Odyssey Reinsurance Company v. Nagby ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 ODYSSEY REINSURANCE Case No. 3:16-cv-03038-BTM-WVG COMPANY, a Connecticut corporation 10 FINDINGS OF FACT AND CONCLUSIONS OF LAW RE 11 MOTION OF PLAINTIFF ODYSSEY Plaintiff REINSURANCE COMPANY FOR 12 ORDER DIRECTING PAYMENT OF v. CERTAIN REGISTRY FUNDS NOT 13 SUBJECT TO PENDING APPEAL RICHARD KEITH NAGBY, et al. 14 Defendants. 15 16 17 18 The Motion of Plaintiff Odyssey Reinsurance Company (“Odyssey Re”) For 19 Order Directing Payment of Certain Registry Funds Not Subject to Pending Appeal 20 (Docket No. 344) came on for hearing on October 19, 2020 on the 2:00 p.m. calendar, 21 before the Honorable Barry Ted Moskowitz. Dean T. Kirby, Jr., Kirby & McGuinn, A 22 P.C. appeared for Plaintiff Odyssey Reinsurance Company. No opposition to the 23 Motion was filed. There were no other appearances. The Court having considered the 24 1 moving papers and the argument of counsel, and further based upon the entire record 2 in this case, enters the following findings of fact and conclusions of law. 3 FINDINGS OF FACT 4 1. The sum of $199,308.92, which was deposited to the registry of this 5 Court, is the property of defendant and judgment debtor Diane Dostalik (“Dostalik”), 6 held in the name of the 2015 Diane M. Dostalik Trust (the “Dostalik Trust”). The 7 Court makes this finding based upon the following evidence contained in the record: 8 1.1 The Grant Deed from Richard K. Nagby and Diane Nagby as Co- 9 Trustees of the Richard and Diane Nagby Revocable Trust dated February 2, 10 2015, to Diane M. Nagby as Grantee a copy of which is attached as Exhibit 1 to 11 the Declaration of Dean T. Kirby, Jr. filed in this action on July 7, 2020 as 12 Docket No. 344-3 (the “Kirby Declaration”). 13 1.2 The Trust Transfer Deed from Diane M. Nagby as Grantor to 14 Diane M. Dostalik, Trustee of the 2015 Diane M. Dostalik Trust dated April 27, 15 2015, a copy of which was attached as Exhibit 2 to the Kirby Declaration. 16 1.3 The Deed of Trust, in favor of Unison Agreement Corporation as 17 beneficiary, recorded April 15, 2019 showing as Borrower Diane M. Dostalik, 18 Trustee of the 2015 Diane Dostalik Trust, a copy of which was attached as 19 Exhibit 10 to the Kirby Declaration. 20 1.4 The Seller’s Final Settlement Statement dated April 7, 2020, 21 naming as the Seller Diane Dostalik, a copy of which was attached as Exhibit 22 15 to the Kirby Declaration. 23 24 1 1.5 The Grant Deed, a copy of which is attached as Exhibit 18 to the 2 Supplemental Declaration of Dean T. Kirby, Jr. filed October 21, 2020 (the 3 “Supplemental Kirby Declaration” Docket No. 350) 4 2. The sum of $39,929.96, which was deposited to the registry of this Court 5 is the property of Dostalik, which was held in the name of the Dostalik Trust. The 6 Court makes this finding based upon the following evidence contained in the record: 7 2.1 The Business Records Declaration of Risela Rivera, including the 8 statement of account which is included in Exhibit 17 to the Supplemental Kirby 9 Declaration, as page no. CAYE 000075. 10 3. The Dostalik Trust is a revocable trust. The Court makes this finding 11 based upon the following evidence contained in the record. 12 3.1 The Certification of Trust, a copy of which was attached as Exhibit 13 6 to the Kirby Declaration, and which is included in Exhibit 17 to the 14 Supplemental Kirby Declaration as page CAYE 000160. 15 3.2 The Declaration of Trust copy of which was attached as Exhibit 7 16 to the Kirby Declaration, and which is included in Exhibit 17 to the 17 Supplemental Kirby Declaration as pages CAYE 000142-159. 18 3.3 The Trust Transfer Deed from Diane M. Nagby as Grantor to 19 Diane M. Dostalik, Trustee of the 2015 Diane M. Dostalik Trust dated April 27, 20 2015, a copy of which is attached as Exhibit 2 to the Kirby Declaration, which 21 document states that the deed is a “Transfer to a revocable trust.” 22 / / / 23 / / / 24 / / / 1 | CONCLUSIONS OF LAW 2 4. Property vested in a trust which is revocable by the judgment debtor is 3 || treated as property of the judgment debtor in that it is subject to the claims of 4 || creditors. Calif. Probate Code §18200; Zanelli v. McGrath, 166 Cal.App. 4" 615, 637 5 || (2008). 6 5. The Court may assign a right to payment which is the property of the 7 || judgment debtor to the judgment creditor in order to enforce a money judgment. Cali 8 || Code Civ. Proc. §§ 695.010(a); 708.5 10(a). In re Advanced Biomedical, Inc., 547 □□□ 9 || 337, 340-42, 346 (Bankr. C.D. Cal. 2016).” 10 | /// 11 || Dated: October 28, 2020 □□ 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 FINDINGS OF FACT AND CONCLUSIONS OF LAW RE MOTION FOR ORDER DIRECTIN(