Control Board, New York City Parking Violations Bureau, New York City Transit Authority Transit Adjudication Bureau, New York State Department Of Taxation And Finance, New York City Department Of Finance, John Doe 1 Through John Doe 100 THE LAST ONE HUNDRED NAMES BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF, THE PERSONS OR PARTIES INTENDED BEING THE TENANTS, OCCUPANTS, PERSONS OR CORPORATIONS, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE PREMISES DESCRIBED IN THE COMPLAINT
Oct 26, 2023 |Lawrence Knipel |Real Property - Mortgage Foreclosure - Commercial |Real Property - Mortgage Foreclosure - Commercial |531221/2023
Document
Dec 30, 2013 |DAVID B. VAUGHAN, COMM 9 |Foreclosure (non-residential mortgage) |Foreclosure (non-residential mortgage) |508331/2013
Document
Jieying Pan v. Ying Ying Chen, Guo Duan Zhang, Eric Park Zhang
Mar 08, 2023 |Wayne Saitta |Torts - Other (slander, illegal eviction) |Torts - Other (slander, illegal eviction) |152/2023
