On June 09, 2014 aComplaint,Petitionwas filedinvolving a dispute betweenJpmorgan Chase Bank, National Association,andAbraham Landau,Board Of Managers Of The 46 South 9Th Street Condominium,John Does And Jane Does,New York City Environmental Control Board,New York City Parking Violations Bureau,New York City Transit Adjudication Bureau,for Foreclosure (residential mortgage)in the District Court of Kings County.
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INDEX NO. 505227/2014NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/09/2014SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGSees en ae aoe)JPMORGAN CHASE BANK, NATIONAL Index No.ASSOCIATIONPlaintiff, D/O/F:-against- SUMMONSABRAHAM LANDAU; NEW YORK CITY TRANSIT Premises Address:ADJUDICATION BUREAU; NEW YORK CITY 146 SOUTH 9TH STREET,ENVIRONMENTAL CONTROL BOARD ; NEW UNIT IRYORK CITY PARKING VIOLATIONS BUREAU; BROOKLYN, NY 11211BOARD OF MANAGERS OF THE 46 SOUTH 9THSTREET CONDOMINIUM;; "JOHN DOES" and"JANE DOES", said names being fictitious, partiesintended being possible tenants or occupants ofpremises, and corporations, other entities or persons whoclaim, or may claim, a lien against the premises,Defendant(s),TO THE ABOVE NAMED DEFENDANTS:YOU ARE HEREBY SUMMONED to answer the Complaint in this action, and to servea copy of your Answer, or, if the Complaint is not served with this Summons, to serve a Noticeof Appearance on the Plaintiffs Attorneys within twenty (20) days after the service of thisSummons, exclusive of the day of service, where service is made by delivery upon youpersonally within the State, or within thirty (30) days after completion of service where service ismade in any other manner, and in case of your failure to appear or answer, judgment will betaken against you by default for the relief demanded in the complaint.NOTICEYOU ARE IN DANGER OF LOSING YOUR HOMEIf you do not respond to this summons and complaint by serving a copy of the answer onthe attorney for the mortgage company who filed this foreclosure proceeding against youand filing the answer with the court, a default judgment may be entered and you can loseyour home.Speak to an attorney or go to the court where your case is pending for further informationon how to answer the summons and protect your property.Sending a payment to your mortgage company will not stop this foreclosure action.YOU MUST RESPND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEYFOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITHTHE COURT.TO THE DEFENDANTS, except ABRAHAM LANDAU: The Plaintiff makes no personal claimagainst you in this action.TO THE DEFENDANTS: ABRAHAM LANDAU: If you have obtained an order of dischargefrom the Bankruptcy court, which includes this debt, and you have not reaffirmed your liabilityfor this debt, this law firm is not alleging that you have any personal liability for this debt anddoes not seek a money judgment against you. Even if a discharge has been obtained, this lawsuitto foreclose the mortgage will continue and we will seek a judgment authorizing the sale of themortgaged premises.Dated: June 6, 2014new. Esq.ROSICKI, ROSICKI & ASSOCIATES, P.C.Attorneys for PlaintiffMain Office 51 E Bethpage RoadPlainview, NY 11803516-741-2585SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGSJPMORGAN CHASE BANK, NATIONAL Index No.ASSOCIATIONPlaintiff, D/O/F:-against- COMPLAINTABRAHAM LANDAU; NEW YORK CITY TRANSIT Premises Address:ADJUDICATION BUREAU; NEW YORK CITY 146 SOUTH 9TH STREET,ENVIRONMENTAL CONTROL BOARD ; NEW UNIT IRYORK CITY PARKING VIOLATIONS BUREAU; BROOKLYN, NY 11211BOARD OF MANAGERS OF THE 46 SOUTH 9THSTREET CONDOMINIUM;; "JOHN DOES” and"JANE DOES", said names being fictitious, partiesintended being possible tenants or occupants ofpremises, and corporations, other entities or persons whoclaim, or may claim, a lien against the premises,Defendant(s),ee nee nee nnn nee neennnneneneeesnenennnneneeePlaintiff, by its attomey, ROSICKI, ROSICKI & ASSOCIATES, P.C., complaining ofthe Defendant(s) alleges, upon information and belief as follows:1. At all times hereinafter mentioned, plaintiff was and still is duly organized andexisting under the laws of the United States of America.2. At all times hereinafter mentioned, the defendants were, and still are, residents,corporations and/or bodies politics, duly authorized to reside and/or exist in and under the lawsof New York State.3 On or about May 31, 2002, ABRAHAM LANDAU executed and delivered toJPMORGAN CHASE BANK, a certain Home Equity Line of Credit Account Agreement(Agreement) bearing date that day, whereby ABRAHAM LANDAU covenanted and agreed topay the sum of $83,000.00, with interest on the unpaid principal balance thereof at the rate asprovided for in said Agreement, to be computed from the date of said Agreement, by monthlyinstallment payments as stated in the agreement until said Agreement is fully paid, except thatthe final payment of principal and interest remaining due, if not sooner paid, shall become dueand payable on June 15, 2032. A copy of the Home Equity Line of Credit Account Agreement isannexed hereto.4. As collateral security for the payment of said indebtedness, the aforesaiddefendant(s) ABRAHAM LANDAU, also executed, acknowledged and delivered toJPMORGAN CHASE BANK, a Home Equity Line Mortgage dated May 31, 2002 and recordedin the County of Kings on July 29, 2002 in Reel 5731 page 1042. The mortgage tax was dulypaid.4a. Pursuant to RPAPL section 1302, the plaintiff has complied with all theprovisions of Section 595a and Section 6-1 of the Banking Law except where they are exemptfrom doing so.3. Plaintiff(a) is the holder of the subject note and mortgage, or has been delegated the authority toinstitute a mortgage foreclosure action by the owner and holder of the subject mortgage andnote; and{b) has complied with all the provisions of section five hundred ninety-five-a of theBanking Law and any rules and regulations promulgated there under, section six-L or six-Mof the Banking Law, and{c) is in compliance with sending the ninety (90) day notices as required by RPAPL§1304.