Application

Cal. Super. - 6th Dist.July 13, 2020

\OOOQQUI#UJNt-t NNNNNNNNNHr-tt-lt-lt-lr-Ar-Ar-Ar-‘H OOQONUI$UJNHOKOOOQONUIAUJNHO ZOCV368237 Santa Clara - Civil EDWARD A. TREDER State Bar No. 116307 LAWRENCE D. HARRIS State Bar N0. 153350 BARRETT DAFFIN 8: FRAPPIER TREDER 8: WEISS, LLP 3990 E. Concours St. Ste. 350 Ontario, CA 91764 (626) 371-7000 - Phone (972) 661-7709 - Fax larryh@bdfgr0up.c0m - Email File N0. 8251118 Attorneys for Plaintiff WELLS FARGO BANK, N. A. D Harris Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/16/2021 8:58 AM Reviewed By: D Harris Case #20CV368237 Envelope: 6040140 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA WELLS FARGO BANK, N. A., a national banking association, Plaintiff, vs. JOHNATHAN COVEY, an individual; and ALL PERSONS KNOWN OR UNKNOWN WHO CLAIM SOME RIGHT, TITLE, ESTATE, LIEN OR OTHER INTEREST IN THE SUBJECT PROPERTY; and DOES 1 to 10, Inclusive, . Defendants. . /// /// /// 1 CASE NO. 20CV368237 UNLIMITED CIVIL Assigned for A11 Purposes t0: The Hon. Thang N. Barrett APPLICATION FOR ENTRY OF DEFAULT JUDGMENT [CRC Rule 3.1800(a)] Declaration of Vikita Benard Reguest for Entry of De ault Judgment Request for Dismissal (DOES 1-10) [Proposed] Judgment PLAINTIFF WELLS FARGO BANK, N. A.’S APPLICATION FOR ENTRY OF DEFAULT JUDGMENT \OOONONUI-bUJNH NNNNNNNNNr-tr-tr-tr-KHr-tr-tr-tr-tr-t OOQQUI-RUJNh-‘OKOOOQONUI-hUJNHO Plaintiff WELLS FARGO BANK, N. A. (”Plaintiff” or ”Wells Fargo”) submits the following brief summary 0f the case, supporting declarations, and legal memorandum in support 0f its request for Judgment by Default against Defendant JOHNATHAN COVEY as provided by CRC Rule 3.1800 as follows: FACTUAL BACKGROUND In this action, Plaintiff seeks reformation, declaratory relief, specific performance and quiet title (hereinafter, ”Action”) regarding a deed of trust affecting title and the right to possession to the real property commonly known as 21 Angra Way, Gilroy, CA 95020 (the “Property”), which is legally described as set forth below [Declaration 0f Vikita Benard ‘115]. Defendant JOHNATHAN COVEY acquired title to the Property on or about March 26, 2016 by grant deed recorded 0n March 28, 2016 in the Official Records 0f Santa Clara County, concurrently With the Deed of Trust, at Instrument No. 23256797 (”Grant Deed”). The Grant Deed conveyed the Property to Covey as ”a married man as his sole and separate property.”. [Benard Decl. ‘116, Exhibit 1]. Plaintiff is the current beneficiary under that certain deed of trust recorded 0n March 28, 2016 as Instrument No. 23256799 in the Official Records of Santa Clara County (”Deed of Trust”). Pursuant t0 the terms 0f the Deed 0f Trust, Defendant JOHNATHAN COVEY ("Defendant” 0r “Covey”) is the trustor or borrower, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (”MERS”) was the original beneficiary as nominee for the ”Lender” CARDINAL FINANCIAL COMPANY (”Cardinal”) and Entitle Insurance Company was the original, nominal trustee. [Benard Decl. ‘117, Exhibit 2]. The Deed of Trust has been assigned to Plaintiff. The assignment was made by MERS t0 Plaintiff on or about April 13, 2018. The assignment was recorded 0n April 13, 2018 as Instrument No. 23909514 in the Official Records of the Santa Clara County Recorder’s Office. [Benard Decl. flI8, Exhibit 3]. 2 PLAINTIFF WELLS FARGO BANK, N. A.’S APPLICATION FOR ENTRY OF DEFAULT JUDGMENT \OOONONUI-bUJNH NNNNNNNNNr-tr-tr-tr-KHr-tr-tr-tr-tr-t OOQQUI-RUJNh-‘OKOOOQONUI-hUJNHO On or about March 25, 2016, Defendant JOHNATHAN COVEY executed a Promissory Note in the original sum 0f $633,912.00 in favor 0f Cardinal. To secure his repayment obligations under said Promissory Note, Defendant executed the subject Deed of Trust on or about March 25, 2016, conveying the power of sale to the Property to the trustee [Benard Decl. ‘119, Exhibit 4]. The Deed of Trust is a mortgage lien and encumbrance 0n the real property and improvements situate in Santa Clara County, commonly known as 21 Angra Way, Gilroy, CA 95020 (the ”Property”) and legally described as set forth below [Benard Decl. ‘I[10]. As part of the real estate transaction by Which Defendant JOHNATHAN COVEY acquired the Property, his wife, COURTNEY L. HAWKINS, conveyed her interest in the Property, if any, t0 Covey by Interspousal Grant Deed on March 26, 2016. The Interspousal Grant Deed was recorded in the Official Records 0f Santa Clara County, immediately prior to the Deed of Trust, at Instrument No. 23256798 (”Interspousal Grant Deed”). [Benard Decl. ‘I[11, Exhibit 5]. The