Countrywide Home v. Country Home Loans, et al
Filing
337
DIRECTIONS FOR ADDITIONAL BRIEFING; ORDER, signed by District Judge Anthony W. Ishii on 5/5/2015. (IT IS HEREBY ORDERED that: 1. The parties file simultaneous briefings on or before 5/18/2015 and replies on or before 5/25/2015 about how the rule of mandate applies to this matter (1) generally in relation to the writs of execution and the abstract of judgment and (2) specifically to the order setting the amount of the equitable lien.)(Gaumnitz, R)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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COUNTRYWIDE HOME LOANS, Inc. a
New York Corporation,
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v.
UNITED STATES OF AMERICA, acting (DOC. 331 & 332)
through the Internal Revenue Service, et. al.
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Defendants.
___________________________________
LA JOLLA GROUP II, a California general
partnership, and TERRANCE FRAIZER,
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DIRECTIONS FOR ADDITIONAL
BRIEFING
Plaintiff,
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1:02-CV-6405-AWI-SMS
Counter-Claimants,
v.
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COUNTRYWIDE HOME LOANS, INC., a
New York corporation; NEVADA TRUST
DEED SERVICES, INC., a Nevada
corporation; LA SALLE NATIONAL
BANK as TRUSTEE FOR AVONDALE
HOME EQUITY LOAN TRUST 1998-1, an
entity form unknown; UNITED STATES
OF AMERICA, acting through the
INTERNAL REVENUE SERVICE; CTC
REAL ESTATE SERVICES, a California
corporation; ROBERT G. GONZALES, an
individual; and MARISELA GONZALES,
an individual,
Counter-Defendants.
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The present motion, and later application, between Plaintiff Countrywide Home
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Loans, Inc. (“Countrywide”) and Counter-Claimants La Jolla Group II (“La Jolla”) and
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Terance Frazier first came before the court on February 26, 2015. The court now issues
further directions for clarification.
On October 5, 2010, the Ninth Circuit reversed and remanded this court’s October
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25, 2007 judgment in the matter and, among other findings, concluded that “[b]ecause
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[La Jolla and Frazier] aren’t bona fide purchasers, Countrywide retains a valid lien on the
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home. Countrywide hasn’t shown that it will be prejudiced by having to enforce this lien
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through a judicial foreclosure proceeding. See 4 Miller & Starr § 10:32 (equitable
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creditor’s remedy is limited to judicial foreclosure).” Doc. 43-1, p. 4-5.
On remand, this court issued a judgment with nine orders including that title to the
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subject real property be quieted in favor of La Jolla and Frazier, that this title to the
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property was subject to the pre-foreclosure tax liens, and that the amount of the equitable
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lien awarded to Countrywide consisted of the indebtness due under the deed of trust. See
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Doc. 314.
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In response to Countrywide’s motion, this court then issued an order setting the
amount of the equitable lien in the sum of $342,666.07 as of January 18, 2013 and
$31.9713 per diem thereafter. See Doc. 322. Subsequently, at the request of
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Countrywide, the clerk of the court issued two writs of execution and an abstract of
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judgment. See Doc. 324, 326-27, 329-30. A notice of levy was soon posted on the
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subject real property. See Doc. 331-3., Exh. F-G.
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This court has concerns about how the rule of mandate might apply to this matter
(1) generally in relation to the writs of execution and the abstract of judgment and (2)
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specifically to the order setting the amount of the equitable lien. See Hall v. City of Los
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Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). The court finds that it is appropriate for
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the parties to submit additional briefing on these issues.
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ORDER
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Accordingly, IT IS HEREBY ORDERED that:
1. The parties file simultaneous briefings on or before May 18, 2015 and replies on
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or before May 25, 2015 about how the rule of mandate applies to this matter (1)
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generally in relation to the writs of execution and the abstract of judgment and (2)
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specifically to the order setting the amount of the equitable lien.
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IT IS SO ORDERED.
Dated: May 5, 2015
SENIOR DISTRICT JUDGE
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