(d) is in compliance with RPAPL §1306, if applicable. The tracking number provided by theNew York State Banking Department for the reporting is NYS3439073.Said mortgaged premises being known as and by street address:146 SOUTH 9TH STREET, UNIT 1R, BROOKLYN, NY 11211 bearing tax mapdesignation:Block: 2147 Lot(s): 1402which premises are more fully described in Schedule "A," annexed hereto and made a parthereof.6. Said premises are subject to covenants, restrictions, easem*nts of record, priormortgages and liens, and amendments thereto, if any; to any state of facts an accurate surveymay show; railroad consents and sewer agreements, and to utility agreements, municipal andgovernmental zoning, rules, regulations and ordinances, if any.7. That the Mortgagors, their successors, assigns and/or transferees, have failed tocomply with the terms and conditions of said above named instrument[s] by failing or omittingto pay the installment which became due and payable as of July 15, 2012 and also by failing oromitting to pay the installment which became due and payable each and every month thereafter,to the date hereof, although duly demanded.8. The total monthly payment due as of default date to plaintiff is $600.95,9. That the terms of the above described instruments provide: (1) that the whole ofsaid principal sum and interest shall become due at the option of the Mortgagee after default inthe payment of any installment of principal or of interest; (2) that upon any default theMortgagor will pay to the Mortgagee any sums paid for taxes, charges, assessments, andinsurance premiums upon said mortgaged premises; (3) that in case of sale under foreclosure, thepremises may be sold in one parcel.10. __ .Pursuant to the terms of said instrument[s], notice of default has been duly givento the defendants ABRAHAM LANDAU if required, and the period to cure, if any, has elapsedand by reason thereof, Plaintiff has elected and hereby elects to declare immediately due andpayable the entire unpaid balance of principal.11. That the balance of principal due upon said note and mortgage as of the date ofsaid default and as of the time of this Complaint is $83,000.00 plus interest from June 1Sth,2012,12. That in order to protect its security, plaintiff may be compelled during thependency of this action to make repairs to, board, secure, protect and maintain the premises, topay taxes, assessments, water rates, sewer rentals, insurance premiums, mortgage insurancepremiums, if there be any, and other charges affecting the premises, and the plaintiff requeststhat any sum so paid be added to the sum otherwise due, with interest as provided in theaforesaid instruments, and be deemed secured by said instrument([s] and adjudged a valid lien onthe premises herein above described.13. That the plaintiff requests that in the event this action proceeds to Judgment ofForeclosure and Sale, said premises be sold subject to covenants, restrictions and easem*nts,prior mortgages and liens, and amendments, if any, of record; any state of facts an accuratesurvey may show; restrictions, regulations, ordinances and zoning ordinances of any municipalor governmental authority having jurisdiction thereof; and municipal, departmental and othergovemmental violations, if any, affecting the premises; and real estate taxes, sewer rents, watercharges, if any, open of record.14. That no other action has been commenced at law or otherwise for the recovery ofthe sum or any part thereof secured by the said instrument{[s}.15 .That the defendants all have or claim to have some interest in or lien[s] upon thesaid mortgaged premises, or some part thereof, which interest or lien[s], if any, has [have]accrued subsequently to the lien[s] of the said mortgages] or was in express terms or by lawmade subject thereto, or has [have] been duly subordinated thereunto.16. That the defendants "JOHN DOES" and "JANE DOES" may be tenants or may bein possession of the aforementioned premises, or may be corporations, other entities or personswho claim, or may claim, a lien against the premises.17. That the basis for naming any political subdivision, governmental agency orsimilar body, or the holder of a security interest in personal property, if any, is set forth asSchedule "B."WHEREFORE, plaintiff demands judgment that the defendants and all persons claimingunder them subsequent to the filing of the Notice of Pendency of this action in the County ofKings may be forever barred and foreclosed from all right, title, claim, lien and equity ofredemption in said mortgaged premises, and each and every part thereof; except the right of theUnited States of America and its political subdivision, if it or they be a party to this action, toredeem as provided for in the applicable laws; that the said premises may be decreed to be soldaccording to law; that the amount of principal due the plaintiff on said note and mortgage may beadjudged in the sum of $83,000.00 plus interest from June 15th, 2012, and that from the moneyarising from the sale, plaintiff be paid the amount of $83,000.00 principal due it on said note andmortgage with interest and late charges that may be due and owing