Filed 8/19/21 Barrett Daffin Frappier Treder & Weiss v. Sanchez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
BARRETT DAFFIN FRAPPIER 2d Civil No. B304935
TREDER & WEISS, LLP, et al (Super. Ct. No. 18CV02101)
(Santa Barbara County)
Plaintiff and Respondent,
v.
HILDA P. SANCHEZ,
Defendant and Appellant.
Appellant Hilda P. Sanchez appeals a judgment allocating
the surplus proceeds from the nonjudicial foreclosure sale of her
house. She contends two of her secured creditors had no interest
in these proceeds because their judgment liens expired before
trial. We conclude Sanchez invited the error as to the first
creditor by making, then withdrawing, the same argument below.
Her argument as to the second fails because the creditor’s
interest vested not at trial, but at the time of sale, which occurred
more than two years before the lien expired. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sanchez’s lender initiated non-judicial foreclosure
proceedings on her Santa Barbara house in 2017. The law firm of
Barrett Daffin Frappier Turner & Engle, LLP (trustee) served as
trustee. A foreclosure sale held in September of that year
resulted in a surplus of $100,804.17. The trustee filed this
interpleader action when Sanchez disputed its proposed
distribution of the surplus to four lienholders. It deposited the
funds with the court and obtained a discharge from the action.
(Code Civ. Proc., § 386, subd. (a).)
Sanchez and the four lienholders proceeded to trial on the
issue of distribution on December 27, 2019. The trial court
entered judgment in favor of the lienholders. It allocated their
interests in order of priority under Civil Code section 2924k1 as
follows: (1) $57,300 to Sam Gerard under a deed of trust lien
recorded on December 7, 2006; (2) $10,000 to Maria Chavez
under a judgment lien recorded on November 19, 2008; (3)
$24,007 to Emily Rodriguez under a judgment lien recorded
November 4, 2009; and (4) $9,497.17, the balance, to Jose
Almanza under a judgment lien recorded on September 2, 2010.2
The surplus exhausted, Sanchez received nothing. She
appeals the judgment.
DISCUSSION
The nonjudicial foreclosure statutes provide “a quick,
inexpensive and efficient remedy” against borrowers who default
1 We refer to the Civil Code unless noted otherwise.
2In a later order, the trial court allocated the interest that
accrued on these amounts while deposited with the court.
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on loans secured by real property. (Moeller v. Lien (1994) 25
Cal.App.4th 822, 830; § 2924 et seq.) The proceedings trigger a
trustee’s sale to satisfy the obligation. (§ 2924h; South Bay
Building Enterprises, Inc. v. Riviera Lend-Lease, Inc. (1999) 72
Cal.App.4th 1111, 1120-1121.) Following the sale, “subordinate
liens against the foreclosed property attach to the surplus
proceeds in order of their priority. [Citation.]” (Caito v. United
California Bank (1978) 20 Cal.3d 694, 701.) The trustee
distributes the surplus directly to secured creditors unless there
is a dispute over the priority of payment. (§ 2924j, subd. (b).)
Where such a dispute exists, as here, the trustee may file an
interpleader action and deposit the surplus funds with the court.
(Id., subd. (e).) The court then determines the priority of creditor
payments at trial pursuant to Civil Code section 2924k.3
Sanchez contends creditor/respondent Rodriguez should not
have received any portion of the surplus because the November 4,
2009 judgment lien expired the month before trial. (Code Civ.
Proc., § 683.020.) She raised the identical argument below in her
motion in limine to preclude evidence of the lien. Her counsel
withdrew the motion when Rodriguez produced a recorded copy of
a judgment renewal at trial. Sanchez therefore invited the
purported error she now raises. (See Norgart v. Upjohn Co.
(1999) 21 Cal.4th 383, 403 [“‘Where a party by his conduct
3 Section 2924k, subdivision (a) requires the trustee or
clerk of the court to distribute surplus sale proceeds as follows:
(1) the costs and expenses of the trustee’s sale, including trustee’s
fees and attorney fees; (2) the creditors whose interests are
“secured by the deed of trust or mortgage which is the subject of
the trustee’s sale”; (3) creditors holding junior liens or
encumbrances; and (4) the trustor at the time of sale, i.e., the
defaulted debtor, or their successor in interest.
