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KIRKMAN J. HOFFMAN, ESQ.
Attorney at Law, C.S.B.N. 148663
HOFFMAN LAW GROUP, APC
2021 The Alameda, #275
San Jose, CA 95126
(408) 241-9620
Attorney for Defendant/Claimant
CHERRY LANE, LLC
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
10
i
ENTRA DEFAULT SOLUTIONS, LLC, ‘ase No.: 19CV345701
12
Plaintiff,
13
Vv.
14
ALL CLAIMANTS TO SURPLUS FUNDS 'HERRY LANE, LLC’S OPPOSITION TO
15
AFTER TRUSTEE’S SALE OF REAL OTION OF CORINE G. PASSALACQUA
PROPERTY LOCATED AT: 2062 LAURELEI O DISBURSE SURPLUS FUNDS
16
AVENUE, SAN JOSE, CA 95128
17.
earing Date: 11/26/19
Defendants. ime: 9:00 a.m.
18
ept: 2
18
judge: Hon. Mark H. Pierce
20
FACTS
21.
This action is an interpleader of “overbid”, surplus funds after trustee’s sale,
22
which are subject to a preexisting levy under a writ of execution by CHERRY LANE.
23;
Corine G. Passalacqua (“CGP”) is the former owner of the foreclosed real property and
24
the trustor under the deed of trust that was foreclosed. Defendant/Claimant CHERRY
25:
LANE, LLC (“CHERRY LANE”) was the purchaser of the foreclosed real property at
26
27
28 OPPOSITION TO MOTION TO
DISBURSE SURPLUS FUNDS
CASE NO. 19CV345701
Hie
trustee’s sale, which obtained a Judgment by Stipulation against the Trustor, CGP, on
2/14/19. (Declaration of Kirkman J. Hoffman, Para. 2).
The subject property was sold a trustee’s sale on 1/2/19, resulting in a trustee’s
deed to CHERRY LANE being recorded on 1/14/19. An unlawful detainer action
resulted in a stipulated judgment being entered for possession and money against CGP on
2/14/19. A copy of the judgment is attached as Exhibit A to the Declaration of Kirkman J.
Hoffman, submitted herewith (Declaration of Kirkman J. Hoffman, Para. 2).
Following entry of judgment on 2/14/19, CHERRY LANE obtained a writ of
execution and levied against the surplus proceeds that were otherwise owed to CGP, at
10 the Trustor. Such levy was performed by the sheriff and the funds were interplead into
del this action thereafter to address the competing claims. (Declaration of Kirkman J.
ag Hoffman, Para. 3). A copy of the writ of execution and levying documents are attached to
13:
the Declaration of Kirkman J. Hoffman as Exhibits B, C, and D.
14 Pursuant to the Memorandum of Garnishee (Ex. D above), Scheer Law Group,
45 LLP, had Entra Default Solutions, LLC (the “Depositer”), file its Petition in this action
16 on 3/29/19, and deposit the surplus proceeds with this Court in sum of $602,007.25.
17. (Declaration of Kirkman J. Hoffman, Paras 4 and 5). CHERRY LANE was never served
18 in this action but is included as a participant in this action based on its judgment and levy.
13 CHERRY LANE has since filed its claim for payment in the amount of $6,000, plus
20 interest on 10/17/19, based on its preexisting levy upon funds under the writ of execution
21. (Declaration of Kirkman J. Hoffman, Para. 6). A copy of CHERRY LANE’s judgment,
22 levy, and the interpleader of the funds are attached to CHERRY LANE’s Claim that was
23 filed in this action on 10/17/19.
24 CGP has filed a motion (set for hearing on 11/26/19), asking this Court to
25 disburse all of the surplus funds to her, but without offering to pay CHERRY LANE’s
26 preexisting levy under its judgment. CHERRY LANE respectfully requests that this
27 Court withhold an amount sufficient to satisfy CHERRY LANE’s judgment and levy,
28 OPPOSITION TO MOTION TO
DISBURSE SURPLUS FUNDS
CASE NO. 19CV345701
>
along with accrued interest on such judgment, together with costs and reasonable attorney
fees, pursuant to C.C.P. section 386.6(a), or that any disbursement to CGP be postponed
until after a decision on CHERRY LANE’s motion for disbursement of funds currently
set for hearing on 1/9/2020. A stipulation and/or order for payment of CHERRY
LANE’s claim at or before the 11/26/19 hearing will make CHERRY LANE’s motion
moot.
ARGUMENT
A. CHERRY LANE’S CLAIM IS TO BE PAID AS A LEVY ON MONEY
OWED TO JUDGMENT DEBTOR BEFORE ANY RELEASE OF FUNDS
10 TO JUDGMENT DEBTOR.
a 1. CHERRY LANE and this Action are Not Subject to Civil Code 2924).
12 CHERRY LANE is not a standard lien creditor subject to the claim procedures of
13 Civil Code section 2924}. Civil Code section 2924j(a) provides for notice “to all persons
14 with recorded interests in the real property as of the date immediately prior to the trustee’
15 sale” to make a claim to surplus proceeds. (Emphasis added). Such section does not apply
16 to CHERRY LANE because CHERRY LANE’ interest in the overbid sale proceeds
a? arose after the trustee’s sale by virtue of its 2/14/19 money judgment and subsequent levy
18 on overbid proceeds owed to CGP, as judgment debtor.
19 As set forth in above, CHERRY LANE levied upon the surplus proceeds being
20 held at that time by the Scheer Law Group, LLC (as the attorney for Plaintiff, Entra
21 Default Solutions, LLC—See Declaration of Kirkman J. Hoffman, Para. 5), which then
22 issued a Memorandum of Garnishee and had Plaintiff institute this action to interplead
23 such funds. (Declaration of Kirkman J. Hoffman, Para. 5). Scheer Law Group’s Notice of
24 Intent to Deposit Funds with this court (See Ex. D, Letter dated 2/14/ 19) contained no
25 case number to track this matter and CHERRY LANE was not within the class of persons
26 to whom C.C. section 2924j applies, because its judgment arose after the trustee’s sale.
