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AMIEL L. WADE (No. 184312)
WADE LAW GROUP
A Professional Corporation
84 West Santa Clara Street, Suite 750
San Jose, CA 95113
Telephone: (408) 842-1688
Facsimile: (408) 852-0614
Attorneys for Third parties
P2 CAPITAL, LLC and MARGUERITE MCAFFE
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN THE COUNTY OF SANTA CLARA
GIBRALTAR SSI, LLC a Delaware Limited
Liability Company
Plaintiff,
Case No. 2012-1-CV-230686
)
)
) P2 CAPITAL, LLC’S OPPOSITION TO
) TITAN FISH FOUR’S APPLICATION FOR
ORDER OF SALE OF DWELLING
VS.
} Date: October 16, 2019
Time: 9:00 am
ROBERT COMES, an individual, ERIC }
)
)
)
)
)
)
)
MCAFEE, an individual Dept.: 9
Judge: Hon. Mary E. Arand
Defendants. Date Action filed:
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P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF
DWELLING 2012-1-CV-230686mB Woh
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SUMMARY OF THE ARGUMENT
The Court must deny TITAN FISH FOUR, LLC’S fraudulent application for the sale of the
dwelling located at 22040 Mount Eden Road, Saratoga (The “Dwelling”) because the minimum bid that
will be received from the sale will NOT be more than the sum of the homestead exemption and the liens
and encumbrances that are senior to TITAN FISH FOUR (“TITAN FISH”). In TITAN FISH’s
application, it falsely represents that TITAN FISH’s lien has priority over P2 Capital’s lien. Filing a
frivolous application to obtain an order of sale is outrages. The fraudulent application should have
never been filed.
P2 Capital’s Deed of Trust has Priority
Here, the evidence before the Court will show definitively that P2 Capital’s lien has priority over
TITAN FISH’s lien and as a result thereof, the application to sell the Dwelling must be denied. The law
is clear that a deed is valid at the time at which it is executed and delivered. The failure to record a deed|
does not invalidate it (although recording a deed is prima facie evidence that the deed was executed).
Here, the evidence before the Court (as illustrated in P2 Capital’s opposition and particularly the
declaration of Marguerite McA fee (“McAfee Dec.” ), shows the following liens have priority over
TITAN FISH:
1. Morgan Stanley deed of trust in the amount of $2,800,459.00, recorded May, 30, 2012
2. David Lei’s deed of trust in the amount of $1 ,570,112.00, recorded on June 1, 2012
3. P2 Capital’s deed of trust in the amount of $3,848,672,00, recorded on December 10, 2012,
but EXECUTED and ACKNOWLEGED on July 2, 2012.
4. $100,000.00 Homestead
Here, TITAN FISH acknowledges in its moving papers that C.C.P, § 704.800(a) prohibits the
sale of the Dwelling unless the minimum bid that will be received from the sale will be more than the
sum of the homestead exemption and the liens and encumbrances that are senior to the TITAN FISH.
See TITAN FISH’s application on page 3, paragraph 9 stating: “in calculating the minimum bid
necessary under C.C.P. § 704.800(a), the minimum bid that will be received from a sale of a dwelling
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P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF
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is the sum of the homestead exemption and the liens and encumbrances that are senior to Titan Fish
Four.” TITAN FISH also acknowledges on page 3, paragraph 9, that the sale order is proper only “if
the fair market value of the property exceeds the sum of the homestead exemption and the liens senior to
the judgment being enforced.”
In TITAN FISH’s application, it states that the appraised value of the property is $5,800,000.00.
However, $5,800,000.00 is less than the amount of the senior liens. As indicated above, the senior liens
on the property amount to $8,319,243.00.
It is true that TITAN FISH’s lien and P2 Capital lien was recorded the same day, December 10,
2012. However, the law is clear that the validity of a deed is based on when it is executed, not when it
was recorded. Therefore, here, P2 Capital’s lien had been valid for over five (5) months before TITAN
FISH’s judgment lien was recorded. See McAfee Dec. 4 2-8, Exhibits B and C. Therefore, P2
Capital’s deed of trust is senior to TITAN FISH’s.
P2 Capital is a third party entity. Judgment debtor, Eric McAfee has no ownership interest in P2|
Capital. In fact, the Court released P2 Capital from a charging order earlier in this action because the
judgment debtor has no interest in P2 Capital. See McAfee Dec. G7 1-8.
