State Bank of Texas v. Parabia
- Proceeding
- district
- Area
- civil
- On appeal
- State Bank of Texas v. Sam Parabia (2021-02-12) — affirmed; State Bank of Texas v. Sam Parabia (2022-05-16) — reversed — the Ninth Circuit's later ruling on this docket
- Panel
- Myron James Lorenz (author)
Analysis
The court reviewed Defendants' objection to a Temporary Restraining Order (TRO) requiring them to pay rent during the redemption period following a judicial foreclosure. The court rejected the Defendants' statutory argument, declined to rule on the specific rent amount requested by Plaintiff in its reply, and ordered that the TRO remain in effect for the entire redemption period.
| What the court decided | The model |
|---|---|
Defendants' objection to the TRO's requirement to pay rent during the redemption period is denied.“Defendants are obligated to pay for use and occupation of the property during the redemption period. Id. §729.090(a).” | agree with court The court correctly applied California Code of Civil Procedure Section 729.090(a), which explicitly grants the purchaser the right to receive the value of use and occupation from the person in possession from the time of sale until redemption. The court correctly distinguished this from Section 1161a(b), which governs unlawful detainer proceedings and possession, not the financial obligation of a redeeming party. |
Plaintiff's request to set rent at $20,000 per month is declined.“The Court therefore declines to rule on the amount of rent at this time.” | agree with court The court correctly applied the procedural rule that new issues raised for the first time in a reply brief are generally not considered, as they deprive the opposing party of the opportunity to respond. This is a standard procedural safeguard in federal litigation. |
The TRO shall remain in effect during the entire redemption period.“For the foregoing reasons, the terms of the Order Granting Ex Parte Application by Plaintiff State Bank of Texas (doc. no. 295) shall remain in effect during the entire redemption period as provided therein.” | agree with court This is the operative order resolving the show cause hearing. Since the only objection (regarding the rent obligation) was rejected and the specific amount was deferred, the original TRO terms stand. |
The order itself: sound — The order is concise and directly addresses the specific objections raised. It correctly applies the relevant California statutes to the facts of the redemption period and correctly applies Ninth Circuit precedent regarding procedural fairness in briefing. There are no significant gaps or logical leaps.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STATE BANK OF TEXAS, Case No.: 14-cv-3031-L-DHB 12 Plaintiff, ORDER REGARDING ORDER TO 13 v. SHOW CAUSE 14 SAM PARABIA, et al., 15 Defendants. 16 17 On October 16, 2019, the Court granted Plaintiff's motion for a temporary 18 restraining order relative to the judicial foreclosure of Defendants' residence. (See doc. 19 no. 295 ("TRO").) Among other things, the TRO ordered Defendants to show cause why 20 its terms should not stay in effect during the entire redemption period following judicial 21 foreclosure. (Id. at 12-13.)1 Defendants timely filed their response (doc. no. 298) and 22 Plaintiff replied (doc. no. 300). 23 Defendants object to the TRO only insofar as it requires them to pay rent while 24 they remain in possession of the property during the period of redemption. Payment of 25 rent was ordered pursuant to California Code of Civil Procedure Section 729.090(a) 26 27 28 1 1 || which provides that "[f]rom the time of the sale until a redemption, the purchaser is 2 entitled to receive from the person in possession . . . the value of the use and occupation 3 || of the property." Defendants point to section 1161a(b), pertaining to unlawful detainers. 4 ||Cal. Civ. Proc. Code §1161a(b). Section 1161a(b) speaks to obtaining possession rather 5 ||than payment of rent during the redemption period and is therefore not on point. 6 || Defendants are obligated to pay for use and occupation of the property during the 7 ||redemption period. Jd. §729.090(a). 8 In its reply, Plaintiff goes a step further by requesting the Court to set the rent at 9 $20,000 per month. This issue is raised for the first time in the reply. It is inappropriate 10 || to raise new issues in the reply, because it deprives the opposing party of an opportunity 11 respond. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) ("The district court 12 ||need not consider arguments raised for the first time in a reply brief.") The Court 13 || therefore declines to rule on the amount of rent at this time. If the parties are unable to 14 ||reach an agreement, Plaintiff must file an appropriate motion. 15 For the foregoing reasons, the terms of the Order Granting Ex Parte Application by 16 || Plaintiff State Bank of Texas (doc. no. 295) shall remain in effect during the entire 17 ||redemption period as provided therein. 18 IT IS SO ORDERED. 19 20 || Dated: November 29, 2019 : fp ep? 27 H . James Lorenz, United States District Judge 23 24 25 26 27 28