27 CHERRY LANE was also not served with legal process of this action and discovered it
28 OPPOSITION TO MOTION TO
DISBURSE SURPLUS FUNDS
CASE NO. 19CV345701
335
through the mail. Nevertheless, Civil Code section 2924j(e) provides that the provisions
of Section 2924j do not apply if an interpleader action is filed to resolve a dispute
regarding the proceeds of the trustee’s sale, as is the case here.
Because CHERRY LANE’s claim arises under its legal and equitable rights as
judgment creditor following a levy on any portion of the surplus proceeds in which the
judgment debtor, CGP, holds and interest, CHERRY LANE is not subject to any claim
deadline in such section. Instead, CHERRY LANE is entitled to have its claim resolved
and paid through this action to satisfy its judgment.
2. CHERRY LANE’s Claim is a Levy on Proceeds Held by Third-Party to be
10 paid to Judgment Debtor.
a1 Under C.C.P. section 699.020, “At any time after delivery of a writ of execution
12 to a levying officer and before its return, a person indebted to the judgment debtor may
13 pay to the levying officer the amount of the debtor or so much thereof as is necessary to
14 satisfy the money judgment...” This known as a third-party levy.
15 In third-party levy situations, C.C.P. section 702.030(b) permits the third party to
16 return a garnishee’s memorandum setting forth its explanation for nonpayment. In this
17 case, the Memorandum of Garnishee by the Scheer Law Group informed CHERRY
18 LANE that the surplus funds were being “interplead” for this Court to distribute
16 (Declaration of Kirkman J. Hoffman, Para. 5). Any distribution and release ofsurplus
20 funds so interplead remain subject to this preexisting levy under C.C.P. section 699.020.
21 3. ENTITLEMENT TO COSTS AND ATTORNEY FEES.
22 As a party to this interpleader action, CHERRY LANE is entitled to costs and
23 attorney’s fees relating to payment of its claim. C.C.P. section 386.6(a) provides:
24 A party to an action who follows the procedure set forth in Section 386 or 386.5
25 [Interpleader of conflicting claims] may insert in his motion, petition, complaint, or cross
26 complaint a request for allowance of his costs and reasonable attorney fees incurred in
27 such action. In ordering the discharge of such party, the court may, in its discretion,
28
OPPOSITION TO MOTION TO
DISBURSE SURPLUS FUNDS
CASE NO. 19CV345701
ah.
award such party his costs and reasonable attorney fees from the amount in dispute which
been deposited with the court. bomen (Emphasis and ellipsis added).
The funds in this action have been interplead for division among competing
claims, despite a preexisting levy and legal right to such proceeds under a writ of
execution. Because Plaintiff was, and is, entitled to payment, Plaintiff respectfully
requests recovery of its costs and reasonable attorney fees incurred this action, as part of
payment from the amount deposited. The amount of such fees and costs are set forth in
the Declaration of Kirkman J. Hoffman, submitted herewith, in the amount of $3,095.00.
10 CONCLUSION
TA: CHERRY LANE’s money judgment and levy existed and should have been paid
12 prior to this interpleader action. However, the third party holding the surplus funds
13 interplead the funds for this Court to disburse from the judgment debtor’s share. In light
14 of the foregoing, and in the interests of justice, CHERRY LANE objects to any release of
1S funds to CGP, absent payment of CHERRY LANE’s judgment and expenses, and asks
16 this Court to withhold sufficient funds to satisfy CHERRY LANF’s levy, together with
i accrued interest, costs, and attorney fees, from any surplus funds that might otherwise be
18 released to Claimant CGP.
19
Respectfully submitted,
20
HOFFMAN LAW OUP, APC
21
22 Date: 10/23/19
vA,
By.
23 KIRKMAN J. HOFFMAN, Attorney
for Defendant/Claimant
24 CHERRY LANE, LLC
25
26
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28 OPPOSITION TO MOTION TO
DISBURSE SURPLUS FUNDS
CASE NO. 19CV345701
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DECLARATION OF KIRKMAN J. HOFFMAN
I, KIRKMAN J. HOFFMAN, declare:
1 Iam an individual over the age of eighteen years and am the attorney for
CHERRY LANE, LLC. In such capacity, I have personal knowledge of the facts
alleged in this Declaration, except as otherwise specified, and, as to such matters, I
believe them to the true.
On 1/2/19, Claimant CHERRY LANE, LLC, purchased foreclosed real property
that was occupied by the former owner/trustor, CORINE G. PASSALACQUA
(“CGP” or “Judgment Debtor”, herein), at a trustee’s sale and thereafter obtained a
10
money judgment against such trustor on 2/14/19, pursuant to that certain Judgment
11
by Stipulation entered in Santa Clara County Superior Court Case No.
12
19CV341818 (the “Judgment”). A true and correct copy of such Judgment is
13
attached hereto as Exhibit A and incorporated herein by reference.
14
On 2/14/19, a Writ of Execution was issued on the Judgment in favor of CHERRY
15
LANE, and against the Judgment Debtor, in the amount of $6,000.00, which was
16
then levied upon the Scheer Law Group, LLP, as the third-party in possession of
17
the “overbid”, surplus proceeds from the trustee’s sale of the foreclosed real
18
property. A true and correct copy of such Writ of Execution and Levy are attached
19
hereto as Exhibits B and C, respectively, and incorporated herein by reference.
20
Following such levy, Scheer Law Group, LLP, filed a Memorandum ofGarnishee,
21
stating that the surplus proceeds resulting from the above-referenced trustee’s sale
22
were being “interplead”, which was done via this action. This Memorandum of
23
Garnishee, along with a letter dated 2/14/19, stating that sufficient funds exist to
24
pay all lienholders and judgment creditors, is attached hereto as Exhibit D and
25)
incorporated herein by reference.
26
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28 OPPOSITION TO MOTION TO
DISBURSE SURPLUS FUNDS
CASE NO. 19CV345701
6
5. Plaintiff, Entra Default Solutions, LLC, filed the petition in this action and
deposited the surplus funds from the above-referenced trustee’s sale with this
Court in the amount of $602,007.25.
CHERRY LANE was never served with legal process in this case and no proof of
service or default has been entered to my knowledge. Upon discovery of Judgment
Debtor’s motion for disbursement of surplus funds, CHERRY LANE filed and
served its claim on 10/17/19, for payment on its preexisting levy upon the surplus
proceeds of the Judgment Debtor.
