Hartman v. Bank of America

BARNARD, P. J. This is an appeal from an order extending a previous order postponing a sale under a deed of trust.

The Bank of America National Trust and Savings Association held a trust deed on certain real property and on October 21, 1935, caused a notice of default to be recorded. On November 12, 1935, Anna L. Hartman, the owner of the property and payer of the note secured by the trust deed, filed a petition under the Mortgage and Trust Deed Moratorium Act of 1935. (‘Stats. 1935, chap. 348.) A hearing was had on December 20, 1935, at which evidence was taken, and on January 7, 1936, the court made an order postponing the sale under this deed of trust until February 1, 1937, on certain terms and conditions. Thereafter the sale was postponed on substantially the same terms and conditions to July 1, 1937. On June 28, 1937, Anna L. Hartman filed a supplemental petition for a further postponement of the sale under the provisions of the Mortgage and Trust Deed Moratorium Act of 1937. (Stats. 1937, chap. 167.) A hearing was had on July 30, 1937, and the court made and entered an order postponing the sale to July 1, 1939, from which order the bank has appealed. For convenience, the bank will be referred to as the appellant and Anna L. Hartman as the respondent.

The first point raised is that the order in question was erroneous because no evidence was introduced of the inability of the respondent to pay or of any fact tending to show that it was just and equitable to extend the previous order for the postponement of the sale. The only evidence introduced at the hearing on July 30, 1937, was certain testimony to the effect that the terms of the previous orders of the court had been substantially complied with and that some new tenants for the property had been obtained, with some statements showing what rentals had been received under the previous orders and how these had been disbursed. From these statements it appears that after the application of all moneys paid by the respondent under the previous orders [100]the total debt to the appellant had increased to the extent of $1526.76 during the period of the postponement.

The respondent does not contend that any evidence was received at the hearing on July 30, 1937, which would show that the desired extension was just and equitable but contends that facts showing this condition were set forth in her supplemental petition which led to that hearing, and that it must be presumed on this appeal that satisfactory evidence was given in support of those allegations. She further contends that she presented evidence of that nature at the hearing of her original petition on December 20, 1935. Not only is that evidence not before us, but her financial condition and the entire situation may have materially changed in the twenty months which intervened between that hearing and the one here in question, and the statute is particularly designed to cover any such change in conditions.