Eby v. Bingham (1999)

RICHARD L. EBY, Plaintiff and Respondent, v. J. IRVINE BINGHAM, Defendant and Appellant.

(Superior Court of Humboldt County, No. 9700090, J. Michael Brown, Judge.)

(Opinion by Parrilli, J., with Corrigan, Acting P. J., and Walker, J., concurring.)

COUNSEL

Randy M. Andrus for Defendant and Appellant.

Judith L. Edson for Plaintiff and Respondent.

OPINION

PARRILLI, J.-

Under the Marketable Record Title Act, the lien of a deed of trust expires 10 years after "the final maturity date or the last date fixed for payment of the debt or performance of the obligation" if that date is "ascertainable from the record." (Civ. Code, § 882.020, subd. (a)(1).) fn. 1 In this case we hold that the final maturity date or last date fixed for payment need not be expressly stated on the record; it is enough if it can be readily ascertained from recorded documents. If it can, then the 10-year limitation period applies whether or not the obligation secured by the deed of trust has been satisfied.

Richard L. Eby filed a complaint to quiet his title to a parcel of property in Humboldt County. J. Irvine Bingham, a named defendant, answered the complaint and filed a cross-complaint alleging that Eby had failed to meet his obligation to Bingham under a promissory note secured by a deed of trust. The parties filed cross-motions for summary judgment. The court granted Eby's motion and entered judgment in his favor. Bingham appeals both from the judgment and from the court's award of $9,000 in attorney fees to Eby. We affirm the judgment and the fee award. [73 Cal. App. 4th 459]

Background

Eby acquired the property in March 1983 from Carol L. Collins, giving her a note secured by a deed of trust. By the terms of the note, Eby promised to pay "the sum of Sixteen Thousand Six Hundred Sixty Nine and 62/100 Dollars, with interest from April 25, 1983 on unpaid principal at the rate of Ten per cent per annum, payable with principal in annual installments; principal payable in annual installments of Five Thousand Seven Hundred Twenty and No/100 Dollars or more on the 25th day of each April, beginning on the 25th day of April, 1984 and continuing until said principal and interest have been paid."

In the summer of 1983, Collins transferred to Bingham her interests in the note and deed of trust. According to Eby, he made payments on the note of $5,720 and $1,600 in July 1984, and of $6,860 in February 1985. He understood he was to receive a discount for his early payment in 1985. When Eby inquired regarding the balance due on the note in 1986, a dispute arose. He made no further payments. According to Bingham, Eby paid him $7,520 in September 1984, and failed to make any further payments.

In February 1997, Eby recorded a declaration to which he attached the original note he gave to Collins and its indorsement to Bingham. In March 1997, he filed this action. In his motion for summary judgment, he argued that the lien created by the deed of trust was unenforceable pursuant to section 882.020. That statute provides in relevant part: "the lien of a ... deed of trust ... expires at ... the later of the following times: [¶] (1) If the final maturity date or the last date fixed for payment of the debt or performance of the obligation is ascertainable from the record, 10 years after that date. [¶] (2) If the final maturity date or the last date fixed for payment of the debt or performance of the obligation is not ascertainable from the record, or if there is no final maturity date or last date fixed for payment of the debt or performance of the obligation, 60 years after the date the instrument that created the security interest was recorded." Eby contended his obligation to Bingham had matured in 1986, and expired after the 10-year period provided in section 882.020, subdivision (a)(1).

Bingham responded that the note contained no final maturity date or last date fixed for payment. He noted the term stating that Eby's obligation was "continuing until said principal and interest have been paid." Therefore, Bingham argued that the 60-year limitation period provided by section 882.020, subdivision (a)(2) applied. He also insisted that Eby had a moral and equitable obligation to pay his debt, citing Booth v. Hoskins (1888) 75 Cal. 271, 276 [17 P. 225], Burns v. Hiatt (1906) 149 Cal. 617, 621-622 [87 [73 Cal. App. 4th 460] P. 196], and Mix v. Sodd (1981) 126 Cal. App. 3d 386, 390 [178 Cal. Rptr. 736]. The court entered judgment for Eby. Because the note included an attorney fee clause, the court awarded Eby his fees as the prevailing party under section 1717.

Discussion

Reference Note[1] We review the trial court's decision to grant summary judgment de novo. (Artiglio v. Corning Inc. (1998) 18 Cal. 4th 604, 612 [76 Cal. Rptr. 2d 479, 957 P.2d 1313].) Reference Note[2] We review the award of attorney fees for abuse of discretion, except to the extent it rests on purely legal questions, which we review de novo. (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal. App. 4th 698, 705 [75 Cal. Rptr. 2d 376]; Reveles v. Toyota by the Bay (1997) 57 Cal. App. 4th 1139, 1153 [67 Cal. Rptr. 2d 543].)

1. Bingham's Lien Expired Under the Marketable Record Title Act

Reference Note[3a] Bingham contends, as he did below, that the 60-year period of section 882.020, subdivision (a)(2) applies because the note contained no final maturity date or last date fixed for payment. However, if the maturity date is "ascertainable from the record," section 882.020, subdivision (a)(1) imposes a 10-year limitation period. Eby correctly argues that the maturity date of his note, which he recorded, is ascertainable from its terms. The note called for principal payments of $5,720, plus interest, on April 25 of every year beginning in 1984. Under these terms, it is clear that Eby's obligation to pay off the original balance of $16,669.62 and all accrued interest fully matured on April 25, 1986. Therefore, Bingham's lien expired in April 1996 under the terms of section 882.020, subdivision (a)(1).

