CLERK, BOARD OF SUPERVISORS€¦ · RECOMMENDATION Pursuant to the applicable provisions of the...

Honorable Board of Supervisors May 8, 2017

CLERK, BOARD OF SUPERVISORS

May 8, 2017

Board of Supervisors

County of Alameda 1221

Oak Street

Oakland CA 94612 Dear

Board Members:

SUBJECT: Claims for Excess Proceeds -2014 & 2015 Tax Defaulted Property Sales

RECOMMENDATION

Pursuant to the applicable provisions of the Revenue and Taxation Code, it is recommended that

your Board approve the Hearing Officer's decisions regarding the Excess Proceeds Claims from

tax defaulted property sales of 2014 and 2015, included in Attachment A and authorize the

Auditor Controller to distribute the excess proceeds to the affected claimants pursuant to the

Hearing Officer's decision detailed in Attachment B.

Claimants Parcel No.(s)

A. Edmund Ko 48F-7379-6

B. April Dabney-Froe, Administrator of Estate of James Webb 52-1524-11

C. EBMUD 5-462-24

D. State Franchise Tax Board 5-462-24

E. Global Discoveries, Ltd on assignment from Anomie Means 5-462-24

F. Global Discoveries, Ltd on assignment from Carolyn Jacobs 5-462-24

G. Global Discoveries, Ltd on assignment from Rosalee White 5-462-24

H. Global Discoveries, Ltd on assignment from Pamela White 5-462-24

I. Global Discoveries, Ltd on assignment from Lawrence White 5-462-24

J. Mona Kwong 37A-2783-10

K. Global Discoveries, Ltd on assignment from Hwee Lu Siow 80A-216-16-1

L. Global Discoveries, Ltd on assignment from Plumie Dancey 20-147-14

M. New Genesis Praise Missionary Church and food Ministry, Inc. 20-147-14

N. Chabot Park Highlands Association 48-6258-1-30

O. DeSilva Gates Construction LP 83-265-3-1

DISCUSSION/SUMMARY

The Tax Collector conducted sales of tax defaulted properties in 2014 and 2015. Any excess in the

proceeds of these sales, over and above the amounts collected to satisfy the tax delinquencies,

were deposited by the Tax Collector in a delinquent tax sale trust fund.


The excess proceeds were subject to claims made by parties of interest in accordance with

applicable provisions of the California Revenue and Taxation Code. All claimants were given the

opportunity for a hearing before the Assessment Hearing Officer to establish the priority and extent of

their claims.

The Hearing Officer has rendered his written decisions on these claims, which is now being submitted

to your Board for approval. Approval of the decisions listed in Attachment B will result in the

Auditor-Controller distributing the excess proceeds.

FINANCING

There is no impact on the General Fund. Excess proceed claims are paid from funds held in trust.

Sincerely,

ACB:db P:\LegalHO\bdltr_05_23_17

Attachments

cc: Auditor-Controller

File

Anika Campbell-Belton

Clerk, Board of Supervisors

CLAIMANTS:

PARCEL: FILE NOS:

HEARING DATE: AGENDA NUMBERS: HEARING OFFICER:

FACTS

DECISION OF LEGAL HEARING OFFICER COUNTY OF ALAMEDA

Attachment A

GLOBAL DISCOVERIES, LTD., as assignee of VY A. TRUONG, EDMUND KO 48F-7379-6 2014-94013, 2014-94023 (EXCESS PROCEEDS 2014) MARCH 16, 2017 SIXTEEN, SEVENTEEN JED SOMIT, Attorney at Law

Two distinct Claims for Excess Proceeds were filed seeking the $65,380.05 in

excess proceeds after the March, 2014, tax default auction sale of this parcel.

A. 2014-94013. Global Discoveries, Ltd., as assignee of Vy A. Truong, seeks

the entire amount, by Claim filed July 11, 2014.

The Claim is substantively supported by a Grant Deed recorded in 2001, by

which the parcel was granted to "Vy A. Truong, a single man." A Declaration of One

and the Same Person avers that Global's assignor is the same person as the grantee

under that deed.

B. 2014-94023. Edmund Ko filed his Claim on November 4, 2014, seeking more

than the excess proceeds available. His Claim is substantively supported by a Short

Form Deed of Trust and Assignment of Rents recorded on May 2, 2008, reciting an

indebtedness of $100,000, in which Vy A. Truong is the Grantor and Edmund Ko the

Beneficiary. The copy of the Deed of Trust provided does not included the Exhibit A

referenced, so the deed's connection to this parcel cannot be completely verified,

HEARING OFFICER DECISION Page 1

although the parcel number appears at the top of the second page of the Deed of Trust.

A copy of a Note Secured by Deed of Trust is also provided; the principal sum is

$100,000, with an interest rate of five per cent per annum, and a due date of May 1,

2018. Claimant supplied an Interest Statement showing an additional $32,069.44 in

interest had accrued to the date of the Claim.

The Claims and supporting materials were analyzed in the Memorandum for the

Office of the County Counsel, dated September 30, 2016, by Deputy County Counsel

Farand C. Kan and Paige N. Pembrook, Graduate Law Clerk. The Memorandum

concludes that both Claims were filed timely.

The Memorandum notes that Global Discoveries may have to prove it is a valid

business, and Mr. Ko must establish that the Deed of Trust was an encumbrance on

the parcel and be more explicit that no payments were made on the Promissory Note.

If both Claims are established, the Ko Claim would have priority.

Hearing March 16, 2017

At the hearing on March 16, 2017, representatives of each claimant appeared.

Jed Byerly appeared for Global Discoveries, Ltd; Mr. Alex Yen, an assistant to and

representing claimant Mr. Ko, appeared pursuant to authority in a power of attorney.

Mr. Yen submitted into evidence a full Deed of Trust, marked as Exhibit 1. This

removes any question that the Deed of Trust encumbered the parcel at issue.

Mr. Yen testified that no payments were received on the secured obligation. He

stated that Mr. Ko personally told him that no payments were received either on

principal or interest. He also submitted an Interest Statement, sworn to be true and

HEARING OFFICER DECISION Page2

correct, which was marked as Exhibit 2.

Mr. Byerly stated he had no objections to the Ko Claim, and remarked that the

signature on the Deed of Trust seems to be the signature of his assignor.

The matter was submitted.

DECISION

The Claim for Excess Proceeds of Edmund Ko is granted as to the entire amount

of the excess proceeds. Claimant Ko shall accord a credit to Vy A Truong in the

amount received in any further collection proceedings on the promissory note.

The Claim for Excess Proceeds of Global Discoveries, Ltd., as assignee of Vy A

Truong is denied.

RATIONALE

Revenue & Taxation Code §4674 directs that excess proceeds may be claimed

by parties of interest in the property as provided in Section 4675. Unclaimed excess

proceeds may be transferred to the county general fund.

Revenue & Taxation Code §4675(a) provides that any party of interest in the

property may file with the county a claim for the excess proceeds, in proportion to his or

her interest held with others of equal priority in the property at the time of sale, at any

time prior to the expiration of one year following the recordation of the tax collector's

deed to the purchaser.

Section 4675(b) continues: "After the property has been sold, a party of interest


in the property at the time of the sale may assign his or her right to claim the excess

proceeds only by a dated, written instrument that explicitly states that the right to claim

the excess proceeds is being assigned, and only after each party to the proposed

assignment has disclosed to each other party to the proposed assignment all facts of

which he or she is aware relating to the value of the right that is being assigned. Any

attempted assignment that does not comply with these requirements shall have no

effect .... "

Section 4675(c) adds further requirements for assignment: "Any person or entity

who in any way acts on behalf of, or in place of, any party of interest with respect to

filing a claim for any excess proceeds shall submit proof with the claim that the amount

of excess proceeds has been disclosed to the party of interest and that the party of

interest has been advised of his or her right to file a claim for the excess proceeds on

his or her own behalf directly with the county at no cost."

The Global Discoveries, Ltd. claim is based upon an assignment, but in light of

the eventual decision, the assignment materials will not be analyzed.

Section 4675(e)(1) defines the parties of interest who may make a claim:

[T]he excess proceeds shall be distributed on order of the board of supervisors to the parties of interest who have claimed the excess proceeds in the order of priority set forth in subdivisions (a) and (b). For the purposes of this article, parties of interest and their order of priority are:

(A) First, lienholders of record prior to the recordation of the tax deed to the purchaser in the order of their priority.

(B) Second, any person with title of record to all or any portion of the property prior to the recordation of the tax deed to the purchaser.

All Claims for Excess Proceeds were timely filed.


The Ko Claim is based upon a recorded Deed of Trust. There was sufficient

evidence that the lien was properly recorded, and that the Deed of Trust pertains to the

parcel at issue. Mr. Ko established himself as a party of interest of the First Priority.

No payments were made on the $100,000 principal, so at least $100,000

remains due, which is more than the excess proceeds available. Thus, it is not

necessary to determine what amount of interest is due on the obligation.

Since there are no funds remaining to distribute on Global Discoveries' Claim, it

must be denied, even if in the absence of the Ko Claim it would be successful.

