BANK OF
Filed 7/12/10
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(San Joaquin
‑‑‑‑
BANK OF AMERICA,
N.A.,
Plaintiff and Respondent,
v.
STONEHAVEN MANOR, LLC et al.,
Defendants and Appellants.
C060089
(Super.
Ct. No. 39-2008-00186887-CU-BC-STK)
APPEAL
from a judgment of the Superior Court
of San Joaquin
County, Carter P. Holly, Judge. Affirmed.
Freeman,
D'Aiuto, Pierce, Gurev, Keeling & Wolf and Lee Roy Pierce, Jr., for
Defendant and Appellant Beck Investments Co., Inc.
Ganzer
& Williams, James E. Ganzer and Franklin J. Brummett for Defendant and
Appellant Stonehaven Manor, LLC.
Orrick,
Herrington & Sutcliffe, Marc A. Levinson, Jonathan G. Riddell and Katie C.
Dewitt for Plaintiff and Respondent.
In this appeal
we conclude that the property of a guarantor of a debt‑‑a debt
which is secured by the real property of the principal debtor and also that of
a joint and several co-guarantor‑‑is subject to attachment where
the guarantor has contractually waived the benefit of that security.
Accordingly, we
shall affirm the trial court's appealable orders of attachment (Code Civ.
Proc., § 904.1, subd. (a)(5)),[1]
which reached the same conclusion.
FACTUAL AND PROCEDURAL BACKGROUND
The principal debtor is Beck Properties,
Inc. (Borrower), a residential developer, which obtained a $150 million line of
credit from plaintiff Bank of America and its affiliates (Bank) on June
18, 2007.
Borrower provided deeds of trust on real
property to secure this line of credit.
Additionally, Bank entered into a Guaranty Agreement (Guaranty) on June 18,
2007, with three guarantors for this debt:
defendant and appellant Stonehaven Manor, LLC (Stonehaven); defendant
and appellant Beck Investments Co., Inc. (BIC); and Linda C. Beck Holding
Company, LLC (Holding Company).
Holding Company gave Bank a real property
deed of trust as security for the Guaranty.
Stonehaven and BIC did not provide any property to secure their Guaranty
obligations.
The Guaranty provides that: (1) each guarantor is obligated individually
to pay the debt; (2) each guarantor has waived any rights to rely on other
guarantors or collateral; and (3) Bank may pursue prejudgment attachment. We will further examine these three
provisions in turn.
As for each guarantor being obligated
individually, the Guaranty specifies that if it â€
| Description | In this appeal we conclude that the property of a guarantor of a debt‑‑a debt which is secured by the real property of the principal debtor and also that of a joint and several co-guarantor‑‑is subject to attachment where the guarantor has contractually waived the benefit of that security. Accordingly, we shall affirm the trial court's appealable orders of attachment (Code Civ. Proc., § 904.1, subd. (a)(5)),[1] which reached the same conclusion. |
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