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Salyer v. 396 Investment Co.5/17/2005
that they have acknowledged.
Aside from the amount of settlement money received from 396, Anaheim also argues that the Friedmans were relieved of a $525,174 mortgage debt and that the offset should have included that additional amount. Indeed, the Factual Stipulations confirm that the Friedmans had mortgage debt in the amount of $525,174.64. However, we cannot tell from the portions of the record the parties cite how much money 396 paid with respect to that debt. The Factual Stipulations state that 396 paid $160,000 to have the deed of trust securing the debt released, and that 396 took an assignment of the underlying promissory note. On the other hand, the record also contains a copy of an agreement dated May 15, 2000, pursuant to which Chase Bank of Texas, formerly known as Texas Commerce Bank as Custodian or Trustee for Capstead Mortgage Corporation, assigned to 396 a promissory note payable by the Friedmans, and reconveyed the deed of trust securing that promissory note, in exchange for the amount of $276,143.66, plus interest until paid. Again, the parties cite no factual findings as to which, if either of the aforementioned amounts was indeed paid to the lender for the assignment of the underlying promissory note and the reconveyance of the deed of trust. Similarly, it would appear the court made no finding as to the value and enforceability of the apparently unsecured promissory note after assignment to 396.
In response to Anaheim's various assertions, the Friedmans concede that some offset should have been reflected in their judgment. However, they contend that the amount of the offset should have been far less than the amount Anaheim claims. They cite a December 11, 2002 post-judgment minute order in which the trial court ruled that Anaheim was entitled to an offset of $395,248 with respect to the Friedman judgment. The Friedmans invite this court to order an offset in that amount. However, the Friedmans offer no explanation as to how the court arrived at this figure and cite no portion of the record to back it up. More particularly, they make no comments at all as to how much money they received from 396 in settlement payments and how much 396 paid on their mortgage. Moreover, they say nothing as to whether the assigned promissory note remains enforceable against them and whether this should be taken into account in figuring the amount of the offset with respect to the original mortgage debt.
In sum, the parties agree that Anaheim should receive an offset, but disagree as to the amount. The parties do not cite evidence supporting either the full amount of the judgment as entered or the amount of the offset ordered subsequently. Therefore, we remand the Friedman 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 Friedmans 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. In order to determine whether there has been any debt forgiveness, the court will need to ascertain whether the assigned promissory note continues to be enforceable against the Friedmans. If so, then the Friedmans 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 $525,174.64 mortgage debt amount as shown in the Factual Stipulations, so that the Friedmans do not receive a windfall. (See Smith, supra, 214 Cal.App.3d 266.) The court shall modify the Friedman judgment to include the appropriate offset as so determined.
(c) Salyer Judgment
Anaheim
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