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Marion v. 396 Investment Co.5/17/2005
ever, we are unable to ascertain what the correct amount of the offset should have been. Anaheim and the Salyers agree that the amount of the offset as reflected in the judgment is erroneous. However, they disagree, by a substantial margin, as to what the amount of the offset should be. Neither party cites evidence supporting the amount of the judgment as entered. Moreover, the parties cite no factual findings as to which of the two attorney declarations, if either, is correct and as to whether or not the promissory note remains enforceable against the Salyers.
We agree that the offset should include the total amount of the settlement payments 396 made to the Salyers, whatever that total may be. In addition, the offset should include an amount of at least $154,229 in respect of 396's payment on the mortgage. However, we are unable to ascertain whether the portion of the offset pertaining to the mortgage should be the $154,229 figure, as the Salyers assert, or the full amount of their mortgage debt before assignment to 396, as Anaheim asserts. This question depends on whether the remainder of the debt continues to be enforceable against the Salyers. If so, then the Salyers have not been fully relieved of the debt and the amount of the remaining indebtedness should not be counted as an offset. If not, then the offset should include the full $296,020 mortgage debt amount as shown in the Factual Stipulations, so that the Salyers do not receive a windfall. (See Smith, supra, 214 Cal.App.3d 266.)
We remand the Salyer judgment to the trial court with directions to determine the proper amount of the offset, taking into consideration the total amount 396 paid to the Salyers in the form of settlement payments, the amount 396 paid for the assignment of the promissory note and reconveyance of the deed of trust, and the amount of any debt forgiveness. The rule enunciated in Smith, supra, 214 Cal.App.3d 266, regarding offsets, shall apply. The court shall modify the Salyer judgment to include the appropriate offset as so determined.
(4) Offsets for Amounts Paid by 396
(a) Introduction
There are two judgments as to which offsets in respect of mortgage debt forgiveness are not at issue, but offsets in respect of payments by 396 are at issue. Those two judgments are the Wong and Stevens judgments. The Wongs apparently had no mortgage and the Stevenses' mortgage appears to have been paid in full. Even so, the parties disagree as to the proper amounts of the offsets, because they disagree as to the amounts 396 paid.
(b) Wong Judgment
Anaheim claims that the judgment in favor of the Wongs contains an erroneous offset. The October 2, 2002 judgment provides a total verdict, states that the court made findings pertaining to offsets on July 3, 2002, and then provides a final damages award. The judgment itself does not articulate the amount of the offset, and our review of the record indicates that the court itself did not, on July 3, 2002, articulate an offset amount with respect to the Wongs. Furthermore, the reporter's transcript of the July 3, 2002 hearing indicates that the court was lacking in clarity with respect to the exact manner in which offsets should be made. However, by subtracting the total damages award from the amount of the total verdict, it is apparent that the offset reflected in the judgment is $662,004.92.
Anaheim contends the amount of the offset should have been $1,280,905.05, which it asserts is the total amount of the payments the Wongs received from 396. In support of its analysis, Anaheim cites its own trial brief on the topic, without providing record references for the supporting data cited in the body of th
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