TITAN FISH’s Application is Fraudulent
Here, TITAN FISH’s application is fraudulent because TITAN FISH knew full well that its lien
is junior to P2 Capital, yet it still filed its application stating the opposite. Here, TITAN FISH FOUR’S
owner, Joe Campbell tried to buy David Lies’ deed of trust (cited above) so that TITAN FISH could
actually have a lien senior to P2 Capital (because as illustrated above, David Lies’ deed of trust is senior
to P2 Capital). See declaration of David Lies. In other words, TITAN FISH tried to buy David Lies’
Deed of trust because it knew by doing so it could honestly represent to the Court that it had a lien
senior to P2 Capital. However, although David Lies refused to sell his deed of trust to TITAN FISH,
TITAN FISH still filed its application for an order to sell the dwelling (and to justify said filing it
falsely represented that TITAN FISH has a lien senior to P2 Capital).
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P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF
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Apparently, TITAN FISH and its owner Joe Campbell have no problem violating the law. They
also broke the law when they aided and abetted a criminal trespass into Ms. McAfee’s home by
directing their process server to enter into Marguerite McAfee’s home to serve her inside her house. See
Declaration of Marguerite McAfee. These actions are being referred to the district attorney’s office for
review.
TITAN FISH Provides No Evidentiary Support For Its Claims
Here, TITAN FISH failed to provide any evidentiary support and personal knowledge of the
facts to support its fraudulent application. It counsel falsely represents in its application that TITAN
FISH has a senior lien to P2 Capital. It fails to provide any objective evidence. Instead, it provides a
declaration from counsel stating based on counsel’s review of the public records, he believes the facts
are true. Such a statement does not provide the requisite evidentiary support. Assuming that it does,
the objective evidence makes clear that the verification is false. P2 Capital asks this Court to not
consider any evidentiary support provided for the first time in any reply brief. See San Diego
Watercrafts, Inc. v. Wells Fargo, N.A.. (2002) 102 Cal.App.4th 308, 316, making clear that the court
should not consider any new argument or evidence made in any reply brief because considering such
evidence would deprive the responding party of due process.
STATEMENT OF FACTS
The dwelling has three liens that are senior to the lien of TITAN FISH. The senior liens amount
to $8,319,243.00. The fair market value of the Dwelling is just $5,800,000.00. Therefore, the property
cannot be ordered sold. TITAN FISH knew that its lien was junior to P2 Capital’s lien so it tried to buy
David Lies’ deed of trust. However, when David Lies refused, TITAN FISH still filed its application to
have the Dwelling sold. It decided to lie an falsely state that its lien was senior to P2 Capital. TITAN
FISH’s fraudulent application must be denied.
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P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF
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LEGAL ARGUMENT
lL THE COURT MUST DENY TITAN FISH’S APPLICATION BECAUSE THERE
ARE SENIOR LIENS THAT EXCEED THE FAIR MARKET VALUE OF THE
DWELLING
A. P2. Capital Lien is Senior to TITAN FISH’s
Code of Civil Procedure section 704.800 makes clear that a dwelling should not be sold to
satisfy a judgment unless the sale price will exceed the amount of the homestead exemption plus any
additional amount necessary to satisfy all liens and encumbrances on the property. A deed does not
require consideration to be valid. Freeman v. LaMorte (1957) 148 Cal. App. 2d 670, 673. See also Civ.
Code § 1040. Therefore, the deed generally may not be rescinded on the ground of failure of
consideration, unless performance or payment of the consideration is made a condition subsequent.
Lavely v. Nonemaker (1931) 212 Cal. 380, 383. Acknowledgment of the deed is not essential to the
deed’s validity. Osterberg v. Osterberg (1945) 68 Cal. App. 2d 254, 262. In addition, recordation is
not a prerequisite to the validity of a deed. Devereaux v. Frazier Mountain Park & Fisheries Co. (1967
248 Cal. App. 2d 323, 328. See Civ. Code § 1217.
If a deed is delivered before an abstract of judgment is recorded, the transfer is complete when
the deed is delivered without regard to whether the deed was recorded, and there is nothing to which the
later-recorded abstract can attach. Casey v. Gray (1993) 13 Cal. App. 4th 611, 614. However, a deed
must be acknowledged before it may be recorded [Gov. Code § 27287; see also Gov. Code § 27288. If
the deed is acknowledged or proved and certified and recorded, it constitutes constructive notice of its
contents to subsequent purchasers and mortgagees. Civ. Code § 1213.
