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APPLICATION ANDEXECUTION FOR EJECTMENTMORTGAGE FORECLOSUREJD-CV-30 Rev 1-16C.GS. §§ 49-22, 49-31p; 42 USC 1437f (0)Instructions to Applicant1. Prepare an original and 3 copies; forward the original and 2copies of this form and any attachments to clerk,2. After return of signed form from clerk, forward the originalInstructions to Clerk1. Forward original and copy of this form andany attachments to applicant or attorney.2. Retain copy of signed execution.STATE OF CONNECTICUTSUPERIOR COURTwww.jud.ct.govInstructions to Proper Officer1. Complete items 3 and § at bottom.2. Make retum within 60 days.and a copy of form and any attachments to a proper officer.Name of caseWELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE v. SHERMAN, CAROL A Et AlDocket number[— Name and mailing address of applicant or attomey HHD-CV-20-6122247-STo: Renee E. Bishop FILED Date of judgment0: Bendett & McHugh PC 09/07/2021270 Farmington Avenue Dale tile was transferredFarmington, CT 06032 MAR g 3 2022 11/04/2021Date Is pendens recordedL : HARTFORD J.D. 01/06/2020‘Address of Judicial District Court location (Number, street, fown, and zip code)95 Washington Street, Hartford, CT 06106‘Address of premises (Affach complete legal description of land)80 Devon Drive, Manchester, CT 06040“Name(s) of person(s) entilled to possessionWells Fargo Bank, National Association as Trustee for Option One Mortgage Loan Trust 2007-1 Asset Backed Certificates Series 2007-1 5Name(S) of personis) in possessionCarol A. Sherman .Is person in possession a “bona fide tenant” as describedin section 49-31p(b) of the Connecticut General Statutes?* [x] NoYes If yes, when was notice to vacate provided tothis person(s)?(Pate). Does person(s) in possession have a lease? [x] NoYesIf yes, when does lease end?(Date). Does person(s) in possession occupy the premises under a federal or state subsidized tenancyprogram {ex., Title Vill)? [x] No YesIf yes, when does tenancy end?(Date). *See "Notice" on back/page 2 of this form.Name of applicantRenee E. Bishop, Esq‘Signature of applicant/s/Renee E. BishopDate signed01/05/2022To: Any Proper OfficerBy the authority of the State of Connecticut, you are commanded to causethe said person(s) entitled to possession to have the seizin and peaceablePossession of the premises described herein, and to put and eject the saidperson(s) in possession, out of possession thereof, and to put the person(s)entitled to possession into the peaceable and quiet possession thereof,provided that no person shall be ejected who is not a party to the actionexcept a transferee or lienor who is bound by the judgment by virtue ofa lis pendens. If said person(s) in possession have not removed alll theirpossessions and personal effects, then you may remove them and deliverthem to the place of storage designated by the chief executive officer of thetown for such purposes. Prior to removal, you must give the chief executiveofficer of,the town 24 hours notice of the removal, stating the date, time, andaddress of the removal as weil as a general description, if known, of thetypes and amount of property to be removed from the land and be deliveredto the place of storage. Prior to giving notice to the chief executive officeryou must use reasonable efforts to locate and_notify the person(s) inpossession of the date and time the removal is to take place and thepossibility of a sale of their possessions pursuant to General Statute 49-22and you must provide clear instructions as to how and where such person orperson may reclaim any possessions and personnel effects removed andstored, including a telephone number that such person or persons may callto arrange release of such possessions and personal effects.Make service and due return within 60 days from the date hereof,Signgd/ludge, Assistant Cle)Important:Lex SEPAlotice To Persons In Possession Of Premises Subject To EjectmentIf you are in possession of the premises and you were not named as a party to this foreclosure action, you are not subject to thisexecution unless you are a transferee or lienor who is bound by the judgment by virtue of a lis pendens.4. The person(s) entitled to possession have been given the right topossession of these premises by a judgment of the Superior Court. Thismeans that you must move out of the premises described on theattachment(s) to this form by the date given at right.2. If you do not move out by that date, this paper, which does not have to behanded to you personally, gives a proper officer the legal right to removeyour posséssions and personal effects and deliver them to the place ofstorage designated by the chief executive officer in the town.3. Your possessions and personal effects will be stored at:4, If your possessions and personnel effects are removed and stored andyou do not reclaim them and the expense of the storage is not paid tothe chief executive officer of the town within 15 days, then they may besold by the town under section 49-22 of the Connecticut GeneralStatutes.5. If you do not move your possessions and personal effects by: (To becompleted by proper officer)DateTime (a.m./p.m.)