Académique Documents
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Defendant
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NOTICE TO PLAINTIFF AND PLAINTIFF’S ATTORNEY OF RECORD:
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Please take notice that on the above-schedule date and time, or as soon thereafter as the matter
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may be heard, in the department above of the Huntington Park Courthouse, located at 6548 Miles
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Avenue, Huntington Park, CA 90255, I, Defendant, Celadia Contreras, hereby moves this court for an Ex
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Parte order shortening time for the service of underlying motion filed herewith and staying execution of
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the judgment rendered herein and restraining the levying officer from evicting the applicant pursuant to a
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Writ of Execution: Possession of Real Property in this case until such time as a hearing is held on said
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motion.
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28 APPLICATION FOR EX PARTE ORDER
R.C. Temme Corp. v. Contreras 12U00920
1 The underlying motion is being brought on the grounds that this court can grant a general
2 discretionary stay pursuant to California Code of Procedure §918, and for the reason that the defendant is
3 unable to vacate by the date on the Notice to Vacate and will be rendered homeless absent a stay on the
5 This application is based upon supporting declarations, Code of Civil Procedure § 128, Code of Civil
6 Procedure § 1005, Code of Civil Procedure § 918, and upon all papers, pleadings, and exhibits on file in
7 this action.
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Dated:
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11 Celadia Contreras
In Pro Per
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APPLICATION FOR EX PARTE ORDER
R.C. Temme Corp. v. Contreras 12U00920
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MEMORANDUM OF POINTS AND AUTHORITIES
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I.
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STATEMENT OF FACTS
The instant Unlawful Detainer came before the Honorable Jaime R. Corral, Judge of the Superior
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Court, in Department 002 of the Huntington Park Courthouse on March 5, 2009. I, the Defendant, Celaida
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Contreras is the tenant of the premises at issue. The premises were recently sold as a result of a
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foreclosure. After we received Summons and complaint on case # 12U00920 we filed answers and
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demurrers, plaintiff never sent second case. Since property is only a single family dwelling we never
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knew 2nd case was also filed, case#12U00921. Notice to vacate was given to us around 10/05/2012.
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Defendant Celaida Contreras was forced to file for bankruptcy to stop sheriff. Bankruptcy case # 2:12-bk-
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44696-WB to Judge Julia W. Brand. The Defendant petitions this court for a stay of enforcement until 1st
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case is settle or disposed, and/or Bankruptcy petition is discharged, dismissed and/or plaintiff after a
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hearing and order reliefs the property from the stay.
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Defendant had live in the subject premises located 7915 Eastern Ave, Bell, CA 90202, since June
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2006. I have been responsible for paying all the utilities for the premises including electricity, gas and
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water. I reside in the home 3 other tenants. Plaintiff obtained the home pursuant to a Deed of Trust after a
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foreclosure on March 12, 2012. The instant action for unlawful detainer was premised upon a 3-day/60-
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day notice to quit. Since learning of the foreclosure and the judgment against me I have taken every step
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possible to secure alternate permanent housing for me and my family but have been unable to find any
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place where I and my family could move in immediately. I work as a part time Babysitter and make only
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$400 per month. Because of my low-income, I was granted a fee-waiver by this Court. I had looked at
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and applied for several units, but because of my credit, landlords have been requesting escalated security
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deposits of up to $4800 dollars to move in. I had located one unit that I may qualify for, but I need time to
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collect the funds necessary to put down a deposit. Furthermore, I do not have family or friends in the area
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that can accommodate my family staying with them. I asks for a temporary stay of execution because an
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27 APPLICATION FOR EX PARTE ORDER
R.C. Temme Corp. v. Contreras 12U00920
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1 Immediate lockout will be a hardship on me. I am willing to pay to stay in my home with a bankruptcy
3 Wielding the Court’s power to issue a temporary stay of execution on the judgment and writ will
4 Enormously benefit me. The Los Angeles County Sheriff’s Department has Vacate, the unit on the back
5 that refers to a bathroom and kitchen. If I am locked out of my bath and kitchen, I and my family will
6 have nowhere to go. Extra time means an opportunity to find housing appropriate for my large family,
7 and would lessen the overall trauma caused by the foreclosure upon their home.
