Goffney v. Family Savings and Loan Association
| Decision Date | 31 May 2000 |
| Docket Number | No. B119732.,B119732. |
| Citation | 98 Cal.Rptr.2d 497,81 Cal.App.4th 1175 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Keith GOFFNEY, Plaintiff and Appellant, v. FAMILY SAVINGS AND LOAN ASSOCIATION et al., Defendants and Respondents. |
Keith Goffney, in pro. per., for Plaintiff and Appellant.
Cameron & Dreyfuss and Lawrence J. Dreyfuss, Houston, TX, for Defendants and Respondents.
Keith Goffney (Goffney) appeals from a judgment entered after court trial in which the superior court rejected Goffney's several contentions arising out of the conduct of a nonjudicial foreclosure and sale of a condominium (hereinafter the condominium or the property) which Goffney had purchased, and which he had financed by executing a promissory note secured by a deed of trust containing a power of sale.
This is the second occasion we have had to review issues in this litigation. In an unpublished opinion on the prior appeal (Goffney v. Family Savings and Loan Association et al. (Aug. 28, 1995) No. B087079 [nonpub. opn.]), we affirmed the trial court's rulings sustaining the demurrer of defendants1 to the first amended complaint and denying Goffney's motion to file a third amended complaint. We then remanded the matter for trial on the causes of action of the second amended complaint to set aside the trustee's sale, to cancel the trustee's deed and for an accounting. That trial was conducted on April 21 and 22, 1997, and judgment against Goffney was subsequently entered. Goffney filed a timely appeal. For the reasons expressed in the course of this opinion, we will affirm the judgment of the trial court.
Goffney makes three principal contentions: (1) the nonjudicial foreclosure sale was not conducted in compliance with the procedural requirements of Civil Code section 2924 et seq.;2 (2) there was an ambiguity in the notice of default originally served on Goffney which compels voiding the April 13, 1992, sale; and (3) the beneficiary was estopped from refusing, or waived, the late tender of funds to reinstate the loan.3
On September 30, 1983, Goffney purchased a condominium in Los Angeles, financing his purchase by borrowing $96,900 from respondent Family Savings and Loan Association (Family Savings), signing a promissory note and securing its repayment by also executing a deed of trust pledging the condominium as security. On his loan application, Goffney represented he was an attorney employed by a law firm in the same city. Family Savings was the beneficiary of the deed of trust and respondent Family Development Corporation was the trustee. The accompanying promissory note required monthly payments of principal and interest, due and payable on the first day of each month with late charges assessed if not paid within 15 days after each installment date. In 1986 and 1987, Goffney made payments which he characterized as principal only, even though Family Savings considered the checks to be for the principal and interest due on the 1983 note and received no other payments in any month in which the purported principal only payments were made.
In 1990, respondent Family Savings initiated foreclosure proceedings. It also refused Goffney's monthly payments from March 1990 through October 1991, pending resolution of the foreclosure. Goffney filed suit in superior court and obtained a temporary restraining order. Later he prevailed by default judgment in the amount of $6,575.46 plus costs.4
On October 22, 1991, Goffney wrote Family Savings a letter requesting a full accounting of his loan. On October 31, Family Savings responded, giving Goffney a breakdown of the payments due, including a statement that he was in arrears by 18 payments "fr. 5-1-90 to 11-1-91."
The next month, on November 25, respondent Family Development Corporation, the trustee under the 1983 deed of trust, recorded in the official records of Los Angeles County a notice of default and election to sell. The next day, it sent a copy of that recorded document to Goffney by certified mail. The document contained the statements that Goffney owed $18,208.69 as of that date, which was then delinquent. The notice of default also specified the period for which Goffney was in default as extending from "May 1, 1991."
Thereafter, through February 1992, each time Goffney made a monthly payment defendant Family Savings returned it to Goffney with a letter stating the reason for its rejection and the amount which Goffney must pay to reinstate the loan. In the notice of default and in each of these letters, Family Savings misstated the date of the initial failure to pay as "5-1-91," when in fact the correct original default date was that stated in its October 31 letter to Goffney: "5-1-90." Each letter correctly stated the amount due and the number of payments missed.