Dated: April 24, 2017

~~~--Jed Samit Assessor Legal Hearing Officer


CLAIMANTS:

PARCEL: FILE NOS:

HEARING DATE:

AGENDA NUMBERS: HEARING OFFICER:

FACTS Claims


ROBINHOOD RECOVERY, as assignee of Lloyd A Cannamore, Jr.; APRIL DABNEY-FROE; VICTOR & VICTORIA CANAMORE 52-1524-11 2014-94059; 2014-94036; 2014-94047 EXCESS PROCEEDS MARCH, 2014 MARCH 16, 2017, continued from NOVEMBER 3, 2016, and JULY 21, 2016 EIGHTEEN, NINETEEN, and TWENTY JED SOMIT, Attorney at Law

Three Claims for Excess Proceeds were filed after the March, 2014 tax default

sale of this parcel.

A 2014-94059. David W. Brown, on stationery of Robinhood Recovery, filed a

Claim on May 7, 2015, as attorney in fact for Lloyd A Canamore, Jr. The Claim

explains that the assignor is the nephew and heir to the James Webb Estate; father,

Lloyd A Canamore, Sr., was a 50% owner by inheritance as the brother of Georgia

Webb.

The assignment papers are a Limited Power of Attorney for Pursuing a Claim of

Excess Proceeds, Etc., signed October 15, 2014, which claims to be a durable power of

attorney, and appoints David W. Brown as Lloyd A Canamore Jr.'s "Principal's

Representative Payee". A letter dated October 16, 2014, recites an amount available

of $281,219.00, and contains in bold the advisement "you have the right to file a claim


for these funds on your own behalf', but no statement as to the lack of cost or that the

filing should be with the County. Immediately afterward, the letter advises against such

a filing; supposedly, Mr. Canamore, Jr., indicates his understanding and assent on

October 15, 2014. No statement indicates a mutual disclosure of relevant information.

Also supporting the Claim is a Declaration under Probate Code 13100, stating

that James Webb died intestate on or about September 2, 2000, that the estate does

not exceed $150,000, and that Lloyd A Canamore, II is the "successor of the

decedent". No explanation is provided to substantiate that statement. A Certificate of

Death for James Webb, "found 0910212000" is provided; the informant is stated to be

his daughter, Louise Ware; he is listed as "married" to June Wade. A Decree of

Distribution under Will, recorded in 1958, in the Estate of Georgia Webb, distributes a

50% interest in certain property to Lloyd Canamore, decedent's brother. A Deed

recorded in 1968 grants the same interest in the same property to James Webb.

A Certificate of Death for Lloyd Andrew Canamore, in 1981, and a Certificate of

Birth for Claimant's assignor, showing that he is that decedent's son, were also

submitted.

B. 2014-94036. A Claim for Excess Proceeds was filed March 17, 2015, by

Abney Dabney-Froe, as Administrator of the Estate of James Webb (Alameda Superior

No. RP 13669484). The accompanying Claimant's Statement asserts, on information

and belief, that June Wade, named on the Death Certificate as James Webb's

surviving spouse, was not the decedent's spouse, nor was Louise Ware, named on the

Certificate as his daughter, actually his daughter. The Statement notes that an Order


Determining Heirship will be sought. This Claim was supported by:

• Petition for Letters of Administration in Estate of James Webb, which states inter

alia that: the Estate value is approximately $282,000; decedent died intestate;

Ms. Dabney-Free is the decedent's granddaughter; and, decedent was survived

by a child and issue of a predeceased child. Attachment 8 lists the relatives as a

predeceased spouse, daughter Lorita Burke, predeceased daughter Delores

Dabney who has issue of April Dabney-Free and Charles Dabney, possible

daughter Louise Ware and possible spouse June Wade (aka June Hendrix).

• Order for Probate dated February 24, 2015, appointing April Dabney-Free as the

administrator of the Estate of James Webb.

• Letter of Administration filed March 4, 2015

An online search of the Register of Actions in the James Webb probate case

reveals that an order determining succession to James Webb's estate was entered in

July, 2015.

C. 2014-94047. Victor and Victoria Canamore request $140,609.50 in their

Claim filed April 10, 2015, as heirs, and for Victoria, under a power of attorney for Lloyd

Andrew Canamore, deceased August 31, 1981, who is asserted to be a half owner of

the parcel prior to his death. This Claim was supported by:

• A handwritten, possibly witnessed, unrecorded, non-notarized paper saying

"Victoria Canamore is to be power of attorney and payee of Accounts and help

pay bills", signed by Victor Canamore, seemingly dated January 20, 2014.

• Certificate of Death for Lloyd Andew Canamore, attesting to his death on August


31, 1981, stating he was married to Clemmie Lee Gray, who was living at the

same address as decedent.

• Decree of Distribution Under Will in Estate of Georgia Webb, filed November 21,

1968, but without any Recorder stamp. Under this Decree, James Webb,

Executor of the Will of Georgia Webb, is directed to distribute decedent's one

half interest in certain real property to Lloyd Canamore, decedent's brother.

County Counsel Memorandum

Erin M. Hamor, Graduate Law Clerk, and Farand C. Kan, Deputy County

Counsel, collaborated on a Memorandum for the Office of the County Counsel, dated

June 1, 2016. It identifies the amount of excess proceeds as $278,780.72.

The Memorandum notes that Administrator Dabney-Free's Claim lacks

documentation of a recorded deed granting the property to James Webb, although the

Canamore Claim was supported by a deed; it is not clear the deeds relate to the parcel.

The Memorandum notes concerning the Canamores' Claim: the Power of

Attorney is defective under Probate Code sections 4121-4122; it is also unclear if the

property granted to Lloyd Canamore is the same parcel; Victor's right to succession is

not properly established, especially if Lloyd had three children. A Probate Code

section13101 Affidavit may be necessary.

The Memorandum feels that the Lloyd Canamore, Jr., Claim was not timely filed,

as it is dated more than a year after the April 21, 2014, recording of the tax deed. The

Memorandum does not feel the assignment to Mr. Brown is effective, nor that Lloyd,

Jr.'s status as a party of interest has been adequately established. It notes that the


Probate Code 13101 Affidavit is contradicted by the documents filed in support of the

Dabney-Free Claim. The Memorandum recommends denial of this Claim.

Hearings

July 21, 2016

Claimants Victor Cananore and Victoria Canamore, his daughter, appeared.

Eugene Alkana, Esq., appeared on behalf of April Dabney-Froe, as Administrator of the

Estate of James Webb. David Brown appeared for Robinhood Recoveries.

Mr. Alkana stated he was pursuing an order determining succession to James

Webb's half of the property in the probate proceeding for the Estate of James Webb.

Two exhibits were submitted.

Exhibit 1 is a Deed dated October 14, 1968, and recorded in Alameda County on

December 24, 1968, granting the parcel at issue from Lloyd Canamore to James Webb

(same deed as provided with the Robinhood Claim).

Exhibit 2: Deed of same parcel (by legal description) recorded in 1950, in which

the grant is to "Georgia Jones, an unmarried woman".

Mr. Alkana was advised by the Hearing Officer to start with Georgia Jones, and

sketch out the devolution of the property until the tax default sale, and supply any

relevant deeds; for the next hearing, he was to supply the Order Determining

Succession of Estate of James Webb.

All of the appearing claimants were instructed to have at least a telephone call to

see if a joint approach could be reached.

The matter was continued to the next hearing with those instructions.


November 3, 2106


Eugene Alkana, Esq., appeared on behalf of April Dabney-Froe, as Administrator of the

Estate of James Webb. There was no appearance for Robinhood Recoveries.

The parties noted that they had contacted each other and it was not possible to

reach a settlement.

Eugene Alkana stated that he will provide a certified copy of Order Determining

Succession. In his view, James Webb owned 100% of the parcel at the time of his

death. He obtained 50% by deed from Lloyd Canamore. In the Estate of Georgia

Webb, the award was 50% to Mr. Canamore and 50% to Mr. Webb as the residual

beneficiary.

The Hearing Officer noted that he read the Decree of Distribution as granting

only a half-interest, and not making any award of the other half. Mr. Alkana disagreed,

stating that he believed the decree was sloppily drafted. He stated he is considering

obtaining a nunc pro tune order in the Georgia Jones/Webb Estate so that the Decree

of Distribution in that estate covers the entire parcel.

Victoria Canamore testified that she has signature exemplars for her

grandfather, Lloyd Canamore, which suggest that the deed to James Webb was not

signed by him.

David Brown submitted a Tax Deed to Purchaser recorded May 14, 2014

(marked as his Exhibit 1 ), and based on that recording, contends his Claim for Excess

Proceeds was timely filed. This Tax Deed says it is "Re-recorded due to an error in


name, previously recorded Document 201495816 recorded 4-21-14." Mr. Brown stated

he relied on the re-recording as determining the date to file his Claim.

Mr. Brown notes that the deed from Lloyd Canamore to James Webb was prior

to Mr. Canamore's receipt of the half-interest, and suggests some fraud was involved,

and joined in the Canamores' signature issue.

The matter was continued until the next Assessment Legal Officer hearing. The

parties were advised to do a title search on the parcel from 1951 forward, and ordered

to meet in person or by telephone before the next hearing.