As the amount due to Claimant CHERRY LANE, LLC, does not exceed the
10 amount deposited and because Claimant has a valid judgment and levy to a portion
AL
of such surplus proceeds, Claimant CHERRY LANE, LLC, respectfully requests
12
that the amount of $6,000.00, along with legal interest at the rate of $1.64 per day
13 from 2/14/19, as set forth in the writ of execution (plus any costs and attorney fees
14 that may be awarded by the Court in this matter), be paid and released to Claimant
15
CHERRY LANE, LLC, from the surplus funds ahead of, and with priority over,
16 any claim of the Judgment Debtor. The check should be payable to CHERRY
lek LANE, LLC, c/o Hoffman Law Group, APC, 2021 The Alameda, Suite 275, San
18 Jose, CA 95126.
19 CHERRY LANE has incurred the following costs and reasonable attorney fees in
20 this action: Costs: $435.00 filing fee on 10/17/19, and $60.00 for its motion to
21 disburse those funds on 10/23/19. Attorney’s Fees: 2.5 hours in preparing and
22 filing CHERRY LANE’s Claim, 2.0 hours in preparing and filing this Opposition,
23 and an additional 2.0 preparing and filing CHERRY LANE’s motion to disburse
24 funds. My hourly rate for such services is $400; therefore, reasonable attorney fees
25 of $2,600 are requested, plus costs of $495, together with any additional time and
26
costs pending the hearing of this matter.
27
28 OPPOSITION TO MOTION TO
DISBURSE SURPLUS FUNDS
CASE NO. 19CV345701
a=
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct to the best of my knowledge and belief.
Ca,
Dated: 19/22/14
KIRKMAN J. HOFFMAN
10
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28 OPPOSITION TO MOTION TO
DISBURSE SURPLUS FUNDS
CASE NO. 19CV345701
“f=
EXHIBIT “A”
ENDORSED)
iL
FEB 14 2019
RIREMAN J, HOFFMAN, pS BN: 148663
LAW GI cour
2021 The Alameda, Suite 275 Clerk of the af Baie SS
San Jose, California 95126 ‘Superior
Tel: (408) 241-9620 BY.
Fax: (408) 241-9624
mail: kirk@kirkhoffman.com
Attorney for Plaintiff
IN TRE SUPERIOR COUR
T OF THE STATE OFCALI
FORNIA
IN AND FOR THE COUN
TY OF SANTA CLARA
10
2 CHERRY LANB, LLC,
CASENO.: 19CV341818
12
Plaintife,
13
¥
4 JUDGMENT BY STIPUL
ATION
CORINE G, PASS ALACQU
15 A;
KENNETH J. PA; SSALACQUA;
ETAL.
16
Defendants.
n
1 a
9 COME NOW THE PART
IES TO THIS ACTION
, |, Plaintiff CHERRY
20 LANE, LLC (“Plaintite’
herein), and Defendant
CORINE G. PASSAL
Defendant” herein), app ACQUA
21 earing in this action,
who mutually stipulate
and agree that
22 judgment in this action
be entered in favor of
Plaintiff and against
23 Defendant, as
follows;
26
|. Plaintiff shall have and
recover possession Of
the subject real
Property
26 2002 LAURELE AVE,
located at
SAN J0Sp, cA 95175,
25 SANTA CLARA COUNTY
(the “subject property” or “premises");
JUDGMENT BY STI
PULATION
CASE NO. W9CVASIE
TE
2. ‘The clork of the court ‘may issue
writs of possession ut this time,
(the “Moveout Deadline "). This
shall be a one-time stay of evic
tion, and
Defendant hereby waives
any other stays orextension
s, on any conditions
whatsoever;
Defendants shall allow Plaintiff
and its agent, Jeff Toews and
any
witness, to enter the premises
between Noon and $:00p.m,
on 2/8/19, or
Such other time upon 24-hou
r written notice, for Purposes
ig of inspecting,
mivasuring, and documenti
ng the current Physical
i condition of the
premises;
12
12 Defendant shall surrender the Premis
es to Plaintiff in tts curren
t
ig Physical condition (oth
er than ordinary wear and
tear) and with fixtures and
38 appliances, including the Stov
e, intact (except for the tef
tigerator, washer
16 and dryer, which may be
Femoved). Defendant shal
wy l further surrender the
Premises free and empty
of all persons, vehicles,
18 debris, and personal
Property (other than fix
tures and Personal proper
wg ty belonging to Plaintiff
)
by the Moveout Deadline,
20‘ Any vehicles or personal
Property remaining at
2a the subject premises
afler the Moveout Dea
dline shall be deemed
22 abandoned, such that
Plaintify may dispose
of the same without not
ice to or
23 recourse by such Defend
ant, To this end, Defendant
nl hereby waives Civil
Code section 1980 set
8eq., OF any similar Sta
2s tute, Tegarding notice
and
Storage of personal items;
26
Defendant's counsel
27 shall return this Stipulated Judg
mentto
Plaintiff's counsel, li isted
26 above, Complete with
JUDGMENT BY ST the Signatures of Defe
IPULATION ndant
CASE NO, ISCV341
88
ih
ee
and Defendant's counsel, by
Noon 2/6/19, along with cert
ified or attomey
Trust check in the amount of $22
5.00 for Defendant’s first
Appearance fee in this action
or Ptoof of a fee waiver from
the Court;
A money judgment shall
enter in favor of Plaintiff
and against
Defendant in the amount
of $5,975.00 (consisting
of $4, 650.00 as the
holdover value of the
premises from 1/15/19
through the Moveout
Deadline, $525.00 in costs, and
$800 in attorney fees);
If Defendant fully and tim
ely complies with this Agr
20 eement,
including vacating and Sur
rendering the premises by
ih the Moveout
Deadline, in the condition
ig required above, Plaintiff
shall waive themoney
dudgment in Section § abo
33 ve and shall file a fallsatisf
action of judgment in
1¢ this action within | O-days
upon the written Tequest
of Defendant's counsel,
15 Deborah Bronner. Def
endant may enforce
this section via ex par
16
te
application to the Court
Upon at least 72-hours* not
1 ice to Plaintiff's
counsel];
18
Defendant represents
is and warrants that Defend
ant KENNETH J,
PASSALACQUA is deo
20 cased and passed away
before the filing of this
action, and that no Por
21 tion of the premises is
rented or occupied by
any
22 tenant or subtenant;
23 % This Stipulated Judgment
shail be considered
24 a reason
able
accommodation for
any disability that De
25 fendant or any memb
er of her
family may have, claim,
OF request in this cas
26 e, Defendant hereby
waives
any and all rights
2 to extend, contest,
set aside, or appeal
Judg
this stipulated
ment;
JUDGMENT By ST
IPULATION
CASE ND, TSCV347
813
Ip, Timo is FSS seach em ek pein 6 ‘this
ton evra meson
ie Sutton ea be
domed materiel, suoh th
at iany'dgfault shall be. Str
ictly constiusd intyor
of its piivisiony (oig:,
Detendines faltun ‘©
Teniove petonid proper
occupants, -vehiclay,
ty;
Vor debris obr tite shall
boamaterial defsaity,
i The undersigned, by sig
ning below, scknowAlo
dge that they Have
Toad the forepoing.stipul
ated jagmeat an
d know the terns ang condit
ecole ester into the ions
nereeme af ae Own
ww free WAN Bagh party ha
Bid ahiesoppstisnit y 4 sai s
{2 heat Coun ofthe
oye chonsing tind
has either consulted hit
ore oom Tegal counsa
l Prot to sighing, oe
Voluntarily dectined:ty do tpg
B s;
a 12, ThisAgreement conatitutes
the final!Sbeidiment ofthe
ofthe parties, ned) mity egrooment
duly be moetinigdswith
the writken dobeantiat
44 Bart
igs affected; the
a4
13, This “Srement tay te
Bh exesuted in comm
is, with toe or
‘Slgneityres, or copieg thereof, een
heing Heetned as valid as origin
80 STELLATE: als,
2
23
ome el ee
2th
ORINE G, F,
(2g
EQ
BF rsh IMO .
