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1 PETER J. SALMON (SBN 174386)
DONNA Y. OH (SBN 278911)
2 ALDRIDGE PITE, LLP
4375 JUTLAND DRIVE, SUITE 200 E-FILED
3 P.O. BOX 17935 6/20/2019 9:32 AM
SAN DIEGO, CA 92177-0935 Superior Court of California
4 TELEPHONE: County of Fresno
FACSIMILE: (619) 590-1385
By: I. Herrera, Deputy
5 E-Mail: doh@aldridgepite.com
6 Attorneys for Plaintiff WELLS FARGO BANK, N.A.
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF FRESNO - B. F. SISK COURTHOUSE
10 WELLS FARGO BANK, N.A., Case No. 18CECG03471
11 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
12 v. APPLICATION FOR DEFAULT
JUDGMENT AGAINST DEFENDANTS
13 MARIA NEVIN, an Individual; LAWRENCE
PRICE, an Individual; DOES 1-20, Inclusive, Complaint Filed: September 19, 2018
14
Defendants,
15
16 Plaintiff WELLS FARGO BANK, N.A. hereby submits the following memorandum of
17 points and authorities in support of its Application for Default Judgment against the Defendants
18 MARIA NEVIN, an Individual; and LAWRENCE PRICE, an Individual.
19 /././
20 /././
21 /././
22 /././
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28 /././
MEMORANDUM OF POINTS AND AUTHORITIES
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION AND SUMMARY ................................................................................1
4 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY...........................................1
5 III. LEGAL STANDARD ..........................................................................................................3
6 IV. ARGUMENT .......................................................................................................................4
7 A. REFORMATION SHOULD BE GRANTED IN FAVOR OF THE PLAINTIFF TO
CONFORM THE DEED OF TRUST TO THE INTENT OF THE PARTIES ..........................4
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B. THE COURT HAS EQUITABLE POWER TO GRANT DECLARATORY RELIEF TO
9 MAKE A BINDING DETERMINATION OF THE PARTIES’ RIGHTS AND DUTIES
UNDER A WRITTEN INSTRUMENT .............................................................................5
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V. CONCLUSION ....................................................................................................................6
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MEMORANDUM OF POINTS AND AUTHORITIES
1 Table of Authorities
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MEMORANDUM OF POINTS AND AUTHORITIES
1 I. INTRODUCTION AND SUMMARY
2 Plaintiff is the beneficiary of a Deed of Trust encumbering a real property located in
3 Fresno County, seeking the court’s judgment for reformation of the Deed of Trust to correct the
4 error in the legal description of the encumbered property. Plaintiff further seeks the court’s
5 declaration declaring that the Deed of Trust, as reformed, is a valid and enforceable lien
6 instrument encumbering the property and imparting constructive notice of Plaintiff’s interest, as
7 of the date of its original recordation.
8 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY
9 The real property at issue in this Complaint is commonly known as 732 Filbert Ave.,
10 Clovis, California, 93611, County of Fresno (the “Subject Property”), assigned the Assessor’s
11 Parcel Number 551-071-23, and is correctly and currently legally described as follows:
12 LOT 23 OF TRACT NO. 4130, THE NEW COLONY 1, IN THE CITY OF
CLOVIS, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING
13 TO THE MAP THEREOF, RECORDED IN BOOK 50, PAGES 95 AND 96 OF
PLATS, FRESNO COUNTY RECORDS. (“Correct Legal Description”) (See
14 concurrently filed Declaration of Robert Williams [“Williams Decl.”], ¶6.)
15 The Assessor’s Map for The New Colony I, Tract No. 4130, is filed in Book 551 of Maps,
16 Page 7, in the Office of the County Assessor of the County of Fresno (“Assessor Map”).
17 (Williams Decl., ¶7; Request for Judicial Notice [“RJN”], Ex. A.)
18 On April 10, 2015, Joel C. Eubank and Sherri L. Eubank, husband and wife, as
19 Community Property, conveyed title to Maria Nevin, a single woman, and Lawrence price, a
20 single man, as Joint Tenants, by a Grant Deed, which recorded on April 20, 2015, in the Official
21 Records of Fresno County, California, as Instrument No. 2015-0047008-00. (Williams Decl., ¶8;
22 RJN, Ex. B.)
23 The Grant Deed legally describes the Subject Property as follows:
24 LOR [sic] 23 OF TRACT NO. 4130, THE COLONY 1, IN THE CITY OF
CLOVIS, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING
25 TO THE MAP THEREOF, RECORDED IN BOOK 50, PAGES 95 AND 96 OF
PLATS, FRESNO COUNTY RECORDS. (Williams Decl., ¶9.)
