Zaluskey v. Mundt

BROWN (Gerald), P. J. The Zaluskeys filed an unlawful detainer action November 27, 1964, against the Mundts; the [714]trial court struck the Mundts’ answer, dismissed their cross-complaint, and gave summary judgment to the Zaluskeys. The Mundts appeal.

In 1959 the Mundts had borrowed money and executed a second deed of trust on their real property as security for the loan; the beneficial interest in the trust deed was later assigned to the Zaluskeys. In 1962 the Zaluskeys instituted a trustee’s foreclosure proceedings because the Mundts failed to pay the required monthly payments. The trustee duly scheduled his sale of the property for March 20, 1963. On March 19, 1963, the Mundts filed a debtors’ petition for a bankruptcy arrangement, Chapter XI, and an order issued that day from the United States District Court restraining the foreclosure.

There were numerous hearings before the referee in bankruptcy to determine whether the restraining order should be vacated. The restraining order was continued after each hearing, the trustee duly postponing his sale to a date following that scheduled for the next hearing. In August 1964 the referee vacated the restraining order against foreclosure. On October 9, 1964, the U.S. district court affirmed the referee’s order and denied the Mundts ’ application for a rehearing and for a stay of execution pending appeal to the U.S. Court of Appeals. On October 13, 1964, the trustee under the deed of trust sold the property to the Zaluskeys. The United States Court of Appeals affirmed the United States district court,1 and the United States Supreme Court denied certiorari.

In their unlawful detainer action the Zaluskeys alleged they were the owners of the property and were entitled to immediate possession, the Mundts were in possession of the property without permission, and written notice to quit the premises had been served on the Mundts more than three days before filing the unlawful detainer action. The Mundts in their answer denied these allegations of the complaint and set forth as an affirmative defense that they “are about to file an appeal to the Ninth Circuit United States Court of Appeals in the pending bankruptcy proceeding.” The Zaluskeys moved for summary judgment and offered three declarations in support of the allegations of the complaint; at the hearing on the motion the Mundts cross-complained “for a bill to cancel a deed” of the property to the Zaluskeys, alleging invalidity of the deed primarily because it was executed in violation of the restraining order of the bankruptcy court. Mr. Mundt’s decla