ANSWER IN OPPOSITION

mukiialice64
others
May 17, 2023

[ENTER NAME]

[ENTER ADDRESS]

Respondent In Pro Per

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO

 IN RE: ESTATE OF [ENTER NAME] CASE NO: ______________________


ANSWER IN OPPOSITION TO THE TRUSTEE’S PETITION TO SELL TRUST PROPERTY

            COMES NOW Respondent [ENTER NAME], pro se, one of the beneficiaries in the property located at [ENTER ADDRESS] (“trust property”), and tenders this objection to the Trustee’s Petition to sell Trust Property. In support of the same, Respondent states as follows:

JURISDICTION AND VENUE

1.         The Superior Court has jurisdiction of proceedings under the Probate Code concerning the administration of the decedent’s estate. See Prob. Code. § 7050.

2.         The Probate Code confers exclusive jurisdiction of proceedings concerning the internal affairs of trusts to the superior court having jurisdiction over the trust. Prob. Code. § 17000, subd. (a).

3.         The decedent [ENTER NAME], was domiciled in this state at the time of death. Therefore, venue is proper in this County pursuant to Prob. Code. § 7051.

Accordingly, the factual allegations below are made upon information and belief:

BACKGROUND

            6.         On or about [ENTER DATE], the Respondent’s mother created a trust and placed her property of address [ENTER ADDRESS] into the trust. Upon her death on September 7, 2021, the decedent’s assets were supposed to be administered according to the terms of the trust. Specifically, the Trustor’s intention under the trust was that the estate be managed by three trustees: Vincent Soriano, Gloria Carlos, and Olivia Messick. However, two of the trustees (Gloria, and Vincent) resigned, leaving the Trustee.

8.         On or about [ENTER DATE], Olivia Messick (the “Trustee”) filed a Petition to sell the property. Accordingly, the Respondent generally seeks that this Court voids the sale/intended sale.

GROUNDS OF OBJECTION

9.         The Respondent presents the following grounds for objection in that regard:

  1. The property was income-generating. Notably, $1000 was being collected in rent every month since 2018, when the current tenant assumed occupancy. The rent amount was being collected by check[1]. Respondent therefore avers that the property could pay off all of the trust’s costs, and preserve its capital.
  2. The terms of the trust had no provision for the liquidation of the property into cash. Notably, the trust only provided for the partitioning of the estate “in kind”.
  3. Since the demise of the Trustor to the date of filing this Petition, the Trustee has not been maintaining and delivering accurate, adequate and verifiable records of the estate. Notably, since September 7, 2021, the Trustee has never sent any accounting to the beneficiaries. The beneficiaries are therefore not in a position to know the economic status of the estate.
  4. The Trustee single-handedly made decisions, which ought to have been made by three trustees, according to the intent of the Trustor in the terms of the trust. The Trustee was obligated to seek successor trustees, after Gloria and Vincent resigned. The Trustee also misrepresented the date of the resignation of the other two trustees. It is notable that Vincent Soriano resigned in 2018 and Gloria Carlos followed shortly thereafter possible due to lack of cooperation with the Trustee [2]. 
  5. The Trustee rejected the Respondent’s offer in September 2021 and beneficiary Leticia’s most recent offer of $215,000 submitted in January 2022. Respondent avers that the said offers would have ensured a reduction of costs and an increase of gains to the beneficiaries. The Trustee also failed to enter any negotiations with any beneficiary, which, as already observed, would have reduced costs and optimized gains.  
  6. The Respondent also seeks to bring to this Honorable Court’s notice, the Trustee’s enmity and mistrust[3]. Further, the Trustee failed to maintain the property in good condition. The property in the trust went without maintenance for many years and became severely dilapidated as a result. For that reason, the listing realtor posted only the conditions 203K Loan or Cash Sell, on the belief that the property would not qualify for Government backed Mortgage funding due to its poor condition. It is further notable that the dilapidated condition of the property is one of the reasons that compelled the Respondent to evict her sister in favor of a cash offer.

