In re Brock
In re Brock
Opinion of the Court
ORDER
This matter comes before the Court on the Debtors’ Objection to Claim Number 11 Filed by Bank of the West (Docket No. 90) (the “Objection”), and Bank of the West’s response thereto (Docket No. 106) (the “Response”).
The issue is complicated by a choice of law dispute, specifically whether California anti-deficiency law controls the transaction between the Bank, the trust and the Debtors. For the reasons stated below, and with all due respect to the official slogan of Las Vegas, it appears what happens in California, stays in California.
JURISDICTION
The Court has jurisdiction over this matter under 28 U.S.C. §§ 1334(a) and (b) and 157(a) and (b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (B), as it involves the administration of a bankruptcy estate and the allowance or disal-lowance of claims against the estate.
BACKGROUND
In 1995, Lawrence and Diane Brock (the “Debtors”) moved from California to Colorado to be close to Diane Brock’s ailing, elderly father. The same year, the Debtors created and settled the Lawrence A. Brock and Diane Melree Brock Revocable Inter Vivos Trust (the “Brock Trust”). The Debtors are the joint settlors, co-trustees, and beneficiaries of the Brock Trust and maintained those roles and duties at all times relevant to this case.
In 2007, the Debtors planned to return to California and began looking for investment properties there. Mr. Brock searched online and located a commercial property at 305 Forest Avenue in Laguna Beach, California (the “Laguna Property”). The Laguna Property was owned by “Asset Services, Inc., as QI for Forest Avenue Partners” (“Forest Avenue Partners”), an entity controlled by Alec J. Glasser (“Glas-ser”). Mr. Brock traveled to California to view the property, and to meet with Glas-ser and the listing agent. Mr. Brock then retained a real estate broker and began negotiating to purchase the Laguna Property.
On December 17, 2007, Park Center Exchange I, LLC (“Park Center”), an entity then controlled by the Debtors, purchased the Laguna Property from Forest Avenue Partners. The sales price was $4,037,733.08, of which $1,065,000 was from Park Center, $2,450,000 from a new loan from AJG Property LP (“AJG”) (another entity controlled by Glasser), and $500,000 from a loan from the Alec J. Glasser De
On May 22, 2008, the Brock Trust closed on a $2,600,000 loan from Bank of the West (the “Bank”), a California banking corporation. The Bank’s loan enabled the Brock Trust to payoff the AJG Note in full, and obtain title to the Laguna Property.
At closing, the Debtors, in their capacity as trustees of the Brock Trust, executed certain documents, including a Term Loan Agreement, SWAP Agreement, and Promissory Note. As part of the same transaction, the Debtors also executed and delivered a personal guaranty to the Bank (the “Guaranty”). The Bank drafted the Term Loan Agreement, Promissory Note and Guaranty which, according to their terms, are each governed by California law.
PROCEDURAL HISTORY
On September 8, 2010, the Debtors filed their petition for relief under Chapter 11 of the Bankruptcy Code. One month later, the Debtors and the Bank filed a Motion to Approve Stipulation for Relief from the Automatic Stay regarding the Laguna Property (“Relief From Stay Stipulation”). The Court granted the Relief From Stay Stipulation, and on June 17, 2011, the Bank conducted a non-judicial foreclosure sale of the Laguna Property under California law. The Bank was the successful bidder and acquired the Laguna Property for $1,597,500.
On December 23, 2010, the Court granted the Debtors’ request for a bar date, with proofs of claim due by February 11, 2011. Glasser (Proof of Claim No. 10) and the Bank (Proof of Claim No. 11) timely filed their respective proofs of claim. On June 15, 2011, the Debtors filed two claims objections, one against Glasser and one against the Bank.
Second, the Debtors argue under California law, the Guaranty is unenforceable. The Debtors admit they gave the Bank the Guaranty, and highlight the original Promissory Note, the Bank’s deed of trust and the Guaranty are each expressly governed by California law. The Debtors argue “[u]nder California state law, a guaranty executed by a husband and wife is not a ‘true guaraní/ when the husband and wife are the settlor, trustee and primary beneficiary of a revocable trust. Thus, the personal guaranty given by the Debtors to the Bank is not enforceable under the cases of Torrey Pines v. Hoffman, 231 [Cal.App.3d 308, 282 Cal.Rptr. 354] (1991) and Cadle Co. II v. Harvey, 83 [Cal.App.4th 927, 100 Cal.Rptr .2d 150] (2000).”