26
27 The legal description referenced in the Grant Deed contains an error, in that it misspells
28 “Lot 23” as “Lor 23” and references “The Colony 1”, which should read “The New Colony 1” as
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MEMORANDUM OF POINTS AND AUTHORITIES
1 reflected under the Assessor Map (RJN, Ex. A.). (Williams Decl., ¶10.)
2 On April 14, 2015, Maria Nevin and Lawrence Price made, executed, and delivered to
3 Wells Fargo Bank, N.A. a note (the “Note”) evidencing a loan in the original principal amount of
4 $265,500.00 (the “Subject Loan”). (Williams Decl., ¶11.)
5 To secure the indebtedness under the Note, on or about April 14, 2015, Maria Nevin and
6 Lawrence Price made, executed, and delivered to Wells Fargo Bank, N.A. a Deed of Trust
7 (“Deed of Trust”), which recorded on April 20, 2015, in the Official Records of Fresno County,
8 California, as Instrument No. 2015-0047009-00 (the “Deed of Trust”). (Williams Decl., ¶12;
9 RJN, Ex. C.)
10 The Deed of Trust legally describes the Subject Property as follows:
11 LOR 23 OF TRACT NO. 4130, THE COLONY 1, IN THE CITY OF CLOVIS,
COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE
12 MAP THEREOF, RECORDED IN BOOK 50, PAGES 95 AND 96 OF PLATS,
FRESNO COUNTY RECORDS. (Williams Decl., ¶13.)
13
14 The legal description referenced in the Deed of Trust, in like manner as the Grant Deed,
15 contains an error, in that it misspells “Lot 23” as “Lor 23” and references “The Colony 1”, which
16 should read “The New Colony 1” as reflected under the Assessor Map (RJN, Ex. A.). (Williams
17 Decl., ¶14; See concurrently filed Declaration of Donna Y. Oh [“Oh Decl.”], ¶8.)
18 The Deed of trust nevertheless describes the Subject Property with the correct street
19 address, the assessor’s parcel number, and the county in which itis situated. (Williams Decl.,
20 ¶15.)
21 On February 24, 2018, Joel C. Eubank and Sherri L. Eubank, executed a Corrected Grant
22 Deed, which references the Correct Legal Description, which recorded on March 13, 2018, in the
23 Official Records of Fresno County, as Instrument No. 2018-0029878 (“Corrected Grant Deed”).
24 (Williams Decl., ¶16; RJN, Ex. D.)
25 Based on information and belief, in light of the Assessor Map (RJN, Ex. A.) and the
26 Correct Legal Description referenced in the Corrected Grant Deed (RJN, Ex. D.), at the time the
27 Borrowers, Maria Nevin and Lawrence Price, obtained the Subject Loan, and at the time the
28 Deed of Trust (RJN, Ex. C.) was executed, it was the mutual intent of Plaintiff and Maria Nevin
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MEMORANDUM OF POINTS AND AUTHORITIES
1 and Lawrence Price that the Deed of Trust would secure repayment of the Subject Loan by
2 encumbering the Subject Property. However, because of the above described errors in the legal
3 description in the Deed of Trust, a judicial action is necessary to confirm that the Deed of Trust
4 properly encumbers the Subject Property and only the Subject Property. (Williams Decl., ¶17.)
5 III. LEGAL STANDARD
6 Plaintiff seeks, and is entitled to, a Default Court Judgment pursuant to Code Civ. Proc.,
7 §585, which allows for a Default Court Judgment when a party has been served; failed to answer
8 or file alternative pleadings; and default has been entered. Section 585 states, in relevant parts:
9 Judgment may be had, if the defendant fails to answer the complaint, as follows:
In all actions where the service of the summons was by publication, upon the
10 expiration of the time for answering, and upon proof of the publication and that
no answer, demurrer, notice of motion to strike of the character specified in
11 subdivision (f), notice of motion to transfer pursuant to Section 396b, notice of
motion to dismiss…, notice of motion to quash service of summons or to stay or
12 dismiss the action…or notice of the filing of a petition for writ of mandate…has
been filed, the clerk, upon written application of the plaintiff, shall enter the
13 default of the defendant. The plaintiff thereafter may apply to the court for the
relief demanded in the complaint. (Code Civ. Proc, §585(c).)
14
15 Thus, pursuant to the instant application, Plaintiff is entitled to a default court judgment
16 against the defaulted Defendants. Defendants MARIA NEVIN, an Individual; and LAWRENCE
17 PRICE, an Individual, were each served with the summons and complaint by publication, and
18 failed to respond thereto and their defaults were taken on March 21, 2019. Therefore, Plaintiff
19 is entitled to default court judgment against these Defendants as herein set forth.