to the time of such paymentplus the expenses of sale and the costs and expenses of this action, together with any sum whichmay be paid by the plaintiff for repairs to, boarding, securing, protecting and maintaining thepremises, taxes, charges, assessments and insurance premiums upon said mortgaged premises,with appropriate interest thereon so far as such moneys properly applicable thereto will pay thesame; that the defendants ABRAHAM LANDAU be adjudged to pay any deficiency which maytemain; that a Receiver, upon plaintiff's application therefore, be forthwith appointed for saidmortgaged premises for the benefit of the plaintiff, with all powers of receivers in such actions,and that the plaintiff have such other and further relief as may be just and proper in the premises,together with attorney's fees, costs and disbursem*nts of this action.Dated: June 6, 2014hyeTyne Modica, Esq.ROSICKI, ROSICKI & ASSOCIATES, P.C,Attorneys for PlaintiffMain Office 51 E Bethpage RoadPlainview, NY 11803516-741-2585SCHEDULE BNEW YORK CITY ENVIRONMENTAL CONTROL BOARD is named as a party defendantherein because it may have or claims to have judgments or liens against the subject premises.Copies of the judgments or liens are unavailable due to the condition of the books in the county.NEW YORK CITY PARKING VIOLATIONS BUREAU is named as a party defendant hereinbecause it may have or claims to have judgments or liens against the subject premises. Copies ofthe judgments or liens are unavailable due to the condition of the books in the county..BOARD OF MANAGERS OF THE 46 SOUTH 9TH STREET CONDOMINIUM is named as aparty defendant herein because it may have or claims to have a judgment or lien for unpaidcommon charges against the subject premises.NEW YORK CITY TRANSIT ADJUDICATION BUREAU is named as a party defendantherein because it may have or claims to have judgments or liens against the subject premises.Copies of the judgments or liens are unavailable due to the condition of the books in the county.ABRAHAM LANDAU is named herein as party defendant(s) because they are certified ownersof the subject premises, are obligors on the note and they mortgaged their interest.JPMorgan Chase BankHOME EQUITY LINE OF CREDIT AGREEMENT ANDDISCLOSURE STATEMENTThis is the Agreement (the “Agreement") governing your Home Equity Line of Credit ("CreditAccount") with JPMorgan Chase Bank . Read this Agreement carefully so that you knawknow how your Credit Account works. As you read this Agreement remember that the terms “we,” "us,"and “our” refer to JPMorgan Chase Bank ‘and to any other creditor to whom this AgreementAgreement is assigned. "You," “your,” and "yours" refer to each persan who signs this Agreement or hasauthority to use it. "Mortgage" means the mortgage, deed of trust or daed to secure debt you are giving us‘on your house or candominium, Your account, any amount you owe, and our Mortgage on your home maybe sold ar transferred to another creditor at anytime. if this happens, this Agreament and the Mortgage willremain in effect. .1. WHAT IS YOUR HOME EQUITY LINE OF CREDIT? ttis a cradit arrangementin which we make toans to you by advancing funds ("Advances") from your Credit Account at yourdirection, allowing you to repay such Advances and take additional Advances. You promise and agree torepay these Advances, any interest which accrues on them, and all other charges for which you areresponsible under the terms of this Agreement.2. USING YOUR CREDIT ACCOUNT. You may request Advances from your CreditAccount by writing a Home Equity Line of Credit Check (“Draw Check") for the exact amount which youdesire as long as itis in a minimum amount of$ 250.00 . We may refuse ta honor request foradvances below the minimum amount. You may also request advances at the closing by completing @loan request form or other form of authorization that we may require. You may take Advances for a periodof 120 Monthly Statement Periods after the date your Credit Account is opened ("Advance Period’). Aftersuch Advance Period, you may not take further advances. Your principal balance will then be fixed andyou will be required to repay it and any Interest and other charges which accrue over the next 240 MonthlyStatement Periods ("Repayment Period"). If you qualify, you may extend the Advance Period of yourCredit Account. To qualify, you must submit’ written request in a form acceptable to us at least sixmonths prior to the scheduled termination of the Advance Period and you must meet extensionrequirements in effect at the time of the request.If you request Advances at closing by signing a foan request or other form of authorization, we willdisburse the amount to you promptly but no earlier than the end of any applicable perlod during which youcould exercise 2 right to rescind. You may present the Draw Checks to other parties in payment of goodsand services. When you use the Draw Checks, you agree to waive any right you may have to notice ofdishonor, presentment, provisional or final settlement within a given time or any other related right. Wemay dishonor any Draw check presented to us if you are in default under this agreement.A Monthly Statement Period is defined as successive intervals of approximately one monthbeginning on the date your Credit Account is opened and recurring regularly unti! your Credit Account isfinally closed. Monthiy Statement Periods occur regardless of whether there ls a balance or any activity inyour Credit Account or whether we have sent you a statement for the period. Your first MonthlyStatement Period may be shorter than a month depending on when your Credit Account is