}- DEFENDANT
cH
26
rid
ot +Aae
Cay
Lf
y WS ithetrifer
LA
7
uy
3
SUD EMT ay.STIPUL
ATION
NO. locvadieie
28/28 Bo
SLwaTYy
i V7OCEIFOORT Wine smn wee ee
1 APPROVED as
ro FORM AND
CONTENT:
a
HOFFMAN Law GR
OUP, APC
Dated: 2/ s/ 14
By.
KIRKMAN J. HOFF
, + a8 Attomeys
for Plaintite
| Dated: 02-05-2019
By
DEBORAH R. BR
Defendant CORINE
G. PASSALAY for
CQUA
20
u
a? JUDGMENT
BASED UPON TH
E FOREGOING
gs STIPULATION,
GOOD CAUs E AND
APPEARING, IT IS HEREBY OR
M4 DERED, ADJUDG
DECREED that Ju ED AND
55 dgment in this acti
i on be entered in thi
s action in favor
Plaintii iM, and agai of
16 nst Defendant CO
RINE G, p, ‘ASSAL
ACQUA, on the terms an
Ww conditions see for d
th ubove. This court shall ret
ain Jurisdiction
16 ensure compliance over this matter
with this judgment to
,
2
20
Dated: ThoE.
ma Kuhn
sie
21 FEB 14 2ni9
22 JUDGE OF THE
SUPERIOR CO
URT
23
aq
25
26
a?
JUDGMENT By
STIPULATION
CASE NO, 19
CV34tx Ty
EXHIBIT “B”
‘ON PART KETC aT Toman ‘STATE WANA. 148663
MAME KIRKMAN J. Hi AN, ‘FON COURT Use cua ¥ tae
ut. HOFFMAN LAW 0}
Arrant xcomnas: 292 | THE ALAMROUP, A.?.C.
EDA, SUITE #275
SAN JOSE are CA
mo: 408-241-9620 ARNO. mrenee 951265
ATTORNEY
FOR emt: PLAINTIFF
RGB. OOMENT CREDITOR
ASBONEE
CF RuICORD
SUPERIOR COURT OF
(OTmeer acces 191 North First StreetCOUNTY: OF SANTA CLARA
MO ORR,
191 North First Street
cr amar
San Jose, 95113
Court
Praintit: CHERRY LANE, LLCO
Delendent._KENNETH J. PASSALACQUA
EXECUTION (Monay Judgment) I9CV341818
IWRIT OF ce POSSESSION OF (1) kimited
Givi Case
(2) Personat Property Gnetuding Senait Ctains)
(J sats CZ) Real Property |) Unitmited
Civil Case
1. To the Shet
of Mars
ithalt ofthe {induding
Family and Probate}
County of:ORANGE
You ate directed to entorce
the
Judgmant
Te any registered Process server; ‘You descr ibed below with Sally interest
are authorized to Serve
and your ‘SOBs au provided
by law,
(Namek CHERRY LANE, LLC tive wrt only in accordance with
‘COP 699,080 oF CCP 715.040,
the (2) ogingl jagment creditor TH) sssign
of record
es whose adress is ‘Shown on
Judgment
debtor (name, type of iega!entity this form sbove
the courts name
Person
and feet known rota % (—] See next page for Information
on real orPéreonal property to be
CORINE G. PASSALATQUA
AGE 8 weit of possession
10.67) Thin writ ‘ta beev SF Gold Under @ writ of wale,
on a sinte
ed r-sizto
For items 11~17,see form MC-0 Judgment,
12 and form MC-013.4NFO
2062 LAURELEI AYE, 14. Total fudge ent (88 entered or reneweri)
12 Conte wir judgme
(COP 698.090
nt ) 3978.00
=
SA N JOSE,CA 95123
3. ‘Sublotat (ad 11 and 12)
Anan et ite cmaguag > 4. Srwaite to principal fartey
15. Princépal remaining Sredit
to Interest)
Judgment entered on (ciate): alia jit Eew due (subtract
16. Acerussi Miere st 14 tom 19 $
C2) Judgment renewed on (dates); 085.060,b} (net onremai ning duepe cor
Se 8403.5
7. Foe tor issuance
18. Total (add 16; 16,ofandwrit 17) 5 25.00
Notice of sale under tne writ
10 Levying officer;
® (5) hes not been requested & Add daily interest trom ‘date
has been requenied
(300 ixt page) the. rateSORES of wet far
8103.5 foes) ES
& [4 Sint Sater information 0F next page
b. Pay
,
to SOUrt conte | included in 1.64
we
asl 8037; cop
Ki Ree .