Property is erroneously described in the Grant Deed, the Interspousal Grant Deed and Deed 0f Trust. The error is that the descriptions in these instruments misidentify the recording information for the tract map for the Property as ”Book 867, pages 17 through 21, inclusive of maps, amended December 13, 2013, in the office 0f the County Recorder of said county.” The tract map was never amended, but wasMon December 13, 2013 at Book 867, Pages 14 t0 21. [Benard Decl. flI12, Exhibit 6]. The legal description in the Grant Deed and the Deed of Trust are inconsistent with the legal description in the title documents which pre-date the Deed of Trust, including the tract map recited in the legal description. As a result, the incorrect legal description created a title defect in the Deed of Trust. The correct legal description, correctly reciting the [Benard Decl. ‘1113, Exhibit 7]. 3 PLAINTIFF WELLS FARGO BANK, N. A.’S APPLICATION FOR ENTRY OF DEFAULT JUDGMENT \OOONONUI-bUJNH NNNNNNNNNr-tr-tr-tr-KHr-tr-tr-tr-tr-t OOQQUI-RUJNh-‘OKOOOQONUI-hUJNHO Defendant is in default under the terms of the Promissory Note and Deed of Trust. The substituted trustee under the Deed of Trust, BARRETT DAFFIN FRAPPIER TREDER 8: WEISS, LLP, caused to be recorded a Notice of Default and Election t0 Sell 0n March 21, 2019 at Instrument N0. 24139638, Santa Clara County Records [Benard Decl. HIM, Exhibit 8]. As a result of the error in the legal description, the incorrect legal description created a title defect in the Deed of Trust. Plaintiff cannot exercise its remedies under the Deed 0f Trust, including foreclosure 0f the Property, due t0 the title defect. [Benard Decl. flIflI15-16]. The Deed of Trust does not accurately reflect unilateral and mutual agreement of Plaintiff’s predecessor in interest and understanding of the Borrower at the time she executed the Promissory Note and Deed of Trust. The incorrect legal description on said Deed of Trust was recorded against the Property through inadvertence, error and mistake, but not the mistake of Plaintiff. It was the intent of all parties that Plaintiff’s Deed 0f Trust would encumber the entire fee title 0f the Property in first priority position and therefore operate as an effective encumbrance 0n, and a security interest in, the entire fee title of the Property. However due reasons unbeknownst to Plaintiff and Defendant, Plaintiff’s Deed 0f Trust does not encumber the entire fee title t0 the Property because of the incorrect legal description in the Deed 0f Trust [Benard Decl. $17} Plaintiff seeks a declaratory judgment and reformation of the Grant Deed and the Deed 0f Trust correcting the erroneous legal descriptions. [Benard Decl. HHS]. Plaintiff desires entry of judgment by default as to Defendant JOHNATHAN COVEY for the following relief: that the Grant Deed and the Deed 0f Trust are reformed t0 include the correct legal description for the subject Property, as set forth 0n Exhibit ”7” attached to the Declaration filed concurrently herewith. 4 PLAINTIFF WELLS FARGO BANK, N. A.’S APPLICATION FOR ENTRY OF DEFAULT JUDGMENT \OOONONUI-bUJNH NNNNNNNNNr-tr-tr-tr-KHr-tr-tr-tr-tr-t OOQQUI-RUJNh-‘OKOOOQONUI-hUJNHO Defendant JOHNATHAN COVEY was served on August 9, 2020 and failed to respond to the Complaint. A request for entry 0f default was filed herein on October 5, 2020. LEGAL BASIS FOR REFORMATION Plaintiff seeks reformation 0n the ground 0f one party's mistake that the other party, at the time of the March 2016 loan, either knew 0r suspected that the Deed of Trust did not express the parties’ intention to convey and encumber the Property located at 21 Angra Way, Gilroy, CA 95020 through a true and correct legal description by inadvertently using an incorrect legal description appended to the Deed of Trust. Alternatively, Plaintiff seeks reformation on the ground of mutual mistake concerning the failure of the Deed 0f Trust to express each party’s intention to convey and encumber the subject Property. PLAINTIFF IS ENTITLED TO A DECLARATORY IUDGMENT TO REFORM THE LEGAL DESCRIPTION IN THE DEED OF TRUST Civil Code §3399 provides as follows with respect to the remedy of reformation: When, through fraud 0r a mutual mistake 0f the arties, or a mistake of one par , which the other at the time new or suspected, a written contract oes not truly express the intention 0f the parties, it may be revised on the a plication of a party ag rieved, so as to express that intention, so ar as it can be done Wit out prejudice t0 rights acquired by third