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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] Case to share: Nguyen vs. Calhoun (105 Cal.App.4th 428). Posted by Skimmer on February 16, 2010 at 9:07 PM In Reply to: Re: Word of advice: posted by Bob on February 16, 2010 at 6:24 PM (extract from an attorney's article) Nguyen vs. Calhoun (105 Cal.App.4th 428). In that case the Chavezes owned a house in San Jose, California (Santa Clara County) and were delinquent on their mortgage with Harbor Financial. Harbor Financial commenced foreclosure, recording a Notice of Default. While the Notice of Default was pending, the Chavezes listed the house for sale and entered into a contract to sell to Nguyen. The trustee’s sale was postponed to July 10, 1998. On July 9 the Chavezes’ realtor requested a further postponement from Harbor Financial’s employee, Linda Kubricht. Ms. Kubricht responded that Harbor would postpone if proof was provided that the loan to Nguyen had funded. Nguyen’s funds were received in escrow on July 9 at 1:30 p.m. The title company closed escrow the following morning, Friday, July 10, recorded a deed to Nguyen, and put a check for the payoff of Harbor’s loan in Federal Express directed to Harbor at its Texas headquarters. The title company also faxed a certified copy of the final escrow settlement statement to Harbor at 8:23 a.m. on July 10. The fax was erroneously directed to a “Linda Cooper” (rather than Linda Kubricht) at Harbor. Kubricht did not receive the fax, nor did she learn of the close of escrow to Nguyen. The foreclosure took place as scheduled at noon on the 10th and Calhoun was the successful bidder. The following Monday, July 13, Kubricht received both the misdirected fax and the check from the Chavezes’ payoff. In due course a Trustee’s Deed was delivered to Calhoun and recorded. Nguyen then brought an action for quiet title and declaratory relief. The Trial Court appeared to have little understanding of real estate law, and found that escrow had closed and therefore the Trustee’s Deed was null and void. Calhoun appealed. The Court of Appeal held that the deposit of a payment check in the mail does not constitute payment unless the creditor has directed the debtor to mail the payment. Where the lien was not extinguished by a payment and the debt remained in default, the lender could proceed with foreclosure. The Court concluded that a properly conducted foreclosure sale constitutes a final adjudication of the rights of the borrower and lender. It noted that in some circumstances a mistake can cause a sale to be set aside, but not where the mistake is dehors, or outside of, the sale proceeding. Absent defects in the foreclosure proceeding itself, the sale is valid and conclusive as to the bonafide purchaser who paid value for the property without notice of the irregularity. In this case the foreclosure sale was properly conducted. The mistake in communications between the title company and Harbor were outside of the sale procedures. There was no basis on which to set aside the sale. Judgment was entered in favor of Calhoun. Follow Ups: Re: Case to share: Nguyen vs. Calhoun (105 Cal.App.4th 428). Rick, the Probate Guy 8:59 AM, 02/17/10 (10) Re: Case to share: Nguyen vs. Calhoun (105 Cal.App.4th 428). Bob 5:11 PM, 02/17/10 (9) Record your deed yesterday! Then decide - once you record the deed its yours. Dont Pass Go - Dont Collect $200! 10:46 AM, 02/18/10 (7) Re: Record your deed yesterday! Then decide - once you record the deed its yours. Bob 11:48 AM, 02/18/10 (6) OK Don't record and after 15 days then you've left yourself wide open! Once recorded they have to come get it from you 5:37 PM, 02/18/10 (5) Re: OK Don't record and after 15 days then you've left yourself wide open! Brian 6:14 PM, 02/18/10 (4) What Civil Code would be violated by recording a deed purchsed and delivered? Get real Brian 6:30 PM, 02/18/10 (3) Re: What Civil Code would be violated by recording a deed purchsed and delivered? Bob 7:51 PM, 02/18/10 (2) Re: What Civil Code would be violated by recording a deed purchsed and delivered? Rick, the Probate Guy 11:14 AM, 02/19/10 (1) What Civil/Criminal Code would be violated by recording a deed? ? purchsed and delivered - vs-delivery and acceptance 12:20 AM, 02/19/10 (0) Re: Case to share: Nguyen vs. Calhoun (105 Cal.App.4th 428). Brian 7:10 PM, 02/17/10 (0) Post a Followup: Name : E-Mail : Subject : Comments: : (extract from an attorney's article) : Nguyen vs. Calhoun (105 Cal.App.4th 428). : In that case the Chavezes owned a house in San Jose, California (Santa Clara County) and were delinquent on their mortgage with Harbor Financial. Harbor Financial commenced foreclosure, recording a Notice of Default. While the Notice of Default was pending, the Chavezes listed the house for sale and entered into a contract to sell to Nguyen. The trustee’s sale was postponed to July 10, 1998. On July 9 the Chavezes’ realtor requested a further postponement from Harbor Financial’s employee, Linda Kubricht. Ms. Kubricht responded that Harbor would postpone if proof was provided that the loan to Nguyen had funded. Nguyen’s funds were received in escrow on July 9 at 1:30 p.m. The title company closed escrow the following morning, Friday, July 10, recorded a deed to Nguyen, and put a check for the payoff of Harbor’s loan in Federal Express directed to Harbor at its Texas headquarters. : The title company also faxed a certified copy of the final escrow settlement statement to Harbor at 8:23 a.m. on July 10. The fax was erroneously directed to a “Linda Cooper” (rather than Linda Kubricht) at Harbor. Kubricht did not receive the fax, nor did she learn of the close of escrow to Nguyen. The foreclosure took place as scheduled at noon on the 10th and Calhoun was the successful bidder. The following Monday, July 13, Kubricht received both the misdirected fax and the check from the Chavezes’ payoff. In due course a Trustee’s Deed was delivered to Calhoun and recorded. Nguyen then brought an action for quiet title and declaratory relief. : The Trial Court appeared to have little understanding of real estate law, and found that escrow had closed and therefore the Trustee’s Deed was null and void. Calhoun appealed. The Court of Appeal held that the deposit of a payment check in the mail does not constitute payment unless the creditor has directed the debtor to mail the payment. Where the lien was not extinguished by a payment and the debt remained in default, the lender could proceed with foreclosure. The Court concluded that a properly conducted foreclosure sale constitutes a final adjudication of the rights of the borrower and lender. It noted that in some circumstances a mistake can cause a sale to be set aside, but not where the mistake is dehors, or outside of, the sale proceeding. Absent defects in the foreclosure proceeding itself, the sale is valid and conclusive as to the bonafide purchaser who paid value for the property without notice of the irregularity. In this case the foreclosure sale was properly conducted. The mistake in communications between the title company and Harbor were outside of the sale procedures. There was no basis on which to set aside the sale. Judgment was entered in favor of Calhoun. [ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] WWWAdmin 2.0a © 1997 Matt Wright and DBasics Software Company, All Rights Reserved

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