MacIntyre v. City National Bank

Filed 8/31/06 MacIntyre v. City National Bank CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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PATRICK MACINTYRE et al.,

Plaintiffs and Appellants,

CITY NATIONAL BANK et al.,

Defendants and Respondents.

C049855

(Super. Ct. No. 02AS06841)

Plaintiffs Patrick MacIntyre and David Margen were high bidders of $430,100 at a nonjudicial foreclosure sale of real property. However, after the auction and before issuance of a new deed, defendants Integrated Lender Services, Inc. (ILS), the trustee, set aside the sale because there had been a procedural irregularity in the auction. ILS had improperly disqualified a bidder. ILS held a new auction and sold the property to Realty Advisors for $615,000.

Plaintiffs sued ILS, along with City National Bank (CNB), the beneficiary under the deed of trust, alleging numerous causes of action to obtain the benefit of the first sale. The trial court, however, granted summary judgment in favor of ILS and CNB. It found that setting aside the first sale was proper as a matter of law under the undisputed facts presented. Plaintiffs appeal. They contend that setting aside the first sale was not proper and that the second sale was void because it was made too soon after expiration of a temporary restraining order. We affirm.

FACTS AND PROCEDURE

In October 1998, West Coast Relocatables, Inc. (West Coast) executed a promissory note in the principal amount of $485,000 in favor of Pacific National Bank, N.A. (Pacific), CNB's predecessor in interest. West Coast secured the note by executing and delivering to Pacific a written deed of trust conveying all of its interest in certain real property. In December 2001, ILS became trustee under the deed of trust. West Coast later defaulted on its obligation under the note and deed of trust.

In September 2002, ILS issued a notice of trustee's sale pursuant to the provisions of the deed of trust. The notice of sale provided the total amount of the unpaid balance of the obligation was $511,971.17.

On the morning of the sale on October 15, 2002, three potential bidders attempted to qualify to bid on the subject property. Plaintiffs qualified to bid at the sale by presenting cashier's checks totaling $449,000. A second bidder also qualified to bid.

A third potential bidder, Randall Olsen, attempted to qualify to bid. At the time of the sale, Olsen was the secretary and treasurer of Building Materials Distributors, Inc., a California corporation. Olsen presented to the auctioneer seven cashier's checks, payable to â€

Description	Plaintiffs were high bidders of $430,100 at a nonjudicial foreclosure sale of real property. However, after the auction and before issuance of a new deed, defendants, the trustee, set aside the sale because there had been a procedural irregularity in the auction. ILS had improperly disqualified a bidder. ILS held a new auction and sold the property to Realty Advisors for $615,000. Plaintiffs sued ILS, along with City National Bank (CNB), the beneficiary under the deed of trust, alleging numerous causes of action to obtain the benefit of the first sale. The trial court, however, granted summary judgment in favor of ILS and CNB. It found that setting aside the first sale was proper as a matter of law under the undisputed facts presented. Plaintiffs appeal. They contend that setting aside the first sale was not proper and that the second sale was void because it was made too soon after expiration of a temporary restraining order. court affirm.
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