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A duly executed deed is presumed to have been delivered at its date. Civ. Code § 1055. Because
a deed is deemed duly executed when it has been subscribed and delivered, this presumption arises only
as to the date, not the fact of delivery. Code Civ. Proc. § 1933; Miller v. Jansen (1943) 21 Cal. 2d 473,
132 P.2d 801]
Here, the Court must deny TITAN FISH FOUR, LLC’S fraudulent application for the sale of
the dwelling located at 22040 Mount Eden Road, Saratoga (The “Dwelling”) because the minimum bid
that will be received from the sale will NOT be more than the sum of the homestead exemption and the
liens and encumbrances that are senior to TITAN FISH FOUR (“TITAN FISH”). In TITAN FISH’s
application, it falsely represents that TITAN FISH’s lien has priority over P2 Capital’s lien. Filing a
frivolous application to obtain an order of sale is outrages. The fraudulent application should have
never been filed.
P2 Capital’s Deed of Trust has Priority
Here, the evidence before the Court will show definitively that P2 Capital’s lien has priority over
TITAN FISH’s lien and as a result thereof, the application to sell the Dwelling must be denied. The law
is clear that a deed is valid at the time at which it is executed and delivered. The failure to record a deed
does not invalidate it (although recording a deed is prima facie evidence that the deed was executed).
Here, the evidence before the Court (as illustrated in P2 Capital’s opposition and particularly the
declaration of Marguerite McAfee (“McAfee Dec.” ), shows the following liens have priority over
TITAN FISH:
5. Morgan Stanley deed of trust in the amount of $2,800.459.00, recorded May, 30, 2012
6. David Lies’ deed of trust in the amount of $1,570,1 12.00, recorded on June 1, 2012
7. P2 Capital’s deed of trust in the amount of $3,848,672,00, recorded on December 10, 2012,
but EXECUTED and ACKNOWLEGED on July 2, 2012.
8. $100,000.00 Homestead
Here, TITAN FISH acknowledges in its moving papers that C.C.P, § 704.800(a) prohibits the
sale of the Dwelling unless the minimum bid that will be received from the sale will be more than the
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P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF
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sum of the homestead exemption and the liens and encumbrances that are senior to the TITAN FISH.
See TITAN FISH’s application on page 3, paragraph 9 stating: “in calculating the minimum bid
necessary under C.C.P. § 704.800(a), the minimum bid that will be received from a sale of a dwelling
is the sum of the homestead exemption and the liens and encumbrances that are senior to Titan Fish
Four.” TITAN FISH also acknowledges on page 3, paragraph 9, that the sale order is proper only “if
the fair market value of the property exceeds the sum of the homestead exemption and the liens senior t
the judgment being enforced.”
In TITAN FISH’s application, it states that the appraised value of the property is $5,800,000.00.
However, $5,800,000.00 is less than the amount of the senior liens. As indicated above, the senior liens
on the property amount to $8,319,243.00.
It is true that TITAN FISH’s lien and P2 Capital lien was recorded the same day, December 10,
2012. However, the law is clear that the validity of a deed is based on when it is executed, not when it
was recorded. Therefore, here, P2 Capital’s lien had been valid for over five (5) months before TITAN
FISH’s judgment lien was recorded. See McAfee Dec. §f 2-8, Exhibits B and C. Therefore, P2
Capital’s deed of trust is senior to TITAN FISH’s.
P2 Capital is a third party entity. Judgment debtor, Eric McAfee has no ownership interest in P2
Capital. In fact, the Court released P2 Capital from a charging order earlier in this action because the
judgment debtor has no interest in P2 Capital. See McAfee Dec. 49 1-8.