8 II.
THE COURT HAS THE STATUTORY AND INHERENT
9 DUTY AND POWER TO GRANT AN EX PARTE ORDER
13 SHORTENING TIME FOR SERVICE OF A MOTION
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UNTIL SAID MOTION CAN BE HEARD
11 Courts of general jurisdiction have a statutory as well as inherent duty and power to control
12 their own processes and orders to as to make them conform to justice, including the granting of a stay
13 of execution in a proper case. Code of Civil Procedure § 128 states: “(a) Every court shall have power; (8)
14 to amend and control its process and orders so as to make them conform to law and justice.” In California
15 Cotton Credit Corporation v. Superior Court (1932), 127 Cal.App. 472, 475, the court stated that “Courts
16 of general jurisdiction have inherent discretionary power to grant a stay of execution in a proper case.” in
17 commenting on the breadth of C.C.P. § 128(8), the court in Neary v. The Regents of the
18 University of California (1992), 3 Cal.App.4th 273, stated that this provision “is consistent with and
19 codifies the courts’ tradition and inherent judicial power to do whatever is necessary and
20 appropriate. . . to ensure the prompt, fair and orderly administration of justice”. Id. at 277. Another
21 case involving a mandamus and declaratory and injunctive relief proceeding, the court in Board of
22 Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, stated:
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_____________________________________________________________
27 APPLICATION FOR EX PARTE ORDER
Bank of New York v. Martinez 08U02544
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Courts of this state have a broad inherent power to control, supervise, and administer
1 matters before them. Although this power is partially codified in Code of Civil Procedure
§ 128, it is not limited by the statute and derives from the state Constitution, as based
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upon the historic power of the courts. Courts are thus authorized to fashion new remedial
3 procedures when it is advisable to do so, in order to . . . protect the rights of the parties.
Cottle v. Superior Court (1992) 3 Cal.App.4th 1367. Id. at 847-848.
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The judge may prescribe a shorter time for notice of motion pursuant to Code of Civil Procedure § 1005.
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Therefore, courts have the broad ability to issue orders to protect the rights of the parties, including
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granting a stay of execution and an order shortening time for service of a motion.
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III.
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THE COURT HAS THE STATUTORY POWER TO GRANT
9 A DISCRETIONARY STAY OF ANY JUDGMENT OR ORDER
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11 A court may grant a discretionary stay without a showing of grounds. Code of Civil Procedure
12 §918(a) states, “Subject to subdivision (b), the trial court may stay the enforcement of any judgment
13 or order.” For an unlawful detainer, Subdivision (b) allows for stays of an additional 10 days beyond
14 the 60-day deadline to file an appeal:
15 “If the enforcement of the judgment or order would be on appeal only by the
16 giving of an undertaking, a trial court shall not have power, without the consent
17 of the adverse party, to stay the enforcement thereof pursuant to this section for a
18 period which extends for more than 10 days beyond the last date on which a
19 notice of appeal could be filed.”
20 Furthermore, under California Rule of Court 8.75 1(a), “... a notice of appeal shall be filed on or before
21 the earliest of the following dates: (1) 60 days after the date of mailing by the clerk of the court of a
22 document entitled ‘notice of entry’ of judgment or appealable order.” In the instant action, the notice was
23 mailed on Tuesday, March 06, 2009. Thus, under C.C.P. §918, the Court can grant a discretionary stay up
24 until May 15, 2009.
25 If the court does require an undertaking, the amount is to be the per diem rent during the period
26 of the stay, not the payment of the back-due rent as awarded in the judgment. Medford v. Superior Court
27 (1983) 140 Cal.App.3d 240, 189 Cal.Rptr. 227, 230 (dictum).
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28 _____________________________________________________________
APPLICATION FOR EX PARTE ORDER
Bank of New York v. Martinez 08U02544
1 IV.
2 CONCLUSION
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Defendant respectively asks that the Court grant an order to stay the enforcement of judgment
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until May 15, 20009. I had been diligently searching for alternate housing without success. Without this
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discretionary stay, I and my family will end up at a homeless shelter. I am willing and able to compensate
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Plaintiff for this additional time. For the foregoing reasons, at the ex parte hearing we request that the
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court grant an order shortening time for service of the underlying motion and a stay of execution until said
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motion can be heard. At the hearing on the underlying motion we request that the court issue a
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discretionary stay of execution.
