Paulino v Biscoe [2000] GUSC 13; 2000 Guam 13 (10 April 2000)

IN THE SUPREME COURT OF GUAM

MARIANO T. PAULINO, JR., TERESITA S.N.
PAULINO, THOMAS MICHAEL PETRIE and
BRIGIDA PAULINO PETRIE,
Plaintiffs-Appellants

vs.

ROLAND C. BISCOE, RANDOLPH C. BISCOE,
GLENN C. BISCOE, SAMUEL C. BISCOE, MARYANN
C. BISCOE, OSHIMA CONSTRUCTION GUAM CORP.,
a Guam Corporation,
Defendants-Appellees
______________________

MARIANO T. PAULINO, JR., TERESITA S.N.
PAULINO, THOMAS MICHAEL PETRIE and
BRIGIDA PAULINO PETRIE,
Plaintiffs-Appellants

vs.

BENNY C. BELLO, PACIFIC FINANCIAL
CORPORATION and OSHIMA CONSTRUCTION
GUAM CORPORATION,
Defendants-Appellees

Supreme Court Case No. CVA98-034
Superior Court Case Nos. CV0348-93 and CV0349-93

OPINION

Filed: April 10, 2000

Cite as: 2000 Guam 13

Appeal from the Superior Court of Guam
Argued and submitted on August 9, 1999
Hagåtña, Guam

Appearing for the Plaintiffs-Appellants: John A. Spade, Esq. Mair, Mair, Spade & Thompson Suite 807, GCIC Bldg 414 W. Soledad Avenue Hagåtña, Guam 96910

Appearing for the Defendants-Appellees: Jeffrey A. Cook, Esq. Cunliffe & Cook Suite 200, 210 Archbishop F.C. Flores Street Hagåtña, Guam 96910

BEFORE: PETER C. SIGUENZA, Chief Justice (Acting)[1], MICHAEL J. BORDALLO, Designated Justice, and LAWRENCE J. TEKER, Justice Pro Tempore.

SIGUENZA, C.J.:

[1] The trial court held that a lender, who had foreclosed on land of the debtor pursuant to a private power of sale provision in the mortgages, could not sue the debtor to recover a deficiency judgment for the difference between the debt and the proceeds received from the sale of the foreclosed land. Because we find that the trial court erred in its conclusion we reverse and remand.

BACKGROUND

[2] On July 25, 1989, the Defendants-Appellees (the ABiscoes@) gave to the Plaintiffs-Appellants (the APaulinos@) a promissory note in the amount of $458,264.00. A mortgage on Lot 16-13, Talofofo, Guam, was executed and delivered as security for the note. On that same date, a second promissory note in the amount of $446,392.00 was given by the Biscoes to the Paulinos and a mortgage on another piece of real property, specifically Lot 16-14, Talofofo, Guam, was also executed and delivered as security for the second note. Both mortgages were recorded at the Department of Land Management, Government of Guam. Each of the mortgages contained a provision allowing for the remedy of foreclosure by non-judicial sale upon default.[2]

[3]