Gomez et al v. GMAC MORTGAGE LLC, fka GMAC MORTGAGE CORPORATION e

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-1-
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	) Bankruptcy Case
) No. 10-31184
HIGINO SISON GOMEZ, III, and URDUJA)
GABON GOMEZ, 	) Chapter 13
)
Debtors. 	)
___________________________________)
HIGINO S. GOMEZ, III, and URDUJA 	) Adversary Proceeding
GABON GOMEZ, 	) No. 10-3077DM
)
Plaintiffs, )
)
v. 	)
)
GMAC MORTGAGE, LLC, fka GMAC 	)
MORTGAGE CORPORATION; GILBERT M. 	)
WALZ, 	)
)
Defendants. )
___________________________________)
MEMORANDUM DECISION ON STANDING
TO MAKE CREDIT BID
Defendant, GMAC Mortgage, LLC (“GMAC”) has presented no
evidence in its supplemental brief that it was the beneficiary of
record entitled to tender a credit bid at the non-judicial sale of
plaintiffs’ property. 	Instead, it offers a “so what?” argument to
the effect that plaintiffs suffered no damages because a credit
bid would have been made in any event, and unless a cash bidder
offered an amount in excess of GMAC’s loan, there would be no
surplus.
Signed and Filed: November 05, 2010
________________________________________
DENNIS MONTALI
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
November 08, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 10-03077 Doc# 32 Filed: 11/05/10 Entered: 11/08/10 14:20:07 Page 1 of 2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-
Plaintiffs correctly argue that California law is clear,
viz., Civil Code § 2932.5 empowers the mortgagee or person
entitled to be paid to exercise the power of sale. 	Thus, without
demonstrating that it was that “person entitled” as of the sale
date, GMAC could not cause the sale. 	Further, Civil Code §
2924h(b) restricts the right to make a credit bid to the “present
beneficiary.” 	See also Miller & Starr, 4 Cal Real Est. § 10.204
(3d ed.). 	The record does not support a basis to conclude that
GMAC was able to make a credit bid, so its motion to dismiss the
remaining claims for relief must be denied.
Whether plaintiffs may ultimately prove damages is not
relevant in disposing of GMAC’s FRBP 7012(b)(6) motion to dismiss
the second amended complaint.
At the hearing on October 1, 2010, the court announced its
ruling as to GMAC’s alleged violation of the automatic stay. 	That
disposes of plaintiff’s First Claim for Relief insofar as GMAC is
concerned; it does not deal with the allegations as to Gilbert M.
Walz. 	This memorandum decision deals with the remaining issues in
GMAC’s motion. 	Counsel for plaintiffs should prepare, serve and
upload an order granting GMAC’s motion as to the First Claim for
Relief and denying it as to the Second, Third, Fourth and Fifth
Claims for Relief.
Mr. Walz’s motion to dismiss was dropped from calendar
pending the court’s ruling. 	It will be restored to calendar,
along with a status conference, on December 10, 2010. 	Plaintiffs’
opposition to that motion is due fourteen days prior, and
defendant Walz’s reply is due seven days prior.
**END OF MEMORANDUM DECISION**
Case: 10-03077 Doc# 32 Filed: 11/05/10 Entered: 11/08/10 14:20:07 Page 2 of 2