B. Titan Fish’s Application and Conduct Are Fraudulent
Here, TITAN FISH’s application is fraudulent because TITAN FISH knew full well that its lien
is junior to P2 Capital, yet it still filed its application stating the opposite. Here, TITAN FISH FOUR’S
owner, Joe Campbell tried to buy David Lies’ deed of trust (cited above) so that TITAN FISH could
actually have a lien senior to P2 Capital (because as illustrated above, David Lies’ deed of trust is senior!
to P2 Capital). See declaration of David Lies. In other words, TITAN FISH tried to buy David Lies’
Deed of trust because it knew by doing so it could honestly represent to the Court that it had a lien
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P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF
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senior to P2 Capital. However, although David Lies refused to sell his deed of trust to TITAN FISH,
TITAN FISH still filed its application for an order to sell the dwelling (and to justify said filing it
falsely represented that TITAN FISH has a lien senior to P2 Capital).
Apparently, TITAN FISH has no problem violating the law. It also broke the law when it
directed their process server to enter into Marguerite McA fee’s home to serve her inside her house. See
Declaration of Marguerite McAfee.
C. Titan Fish Four Provides no Evidentiary Support for its Relief
California Rule of court, 3.1306 makes clear that the only evidence that a court can
considered on a noticed motions must be presented either by declarations or a requests for judicial
notice. Here, TITAN FISH failed to provide any evidentiary support and personal knowledge of the
facts to support its fraudulent application. It counsel falsely represents in its application that TITAN
FISH has a senior lien to P2 Capital. It fails to provide any objective evidence. Instead, it provides a
declaration from counsel stating based on counsel’s review of the public records, he believes the facts
are true. Such a statement does not provide the requisite evidentiary support. Assuming that it does,
the objective evidence makes clear that the verification is false. P2 Capital asks this Court to not
consider any evidentiary support provided for the first time in any reply brief. See San Diego
Watercrafts, Inc. v. Wells Fargo, N.A. (2002) 102 Cal.App.4th 308, 316, making clear that the court
should not consider any new argument or evidence made in any reply brief because considering such
evidence would deprive the responding party of due process.
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CONCLUSION
Four the reason stated above, the Court must deny TITAN FISH’s application to sell the
dwelling.
Dated: 10/05/18 ADE LAW GROUP
AMIEL L. WADE
Attorney for Third Party
P2 CAPITAL and MARGUERITE MCAFEE
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P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF
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aA oO ® WN Cow ON 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMIEL L. WADE (No. 184312) WADE LAW GROUP A Professional Corporation 84 West Santa Clara Street, Suite 750 San Jose, CA 95113 Telephone: (408) 842-1688 Facsimile: (408) 852-0614 Attorneys for Third parties P2 CAPITAL, LLC and MARGUERITE MCAFFE IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN THE COUNTY OF SANTA CLARA GIBRALTAR SSI, LLC a Delaware Limited Liability Company Plaintiff, Case No. 2012-1-CV-230686 ) ) ) P2 CAPITAL, LLC’S OPPOSITION TO ) TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF DWELLING VS. } Date: October 16, 2019 Time: 9:00 am ROBERT COMES, an individual, ERIC } ) ) ) ) ) ) ) MCAFEE, an individual Dept.: 9 Judge: Hon. Mary E. Arand Defendants. Date Action filed: ={- P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF DWELLING 2012-1-CV-230686mB Woh an w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 29 26 27 28 SUMMARY OF THE ARGUMENT The Court must deny TITAN FISH FOUR, LLC’S fraudulent application for the sale of the dwelling located at 22040 Mount Eden Road, Saratoga (The “Dwelling”) because the minimum bid that will be received from the sale will NOT be more than the sum of the homestead exemption and the liens and encumbrances that are senior to TITAN FISH FOUR (“TITAN FISH”). In TITAN FISH’s application, it falsely represents that TITAN FISH’s lien has priority over P2 Capital’s lien. Filing a frivolous application to obtain an order of sale is outrages. The fraudulent application should have never been filed. P2 Capital’s Deed of Trust has Priority Here, the evidence before the Court will show definitively that P2 Capital’s lien has priority over TITAN FISH’s lien and as a result thereof, the application to sell the Dwelling must be denied. The law is clear that a deed is valid at the time at which it is executed and delivered. The failure to record a deed| does not invalidate it (although recording a deed is prima facie evidence that the deed was executed). Here, the evidence before the Court (as illustrated in P2 Capital’s opposition and particularly the declaration of Marguerite McA fee (“McAfee Dec.” ), shows the following liens have priority over TITAN FISH: 1. Morgan Stanley deed of trust in the amount of $2,800,459.00, recorded May, 30, 2012 2. David Lei’s deed of trust in the amount of $1 ,570,112.00, recorded on June 1, 2012 3. P2 Capital’s deed of trust in the amount of $3,848,672,00, recorded on December 10, 2012, but EXECUTED and ACKNOWLEGED on July 2, 2012. 