First Federal Bank of California v. Fegen

California Court of Appeal Jul 29, 2005 No. B174252Published

Before: Armstrong

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Holding. The court dismissed the appeal as moot because the property had already been sold pursuant to the trial court's order and the appellant failed to post an undertaking to stay enforcement or timely initiate a separate action to set aside the sale.

Issues

Whether an appeal from an order for the sale of a dwelling is rendered moot when the property has already been sold and no undertaking was posted to stay enforcement.
Whether a judgment debtor can challenge a completed execution sale on appeal when the statutory period to set aside the sale has expired.

Disposition. dismissed

Quotations verified verbatim against the opinion

“Because the sale has been conducted and Fegen’s residence (the Property), which was the subject of the order, has been sold, First Federal maintains that this appeal is moot. We agree, and dismiss the appeal.”

“In short, the sale of the Property has rendered this appeal moot.”

“In sum, because we cannot order the relief which Fegen seeks, this appeal is moot.”

[800]

Opinion

ARMSTRONG, J. —

Appellant Paul F. Fegen appeals the trial court’s order for sale of dwelling, pursuant to which respondent First Federal Bank of California (First Federal) enforced a judgment against him. Because the sale has been conducted and Fegen’s residence (the Property), which was the subject of the order, has been sold, First Federal maintains that this appeal is moot. We agree, and dismiss the appeal.

The pertinent facts

are not in dispute: First Federal obtained a money judgment against Fegen on October 12, 1995. In 1997, First Federal perfected a lien on all real property owned by Fegen in Los Angeles County by recording its final judgment and an abstract of judgment in the Los Angeles County Recorder’s Office. The Clerk of the Los Angeles County Superior Court issued a writ of execution against Fegen in 2003, pursuant to which all of Fegen’s interest in the Property was levied upon by the Los Angeles County Sheriff. On October 31, 2003, First Federal filed an Application for order for sale of dwelling. A hearing was held on March 16, 2004, after which the application was granted and the order issued.

Fegen timely filed a notice of appeal, stating that he “hereby appeals the court order on March 16, 2004 in Department 1A granting Plaintiff’s Application for Order for Sale of Dwelling.” However, there is no automatic stay for this type of appeal. Rather, Code of Civil Procedure section 917.4 provides that perfecting an appeal of a judgment or order which directs the sale of real property “shall not stay enforcement of the judgment or order . . . unless an undertaking in a sum fixed by the trial court is given . . . .” Fegen did not post an undertaking. After several unsuccessful ex parte applications in which Fegen attempted to postpone the sale or to force First Federal to sell its judgment to Fegen’s designee, the sale was conducted on September 15, 2004, by the Los Angeles County Sheriff. First Federal was the successful bidder and purchased the Property on that date.

Code of Civil Procedure section 701.680 provides in part:

“(a) Except as provided in paragraph (1) of subdivision (c), a sale of property pursuant to this article is absolute and may not be set aside for any reason.

First Federal Bank of California v. Fegen

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