20.) The amounts catedfor in
| Gabtor. These ems
re vial
1 -1 9 are Giffer
torent
each
S
Attachment
20,
G/ leaued on (
eye:
ri Cterk, by
NO’ ICE 70 PERSON SERVED: SkE M.Vu
PAGE 3 FO
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KIRKMAN J. HOFFMAN, ESQ. Attorney at Law, C.S.B.N. 148663 HOFFMAN LAW GROUP, APC 2021 The Alameda, #275 San Jose, CA 95126 (408) 241-9620 Attorney for Defendant/Claimant CHERRY LANE, LLC IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 10 i ENTRA DEFAULT SOLUTIONS, LLC, ‘ase No.: 19CV345701 12 Plaintiff, 13 Vv. 14 ALL CLAIMANTS TO SURPLUS FUNDS 'HERRY LANE, LLC’S OPPOSITION TO 15 AFTER TRUSTEE’S SALE OF REAL OTION OF CORINE G. PASSALACQUA PROPERTY LOCATED AT: 2062 LAURELEI O DISBURSE SURPLUS FUNDS 16 AVENUE, SAN JOSE, CA 95128 17. earing Date: 11/26/19 Defendants. ime: 9:00 a.m. 18 ept: 2 18 judge: Hon. Mark H. Pierce 20 FACTS 21. This action is an interpleader of “overbid”, surplus funds after trustee’s sale, 22 which are subject to a preexisting levy under a writ of execution by CHERRY LANE. 23; Corine G. Passalacqua (“CGP”) is the former owner of the foreclosed real property and 24 the trustor under the deed of trust that was foreclosed. Defendant/Claimant CHERRY 25: LANE, LLC (“CHERRY LANE”) was the purchaser of the foreclosed real property at 26 27 28 OPPOSITION TO MOTION TO DISBURSE SURPLUS FUNDS CASE NO. 19CV345701 Hie trustee’s sale, which obtained a Judgment by Stipulation against the Trustor, CGP, on 2/14/19. (Declaration of Kirkman J. Hoffman, Para. 2). The subject property was sold a trustee’s sale on 1/2/19, resulting in a trustee’s deed to CHERRY LANE being recorded on 1/14/19. An unlawful detainer action resulted in a stipulated judgment being entered for possession and money against CGP on 2/14/19. A copy of the judgment is attached as Exhibit A to the Declaration of Kirkman J. Hoffman, submitted herewith (Declaration of Kirkman J. Hoffman, Para. 2). Following entry of judgment on 2/14/19, CHERRY LANE obtained a writ of execution and levied against the surplus proceeds that were otherwise owed to CGP, at 10 the Trustor. Such levy was performed by the sheriff and the funds were interplead into del this action thereafter to address the competing claims. (Declaration of Kirkman J. ag Hoffman, Para. 3). A copy of the writ of execution and levying documents are attached to 13: the Declaration of Kirkman J. Hoffman as Exhibits B, C, and D. 14 Pursuant to the Memorandum of Garnishee (Ex. D above), Scheer Law Group, 45 LLP, had Entra Default Solutions, LLC (the “Depositer”), file its Petition in this action 16 on 3/29/19, and deposit the surplus proceeds with this Court in sum of $602,007.25. 17. (Declaration of Kirkman J. Hoffman, Paras 4 and 5). CHERRY LANE was never served 18 in this action but is included as a participant in this action based on its judgment and levy. 13 CHERRY LANE has since filed its claim for payment in the amount of $6,000, plus 20 interest on 10/17/19, based on its preexisting levy upon funds under the writ of execution 21. (Declaration of Kirkman J. Hoffman, Para. 6). A copy of CHERRY LANE’s judgment, 22 levy, and the interpleader of the funds are attached to CHERRY LANE’s Claim that was 23 filed in this action on 10/17/19. 24 CGP has filed a motion (set for hearing on 11/26/19), asking this Court to 25 disburse all of the surplus funds to her, but without offering to pay CHERRY LANE’s 26 preexisting levy under its judgment. CHERRY LANE respectfully requests that this 27 Court withhold an amount sufficient to satisfy CHERRY LANE’s judgment and levy, 28 OPPOSITION TO MOTION TO DISBURSE SURPLUS FUNDS CASE NO. 19CV345701 > along with accrued interest on such judgment, together with costs and reasonable attorney fees, pursuant to C.C.P. section 386.6(a), or that any disbursement to CGP be postponed until after a decision on CHERRY LANE’s motion for disbursement of funds currently set for hearing on 1/9/2020. A stipulation and/or order for payment of CHERRY LANE’s claim at or before the 11/26/19 hearing will make CHERRY LANE’s motion moot. ARGUMENT A. CHERRY LANE’S CLAIM IS TO BE PAID AS A LEVY ON MONEY OWED TO JUDGMENT DEBTOR BEFORE ANY RELEASE OF FUNDS 10 TO JUDGMENT DEBTOR. a 1. CHERRY LANE and this Action are Not Subject to Civil Code 2924). 12 CHERRY LANE is not a standard lien creditor subject to the claim procedures of 13 Civil Code section 2924}. Civil Code section 2924j(a) provides for notice “to all persons 14 with recorded interests in the real property as of the date immediately prior to the trustee’ 15 sale” to make a claim to surplus proceeds. (Emphasis added). Such section does not apply 16 to CHERRY LANE because CHERRY LANE’ interest in the overbid sale proceeds a? arose after the trustee’s sale by virtue of its 2/14/19 money judgment and subsequent levy 18 on overbid proceeds owed to CGP, as judgment debtor. 