Additional Materials Received After November, 2016 Hearing and prior to March 16, 2017, Hearing

Prior to the March 16, 2107, hearing, Mr. Alkana as attorney for Claimant April

Dabney-Froe submitted a Notice of Petition to Administer Estate of Georgia Webb,

Alameda County No. RP 17845323, filed February 14, 2017, with hearing set for March

8, 2017, seeking appointment of April Dabney-Froe as Successor Personal

Representative to Administer the Estate of Georgia Webb, "De Banis Non Cum

T estamento Annexo".

March 16, 2017


Eugene Alkana, Esq., appeared by telephone on behalf of April Dabney-Froe, as

Administrator of the Estate of James Webb. Claimant David Brown as attorney-in-fact

for Lloyd Canamore, Jr., appeared.

Mr. Alkana submitted a Spousal Property Order dated March 8, 2017, from the

Estate of Georgia Webb which determined that an undivided one-half interest in the


parcel at issue passed from decedent to decedent's surviving spouse, James Webb.

He explained that Georgia Jones was unmarried when she acquired the parcel; she

married James Webb in about 1953, becoming "Georgia Webb".

The Hearing Officer noted that the effect of that Order is that the entire parcel

becames part of the Estate of James Webb; that would imply that the owner's share of

excess proceeds would be an asset of that estate.

The Canamores indicated that they intended to appeal the Spousal Property

Order.

Mr. Alkana stipulated that any award to April Dabney-Free as Administrator of

the Estate of Georgia Webb could contain a stay on any distribution of 50% of the

excess proceeds until the Spousal Property Order of March 8, 2017, becomes final.


DECISION

The Claim for Excess Proceeds of April Dabney-Free, Administrator, is granted.

All of the excess proceeds shall be awarded to "April Dabney-Free, Administrator of the

Estate of James Webb". However, no distribution by the probate court of 50% of the

proceeds shall be made until the Spousal Property Order of March 8, 2017, becomes

final.

The Claim for Excess Proceeds of Victor and Victoria Canamore is denied.

The Claim for Excess Proceeds of David Brown, Robinhood Recovery, as

attorney in fact for Lloyd A. Canamore, Jr., is denied.


RATIONALE









While there is an interesting question concerning the David Brown Claim of

whether the recording of the correction Tax Deed to Purchaser extended the filing

period for claims for excess proceeds, that issue will be avoided in light of the eventual

denial of that Claim.








effect .... "








David Brown's Claim for Excess Proceeds is by assignment, and implicates

subsections (b) and (c). However, in light of the eventual denial of that Claim, the

sufficiency of the assignment documentation will not be analyzed.





None of the Claims for Excess Proceeds were of the First priority; each Claim

was based upon an ancestor with title of record to all or part of the parcel. The

determinative issue becomes: who had "title of record" at the time of the March, 2014,

tax default sale?

Much of the confusion (but not all) in the matter was been whether James Webb

received any interest in the property directly from the Estate of Georgia Webb. A fair

reading of the Decree of Distribution is that "decedent's % interest in" the parcel was

distributed to Lloyd Canamore. That reading left unanswered: who owns the other half

interest?


Mr. Alkana secured a Spousal Property Order from the Georgia Webb Estate

which determines that in addition to the half-interest in the parcel devolving to Lloyd

Canamore, the Georgia Webb Estate held the other half-interest, which devolved to

James Webb, now deceased. Although the Canamore claimants stated their intent to

appeal that Order, unless that Order is overturned, the Hearing Officer must find that

the Estate of James Webb was the owner of a half-interest in the parcel through the

Estate of Georgia Webb at the relevant time.

Tracing the other half-interest in the parcel to the Estate of James Webb is not

as direct, but perhaps clearer. The half-interest received by Lloyd Canamore from

Georgia Webb's Estate was deeded by Lloyd to James Webb in 1968, a month before

he actually received the interest. However, the deed remains valid and effective. Under

the doctrine of after-acquired title, "[w]here a person purports by proper instrument to

grant real property in fee simple, and subsequently acquires any title, or claim of title

thereto, the same passes by operation of law to the grantee, or his successors." (Civil

Code§ 1106.)" [A quitclaim deed does not, however, convey after-acquired title.] Here,

a regular Deed was used, and its effect was to pass, once received, Lloyd Canamore's

one-half interest in the parcel to James Webb. Although the Canamore claimants

suggested the Deed was fraudulent and/or not signed by Mr. Canamore, no sufficient

evidence was presented to support that theory.

Both halves of the fee interest thus come to James Webb, one through

Georgia's Estate, the other by grant. Upon Mr. Webb's death, the parcel became an

asset of his Estate. That Estate becomes the "party of interest" under Section 4675. At


this juncture, any further dispute about the excess proceeds from the default sale of this

parcel should take place in that probate proceeding.


~~--~. Jed Samit Assessor Legal Hearing Officer


CLAIMANTS:

PARCEL: FILE NOS:


FACTS


GLOBAL DISCOVERIES, LTD., as assignee of AMONIE MEANS, ROSALIE WHITE, LAWRENCE WHITE, JR., PAMELA WHITE and CAROLYN JACOBS, FRANCHISE TAX BOARD, EAST BAY MUNICIPAL UTILITY DISTRICT, FIRST NATIONAL MORTGAGE COMPANY 5-462-24 2014-94008,2014-94009, 2014-94015, 2014-94024, 2014-94025, 2014-94026, 2014-94027, 2014-94041 (EXCESS PROCEEDS 2014) MARCH 16, 2017 TWENTY-FIVE THROUGH THIRTY-TWO JED SOMIT, Esq.

Eight separate Claims for Excess Proceeds were filed seeking all or a share of

the over $200,000 in excess proceeds remaining after the 2014 tax default auction of

this parcel.

A. 2014-94008. CALIFORNIA STATE FRANCHISE BOARD, through Deborah

Barrett, Supervisor, Collection Advisory Team, seeks $258.29 as of the sale date

arising from a Certificate of Tax Due and Delinquency. The taxpayer is identified as

"Amonie Means". The Certificate states that $258.29 is liened, and an additional

$83.64 is unliened, and references Instrument 2008-283409, recorded September 23,

2008, as the recording for the liened amount. The Claim is accompanied by an Order

to Withhold Personal Income Tax, supplemental to the Claim, in the amount of $83.64,

from any portion of the excess proceeds awarded to Amonie Means. No evidence of


Amonie Means' ownership of the parcel was provided with the Claim.

B. 2014-94009. GLOBAL DISCOVERIES, LTD., on assignment from AMONIE

MEANS, seeks "$111,971.00", which is an approximation of 50% of the excess

proceeds. The assignment papers recite statutory requirements, but although stating

that all information relevant to the value of the claim was mutually disclosed, there is no

mention of the State Franchise Tax Lien, the other assignments, etc.

This Claim is supported substantively by: an Individual Grant Deed to Creed

Morris and Inez Morris, his wife, as joint tenants, recorded in 1979; a subsequent

(recorded 2003) Judgment of Dissolution of Marriage awarding a 50% share to each

former spouse; a Certificate of Death for Creed Morris (date of death 4/1 /2008); and, a

Final Distribution Order (recorded in 2009) for the Estate of Creed Morris, awarding the

property to Amonie Means. Global requests 100% of Amonie Means' share. The

Estate of Creed Morris Order does not indicate that only a 50% share of the real

property listed in its Exhibit A is within the estate's assets.

C. 2014-94015. EBMUD, by JULIE STURGEON, Senior Customer Services

Representative, filed a timely Claim for Excess Proceeds, not stating an amount

claimed, relying on an amount due EBMUD of $5,659.76 as of May 13, 2014. There is

a reference on the Statement to "lien 2013-298221 for $1236.19", but no recorded lien

was provided with the Claim.

D. 2014-94024. GLOBAL DISCOVERIES, LTD., on assignment from ROSALEE

WHITE seeks $27,992.75, or the entire share of Rosalee White. This Claim relies on

the same initial title documents as in the discussion in B, supplemented by a Death


Certificate for Inez Morris showing her death on March 7, 2002 [so that Creed would be

surviving joint tenant if the joint tenancy were not terminated by the Judgment of

Dissolution of Marriage]. A Judgment of Final Distribution for the Estate of Inez Morris

(White), recorded in 2004, shows that Inez's share was distributed to three people, one

of whom quitclaimed her 8.33% interest to another in 2005; that grantee, Lawrence

White, Sr., who had a total interest of 75%, died intestate in 2006, leaving a wife and

two "biological" children. An Explanation of Facts states that as a result, Rosalee

White is entitled to 12.5% of the excess proceeds.

The Inez Morris Judgment of Final Distribution notes, on page 4, that the estate

will withhold over $50,000 "to pay any obligations of the estate on 3036 Union Street,

Oakland, California at the termination of the life estate of Creed Morris therein, or when

the real property is sold." The distribution of the parcel is of a "one-half interest",

subject to a life estate in Creed Morris.

A Probate Code Section 13100 Affidavit is included, signed by Pamela J. White,

Rosalee White and Lawrence Edward White, Jr., stating they are the successors to

Inez Morris' interest in the personal property, and stating the value of the decedent's

