Opinion
Page 236a
108 Cal.App.4th 236a ___Cal.Rptr.2d___ JERVE M. JONES et al., Plaintiffs, Cross-defendants and Appellants, v. FIRST AMERICAN TITLE INSURANCE COMPANY et al., Defendants, Cross-complainants and Appellants. B137593 California Court of Appeal, Second District, Sixth Division April 23, 2003[Modification of opinion (107 Cal.App.4th 381; 131 Cal.Rptr.2d 859) on denial of petition for rehearing.]
This modification requires editorial changes to the summary, page 381, and headnote (1a-1c), page 382, of the advance report. The first sentence of the summary will be changed in the bound volume report to read, "The trial court entered a judgment that a real estate foreclosure sale was void because the sale was mistakenly conducted by a former trustee after a new trustee had been substituted and the substitution was not properly recorded as required by Civ. Code, § 2934, subd. (a)." Headnote (1a-1c) will be changed to read, "The trial court erred in entering a judgment that a real estate foreclosure sale was void because the sale was mistakenly conducted by a former trustee after a new trustee had been substituted for the original trustee, and the substitution was not properly recorded as required by Civ. Code, § 2934, subd. (a), and also erred in denying reformation (Civ. Code, § 3399) of the defective substitution of trustee."
OPINION
THE COURT.
It is ordered that the opinion filed herein on March 25, 2003, be modified as follows:
1. On page 1, the last sentence of the first paragraph [107 Cal.App.4th 383, advance report, 1st par., line 6] is deleted and the following sentence is inserted in its place (footnote 2 remains the same):
We conclude that under the circumstances here reformation may validate a foreclosure sale under section 2934a2 when a former trustee mistakenly conducts the sale after a new trustee has been substituted.
2. On page 4, in the first line at the top of the page, the sentence beginning, "The bank intended to substitute itself" [107 Cal.App.4th 385, advance report, 2d full par., line 4] is changed to begin, "Bank employees testified the bank intended to substitute itself ...."
3. On page 9, the first sentence of the first full paragraph [107 Cal.App.4th 390, advance report, line 6] is deleted and the following sentence is inserted in its place:
Here the trial court expressed concern that noncompliance with section 2934a amounts to a waiver which would violate public policy.
Page 236b
4. The paragraph commencing at the bottom of page 9 with "The trial court abused its discretion" [107 Cal.App.4th 390, advance report, 4th full par.] and ending at the top of page 10 with "is also moot" is deleted and the following paragraph is inserted in its place (footnote 7 remains the same):
The trial court misapprehended the scope of reformation. Remand for the trial court to consider reformation is unnecessary. Under the circumstances here, reformation is the only reasonable disposition. To rule otherwise would be an abuse of discretion. In light of our conclusion, we need not discuss the bank's remaining contentions.[7] The borrowers' cross-appeal, which is predicated on the court's finding that the foreclosure sale is void, is dismissed as moot. The borrowers' claim that they are entitled to their attorney fees on appeal is also moot.
There is no change in judgment.
Plaintiffs', cross-defendants' and appellants' petition for rehearing is denied.