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Dated: April 9, 2009
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14 _________________________
Jorge Martinez
15 Attorney In Pro Per
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_____________________________________________________________
APPLICATION FOR EX PARTE ORDER
Bank of New York v. Martinez 08U02544
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3 Jorge Martinez
616 Armstead St
4 Glendora, CA 91740
5 TEL: 562-209-9459
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES
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EAST DISTRICT- WEST COVINA COURTHOUSE
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This motion is being brought on the grounds that this court can grant a general discretionary stay
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pursuant to California Code of Procedure §918, and for the reason that the defendant is unable to vacate
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by the date on the Notice to Vacate and will be rendered homeless absent a stay on the execution of this
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judgment for possession of real property. This application is based upon supporting declarations, Code of
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Civil Procedure Section §918, and upon all papers, pleadings, and exhibits on file in this action.
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_______________________________
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Jorge Martinez
14 Attorney In Pro Per
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28 _____________________________________________________________
MOTION TO STAY EXECUTION
Bank of New York v. Martinez 08U02544
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MEMORANDUM OF POINTS AND AUTHORITIES
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I.
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STATEMENT OF FACTS
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The instant Unlawful Detainer came before the Honorable Charles C. Lee, Judge of the Superior
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Court, in Department 2 of the West Covina Courthouse on March 5, 2009. I, Defendant, Jorge Martinez
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was the former owner of the premises at issue. The premises were recently sold as a result of a
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foreclosure. After a bench trial, judgment was entered for the plaintiff, Bank of New York, and I,
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Defendant, Jorge Martinez. Notice of judgment was mailed out on March 06, 2009. Defendant petitions
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this court for a stay of enforcement until May 15, 2009, which is the tenth day beyond the last date on
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which a notice of appeal could be filed for the instant Unlawful Detainer. I am willing and able to
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compensate Plaintiff for the discretionary stay the court may grant.
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I had live in the subject premises located 616 Armstead St, Glendora, CA 91740, since June 2005.
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I have been responsible for paying all the utilities for the premises including electricity, gas and water. I
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reside in the home with my wife, mother in law, and my children, ages 4 and 2 years. Plaintiff obtained
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the home pursuant to a Deed of Trust after a foreclosure on October 09, 2008. The instant action for
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unlawful detainer was premised upon a 3-day/60-day notice to quit. Since learning of the foreclosure and
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the judgment against me I have taken every step possible to secure alternate permanent housing for me
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and my family but have been unable to find any place where I and my family could move in immediately.
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I work as a part time real estate assistant and make only $662 per month, and the total monthly income for
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my household of five people is $2262. Because of my low-income, I was granted a fee-waiver by this
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Court. I had looked at and applied for several units, but because of my credit and the size of my family,
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landlords have been requesting escalated security deposits of up to $4800 dollars to move in. My children
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are currently enrolled in schools in the area and I am trying to avoid transferring them to other districts
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mid-term. I had located one unit that I may qualify for, but I need time to collect the funds necessary to
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put down a deposit. Furthermore, I do not have family or friends in the area that can accommodate my
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family staying with them. I asks for a temporary stay of execution because an Immediate lockout will be a
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28 _____________________________________________________________
MOTION TO STAY EXECUTION
Bank of New York v. Martinez 08U02544
1 hardship on me and my family. I am willing to pay to stay in my home for a few more days in order to
3 Wielding the Court’s power to issue a temporary stay of execution on the judgment will
4 6 enormously benefit me and my family. The Los Angeles County Sheriff’s Department has posted a
5 Notice to Vacate, but said posting may take place again as soon as April 13, 2009. If I am locked out of
6 my home, I and my family will have nowhere to go. Extra time means an opportunity to find housing
7 appropriate for my large family, and would lessen the overall trauma caused by the foreclosure upon their
8 home.