property as about $28,000. Evidence is also presented of assignor's status as

Lawrence White's daughter.

E. 2014-94025. GLOBAL DISCOVERIES, LTD., on assignment from

LAWRENCE WHITE, JR. Substantively, this is the same as the discussion in D.

F. 2014-94026. GLOBAL DISCOVERIES, LTD., on assignment from PAMELA

WHITE. Substantively, this is the same as the discussion in D, with evidence of this


assignor's mar.riage to Lawrence White, Sr.

G. 2014-94027. GLOBAL DISCOVERIES, LTD., on assignment from

CAROLYN WHITE, now Carolyn Jacobs. Substantively, this is alike the discussion in

D, with Carolyn's being granted the remaining 25% of Inez' share. Global requests that

all the funds for Carolyn's share be distributed to Global Discoveries.

H. 2014-94041. FIRST NATIONAL MORTGAGE through Gayle Lewis, Senior

Vice President. This Claim is based upon a lien represented by a "Blanket Loan" Deed

of Trust covering three parcels, including the one at issue here. The Deed of Trust was

recorded in 2000, with Granters Creed Morris and Inez Morris, in an original amount of

$372,000. No Promissory Note was provided.

A 2009 Trustee's Deed on Sale is provided. It states the amount of the unpaid

debt, with costs, was $300,000, and $300,000 was paid by the grantee (credit bid), so

the property (not this parcel but another encumbered by the same Deed of Trust) was

acquired by First National Mortgage Company, a California Corporation, which

subsequently sold the other parcel for $400,000.

The Claim states that the opening bid on the trustee's sale of the other parcel

was "understated by $242, 172.21 ".


The Claims and supporting materials were analyzed in the Memorandum for the

Office of the County Counsel, dated February 9, 2017, by Deputy County Counsel

Farand C. Kan and Paige N. Pembrook, Graduate Law Clerk. It concludes all Claims

were timely filed. On particular Claims, it notes:


A. No copy of the recorded Certificate was provided. It also states that any

amount awarded to Global Discoveries, Ltd., on the assigned Claim must be reduced

by the amount demanded by the Order to Withhold Personal Income Tax.

B. The Claim seems valid, although Global Discoveries may have to supply

further evidence of Jed Byerly's authority to represent it.

C. No copies of the recorded liens were submitted by EBMUD.

D-G. Each Claim seems valid, although Global Discoveries may have to supply

further evidence of Jed Byerly's authority to represent it.

H. Notes the lack of the Promissory Note, or an overall accounting, including

receipts by the lender in connection with other properties. It recommends denial of the

Claim on the current material.

March 16, 2017 Hearing

Bob Schmitt appeared for the Franchise Tax Board; Jed Byerly appeared for

Global Discoveries, Ltd., on its five assigned claims; Anna Julie Sturgeon appeared for

EBMUD. There was no appearance for First National Mortgage, which Claimant

indicated it agreed with the County Counsel Memorandum; that Claim is deemed

withdrawn.

Anna Julie Sturgeon, for EBMUD, stated that its Claim is for the full $5k water

bill, although she noted EBMUD would be happy under the circumstances to receive

payment on the $1,236.19 recorded lien. Several Exhibits were presented:

• Exhibit 1: Release of Lien 2013070941, in the amount of $27 4. 50, recorded

October 29, 2013.


• Exhibit 2: Release of Lien 2013298221, in the amount of $1,236.19, recorded

October 13, 2016.

• Exhibit 3: Chapter 270, Statutes of 2015, extending the right of any municipal

utility district to collect delinquent fees and other charges by recording a

certificate declaring the amount of the delinquent charges, together with interest

and penalties thereon, which recording would constitute a lien against the

affected real property and have the force and effect of a judgment lien.

• Exhibit 4: Release of Lien 2012397028, in the amout of $1, 7 4911, recorded

October 29, 2013.

• Exhibit 5: Release of Lien 2013207716, in the amount of $814.46, recorded

October 29, 2013.

• Exhibit 6: Release of Lien 2012182496, in the amount of $960.35, recorded July

31, 2012.

EBMUD was offered the opportunity to brief whether it has the right to interest on

the recorded lien, and/or to collect on charges beyond those in the lien, by filing a brief

by April 7th. $1200.

Bob Schmitt, for the Franchise Tas Board, presented several exhibits:

• Exhibit 1: Notice of State Tax Lien recorded September 23, 2008, against

Amonie Means, in the total amount of $1, 108.04.

• Exhibit 2: Claim for Excess Proceeds in the amount of $258.29.

• Exhibit 3: Certificate of Tax Due and Delinquency, dated March 16, 2017, stating

a Liened amount due of $258.29, and an Un-liened amount of $91.32.


• Exhibit 4: Order to Withhold Personal Income Tax from any amounts due to

Amonie Means, and related papers, in the amount of $91.32

Mr. Schmitt explained that the updated amounts of $258.29 on FTB's lien, and

$91.32 on the Order to Withhold, is the total sought under FTB's Claim, as amended.

Mr. Byerly, for Global Discoveries and its five assigned Claims for Excess

Proceeds promised to provide by March 31st (with two days thereafter for County

Counsel to submit any reply) authority for whether a judgment of dissolution of marriage

terminates a joint tenancy between the spouses. Mr. Byerly also testified that all of the

other Claims filed here were disclosed to each of his assignors. He explained that the

Probate Code section 13101 Affidavits mistakenly referenced the particular assignor's

share of the excess proceeds, rather than the decedent's share. The Hearing Officer

accepted his testimony as amending the Affidavits to state the decedent's share.

The matter was submitted, except for the authority to submit briefs as noted.

Post-Hearing Submission

Global Discoveries, Ltd., through C. Daniel Carroll of Mccann & Carroll, a

Partnership of Professional Law Corporations, timely submitted a letter brief. That brief

noted that the Judgment of Dissolution of Marriage incorporated the couple's Marital

Settlement Agreement, which inter alia provides that assets "held in joint tenancy ... are

in fact community property assets and will be treated as such for all purposes of this

Agreement." It notes that the probate court in Inez' probate treated her as owning 50%

of the parcel. Similarly, the probate court in Creed's probate proceeding treated him as


owning 50% of the parcel.

The letter brief cites several cases illustrating that an express or implied

agreement of the spouses can terminate a joint tenancy, and contends that the Marital

Settlement Agreement, especially the waiver of "any and all rights in or to the property

assigned to the other'' spouse, constitutes such an agreement.

Finally, the letter brief cites Probate Code section 5042, which provides that a

joint tenancy with a spouse created before or during a marriage is severed as to a

decedent's interest if the former spouse is not the decedent's surviving spouse as

defined in Section 78, as a result of the dissolution ... of the marriage .... " Here, under

Probate Code 78, Creed was not Inez's "surviving spouse", and thus any joint tenancy

was severed and no longer effective for Creed to succeed to the half interest given to

Inez in the Judgment of Dissolution of Marriage.

DECISION

The Claim for Excess Proceeds of First National Mortgage Company is deemed

withdrawn. 2014-94041.

The Claim for Excess Proceeds of EBMUD is granted in the amount of

$1,301.43. 2014-94015.

The Claim for Excess Proceeds of the State Franchise Tax Board is granted in

the amount of $258.29. 2014-94008

The Claim for Excess Proceeds of Global Discoveries, Ltd., on assignment from

Anomie Means, is granted in the amount of $107,311.18. 2014-94009.


The amount of $91.32, which otherwise would be awarded to Global Discoveries

on its assignment from Anomie Means, is to be paid to the Franchise Tax Board, under

its Order to Withold.


Carolyn Jacobs, is granted in the amount of $26,850.63, all of which is to be paid to

"Global Discoveries, Ltd." 2014-94027.


Rosalee White, is granted in the amount of $26,850.62, all of which is to be paid to



Pamela White, is granted in the amount of $26,850.63, all of which is to be paid to



Lawrence White, Jr.,, is granted in the amount of $26,850.62, all of which is to be paid

to "Global Discoveries, Ltd." 2014-94025.

RATIONALE

Revenue & Taxation Code §467 4 directs that excess proceeds may be claimed









All of the Claims for Excess Proceeds were timely filed.





Three Claims were of the First priority, and the remaining five of the Second

priority. Logically, the Claims of the First priority should be analyzed first, to see how

much, if any, excess proceeds remain for Second priority Claims.

First Priority Claims

First National Mortgage Company did not appear, and its Claim is deemed

withdrawn.

EBMUD: The material provided on Chapter 270, and Public Utilities Code

section 12811.1 establishes that EBMUD is entitled to the amounts stated on recorded

Certificates of Delinquent Fees, and interest thereon as if a judgment. EBMUD

presented Notices of Liens and Special Assessments aggregating to $5,034.61, but the

only Lien which hadn't been released by a recorded Release of Lien by the date of the

tax default sale is the September 4, 2013 lien, recorded as 2013-298221, in the amount

of $1,236.19. EBMUD is recognized as a party of interest of the First priority for that


lien. Interest at 10% to March 14, 2014, increases the total lien to $1,301.43, which

amount is awarded to EBMUD from the excess proceeds.

