Ellison v. Kopstein, 171 B.R. 879 (N.D. Cal. 1994)

LYNCH, District Judge.

The Court has considered the briefs filed by the parties to this appeal, and the arguments of counsel presented on August 5, 1994. The Bankruptcy Court was clearly in error in avoiding the judicial lien of Appellant Monty Ellison on the residence of Appellee-Debtor Emanuel Z. Kopstein, located at 3499 Paradise Drive, Tiburon, California, described in Exhibit A attached hereto.

IT IS HEREBY ORDERED ADJUDGED, AND DECREED, that the Bankruptcy Court's Order Granting Motion For Reconsideration And Avoiding Judicial Lien, filed February 28, 1994, 163 B.R. 573, is hereby reversed with respect to the judicial lien of Monty Ellison, recorded December 4, 1989, as Document No. 89-70042 of the Official Records, County of Marin, and said lien is not avoided in any way.

The land referred to in this Report is situated in the County of Marin, in the unincorporated area, State of California, and is described as follows:

PARCEL ONE:

BEGINNING at a point in the southeasterly line of that certain parcel of land described in deed executed by Thomas B. Deffenbach, Sr., et al to Paradise Cove Realty Company, a corporation, recorded August 28, 1952 in Book 761 of Official Records at page 46, Marin County Records, distant thereon South 29° 35' West 122.18 feet from the intersection thereof with the Southerly line of Paradise Drive; thence leaving said Southeasterly line North 73° 40' East 212.53 feet, South 28° 07' East 157.25 feet and North 31° 35' East 98.42 feet to the said Southerly line of Paradise Drive; thence along said Southerly line South 28° 09' East 46.31 feet; thence leaving said line South 31° 35' West 212.04 feet to the Northerly line of that certain parcel of land described in deed executed by Thomas B. Deffenbach, et al to the United States of America; recorded December 20, 1944 in Book 469 of Official Records at page 454; thence along the last referred to parcel South 71° 43' 30" West 37.17 feet, North 63° 01' West 83.22 feet, North 26° 58' 45" East 47.50 North 63° 01' 15" West 185.00 feet and South 26° 58' 45" West 100.00 feet to the most Westerly corner of said parcel; thence leaving said parcel North 63° 01' 15" West 25.15 feet to the Southeasterly line of the hereinbefore referred to Paradise Cove Realty Company parcel; thence along said Southeasterly line North 29° 35' East 162.07 feet to the point of beginning.

PARCEL TWO:

A DRIVEWAY EASEMENT of the uniform width of 10 feet lying Southeasterly of and contiguous to the Southeasterly line of that certain parcel of land described in deed executed by Thomas B. Deffebach, Sr., et al to Walter B. Conner, Jr., recorded September 8, 1953 in Book 824 of Official Records at page 66.

PARCEL THREE:

BEGINNING at the Actual Point of Commencement of Parcel A of Parcel Three described in a deed recorded March 16, 1960 in Book 1352 of Official Records of Marin County at Page 295; thence North 26° 58' 45" East 47.50 feet; thence North 63° 01' 15" West 185.00 feet; thence South 26° 58' 45" West 100.00 feet; thence South 63° 01' 15" East 185.00 feet; thence North 26° 58' 45" East 27.50 feet; thence South 63° 01' 15" East 93.79 feet; thence North 71° 43' 30" East 17.95 feet; thence North 31° 35' East 38.78 feet to the most Westerly corner of the lands of Hsu described in a deed recorded May 29, 1981 as Document No. 81-23735; thence South 71° 43' 30" West 37.17 feet; thence North 63° 01' 15" West 83.37 feet to the point of beginning.

PARCEL FOUR:

A NON-EXCLUSIVE easement for access and utilities over, under, and across a strip of land 10 feet in width lying Southeasterly *881 of and adjoining the following described line:

BEGINNING at the most Westerly corner of the parcel of land described in the deed to Hsu recorded May 29, 1918 as Document No. 81-023735, Marin County Records, and running thence S 31° 35' W (S 31° 33' W) 38.78 feet to the Southerly line of the parcel described as Parcel B of Parcel Three in the deed recorded March 16, 1960 in Book 1352 of Official Records at Page 295, Marin County Records.