‘You may call:to reclaim any of those possessions and personal effects and to arrange tohave them given back to you.I will return to remove your possessions and personaleffects and store them.Page 1 of 2NoticeSConnecticut General Statutes Section 49-31p provides:(a)(b)(c)In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property thathas a retum date on or after July 13, 2011, but not later than December 31, 2017, any immediate successor in interestin such property pursuant to the foreclosure shall assume such interest subject to(1) the provision, by such successor in interest, of a notice to vacate to any bona fide tenant not less than 90 daysbefore the effective date of such notice; and(2) the rights of any bona fide tenant, as of the date absolute title vests in such successor in interest(A) under any bona fide lease entered into before such date to occupy the premises until the end of the remainingterm of the lease, except that a successor in interest may terminate a lease effective on the date of sale of the unitto a purchaser who will occupy the unit as a primary residence, subject to the receipt by the tenant of the 90-daynotice under subdivision (1) of this subsection; or(B) without a lease or with a lease terminable at will under state law, subject to the receipt by the tenant of the 90-day notice under subdivision (1) of this subsectionexcept that nothing under this section shall affect the requirements for termination of any federally subsidized or state-subsidized tenancy or of any state or local law that provides longer time periods or other additional protections fortenants.For purposes of this section, a lease or tenancy shall be considered bona fide only if (1) the mortgagor or the child,spouse, or parent of the mortgagor under the contract is not the tenant, (2) the lease or tenancy was the result of anarms-length transaction, and (3) the lease or tenancy requires the receipt of rent that is not substantially less than fairmarket rent for the property or the unit's rent is reduced or subsidized due to a federal, state or local subsidy.For purposes of this section, the term “federally-related mortgage loan” has the same meaning as in 12 USC 2602(1),the Real Estate Settlement Procedures Act of 1974. For purposes of this section, the date of a notice of foreclosureshall be deemed to be the date on which complete title to a property is transferred to a successor entity or person asaresult of an order of a court or pursuant to provisions in a mortgage, deed of trust or security deed.Return Of ServiceThen and there, by virtue of the foregoing execution,and I further advised said chief executive officer, so far as‘On (DateyAt (Time} known, of the general description, types and amount ofproperty to be removed from said premises.Thereafter | notified the chief executive officer ofthe town where the premises are situated,‘lused reasonable efforts to locate the person(s)but was unable to notify him/her.notified the person(s) in possession. And afterwards, the person's(s') possessionsOn (Datey TAL (Time)had been removed.were removed by me and stored and I put theOn (Date) At (Time) M person(s) in possession of said premises.— MM. Ythat the eviction of the person's(s') possessions and ‘Signed (Proper Officer) Date signedpersonal effects would take place:On (Date) At (Time) Fees-M.JD-CV-20 (backpage 2) Rev. 1-16ADA NoticeThe Judicial Branch of the State of Connecticut complies with the Americans withDisabilities Act (ADA). If you need a reasonable accommodation in accordance withthe ADA, contact a court clerk or an ADA contact person listed at www.jud.ct.gov/ADA.Page 2 of 2Book: 4607 Page: 797 Page: 3 of 3SCHEDULE AA certain piece or parcel of land situated in the Town of Manchester, County of Hartford and State ofConnecticut, known as No. 80 Devon Drive and also designated as Lot No. 18, Block K, as shawn on acertain map entitled, “MAP OF PINE ACRES TERRACE ADDITION NO. 1 OWNERS ANDDEVELOPERS, SCALE 1" = 100' MARCH 1942 HAYDEN L. GRISWOLD C.E.”, which map is on file inthe Town Clerk's Office In said Town of Manchester, reference to which is hereby made.Said premises are further bounded and described as follows:Northeasterly: by Lat No. 19, Block K, as shown on said map, Two Hundred Twelve (212.00) feet;Southerly: by land now or formerly of Alexander Jarvis, One Hundred Forty-Five (145.00) feet;Southwesterly: by Lot No. 17, Block K, as shown on said map, One Hundred Thirty-Five (135.00) feet;and .Northwesterly: by Devon Drive, Fifty (50.00) feet.MAP: 61 BLOCK: 1620 LOT: 80Received for Record at MANCHESTER, CT‘On 01/06/2020 At 9:47:34 ampap tL CAngpontFile: 020367F01