20 Further, Plaintiff has complied with the additional requirements to seek a default court
21 judgment set forth in Cal. Rules of Court, rule §3.1800(a), which states, “A party seeking a
22 default judgment on declarations must use mandatory Request for Entry of Default (Application
23 to Enter Default) (Form CIV-100).” A form CIV-100, seeking entry of a Court Judgment
24 against the Defendants is filed simultaneously herewith.
25 “Upon the failure of the defendant to answer the complaint within the time allowed by
26 law, and upon the entry of default, in the absence of fraud, the right of the defendant to
27 participate in the litigation is terminated….” (Forbes v. Cameron Petroleums, Inc. (1978) 83
28 CA3d 257, 262-263.) Furthermore, the defaults generally admit, so far as the defaulting party is
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MEMORANDUM OF POINTS AND AUTHORITIES
1 concerned, the absolute truth of all aptly pleaded allegations of the complaint. (Bristol
2 Convalescent Hosp. v. Stone (1968) 258 CA2d 848, 859.) The default of defendant in an
3 ordinary action admits, so far as such defaulting defendant is concerned, the absolute verity of all
4 the allegations of the complaint giving rise to liability. (Id.) By permitting default to be entered,
5 defendant confesses truth of all material allegations in complaint. (Fitzgerald v. Herzer (1947)
6 78 Cal.App.2d 127, 131.) Also, except for the mailing requirements relating to the request to
7 enter the default itself (see Code Civ. Proc., §587.), once the default has been duly entered, the
8 defendant is not entitled to service of any notices or papers filed subsequently. (Code Civ.
9 Proc., §1010; Taliaferro v. Bekin Realty Co. (1959) 176 Cal.App.2d 240 [There is no
10 requirement that notice be given of an application for default judgment].) Therefore,
11 Defendants having failed to answer to the complaint, and defaults having been entered against
12 these Defendants, their rights to further participate in this action have been terminated, and they
13 generally admit to the truth of the allegations of the complaint.
14 IV. ARGUMENT
15 A. REFORMATION SHOULD BE GRANTED IN FAVOR OF THE PLAINTIFF TO CONFORM THE
DEED OF TRUST TO THE INTENT OF THE PARTIES
16
Cal. Civ. Code, §3399 provides:
17
When, through fraud or a mutual mistake of the parties, or a mistake of one party,
18 which the other at the time knew or suspected, a written contract does not truly
express the intention of the parties, it may be revised on the application of a party
19 aggrieved, so as to express that intention, so far as it can be done without
prejudice to rights acquired by third persons, in good faith and for value.
20
21 The court in equity has power to do full justice by reforming a deed of trust and all
22 subsequent deeds which perpetuate the error. (Hanlon v. Western Loan & Bldg. Co. (1941) 46
23 Cal.App.2d 580, 601.)
24 On April 14, 2015, Maria Nevin and Lawrence Price executed the Deed of Trust, when in
25 fact the Deed of Trust contained errors in the legal description of the Subject Property referenced
26 therein. On that basis, the Deed of Trust was executed and recorded with an erroneous legal
27 description referenced therein by the mutual mistake of the parties.
28 At the time Plaintiff made the Subject Loan to Maria Nevin and Lawrence Price, it was
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MEMORANDUM OF POINTS AND AUTHORITIES
1 their mutual intent that the Deed of Trust would secure repayment of the Subject Loan by
2 encumbering the Subject Property. (See RJN, Ex. C., at Page 2) However, because of the error
3 made in the legal description in the Deed of Trust, which was the result of the mutual mistake of
4 the parties therein, the Deed of Trust may not correctly encumber the Subject Property, and
5 therefore, the Deed of Trust is not truly expressing the intention of the parties.
6 As a result of the errors made in the legal description in the Deed of Trust, Plaintiff’s
7 interest in the Subject Property, which was pledged as security for the Subject Loan, is in
8 jeopardy and subject to dispute.
9 Despite the errors made in the legal description in the Deed of Trust, the Deed of Trust
10 correctly describes the Subject Property with the street address, assessor’s parcel number, and
11 references the county in which the Subject Property is situated. Therefore, Plaintiff is informed
12 and believes, and on that basis alleges that there are no third parties whose rights would be
13 prejudiced by the reformation of the Deed of Trust as requested herein. Accordingly, the Deed of
14 Trust can be reformed as requested herein without prejudice to any purported rights potentially
15 acquired by third persons, in good faith and for value.