State Franchise Tax Board: The FTB was definite in that its lien was in the

amount of $258.29. The Claim is properly supported by a recorded Certificate of Tax

Due and Delinquency. The FTB is recognized as a party of interest of the First priority

in the amount of its lien.

Since the amount of the excess proceeds is far in excess of the amount awarded

to Claimants of the First priority, there is no need to determine priority between those

Claims.

Second Priority Claims

All of the Second priority claims, based upon title of record, are asserted by

Global Discoveries, Ltd., upon assignment from five different people.

Assignment Requirements

Revenue & Taxation Code section 4675(b) requires: "After the property has

been sold, a party of interest in the property at the time of the sale may assign his or

her right to claim the excess proceeds only by a dated, written instrument that explicitly

states that the right to claim the excess proceeds is being assigned, and only after

each party to the proposed assignment has disclosed to each other party to the

proposed assignment all facts of which he or she is aware relating to the value of the

right that is being assigned. Any attempted assignment that does not comply with

these requirements shall have no effect .... "

The Hearing Officer has examined the assignment documents. The statutory


recitals are contained in each, but beyond the rote statement, there is no showing that

the other assignments or the other Claims were disclosed to the assignors. Mr. Byerly

testified that all those disclosures were made; the assignments will be found to meet

the subsection (b) requirements.


·who in any way acts on behalf of, or in place of, any party of interest with respect to





Each of the assignments contains the required advisements and information.

Analysis

All of the Second priority Claims are premised on the recorded 1979 deed to

Creed and Inez Morris, in joint tenancy. Their marriage was dissolved by Judgment of

Dissolution of Marriage recorded March 18, 2003. Each former spouse died before the

tax default sale. In Inez's probate proceeding, the court treated the former spouse as

owning a 50% interest. Additionally, the authority supplied by Global Discoveries also

establishes that after the entry of the Judgment of Dissolution of Marriage, each former

spouse owned his or her interest in the property as a tenant in common, and not as a

joint tenant. This is conceded, in effect, by Amonie Means, whose Claim through

Global Discoveries seeks only a half share of the excess proceeds.

Amonie Means. For this assignor, Global Discoveries supplied a copy of the


recorded (November 23, 2009) Final Distribution Order for the Estate of Creed Morris,

distributing his half interest to Amonie Means. This completes the proof that she is a

party of interest of the Second priority, to the extent of half of the remaining proceeds.

She is entitled to 50% of the remaining proceeds of $214,805.00, or

$107,402.50. However, the County is subject to an Order to Withhold $91.32 from her

share, so the resulting amount is $107,311.18, which, pursuant to the assignment, is

awarded to Global Discoveries on this Claim.

Inez Morris Heir Clamaints. All the other assignors claim through Inez Morris,

Global Discoveries supplied a Judgment of Final Distribution for the Estate of Inez

Morris (aka White), which distributed her half interest in the parcel as follows: 66.66%

to Lawrence White; and, 25% to Carolyn Jacobs, and 8.33% to Patricia Jones. Global

Discoveries also supplied a recorded Quitclaim Deed, from Patricia Jones to Lawrence

White, the effect of which was to increase Lawrence White's interest to 75% (rounding

up from 74.99%). Lawrence White died on December 28, 2006.

Assignor Carolyn Jacobs is immediately recognized as a party of interest of the

Second priority for 25% of Inez Morris' one-half share, or a 12.5% share overall. Since

the excess proceeds remaining after payment of the First priority Claims is

$214,805.00, she is entitled to $26,850.63 (getting an extra penny because of the ease

of analysis). Ms. Jacobs assigned all of her excess proceeds to Global Discoveries,

Ltd.

R&T section 4675(f) provides: "In the event that a person with title of record is

deceased at the time of the distribution of the excess proceeds, the heirs may submit


an affidavit pursuant to Chapter 3 (commencing with Section 13100) of Part 1 of

Division 8 of the Probate Code, to support their claim for excess proceeds." Who were

Mr. White's "successors in interest", who must sign the Section 13100 affidavit?

Global Discoveries provided an Explanation of Facts for Property which states

that Lawrence White died intestate, leaving a surviving spouse, Pamela White, and two

children, Lawrence Edward White, Jr., and Rosalee White. There is no evidence of

any other heirs.

Probate Code 6401 governs the share of the surviving spouse, Pamela White:

(a) As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100. (b) As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community property that belongs to the decedent under Section 101. (c) As to separate property, the intestate share of the surviving spouse is as follows:

(1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.

(2) One-half of the intestate estate in the following cases: (A) Where the decedent leaves only one child or the issue of one

deceased child. (B) Where the decedent leaves no issue, but leaves a parent or

parents or their issue or the issue of either of them. (3) One-third of the intestate estate in the following cases:

(A) Where the decedent leaves more than one child. (B) Where the decedent leaves one child and the issue of one or

more deceased children. (C) Where the decedent leaves issue of two or more deceased

children.

No evidence was presented that the parcel was transmuted into community

property; it was acquired as an inheritance, which is separate property. Thus, the

share of Pamela White is 1/3 of Lawrence White's (decedent) 75% interest, or 25% of


Inez' one-half interest: 12.5% overall.

The remaining two assignors are Lawrence White's (decedent) children. Under

intestate succession, they share the remaining 2/3 of the decedent's interest. Probate

Code§ 6402(a): "Except as provided in Section 6402.5, the part of the intestate estate

not passing to the surviving spouse, under Section 6401, or the entire intestate estate if

there is no surviving spouse, passes as follows: (a) To the issue of the decedent, the

issue taking equally if they are all of the same degree of kinship to the decedent, but if

of unequal degree those of more remote degree take in the manner provided in Section

240." Thus, Lawrence Edward White, Jr., and Rosalee White would be recognized as

parties in interest as to a 25% share, each of Inez' 50% interest, or 12.5% overall.

Global Discoveries presented a Probate Code section 13100 affidavit signed by

all successors in interest, which is deemed adequate after accepting the amendment

made at the March 16, 2017, hearing. Pursuant to that affidavit, assignors Pamela

White, Lawrence Edward White, Jr., and Rosalee White are each recognized as

parties of interest of 12.5%. The extra penny is given to Pamela White, in recognition

of the importance of motherhood.


~-... -Jed Samit Assessor Legal Hearing Officer


CLAIMANTS: PARCEL: FILE NOS: HEARING DATE: AGENDA NUMBERS: HEARING OFFICER:

FACTS


KRISTINE HUANG, MONA KWONG 37 A-2783-10 2015-94002, 2015-94051 MARCH 16, 2017 (EXCESS PROCEEDS 2015) THIRTY-THREE, THIRTY-FOUR JED SOMIT, Attorney at Law

More than $13,000 remains to be allocated after the tax default sale of this

parcel in 2015. Two Claimants vie for the funds.

A. 2015-94002: KRISTINE HUANG. Ms. Huang filed a Claim for Excess

Proceeds on May 11, 2015, asserting party of interest status as a former owner. Proof

of ownership submitted with the Claim, however, was limited to a Secured Property Tax

Statement for 2014-2015.

B. 2015-94051. MONA KWONG. Ms. Kwong seeks the funds as a lienholder of

record. Her Claim for Excess Proceeds, filed January 27, 2016, is supported by:

• A Deed of Trust, recorded in 2005, reciting a secured obligation of $100,000, in

which the trustor is Kristine Huang, and the beneficiary is Nu To Ngo Tran; and,

• An Assignment of Deed of Trust, recorded in 2008, by which the original

beneficiary assigned his interest to Claimant.

No documents were provided with this Claim attempting to establish any

ownership interest in the trustor, Kristine Huang.

The Claims and supporting material were analyzed by Deputy County Counsel


Farand C. Kan, and Aaron M. Israel, Graduate Law Clerk, in the September 21, 2016

Memorandum for the Office of the County Counsel. The Memorandum finds both

Claims were timely filed. However, neither Claim was deemed properly supported

concerning Ms. Huang's ownership of the parcel. Ms. Kwong additionally did not

provide the Promissory Note underlying the Deed of Trust, nor provide any accounting

of payments made and the net amount due on the obligation. The Memorandum

concludes that neither Claim for Excess Proceeds should be granted until the problems

discussed are rectified.

Claimant Mona Kwong appeared at the hearing on March 16, 2017. There was

no appearance by Kristine Huang.

Ms. Kwong presented several documents marked as exhibits:

• Exhibit 1: Recorded Deed of Trust.

• Exhibit 2: Note Secured by Deed of Trust, in the principal amount of $100,000,

dated April 9, 2005.

• Exhibit 3: Recorded Assignment of Deed of Trust.

• Exhibit 4: Grant Deed recorded April 21, 2005, by which a parcel with the same

