JP Morgan Chase Bank v. Greenberg CA2/6

Filed 7/2/14 JP Morgan Chase Bank v. Greenberg CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JP MORGAN CHASE BANK etc., 2d Civil No. B246079 (Super. Ct. No. 56-2011-00391727-CU- Plaintiff and Respondent, OR-VTA) (Ventura County) v.

BERNARD GREENBERG,

Defendant and Appellant.

This appeal is about competing lien claims and California's "first in time, first in right" system of lien priorities. (First Bank v. East West Bank (2011) 199 Cal.App.4th 1309, 1313 [discussing Civ. Code, § 2897].) JP Morgan Chase (Chase) owns a $265,000 deed of trust that was recorded more than a year before Bernard Greenberg perfected a $153,310.35 judgment lien on a Thousand Oaks condominium. The trial court found that Chase was a good faith encumbrancer for value and made the $265,000 loan "without actual or constructive notice of whatever inchoate interest [appellant] may have had or hoped to have" in the property. Greenberg appeals. We affirm. Facts and Procedural History In 2001 Zohreh Khabushani (Zohreh) acquired title to the Thousand Oaks property based on a quitclaim deed from Paramount Group, Inc. (PGI) to Zohreh, "a married woman as her sole and separate property." In 2003, Chase's predecessor in interest,

Washington Mutual Savings (WaMu), loaned Zohreh $265,000 and recorded a deed of trust on the property. On June 3, 2005, appellant obtained a $153,310.35 judgment against PGI and Zohreh's husband, Michael Khabushani, in Los Angeles County Superior Court. (Paramount Group, Inc. v. Greenberg, Los Angeles County Sup. Ct. Case No. BC-305818.) On September 7, 2005, appellant filed a creditor's action to enforce the judgment. (Greenberg v. Khabushani et al., Ventura County Sup. Ct. Case No. SC- 043980.) WaMu/Chase was not a defendant in the action. Appellant prevailed and recorded a June 30, 2008 judgment stating that Zohreh "is a third person who has property in which Defendants, Mike Khabushani and Paramount Group, Inc, have an interest. . ." In 2011, Chase sued for declaratory relief on the ground that the judgment lien was subordinate to Chase's deed of trust. The trial court found that the 2001 quitclaim deed 1 to Zohreh was ambiguous and received evidence concerning two recitals in the deed. Next to the recital "THE UNDERSIGNED GRANTOR(s) DECLARE(s) DOCUMENTARY TRANSFER TAX $NONE ," is the handwritten notation: "the Grantee are [sic] sole owner and shareholder of the Grantor Corporation, and proportionate interests have not changed." A second recital states: "The grantors and the grantees in this conveyance are comprised of the same parties who continue to hold the same proportionate interest in the property, R & T 11923(d)." The trial court found that the recitals had no bearing on the interest conveyed and were put in the quitclaim deed to avoid paying a documentary transfer tax. The court concluded that Chase was a bona fide encumbrancer and made the loan without actual or constructive notice of PGI's purported interest in the property. Judgment was entered declaring that the Chase $265,000 deed of trust is superior and senior to any interest held by appellant in the property. Substantial Evidence