16 Plaintiff therefore seeks to reform the Deed of Trust, as of April 20, 2015, the date the
17 Deed of Trust was originally recorded, to reflect the Correct Legal Description of the Subject
18 Property as set forth in Paragraph 6 above, in order to conform with the parties’ intentions.
19 B. THE COURT HAS EQUITABLE POWER TO GRANT DECLARATORY RELIEF TO MAKE A
BINDING DETERMINATION OF THE PARTIES’ RIGHTS AND DUTIES UNDER A WRITTEN
20 INSTRUMENT
21 California Code of Civil Procedure section 1060 states in pertinent part:
22 Any person interested under a written instrument…who desires a declaration of
his or her rights or duties with respect to another, or in respect to, in, over or upon
23 property . . . may, in cases of actual controversy relating to the legal rights and
duties of the respective parties, bring an original action or cross-complaint in the
24 superior court for a declaration of his or her rights and duties in the premises,
including a determination of any question of construction or validity arising under
25 the instrument or contract. He or she may ask for a declaration of rights or
duties, either alone or with other relief; and the court may make a binding
26 declaration of these rights or duties, whether or not further relief is or could be
claimed at the time. The declaration may be either affirmative or negative in
27 form and effect, and the declaration shall have the force of a final judgment….
(Code Civ. Proc. § 1060.)
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MEMORANDUM OF POINTS AND AUTHORITIES
1 Plaintiff contends that it is entitled to reform the Deed of Trust, a written instrument that
2 Plaintiff is interested under, to accurately reflect the Correct Legal Description of the Subject
3 Property in accordance with the intentions of Plaintiff and the trustors under the Deed of Trust,
4 Maria Nevin and Lawrence Price. Plaintiff is informed and believes and thereon alleges that the
5 Defendants dispute these contentions. As such, an actual controversy exists and a judicial
6 declaration is necessary and appropriate at this time to determine the parties’ interests and rights
7 in the Subject Property.
8 Plaintiff therefore seeks a judicial declaration that the Deed of Trust, as reformed to
9 reflect the Correct Legal Description, is a valid security instrument, securing the obligations
10 under the Note against the Subject Property as of April 20, 2015, the date the Deed of Trust was
11 originally recorded. Such a determination is necessary and appropriate at this time to resolve
12 any disputes which have arisen between the parties, to correct the public records before third
13 persons, without knowledge of the interest of Plaintiff under the Deed of Trust rely thereon to
14 their detriment, and to avoid unjust enrichment which may result if Defendants, or any of them
15 should transfer to encumber their interest in the Subject Property without satisfying the
16 obligations owed to Plaintiff.
17 V. CONCLUSION
18 Based on the foregoing, Plaintiff requests the Court to exercise its equitable powers to
19 grant the aforementioned reliefs in favor of Plaintiff.
20
21 Dated: June 14, 2019 ALDRIDGE PITE, LLP
22
23 DONNA Y. OH
Attorneys for Plaintiff WELLS FARGO BANK,
24 N.A.
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MEMORANDUM OF POINTS AND AUTHORITIES
I
1 Wells Fargo v. Nevin, et al .
Superior Court of California County of Fresno - B . F. Sisk Courthouse
2 Case No( s ). 18CECG03471
3 DECLARATION OF SERVICE
4 I, the undersigned, declare: I am, and was at the time of service of the papers herein
referred to, over the age of 18 years, and not a party to this action . My business address is 4375
5 Jutland Drive, Suite 200, P.O . Box 17935, San Diego, CA 92177-0935.
6 On June 20, 2019, 1 served the following document(s):
7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AGAINST DEFENDANTS
8
on the parties in this action addressed as follows:
9
Maria Nevin Lawrence Price
10 732 Filbert Ave. 732 Filbert Ave.
Clovis. CA 93611 Clovis, CA 93611
11
X BY MAIL: I placed a true copy in a sealed envelope addressed as indicated above. I am
12 readily familiar with the firm 's practice of collection and processing correspondence for
mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary
13 course of business. I am aware that on motion of party served , service is presumed
invalid if postal cancellation date or postage meter date is more than one day after date of
14 deposit for mailing in affidavit.
15 BY CERTIFIED MAIL: I placed a true copy in a sealed envelope addressed as
indicated above via certified mail , return receipt requested.
16
BY FACSIMILE: I personally sent to the addressee's facsimile number a true copy of
17 the above-described document(s). I verified transmission with a confirmation printed out
by the facsimile machine used. Thereafter, I placed a true copy in a sealed envelope
18 addressed and mailed as indicated above.
19 BY FEDERAL EXPRESS: I placed a true copy in a sealed Federal Express envelope
addressed as indicated above . I am familiar with the firm s
’ practice of collection and
20 processing correspondence for Federal Express delivery and that the documents served
are deposited with Federal Express this date for overnight delivery.