9.         In addition to the foregoing averments, the Respondent maintains that the Trustee has breached fiduciary duty. Probate Code section 16000 et seq. set forth a trustee’s fiduciary duties in the administration of a trust. The Trustee has breached the following fiduciary duties:  the duty to administer the trust according to the trust document; the duty to administer the trust solely in the interest of the beneficiaries; the duty not to use or deal with trust property for the trustee’s own profit or for any other purpose unconnected with the trust, nor to take part in any transaction in which the trustee has an interest adverse to the beneficiary; the duty to take reasonable steps under the circumstances to take and keep control of to preserve the trust property; the duty to make the trust property productive under the circumstances and in furtherance of the purposes of the trust; the duty to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, and other circumstances of the trust; the duty to only incur costs that are appropriate and reasonable in relation to the assets, overall investment strategy, purposes, and other circumstances of the trust; and the prohibition on self-dealing transactions. (Pro b. Code, §§ 16000, 16002, subd. (a), 16004, subd. (a), 16006, }6007, 16010, 16049, 16050, and 16102.).

10.       Respondent avers that the Trustee has beached the aforesaid duties by:

  1. Fraud against the estate. The Trustee has for many years established a pattern of unethical financial dealings by collecting the rent due the estate only in cash in order to avoid accounting for it, and in order to under-report income to the state social services department, the tax authorities, and the beneficiaries[4].
  2. Abuse: The Trustee in 2010 along with Gloria Carlos, made an effort to have the Trustor’s attending physician document that because of medical condition, the decedent was not capable of handling her own affairs. Consequently, the affairs of the estate became in effect the sole responsibility of the Trustee.  The Trustee’s failure to seek judicial review only speaks to her lack of diligence and further indicates mismanagement by the Trustee, of the Trustor’s and the estate’s affairs. 

PRAYER FOR RELIEF

WHEREFORE, Respondent prays for an Order:

  1. Dismissing the Trustee’s Petition to sell the Trust Property;
  2. Voiding the sale of the trust property;
  3. Probate Code section 16420 permits the tracing of trust property that has been wrongfully disposed of and recover the property or its proceeds. Accordingly, the Court should issue an Order pursuant to the said section.
  4. Compelling the Trustee to redress her breaches of fiduciary duty by imposing appropriate remedies under P:robate Code section 16420, including payment to the trust of any and all funds wrongfully taken, as well as tracing trust property that has been wrongfully disposed;
  5. Awarding Respondent attorney’s fees and costs, including actual costs incurred in conducting this proceeding; and
  6. For any other legal and equitable relief that this Court may deem just and proper.

In addition to the prayers set forth above, the Respondent seeks to present an offer to the Trustee for the gain and/or benefit of the beneficiaries, which offer contains the following terms:

  1. The Price of $215,000 or appraised value as determined by an appraisal prior to sale, whichever is higher, property assumed as-is, and vacant of tenants, or restore former tenant, Leticia Carlos.
  2. The Assignment of shares of the Trust by gift or other transfer, not in cash but in kind, by and on behalf of Leticia Carlos.
  3. The Payment of fully 50% of all fees and expenses accruing to the trust as of the date of this offer; any amount thereafter accruing, is to be proportioned equally among the 13 principle beneficiaries.
  4. The deposit of that amount of cash necessary, into escrow as a set-aside, for the settlement of all fees and expenses accruing to the trust, to be assigned as a second position lien on the real property, if not settled at closing. Fees and expenses to be determined based on a complete and accurate accounting by Trustee to be produced and made available to all beneficiaries a minimum of 14 days prior to the submission/acceptance of a formal offer.
  5. The Closing Time period of 30 days or less, pending Mortgage Lender funding the purchase.

DATED:

                                                                                                Respectfully submitted,

                                                                                                          Signature

                                                                                                ___________________

                                                                                                [ENTER NAME]

                                                                                               [ENTER ADDRESS]                                                                                                                        

In Pro Per

CERTIFICATE OF SERVICE

            I hereby certify that on [ENTER DATE], a copy of the foregoing document has been sent to the Trustee in the following address:

[ENTER ADDRESS FOR TRUSTEE].

DATED:                                                                         

                                                                                                           Signature

                                                                                                ____________________

                                                                                                [ENTER NAME]

[ENTER ADDRESS]                        

                                                                                                 In Pro Per

[1] Respondent challenges the Trustee to show the Court that a bank account for the Trust was open continuously during that period of payment.

[2] Respondent will present Exhibits of scans of resignation documents signed by Vincent Soriano and Gloria Carlos.

[3] Respondent will present printed copies of various text messages by and between the Respondent, Leticia and the Trustee.

[4] The Respondent has evidence of Leticia Carlos’ testimony, and the Trustee’s journal of cash payments made to a third party from 2018-2021.

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