Paramount Sav. & Loan Ass'n v. Barber
| Decision Date | 14 June 1968 |
| Citation | 69 Cal.Rptr. 390,263 Cal.App.2d 166 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PARAMOUNT SAVINGS AND LOAN ASSOCIATION, Plaintiff and Respondent, v. Gray R. BARBER, Defendant and Appellant. Civ. 867. |
Donald G. Kendall, Bakersfield, for appellant.
Mack, Bianco & Means and William A. Stone, Bakersfield, for respondent.
This litigation tests the implementation and effect of section 580b of the Code of Civil Procedure relative to the protection from deficiency judgment of a person who gives a deed of trust as security for a loan as part of the purchase price.
On March 8, 1963, the Currans, husband and wife, executed to the Paramount Savings and Loan Association for a loan of $10,000, a promissory note and deed of trust by which they conveyed a lot to the Kern County Title Company, as trustee. In the present suit the Kern Financial Corporation was sued as a substitute trustee in place of Transamerica Title Insurance Company, which was immediate successor to Kern County Title. The Currans did not live in the house which was constructed on the lot, nor intend to do so.
On March 18, 1963, the Currans conveyed the lot by grant deed to Wayne Reeder, Inc. On April 2, 1963, Wayne Reeder, Inc., through its president Wayne Reeder, assumed the agreement to pay the promissory note above mentioned and on April 3d of the same year Wayne Reeder, Inc., by a grant deed, conveyed the property to Fairview Construction Corp., and the latter corporation, by its president, Wayne Reeder, in turn assumed the obligations under the promissory note. On April 29, 1963, Fairview Construction Corp. deeded the property to Olen J. Hughes and Amie Hughes, who assumed the obligations under the note; by grant deed on December 15, 1964, the Hughes's conveyed the property to defendant Gary R. Barber. Mr. Barber executed an assumption agreement on December 24, 1964, obligating himself under the terms of the original promissory note, and promising to perform the agreement contained in the deed of trust; at the time of the suit defendant Barber was the record owner of the property subject to the deed of trust. By the terms of the note defendant Barber and his predecessors promised to pay plaintiff monthly installments of $69, principal and interest, on the 1st day of each month beginning April 1, 1963; defendant Barber did not make the payments due on January 1, 1966, or thereafter.
Plaintiff filed a foreclosure action and also sued for a deficiency judgment, claiming that Barber was personally liable for payment of the balance of the sum owed. After the trial, the judge awarded a decree of foreclosure and also ordered that defendant Barber was personally liable for the payment of the debt secured by the deed of trust, and that if the money arising from the foreclosure sale was insufficient to pay the amount found due, plus attorneys' fees, interest, and costs of sale, a deficiency judgment was awarded against the defendant Barber.
The appeal is from 'that portion of the judgment declaring the defendant Gary R. Barber personally liable for payment of the debt secured by the Deed of Trust and declaring said defendant liable for attorney fees and costs.'
The appellant claims that he was entitled to the protection of section 580b of the Code of Civil Procedure, which was amended in 1963, effective September 23; the section before the amendment read as follows:
'No deficiency judgment shall lie in any event after any sale of real property for failure of the purchaser to complete his contract of sale, or under a deed of trust, or mortgage, given to secure payment of the balance of the purchase price of real property.
'Where both a chattel mortgage and a deed of trust or mortgage have been given to secure payment of the balance of the combined purchase price of both real and personal property, no deficiency judgment shall lie at any time under any one thereof.'
The section, after amendment, reads as follows:
'No deficiency judgment shall lie in any event after any sale of real property for failure of the purchaser to complete his contract of sale, or under a deed of trust, or mortgage, given to the vendor to secure payment of the balance of the purchase price of real property, or under a deed of trust, or mortgage, on a dwelling for not more than four families given to a lender to secure repayment of a loan which was in fact used to pay all or part of the purchase price of such dwelling occupied, entirely or in part,...
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