A recent case illustrates the need for a beneficiary to exercise care when making a bid at a trustee sale. In Biancalana v. TD Service Company (Oct. 31, 2011) 2011 DJDAR 15972, the secured debt was $219,105. However, due to error by the beneficiary, the trustee was instructed to make an opening bid of only $21,894. “The auctioneer was not instructed by TD to make any further because of the property over above the opening bid.”
The buyer made a successful bidder $21,896. A day later, the beneficiary discovered the error, and instructed the trustee not to issue a trustee’s deed to the buyer. The buyer sued to compel the trustee to issue a deed for the sales price. The court of appeal held in favor of the buyer, rejecting the beneficiary’s argument that there had been a “procedural defect” in the sale.
The Court of Appeal explained the nonjudicial foreclosure process as follows. “The purposes of this comprehensive scheme are threefold: (1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser.”
The court rejected the argument that the sale was not “bona fide” because of the substantial difference between the fair market value for the property and the opening bid. (The successful buyer was the only bidder at the sale.) “Mere inadequacy of price, absent some procedural irregularity that contributed to the inadequacy of price of otherwise injured the trustor, is insufficient to set aside a nonjudicial foreclosure sale."
The court distinguished the decision in Millennium Rock Mortgage, Inc. v. T.D. Service Co. (2009) 179 Cal.App.4th 804. In Millennium Rock Mortgage, the auctioneer was set to sell two properties on the same street in Sacramento. “The script prepared for the 13th Avenue auction contained the proper trustee sale number and legal description of the property, but due to a clerical error, listed the address for the Arcola Avenue property, rather than the 13th Avenue property.”
The Millennium Rock Mortgage sale was reversed for the following reasons. “"The auctioneer called out the legal description and credit bid applicable to one property, while announcing the street address of a different property. This created a fatal ambiguity in determining which property was being auctioned. Due to the contradictory descriptions of the property, the auctioneer's mistake went to the heart of the sale. Since irregularity, gross inadequacy of the price, and unfairness were all abundantly present, the sale was voidable at the option of the trustee."
No such facts were present in Biancalana. “The beneficiary's servicing agent miscalculated the amount owed on the subject property … This error, which was wholly under the agent's control and arose solely from the agent's own negligence, falls outside the procedural requirements for foreclosure sales described in the statutory scheme.”
“In the instant case, TD was acting as the beneficiary's agent in preparing the property for the foreclosure sale. It submitted the incorrect credit bid to the auctioneer, and twice confirmed the incorrect bid when the auctioneer called to inquire just prior to the sale.”
“Consequently, the mistake was made by TD in the course and scope of its duty as the beneficiary's agent, not by the auctioneer as in Millennium Rock. The auctioneer simply announced the bid submitted by TD. The error was wholly under TD's control and arose solely from its negligence … As a result, there was no procedural irregularity in the foreclosure sale and TD's motion for summary judgment should have been denied.”
The moral of the story – a beneficiary should always be diligent to confirm the proper amount of the opening bid at a foreclosure sale, or suffer the loss.
Biancalana v. TD Service Company (Oct. 31, 2011) 2011 DJDAR 15972