21
I declare under penalty of peijury under the laws of the State of California that the
22 foregoing is true and correct
23 Executed this 20th day of June, 2019, at San Diego, California.
24
25 4. .AA.
E. PENALOZA
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DECLARATION OF SERVICE
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1 PETER J. SALMON (SBN 174386) DONNA Y. OH (SBN 278911) 2 ALDRIDGE PITE, LLP 4375 JUTLAND DRIVE, SUITE 200 E-FILED 3 P.O. BOX 17935 6/20/2019 9:32 AM SAN DIEGO, CA 92177-0935 Superior Court of California 4 TELEPHONE: County of Fresno FACSIMILE: (619) 590-1385 By: I. Herrera, Deputy 5 E-Mail: doh@aldridgepite.com 6 Attorneys for Plaintiff WELLS FARGO BANK, N.A. 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF FRESNO - B. F. SISK COURTHOUSE 10 WELLS FARGO BANK, N.A., Case No. 18CECG03471 11 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 12 v. APPLICATION FOR DEFAULT JUDGMENT AGAINST DEFENDANTS 13 MARIA NEVIN, an Individual; LAWRENCE PRICE, an Individual; DOES 1-20, Inclusive, Complaint Filed: September 19, 2018 14 Defendants, 15 16 Plaintiff WELLS FARGO BANK, N.A. hereby submits the following memorandum of 17 points and authorities in support of its Application for Default Judgment against the Defendants 18 MARIA NEVIN, an Individual; and LAWRENCE PRICE, an Individual. 19 /././ 20 /././ 21 /././ 22 /././ 23 /././ 24 /././ 25 /././ 26 /././ 27 /././ 28 /././ MEMORANDUM OF POINTS AND AUTHORITIES 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION AND SUMMARY ................................................................................1 4 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY...........................................1 5 III. LEGAL STANDARD ..........................................................................................................3 6 IV. ARGUMENT .......................................................................................................................4 7 A. REFORMATION SHOULD BE GRANTED IN FAVOR OF THE PLAINTIFF TO CONFORM THE DEED OF TRUST TO THE INTENT OF THE PARTIES ..........................4 8 B. THE COURT HAS EQUITABLE POWER TO GRANT DECLARATORY RELIEF TO 9 MAKE A BINDING DETERMINATION OF THE PARTIES’ RIGHTS AND DUTIES UNDER A WRITTEN INSTRUMENT .............................................................................5 10 V. CONCLUSION ....................................................................................................................6 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i MEMORANDUM OF POINTS AND AUTHORITIES 1 Table of Authorities 2 Page(s) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii MEMORANDUM OF POINTS AND AUTHORITIES 1 I. INTRODUCTION AND SUMMARY 2 Plaintiff is the beneficiary of a Deed of Trust encumbering a real property located in 3 Fresno County, seeking the court’s judgment for reformation of the Deed of Trust to correct the 4 error in the legal description of the encumbered property. Plaintiff further seeks the court’s 5 declaration declaring that the Deed of Trust, as reformed, is a valid and enforceable lien 6 instrument encumbering the property and imparting constructive notice of Plaintiff’s interest, as 7 of the date of its original recordation. 8 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY 9 The real property at issue in this Complaint is commonly known as 732 Filbert Ave., 10 Clovis, California, 93611, County of Fresno (the “Subject Property”), assigned the Assessor’s 11 Parcel Number 551-071-23, and is correctly and currently legally described as follows: 12 LOT 23 OF TRACT NO. 4130, THE NEW COLONY 1, IN THE CITY OF CLOVIS, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING 13 TO THE MAP THEREOF, RECORDED IN BOOK 50, PAGES 95 AND 96 OF PLATS, FRESNO COUNTY RECORDS. (“Correct Legal Description”) (See 14 concurrently filed Declaration of Robert Williams [“Williams Decl.”], ¶6.) 15 The Assessor’s Map for The New Colony I, Tract No. 4130, is filed in Book 551 of Maps, 16 Page 7, in the Office of the County Assessor of the County of Fresno (“Assessor Map”). 17 (Williams Decl., ¶7; Request for Judicial Notice [“RJN”], Ex. A.) 18 On April 10, 2015, Joel C. Eubank and Sherri L. Eubank, husband and wife, as 19 Community Property, conveyed title to Maria Nevin, a single woman, and Lawrence price, a 20 single man, as Joint Tenants, by a Grant Deed, which recorded on April 20, 2015, in the Official 21 Records of Fresno County, California, as Instrument No. 2015-0047008-00. (Williams Decl., ¶8; 22 RJN, Ex. B.) 23 The Grant Deed legally describes the Subject Property as follows: 24 LOR [sic] 23 OF TRACT NO. 4130, THE COLONY 1, IN THE CITY OF CLOVIS, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING 25 TO THE MAP THEREOF, RECORDED IN BOOK 50, PAGES 95 AND 96 OF PLATS, FRESNO COUNTY RECORDS. (Williams Decl., ¶9.) 