Biancalana v. T.D. Service CA6

Filed 7/10/13 Biancalana v. T.D. Service CA6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

DAVID BIANCALANA, H035400 (Santa Cruz County Plaintiff and Appellant, Super. Ct. No. CV162804)

v.

T.D. SERVICE COMPANY,

Defendant and Respondent.

Having previously granted review, the California Supreme Court filed its decision in this case on May 16, 2013. (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807 (Biancalana).) The Supreme Court reversed the judgment previously rendered by this court and transferred the matter to us for further proceedings consistent with the views expressed in its opinion. I. FACTUAL AND PROCEDURAL BACKGROUND A. Relevant trial court proceedings As explained in the Supreme Court’s decision: “Plaintiff David Biancalana filed an action to quiet title to a parcel of real property located at 434 Winchester Drive in Watsonville, California, alleging that he owned the property because he was the highest bidder at a trustee’s sale that occurred on September 10, 2008. According to Biancalana’s complaint, EMC Mortgage Corporation (EMC) was the beneficiary of a loan secured by a deed of trust on the property, and T.D. Service Company (T.D.) was the trustee. After the loan went into default, T.D. issued a notice of trustee’s sale. A

copy of the notice of sale was attached to the complaint. It stated that the property would be sold at public auction to the highest bidder at the entrance to the county offices in Santa Cruz at 10:00 a.m. on September 10, 2008. The notice said that ‘the total amount of the unpaid balance of the obligation secured by the above described Deed of Trust and estimated costs, expenses, and advances is $435,494.74,’ but added: ‘It is possible that at the time of sale the opening bid may be less than the total indebtedness due.’ The notice included a telephone number that could be called the day before the sale to learn ‘the expected opening bid,’ if available. “The complaint alleged that on the day before the sale, Biancalana called the telephone number listed on the notice of sale and learned that the opening bid on the property would be $21,894.17. After researching the property, Biancalana called the trustee again and confirmed the amount of the opening bid. Biancalana then obtained a cashier’s check for $22,000 and attended the auction the following day. “On the morning of the sale, ‘the auctioneer for the Defendant Trustee, made at least two calls to Defendant Trustee and spoke with two different Trustee agents to verify the opening bid of $21,894.17.’ When the auction began, the auctioneer stated he had ‘been authorized to place an opening bid, on behalf of the beneficiary, in the amount of $21,894.17.’ Biancalana then bid $21,896. There were no further bids, and the auctioneer announced that ‘this property is sold to Mr. Biancalana for $21,896.00.’ Biancalana gave the auctioneer his cashier’s check for $22,000. “Two days later, T.D. telephoned Biancalana and said the sale was void because T.D. ‘did not offer the Property for a high enough bid amount.’ T.D. returned the cashier’s check, but Biancalana returned the cashier’s check to T.D. and demanded the deed. After T.D. refused, Biancalana filed the present action. “T.D. filed an answer admitting that Biancalana had given a cashier’s check for $22,000 to the auctioneer and that T.D. had returned those funds and refused to issue a deed to the property, but otherwise denying the allegations in the complaint. As an