On July 15, 2011, the Glasser Pension Plan filed a Response to the Debtors’ Objection to the Bank’s Claim,
On July 15, 2011, the Bank filed its Response to the Debtors’ Objection,
The Bank’s most recent amended proof of claim (Amended Proof of Claim No. 11-3) asserts an unsecured claim against the Debtors in the total amount of $1,317,724.30.
At the hearing on this matter, the parties stipulated to the admission of certain exhibits and the Court heard arguments.
DISCUSSION
The Bank filed Amended Proof of Claim 11-3 in accordance with Fed. R. Bankr. P. 3001. “When the proof of claim is executed and filed in accordance with Fed. R. BanKR. P. 3001 (including Official Form 10), the proof of claim constitutes prima facie evidence of the validity and amount of the claim.”
The Debtors and the Glasser Benefit Plan allege the Guaranty is ineffective under California anti-deficiency law and certain California case law interpreting anti-deficiency legislation. As a consequence, the- Debtors contend the Bank’s deficiency claim is barred as a matter of law.
The Court finds the legal argument framed in the Debtors’ Objection and subsequent briefs is sufficient to rebut the prima facie validity of the Bank’s claim.
A. Conflict of Law
The first issue is whether California law or Colorado law applies to the loan documents, which include the Term Loan Agreement, SWAP Agreement incorporated by the Term Loan Agreement, Loan Modification Agreement, Promissory Note, Guaranty, and Deed of Trust for the Lagu-na Property. The analysis of conflict of laws is necessary because, if California law applies, the Bank’s claim against the Debtors may be unenforceable under California anti-deficiency statutes. However, if Colorado law applies, the Bank’s claim against the Debtors’ estate will stand because Colorado has not enacted any antideficiency statute.
A federal court applies the choice of law rules of the state in which the district court sits.
Colorado has adopted the Restatement (Second) of Conflict of Laws § 187 approach to contractual choice of law provisions. See Hansen v. GAB Bus. Servs., Inc., 876 P.2d 112, 113 (Colo.Ct.App. 1994); see also Century 21 Real Estate Corp. v. Meraj Int’l Inv. Corp., 315 F.3d 1271, 1281 (10th Cir. 2003); ADT Sec. Servs., Inc. v. Apex Alarm, LLC, 2006 WL 650166, *5 (D.Colo. Mar. 13, 2006). Section 187 states in relevant part:
The law of the state chosen by the parties to govern their contractual rights and duties will be applied ... unless ... (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.... In other words, Colorado courts will enforce contractual choice of law provisions unless a party can prove the twin requirements of § 187.29
Here, the Term Loan Agreement, Guaranty, Loan Modification Agreement, and Promissory Note expressly provide that California law controls. The Bank drafted these documents, and consciously chose the protection of California law to apply to this transaction. Unfortunately for the Bank, California has. passed an anti-deficiency law which reflects that State’s fundamental policy “to protect debtors from losing property at a depressed foreclosure price, and also incurring a large deficiency judgement for the balance.”
The Bank is a California banking corporation, which secured its loan against the Laguna Property located in California, under a Term Loan Agreement, Loan Modification, Guaranty, and Promissory Note governed by California law. Furthermore, the Debtors executed a Guaranty drafted by the Bank for the purpose of the Debtors waiving any protections they may otherwise have had under California’s anti-deficiency statutes. It is clear the Bank, the Debtors and the Brock Trust contemplated the application of California law, contracted to waive the protection afforded by certain California statutes, and operated under California law. By contrast, the only connection Colorado has to the transaction between the Bank, the Brock Trust and the Debtors is that the Debtors reside in Colorado and, not surprisingly, signed all of the loan documents in Colorado.
