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Shelby E. Barry v. Oc Residential Properties

April 26, 2011

SHELBY E. BARRY, PLAINTIFF AND APPELLANT,
v.
OC RESIDENTIAL PROPERTIES, LLC, DEFENDANT AND RESPONDENT.



Super. Ct. No.30-2009-00302508 Appeal from an order of the Superior Court of Orange County, Robin Brandes-Gibbs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

The opinion of the court was delivered by: Rylaarsdam, Acting P. J.

CERTIFIED FOR PUBLICATION

OPINION

Plaintiff Shelby E. Barry filed a petition in the superior court to determine the redemption price for her unit in a common interest development that defendant OC Residential Properties, LLC had acquired at a non-judicial foreclosure sale. (Civ. Code, § 1367.1, subd. (g); Code Civ. Proc., § 729.070, subd. (a).) The trial court ruled the amount due was $18,148.71, a sum that included over $17,900 in expenses defendant paid for maintenance and repair work on the unit after the foreclosure sale, an electric bill, and interest on the foreclosure sale purchase price. Plaintiff challenges the inclusion of these sums in the redemption price and the constitutionality of the procedure for determining the amount she needed to pay to redeem the property. Finding no error, we shall affirm the order.

FACTS

In 1977, plaintiff acquired a unit in a common interest development. Over the years, she leased the unit to others.

Plaintiff failed to pay the monthly association fee. In June 2008, Associated Lien Services, the trustee under an October 2006 lien recorded by the homeowners association, issued a notice of trustee's sale. According to the notice, "the unpaid balance of the obligation secured by the property," plus costs, exceeded $10,000. Initially, the sale was scheduled for July 2008 but it was continued until June 17, 2009.

On the latter date, defendant purchased the unit at the foreclosure sale for $66,092.60. The sale was subject to plaintiff's right of redemption.

At the time of the foreclosure sale the unit was vacant. In a declaration supporting her petition, plaintiff claimed her "last tenant made substantial improvements" and the property was "in a condition such that I could re-rent it" with only some "minimal cleaning . . . ."

After purchasing the unit at the foreclosure sale, defendant paid a locksmith $336.11 to change the locks. One of its employees claimed, "Upon entering the . . . property on 6/17/09, . . . [defendant] discovered the property in need of repair and rehabilitation."

Between June 22 and July 2 defendant: (1) paid a pest control company $800 to repair termite damage to the unit; (2) hired a contractor to make repairs, paying $16,800 for the work; and (3) paid an electricity bill for $17.15.

In her declaration, plaintiff claimed that, on July 3, she had a locksmith replace the locks. She also asserted "[a]n inspection of [the] property was made at that time which disclosed . . . the work undertaken by [defendant] was not complete," and the unit "could not be rented in the condition it was in."

The trustee sent plaintiff a letter enclosing a schedule showing the balance due to redeem the unit was $29,548.71 after deducting nearly $57,900 then held in trust. The schedule included the sums mentioned above, plus two months homeowners' association assessments, taxes, collection costs, and $770 for two months' interest on defendant's purchase price. Plaintiff objected to including the repair expenses, utility payment, and interest in the redemption price. She deposited $11,500 with the trustee and filed the current petition for a judicial determination of the amount owed.

After a hearing, the court issued an order declaring "the additional amount required to redeem the property total[ed] $18,148.71," constituting the difference between plaintiff's deposit and the balance claimed by the trustee. In part, the court found plaintiff "failed to meet her burden of proof to show that the work performed was not for the reasonable maintenance, upkeep, and repair of improvements on the property." Although not supported by ...


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