26 27 The legal description referenced in the Grant Deed contains an error, in that it misspells 28 “Lot 23” as “Lor 23” and references “The Colony 1”, which should read “The New Colony 1” as -1- MEMORANDUM OF POINTS AND AUTHORITIES 1 reflected under the Assessor Map (RJN, Ex. A.). (Williams Decl., ¶10.) 2 On April 14, 2015, Maria Nevin and Lawrence Price made, executed, and delivered to 3 Wells Fargo Bank, N.A. a note (the “Note”) evidencing a loan in the original principal amount of 4 $265,500.00 (the “Subject Loan”). (Williams Decl., ¶11.) 5 To secure the indebtedness under the Note, on or about April 14, 2015, Maria Nevin and 6 Lawrence Price made, executed, and delivered to Wells Fargo Bank, N.A. a Deed of Trust 7 (“Deed of Trust”), which recorded on April 20, 2015, in the Official Records of Fresno County, 8 California, as Instrument No. 2015-0047009-00 (the “Deed of Trust”). (Williams Decl., ¶12; 9 RJN, Ex. C.) 10 The Deed of Trust legally describes the Subject Property as follows: 11 LOR 23 OF TRACT NO. 4130, THE COLONY 1, IN THE CITY OF CLOVIS, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE 12 MAP THEREOF, RECORDED IN BOOK 50, PAGES 95 AND 96 OF PLATS, FRESNO COUNTY RECORDS. (Williams Decl., ¶13.) 13 14 The legal description referenced in the Deed of Trust, in like manner as the Grant Deed, 15 contains an error, in that it misspells “Lot 23” as “Lor 23” and references “The Colony 1”, which 16 should read “The New Colony 1” as reflected under the Assessor Map (RJN, Ex. A.). (Williams 17 Decl., ¶14; See concurrently filed Declaration of Donna Y. Oh [“Oh Decl.”], ¶8.) 18 The Deed of trust nevertheless describes the Subject Property with the correct street 19 address, the assessor’s parcel number, and the county in which itis situated. (Williams Decl., 20 ¶15.) 21 On February 24, 2018, Joel C. Eubank and Sherri L. Eubank, executed a Corrected Grant 22 Deed, which references the Correct Legal Description, which recorded on March 13, 2018, in the 23 Official Records of Fresno County, as Instrument No. 2018-0029878 (“Corrected Grant Deed”). 24 (Williams Decl., ¶16; RJN, Ex. D.) 25 Based on information and belief, in light of the Assessor Map (RJN, Ex. A.) and the 26 Correct Legal Description referenced in the Corrected Grant Deed (RJN, Ex. D.), at the time the 27 Borrowers, Maria Nevin and Lawrence Price, obtained the Subject Loan, and at the time the 28 Deed of Trust (RJN, Ex. C.) was executed, it was the mutual intent of Plaintiff and Maria Nevin -2- MEMORANDUM OF POINTS AND AUTHORITIES 1 and Lawrence Price that the Deed of Trust would secure repayment of the Subject Loan by 2 encumbering the Subject Property. However, because of the above described errors in the legal 3 description in the Deed of Trust, a judicial action is necessary to confirm that the Deed of Trust 4 properly encumbers the Subject Property and only the Subject Property. (Williams Decl., ¶17.) 5 III. LEGAL STANDARD 6 Plaintiff seeks, and is entitled to, a Default Court Judgment pursuant to Code Civ. Proc., 7 §585, which allows for a Default Court Judgment when a party has been served; failed to answer 8 or file alternative pleadings; and default has been entered. Section 585 states, in relevant parts: 9 Judgment may be had, if the defendant fails to answer the complaint, as follows: In all actions where the service of the summons was by publication, upon the 10 expiration of the time for answering, and upon proof of the publication and that no answer, demurrer, notice of motion to strike of the character specified in 11 subdivision (f), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss…, notice of motion to quash service of summons or to stay or 12 dismiss the action…or notice of the filing of a petition for writ of mandate…has been filed, the clerk, upon written application of the plaintiff, shall enter the 13 default of the defendant. The plaintiff thereafter may apply to the court for the relief demanded in the complaint. (Code Civ. Proc, §585(c).) 14 15 Thus, pursuant to the instant application, Plaintiff is entitled to a default court judgment 16 against the defaulted Defendants. Defendants MARIA NEVIN, an Individual; and LAWRENCE 17 PRICE, an Individual, were each served with the summons and complaint by publication, and 18 failed to respond thereto and their defaults were taken on March 21, 2019. Therefore, Plaintiff 19 is entitled to default court judgment against these Defendants as herein set forth. 