Assessor's Parcel Number is granted to Kristine Huang by Mona Kwong.

• Exhibit 5: Account of Statement, stating "No payment amounts received for

interest nor principal from September 18, 2008 to 3/13/2015" and concluding

that the principal balance due as of the date of the tax default sale was

$100,000.00.


DECISION

The Claim for Excess Proceeds of Mona Kwong is granted as to all of the excess

proceeds, in the amount of $13,690.09, payable to "Mona Kwong". 2014-94051

The Claim for Excess Proceeds of Kristine Huang is denied. 2014-94002

RATIONALE

Revenue & Taxation Code §467 4 directs that excess proceeds may be claimed







deed to the purchaser. Both Claims were filed timely.





Ms. Kwong's Claim is based on a lien, and is of the First priority. It is adequately

supported by a recorded Deed of Trust, and a recorded Assignment of Deed of Trust,

which together establish Ms. Kwong's status as a party of interest.


The only issue concerns the accounting. Ms. Kwong's accounting covers only

the period from September, 2008, through the date of the tax default sale; the

promissory note was issued in 2005. It is conceivable that payments were made on it

prior to the assignment.

However, given the fact that the Deed of Trust was not reconveyed, and the

parcel went into tax default, it is more likely that any payments made on the promissory

note (which required only interest payments through its May 1, 2006, due date) did not

reduce the amount owing below the amount of excess proceeds available. If Ms.

Huang believed that the promissory note had been paid sufficiently to allow an award of

excess proceeds to her, she could easily have appeared at the hearing to state that

contention; her Claim has a San Francisco address.

The Hearing Officer finds that Claimant Kwong met her burden of proof that the

amount due on the promissory note secured by the Deed of Trust is at least the amount

of excess proceeds available.

Since the award to Ms. Kwong exhausts the excess proceeds, the Claim of Ms.

Huang must be denied without reaching the merits.


~---Jed Samit Assessor Legal Hearing Officer


CLAIMANT:

PARCEL:


GLOBAL DISCOVERIES, LTD., as assignee of HWEE LU SIOW BOA-216-16-1

FILE NO: HEARING DATE:

2015-94035 EXCESS PROCEEDS MARCH 2015 MARCH 16, 2017

AGENDA NUMBER: FORTY-ONE HEARING OFFICER: JED SOMIT, Attorney at Law

FACTS

Only one Claim for Excess Proceeds was filed after the March, 2015 tax default

sale of this parcel. Hwee-Lu Siow made a 100% assignment to Global Discoveries,

Ltd. On the merits, the Claim is supported by a Grant Deed recorded in 2007, wherein

"Hwee Lu Siow" is the grantee; the APN on the Grant Deed is that of the subject parcel

sold at the tax default auction in March, 2015.


Aaron M. Israel, Graduate Law Clerk, and Farand C. Kan, Deputy County

Counsel, analyzed the Claims and supporting material in their February 9, 2017

Memorandum for the Office of the County Counsel. The Memorandum finds that the

Claim was timely filed. It notes some deficiencies in establishing Jed Byerly's authority

to represent the company, and in not providing a certified copy of the Grant Deed

(corrected prior to the hearing).

Hearing on March 16, 2017

Jed Byerly appeared for Claimant Global Discoveries, Ltd. The Hearing Officer


was unable to find any uncorrected problems with the Claim.

DECISION

The Claim of Global Discoveries, Ltd., as assignee of Hwee Lu Siow, is granted

in the full amount of the excess proceeds, $24,563.84. The check should be payable to

"Global Discoveries, Ltd."

RATIONALE









The Claim for Excess Proceeds was filed well within the year period.









effect .... "







The Hearing Officer has examined the Assignment of Rights to Claim Excess

Proceeds, submitted as part of the Claim. It contains an express statement that the

right to file a claim is being assigned; it states the approximate amount of the excess

proceeds; and, it contains the advisement about the right to file a claim without making

an assignment. It recites that the parties have disclosed to each other all facts

regarding the value of the rights being assigned, which recitation will be accepted in

this case, where the amount of the excess proceeds is the value of the right being

assigned.




(8) Second, any person with title of record to all or any portion of the property prior to the recordation of the tax deed to the purchaser.


The Claim is of the Second priority, but no claim for excess proceeds of the First

priority was filed. The Grant Deed recorded July 11, 2007, adequately establishes

Claimant's assignor as a person "with title of record" to the entire fee interest at the

relevant time. No other issues preventing a distribution on the Claim for Excess

Proceeds have been identified.


Jed Somit Assessor Legal Hearing Officer


CLAIMANTS:

PARCEL: FILE NOS:


FACTS


NEW GENESIS MISSIONARY BAPTIST CHURCH, GLOBAL DISCOVERIES, INC., on assignment from PLUMIE DANCEY, CITY OF OAKLAND 20-147-14 2015-94059, 2015-94061, 2014-94003 EXCESS PROCEEDS SALE OF 2015 MARCH 16, 2017 THIRTY-FIVE, THIRTY-SIX, THIRTY-SEVEN JED SOMIT, Attorney at Law

There were three Claims for Excess Proceeds filed for the more than $165,000

available.

A. 2015-94059. NEW GENESIS MISSIONARY BAPTIST CHURCH, though

Windell Ross, CEO, claims 50% of the excess proceeds as a former owner of a one-

half interest in the parcel. A Grant Deed recorded June 8, 2009, states grantor "NEW

GENESIS MISSIONARY BAPTIST CHURCH, a California non-profit corporation that

acquired title under the misspelled name NEW GENNESIS MISSIONARY BAPTIST

CHURCH", grants the property to "NEW GENESIS MISSIONARY BAPTIST CHURCH,

a California non-profit corporation, and to MOUNT OLIVE MISSIONARY BAPTIST

CHURCH OF OAKLAND, INC., a California non-profit corporation, in equal shares, as

tenants in common"; this deed lists the APN as 02-0147-104. A prior Corporation Grant

Deed, recorded in 2006, was also provided, showing the parcel (with the correct parcel

APN) granted to "New Gennesis Missionary Baptist Church, a California Corporation."


An online search with the California Secretary of State on February 26, 2017,

could not locate a listed nonprofit or profit entity with the name of the granter/grantee or

Claimant.

B. 2015-94061. GLOBAL DISCOVERIES, LTD. This Claimant, assignee of

Plumie Dancey, claims status as a party of interest as a lienholder of record. A Deed of

Trust recorded in 1978 is provided; the truster is Mount Olive Missionary Baptist

Church of Oakland, Inc. (the granter to New Genesis in the June 8, 2009 deed); the

secured obligation is stated as $15,800; the beneficiaries are "Joseph L. Dancey and

Plumie Dancey, his wife, as joint tenants". The accession to a full interest by Plumie

Dancey is established by a Certificate of Death, showing Joseph Dancey, Sr.'s, death

on April 9, 1980; the Certificate also names Plumie as the decedent's wife. An Affidavit

of Lost Instrument is provided in place of a Promissory Note. It confirms the original

principal amount of $15,800 lent on 2/28/1978, states an interest rate of 9.64%, and

states monthly payments were due starting 3/1 /1978 in the amount of $138.66; a late

payment penalty of 12% was specified. A Statement of Amount Due and Owing alleges

no monthly payments were made on the obligation, and that the amount due as of the

date of the tax default sale of the parcel is $79,615.03. There was no showing with the

Claim that Mt. Olive owned the property when the Deed of Trust was made or recorded

[but the Deed of Trust would attach when title was acquired by the truster in 2009].

C. 2015-94003. CITY OF OAKLAND. This Claimant, through Robert Kray, Tax

Enforcement Officer, seeks $597.95 on the basis of four liens for garbage services. No

evidence of the alleged liens was provided with the Claim.





Memorandum for the Office of the County Counsel. The Memorandum finds that all

three Claims were timely filed. Deficiencies noted (using the lettering scheme above)

include:

A Failure to establish Mt. Olive's ownership.

B. Discrepancy between APNs on the two documents; failure to establish

authority to claim on behalf of the corporation; failure to show legal standing of the

corporation.

C. Failure to provide recorded lien documents and any statement concerning

payments.

The Memorandum concludes that: the City of Oakland Claim should be denied;

the New Genesis Claim granted if the APN discrepancy is explained and business

status satisfied; and Global Discoveries' Claim denied for lack of the original

promissory note.


Windell Ross appeared for Claimant New Genesis Missionary Baptist Church,

which was represented by John Duman, Esq. Jed Byerly appeared for Global

Discoveries, ltd. There was no appearance for the City of Oakland.

John Duman explained that the Secretary of State tracks the church under the

name of New Genesis Praise Missionary Church and Food Ministry. He also


presented an Affidavit of Windell Ross, Etc., which was marked as Exhibit 1.

Mr. Byerly stated that no payments of any kind were received on the obligation

underlying his assignor's Deed of Trust. The Hearing Officer expressed skepticism

about awarding all the claimed late fees.

The New Genesis representatives stated their understanding was that their

Claim sought half of the excess proceeds, based upon owning a one-half fee interest in

the parcel.

Pastor Ross stated he was not aware of the lien underling the Global

Discoveries' Claim.

At the appearing Claimants' request, the matter was briefly passed to allow them