19 As set forth in above, CHERRY LANE levied upon the surplus proceeds being 20 held at that time by the Scheer Law Group, LLC (as the attorney for Plaintiff, Entra 21 Default Solutions, LLC—See Declaration of Kirkman J. Hoffman, Para. 5), which then 22 issued a Memorandum of Garnishee and had Plaintiff institute this action to interplead 23 such funds. (Declaration of Kirkman J. Hoffman, Para. 5). Scheer Law Group’s Notice of 24 Intent to Deposit Funds with this court (See Ex. D, Letter dated 2/14/ 19) contained no 25 case number to track this matter and CHERRY LANE was not within the class of persons 26 to whom C.C. section 2924j applies, because its judgment arose after the trustee’s sale. 27 CHERRY LANE was also not served with legal process of this action and discovered it 28 OPPOSITION TO MOTION TO DISBURSE SURPLUS FUNDS CASE NO. 19CV345701 335 through the mail. Nevertheless, Civil Code section 2924j(e) provides that the provisions of Section 2924j do not apply if an interpleader action is filed to resolve a dispute regarding the proceeds of the trustee’s sale, as is the case here. Because CHERRY LANE’s claim arises under its legal and equitable rights as judgment creditor following a levy on any portion of the surplus proceeds in which the judgment debtor, CGP, holds and interest, CHERRY LANE is not subject to any claim deadline in such section. Instead, CHERRY LANE is entitled to have its claim resolved and paid through this action to satisfy its judgment. 2. CHERRY LANE’s Claim is a Levy on Proceeds Held by Third-Party to be 10 paid to Judgment Debtor. a1 Under C.C.P. section 699.020, “At any time after delivery of a writ of execution 12 to a levying officer and before its return, a person indebted to the judgment debtor may 13 pay to the levying officer the amount of the debtor or so much thereof as is necessary to 14 satisfy the money judgment...” This known as a third-party levy. 15 In third-party levy situations, C.C.P. section 702.030(b) permits the third party to 16 return a garnishee’s memorandum setting forth its explanation for nonpayment. In this 17 case, the Memorandum of Garnishee by the Scheer Law Group informed CHERRY 18 LANE that the surplus funds were being “interplead” for this Court to distribute 16 (Declaration of Kirkman J. Hoffman, Para. 5). Any distribution and release ofsurplus 20 funds so interplead remain subject to this preexisting levy under C.C.P. section 699.020. 21 3. ENTITLEMENT TO COSTS AND ATTORNEY FEES. 22 As a party to this interpleader action, CHERRY LANE is entitled to costs and 23 attorney’s fees relating to payment of its claim. C.C.P. section 386.6(a) provides: 24 A party to an action who follows the procedure set forth in Section 386 or 386.5 25 [Interpleader of conflicting claims] may insert in his motion, petition, complaint, or cross 26 complaint a request for allowance of his costs and reasonable attorney fees incurred in 27 such action. In ordering the discharge of such party, the court may, in its discretion, 28 OPPOSITION TO MOTION TO DISBURSE SURPLUS FUNDS CASE NO. 19CV345701 ah. award such party his costs and reasonable attorney fees from the amount in dispute which been deposited with the court. bomen (Emphasis and ellipsis added). The funds in this action have been interplead for division among competing claims, despite a preexisting levy and legal right to such proceeds under a writ of execution. Because Plaintiff was, and is, entitled to payment, Plaintiff respectfully requests recovery of its costs and reasonable attorney fees incurred this action, as part of payment from the amount deposited. The amount of such fees and costs are set forth in the Declaration of Kirkman J. Hoffman, submitted herewith, in the amount of $3,095.00. 10 CONCLUSION TA: CHERRY LANE’s money judgment and levy existed and should have been paid 12 prior to this interpleader action. However, the third party holding the surplus funds 13 interplead the funds for this Court to disburse from the judgment debtor’s share. In light 14 of the foregoing, and in the interests of justice, CHERRY LANE objects to any release of 1S funds to CGP, absent payment of CHERRY LANE’s judgment and expenses, and asks 16 this Court to withhold sufficient funds to satisfy CHERRY LANF’s levy, together with i accrued interest, costs, and attorney fees, from any surplus funds that might otherwise be 18 released to Claimant CGP. 19 Respectfully submitted, 20 HOFFMAN LAW OUP, APC 21 22 Date: 10/23/19 vA, By. 23 KIRKMAN J. HOFFMAN, Attorney for Defendant/Claimant 24 CHERRY LANE, LLC 25 26 27 28 OPPOSITION TO MOTION TO DISBURSE SURPLUS FUNDS CASE NO. 19CV345701 =5= DECLARATION OF KIRKMAN J. HOFFMAN I, KIRKMAN J. HOFFMAN, declare: 1 Iam an individual over the age of eighteen years and am the attorney for CHERRY LANE, LLC. In such capacity, I have personal knowledge of the facts alleged in this Declaration, except as otherwise specified, and, as to such matters, I believe them to the true. On 1/2/19, Claimant CHERRY LANE, LLC, purchased foreclosed real property that was occupied by the former owner/trustor, CORINE G. PASSALACQUA (“CGP” or “Judgment Debtor”, herein), at a trustee’s sale and thereafter obtained a 10 money judgment against such trustor on 2/14/19, pursuant to that certain Judgment 11 by Stipulation entered in Santa Clara County Superior Court Case No. 12 19CV341818 (the “Judgment”). A true and correct copy of such Judgment is 13 attached hereto as Exhibit A and incorporated herein by reference. 14 On 2/14/19, a Writ of Execution was issued on the Judgment in favor of CHERRY 15 LANE, and against the Judgment Debtor, in the amount of $6,000.00, which was 16 then levied upon the Scheer Law Group, LLP, as the third-party in possession of 17 the “overbid”, surplus proceeds from the trustee’s sale of the foreclosed real 18 property. A true and correct copy of such Writ of Execution and Levy are attached 19 hereto as Exhibits B and C, respectively, and incorporated herein by reference. 20 Following such levy, Scheer Law Group, LLP, filed a Memorandum ofGarnishee, 21 stating that the surplus proceeds resulting from the above-referenced trustee’s sale 22 were being “interplead”, which was done via this action. This Memorandum of 23 Garnishee, along with a letter dated 2/14/19, stating that sufficient funds exist to 24 pay all lienholders and judgment creditors, is attached hereto as Exhibit D and 25) incorporated herein by reference. 