persons, in good faith and for value. Reformation is proper in this case due to the mutual mistake of the parties to Plaintiff’s Deed 0f Trust as t0 the misdescription 0f the subject Property. Deed 0f Trust did not ”truly express the intention 0f the parties” t0 the deed. CCP §1061 provides that ”a person with an interest under a written instrument may obtain a judicial declaration 0f respective rights and duties under the instrument, unless such relief would not be “necessary or proper at the time under all the circumstances.” Upon an action for declaratory relief the Court may determine the parties’ rights and obligations with respect t0 a trust deed. (See, Dunlap v. Hersum Lumber C0. (1954) 126 Cal. App. 2d 815.) 5 PLAINTIFF WELLS FARGO BANK, N. A.’S APPLICATION FOR ENTRY OF DEFAULT JUDGMENT \OOONONUI-bUJNH NNNNNNNNNr-tr-tr-tr-KHr-tr-tr-tr-tr-t OOQQUI-RUJNh-‘OKOOOQONUI-hUJNHO Declaratory relief is one of the most regularly used remedies to clarify title. (See, e.g., Bryant v. Blevins (1994) 9 Ca1.4th 47.) Plaintiff contends that a judicial declaration is necessary, equitable and appropriate on the facts alleged in the Complaint 0n file and in the declaration in support of this application. In this case, reformation and declaratory relief is proper, as the parties intended that the Deed of Trust would properly describe and convey the Property, and that the Deed 0f Trust would be a valid and enforceable encumbrance 0n the Property. CONCLUSION Based on the foregoing, declaratory relief is ”necessary and proper. . .under all the circumstances” of this case. Plaintiff respectfully requests that judgment be entered in its favor. DATED this 16th day 0f March, 2021. BARRETT DAFFIN FRAPPIER TREDER 8t WEISS, LLP wm&.@n_i\ EmvardA. Treder, Esq. Lawrence D. Harris, Esq. Attorneys for Plaintiff WELLS FARGO BANK, N. A. 6 PLAINTIFF WELLS FARGO BANK, N. A.’S APPLICATION FOR ENTRY OF DEFAULT JUDGMENT M&MN \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE BY U.S. MAIL (C.C.P. 1013a, 2015.5, FRCP 5(d)) I, Anthony Jordan, declare as follows: I am employed in San Bernardino County at 3990 E. Concours Street, Suite 350, Ontario, California 91765. I am over the age of eighteen years and am not a party to this action. On March 16, 2021, I served the attached document on the interested parties in this action, addressed as shown on the ATTACHED SERVICE LIST. D BY MESSENGER, SAME DAY DELIVERY - By placing the document into an envelope addressed to each person shown on the service list and delivering the sealed envelope t0 a professional messenger service for personal, same day delivery. BY MAIL - By placing the document into an envelope and depositing the sealed envelope, with osta e thereon fully repaid, addressed to each person shown 0n the service list, or co lection and mai ing following ordinary business practices. I am readily familiar with the firm’s practice of collection and processin 0f corres ondence for mailing. Under that practice, it would be deposite with the Unite States Postal Service 0n that same day in the ordinary course of business. BY FEDERAL EXPRESS - By placing the document into an envelope and depositing the sealed envelope, with overnight delivery fees paid, addressed to each person shown on the service list, in a facility regularly maintained by Federal Ex ress 0r delivering the same to a driver authorized by Federal Express to receive ocuments. BY FACSIMILE - By sending the document Via facsimile from (972) 661-7709 to each person and facsimile number shown on the service list. The transmission was reported as complete and without error. A copy 0f the activity report(s) generated by the facsimile machine is attached hereto. BY EMAIL - By sending the document Via email from anthoni@bdfgroup.com to each person and email address shown on the service list STATE - I declare under penalty of perjury under the laws of the State of California that the foregoing facts are true and correct. FEDERAL - I declare under penalty of perjury under the laws of the United States 0f America that the foregoing facts are true and correct and that I am em loyed in the Office of a member of the Bar at whose direction the service was ma e. Executed 0n March 16, 2021, at Ontario, California. WW Qrmwtw Anthdfiy Jgrdan PROOF OF SERVICE -1- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Wells Fargo Bank, N.A. v. Iohnathan Covey, et al. Santa Clam County Superior Court Case No. 20CV368237 Johnathan Covey 21 Angra Way Gilroy, CA 95020 Defendant in Pro Per PROOF OF SERVICE -2-