Kincaid v. Gomez

DEVINE, P. J.

The question in this case is whether defendants, respondents, who are sued on a promissory note, are entitled to the protection of section 580b of the Code of Civil Procedure, the antideficiency judgment statute which applies to purchase money security conveyances.

A written agreement for the sale by plaintiff Kincaid of a parcel of land in Sacramento County was made with “Ralph Gomez and/or.Nominee hereinafter referred to as purchaser. ’ ’ The purchase price was $75,000, of which $20,000 was paid in cash, and the purchasers assumed a first deed of trust for about $30,000, which was later paid. A promissory note for $24,787.50 was signed by Ralph Gomez, by Emil Magliocco and by Dolphin Construction Company¡ a córporation, their nominee for the taking of title. This note is held by plaintiff and is the basis of the present action. At the trial, it was stipulated that Gomez and Magliocco were the actual purchasers of the property. Appellant testified that he considered respondents to be the real debtors because they were going to buy the property.

[841]

The note recites that it is secured by a deed of trust. The deed of trust, was executed by Dolphin Construction' Company, which held the record title upon receiving the conveyance from plaintiff. Kincaid subordinated the deed of trust executed by Dolphin to a deed of trust’ in favor of a savings and loan association for the proceeds of a construction loan. Default occurred upon the senior lien, the property was sold under power of sale, and plaintiff’s security under the Dolphin Construction deed of trust became valueless.

Appellant contends that section 580b is no defense because (1) defendants are not principals but guarantors, and (2) even as makers of the promissory note, since

they

gave no security (the Dolphin company being the sole trustor), the judgment sought against them cannot be considered a deficiency judgment and therefore is not forbidden by section 580b.

If respondents were guarantors, section 580b would not protect them.

(Roberts

v.