26 27 28 OPPOSITION TO MOTION TO DISBURSE SURPLUS FUNDS CASE NO. 19CV345701 6 5. Plaintiff, Entra Default Solutions, LLC, filed the petition in this action and deposited the surplus funds from the above-referenced trustee’s sale with this Court in the amount of $602,007.25. CHERRY LANE was never served with legal process in this case and no proof of service or default has been entered to my knowledge. Upon discovery of Judgment Debtor’s motion for disbursement of surplus funds, CHERRY LANE filed and served its claim on 10/17/19, for payment on its preexisting levy upon the surplus proceeds of the Judgment Debtor. As the amount due to Claimant CHERRY LANE, LLC, does not exceed the 10 amount deposited and because Claimant has a valid judgment and levy to a portion AL of such surplus proceeds, Claimant CHERRY LANE, LLC, respectfully requests 12 that the amount of $6,000.00, along with legal interest at the rate of $1.64 per day 13 from 2/14/19, as set forth in the writ of execution (plus any costs and attorney fees 14 that may be awarded by the Court in this matter), be paid and released to Claimant 15 CHERRY LANE, LLC, from the surplus funds ahead of, and with priority over, 16 any claim of the Judgment Debtor. The check should be payable to CHERRY lek LANE, LLC, c/o Hoffman Law Group, APC, 2021 The Alameda, Suite 275, San 18 Jose, CA 95126. 19 CHERRY LANE has incurred the following costs and reasonable attorney fees in 20 this action: Costs: $435.00 filing fee on 10/17/19, and $60.00 for its motion to 21 disburse those funds on 10/23/19. Attorney’s Fees: 2.5 hours in preparing and 22 filing CHERRY LANE’s Claim, 2.0 hours in preparing and filing this Opposition, 23 and an additional 2.0 preparing and filing CHERRY LANE’s motion to disburse 24 funds. My hourly rate for such services is $400; therefore, reasonable attorney fees 25 of $2,600 are requested, plus costs of $495, together with any additional time and 26 costs pending the hearing of this matter. 27 28 OPPOSITION TO MOTION TO DISBURSE SURPLUS FUNDS CASE NO. 19CV345701 a= I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge and belief. Ca, Dated: 19/22/14 KIRKMAN J. HOFFMAN 10 i a2 13) 14 15: 16 i 18 19: 20 21 22 23 24 25 26 27 28 OPPOSITION TO MOTION TO DISBURSE SURPLUS FUNDS CASE NO. 19CV345701 “f= EXHIBIT “A” ENDORSED) iL FEB 14 2019 RIREMAN J, HOFFMAN, pS BN: 148663 LAW GI cour 2021 The Alameda, Suite 275 Clerk of the af Baie SS San Jose, California 95126 ‘Superior Tel: (408) 241-9620 BY. Fax: (408) 241-9624 mail: kirk@kirkhoffman.com Attorney for Plaintiff IN TRE SUPERIOR COUR T OF THE STATE OFCALI FORNIA IN AND FOR THE COUN TY OF SANTA CLARA 10 2 CHERRY LANB, LLC, CASENO.: 19CV341818 12 Plaintife, 13 ¥ 4 JUDGMENT BY STIPUL ATION CORINE G, PASS ALACQU 15 A; KENNETH J. PA; SSALACQUA; ETAL. 16 Defendants. n 1 a 9 COME NOW THE PART IES TO THIS ACTION , |, Plaintiff CHERRY 20 LANE, LLC (“Plaintite’ herein), and Defendant CORINE G. PASSAL Defendant” herein), app ACQUA 21 earing in this action, who mutually stipulate and agree that 22 judgment in this action be entered in favor of Plaintiff and against 23 Defendant, as follows; 26 |. Plaintiff shall have and recover possession Of the subject real Property 26 2002 LAURELE AVE, located at SAN J0Sp, cA 95175, 25 SANTA CLARA COUNTY (the “subject property” or “premises"); JUDGMENT BY STI PULATION CASE NO. W9CVASIE TE 2. ‘The clork of the court ‘may issue writs of possession ut this time, (the “Moveout Deadline "). This shall be a one-time stay of evic tion, and Defendant hereby waives any other stays orextension s, on any conditions whatsoever; Defendants shall allow Plaintiff and its agent, Jeff Toews and any witness, to enter the premises between Noon and $:00p.m, on 2/8/19, or Such other time upon 24-hou r written notice, for Purposes ig of inspecting, mivasuring, and documenti ng the current Physical i condition of the premises; 12 12 Defendant shall surrender the Premis es to Plaintiff in tts curren t ig Physical condition (oth er than ordinary wear and tear) and with fixtures and 38 appliances, including the Stov e, intact (except for the tef tigerator, washer 16 and dryer, which may be Femoved). Defendant shal wy l further surrender the Premises free and empty of all persons, vehicles, 18 debris, and personal Property (other than fix tures and Personal proper wg ty belonging to Plaintiff ) by the Moveout Deadline, 20‘ Any vehicles or personal Property remaining at 2a the subject premises afler the Moveout Dea dline shall be deemed 22 abandoned, such that Plaintify may dispose of the same without not ice to or 23 recourse by such Defend ant, To this end, Defendant nl hereby waives Civil Code section 1980 set 8eq., OF any similar Sta 2s tute, Tegarding notice and Storage of personal items; 26 Defendant's counsel 27 shall return this Stipulated Judg mentto Plaintiff's counsel, li isted 26 above, Complete with JUDGMENT BY ST the Signatures of Defe IPULATION ndant CASE NO, ISCV341 88 ih ee and Defendant's counsel, by Noon 2/6/19, along with cert ified or attomey Trust check in the amount of $22 5.00 for Defendant’s first Appearance fee in this action or Ptoof of a fee waiver from the Court; A money judgment shall enter in favor of Plaintiff and against Defendant in the amount of $5,975.00 (consisting of $4, 650.00 as the holdover value of the premises from 1/15/19 through the Moveout