490 F.2d 1141 (9th Cir. 1974), 71-2624, In re Ventura-Louise Properties

Docket Nº:71-2624.
Citation:490 F.2d 1141
Party Name:In the Matter of VENTURA-LOUISE PROPERTIES, a Limited Partnership, composed of Robert M. Myers and Victor T. Koozin, General Partners. v. Don M. ROTHMAN, Trustee-Appellee. GREAT WEST LIFE ASSURANCE COMPANY, Petitioners-Appellants,
Case Date:January 03, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1141

490 F.2d 1141 (9th Cir. 1974)

In the Matter of VENTURA-LOUISE PROPERTIES, a Limited Partnership, composed of Robert M. Myers and Victor T. Koozin, General Partners.

GREAT WEST LIFE ASSURANCE COMPANY, Petitioners-Appellants,

v.

Don M. ROTHMAN, Trustee-Appellee.

No. 71-2624.

United States Court of Appeals, Ninth Circuit.

January 3, 1974

Richard M. Moneymaker, Tiernan & Moneymaker, Los Angeles, Cal. (Argued), for petitioners-appellants.

Alan S. Pitt, Beverly Hills, Cal. (Argued), for trustee-appellee.

Page 1142

Before CHAMBERS and BARNES, Circuit Judges, and KING, District judge. [*]

OPINION

BARNES, Circuit Judge:

This is an appeal from a final judgment of the United States District Court for the Central District of California affirming an Order, made by the Referee in Bankruptcy denying appellant's claim, as a trust deed beneficiary, for recovery of rents collected and held by appellee, Trustee in Bankruptcy.

The relevant facts can best be summarized in outline form in a chronological time sequence.

Great West Life Assurance Company of Winnipeg, Canada, appellant herein, is hereinafter referred to as 'Lender'. A. J. Bumb and Dan M. Rothman, Appellee (who succeeded Bumb as Trustee), are hereinafter referred to as 'Trustee'. Ventura-Louis Properties, Inc., the bankrupt corporation, is hereinafter referred to as 'Debtor'.

8/26/63 Debtor executed a deed of trust in favor of Lender on real estate located in Los Angeles County, near the intersection of Ventura Boulevard and Louis Street to secure a loan of $1,600,000.00. Rents paid to Debtor. Trust Deed recorded.

5/1/64 Debtor executed a second deed of trust on the same property and also included a seconnd parcel in the Palm Springs area, Sunrise Estates (in effect a first deed of trust on this parcel, see Appellee's Brief, pp. 6-7) in favor of Manufacturer's Bank to secure an additional loan of $850,000. Lender relies upon the 'assignment of rents' clause in this second trust deed for its claim to the rents. (Ex. 9 second document)

6/1/66 Lender filed, recorded its Notice of Breach and Default, and Election to Sell, on the second trust deed. (Ex. 11)

Prior to 6/2/66 both loans were in default.

7/21/66 Pursuant to its 'assignment of rents' clause, Lender gave written notice to each tenant on the property, notifying them that Lender was exercising its right to collect rents under its assignment of the rents and demanded that all rents be paid to it. (Ex. 5)

9/8/66 Debtor filed a Chapter XII petition in bankruptcy and A. J. Bumb was appointed Trustee in Bankruptcy. (Finding of Fact No. 1).

On or about 9/16/66 Trustee notified all tenants of Ventura-Louise property to pay all rents to him as Trustee in Bankruptcy. (Finding of Fact No. 17). Lender in order to avoid nonpayment of rent by tenants because of conflicting demands agreed that A. J. Bumb could so collect the rents. (Finding of Fact No. 18). A. J. Bumb did collect rents from all tenants until 6/25/68, the date of the foreclosure sale. (Finding of Fact No. 19). Neither Lender, nor any of its officers or agents, took any steps during the pendency of the bankruptcy proceeding to either (A) collect any of the rents on the subject property; (B) obtain an order of the Court to sequester said rents; (C) obtain an order of the Court for the Trustee to collect rent for them; or (D) secure permission of the Court to foreclose until an order was entered on June 20, 1968, upon application of the Trustee herein. (Finding of Fact No. 21).

7/17/67 Order entered in the Bankruptcy Proceeding entitled...

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