20 Further, Plaintiff has complied with the additional requirements to seek a default court 21 judgment set forth in Cal. Rules of Court, rule §3.1800(a), which states, “A party seeking a 22 default judgment on declarations must use mandatory Request for Entry of Default (Application 23 to Enter Default) (Form CIV-100).” A form CIV-100, seeking entry of a Court Judgment 24 against the Defendants is filed simultaneously herewith. 25 “Upon the failure of the defendant to answer the complaint within the time allowed by 26 law, and upon the entry of default, in the absence of fraud, the right of the defendant to 27 participate in the litigation is terminated….” (Forbes v. Cameron Petroleums, Inc. (1978) 83 28 CA3d 257, 262-263.) Furthermore, the defaults generally admit, so far as the defaulting party is -3- MEMORANDUM OF POINTS AND AUTHORITIES 1 concerned, the absolute truth of all aptly pleaded allegations of the complaint. (Bristol 2 Convalescent Hosp. v. Stone (1968) 258 CA2d 848, 859.) The default of defendant in an 3 ordinary action admits, so far as such defaulting defendant is concerned, the absolute verity of all 4 the allegations of the complaint giving rise to liability. (Id.) By permitting default to be entered, 5 defendant confesses truth of all material allegations in complaint. (Fitzgerald v. Herzer (1947) 6 78 Cal.App.2d 127, 131.) Also, except for the mailing requirements relating to the request to 7 enter the default itself (see Code Civ. Proc., §587.), once the default has been duly entered, the 8 defendant is not entitled to service of any notices or papers filed subsequently. (Code Civ. 9 Proc., §1010; Taliaferro v. Bekin Realty Co. (1959) 176 Cal.App.2d 240 [There is no 10 requirement that notice be given of an application for default judgment].) Therefore, 11 Defendants having failed to answer to the complaint, and defaults having been entered against 12 these Defendants, their rights to further participate in this action have been terminated, and they 13 generally admit to the truth of the allegations of the complaint. 14 IV. ARGUMENT 15 A. REFORMATION SHOULD BE GRANTED IN FAVOR OF THE PLAINTIFF TO CONFORM THE DEED OF TRUST TO THE INTENT OF THE PARTIES 16 Cal. Civ. Code, §3399 provides: 17 When, through fraud or a mutual mistake of the parties, or a mistake of one party, 18 which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party 19 aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value. 20 21 The court in equity has power to do full justice by reforming a deed of trust and all 22 subsequent deeds which perpetuate the error. (Hanlon v. Western Loan & Bldg. Co. (1941) 46 23 Cal.App.2d 580, 601.) 24 On April 14, 2015, Maria Nevin and Lawrence Price executed the Deed of Trust, when in 25 fact the Deed of Trust contained errors in the legal description of the Subject Property referenced 26 therein. On that basis, the Deed of Trust was executed and recorded with an erroneous legal 27 description referenced therein by the mutual mistake of the parties. 28 At the time Plaintiff made the Subject Loan to Maria Nevin and Lawrence Price, it was -4- MEMORANDUM OF POINTS AND AUTHORITIES 1 their mutual intent that the Deed of Trust would secure repayment of the Subject Loan by 2 encumbering the Subject Property. (See RJN, Ex. C., at Page 2) However, because of the error 3 made in the legal description in the Deed of Trust, which was the result of the mutual mistake of 4 the parties therein, the Deed of Trust may not correctly encumber the Subject Property, and 5 therefore, the Deed of Trust is not truly expressing the intention of the parties. 6 As a result of the errors made in the legal description in the Deed of Trust, Plaintiff’s 7 interest in the Subject Property, which was pledged as security for the Subject Loan, is in 8 jeopardy and subject to dispute. 9 Despite the errors made in the legal description in the Deed of Trust, the Deed of Trust 10 correctly describes the Subject Property with the street address, assessor’s parcel number, and 11 references the county in which the Subject Property is situated. Therefore, Plaintiff is informed 12 and believes, and on that basis alleges that there are no third parties whose rights would be 13 prejudiced by the reformation of the Deed of Trust as requested herein. Accordingly, the Deed of 14 Trust can be reformed as requested herein without prejudice to any purported rights potentially 15 acquired by third persons, in good faith and for value. 16 Plaintiff therefore seeks to reform the Deed of Trust, as of April 20, 2015, the date the 17 Deed of Trust was originally recorded, to reflect the Correct Legal Description of the Subject 18 Property as set forth in Paragraph 6 above, in order to conform with the parties’ intentions. 