Deadline, $525.00 in costs, and $800 in attorney fees); If Defendant fully and tim ely complies with this Agr 20 eement, including vacating and Sur rendering the premises by ih the Moveout Deadline, in the condition ig required above, Plaintiff shall waive themoney dudgment in Section § abo 33 ve and shall file a fallsatisf action of judgment in 1¢ this action within | O-days upon the written Tequest of Defendant's counsel, 15 Deborah Bronner. Def endant may enforce this section via ex par 16 te application to the Court Upon at least 72-hours* not 1 ice to Plaintiff's counsel]; 18 Defendant represents is and warrants that Defend ant KENNETH J, PASSALACQUA is deo 20 cased and passed away before the filing of this action, and that no Por 21 tion of the premises is rented or occupied by any 22 tenant or subtenant; 23 % This Stipulated Judgment shail be considered 24 a reason able accommodation for any disability that De 25 fendant or any memb er of her family may have, claim, OF request in this cas 26 e, Defendant hereby waives any and all rights 2 to extend, contest, set aside, or appeal Judg this stipulated ment; JUDGMENT By ST IPULATION CASE ND, TSCV347 813 Ip, Timo is FSS seach em ek pein 6 ‘this ton evra meson ie Sutton ea be domed materiel, suoh th at iany'dgfault shall be. Str ictly constiusd intyor of its piivisiony (oig:, Detendines faltun ‘© Teniove petonid proper occupants, -vehiclay, ty; Vor debris obr tite shall boamaterial defsaity, i The undersigned, by sig ning below, scknowAlo dge that they Have Toad the forepoing.stipul ated jagmeat an d know the terns ang condit ecole ester into the ions nereeme af ae Own ww free WAN Bagh party ha Bid ahiesoppstisnit y 4 sai s {2 heat Coun ofthe oye chonsing tind has either consulted hit ore oom Tegal counsa l Prot to sighing, oe Voluntarily dectined:ty do tpg B s; a 12, ThisAgreement conatitutes the final!Sbeidiment ofthe ofthe parties, ned) mity egrooment duly be moetinigdswith the writken dobeantiat 44 Bart igs affected; the a4 13, This “Srement tay te Bh exesuted in comm is, with toe or ‘Slgneityres, or copieg thereof, een heing Heetned as valid as origin 80 STELLATE: als, 2 23 ome el ee 2th ORINE G, F, (2g EQ BF rsh IMO . }- DEFENDANT cH 26 rid ot +Aae Cay Lf y WS ithetrifer LA 7 uy 3 SUD EMT ay.STIPUL ATION NO. locvadieie 28/28 Bo SLwaTYy i V7OCEIFOORT Wine smn wee ee 1 APPROVED as ro FORM AND CONTENT: a HOFFMAN Law GR OUP, APC Dated: 2/ s/ 14 By. KIRKMAN J. HOFF , + a8 Attomeys for Plaintite | Dated: 02-05-2019 By DEBORAH R. BR Defendant CORINE G. PASSALAY for CQUA 20 u a? JUDGMENT BASED UPON TH E FOREGOING gs STIPULATION, GOOD CAUs E AND APPEARING, IT IS HEREBY OR M4 DERED, ADJUDG DECREED that Ju ED AND 55 dgment in this acti i on be entered in thi s action in favor Plaintii iM, and agai of 16 nst Defendant CO RINE G, p, ‘ASSAL ACQUA, on the terms an Ww conditions see for d th ubove. This court shall ret ain Jurisdiction 16 ensure compliance over this matter with this judgment to , 2 20 Dated: ThoE. ma Kuhn sie 21 FEB 14 2ni9 22 JUDGE OF THE SUPERIOR CO URT 23 aq 25 26 a? JUDGMENT By STIPULATION CASE NO, 19 CV34tx Ty EXHIBIT “B” ‘ON PART KETC aT Toman ‘STATE WANA. 148663 MAME KIRKMAN J. Hi AN, ‘FON COURT Use cua ¥ tae ut. HOFFMAN LAW 0} Arrant xcomnas: 292 | THE ALAMROUP, A.?.C. EDA, SUITE #275 SAN JOSE are CA mo: 408-241-9620 ARNO. mrenee 951265 ATTORNEY FOR emt: PLAINTIFF RGB. OOMENT CREDITOR ASBONEE CF RuICORD SUPERIOR COURT OF (OTmeer acces 191 North First StreetCOUNTY: OF SANTA CLARA MO ORR, 191 North First Street cr amar San Jose, 95113 Court Praintit: CHERRY LANE, LLCO Delendent._KENNETH J. PASSALACQUA EXECUTION (Monay Judgment) I9CV341818 IWRIT OF ce POSSESSION OF (1) kimited Givi Case (2) Personat Property Gnetuding Senait Ctains) (J sats CZ) Real Property |) Unitmited Civil Case 1. To the Shet of Mars ithalt ofthe {induding Family and Probate} County of:ORANGE You ate directed to entorce the Judgmant Te any registered Process server; ‘You descr ibed below with Sally interest are authorized to Serve and your ‘SOBs au provided by law, (Namek CHERRY LANE, LLC tive wrt only in accordance with ‘COP 699,080 oF CCP 715.040, the (2) ogingl jagment creditor TH) sssign of record es whose adress is ‘Shown on Judgment debtor (name, type of iega!entity this form sbove the courts name Person and feet known rota % (—] See next page for Information on real orPéreonal property to be CORINE G. PASSALATQUA AGE 8 weit of possession 10.67) Thin writ ‘ta beev SF Gold Under @ writ of wale, on a sinte ed r-sizto For items 11~17,see form MC-0 Judgment, 12 and form MC-013.4NFO 2062 LAURELEI AYE, 14. Total fudge ent (88 entered or reneweri) 12 Conte wir judgme (COP 698.090 nt ) 3978.00 = SA N JOSE,CA 95123 3. ‘Sublotat (ad 11 and 12) Anan et ite cmaguag > 4. Srwaite to principal fartey 15. Princépal remaining Sredit to Interest) Judgment entered on (ciate): alia jit Eew due (subtract 16. Acerussi Miere st 14 tom 19 $ C2) Judgment renewed on (dates); 085.060,b} (net onremai ning duepe cor Se 8403.5 7. Foe tor issuance 18. Total (add 16; 16,ofandwrit 17) 5 25.00 Notice of sale under tne writ 10 Levying officer; ® (5) hes not been requested & Add daily interest trom ‘date has been requenied (300 ixt page) the. rateSORES of wet far 8103.5 foes) ES & [4 Sint Sater information 0F next page b. Pay , to SOUrt conte | included in 1.64 we asl 8037; cop Ki Ree . 20.) The amounts catedfor in | Gabtor. These ems re vial 1 -1 9 are Giffer torent each S Attachment 20, G/ leaued on ( eye: ri Cterk, by NO’ ICE 70 PERSON SERVED: SkE M.Vu PAGE 3 FO