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

PULLEN, P. J. This is an appeal from a judgment of foreclosure of a mortgage upon real property. The note secured by the mortgage was executed by Max Goldberg and Rebecca Goldberg, and signed by Abraham Horovitz as guarantor, in the following terms:

“For value received 1 hereby guarantee payment of the within obligation and all renewals or extensions thereof, and I hereby waive presentation, demand, protest and notice of protest and notice of nonpayment. Abraham Horovitz.’’

In the action of foreclosure the defendants were Max Goldberg, Abraham Horovitz, Lea Horovitz, his wife, Abraham Horovitz, as administrator of the estate of Rebecca Goldberg, deceased, and Title Guaranty and Trust Company. The only answer filed was that of Abraham Horovitz and Lea Horovitz, his wife, and default of all others was duly entered. Subsequently the action was dismissed as to Lea Horovitz.

Rebecca Goldberg, one of the makers of the note, died prior to the commencement of this action, leaving an estate which included the real property encumbered by the mortgage. In the complaint on foreclosure it is set forth that no claim had been filed against the estate of Rebecca Goldberg upon the note and mortgage and that plaintiff thereby waived all recourse against any property belonging to the estate of Rebecca Goldberg, deceased, other than the mortgaged property and waived all claim for a deficiency judgment or for costs or counsel fees against the estate, as provided in section 716 of the Probate Code.

Upon the trial in which the only defendant appearing was Abraham Horovitz, individually and as administrator of the estate of Rebecca Goldberg, deceased, a decree was entered awarding to plaintiff as against defendant Horovitz individually the sum of $10,377, being the principal and interest on the note, which he had signed as guarantor. Against Goldberg, the comaker who defaulted, the amount of principal and interest was awarded, together with an additional amount for certain expenditures, attorney fees and costs. Against the estate of Rebecca Goldberg was awarded the principal and interest found due, certain money expended under the terms of the mortgage, costs, and attorney fees, and ordering the mortgaged property sold to pay such amounts, and for a deficiency [170]judgment against Max Goldberg as maker, and Abraham Horovitz as guarantor, if such deficiency shall occur. ,

From this judgment and decree Horovitz, individually and as administrator, appeals.