On February 27, 1992, the trustee recorded a notice of sale, setting the sale for March 25, 1992. On March 20, 1992, Goffney filed the initial complaint in this action in which he alleged causes of action for injunctive relief, breach of the covenant of good faith and fair dealing, conspiracy, intentional infliction of emotional distress and negligent infliction of emotional distress. At Goffney's request, on March 23, 1992, the trial court issued a temporary restraining order (TRO) enjoining the foreclosure sale pending hearing on an order to show cause (OSC) which was scheduled for April 6, 1992. At that OSC hearing, the court vacated the TRO. That same day, Goffney sent Family Savings a letter in which he offered to tender an amount which he contended would cure his default in payment. No money was tendered with that letter.
While the OSC was pending, the trustee reset the foreclosure sale for April 13. On April 8 and 10, Goffney made two additional applications for TROs; each was denied. Also on those dates, Goffney tendered sums to Family Savings in efforts to reinstate the loan.5 Family Savings refused to accept the tenders and instead offered to accept reinstatement of the loan on the conditions that Goffney dismiss this lawsuit and pay the principal and interest owing, late charges, foreclosure fees and costs, attorney fees and costs incurred by Family Savings, and the April 1st loan payment.6 The amount demanded by Family Savings totaled over $7,000 more than Goffney had tendered. Goffney refused to dismiss the litigation or to tender the additional amounts, contending the attorney fees requested exceeded the amount allowed by law, and that the April payment was not due and need not be paid until just prior to the date upon which the April late charge would be assessed. No agreement was reached.
On April 13, 1992, the trustee proceeded with the foreclosure sale, accepting a credit bid from the beneficiary, Security Pacific National Bank.
Subsequent to taking title to the subject property, Family Savings filed an unlawful detainer action, which resulted in a default judgment and an order for the eviction of Goffney on July 23, 1992.7 Goffney appealed the eviction order to the appellate department of the superior court which, on August 9, 1994, reversed the municipal court eviction order with directions to vacate the default judgment on the basis that Goffney "was not properly served at his last known address pursuant to Code of Civil Procedure section 415.45, subdivision (b)."8
In the course of pretrial proceedings on the underlying complaint in this action, on May 12, 1992, the trial court sustained Family Savings' demurrer to the complaint, granting leave to Goffney to amend the causes of actions for an injunction, for conspiracy, and for intentional infliction of emotional distress. The trial court sustained without leave to amend the demurrer to the causes of action for breach of the covenant of good faith and fair dealing and negligent infliction of emotional distress. Goffney then filed a first amended complaint to set aside the trustee's sale, to cancel the trustee's deed, to quiet title, for an accounting, for tortious breach of contract, for conspiracy, for intentional infliction of emotional distress, and for negligence. On August 13, 1992, the trial court sustained Family Savings' demurrer to the first amended complaint without leave to amend as to the third cause of action to quiet title, the fifth cause of action for tortious breach of contract, the sixth cause of action for conspiracy, and the seventh and eighth causes of action for intentional infliction of emotional distress and for negligence. The trial court sustained the demurrer with leave to amend as to the first, second and fourth causes of action to set aside the trustee's sale, to cancel the trustee's deed, and for an accounting.
Thereafter, on September 4, 1992, Goffney filed a second amended complaint alleging causes of action to set aside the trustee's sale, to cancel the trustee's deed, for an accounting and for abuse of process. Contained within the first cause of action to set aside the trustee's sale were paragraphs 27 through 57 which referred to paragraphs entitled (1) quiet title, (2) tortious breach of contract, (3) conspiracy, (4) intentional infliction of emotional distress and (5) negligence. These allegations mirrored those causes of action in the first amended complaint as to which the court had granted Family Savings' demurrer without leave to amend. On November 30, 1992, the trial court sustained Family Savings' demurrer without leave to amend as to the abuse of process cause of action, and overruled the demurrer with respect to the causes of action to set aside the trustee's sale, to cancel the trustee's deed, and for an accounting. The trial court also granted Family Savings' motion to strike the allegations contained in paragraphs 27 through 57 of the amended complaint.
On November 12, 1993, Family Savings filed a motion for summary judgment. In December of that year,...
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