opened.3. DRAW CHECKS. You agree to notify us promptly if any of your Checks are lost orstolen. You also agree to cooperate with us or any law enforcement agency in any effort to Investigate thecirc*mstances surrounding the incident and efforts to minimize potential losses to you or us stemmingfrom it. You are responsible for the unauthorized use of lost or stolen Draw Checks unless the lawprohibits us from holding you lable.4, CREDIT LIMIT. we have assigned a Credit Limit of $ 3,000.09 . on your CreditAccount. You may not request an Advance that would cause your unpaid balance to exceed your CreditLimit. We are not required to pay any item which would cause you to exceed the amaunt of your CreditLimit. if we do make the Advance, it does not mean your Credit Limit has been raised. We may requireyou to repay the amount over your Credit Limit at once. If you exceed your Credit Limit, you agree to paya fee of $15, for each advance In excess of your Credit Limit.5. PROMISE TO PAY. You promise to repay to us in U.S. Dollars all Advances chargedto your Credit Account, plus finance charges and all other amounts due under this Agreement or theMortgage. To avoid deing in default, you must vay us at least the Minimum Payment (described below) bythe "Payment Due Date” shawn on each billing statement we will sand to yau. In sny event, you promiseto pay the balance of your Credit Account at the termination of this Agreement.NYCA (Rev. 09/10/01) Pogut ore AgreaenessNew Yorn Creat6, MINIMUM PAYMENT. During the Advance Period, your monthly payments will be the amountof finance charge accrued plus credit life insurance premiums, if applicable, any fees and any amountspast due, You are not required, however, to obtain credit life insurance in connection with your CreditAccount. After the Advance Period and during the Repayment Period, amounts sufficient to repay yourunpaid principal balance over the number of months remaining in your Repayment Period will be addedto your payment. If you have failed to pay real property taxes, assessments, ground rents {if any) orhazard insurance when due, we may require you lo make monthly payments to us for all amountsnecessary for taxes, assessments, ground rents (if any), or hazard insurance on the propertyProperty"), as further described in the Open-End Mortgage (the “Mortgage”) which was signed inconnection with this Agreement.INTENTIONALLY LEFT BLANKNYGA Page zoe7. FINANCE CHARGES. FINANCE CHARGES begin to accrus on the day an Advance ischarged to your Credit Account and cantinue until tha outstanding balance on such Advance is paid infull. FINANCE CHARGES on your Credit Account will be determined by applying a daily periodic rate tothe daily balance (as described below) of your Credit Account, an amount that will Include currenttransactions. To calculate the daity balance, we take the beginning principal balance of your CreditAccount each day, add any new Advances and subtract any payments or credits appiled to this principalbalance, This gives us the daily balance against which we apply your daily periodic rate. Then we addup all the daily interest accrued for the number of days in the Monthly Statement Period, which becomesthe total FINANCE CHARGE for the Monthly Statement Periad.The daily periodic rate and its corresponding ANNUAL PERCENTAGE RATE on the dale your CreditAccount was opened ("initial Rate") are 00958% Daily Periodic Rate and 3.500% correspondingANNUAL PERCENTAGE RATE. The ANNUAL PERCENTAGE RATE dos not include cosis otherthan interest. Until the first day of the 7th full calendar month beginning after the day your Credit Accountis opened. we will calculate your daily periodic rate and your correspondingBATE in a manner that is discounted and is different from the way we will calculate the daily periadic rateand corresponding ANNUAL PERCENTAGE RATE during the rest of the life af your Credit Account.The Daily Periodic Rate and its corresponding ANNUAL PERCENTAGE RATE which would have beenin effect, if the discounted manner of calculating your rate were not in effect("indexed Rate”), are ,01438% Daily Periodic Rate and 5.250% corresponding ANNUAL PERCENTAGERATE.The daily periodic rate (and corresponding ANNUAL PERCENTAGE RATE) are variable rates andtherefore may increase or decrease on the first day of each calendar month based on changes in thePrime Rate, “Prime Rate” means the prime rate as published in the “Money Rates" table in The Wall|. We will use the highest Prime Rate if more than one is published. The Prime Rate ismerely a pricing index. Il is not intended, and you should not consider it, to represent the lowest or thebest interest rate that we or affiliated organizations charge to any borrowers, An increase in theand the daily periodic rate will result in a higher FINANCE CHARGEand higher minimum payments, while a decrease in those rates will result in a lower FINANCE GHARGEand lower minimum payments, assuming the same principal balance and number of days in the billingcycle.If the daily periodic rate changes, it will be increased or decreased on the first day of each calendarmonth using the Prime Rate in affect on the preceding business day. Until the first day of the 7th fullcalendar month beginning after the day your Cradit Account was opened, we will determine your dailyperiodic rate by subtracting 1.250 percentage points from the Prime Rate and dividing the result by 365(366 in leap years). We refer to this subtraction as the "Introductory Rate Margin”. Beginning on the firstday of the 7th full calendéar month beginning after the day your Credit Account was opened, we willdetermine your daily