Xu, et al v. Ip, et al

Filing 88

ORDER DENYING 87 Application for Writ of execution and judicial sale of residential real property filed by Dongming Xu. Signed by Judge D. Lowell Jensen on 10/7/08. (Attachments: # 1 Proof of Service)(fs, COURT STAFF) (Filed on 10/7/2008)

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DONGMING XU,

) ) Plaintiff, ) ) v. ) ) ) ) YUN SANG IP, and ) SUN HING COMMODITY, LTD., ) ) Defendants. ) ______________________________)

No.

CV-91-01178-DLJ ORDER

On July 22, 2008, plaintiff Dongming Xu ("Xu") filed an application seeking (1) a writ of execution to enforce his money judgment, and (2) a judicial sale of residential real property owned by defendant Yun Sang Ip ("Ip"). opposition. Ip did not file an

United States District Court

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For the Northern District of California

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Having considered the papers submitted and the

applicable law, the Court hereby DENIES the application. I. BACKGROUND A. Factual Background and Procedural History On April 18, 1991, Xu filed a pro se complaint for fraud against Ip. On August 28, 1992, the Court granted default judgment The Court awarded Xu money damages in the amount

in favor of Xu. of $60,203.

Since that time, Xu has renewed his judgment every

five years: on August 28, 1997; August 28, 2002; and August 28, 2007. Due to the accrual of interest over time, the value of the

judgment has increased to $203,184. Xu has been unsuccessful in enforcing his judgment. On July

22, 2008, Xu filed the instant application seeking a writ of execution pursuant to Federal Rule of Civil Procedure ("FRCP") 69.

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In conjunction with the writ, Xu moves for the sale of a house owned by Ip in Rosemead, California. Angeles County. B. Legal Standard Under FRCP 69, a money judgment must be enforced by a writ of execution. Fed. R. Civ. P. 69(a)(1). The writ process is governed Id. Rosemead is located in Los

by the law of the state where the presiding court is located.

In California, once a court has entered a money judgment, the court clerk must issue a writ of execution upon application of the judgment creditor. See Cal. Civ. Proc. Code § 699.510(a). In most

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For the Northern District of California

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cases, the issuance of the writ is a ministerial act which the clerk has no discretion to refuse. 216 Cal. App. 3d 1370, 1376 (1989). See In re Marriage of Farner, Judicial action is only

required if the judgment is conditional, or if there is some question regarding the value of the judgment. See id.

Special rules apply when the judgment creditor seeks the forced sale of a dwelling. Under the so-called homestead exemption, the

judgment creditor must obtain a writ of execution and have it executed by the appropriate levying officer. Code § 704.750(a). ordered sale. See Cal. Civ. Proc.

Only then may the creditor move for a court-

See, e.g., id.; In re Marriage of Schenck, 228 Cal. The motion for sale must be heard in See Cal. Civ. Proc. Code

App. 3d 1474, 1477-78 (1991).

the county where the dwelling is located. § 740.750(b)(1). 2

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II. DISCUSSION Xu has not followed the proper procedure for obtaining a writ of execution. No part of Xu's judgment was conditional or unclear As a result, there is no need for judicial Accordingly, Xu's application is

as to the amount due.

consideration of the matter. improperly before the Court.

Xu also failed to follow the proper procedure for obtaining the court-ordered sale of a dwelling. writ or had it executed. Xu has not yet obtained a valid

As a result, Xu's motion is premature.

United States District Court

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For the Northern District of California

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Even if the motion were timely, however, this Court -- sitting in the Northern District of California -- lacks jurisdiction over property located in Los Angeles County. Xu contends the homestead

exemption might not apply to this case because there is evidence that Ip does not live at the Rosemead property. The record is not

clear on this issue, however, and this Court is not the proper venue to engage in argument on the substance of the homestead exemption. III. CONCLUSION Based on the foregoing, the Court hereby DENIES the application. IT IS SO ORDERED

Dated: October 7, 2008

_________________________ D. Lowell Jensen United States District Judge 3