Bank of America National Trust & Savings Ass'n v. Burg Bros.

[353]

NOURSE, P. J.

Plaintifl"' sued to recover deficiencies remaining after trustee’s sales under four separate deeds of trust. From the judgment for plaintiff the defendants appealed on the grounds that the trial court failed to apply the provisions of sections 580a of the Code of Civil Procedure and 2924% of the Civil Code, both enacted in 1933. It is the position of respondent that, since the deeds of trust were all executed prior to the enactment of these code sections, the rights of the parties are governed by the law existing at the time of the contracts.

Section 580a of the Code of Civil Procedure provides generally that before entering any deficiency judgment, the court shall find, through the appointment of an appraiser, the fair market value of the property at the time of the sale and enter its judgment for not more than the excess of the entire amount due over such fair market value, with interest. Section 2924% of the Civil Code precludes the entry of a deficiency judgment unless one year, as distinguished from the former period of three months, has elapsed between the recordation of the notice of breach and election to sell and the date of sale under a deed of trust. In the instant case all the deeds of trust were executed prior to the effective date of these statutes, but all sales thereunder were made subsequent to such date. The single question involved, therefore, is whether these statutes have a retroactive operation upon deeds of trust executed before their effective date.

In holding that they did not so operate, the trial court based its decision upon numerous authorities of the courts of this state which are all reviewed in the very able opinion of Mr. Justice Haines, sitting

pro tempore

in

Birkhofer

v.

Krumm,

27 Cal. App. (2d) 513, 533 [81 Pac. (2d) 609], We cannot improve upon the language or the reasoning of that opinion and may adopt its summarization of the effect of section 580a reading: “its provisions looking toward the limitation of deficiency judgments to the difference between the whole indebtedness and what the court may find to have been the fair market value of the real property by which, prior to the sale, the indebtedness was secured, have uniformly been held inapplicable to contracts made before the effective date of the code section, regardless of whether the sale of the security was had before or after such effective date”. With