For these reasons, the Court finds the Bank failed to demonstrate how any interest of Colorado is materially greater than California’s interest in ensuring that its lenders do not subvert the protections of the anti-deficiency statutes designed to protect California homeowners. This Court will not impose Colorado law on a transaction expressly contemplated for adjudication under California law. Accordingly, the Court finds California’s interest in determining the outcome of the present dispute greatly outweighs Colorado’s interest, and California law applies to the transaction between the Bank, the Brock Trust and the Debtors.
Under Tenth Circuit precedent, when applying the law of another forum:
[T]he federal court’s task is not to reach its own judgment regarding the substance of the common law, but simply to ascertain and apply the state law. The federal court must follow the most recent decisions of the state’s highest court. Where no controlling state decisions exists, the federal court must attempt to predict what the state’s highest court would do. In doing so, it may seek guidance from decisions rendered by lower courts in the relevant state, appellate decisions in other states with similar legal principles, district court decisions interpreting the law of the state in question, and the general weight and trend of authority in the relevant area of law. Ultimately, however, the Court’s task is to predict what the state supreme court would do.34
With these principles in mind, the Court applies California law to the remaining waiver issue in this case.
1. Anti-Deficiency Protection
California’s anti-deficiency statutes are codified in §§ 580a-580d of the California Code of Civil Procedure. “The anti-deficiency statutes came out of the [Great Depression] in an effort to protect debtors from losing property at a depressed foreclosure price, and also incurring a large deficiency judgment for the balance.”
(1) to prevent a multiplicity of actions, (2) to prevent an overvaluation of the security, (3) to prevent the aggravation of an economic recession which would result if [debtors] lost their property and were also burdened with personal liability, and (4) to prevent the creditor from making an unreasonably low bid at the foreclosure sale, acquire the asset below its value, and also recover a personal judgment against the debtor.37
The section of California’s anti-deficiency statute which is relevant here is § 580d, which reads, in pertinent part:
*544 No judgment shall be rendered for any deficiency upon a note secured by a deed of trust of mortgage upon real property ... hereafter executed in any case in which the real property ... has been sold by the mortgagee or trustee under power of sale contained in the mortgage or deed of trust.38
This statute prevents a lender who has completed a non-judicial foreclosure from pursuing the primary obligor of the mortgage for any deficiency between the value of the real property and the amount owing on the mortgage. In addition, a primary obligor may not waive this anti-deficiency protection.
2. Waiver of Anti-Deficiency Protection for True Guarantors
While obligors may not waive California’s anti-deficiency protections, guarantors may waive such protections pursuant to California Civil Code § 2856. Indeed, the Debtors’ Guaranty expressly provides that the Debtors unconditionally and irrevocably waived any rights and defenses they may have had because the Brock Trust’s debt was secured by real property, including but not limited to any rights or defenses based on §§ 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.
However, under California law, a waiver is ineffective against a guarantor who is also deemed a primary obligor.
When determining whether a guarantor is merely a primary obligor under a different name, “[t]he correct inquiry ... is whether the purported [primary obligor] is anything other than an instrumentality used by the individuals who guaranteed the [primary obligation], and whether such instrumentality actually removed the [guarantors] from their status and obligations as [primary obligors].”
The facts of this case are strikingly similar to the facts in Torrey Pines
[W]hen an inter vivos revocable trust is the principal obligor on a debt subject to the anti-deficiency laws, a guaranty of that debt by the individual who is the trustee and settlor of the trust is ineffective because the individual and the trust are essentially the same; accordingly, the individual is deemed the principal obligor for purposes of applying the anti-deficiency laws.46
In the absence of California Supreme Court precedent to the contrary, these two cases provide the best guidance on how the California Supreme Court would rule on the instant matter.
The Bank attempted to distinguish Tor-rey Pines and Cadle Co. II from the present case based upon a revision to California Probate Code § 18000. The Court is unpersuaded. Torrey Pines was decided when California Probate Code § 18000 stated “a trustee [is] personally liable on a contract unless the contract stipulated that the trustee was not liable.”
Specifically, the Torrey Pines court based its holding, in part, on the fact that the trustees were personally liable for the contract they executed on behalf of the trust pursuant to Probate Code § 18000. However, the court also found support for its holding based on other facts, including the following: 1) the substantially identical financial information presented by the trustees and the trust; 2) the bank should have been aware of the debtors’ roles as settlors, trustees, and beneficiaries of the primary obligor; and 3) the bank should have been aware of the rules regarding the purpose, usefulness, and limitations on the inter vivos trust device.
