State Bank of Texas v. Sam Parabia

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2021
• Docket: 20-55154
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE BANK OF TEXAS, a Texas state- No. 20-55154 chartered bank, as successor-in-interest to the original lender, D.C. No. 3:14-cv-03031-L-DHB Plaintiff-Appellee,

v. MEMORANDUM*

SAM PARABIA, an individual; PERIN PARABIA, an individual,

Defendants-Appellants,

and

DOES, 1 through 10 inclusive; FARZIN MORENA, an individual; CITIZENS BUSINESS BANK, a California corporation; AYER CAPITAL ADVISORS, INC., a New York corporation,

Defendants.

Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding

Submitted February 10, 2021**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision Pasadena, California

Before: M. SMITH, MURGUIA, and OWENS, Circuit Judges.

In 2017, the district court issued a default judgment in favor of Plaintiff-

Appellee State Bank of Texas (the Bank) against Defendants-Appellants Sam and

Perin Parabia (the Parabias), allowing the Bank to foreclose on the property at issue.

The Parabias appeal two subsequent orders related to the foreclosure proceedings.

This court has jurisdiction under 28 U.S.C. § 1291. Because the parties are familiar

with the facts, we do not recount them here, except as necessary to provide context

to our ruling. We AFFIRM the decisions of the district court.

1. The Parabias first appeal the district court’s order distributing and

disbursing the proceeds from the foreclosure sale. The Parabias argue that

“California law does not allow a judgment creditor to change its bid after a sale has

occurred to a credit bid.” The Bank complied with California law in paying for the

property after its successful bid. As the record demonstrates, the Bank gave the U.S.

Marshal a cashier’s check on the day of the sale for 10% of the purchase price and

provided two additional checks for the remaining amount due during the following

week. California law expressly contemplates this method of payment. See Cal. Civ.

Proc. Code § 701.590(b)–(c).

Next, the Parabias argue that the district court erred in distributing post-

without oral argument. See Fed. R. App. P. 34(a)(2).

2 judgment attorneys’ fees to the Bank. The Parabias’ response to the Bank’s

distribution motion did not make this argument, as the district court noted. “As a

general rule, we will not consider arguments that are raised for the first time on

appeal.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Thus, the Parabias

have waived this argument. See Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1213

(9th Cir. 2020). The Parabias’ final argument—that “[t]he sale resulted in excess

funds of at least $73,475.30”—appears to be related to the post-judgment attorneys’

fees. They also waived that issue.

2. Next, the Parabias argue that the district court erred “when it granted [the

Bank] a judgment for post foreclosure rent incurred during the redemption period.”

The Parabias contend that the Bank had to bring a separate suit for the rent amount,

rather than bringing a motion within the foreclosure suit.

California law states that “[f]rom the time of the sale until a redemption, the

purchaser is entitled to receive from the person in possession the rents and profits

from the property or the value of the use and occupation of the property.” Cal. Civ.

Proc. Code § 729.090(a). As the Parabias point out, the comment to the statute

provides that “[r]ents and profits that are not offset . . . may be recovered in an

action.” Id. cmt. Neither the statute nor the comment define “action.”

California law also allows a court to appoint a receiver “in which an action or

proceeding is pending . . . after sale of real property pursuant to a decree of

3 foreclosure, during the redemption period, to collect, expend, and disburse rents as

directed by the court or otherwise provided by law.” Cal. Civ. Proc. Code

§ 564(b)(4). Under § 564(b)(4), “a receiver may be appointed to d[ispose] of

property according to the previously entered judgment. In essence, a receiver may

be appointed to enforce a judgment.” Gold v. Gold Realty Co., 8 Cal. Rptr. 3d 118,

127–28 (Ct. App. 2003). The district court had jurisdiction pursuant to § 564(b)(4)

to appoint a receiver to collect rents during the redemption period. Additionally, in

its temporary restraining order, the district court explicitly “retain[ed] jurisdiction

over this action for the purpose of implementing and carrying out the terms of all

orders and decrees which have been and may have be entered herein and to entertain

any suitable application or motion for additional relief within the jurisdiction of” the

district court. Similarly, in Gold, the trial court retained jurisdiction over the case.

See Gold, 8 Cal. Rptr. 3d at 121. Thus, the district court did not err in granting the

Bank’s motion to collect rent during the redemption period.1

AFFIRMED.

1 The cases cited by the Parabias do not change this outcome. In both Walker v. McCusker, 12 P. 723 (Cal. 1887), and First National Trust and Savings Bank of San Diego v. Staley, 25 P.2d 982 (Cal. 1933), the California Supreme Court noted that the plaintiffs in those cases filed suit to collect rent, but never required that a plaintiff file a separate suit. See McCusker, 12 P. at 724; Staley, 25 P.2d at 982.