to discuss the matter among themselves.

Upon the matter's being recalled, Mr. Byerly noted that he had talked with Pastor

Ross some time ago. He is aware that no Claim for Excess Proceeds was filed by Mt.

Olive Missionary Baptist Church. He presented papers which he stated evidence that

Mt. Olive merged with New Genesis; the papers say that New Genesis would

"integrate", and "take over and assume all duties" of the officers of Mt. Olive. This is a

de facto merger, he claimed. On this theory, the New Genesis Claim should be

amended to be a Claim for all the excess proceeds funds as the sole fee owner. Mt.

Olive is listed as "retired" by the Secretary of State.

Mr. Duman offered to withdraw any objection to Global Discoveries' Claim if the

amendment to the New Genesis Claim, to request all excess proceeds, is accepted.

The Hearing Officer accepted a stipulation between Global Discoveries, Ltd.,


and New Genesis that if the Hearing Officer reviews the documentation provided, finds

that New Genesis and Mt. Olive merged, and accepts an amendment to the New

Genesis Claim so it seeks all of the excess funds as the sole owner, then Global

Discoveries shall receive the amount shown on its accounting. If the Hearing Officer

does not find a merger, or allow the amendment, then the matter should be set for

further hearing.

A corporate file of several papers, including the Articles of Incorporation, two

amendments thereto, an IRS status letter, and copies of recent Statements of

Information, was marked as Exhibit 1.

Mr. Ross testified that the Amendment filed June 29, 2005, was intended as a

merger of the two entities.


DECISION

The Claim of New Genesis Praise Missionary Church and Food Ministry, Inc.

(using the name in Pastor Ross' Affidavit and on the California Secretary of State's

files) is granted as to the entire amount of the excess proceeds. 2015-94059.

The Claim of Global Discoveries, Ltd., on assignment from Plumie Dancey, is

deemed withdrawn. 2015-94061.

The Claim of the City of Oakland is denied. 2015-94003.

Pursuant to the stipulation at the March 16, 2017, hearing, the excess proceeds

awarded to New Genesis shall be paid as follows:


$79,615.03 to "Global Discoveries, Ltd.";

$86,897.71 to "New Genesis Praise Missionary Church and Food Ministry, Inc."

RATIONALE









All three Claims for Excess Proceeds were filed within the year period.




(8) Second, any person with title of record to all or any portion of the property prior to the recordation of the tax deed to the purchaser.

The Claims for Excess Proceeds of the City of Oakland and Global Discoveries,

Ltd., are of the First priority, and logically should be considered first.

The Claim for the City of Oakland was never supported by evidence of a

recorded lien. This was pointed out in the Memorandum of the Office of County


Counsel, but the City of Oakland neither corrected the omission, nor appeared at the

hearing. The Hearing Officer finds that the Claim is not adequately supported, and

denies the City's Claim.

Normally, the Global Discoveries' Claim would be considered next. However,

the stipulation between Global Discoveries and New Genesis would require the

Hearing Officer to grant that Claim in an amount which, as indicated at the hearing, was

beyond what Clamant was entitled to on its Claim, even if the Claim were accepted on

its merits. However, the problem is avoided if all the funds are granted to New Genesis,

which then, pursuant to the stipulation, directs some portion of its money be distributed

to Global Discoveries. Hence, the merits of Global Discoveries' Claim will not be

discussed at this time. Similarly, no analysis will be made of whether the assignment

papers pass muster under Revenue & Taxation Code section 4675(b)&(c), since if the

merger is accepted, payment to Global Discoveries will be pursuant to stipulation and

not on its Claim for Excess Proceeds.

New Genesis claims as an owner of record. The deeds presented establish that

the holders of record title were New Genesis and Mount Olive Missionary Baptist

Church of Oakland, in equal shares, under the Grant Deed recorded June 8, 2009. Mt.

Olive Missionary Baptist Church has a status of "term expired" with the California

Secretary of State, with the last Statement of Information filed in 1985. The last agent

for service of process listed is "Carolyn Jane George", which is noteworthy because the

Deed of Trust on which Global Discoveries relies is signed by "Carolyn George" as

Secretary of Mount Olive.


The Amendment to Articles of Incorporation of New Genesis filed June 29, 2005,

certainly evidence, as Pastor Ross testified, an intent to merge the two entities. I doubt

it was considered a merger by the Secretary of State, or would qualify as a merger of

nonprofit corporations under the California Corporations Code. One reason is that it is

not clear that Mount Olive had any existence as a legal entity in 2005, at the time of the

Amendment (although it apparently did in 1978, when the Deed of Trust was signed

and recorded).

The Hearing Officer concludes that either a de facto merger occurred through

the 2005 Amendment to Articles of Incorporation of New Genesis, and/or the 2009

Grant Deed of a half interest to Mt. Olive was a nullity, as there was no such entity at

that time. In either event, New Genesis would be considered the holder of record title

of the entire fee interest at the time of the tax default sale. The Decision is made on

that basis, and the stipulation of the parties.

An online search of the Secretary of State's corporate files on April 18, 2017,

shows that New Genesis, with corporate number C1825086, and name "New Genesis

Praise Missionary Church and Food Ministry" is listed as active, removing the last

issue.


-~~-, ,-----Jed Samit Assessor Legal Hearing Officer


CLAIMANTS:

PARCEL: FILE NOS:

HEARING DATE: AGENDA NUMBER: HEARING OFFICER:

FACTS


PRO SOLUTIONS for CHABOT PARK HIGHLANDS HOMEOWNERS ASSOCIATION, AS.AP. COLLECTION SERVICES for CHABOT PARK HIGHLANDS HOMEOWNERS ASSOCIATION 48-6258-1-30 2015-94008, 2015-94030 EXCESS PROCEEDS SALE OF MARCH 2015 MARCH 16, 2017 FORTY-TWO, FORTY-THREE JED SOMIT, Attorney at Law

Two Claims for Excess Proceeds were filed after the tax default auction of this

parcel in March, 2015. Both are on behalf of Chabot Park Highlands Homeowners

Association.

A 2015-94008. PRO SOLUTIONS. Maritza Stephens, of Pro Solutions, filed a

Claim for Excess Proceeds on May 26, 2015, on behalf of Chabot Park Highlands

Homeowners Association, seeking an undisclosed amount (on the Claim form) on the

basis of a "Notice of Lien Assessment" recorded 7 /17 /2006. A page on letterhead of

Pro Solutions contains amounts, with a "Grand Total" of $10,304.63. A page entitled

Notice of Lien Assessment, marked "Certified a true copy of the original recorded in the

official records of Ala County on 7-17-08 under Recorder's Serial No. 06-275386" was

also attached to the Claim. The Notice of Lien Assessment is directed to the parcel,

with owner "Louis Stayer, Trustee". The lien amount stated is $2,333.88, but the Notice

also states, "Plus any and all other assessments, late charges, interest, collection


costs, attorneys' fees and other expenses as may become due to the Association with

respect to the Property subsequent to the typed dates set forth above until all amounts

due to the Association with respect to the Property are paid in full." The Notice also

"designates Pro Solutions ... [as] the AgenUTrustee authorized by the Association to

enforce said assessment lien by sale of the property .... "

B. 2015-94030. ASAP COLLECTION SERVICES. Beverlee Gordon of ASAP

filed a Claim for Excess Proceeds on August 10, 2015, based upon a "Notice of Lien

Assessment" recorded June 18, 2012, by and for the benefit of Chabot Park Highlands,

in the amount of $2, 102.34, "plus any and all other assessments, collection costs,

interest, attorneys fees and other expenses as may become due .... "An Account

History by A.S.A.P. Collection Services continues for three pages, with an ending

balance of $8,488.77. The record owner of the parcel is stated to be "Michael N

Wandiga", and the APN is that of the subject parcel. The Notice states that the

Homeowners Association "hereby designates A.S.A.P. Collection Services ... as the

AgenUTrustee" to enforce the lien by sale of the property, referencing Civil Code

sections 1367, 2924, 2924(b), 2924(c), 2924(f) and 2924(h).

An online search of California Secretary of State records on April 18, 2017,

found "Chabot Park Highlands Association", with Lydia Taylor-Bellinger listed as the

Chief Executive Officer on the 2016 Statement of Information, having a status of

"active".





Memorandum for the Office of the County Counsel. The Memorandum finds that both

Claims were timely filed.

On the Pro Solutions Claim, the Memorandum questions whether the

assignment requirements of Revenue & Taxation Code section 4675, subsections b

and c, have been satisfied. It notes that the designation of Agent is limited to

enforcement by sale of the property, and does not expressly authorize Pro Solutions to

seek excess proceeds. The Memorandum suggests a more detailed accounting is

necessary. If the Claim is properly supported, this Claim is deemed to have priority

over the AS.AP. Claim.

The AS.AP. Claim was found to have similar problems concerning Claimant's

authority to represent the Homeowners Association, in establishing its own legal status,

and concerning the assignment documentation, although the accounting is deemed