Moreover, the court in Cadle Co. II expressly stated “Torrey Pines is indistin
Indeed, this Court is not alone in declining to second guess the Cadle Co. II analysis of the impact of Probate Code § 18000. The Court acknowledges a third opinion from the California Court of Appeal addressing the interplay between Cadle Co. II, Torrey Pines and California Probate Code § 18000.
Probate Code section 18000 does not expressly apply to revocable inter vivos trusts, whereas Probate Code section 18200 does. Under Probate Code section 18200, there is generally ‘“no distinction in California law between property owned by the revocable trust and property owned by the settlor of such a revocable trust during the lifetime of the settlor.’ ‘Under California law, a revocable inter vivos trust is recognized as simply “a probate avoidance device.... ” ... Property transferred to, or held in, a revocable inter vivos trust is nonetheless deemed the property of the set-tlor....’ [Citations.] [¶] ‘[A] settlor with the power to revoke a living trust effectively retains full ownership and control over any property transferred to that trust.’ ” (Carolina Casualty Ins. Co. v. L.M. Ross Law Group, LLP (2010) 184 Cal.App.4th 196, 208, 108 Cal.Rptr.3d 701, citing Prob.Code, § 18200.)54
Under Probate Code § 18200, “trust property is subject to the claims of creditors of the settlor to the extent of the power of revocation during the lifetime of the settlor.”
Other cases cited by the Bank in support of its argument are similarly unpersuasive, as they are distinguishable from the facts before the Court. In particular, the Bank relies upon the California Court of Appeals decision in Talbott v. Hustwit (“Talbott”).
While the Court agrees Torrey Pines does not establish a per se rule applying to all living trusts, the Court also recognizes, as the Talbott court recognized:
[T]he trust arrangement provided the [guarantors] a significantly greater degree of separation than that in Torrey Pines. Although the [guarantors] are the settlors of the Trust, they are secondary, not primary, beneficiaries. More importantly, the [guarantors] used a limited liability company as trustee, thus limiting their personal liability for the Trust’s obligations. The [guarantors] became true guarantors because the [guarantors’] Trust arrangement “actually removed the[m] from their status and obligations as debtors”.59
The same facts which distinguish Talbott from Torrey Pines also distinguish Talbott from the present case. Here, as in Torrey Pines, the Debtors are the settlors, trustees, and primary beneficiaries of the Brock Trust. The Debtors’ trust arrangement provides no separation between the Debtors and the trust by way of any intermediary such as an LLC or any other entity.
3. Are the Debtors True Guarantors?
The Brock Trust is an inter vivos revocable trust created under California law in 1995.
The Debtors, as husband and wife, are the settlors, trustees, and primary beneficiaries of the Brock Trust. While the Bank maintains the language of the Debtors’ Guaranty as well as various loan documents affirm the Brock Trust and the Debtors are separate entities, contractual affirmations alone are insufficient to legitimize the Debtors’ Guaranty under California law. As stated by the California Court of Appeals, “the anti-deficiency legislation was established for a public reason and cannot be contravened by a private agreement.”
Here, the Debtors, as settlors, trustees, and beneficiaries of the Brock trust, are deemed owners of the assets in the Brock Trust. The Brock Trust was an instrumentality used by the Debtors who guaranteed the underlying loan, and the Brock Trust removed the Debtors as primary obligors with respect to the loan against the Laguna Property. In effect the Debtors have guaranteed to pay an obligation on property which they own fully, under a another name, and there appears to be no difference between the Debtors and the Brock Trust applying the California cases discussed above.
Consequently, the Court finds the requisite substantial identity exists between the Debtors and the Brock Trust so as to render ineffective the Debtors’ Guaranty of the Brock Trust’s obligation under California jurisprudence. Therefore, the Court finds the Debtors are not true guarantors, but true primary obligors within the class of individuals the California anti-deficiency statutes were designed to protect.
