Boggs v. North American Bond & Mortgage Co.

California Court of Appeal Apr 12, 1937 No. Civ. 5781Published

Before: Pullen

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Holding. The court held that a petition under the Mortgage and Trust Deed Moratorium Act of 1935 is a special proceeding, not a civil action, and therefore does not require findings of fact or the application of civil pleading rules regarding admissions. The court further held that the burden of proof rests on the petitioner to establish equitable grounds for relief, which the appellants failed to satisfy.

Issues

Whether a petition under the Mortgage and Trust Deed Moratorium Act of 1935 requires the trial court to file findings of fact and conclusions of law.
Whether the failure of respondents to answer a petition under the Moratorium Act constitutes an admission of the allegations therein.
Whether the petitioners met their burden of proof to establish equitable grounds for relief under the Act.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the burden of establishing the right of such relief obviously rests upon the petitioners under the familiar principle that he who has the affirmative of an issue has the burden of proof.”

“Section 632 of the Code of Civil Procedure has been held to apply only where the trial has been had in a civil action and is not applicable to a special proceeding.”

PULLEN, P. J.

Appellants were on the 28th day of June,

1935, the owners of a certain lot in the city of Los Angeles,

[317]

improved with an apartment house consisting of 29 apartments and three stores. This property was subject to a deed of trust securing a note for $55,000 wherein the Guaranty Building and Loan Association was beneficiary. This note and deed of trust had, prior to the commencement of this action, been assigned to California Mutual Building and Loan Association, now in the course of liquidation by the Building and Loan Commissioner.

On March 22, 1935, the Building and Loan Commissioner recorded notice of default. Thereafter on June 28, 1935, appellants filed a petition under the provisions of the Mortgage and Trust Deed Moratorium Act of 1935 (Stats. 1935, p. 1208) setting up the foregoing facts, and alleging further that all taxes and insurance had been paid except the second instalment of taxes for 1930, for the payment of which appellant had arranged for payment in instalments as provided by law. Notice of the filing of this petition was given as required by the provisions of the act. No answer or other pleading was ever filed by any of the respondents herein. At the hearing no witnesses were sworn nor any testimony produced except two affidavits offered by appellants, which placed the value of the property at approximately $55,000 and two counter-affidavits offered by respondents which placed the value of the property at approximately $38,000. Appellants asked permission to file additional affidavits, upon what issues we are not informed, but the request was refused. Thereupon the court denied and dismissed this petition.

From this order appellants have appealed, and as grounds for reversal contend the court erred in denying their petition, claiming that the order of the court is not supported by'the evidence, and that the court erred in not filing findings of fact and conclusions of law.

Sections 5 and 6 of the Moratorium Act provide in effect that upon the hearing, the court may make its order if it finds equitable grounds for relief, directing that the sale shall not be held until after such date as the court may consider just, but in no event beyond February 1, 1937, or the court may dismiss the proceeding. It is also therein provided that if the court orders the sale postponed it shall determine the reasonable value of the income from the property, or its rental value, and shall require the trustor or mortgagor to pay all or a reasonable part of such income or rental toward the

Boggs v. North American Bond & Mortgage Co.

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PULLEN, P. J.

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