In Chiesur v. Superior Court, supra, the court stated that a receiver is liable to those who are not interested in the estate, in his official capacity only, for negligence in the performance of his authorized duties, and recovery is a charge against the receivership estate. In McNulta v. Lockridge, 141 U.S. 327, 12 S.Ct. 11 (1891), cited by the Chiesur court, recovery against the estate for a wrongful death was upheld. The Supreme Court stated "actions against the receiver are in law actions against the receivership, or the funds in the hands of the receiver, and his contracts, misfeasances, negligences and liabilities are official and not personal, and judgments against him as receiver are payable only from the funds in his hands." Clark on Receivers, 2d ed., the seminal work on receivers, quotes from the McNulta opinion and states: "Bold as this decision is, it is the well established law of America." at §392(f).
Restraining Order
Pursuant to Civil Code §2924g(d), a non-judicial foreclosure sale may be conducted no sooner than seven days after the earlier of (i) dismissal of the action or (ii) expiration or termination of the injunction, restraining order, or stay (which required postponement of the sale), whether by entry of an order by a court of competent jurisdiction, operation of law, or otherwise, unless the injunction, restraining order, or subsequent order expressly directs the conduct of the sale within that seven-day period. Relief from stay of the bankruptcy proceeding filed subsequent to the recordation and publication of a notice of sale will, therefore, revive the reinstatement time period unless a bankruptcy court order expressly states otherwise. Some bankruptcy courts, however, believe that a non-judicial foreclosure sale is invalid unless notice of sale has been republished, with actual notice to the debtor and junior lienholders. In re Tome, 113 B.R. 626, Bkrtcy. C.D. Cal. (1990). While it is unlikely that Section 2924g(d) applies to judicial foreclosure sales, it is probably wise to renotice a judicial foreclosure sale as well, if the property is part of a bankruptcy estate. In the recent California case of Tully v. World Savings & Loan Assn., 56 Cal.App. 4th 654 (1997) (petition for review denied by California Supreme Court 10/1/97, 1997 Cal. Lexis 6235), however, expressly held that Tome was not compelling authority and therefore not binding on the Tully court. In fact, the opinion states that In re Tome has been rejected and severely criticized by other federal bankruptcy courts, including the Eastern District of California in the case of In re Jauregui, 197 B.R. 673 (Bkrtcy. E.D. Cal. 1996).
Provisional Director. Ms. Bronston has acted as a Court-appointed Provisional Director in many corporate disputes which have resulted in deadlock. As such, she has been the swing vote on Boards of Directors of many businesses, including a skilled nursing facility and a law office, as well as various manufacturers. In her role of Provisional Director she has often brought to a successful culmination the sale of many entities and has assured that the corporations which she serves efficiently conduct their business.
Edythe L. Bronston is an attorney and Founding Director of the Californa Receivers Forum, practicing in Sherman Oaks, CA, in the area of provisional remedies, business and real estate litigation.
Construction Litigation
Litigation includes eminent domain, partnership and business disputes, construction litigation, landlord/tenant disputes and various real estate and corporate matters.
Transactional matters include business entity formation and maintenance, shareholder and partnership agreements, leasing, purchase and sale agreements relating to real property and business entities and general business documentation.
Judicial foreclosure is an alternative enforcement remedy available to the beneficiary of a deed of trust or mortgage in enforcing its lien against real property. It is a legal action brought for the purpose of obtaining a judgment directing sale of the property and application of the proceeds of that sale to the amount due plus the cost of the action and sale. Unless otherwise forbidden, a deficiency recovery may be obtained against the borrower if the sale proceeds are insufficient to cover the indebtedness. After entry of the judgment, and upon application by the judgment creditor, a writ of sale is issued by the clerk of the court. The property is then sold by a levying officer or an appointed receiver, subject to the judgment debtor's right of redemption. The entire procedure, from filing of the action through sale of the property is conducted under court supervision.