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

GRIFFIN, P. J.

Plaintiffs-appellants liberto Zacearía and his wife Carol, as owners, brought this action against defendants-respondents Bank of America National Trust and Savings Association, as trustee, Rim Conrad, and Robert and Emma Watkins, as beneficiaries, to set aside a trustee’s sale of certain described real property in Orange County under a trust deed executed by plaintiffs to secure the payment of an indebtedness for $3,408.12. They alleged that on September

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10,1954, a notice of default was recorded; that on January 26, 1955, a sale was held by the trustee and the property was sold to the defendant Conrad for $3,800, which plaintiffs claim was grossly inadequate; that plaintiffs were and are able to pay said amounts in default; that the sale was the result of fraud of defendants on account of (1) failure to give proper notice of the sale to plaintiffs; (2) misinforming plaintiffs as to the nature of the sale and the legal consequences; (3) indicating to plaintiffs that they would have a right of redemption ; and (4) improperly influencing the beneficiaries to permit the sale to and purchase by defendant Conrad. The prayer is for a decree setting aside the sale and placing title to the property back in the hands of plaintiffs; for restitution of the property; and damages for loss of use, as well as punitive damages for $35,000.

A demurrer to the complaint was sustained with leave to amend. An amended complaint was filed alleging, in addition to the allegations of the original complaint, that the property had a true value of $17,500. It also set forth a letter written by defendant Martin on December 9, 1954, signed Pro-assistant cashier. It was directed to Mr. Zacearía, in which he made reference to the “foreclosure” of the trust deed by the beneficiary. It was further alleged that it was plaintiffs’ belief that from the use of this word there was a foreclosure action pending and he would have a period of redemption, when in truth and in fact it was a trustee’s sale with no right of redemption; that plaintiffs immediately attempted to redeem and were informed there was not right of redemption; that the trustee requested the beneficiaries to proceed with the sale knowing plaintiffs were confronted with financial problems and even though they did not desire to go forward with the sale. A motion to dismiss as to each defendant was presented. In said motion it was alleged that the judgment in the case of Conrad versus these plaintiffs, ease Number 64524, rendered in the Orange County Superior Court, was res judicata as to all issues tendered by this complaint. A judgment dismissing the action on this ground followed. The appeal is from this judgment.