CONCLUSION
Based on the foregoing, and applying California law to the transaction between the Bank, the Brock Trust and the Debtors, the Court finds the Bank has not satisfied its burden of persuasion regarding the validity of its Amended Proof of Claim 11-3. Under California anti-deficiency law, the requisite substantial identity exists between the Debtors and the Brock Trust such that the Debtors are not “true guarantors.” Thus, the Debtors are entitled to the anti-deficiency protections and the Bank’s unsecured deficiency claim under the Guaranty is not enforceable. Accordingly, the Court
SUSTAINS the Debtors’ Objection to Bank of the West’s Proof of Claim Number 11. Bank of the West’s claim against the Debtors is hereby DISALLOWED in its entirety.
. Following a hearing, the Court ordered the parties to submit supplemental briefs on is
.A detailed factual background is set forth in detail in the Court's Order dated December 16, 2011 (Docket No. 172) (the "December 16, 2011 Order”) denying the Debtors’ Amended Objection to Claim Number 10 Filed by Alec J. Glasser as Trustee for the Alec J. Glasser Defined Benefit Pension Plan. Those facts are hereby incorporated by reference, with the relevant portions reproduced in this opinion along with additional Stipulated Facts filed January 7, 2013 (Docket No. 297) ("Stipulated Facts”) in order to present a complete record.
. Stipulated Facts, at ¶¶ 1-2.
. Bank of the West, Exhibit I, Revocable Inter Vivos Trust, Article 14.0 Section E.
. Stipulated Facts, at ¶¶ 8, 10.
. Id. at ¶ 15.
. Id. at ¶¶ 11, 14, 16; see also Bank of the West, Exhibit B, Promissory Note Secured by Deed of Trust, section 7 ("This Note shall be construed in accordance with and governed by the laws of the State of California.”).
. Bank of the West’s Additional Brief, ¶ 58, (Docket No. 314), filed February 11, 2013. In paragraph seven of its Additional Brief, the Bank states the Court, in an earlier Order, "determined that the SWAP [A]greement, which is one of the Bank's loan documents, is governed by New York Law.” The Court made no such determinative finding. At page seven of its December 16, 2011 Order, the Court merely noted the SWAP agreement provides "[t]he ISDA documents state the SWAP agreement is governed by New York law.”
. Stipulated Facts, at ¶ 18.
. Id. at ¶ 19.
. The Court denied the Debtors’ Amended Objection to Claim Number 10 Filed by Alec J. Glasser as Trustee for the Alec J. Glasser Defined Benefit Pension Plan, and deter
. Debtors’ Objection to Bank’s Claim (Docket No. 90).
. Debtors’ Objection to Bank's Claim, at ¶ 7.
. Glasser Pension Plan’s Response to the Debtors’ Objection to the Bank’s Claim (Docket No. 109).
. Bank's Response to Debtors’ Objection to Bank’s Claim (Docket No. 106).
. The Bank's Amended Proof of Claim provides the total deficiency claim of $1,317,724.30 is comprised of $801,247.36 owing under the loan to the Brock Trust, plus $453,330.95 owing under the SWAP agreement, plus $63,145.99 owing for pre-petition attorneys’ fees and costs (exclusive of continued accrual of interest at the rate of interest set forth in the ISDA Master Agreement).
. Stipulated Facts, at ¶ 21.
. During the course of the evidentiary hearing, the Court admitted the following into evidence: Bank’s Exhibit A, B, C, D, E, F, G, H, I, O, Q, R, S, T, U, V, W, X, AA, BB, CC, DD, EE, FF and GG; Debtors’ Exhibits A, B, C, E and F; Glasser’s Exhibits G-l, G-2, G-5, G-6, G-7, G-9, G-10, G-ll, G-12, G-13 and G-14; and the Stipulated Facts.
. Order for Additional Briefs (Docket No. 308).
. Debtors’ Supplemental Hearing Brief (Docket No. 313); Bank of the West’s Additional Brief Regarding 1) Legal Authority Supporting the Validity of a Waiver of California Anti-Deficiency Statutes by a Guarantor and 2) Applicability of Colorado Law (Docket No. 314).
. In re Richter, 478 B.R. 30, 40 (Bankr.D.Colo. 2012).