Bingham insists that because the note contemplates the obligation continuing until principal and interest are paid, it provides no final maturity date or last date fixed for payment. We disagree. The date an obligation matures is not necessarily the date on which it is paid, as many a disappointed creditor knows. If "maturity" depended on payment, no final maturity date would ever be ascertainable from the record no matter how explicitly it was stated. Bingham also points out that the note in this case gives him an option to call the entire debt due upon Eby's default in making installment payments. Such an option, however, does not affect the final maturity date or last date fixed for payment contemplated by the note-it merely provides an alternate avenue of collection in case the terms of the note are not met. The limitation periods adopted by the Legislature in the Marketable Record Title Act are not dependent on whether the parties perform their obligations under a deed of trust, but on whether the record of title reflects the date those obligations come due. [73 Cal. App. 4th 461]

Reference Note[4] Bingham also renews his argument on equitable and moral principles. However, as this court explained in Miller v. Provost (1994) 26 Cal. App. 4th 1703 [33 Cal. Rptr. 2d 288], section 882.020 abrogated the case law on which this argument depends. The common law doctrine that the power of sale under a deed of trust never lapses, based on the equitable principle that a mortgagor cannot quiet his title against the mortgagee without paying his debt, is defunct. (26 Cal.App.4th at pp. 1707-1708.) The Legislature clearly intended this result when it enacted the Marketable Record Title Act. "It is the purpose of the Legislature in enacting this title to simplify and facilitate real property title transactions in furtherance of public policy by enabling persons to rely on record title to the extent provided in this title, with respect to the property interests specified in this title, subject only to the limitations expressly provided in this title and notwithstanding any provision or implication to the contrary in any other statute or in the common law. This title shall be liberally construed to effect the legislative purpose." (§ 880.020, subd. (b), italics added.) fn. 2

Reference Note[3b] We note that Eby did not record the note until after the 10 years prescribed in section 882.020, subdivision (a)(1) had passed. (The deed of trust was recorded at the time of the original transaction.) Before the note was recorded, the maturity date was not ascertainable from the record and the longer limitation period of section 882.020, subdivision (a)(2) applied. (Miller v. Provost, supra, 26 Cal.App.4th at p. 1709.) While this is a rather quirky result of the statutory scheme, we are satisfied that it is consistent both with the plain terms of section 882.020 and with the Legislature's declared intent to make the record of title controlling. Both before and after Eby recorded the note, anyone who examined the record could have ascertained the limitation period applicable to Bingham's lien. We observe that Bingham could have protected his rights under the Marketable Record Title Act by recording a notice of intent to preserve his interest, pursuant to section 880.310 et seq.

2. The Fee Award Was Proper

Reference Note[5] Bingham contends this was primarily a quiet title action, with breach of contract issues arising only on his cross-complaint. Therefore, he argues [73 Cal. App. 4th 462] the court should not have awarded Eby attorney fees for the entire action based on the fee provision in the note. Bingham claims an apportionment of the fees could have appropriately limited them to the contract aspects of the case. We find no error. "Apportionment of a fee award between fees incurred on a contract cause of action and those incurred on other causes of action is within the trial court's discretion." (Abdallah v. United Savings Bank (1996) 43 Cal. App. 4th 1101, 1111 [51 Cal. Rptr. 2d 286].) It is well settled that "[a]ttorney's fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed." (Reynolds Metals Co. v. Alperson (1979) 25 Cal. 3d 124, 129-130 [158 Cal. Rptr. 1, 599 P.2d 83]; see also, e.g., Abdallah v. United Savings Bank, supra, 43 Cal.App.4th at p. 1111; San Dieguito Partnership v. San Dieguito River Valley Regional etc. Authority (1998) 61 Cal. App. 4th 910, 920-921 [72 Cal. Rptr. 2d 91].) Here, the enforceability of the note was the determinative issue on all causes of action.

Bingham also claims the amount of fees awarded was unreasonable. Eby's counsel documented her time on the case and requested $12,298.75. The trial court did not abuse its discretion by awarding $9,000. fn. 3

Disposition

The judgment and the fee order are affirmed. Eby shall recover his costs on appeal.

Corrigan, Acting P. J., and Walker, J., concurred.

FN 1. Further statutory references are to the Civil Code.

FN 2. Section 880.020, subdivision (b) is immediately followed by section 880.030, which states: "Nothing in this title shall be construed to: [¶] (a) Limit application of the principles of waiver and estoppel, laches, and other equitable principles...." This general reference to equitable principles is insufficient to undermine the clear statement of legislative intent in section 880.020, subdivision (b), or the specific provisions of section 882.020, which "limit[] the time for exercise of a power of sale under a deed of trust, reversing the rule of case law that such a power of sale 'never outlaws.' " (Legis. committee com., 7 West's Ann. Civ. Code, § 882.020 (1999 pocket supp.) p. 143; Miller v. Provost, supra, 26 Cal.App.4th at p. 1708; see also 16 Cal. Law Revision Com. Rep. (Dec. 1982) pp. 410-411 [former rule "defeats the basic purpose of statutes of limitation"].)

FN 3. Bingham's reliance on a local fee schedule governing default cases is obviously misplaced.