periodic rate by adding .500-percentage points to the Prime Rate and dividing theresult by 365 (366 in leap years). We refer to this addition as the "Standard Rate Margin”.The first time or any subsequent time there is a change to yourmay increase to 18%. At no time, howaver, wit! yourOther than this cap thera are no limits on the amount by which yourchange over the life of your Credit Account or on any individual date on which your ANNUALPERCENTAGE RATE changes.8. PAYMENTS. All payments on your Credit Account must be made by check or moneyorder delivered to us at the address indicated on your billing statement, Any payment may be returnedwithout applying it to your Credit Account if the check or money order is: (1) not drawn on the U. S. PostalService or a financial institution located in the United States of America; (2) not payable in U.S. Dollars;(3) drawn with different numeric and written amounts; (4) missing a signature; (5) postdated; or (6)unacceptable for any other reason. We may epply all payments and credits in accordance with ourstandard operating procedures and with the requirements of applicable law. Generally, your payments willbe applied in the following order: credit insurance premiums which we have billed to you, interest whichwe have billed to you, late fees, other fees, principal, insurance premiums which have accrued but whichhave not yet been billed and interest which has accrued but which has not yet bean billed.NYCA PagersWe do not process payments on Saturdays, Sundays or bank holidays, and if the Payment OveDate falls on one of these days, you will incur an additional Finance Charge if your payment is not posted‘on or before the preceding bank business day. We can accept late payments, partial payments, checks ormoney orders marked "pald in full" or containing similar language without losing any of our rights underthis Agreement. You agree to pay us $20 for each payment check or automatic debit to your accountwhich is returned unpaid. You also agree to pay afee of $ 3.00 per copy for providing photocopies ofmonthly statements or canceled Draw Checks.9. SECURITY INTEREST. As part of this transaction, you are granting us a Mortgage‘on the property, as further described in the Mortgage, which is located at146 SOUTH 9TH ST APT. 1R, BROOKLYN, NY 11211-8721{the "Property"). All of the terms and conditions of the Mortgage are very Important and should be read inconjunction with this Agreement,10. COSTS FOLLOWING CLOSING. As you maintain a Credit Account with us, youwill incur other charges assessed under the Mortgage and this Agreement. For example, Closing Costs.Your closing costs are listed balow. You may pay these costs in cash at the closing or charge them toyour Credit Account as Advances.Loan Origination Fee (Finance Charge)Loan Discount (Finance Charge)Appraisal FeeCredit Report FeeMortgage Broker Fee (Finance Charge)Attomey Review - Trust Documents {Finance Charge)Flood Zone Certification Fee (Finance Charge)Underwriting Fea (Finance Charge)Processing Fee (Finance Charges)Document Preparation Fee - Lender (Finance Charge)Courier Fee - Lender (Finance Charge)Courler Fee - Broker (Finance Charge)Wire Fee - Lender (Finance Charge)Wire Fee - Groker (Finance Charge}Other Feo - Broker (Finance Charge)Other Fee - BrokerOther Fee - BrokerSettlement or Closing Fee (Finance Charge)Abstract or Title SearchDocument Preparation Fee - Settlement AgantAttorney's FeesTitle InsuranceUCC Preparation FeeRecording/Filing FeesCity/County Tax/StampsState Tax/StampsCo-op Lien SearchGeorgla Per Loan FeeInspectionLender’s Insurance against loan defaults to St. PaulFire & Marina insurance Company $31.00 POC 0.00Mortgage Satisfaction Fee 0.00255 Affidavit Fee 0.00LESS AMOUNT PAID BY LENDER 4,906.25AMOUNT DUE FROM BORROWER 0.00Any time as we may reasonably require, while you nave the right to take Advances on your Credit‘Account, we may obtain an appraisal on the Property. You agree that you will cooperate with us inobtaining such an appraisal.11. RELEASE. We will release the Mortgage when all amounts due under the Mortgage andthis Agreement have been paid. Before giving you a release, you will have to return all unused DrawChecks to us and wait until seven (7) dusiness days after your account has been closed. When wedischarge or release the Mortgage or any other documents recorded or filed to perfect our securityinterest in the Property, you shall pay any recordation ar filing costs. Recordation or filing costs areestimated to be $ 25.00NYGA Page 4 of 812. LATE FEES. if you do not make the full current Minimum Payment within 15 daysafter the date itis due, alate fee of 2.00 % of the current Minimum Payment will be charged.13. CREDIT LIFE AND CREDIT DISABILITY INSURANCE. You may be offeredthe ability to purchase credit insurance covering your death, disability or unemployment. If offered, creditinsurance is voluntary and is not required to obtain credit. If elected, you may terminate it at any time,Credit insurance will not be provided unless you sign or initial a separate document requesting suchinsurance. Premiums for any such insurance will be shown on such separate document and will beIncluded in the amount billed to you each month.14. ANNUAL PARTICIPATION FEE. You agres to pay us a non-refundable AnnualParticipation Fee of $ 0.00 during the Oraw Period and any extension of the Draw Period, Unlessyou terminate your Credit Account and pay the outstanding belance, the Annual Participation Fee will becharged to your Credit Account annually during the Draw Period in the Monthly Statement Period endingin your anniversary month which we