19 B. THE COURT HAS EQUITABLE POWER TO GRANT DECLARATORY RELIEF TO MAKE A BINDING DETERMINATION OF THE PARTIES’ RIGHTS AND DUTIES UNDER A WRITTEN 20 INSTRUMENT 21 California Code of Civil Procedure section 1060 states in pertinent part: 22 Any person interested under a written instrument…who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon 23 property . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the 24 superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under 25 the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding 26 declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in 27 form and effect, and the declaration shall have the force of a final judgment…. (Code Civ. Proc. § 1060.) 28 -5- MEMORANDUM OF POINTS AND AUTHORITIES 1 Plaintiff contends that it is entitled to reform the Deed of Trust, a written instrument that 2 Plaintiff is interested under, to accurately reflect the Correct Legal Description of the Subject 3 Property in accordance with the intentions of Plaintiff and the trustors under the Deed of Trust, 4 Maria Nevin and Lawrence Price. Plaintiff is informed and believes and thereon alleges that the 5 Defendants dispute these contentions. As such, an actual controversy exists and a judicial 6 declaration is necessary and appropriate at this time to determine the parties’ interests and rights 7 in the Subject Property. 8 Plaintiff therefore seeks a judicial declaration that the Deed of Trust, as reformed to 9 reflect the Correct Legal Description, is a valid security instrument, securing the obligations 10 under the Note against the Subject Property as of April 20, 2015, the date the Deed of Trust was 11 originally recorded. Such a determination is necessary and appropriate at this time to resolve 12 any disputes which have arisen between the parties, to correct the public records before third 13 persons, without knowledge of the interest of Plaintiff under the Deed of Trust rely thereon to 14 their detriment, and to avoid unjust enrichment which may result if Defendants, or any of them 15 should transfer to encumber their interest in the Subject Property without satisfying the 16 obligations owed to Plaintiff. 17 V. CONCLUSION 18 Based on the foregoing, Plaintiff requests the Court to exercise its equitable powers to 19 grant the aforementioned reliefs in favor of Plaintiff. 20 21 Dated: June 14, 2019 ALDRIDGE PITE, LLP 22 23 DONNA Y. OH Attorneys for Plaintiff WELLS FARGO BANK, 24 N.A. 25 26 27 28 -6- MEMORANDUM OF POINTS AND AUTHORITIES I 1 Wells Fargo v. Nevin, et al . Superior Court of California County of Fresno - B . F. Sisk Courthouse 2 Case No( s ). 18CECG03471 3 DECLARATION OF SERVICE 4 I, the undersigned, declare: I am, and was at the time of service of the papers herein referred to, over the age of 18 years, and not a party to this action . My business address is 4375 5 Jutland Drive, Suite 200, P.O . Box 17935, San Diego, CA 92177-0935. 6 On June 20, 2019, 1 served the following document(s): 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR DEFAULT JUDGMENT AGAINST DEFENDANTS 8 on the parties in this action addressed as follows: 9 Maria Nevin Lawrence Price 10 732 Filbert Ave. 732 Filbert Ave. Clovis. CA 93611 Clovis, CA 93611 11 X BY MAIL: I placed a true copy in a sealed envelope addressed as indicated above. I am 12 readily familiar with the firm 's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary 13 course of business. I am aware that on motion of party served , service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of 14 deposit for mailing in affidavit. 15 BY CERTIFIED MAIL: I placed a true copy in a sealed envelope addressed as indicated above via certified mail , return receipt requested. 16 BY FACSIMILE: I personally sent to the addressee's facsimile number a true copy of 17 the above-described document(s). I verified transmission with a confirmation printed out by the facsimile machine used. Thereafter, I placed a true copy in a sealed envelope 18 addressed and mailed as indicated above. 19 BY FEDERAL EXPRESS: I placed a true copy in a sealed Federal Express envelope addressed as indicated above . I am familiar with the firm s ’ practice of collection and 20 processing correspondence for Federal Express delivery and that the documents served are deposited with Federal Express this date for overnight delivery. 21 I declare under penalty of peijury under the laws of the State of California that the 22 foregoing is true and correct 23 Executed this 20th day of June, 2019, at San Diego, California. 24 25 4. .AA. E. PENALOZA 26 27 28 -1 - DECLARATION OF SERVICE