4. $100,000.00 Homestead Here, TITAN FISH acknowledges in its moving papers that C.C.P, § 704.800(a) prohibits the sale of the Dwelling unless the minimum bid that will be received from the sale will be more than the sum of the homestead exemption and the liens and encumbrances that are senior to the TITAN FISH. See TITAN FISH’s application on page 3, paragraph 9 stating: “in calculating the minimum bid necessary under C.C.P. § 704.800(a), the minimum bid that will be received from a sale of a dwelling -2- P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF DWELLING 2012-1-CV-23068610 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 27 28 is the sum of the homestead exemption and the liens and encumbrances that are senior to Titan Fish Four.” TITAN FISH also acknowledges on page 3, paragraph 9, that the sale order is proper only “if the fair market value of the property exceeds the sum of the homestead exemption and the liens senior to the judgment being enforced.” In TITAN FISH’s application, it states that the appraised value of the property is $5,800,000.00. However, $5,800,000.00 is less than the amount of the senior liens. As indicated above, the senior liens on the property amount to $8,319,243.00. It is true that TITAN FISH’s lien and P2 Capital lien was recorded the same day, December 10, 2012. However, the law is clear that the validity of a deed is based on when it is executed, not when it was recorded. Therefore, here, P2 Capital’s lien had been valid for over five (5) months before TITAN FISH’s judgment lien was recorded. See McAfee Dec. 4 2-8, Exhibits B and C. Therefore, P2 Capital’s deed of trust is senior to TITAN FISH’s. P2 Capital is a third party entity. Judgment debtor, Eric McAfee has no ownership interest in P2| Capital. In fact, the Court released P2 Capital from a charging order earlier in this action because the judgment debtor has no interest in P2 Capital. See McAfee Dec. G7 1-8. TITAN FISH’s Application is Fraudulent Here, TITAN FISH’s application is fraudulent because TITAN FISH knew full well that its lien is junior to P2 Capital, yet it still filed its application stating the opposite. Here, TITAN FISH FOUR’S owner, Joe Campbell tried to buy David Lies’ deed of trust (cited above) so that TITAN FISH could actually have a lien senior to P2 Capital (because as illustrated above, David Lies’ deed of trust is senior to P2 Capital). See declaration of David Lies. In other words, TITAN FISH tried to buy David Lies’ Deed of trust because it knew by doing so it could honestly represent to the Court that it had a lien senior to P2 Capital. However, although David Lies refused to sell his deed of trust to TITAN FISH, TITAN FISH still filed its application for an order to sell the dwelling (and to justify said filing it falsely represented that TITAN FISH has a lien senior to P2 Capital). -3- P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF DWELLING 2012-1-CV-23068610 11 12 13 14 15 16 17 18 19 20 21, 22 23 24 25 26 27 28 Apparently, TITAN FISH and its owner Joe Campbell have no problem violating the law. They also broke the law when they aided and abetted a criminal trespass into Ms. McAfee’s home by directing their process server to enter into Marguerite McAfee’s home to serve her inside her house. See Declaration of Marguerite McAfee. These actions are being referred to the district attorney’s office for review. TITAN FISH Provides No Evidentiary Support For Its Claims Here, TITAN FISH failed to provide any evidentiary support and personal knowledge of the facts to support its fraudulent application. It counsel falsely represents in its application that TITAN FISH has a senior lien to P2 Capital. It fails to provide any objective evidence. Instead, it provides a declaration from counsel stating based on counsel’s review of the public records, he believes the facts are true. Such a statement does not provide the requisite evidentiary support. Assuming that it does, the objective evidence makes clear that the verification is false. P2 Capital asks this Court to not consider any evidentiary support provided for the first time in any reply brief. See