Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

David Biancalana v. T.D. Service Company

October 31, 2011

DAVID BIANCALANA, PLAINTIFF AND APPELLANT,
v.
T.D. SERVICE COMPANY, DEFENDANT AND RESPONDENT.



Trial Court: Santa Cruz County Superior Court Superior Court No. CV162804 Trial Judge: Hon. John Jeffrey Almquist (Santa Cruz County Super. Ct. No. CV162804)

The opinion of the court was delivered by: Premo, J.

CERTIFIED FOR PUBLICATION

Plaintiff David Biancalana successfully bid on a piece of real property at a trustee's sale. Defendant trustee T.D. Service Company (TD) subsequently discovered it had erroneously conveyed the delinquency amount ($21,894.17) to the auctioneer, instead of the correct opening credit bid of $219,105 submitted by the beneficiary to TD. TD informed Biancalana of the error, declined to issue a trustee's deed on sale and returned his cashier's check. Biancalana retendered the check to TD and demanded it issue the trustee's deed. When it failed to do so, he sued for quiet title, specific performance, declaratory and injunctive relief.

TD's motion for summary judgment was initially denied. After TD successfully moved for reconsideration on the grounds of "new law," the trial court granted TD's motion and entered judgment in its favor.

On appeal, Biancalana argues that the trial court erred in granting TD's motion for summary judgment as there was no irregularity in the foreclosure sale process. Biancalana also argues that the trial court erred in granting TD's motion for reconsideration as the case it determined constituted "new law"( i.e., Millennium Rock Mortgage, Inc. v. T.D. Service Co. (2009) 179 Cal.App.4th 804 (Millennium Rock)) did not represent a change in the law, but simply applied existing law to a new fact pattern.

We agree that the trial court erred in granting TD's motion for summary judgment and shall reverse the judgment.*fn1

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The foreclosure sale

On or about July 22, 2008, TD was substituted in as trustee under a deed of trust securing real property located at 434 Winchester Drive in Watsonville, California (the subject property). TD subsequently provided notice that the subject property would be sold at a foreclosure sale scheduled to take place on September 10, 2008. The beneficiary submitted a specified credit bid in the amount of $219,105 for TD to use as the opening bid for the sale. However, TD erroneously submitted the delinquency amount of $21,894.17 to the auctioneer as the opening credit bid on the subject property.

While researching upcoming foreclosure sales, Biancalana learned of the scheduled sale of the subject property and, on the day of the sale, called the telephone number TD listed on the sales notice to inquire about the opening bid. The recording advised that the opening bid for the property was $21,894.17. After checking comparable property values and asking a colleague to physically view the property, Biancalana again called the recording. The amount of the opening bid was unchanged.

Biancalana decided to bid on the property, so he obtained a cashier's check in the amount of $22,000 and proceeded to the auction site. Having arrived before the scheduled start of the sale, Biancalana discussed this property and other foreclosures with the auctioneer. The auctioneer called TD twice before the start of the sale and spoke to two different employees, both of whom advised him the opening bid for the property was $21,894.17. The auctioneer was not instructed by TD to make any further bids on the property over and above the opening bid.

The sale commenced and the auctioneer, as instructed, announced that the opening bid on the subject property was $21,894.17. Biancalana submitted a bid of $21,896 and, when no other bids were forthcoming, the auctioneer declared this as the high bid. The auctioneer accepted a cashier's check in the amount of $22,000 from Biancalana.

TD discovered the mistake when it reviewed sales figures from September 10, 2008. On September 11 or 12, 2008, TD notified Biancalana that the opening bid it submitted was incorrect, that the sale was void and that a new foreclosure sale would be scheduled. TD did not issue a trustee's deed upon sale and returned Biancalana's cashier's check. Biancalana rejected the check and sent it back to TD. When TD refused to issue the deed, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.