. Id. (quoting Wilson v. Broadband Wireless Int’l Corp. (In re Broadband Wireless Int’l Corp.), 295 B.R. 140, 145 (10th Cir. BAP 2003)).
. See Debtors' Objection.
. See Bank’s Response.
. Richter, 478 B.R. at 40; see also In re Lenz, 110 B.R. 523, 525 (D.Colo. 1990).
. Id. at 40-41 (internal citations omitted).
. See Security Service Federal Credit Union v. First American Mortg. Funding, LLC, 861 F.Supp.2d 1256, 1264 (D.Colo. 2012)("[A] court need not choose which body of law to apply unless there is an outcome determinative conflict between the potentially applicable bodies of law.”).
. Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1077 n. 12 (10th Cir. 2008).
. Haggard v. Spine, 2009 WL 1655030, at *3 (D. Colo. June 12, 2009) (not reported in F.Supp.2d); see also Wood Bros. Homes, Inc. v. Walker Adjustment Bureau, 198 Colo. 444, 601 P.2d 1369 (1979). In full, Restatement (Second) of Conflict of Laws § 187 states:
(1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.
(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially*542 greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.
. See Guardian Savings & Loan Assn. v. MD Associates, 64 Cal.App.4th 309, 315-316, 75 Cal.Rptr.2d 151 (Cal.Ct.App. 1998).
. Westinghouse Credit Corp. v. Barton, 789 F.Supp. 1043, 1045 (C.D.Cal. 1992) (citing Simon v. Superior Court, 4 Cal.App.4th 63, 68, 5 Cal.Rptr.2d 428 (Cal.Ct.App. 1992)).
. The Bank argues it has a further connection to Colorado because it has branches in Colorado, and the Debtors submitted their loan documents to a Colorado branch. The Court finds this argument creates, at best, a relatively tenuous connection to Colorado. The Bank identified itself in the Term Loan Agreement as "a California banking corporation.” In addition, on the signature page of the Term Loan Agreement, the Bank states the Term Loan Agreement is ‘‘[a]ccepted as of May 28, 2008, at the Bank’s place of business in the City of Newport Beach, State of California.” (emphasis added)
.In its Additional Brief (Docket No. 314), the Bank argued for the first time, in the alternative, "the Court should ... uphold the parties' choice of New York law to apply to the SWAP [Agreement], and allow the Bank a claim in the amount of $453,330.95....” While the SWAP Agreement states it is governed by New York law, the SWAP Agreement is part of the larger Term Loan Agreement,
. Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665-66 (10th Cir. 2007) (citations omitted).
. Westinghouse, 789 F.Supp. at 1045 (citing Simon v. Superior Court, 4 Cal.App.4th 63, 68, 5 Cal.Rptr.2d 428 (Cal.Ct.App. 1992)).
. Trust One Mortgage Corp. v. Invest America Mortgage Corp., 134 Cal.App.4th 1302, 1309, 37 Cal.Rptr.3d 83 (2005) (quoting Brown v. Jensen, 41 Cal.2d 193, 259 P.2d 425 (Cal. 1951)).
. Torrey Pines Bank v. Hoffman, 231 Cal.App.3d 308, 318, 282 Cal.Rptr. 354 (Cal.Ct.App. 1991) (citations omitted).
. California Code of Civil Procedure § 580d.
. DeBerard Props., Ltd. v. Lim, 20 Cal.4th 659, 85 Cal.Rptr.2d 292, 976 P.2d 843, 850 (Cal. 1999).
. Stipulated Facts, at ¶ 16.
. Westinghouse, 789 F.Supp. at 1045.
. Cadle Co. II v. Harvey, 83 Cal.App.4th 927, 932, 100 Cal.Rptr.2d 150 (Cal.Ct.App. 2000).
. Torrey Pines, 231 Cal.App.3d at 320-21, 282 Cal.Rptr. 354 (citations omitted).
. Talbott v. Hustwit, 164 Cal.App.4th 148, 152, 78 Cal.Rptr.3d 703 (Cal.Ct.App. 2008) (citing Torrey Pines, 231 Cal.App.3d at 319-20, 282 Cal.Rptr. 354; Cadle Co. II, 83 Cal.App.4th at 932-33, 100 Cal.Rptr.2d 150); see also Westinghouse, 789 F.Supp. at 1045.