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Defendant failed to comply with the notice. This hearing is on Defendants demurrer to the Complaint. Defendant demurs on the grounds that (1) the three-day notice alleged in the Complaint fails to include the payment information required by Code Civ. Proc. §1161(2); (2) the three-day notice fails to include the proper notice requirements; (3) the Complaint fails to state Plaintiffs capacity and standing to sue; (4) the three-day notice overstates the amount of rent due as it requests money that was already paid to the previous landlord; (5) the Complaint was not properly served pursuant to Code Civ. Proc. §418.10; (7) the three-day notice did not list Defendants proper name; the three-day notice had the name Kellie Madison that is not Defendants legal name. MEET AND CONFER In¿unlawful detainer proceedings, there is¿no requirement that a demurring defendant¿meet and confer with the party who filed the pleading being demurred to. (Code Civ. Proc., §430.41 (d),¿(d)(2)). Accordingly, there is no consequence to Defendant not having sought to meet and confer with Plaintiff. LEGAL STANDARD [A] demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) DISCUSSION Defendant raises various grounds for the demurrer, for which she fails to provide any explanation. For example, Defendant argues the three day notice fails to include the payment information required by Code Civ. Proc. 1161(2), but she fails to identify what payment information is missing. She argues that the three day notice fails to include the proper notice requirements, but she does not specify what those notice requirements are or why they were not satisfied. She argues that the claim for unlawful detainer fails to state facts to constitute a cause of action or is vague and uncertain, but she offers no reasoning as to why that is. She argues that the complaint must state the plaintiffs capacity and standing to sue, yet she does not elaborate on why the Complaint fails to allege standing. The only ground that is stated with any specificity is that the three-day notice had the name Kellie Madison which is not Defendants legal name. But as Plaintiff points out, that fact is of no moment because the notice was also served on All Other Occupants in Possession of the Premises Described, which includes Defendant. In any event, the Court concludes that Plaintiff properly pled its Complaint for unlawful detainer. To establish a cause of action for unlawful detainer after foreclosure, a plaintiff must only allege that: (1) it purchased the Subject Property at a trustees sale and duly perfected its title; (2) it served a three-day written notice to vacate the Subject Property to the occupants; and (3) the foreclosed trustor or other occupant(s) holds over and continues in possession of the subject property after expiration of that notice. (Code Civ. Proc., §1161a(b)(3); Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 Cal.5th 474, 479.) In the case of a purchaser at foreclosure, title is duly perfected by recording a Trustees Deed Upon Sale. (Dr. Leevil, LLC, 6 Cal.5th at 479.) Here, the Complaint sufficiently alleges each of the three required elements as follows: First, Plaintiff obtained title to the subject property and duly perfected its title by recording a Corrective Trustees Deed Upon Sale on April 23, 2024. (Compl. ¶16). Second, Plaintiff served a notice to vacate to the occupants (i.e., Defendant) that contained all the requisite information. (Id. ¶¶ 17-19, Exs. 3-4.) It demanded in writing that Defendant pay $8,224.56 to Plaintiff at 18301 Von Karman Avenue, Suite 330, Irvine CA 92612, between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday, and provided its counsels telephone number. Third, Defendant has held over and wrongfully continues in possession of the Property after expiration of the notice to vacate. (Id. ¶22.) Given these allegations, the Complaint sufficiently alleges a cause of action for unlawful detainer. After Plaintiff filed its unlawful detainer complaint, it thereafter obtained authorization from this Court to serve Defendant by posting and mailing on grounds that despite attempts on five consecutive days at different times of day and night, Plaintiff was unable to effect personal service on Defendant at the Subject Property. (See Courts May 31, 2024 Order.) As such, Plaintiffs service of the summons and complaint was proper. Moreover, by filing her demurrer, Plaintiff has waived any right to claim that the Court lacks personal jurisdiction. Because all the necessary facts have been alleged in the Complaint and because the Court may not consider the extraneous facts outside the Complaint that are improperly raised by Defendant in her demurrer, the Court overrules the demurrer. CONCLUSION For the foregoing reasons, the Court OVERRULES Defendants demurrer to the Complaint. IT IS SO ORDERED. DATED: August 23, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court
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