sufficient. The Memorandum notes that if the Pro Solutions Claim is granted, that

would exhaust the excess proceeds available.


Stanley Richardson, Director of Chabot Park Highlands Association, appeared at

the hearing on March 16, 2017, presenting a letter dated March 15, 2017, from Lydia

Taylor-Bellinger, President, Chabot Park Highlands Association, designating him to

appear on behalf of the Chabot Park Highlands Association. There was no appearance

for AS.AP. or for Pro Solutions.

Mr. Richardson said that the homeowners association rescinded any authority of


A.S.A.P. or Pro Solutions to represent Chabot Park Highlands Association, and

demanded that any recovery be paid directly to the homeowners association.

DECISION

Each of the two Claims for Excess Proceeds is deemed amended to be on behalf

of Chabot Park Highlands Association directly.

The Claim for Excess Proceeds formerly by Pro Solutions is granted, in the

amount of the excess proceeds of $1,771.25. The check should be made payable to

"Chabot Park Highlands Association". 2015-94008

The Claim formerly by A.S.A.P. is denied, because the funds were exhausted by

granting the other Claim for Excess Proceeds. 2015-94030

RATIONALE









Each Claim for Excess Proceeds was filed timely.









effect .... "







Neither of the Claims based upon assignment from Chabot Park Highlands

Association seems to meet these requirements. No representative from either of the

original Claimants appeared to defend the assignment, or argue that their Claims

satisfied or were exempt from the foregoing statutory requirements on assignments.

In this circumstance, the statute provides that the "attempted assignment ... shall

have no effect". It does not, however, negate the underlying Claim. The Hearing

Officer strikes the assignment from each Claim, so that the Claim is made directly by

Chabot Park Highlands Association.


Independently, Mr. Richardson at the hearing revoked the authority of each of

the assignees. By either route, the Claims are deemed made directly by the

homeowners association.





The Claims here are of the First priority. A recorded Notice of Lien encumbering

the subject parcel accompanied each Claim, and is sufficient to constitute the claimant

as a party of interest under Section 4675. Since both Claims are now deemed by

Chabot Park Highlands Association, the priority between the Claims makes no practical

difference.

However, the Hearing Officer must decide which Claim to grant. Priority of lien

interests in real property is usually determined by the date the security document is

recorded, under the "first in time, first in right" standard. Civil Code sections 1213,

1214, and 2897.

The earlier filed lien is in the amount of $2,333.88, which exhausts the excess

proceeds available. Therefore, it is not necessary either to consider the merits of the

other lien, nor determine whether a lien can include the "all other assessments, late

charges [etc.] as they may become due", or is limited to the amount stated and interest


thereon.


;;;(~~~--Jed Samit Assessor Legal Hearing Officer


CLAIMANT: PARCEL: FILE NO: HEARING DATE: AGENDA NUMBER: HEARING OFFICER:

FACTS


DeSILVA GATES CONSTRUCTION, LP 83-265-3-1 2015-94005 EXCESS PROCEEDS 2015 MARCH 16, 2017 FORTY-FOUR JED SOMIT, Attorney at Law

Although over $100,000 is available, only one Claim for Excess Proceeds was

filed after the March, 2015 tax default auction sale of this parcel. Ernest P. Lampkin,

Vice-President and Chief Financial Officer of De Silva Gates Construction, LP, filed a

Claim on May 26, 2015. A certified copy of a Deed of Trust, dated July 31, 2006 and

recorded in 2006, was supplied. It recites that it secures a Secured Promissory Note

made by Garin Vista LLC, in the original principal amount of $30,726,612. The trustors

are "Richard Stafford Warren, Sr. and Annette Patricia Warren, as trustees of the

Richard Stafford Warren, Sr. and Annette Patricia Warren Trust Initially Created

November 5, 2001, Maxine F. Theobald (aka Maxine F. Theobald Thayer), and Janet

Lockwood Garin, as trustee of the Andrew E. Garin Bypass Trust, and Garin Vista LLC,

a California limited liability company." Only the first page and signature page ("36")

were provided with the Claim. The Deed of Trust states it should be considered a

"Fixture Filing". The legal description of the security is not provided.

No evidence of ownership of the parcel by the Trustors or any of them, or a copy

of the promissory note, or an accounting, was provided with the Claim for Excess

Proceeds.


An online search on April 19, 2017, of the California Secretary of State Business

Entities revealed "DeSilva Gates Construction LP" listed with a status of "active".




Memorandum for the Office of the County Counsel. The Memorandum finds that the

Claim was timely filed. The Memorandum notes the lack of a complete Deed of Trust,

lack of evidence that the Deed of Trust relates to the parcel sold at the tax auction, the

absence of a promissory note or a sufficient accounting, notwithstanding Exhibit A,

which states that $4,941 ,696 remains unpaid.


Mr. Ernest D. Lampkin, Vice President and Chief Financial Officer of DeSilva

Gates Construction, LP, represented by Anthony Varni, Esq., of Varni, Fraser, Harwell

& Roders, Attorneys at Law, appeared for Claimant.

Before the hearing, a letter from Mr. Varni, dated March 7, 2017, had been

received; the letter included the full Secured Promissory Note, and the full recorded

Deed of Trust.

Mr. Lampkin testified that he had personal knowledge that over $900,000 of

work was accomplished before a landslide on the property occurred, which made

further construction of the planned subdivision impossible. Over $4 million was lent

under the Secured Promissory Note. No payments on that loan have been received, so

the amount due Claimant is far more than the excess proceeds available.


Mr. Lampkin presented the original Promissory Note.


DECISION

The Claim for Excess Proceeds of DeSilva Gates Construction LP is granted as

to all of the excess proceeds of $114,521.87. The check shall be made payable to

"DeSilva Gates Construction LP".

Claimant shall give the debtor credit for this payment in any further collection

activity on the Secured Promissory Note.

RATIONALE









The Claim for Excess Proceeds of DeSilva Gates Construction was filed timely.


[T]he excess proceeds shall be distributed on order of the board of supervisors to the parties of interest who have claimed the excess proceeds in the order of


priority set forth in subdivisions (a) and (b). For the purposes of this article, parties of interest and their order of priority are:



The only claim is of the First Priority.

Claimant submitted a Grant Deed, recorded August 7, 2006 (the same date as

the Deed of Trust) which grants the parcel to "Garin Vista LLC, a California Limited

Liability Company". That entity is the Trustor signing the recorded Deed of Trust

underlying the Claim. This is sufficient to establish Claimant's status as a lienholder of

record prior to the tax default sale.

While an item by item accounting is always preferable, the testimony on

personal knowledge of Mr. Lampkin, a principal of Claimant, that probably $4 million is

due on the Secured Promissory Note, is sufficient to support a finding that at least the

$114,521.87 at issue here was due under the recorded lien.

No other unresolved issues hinder the granting of the Claim for the full amount

of excess proceeds.


Jed Samit Assessor Legal Hearing Officer



Attachment B

Excess Proceeds Distribution

Tax Defaulted Property Sales of 2014 and 2015

Claimant Parcel Number

Appeal No.

Amount

Wait 30

days

before

payment

A. Edmund Ko 739 Washington St., # 300

San Francisco, CA 94108

48F-7379-6 2014-94023 $65,380.05 No

B. April Dabney-Froe, Administrator

of the Estate of James Webb

C/O Eugene Alkana

3223 East Broadway

Long Beach, CA 90803

52-1524-11 2014-94036 $278,680.72

C. EBMUD

Attn: Julie Sturgeon

375 11th Street

Oakland, CA 94706

5-462-24 2014-94015 $1,301.43 No

D. Franchise Tax Board

Attn: Veronica Baez

PO Box 2952

Sacramento, CA 95812-2952

5-462-24 2014-94008 $349.61 No

E. Global Discoveries, Ltd

Attn: Jed Byerly

1120 13th St., Suite A

Modesto, CA 95354

5-462-24

2014-94009

Anomie Means

$107,311.18 No

F. Global Discoveries, Ltd

Attn: Jed Byerly


Modesto, CA 95354

5-462-24 2014-94027

Carolyn Jacobs

$26,850.63 No

G. Global Discoveries, Ltd

Attn: Jed Byerly


Modesto, CA 95354

5-462-24 2014-94024

Rosalee White

$26,850.62 No

H. Global Discoveries, Ltd

Attn: Jed Byerly


Modesto, CA 95354

5-462-24 2014-94026

Pamela White

$26,850.63


I. Global Discoveries, Ltd

Attn: Jed Byerly


Modesto, CA 95354

5-462-24 2014-94025

Lawrence White

$26,850.62 No

J. Mona Kwong

715 East 12th Street

San Francisco, CA 94132

37A-2783-10 2015-94051 $13,690.09 No

K. Global Discoveries, Ltd

Attn: Jed Byerly


Modesto, CA 95354

80A-216-16-1 2015-94035

Hwee Lu Siow

$24,563-84 No

L. Global Discoveries, Ltd

Attn: Jed Byerly


Modesto, CA 95354

20-147-14 2014-94061

Plumie Dancey

$79,615.03 No

M. New Genesis Praise Missionary

Church and Food Ministry, Inc.

Jon Duman, Atty

2771 Castro Valley

Castro Valley, CA 94546

20-147-14 2015-94059 $86,897.71 No

N. Chabot Park Highlands Association

Attn: Maritza Stephens

315 Diablo Road, #221

Danville, CA 94526

48-6258-1-30 2015-94008 $1,771.25 No

O. De Silva Gates Construction, LP

Attn: Ernest Lampkin

11555 Dublin Blvd

Dublin, CA 94568

83-265-3-1 2015-94005 $114,521.87 No

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