San Diego Watercrafts, Inc. v. Wells Fargo, N.A.. (2002) 102 Cal.App.4th 308, 316, making clear that the court should not consider any new argument or evidence made in any reply brief because considering such evidence would deprive the responding party of due process. STATEMENT OF FACTS The dwelling has three liens that are senior to the lien of TITAN FISH. The senior liens amount to $8,319,243.00. The fair market value of the Dwelling is just $5,800,000.00. Therefore, the property cannot be ordered sold. TITAN FISH knew that its lien was junior to P2 Capital’s lien so it tried to buy David Lies’ deed of trust. However, when David Lies refused, TITAN FISH still filed its application to have the Dwelling sold. It decided to lie an falsely state that its lien was senior to P2 Capital. TITAN FISH’s fraudulent application must be denied. oo P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF DWELLING 2012-1-CV-23068610 11 L2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEGAL ARGUMENT lL THE COURT MUST DENY TITAN FISH’S APPLICATION BECAUSE THERE ARE SENIOR LIENS THAT EXCEED THE FAIR MARKET VALUE OF THE DWELLING A. P2. Capital Lien is Senior to TITAN FISH’s Code of Civil Procedure section 704.800 makes clear that a dwelling should not be sold to satisfy a judgment unless the sale price will exceed the amount of the homestead exemption plus any additional amount necessary to satisfy all liens and encumbrances on the property. A deed does not require consideration to be valid. Freeman v. LaMorte (1957) 148 Cal. App. 2d 670, 673. See also Civ. Code § 1040. Therefore, the deed generally may not be rescinded on the ground of failure of consideration, unless performance or payment of the consideration is made a condition subsequent. Lavely v. Nonemaker (1931) 212 Cal. 380, 383. Acknowledgment of the deed is not essential to the deed’s validity. Osterberg v. Osterberg (1945) 68 Cal. App. 2d 254, 262. In addition, recordation is not a prerequisite to the validity of a deed. Devereaux v. Frazier Mountain Park & Fisheries Co. (1967 248 Cal. App. 2d 323, 328. See Civ. Code § 1217. If a deed is delivered before an abstract of judgment is recorded, the transfer is complete when the deed is delivered without regard to whether the deed was recorded, and there is nothing to which the later-recorded abstract can attach. Casey v. Gray (1993) 13 Cal. App. 4th 611, 614. However, a deed must be acknowledged before it may be recorded [Gov. Code § 27287; see also Gov. Code § 27288. If the deed is acknowledged or proved and certified and recorded, it constitutes constructive notice of its contents to subsequent purchasers and mortgagees. Civ. Code § 1213. -5- P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF DWELLING 2012-1-CV-23068610 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A duly executed deed is presumed to have been delivered at its date. Civ. Code § 1055. Because a deed is deemed duly executed when it has been subscribed and delivered, this presumption arises only as to the date, not the fact of delivery. Code Civ. Proc. § 1933; Miller v. Jansen (1943) 21 Cal. 2d 473, 132 P.2d 801] Here, the Court must deny TITAN FISH FOUR, LLC’S fraudulent application for the sale of the dwelling located at 22040 Mount Eden Road, Saratoga (The “Dwelling”) because the minimum bid that will be received from the sale will NOT be more than the sum of the homestead exemption and the liens and encumbrances that are senior to TITAN FISH FOUR (“TITAN FISH”). In TITAN FISH’s application, it falsely represents that TITAN FISH’s lien has priority over P2 Capital’s lien. Filing a frivolous application to obtain an order of sale is outrages. The fraudulent application should have never been filed. P2 Capital’s Deed of Trust has Priority Here, the evidence before the Court will show definitively that P2 Capital’s lien has priority over TITAN FISH’s lien and as a result thereof, the application to sell the Dwelling must be denied. The law is clear that a deed is valid at the time at which it is executed and delivered. The failure to record a deed does not invalidate it (although recording a deed is prima facie evidence that the deed was executed). Here, the evidence before the Court (as illustrated in P2 Capital’s opposition and particularly the declaration of Marguerite McAfee (“McAfee Dec.” ), shows the following liens have priority over TITAN FISH: 5. Morgan Stanley deed of trust in the amount of $2,800.459.00, recorded May, 30, 2012 6. David Lies’ deed of trust in the amount of $1,570,1 12.00, recorded on June 1, 2012 7. P2 Capital’s deed of trust in the amount of $3,848,672,00, recorded on December 10, 2012, but EXECUTED and ACKNOWLEGED on July 2, 2012. 