Pacer Foreclosure, Inc. v. Alfalo, No. B268589 (D2d6 May 30, 2018)
Trustee conducts a foreclosure sale, which results in proceeds in excess of the loan. Borrower sues both Trustee and Buyer for wrongful foreclosure. Trustee then files an interpleader and deposited the excess funds with the court. But the trial court granted Borrower’s demurrer on the interpleader and dismissed the case. Its order permitted Trustee to apply for the release of funds, but it wouldn’t automatically release the funds to Buyer. Everyone appeals.
While the appeal is pending, Borrower settles with Buyer. Buyer agrees it doesn’t have claim to the excess funds that that it won’t object to their release to Borrower. Buyer then argues that the appeal is moot.
But it isn’t. Because whether Trustee’s complaint was a proper interpleader affects whether Trustee can recover fees out of the res, obtain a discharge, and be dismissed from the underlying wrongful foreclosure case.
In any event, the trial court was correct to grant the demurrer. This wasn’t a legit interpleader situation because Buyer never had a real claim against the excess funds. It just doesn’t make sense that a Buyer—who is actually paying the money in a foreclosure sale—would also have some claim to money it paid in excess of Borrower’s loan balance. Moreover Civil Code § 2924k literally required Trustee to disburse any proceeds net of the loan to the Borrower. This isn’t some situation where the res isn’t sufficient to satisfy competing liens by different lenders. Without a reasonable threat of double vexation, an interpleader doesn’t lie. And without an interpleader, Trustee has no claim for its fees.
And given the settlement, there is no doubt at all that nobody has any claim on the money except Borrower. So the trial court should give him his money.
Affirmed and remanded with instructions.
Showing posts with label foreclosure. Show all posts
Showing posts with label foreclosure. Show all posts
Monday, July 16, 2018
Wednesday, January 25, 2017
“Somewhere Along the Line, Litigation Must Cease.”
Gillies v. JPMorgan Chase Bank, N.A., No. B272427 (D2d6 Jan. 24, 2107)
Plaintiff in this case has successfully used serial litigation to delay foreclosure on his mortgage, which he stopped paying in 2009. He has already lost two state court cases (and appeals), a federal case (and appeal), and a case in bankruptcy court. The court here is not amused. It dutifully walks through and sustains the trial court's demurrer on each cause of action. It then (perhaps sua sponte) drops some knowledge on the import of res judiciata in a section called “The Sanctity and Integrity of Final Judgment.” The Court calls out plaintiff (an attorney) for treating “adverse final judgments as mere suggestions which allow him to perpetually file new lawsuits on new theories.” Explaining that “[h]e is wrong,” the Court of Appeal specifically points out that the doctrine will also bar any future claim brought by Plaintiff addressed to foreclosure on his house.
Affirmed.
Plaintiff in this case has successfully used serial litigation to delay foreclosure on his mortgage, which he stopped paying in 2009. He has already lost two state court cases (and appeals), a federal case (and appeal), and a case in bankruptcy court. The court here is not amused. It dutifully walks through and sustains the trial court's demurrer on each cause of action. It then (perhaps sua sponte) drops some knowledge on the import of res judiciata in a section called “The Sanctity and Integrity of Final Judgment.” The Court calls out plaintiff (an attorney) for treating “adverse final judgments as mere suggestions which allow him to perpetually file new lawsuits on new theories.” Explaining that “[h]e is wrong,” the Court of Appeal specifically points out that the doctrine will also bar any future claim brought by Plaintiff addressed to foreclosure on his house.
Affirmed.
Monday, April 27, 2015
Basta!
Boyce v. T.D. Serv. Co., No. B255958 (D2d6, Mar. 23, 2015)
This is a typical mortgage foreclosure avoidance case of the sort that have been clogging up the courts for quite a while now. Plaintiff in this case had previously went bankrupt, during which proceedings a federal bankruptcy court determined that a foreclosure wouldn’t be wrongful, which the federal district court affirmed. And a state court also made a similar finding in an unlawful detainer case that determined that plaintiff no longer had a right to occupy the home. So unsurprisingly, plaintiff’s case here was doubly barred by res judicata.
The court—the Ventura panel that handles the D2 cases from Santa Barbara—concludes with sort of a tribute quote from Judge Aldisert, a recently departed judge of the federal Third Circuit Court of Appeals who had for several decades located his his senior-status chambers in S.B.: “As the late eminent federal appellate jurist Rugierro Aldisert would say, ‘Basta,’ which translates from Italian to English as, Enough!”
Affirmed.
Update: Review granted, July 15, 2015.
This is a typical mortgage foreclosure avoidance case of the sort that have been clogging up the courts for quite a while now. Plaintiff in this case had previously went bankrupt, during which proceedings a federal bankruptcy court determined that a foreclosure wouldn’t be wrongful, which the federal district court affirmed. And a state court also made a similar finding in an unlawful detainer case that determined that plaintiff no longer had a right to occupy the home. So unsurprisingly, plaintiff’s case here was doubly barred by res judicata.
The court—the Ventura panel that handles the D2 cases from Santa Barbara—concludes with sort of a tribute quote from Judge Aldisert, a recently departed judge of the federal Third Circuit Court of Appeals who had for several decades located his his senior-status chambers in S.B.: “As the late eminent federal appellate jurist Rugierro Aldisert would say, ‘Basta,’ which translates from Italian to English as, Enough!”
Affirmed.
Update: Review granted, July 15, 2015.
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