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1 McCARTHY & HOLTHUS, LLP
Seth Harris, Esq. (SBN: 253802)
2 Kelsey Luu, Esq. (SBN: 315593) E-FILED
2763 Camino Del Rio S., Suite 100 4/8/2021 3:20 PM
3 San Diego, CA 92108 Superior Court of California
Telephone: (619) 685-4800 County of Fresno
4 Facsimile: (619) 685-4811
Email: Kluu@mccarthyholthus.com By: I. Herrera, Deputy
5
Attorneys for Plaintiff,
6 Lakeview Loan Servicing, LLC
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF FRESNO
10
LAKEVIEW LOAN SERVICING, LLC,
Case No. 20CECG00575
Plaintiff,
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
V.
REQUEST OF ENTRY OF DEFAULT
JUDGMENT
CARLOS L. ACOSTA; and DOES 1 through
50 inclusive,
[C.C.P. § 585]
Defendants.
Complaint Filed: February 14, 2020
Filed Concurrently With :
(1) Declaration in Support of Default
Judgment;
(2) Request for Judicial Notice;
19 (3) Request for Waiver of Live Testimony;
and
20 (4) [Proposed} Judgment
21 Plaintiff Lakeview Loan Servicing, LLC ("Lakeview") hereby submits the following
22 Memorandum of Points and Authorities in support of its Request for Entry a Court's Default
23 Judgment.
24 Ill
25 Ill
26 Ill
27 Ill
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
CA- 19-876477-DCR
REQUEST OF ENTRY OF DEFAULT JUDGMENT
1 A. FACTUAL AND PROCEDURAL BACKGROUND
2 1. THE PROPERTY HISTORY
3 This action pertains to the real property commonly known as 2356 Northview Street,
4 Selma, CA 93662 ("Subject Property") and legally described as follows:
5 LOT 15 OF TRACT 4174 IN THE CITY OF SELMA, COUNTY OF FRESNO,
STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF
6 RECORDED IN BOOK 55 PAGES 54 AND 55 OF PLATS, FRESNO
7 COUNTY RECORDS.
8 ("Correct Legal Description") [Emphasis added].
9 On March 9, 2018, Scott Simmer executed a Grant Deed transferring title to the Subject
10 Property to Defendant Carlos L. Acosta ("Acosta") ("Grant Deed"). On March 29, 2018, the
2018 Grant Deed was recorded in the Official Records of Fresno County as Instrument Number
2018-0037600-00. (See Request for Judicial Notice ("RJN"), Ex 1.) The Grant Deed contains the
following incorrect legal description for the Subject Property:
LOT 15 OF TRACT 4174 IN THE CITY OF SELMA, COUNTY OF FRESNO,
STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF
RECORDED IN BOOK 35 PAGES 54 AND 55 OF PLATS, FRESNO
COUNTY RECORDS.
("Incorrect Legal Description") [Emphasis added].
On March 28, 2018, Jennifer M. Acosta executed an Interspousal Transfer Deed
19 transferring title to the Subject Property to Mr. Acosta ("Interspousal Deed"). On March 29,
20 2018, the Interspousal Deed was recorded in the Official Records of Fresno County as Instrument
21 Number 2018-0037601-00. (See RJN, Ex 2.) Similar to the Grant Deed, the Interspousal Deed
22 contains the Incorrect Legal Description for the Subject Property.
23 On March 28, 2018, Mr. Acosta executed a Deed of Trust securing a $239,481.00 loan in
24 favor of Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for Bay Equity
25 LLC ("DOT"), for which the Subject Property served as security. On March 29, 2018, the DOT
26 was recorded in the Official Records of Fresno County as Instrument Number 2018-003 7602-00
27 (See RJN, Ex 3.) Similar to the Grant Deed and Interespousal Deed, the DOT contains the
28
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
CA- 19-876477-DCR
REQUEST OF ENTRY OF DEFAULT JUDGMENT
1 Incorrect Legal Description for the Subject Property. Lakeview is the current beneficiary under
2 the DOT. (See, Declaration,~ 12.)
3 Lakeview's security interest in the Subject Property under the DOT is still valid and
4 enforceable as a senior encumbrance on the Subject Property. (Deel. ~ 15 and 16.) Around
5 December 2019, Lakeview discovered that the Grant Deed, Interspousal Deed, and DOT
6 contained the Incorrect Legal Description. Specifically, the Grant Deed, Interspousal Deed, and
7 DOT referenced the Map recorded in Book 35 . However, it should be the Map recorded in Book
8 55 as reflected in the Correct Legal Description. Lakeview bases this belief on (i) the City of
9 Selma Tract Map No . 4147, which references that the map is recorded in Book 55 , and (ii) the
10 Assessor's Map, which also references that the City of Selma Tract Map No . 4147 is recorded in
~ 11 Book 55 . (See, Declaration , ~ 13 .)