9 II.
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THE COURT HAS THE STATUTORY POWER TO GRANT
11 A DISCRETIONARY STAY OF ANY JUDGMENT OR ORDER
A court may grant a discretionary stay without a showing of grounds. Code of Civil Procedure
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§918(a) states, “Subject to subdivision (b), the trial court may stay the enforcement of any judgment
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or order.” For an unlawful detainer, Subdivision (b) allows for stays of an additional 10 days beyond
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the 30-day deadline to file an appeal:
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“If the enforcement of the judgment or order would be on appeal only by the
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giving of an undertaking, a trial court shall not have power, without the consent
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of the adverse party, to stay the enforcement thereof pursuant to this section for
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a period which extends for more than 10 days beyond the last date on which a
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notice of appeal could be filed.”
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Furthermore, under California Rule of Court 8.75 1(a), “... a notice of appeal shall be filed on or before
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the earliest of the following dates: (1) 60 days after the date of mailing by the clerk of the court of a
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document entitled ‘notice of entry’ of judgment or appealable order.” In the instant action, the notice was
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mailed on Tuesday, March 06, 2009. Thus, under C.C.P. §918, the Court can grant a discretionary stay up
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until May 15, 2009.
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_____________________________________________________________
28 MOTION TO STAY EXECUTION
Bank of New York v. Martinez 08U02544
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2 If the court does require an undertaking, the amount is to be the per diem rent during the period
3 of the stay, not the payment of the back-due rent as awarded in the judgment. Medford v. Superior Court
5 III.
6 CONCLUSION
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Defendant respectively asks that the Court grant an order to stay the enforcement of judgment
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until May 15, 20009. I had been diligently searching for alternate housing without success. Without this
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discretionary stay, I and my family will end up at a homeless shelter. I am willing and able to compensate
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Plaintiff for this additional time. For the foregoing reasons, at the ex parte hearing we request that the
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court grant an order shortening time for service of the underlying motion and a stay of execution until said
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motion can be heard. At the hearing on the underlying motion we request that the court issue a
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discretionary stay of execution.
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Dated: April 9, 2009
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Jorge Martinez
20 Attorney In Pro Per
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28 _____________________________________________________________
MOTION TO STAY EXECUTION
Bank of New York v. Martinez 08U02544
1 DECLARATION OF DEFENDANT
5 3. I am over the age of 18. The statements in this declaration are true.
6 4. I have lived in the subject premises located 616 Armstead St, Glendora, CA 91740, since
7 June 2005. I am responsible for paying all the utilities for the premises including
8 electricity, Trash, gas, water and maintenance. I live in the home with my wife, and two children, ages
9 2 and 4 years.
10 5. Plaintiff obtained the home pursuant to a Deed of Trust after a foreclosure on October 09, 2008.
11 The instant action for unlawful detainer was premised upon a 3-day/60-day notice to quit.
12 6. Since learning of the foreclosure and the judgment against me, I have taken every step
13 possible to secure alternate permanent housing for me and my family but I have been
15 7. I work as a part time real estate assistant and make only $662 per month, and the total monthly
16 income for my family is $2262. I filed a fee waiver with this court because I could not
18 8. I have looked at and applied for several units, but because of my wife’s and my own
19 bad credit, and the size of my family, landlords have been requesting security deposits of
21 9. My children are currently enrolled, and have been attending schools in the area for the past
22 Four and two years, and I am trying to avoid transferring them to another school mid-term.
23 10. I have found one apartment that I may qualify for, but I need time to collect the funds
24 necessary to put down a deposit. Furthermore, I do not have family or friends in the area
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_____________________________________________________________
28 MOTION TO STAY EXECUTION
Bank of New York v. Martinez 08U02544
1 11. I am asking for a temporary stay of execution because an immediate lockout will be a hardship on me
2 and my family. I am willing to pay to stay in my home foe a few more days in order to avoid having my
4 12. The Los Angeles County Sheriff’s department has not yet posted a second Notice to Vacate, but said
5 posting is imminent. If I am locked out of my home, I will have no alternate housing. With the extra time
6 that I now ask the court for, me and my family will not be forced to scrambled, and will have the
7 opportunity to secure alternate housing. Extra time means an opportunity to find housing appropriate for
8 my large family, and would lessen the overall trauma caused by the foreclosure upon our home.
9 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and
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12 JORGE MARTINEZ
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_____________________________________________________________
28 MOTION TO STAY EXECUTION
Bank of New York v. Martinez 08U02544
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