Security-First National Bank of LA v. Cryer

WHITE, J.

In an action to recover a deficiency alleged to exist after a trustee’s foreclosure sale of the real property described in two deeds of trust, judgment was entered for plaintiff under the provisions of section 437c of the Code of Civil Procedure, which section provides that in an action upon a debt or liquidated demand, if it is claimed there is no defense to the action, on motion of plaintiff supported by affidavits the answer may be stricken out and judgment entered, in the discretion of the court, unless the defendant shall show by affidavit such facts as may be deemed sufficient to entitle him to defend. From such judgment, as well as from an order denying a motion to vacate the same and grant a rehearing, defendants prosecute this appeal.

Plaintiff set forth in its complaint the execution and delivery by defendants of two promissory notes for $20,000 and

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$15,000 respectively, each secured by a deed of trust upon real property in the city of Los Angeles, the failure of defendants to pay the principal when due, the execution and recordation of notice of breach and election to sell, and thereafter the sale by the trustee to plaintiff at public auction of the respective pieces of property in the manner and form required by law. It was also alleged in the complaint that the real property securing the $20,000 note was sold to plaintiff for the sum of $12,769.87; that the fair market value of the property at the time of sale was not in excess of said sum, and that after applying the proceeds of sale to the payment of expenses, interest, taxes, advances and principal, there remained a deficiency of $10,000; that the property securing the $15,000 note was sold to plaintiff for the sum of $11,147.66, which sum was the fair market value of the property, leaving a deficiency of $5,000.

Defendants by their answer denied that the trustee gave notice of sale as required by law, or that the defendants were notified thereof; denied that the trustee sold the property at the time and place of the alleged sale; denied the plaintiff was the highest bidder; alleged that the fair market value of the properties was over $18,000 and $15,000 respectively; and charged generally that the trustee never “made a legal or valid sale” and failed to comply with the provisions of the note or “with the law with reference to the sale of said property”.