assign to your Credit Account.15. DEFAULT, You will be in default if:8.) You engage in fraud or material misrapresentation at any time in connection withyour Credit Account,db) We do not receive the full amount of any minimum payment due in any monthly‘statement period within 60 days of its payment due date, or you fail to meet any ofthe repayment terms of Section 5 of this Agreement or as set forth In the Mortgage.c.) Your action or inaction adversely affects the Property or our rights in it. Examplesof these actions and inactions include, but are not limited to circ*mstances inwhich:You are the sole borrower on this Credit Account and you die,2. ‘The Property is used for an illegal purpose.3. You transfer or attempt to transfer all or part of your interest in the Propertywithout our written consent,4, All.or part of the Property is taken by condemnation or eminent domain.5. You are in default on any mortgage or lien an the Property.6. You fall to keep the Property properly insured.7, You fail to pay real property taxes and assessments on the Property whenthey are due.B. You fall to keep the Property properly maintained and in good repair.If you default, we have the right, at our option, to cance! your credit privileges, to require theimmediate payment of the entire amount owed to us, and/or to cause your home to be sold at foreclosuresale. If we refer your account to an attomey for collection or foreclosure, you agree to pay our reasonableattomey's fees as permitted by applicable law, but not to exceed 15 % of the amount owed, plus courtpius court costs and the costs related to foreclosure.16. CANCELLATION OF CREDIT PRIVILEGES. we can refuse to make additional‘extansions of credit, or reduce your Credit Limit if:a} The value of the Property deciines significantly below its original appraised valuefor purposes of this Credit Account.b) We reasonably believe you will not be able to meet the repayment requirements setforth in thls Agreement due to a material change in your financial circ*mstances.c.) You fai! to meet any material obligation you have under this Agreement.3.) You are in default under Section 15 above.NYCA Page 5 of@.) Government action prevents us from imposing the ANNUAL PERCENTAGE RATEprovided far in this Agreement.f£) Government action impairs our security interest such that the value of our interest isless than 120 percent of your Credit Limit,9) A regulatory agency which supervises us has notified us that continued Advanceswould constitute an unsafe and unsound practice,h.) You become the subject of a proceading in bankruptcy.i) There is more than one borrower on this Credit Account, one of you dies, and thatadversely affects our interest in the Property.jy The maximum ANNUAL PERCENTAGE RATE (or rate cap) is reached.If we refuse to make additional Advances or reduce your Credit Limit under this provision, we may refuseto honor any requests for Advances, including those requests made before but presented to us afler wemade our decision. We will send you a written notice stating the reason for our action. If for any reasonyou believe your Credit Limit should be reinstated, you must send us a written request for reinstatementand include in the request the reasons why you believe your credit privilege or Credit Limit should bereinstated.17. FORECLOSURE. The Mortgage signed in cannection with this Agreement gives uscertain rights to your property. The law gives us other rights you also agree ta give us. If you default, wemay foreclose on the Mortgage. This means that the real property covered by the Mortgage will be sold in‘order to pay the amount owed to us under this Agreement.18. RIGHT OF SETOFF. 4f you are in default of this Agreement, wa can apply any of yourdeposit or other credit balances or other property of yours with us towards payment of whal yau owe.19. INFORMATION. You agree to provide us with updated financial information, in writing,if we request it. We may request a new credit report on you without telling yau. If you ask, wa will tell youthe name and address of the consumer reporting agency that furnished it. We may furnish informationabout your performance under this Agreement to cur affiliates and other persons,You also agree to sign any additional ar carrective documents in connection with this Agraament,at our request and as allowed by taw,20. ASSUMPTION. Someone buying your Property may not assume this loan on theseterms.21. SENDING OF NOTICES. Any statement or notice ta you under this Agreement willbe sufficiently given if sent to your address on file in connection with this account or to a new address ofwhich you have notified us in writing at least 20 days before the sending of the statement or notice.22, AMENDMENT. We may change the terms of this Agreement in accordance with therequirements of applicable law.23. DELAY IN ENFORCEMENT. We may waive or delay enforcing our rights under thisAgreement without losing them or relieving you of any of your obligations. We may waive or delayéntorcing a right as to one of you without waiving it as to the others. Wa may release any sacurity or any‘one of you fram responsibility under this Agreement without releasing the others. We need not giveanyone notice of our waiver. delay or release. We may sue any one of you withoul suing the others.24, OTHER RULES REGARDING DRAW CHECKS. You may not use DrawChecks to make payments on your Credit Account, You agree thet the Oraw Chacks we supply you with@re our property and that you will return them to us at our request.We are not responsible if anyone refuses to honor a Draw Check. We may honor postdated DrawChecks and are