. Torrey Pines, 231 Cal.App.3d at 320, 282 Cal.Rptr. 354 (citing Union Bank v. Brummell, 269 Cal.App.2d 836, 838, 75 Cal.Rptr. 234 (Cal.Ct.App. 1969)).
. Cadle Co. II, 83 Cal.App.4th at 933, 100 Cal.Rptr.2d 150 (discussing Torrey Pines).
. Torrey Pines, 231 Cal.App.3d at 321, 282 Cal.Rptr. 354 (citations omitted).
. California Probate Code § 18000.
. Bank’s Response (Docket No. 298), at 8.
. Torrey Pines, 231 Cal.App.3d at 320, 282 Cal.Rptr. 354.
. See NFT Parcel A LLC v. Marix, No. EDCV 09-287-VAP, 2009 WL 5215373, at *4 (C.D.Cal. Dec. 22, 2009) (not reported in F.Supp.2d).
. Cadle Co. II, 83 Cal.App.4th at 933, 100 Cal.Rptr.2d 150.
. See Pac. Capital Bank, N.A. v. Rivera, D059465, 2012 WL 968006, at *3-4 (Cal.Ct.App. Mar. 22, 2012) (unpublished and restricted from citation in California).
. Id. at *3, n. 3.
. California Probate Code § 18200.
. See Carolina Casualty Ins. Co. v. L.M. Ross Law Group, LLP, 184 Cal.App.4th 196, 208, 108 Cal.Rptr.3d 701 (Cal.Ct.App. 2010).
. 164 Cal.App.4th 148, 78 Cal.Rptr.3d 703 (Cal.Ct.App. 2008).
. Id. at 153, 78 Cal.Rptr.3d 703 (the Court also notes the court in Talbott, similar to the court in Cadle Co. II, reached its holding without analysis of or even reference to California Probate Code § 18000).
. Id. (emphasis added) (citations omitted).
. The Court notes the Bank, in its pleadings filed with the Court, cited to other California cases which also analyzed whether a guarantor’s commitment added anything to a principal obligation, such as River Bank America v. Diller, 38 Cal.App.4th 1400, 45 Cal.Rptr.2d 790 (Cal.Ct.App. 1995) and Gramercy Investment Trust v. Lakemont Homes Nevada, Inc., 198 Cal.App.4th 903, 130 Cal.Rptr.3d 496 (Cal.Ct.App. 2011). However, the Bank relied on these cases for law governing the adequacy of the language of an express waiver of anti-deficiency statutes and not for law governing the separation or substantial identity between a guarantor and principal obligor.
. Bank of the West Exhibit I, Revocable Inter Vivos Trust for Lawrence A. Brock and Diane Melree Brock, Article 14.01, section E.
. Zanelli v. McGrath, 166 Cal.App.4th 615, 633, 82 Cal.Rptr.3d 835 (Cal.Ct.App. 2008) (quoting Galdjie v. Darwish, 113 Cal.App.4th 1331, 1349, 7 Cal.Rptr.3d 178 (Cal.Ct.App. 2003)); see also Restatement (Third) of Trusts § 25, Validity and Effect of Revocable Inter Vivos Trust (2003).
. Galdjie, 113 Cal.App.4th at 1344, 7 Cal.Rptr.3d 178.
. Carolina Casualty, 184 Cal.App. 4th at 208, 108 Cal.Rptr.3d 701(quoting Zanelli, 166 Cal.App.4th at 633, 82 Cal.Rptr.3d 835).
. Zanelli, 166 Cal.App.4th at 633, 82 Cal.Rptr.3d 835.
. Id. (citations omitted).
. Cadle Co. II, 83 Cal.App.4th. at 932, 100 Cal.Rptr.2d 150 (citing Valinda Builders, Inc. v. Bissner, 230 Cal.App.2d 106, 112, 40 Cal.Rptr. 735 (Cal.Ct.App. 1964)).
Reference
- Full Case Name
- IN RE Lawrence A. BROCK, Diane Melree Brock, Debtors
- Cited By
- 2 cases
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- Published