8. $100,000.00 Homestead Here, TITAN FISH acknowledges in its moving papers that C.C.P, § 704.800(a) prohibits the sale of the Dwelling unless the minimum bid that will be received from the sale will be more than the =6= P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF DWELLING 2012-1-CV-230686won 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sum of the homestead exemption and the liens and encumbrances that are senior to the TITAN FISH. See TITAN FISH’s application on page 3, paragraph 9 stating: “in calculating the minimum bid necessary under C.C.P. § 704.800(a), the minimum bid that will be received from a sale of a dwelling is the sum of the homestead exemption and the liens and encumbrances that are senior to Titan Fish Four.” TITAN FISH also acknowledges on page 3, paragraph 9, that the sale order is proper only “if the fair market value of the property exceeds the sum of the homestead exemption and the liens senior t the judgment being enforced.” In TITAN FISH’s application, it states that the appraised value of the property is $5,800,000.00. However, $5,800,000.00 is less than the amount of the senior liens. As indicated above, the senior liens on the property amount to $8,319,243.00. It is true that TITAN FISH’s lien and P2 Capital lien was recorded the same day, December 10, 2012. However, the law is clear that the validity of a deed is based on when it is executed, not when it was recorded. Therefore, here, P2 Capital’s lien had been valid for over five (5) months before TITAN FISH’s judgment lien was recorded. See McAfee Dec. §f 2-8, Exhibits B and C. Therefore, P2 Capital’s deed of trust is senior to TITAN FISH’s. P2 Capital is a third party entity. Judgment debtor, Eric McAfee has no ownership interest in P2 Capital. In fact, the Court released P2 Capital from a charging order earlier in this action because the judgment debtor has no interest in P2 Capital. See McAfee Dec. 49 1-8. B. Titan Fish’s Application and Conduct Are Fraudulent Here, TITAN FISH’s application is fraudulent because TITAN FISH knew full well that its lien is junior to P2 Capital, yet it still filed its application stating the opposite. Here, TITAN FISH FOUR’S owner, Joe Campbell tried to buy David Lies’ deed of trust (cited above) so that TITAN FISH could actually have a lien senior to P2 Capital (because as illustrated above, David Lies’ deed of trust is senior! to P2 Capital). See declaration of David Lies. In other words, TITAN FISH tried to buy David Lies’ Deed of trust because it knew by doing so it could honestly represent to the Court that it had a lien -7- P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF DWELLING 2012-1-CV-230686YT AO UW B® WH wo oO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 senior to P2 Capital. However, although David Lies refused to sell his deed of trust to TITAN FISH, TITAN FISH still filed its application for an order to sell the dwelling (and to justify said filing it falsely represented that TITAN FISH has a lien senior to P2 Capital). Apparently, TITAN FISH has no problem violating the law. It also broke the law when it directed their process server to enter into Marguerite McA fee’s home to serve her inside her house. See Declaration of Marguerite McAfee. C. Titan Fish Four Provides no Evidentiary Support for its Relief California Rule of court, 3.1306 makes clear that the only evidence that a court can considered on a noticed motions must be presented either by declarations or a requests for judicial notice. Here, TITAN FISH failed to provide any evidentiary support and personal knowledge of the facts to support its fraudulent application. It counsel falsely represents in its application that TITAN FISH has a senior lien to P2 Capital. It fails to provide any objective evidence. Instead, it provides a declaration from counsel stating based on counsel’s review of the public records, he believes the facts are true. Such a statement does not provide the requisite evidentiary support. Assuming that it does, the objective evidence makes clear that the verification is false. P2 Capital asks this Court to not consider any evidentiary support provided for the first time in any reply brief. See San Diego Watercrafts, Inc. v. Wells Fargo, N.A. (2002) 102 Cal.App.4th 308, 316, making clear that the court should not consider any new argument or evidence made in any reply brief because considering such evidence would deprive the responding party of due process. =Ga P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF DWELLING 2012-1-CV-23068610 11 12 13 14 15 16 17 18 19 20 21 22 23 24 20 26 27 28 CONCLUSION Four the reason stated above, the Court must deny TITAN FISH’s application to sell the dwelling. Dated: 10/05/18 ADE LAW GROUP AMIEL L. WADE Attorney for Third Party P2 CAPITAL and MARGUERITE MCAFEE -9- P2 CAPITAL, LLC’S OPPOSITION TO TITAN FISH FOUR’S APPLICATION FOR ORDER OF SALE OF DWELLING 2012-1-CV-230686