not responsible if we do so. We are not required to certify Draw Checks.You may ask us to "stop payment” on a Draw Check. If you da, you must tell us the name of thepayee, the amount, date and number of the Draw Check, and who signed it. We are not bound by a stoppayment order unless we have a reasonable opportunity to act on it and will not be liable for failing to stoppayment if we used ordinary care, You agree to indemnify us and will payNYCA, Pagersail costs and expenses we incur (including reasonable attorney's fees) as a result of honoring your stoppayment order. This indemnity will survive any termination of this Agreement. You agree to pay a fee of$ 15.00 for each request to "stop payment” on a Draw Check, as allowed by applicable law.25. LEGAL PURPOSES. You may not use any Advances for purposes that violate anyapplicable federal, state or local laws or regulations.26. APPLICABLE LAW, Except to the extent that federal law shall be controlling, yourrights, our rights, and the terms of this Agreement shall ba governed by New York law.27, JOINT ACCOUNT. On a joint account each of you may use the Credit Account, but thetotal unpaid balance may not exceed the Credit Limit, Each of you is individually responsible for paymentof the entire balance regardless of who actually requested the Advance. Each of you has the right, uponproper written notice to us, to have the Credit Limit reduced or to suspend the privilege of obtaining newAdvances. We have five business days after receipt of your request to take action on it. A request tosuspend the privilege of obtaining Advances, even if made only by one of you, will be effective against allof you who are eligible to obtain Advances under this Agreement. In order to restore the Credit Account,‘we may require financial information from all of you and may refuse to restore the Credit Account if you nofonger qualify under the criteria then in affect for new Credit Accounts. Any request for reinstatementwould have to be made by all of you, despite the fact that only one of you may have requested thesuspension of Advances. You agree to indemnify us and hold us harmless, and will pay all costs andexpenses we incur {including reasonable attorney's fees) as result of honoring the request made by any‘one of you under this provision.28. TAX CONSEQUENCES. You acknow'edge that we have given you no assurancesthat the interest paid on your Credit Account is tax deductible. You are urged to consult your own taxadvisor concerning the deductibility of Interest and other costs charged in connection with this CreditAccount, The Intemal Revenue Service requires you lo furnish to us, the interest recipient, your lax payeridentification number ("TIN") in order to verify any deduction for mortgage interest. Your failure ta provideus with your TIN may subject you to a $50 penalty imposed by the Inteme! Revenue Service.YOUR BILLING RIGHTSKeep this Notice For Future Use‘This notice contains Important information about your rights and our responsibilities under the FairCredit Billing Act. :Notify Us In Case of Errors of Questions About Your Bill. If you think your bill is wrong, or if youneed more information about a transaction on your bill, write us on a separate sheet at the address listedon your statement. Write ta us as soon as possible. We must hear from you no later than 60 days after wesent you the first bill on which the errar or problem appeared. You can telephone us, but doing so will notpreserve your rights.In your letter, give us the following information:-Your name and account number.-The dollar amount of the suspected error.-Describe the error and explain, if you can, why you beliave there Is an error.If you need more information, describe the item you are not sure about.Your_Rights_end Our Responsibilities After We Receive Your Written Notice, We mustacknowledge your letter within 30 days, unless we have corrected the error by then. Within 90 days, wemust either correct tha error or explain why we believe the bill was correct.After we receive your letter, we cannot try to collact any amount you question, or report you asdelinquent. We can continue to bil! you for the amount you question, including finance charges, and wecan apply any unpaid amount against your Credit Limit. You do not have to pay any questioned amountwhile we are investigating, but you are still obligated to pay the parts of your bill that are not in question.If we find that we made a mistake on your bill, you will not‘have to pay any finance chargesrelated to the mistaken amount. If we didn’t make a mistake, you may have to pay finance charges, andyou will have to make up any missed payments on the questioned amount. In either case, we will sendyou a statement of the amount you owe and the date that it is due,NYCA Page 7 AB.If you fail to pay the amount that we think you owe, we may report you as delinquent. However, ifour explanation does not satisfy you and you write to us within 10 days telling us that you sti! refuse topay, we must tell anyone we report you to that you have a question on your bill. And, we must tell you thename of anyone we reported you to. We must tell anyone we report you to that the matier has beensettled between us when it finally is.If we don’t follow these rules, we can’t collect the first $50 of the questioned amount, even if yourbill was correct.DEFAULT IN THE PAYMENT OF THIS LOAN AGREEMENT MAY RESULT IN THE LOSS OF THEPROPERTY SECURING THE LOAN. UNDER FEDERAL LAW, YOU MAY HAVE THE RIGHT TOCANCEL THIS AGREEMENT. IF YOU HAVE THIS RIGHT, THE CREDITOR IS REQUIRED TOPROVIDE YOU WITH A SEPARATE NOTICE SPECIFYING