White v. Mortgage Finance Corp.

Opinion

Plaintiffs and appellants Tommy White and Cholette White (plaintiffs) had their lawsuit against Mortgage Finance Corporation (Mortgage

Some other background facts are enlightening. Plaintiffs claim they brought the quiet title action to save their home from being seized by reason of the fraud, inferior workmanship, and other antics of the various respondents. In brief, in 1973, they had hired Hillcrest to paint the outside of their home for $3,010.80. At that time they admitted signing a lien contract and a second trust deed on their home to secure the payment for the work. The painting was completed and plaintiffs commenced payments of $50.18 a month; however, after five months they claimed they stopped payments because the paint started to crack and peel. Plaintiffs attempted to contact Hillcrest, but it had moved, so they contacted National Security, who had been assigned the contract and deed of trust, and were told that if they continued payments on the contract there would be no foreclosure on the home. Plaintiffs commenced payments as requested, but a foreclosure sale, much to their surprise, was instigated and the property was sold to respondents Harrison and Knickerbocker. In order not to be ousted from their home, they subsequently signed a rental agreement with the new owners.

Plaintiffs sought a preliminary injunction to prevent Harrison and Knickerbocker from proceeding with an unlawful detainer action until their quiet title action was litigated.

The restraining order was denied because of the unopposed facts that were disclosed by the declarations of the respondents. The true story is that plaintiffs had also defaulted on the first deed of trust on their home. When Harrison and Knickerbocker purchased the home under the foreclosure sale, they had to pay $4,245.39 to National Security to retire the second trust deed and to pay the default payments due under the first trust deed. They also assumed the balance due on the first trust deed, which was $19,707.20. At the time of the hearing on the preliminary injunction, plaintiffs did not deny that they had defaulted on the first trust deed, had stopped payments to National Security after promising to continue them, and stopped payments under the rental agreement.

The only period during that time which would seem to excuse inactivity was from June 29, 1979, when their first attorney died and October 2 of that year when they substituted in their second attorney. No explanation is given as to why their first attorney did nothing to advance the case to trial or perform discovery for two years and three months or why their second attorney was likewise inactive until May 1, 1981, more than one and a half years after being retained.

The facts above demonstrate that plaintiffs were evicted from their home not just because of the actions and antics of the various respondents, but primarily because they had defaulted on their first trust deed obligation as well as a rental agreement with Harrison and Knickerbocker. The latter two respondents had become owners of the home and paid off the default of the first trust deed and assumed the mortgage payments. Thus, the rental agreement that plaintiffs signed enabled Harrison and Knickerbocker to make payments on the first trust deed obligation which plaintiffs were no longer honoring. While these facts are not directly material to the issue before us, they are enlightening. The quiet title action did not, and could not under the facts, save plaintiffs’ home. The property was lost to them because of their default on the first trust deed.

According to the record, the death of their attorney at most caused a five- to six-month hiatus which was quite negligible when viewed with the inactivity that extended over a four and one-half year period. Furthermore, the delay of service on Hillcrest Builders was insignificant because almost four years remained for diligently prosecuting the action after this respondent answered the complaint.

Code of Civil Procedure section 583, subdivision (a) makes it discretionary for the trial court to dismiss an action for want of prosecution if it is not

In addition to the facts cited above concerning lack of diligence to prosecute the case, the respondents’ 583, subdivision (a) motions contained detailed reasons why they were prejudiced by plaintiffs’ delay. The record here does not reveal that plaintiffs’ failure to bring their case to trial was caused by their counsel’s death or delay in service on Hillcrest. The trial court’s conclusion that the delay was inexcusable is justified by the facts and we cannot say as a matter of law that the court abused its discretion.

One other argument by plaintiffs requires a response. It is their contention that once the court had set the case for trial by granting their motion it was precluded from granting respondents’ 583, subdivision (a) motions on the date of trial. This argument fails because it is clear that the court reserved jurisdiction to consider respondents’ motions when it set a hearing on the issue for June 23, 1981. When the court granted plaintiffs’ motion for an early setting and set the case for trial on July 2, 1981, it specifically did so without prejudice because of the June 23 hearing. Merely continuing that hearing to date of trial did not preclude the court from considering the motions on that day. The July 2, 1981, trial date was contingent on the court’s determination of the 583, subdivision (a) motions.

The judgments of dismissal are affirmed.

Stephens, Acting P. J., and Ashby, J., concurred.