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induces the commission of error, he is estopped from asserting it
as a ground for reversal’ on appeal”]; Cushman v. Cushman
(1960) 178 Cal.App.2d 492, 498 [“one cannot on appeal complain
of rulings assented to or acquiesced in by him in the court
below”].)
Sanchez contends creditor/respondent Chavez’s November
2008 judgment lien also expired before trial. She cites no
authority for her assertion that a secured creditor’s interest in
surplus proceeds vests on the date of trial rather than the date of
the trustee’s sale. Using the former date would be more
consistant with the nonjudicial foreclosure statutes. (See, e.g.
§§ 2924h, subd. (c) [sale completed upon trustee accepting the
final bid at trustee’s sale]; 2924k, subd. (a)(4) [vested owner of
record at time of trustee’s sale entitled to proceeds remaining
after distribution to secured creditors].) It would also serve the
policy of ensuring the finality of properly conducted trustee sales.
(See Biancala v. T.D. Service Co. (2013) 56 Cal.4th 807, 821,
quoting Moeller v. Lien, supra, 25 Cal.App.4th at p. 830, italics
omitted [“Overall, the statutory foreclosure process aims ‘to
ensure that a properly conducted sale is final between the
parties’”].) Here, the sale occurred in September of 2017 – well
within the ten-year period to enforce her judgment. (Code Civ.
Proc., § 683.020.) We decline to contravene the policy of finality
by allowing a debtor to unilaterally delay vesting until either: (1)
the date to challenge the trustee’s sale has expired; or (2) the
trial court has completed trial on the debtor’s challenge.
Lastly, Sanchez argues she is entitled to all surplus
proceeds because the trustee sold her house unlawfully.
Conclusory allegations in her general denial about purported
violations of the nonjudicial foreclosure statutes find no support
4
in the record. Her trial brief did not explain or refer to any such
irregularities. If they did occur, Sanchez should have filed an
action in equity to set aside the sale.4 (See South Bay Building
Enterprises, Inc. v. Riviera Lend-Lease, Inc., supra, 72
Cal.App.4th 1111 [action against senior lienholder by junior
lienholder arose for alleged irregularities at trustee’s sale, i.e.,
“rigging” sale in favor of eventual winning bidder].) She could
also have asserted a tort cause of action for wrongful foreclosure.
(Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919,
929 [“A beneficiary or trustee under a deed of trust who conducts
an illegal, fraudulent or willfully oppressive sale of property may
be liable to the borrower for wrongful foreclosure”].) However,
the record does not contain any evidence suggesting Sanchez had
grounds to plead such causes of action had she challenged the
sale properly. (See Melendrez v. D & I Investment, Inc. (2005)
127 Cal.App.4th 1238, 1258, citing Hatch v. Collins (1990) 225
Cal.App.3d 1104, 1113 [party challenging a trustee’s sale bears
4 Sanchez argued orally at trial that her foreclosure was
illegally conducted. The court responded that challenging the
underlying foreclosure would require Sanchez to file a separate
action. This colloquy, which apparently was not their first on
this subject, highlights how judicial officers must often interact
with, but cannot advise, self-represented litigants struggling to
navigate the legal system. (See, e.g., Barton v. New United Motor
Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210, citing
Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d
941, 944 [self-represented litigant’s procedural error “does not
provide any basis for attacking the demurrer procedure; such a
party is to be treated like any other party and is entitled to the
same, but no greater consideration than other litigants and
attorneys”].)
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the burden of proving irregularity and overcoming the
presumption of regularity].)
DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
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Pauline Maxwell, Judge
Superior Court County of Santa Barbara
______________________________
Hilda P. Sanchez, in pro. per., for Appellant.
Law Offices of Juan J. Herta, Juan J. Huerta, for
Respondent Jose Almanza.
Law Offices of Paul R. Burns, Paul R. Burns, for
Respondent Emily Rodriguez.
No appearance for Respondent Maria Chavez.
No appearance for Respondent Sam Gerard.
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