~
~ "'
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1 McCARTHY & HOLTHUS, LLP Seth Harris, Esq. (SBN: 253802) 2 Kelsey Luu, Esq. (SBN: 315593) E-FILED 2763 Camino Del Rio S., Suite 100 4/8/2021 3:20 PM 3 San Diego, CA 92108 Superior Court of California Telephone: (619) 685-4800 County of Fresno 4 Facsimile: (619) 685-4811 Email: Kluu@mccarthyholthus.com By: I. Herrera, Deputy 5 Attorneys for Plaintiff, 6 Lakeview Loan Servicing, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF FRESNO 10 LAKEVIEW LOAN SERVICING, LLC, Case No. 20CECG00575 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF V. REQUEST OF ENTRY OF DEFAULT JUDGMENT CARLOS L. ACOSTA; and DOES 1 through 50 inclusive, [C.C.P. § 585] Defendants. Complaint Filed: February 14, 2020 Filed Concurrently With : (1) Declaration in Support of Default Judgment; (2) Request for Judicial Notice; 19 (3) Request for Waiver of Live Testimony; and 20 (4) [Proposed} Judgment 21 Plaintiff Lakeview Loan Servicing, LLC ("Lakeview") hereby submits the following 22 Memorandum of Points and Authorities in support of its Request for Entry a Court's Default 23 Judgment. 24 Ill 25 Ill 26 Ill 27 Ill 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA- 19-876477-DCR REQUEST OF ENTRY OF DEFAULT JUDGMENT 1 A. FACTUAL AND PROCEDURAL BACKGROUND 2 1. THE PROPERTY HISTORY 3 This action pertains to the real property commonly known as 2356 Northview Street, 4 Selma, CA 93662 ("Subject Property") and legally described as follows: 5 LOT 15 OF TRACT 4174 IN THE CITY OF SELMA, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF 6 RECORDED IN BOOK 55 PAGES 54 AND 55 OF PLATS, FRESNO 7 COUNTY RECORDS. 8 ("Correct Legal Description") [Emphasis added]. 9 On March 9, 2018, Scott Simmer executed a Grant Deed transferring title to the Subject 10 Property to Defendant Carlos L. Acosta ("Acosta") ("Grant Deed"). On March 29, 2018, the 2018 Grant Deed was recorded in the Official Records of Fresno County as Instrument Number 2018-0037600-00. (See Request for Judicial Notice ("RJN"), Ex 1.) The Grant Deed contains the following incorrect legal description for the Subject Property: LOT 15 OF TRACT 4174 IN THE CITY OF SELMA, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 35 PAGES 54 AND 55 OF PLATS, FRESNO COUNTY RECORDS. ("Incorrect Legal Description") [Emphasis added]. On March 28, 2018, Jennifer M. Acosta executed an Interspousal Transfer Deed 19 transferring title to the Subject Property to Mr. Acosta ("Interspousal Deed"). On March 29, 20 2018, the Interspousal Deed was recorded in the Official Records of Fresno County as Instrument 21 Number 2018-0037601-00. (See RJN, Ex 2.) Similar to the Grant Deed, the Interspousal Deed 22 contains the Incorrect Legal Description for the Subject Property. 23 On March 28, 2018, Mr. Acosta executed a Deed of Trust securing a $239,481.00 loan in 24 favor of Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for Bay Equity 25 LLC ("DOT"), for which the Subject Property served as security. On March 29, 2018, the DOT 26 was recorded in the Official Records of Fresno County as Instrument Number 2018-003 7602-00 27 (See RJN, Ex 3.) Similar to the Grant Deed and Interespousal Deed, the DOT contains the 28 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CA- 19-876477-DCR REQUEST OF ENTRY OF DEFAULT JUDGMENT 1 Incorrect Legal Description for the Subject Property. Lakeview is the current beneficiary under 2 the DOT. (See, Declaration,~ 12.) 3 Lakeview's security interest in the Subject Property under the DOT is still valid and 4 enforceable as a senior encumbrance on the Subject Property. (Deel. ~ 15 and 16.) Around 5 December 2019, Lakeview discovered that the Grant Deed, Interspousal Deed, and DOT 6 contained the Incorrect Legal Description. Specifically, the Grant Deed, Interspousal Deed, and 7 DOT referenced the Map recorded in Book 35 . However, it should be the Map recorded in Book 8 55 as reflected in the Correct Legal Description. Lakeview bases this belief on (i) the City of 9 Selma Tract Map No . 4147, which references that the map is recorded in Book 55 , and (ii) the 10 Assessor's Map, which also references that the City of Selma Tract Map No . 4147 is recorded in ~ 11 Book 55 . (See, Declaration , ~ 13 .) ~ ~ "' 00 :il"'