THE CIRc*msTANCES AND TIMEUNDER WHICH YOU CAN EXERCISE THIS RIGHT.You agree to the terms and conditions contained in this Agreement and you acknowledgereceipt of a completed copy of this Agreement and the Informational and disclosure literaturetitted "Guidelines to Home Equity Lines”WITNESS: ACCEPTED AND AGREED.TO:Borrower -ABRAHAM LANDAUBorrower -Borrower ~Dated: S72. xAccount No.: 9893022815Ref. Na.: 020601532080NYCA Pages’CITY REGISTER RECORDING AND ENDORsem*nT PAGECounty of > KINGSTHIS PAGE FORMS PART OF THE INSTRUMENTTOTAL NUMBER OFPAGES IN DOCUMENTINCLUDING THIS PAGE >Block 53447 Lots— only Hf entire lot > 1402ee =.remises > 268 SOUTH OTH STREET UNIT SPHONGAN CHASE BANK C/O CHASE MANHATTAN HORTOAGE CORF,#iR,1 BROOKLYN, MY 235212Te/Agent Company Ham 1300 N, 19TH STREET - ATTNi DOCUMENT CONTROL OTH “HETITLERERY, ENC,‘Title Company Number - CHD-2265420 WONAOE, LA 732011 > ABRAHAM LANDAU.146 SOUTH 9TH STREET UNIT #1R, BROOKLYN, NY 112132 >C/O Chase Manhattan Mo 250 West Huron Rd. POB 93764, Cleveland, OH 44113Additional Party 2 > eeCheck this box [] If there are more than 2 of ether Party Check this tox [7] if there are mutipte blocksytors & attach an addendumURINE XT TTT TT)RECORDED IN aot OFFICE OF THE CIT REGISTER %ona Po OF NEW YORK;S Som orang,12 ay: WEL 513 | 1063ret * 4 ey <IvPa Rn qiaseRecord and Relum AddrBankRECORDING ORIGINALRoference # 020601532000Servicing # 9803022818‘Atin: Document Control 6th FL. - HENEW YORKGREDIT LINE MORTGAGE(Open End)WORDS USED OFTEN IN THIS DOCUMENTTA) "Mortgage" means this cocumant, which le aed = y.31,.2002 .{B) "Borrowers" means:ABRAHAM LANDAU‘who shall alto be the person{s) who signs this Morigage. Borawer wil sometimes be referred (o aa T and .‘thal be deemed to be plural if more than one parton signe this Mortgage. Borrowers address Is:106 LEE AVE , GROOKLYN, NY 11211(©) Lender" maana deMorgan Ghase Bank —————_—_—__- Lender is @ corporation organized and -‘existing under the laws of New York. Lender's address le: 801N ORIGINAL,”(ne Chase Squan 5-4, Rochastar, New York 14843{0} — “Agreement™ means the Home Equity Line of Crecii Agreement dated the same dale aa this Morigage,‘Under ine Agreement, | may borrow up te & craxirum principal amount ofDotiarswa 3 B3,609,00____) subjact to ihe terms of the Agresment. The emount | awe may fuduate trom ,Une to lime, Lancer and | contemplate, as provided In the Agreement, that there wil be @ series ofedvancea, paymants and resdvences during the period of me when I can “deaw" againa: the ne of credit.‘The aggregate amount of principal avaliable to Borrower will naver axcead the maximuen principal amount!shown above, | ware hal this Mortgage conlinve to secure all sume advanced under the tans of heAgreement Including, without Imaaton, any ayers het ere advanced by Lender whalhar or not al Ihe tinethe suims are sdvanced there is any principal sum outstanding under the Agreement, The parties to theAgreement Intend thal Wis Mortgage shall secure unpaid balsnces, end all other emaunis due to Lendorunder this Mortgage end under the Agrsem*nt, inciding any exienelone, renewale or modHoations of theAgrearnsnt, For example, whould the Agreement be amanded ta extend tha period during which ineBorrower can oblain advances, or @-timdar modification, this Mortgage wil continue to secure theIndedtednas owed under the Agreement.(E) "Property" means the property that ie described below in the sacilon titled “Descriotion of lie Property.”{F) ‘Sums Secured’ means ine smounts described below In the paragraph Wed “Borrowers Trenster toLender of Rights in the Property." The Sums Secured by this Morigege will not exceed the amounts owed° under tha Agreement togather vith sny expensesicost Incurred by Lender dus to Bonowara celtull ta‘ freeing Borrower's obligallons under the Mortgage which qualify as Incidental Amounts,(a) “incidentel Amounis® Inciude arnounts permiled under Par 648 of the New York Tax Regulationsdisbursem*nts made to protect the securlly of the Morigege end the value of the Property, with Iniarant onsuch disburwemanis at tne perfodic rato sisted in the Agrmement, including for example, where thepayttants represent:Seswaitapherene TT4) expenses incurred by Lendar on btulf of Borrower in {he event of Botrower'a fsture to periorm &° cavenant or obigalion relating lo meiniaining the Praperty or preserving lis value end protectingLender's lian under thie Morigage that would reeuit in an event of
Case Info
Judge
Dear-For.Resolution Pt 1Track Judge’s New Case
Case No.
(Subscribe to View)
Document Filed Date
June 09, 2014
Case Filing Date
June 09, 2014
County
Category
Foreclosure (residential mortgage)
Status
Disposed
Parties
Abraham LandauDefendant
BOARD OF MANAGERS OF THE 46 SOUTH 9TH STREET CONDOMINIUMDefendant
JOHN DOES AND JANE DOESDefendant
JPMorgan Chase BankNon Party
JPMORGAN CHASE BANK, NATIONAL ASSOCIATIONPlaintiff
MODICA, TYNE REGINAAttorney for the Plaintiff
MOLLOY, EVAN JOSEPHAttorney for the Plaintiff
NEW YORK CITY ENVIRONMENTAL CONTROL BOARDDefendant
NEW YORK CITY PARKING VIOLATIONS BUREAUDefendant
NEW YORK CITY TRANSIT ADJUDICATION BUREAUDefendant
SPINELLI, LEONARD SALVATOREAttorney for the Plaintiff
VAUGHN, ANTHONY WAttorney for the Plaintiff
KELLY POOLEAttorney
LIJUE PHILIPAttorney
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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
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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)
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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.
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