Plaintiff, California Golf, L.L.C. (California Golf), appeals from a summary judgment entered in favor of cross-defendants and cross-complainants Perry Cooper, Shari Cooper, Ruth Cooper and Sami Mikhael Ostayan (collectively, the respondents). California Golf is the foreclosing beneficiary under a recorded deed of trust. The dispute in this case arises from a nonjudicial foreclosure sale of a parcel of real property. The respondents purchased the subject property with cashier's checks at a trustee's sale. The respondents then apparently decided that they should not have purchased the property for the bid price. Intending to induce the bank that had issued the cashier's checks to stop payment on those checks, respondents submitted to the bank affidavits, under penalty of perjury, in which they falsely stated that the cashier's checks had been lost and had never been endorsed.
The respondents claim that, regardless of whether California Golf sufficiently alleged causes of action for breach of warranty and fraud, the fact that respondents' alleged commission of these torts occurred in the context of a nonjudicial foreclosure sale immunizes them from any such liability. Respondents contend that under Civil Code section 2924h, governing nonjudicial foreclosure sales, the trustee's sale was effectively "cancelled" by the bank's "stop payment" and California Golf's only remedy was to notice a new sale. The trial court agreed and held the only remedy against respondents was to renotice the sale and recover from them the costs of the new notice of sale.
In our view, this was error. California Golfs remedy is not limited by Civil Code section 2924h. We therefore reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, California Golf obtained a beneficial interest in the property at issue. Its predecessor in interest was Hanil Bank. In 1988, Hanil Bank had filed a complaint seeking judicial foreclosure of its deed of trust on the property. In June 1989, Hanil Bank obtained a judgment of judicial foreclosure, and in 1991, it obtained a writ of sale. The property, however, was not sold. In 1999, Hanil Bank renewed its judgment but, again, the property was not sold. In 2004, Hanil Bank transferred its beneficial interest to California Golf.
Subsequently, California Golf chose to pursue nonjudicial foreclosure under the deed of trust. A foreclosure sale was duly noticed, and held on January 14, 2005. There were two active bidders at the sale, California Golf
Approximately two hours after the completion of the trustee's sale, respondent Sami Ostayan left a voicemail message for Joseph Park, an officer of California Golf, indicating that his partner, Perry Cooper, had made a mistake in bidding $957,000 for the property. Ostayan, however, stated that he and his partners were still willing to purchase the property, but only for the sum of $400,000.
Later on that same day, January 14, 2005, Perry Cooper went to Wells Fargo and signed, under penalty of perjury, thirteen "Affidavit As To Lost, Destroyed or Stolen Cashier's or Official Check" forms. In these affidavits, Perry Cooper acknowledged that he had been duly sworn and stated that he had "lost or never had possession of the [described] check" and that his "loss of possession was not the result of transfer by [Perry Cooper] or a lawful
Because Wells Fargo refused to honor its cashier's checks, California Golf filed this action against Wells Fargo on March 2, 2005, for wrongful dishonor of its cashier's checks. Wells Fargo cross-complained against both California Golf and the respondents. In light of the affidavits of loss submitted by Perry Cooper,
Pursuant to a stipulation of the parties, and with leave of court, the respondents filed a complaint in intervention in which they stated their intention to unite with Wells Fargo in resisting California Golf's claims, and asserted that those claims were barred by the nonjudicial foreclosure statutes.
The respondents then filed a motion for summary judgment/adjudication in which they addressed California Golf's complaint as well as the interpleader cause of action in Wells Fargo's cross complaint.
Wells Fargo then filed a motion seeking (1) summary judgment, (2) an order that California Golf and the respondents be ordered to litigate their rights to the interpleaded funds, and (3) an order for, among other things, reasonable attorney's fees to be paid out of the interpleaded funds. Wells Fargo's motion was granted in full and it was awarded fees and costs in the sum of $33,791.23.
California Golf then filed a cross-complaint against the respondents alleging a cause of action for breach of warranty. Additionally, California Golf pled causes of action against the respondents for fraud (alleging that they had conspired to have Perry Cooper present affidavits to Wells Fargo in which he falsely asserted that he had lost the cashier's checks), and for wrongful failure to conclude the trustee's sale.
The respondents generally demurred to California Golf's causes of action for breach of warranty and fraud, asserting that the trial court had already ruled that California Golf's sole remedy was to seek recovery of the cost of renoticing a foreclosure sale. The trial court sustained the demurrer to those causes of action, on law of the case grounds, without leave to amend.
With Wells Fargo out of the case, the remaining pending matters were California Golf's cause of action against the respondents for wrongful failure to conclude the trustee's sale, and the proper disposition of the interpleaded funds. By this time, California Golf had renoticed the foreclosure sale, and had sold the property at auction for $600,000. The respondents filed a motion
On appeal, California Golf argues that the trial court erred when it (1) granted summary adjudication in favor of respondents on California Golf's complaint; (2) sustained demurrers to California Golf's cross complaint causes of action for breach of warranty and fraud; and (3) granted a summary judgment with respect to the remaining cause of action in California Golf's cross-complaint for the wrongful failure to conclude a trustee's sale. California Golf contends that the undisputed record in this case demonstrates that each of those causes of action has merit. We agree.
The respondents seek to avoid liability by relying on two arguments. First, they note that the earlier judgment for judicial foreclosure granted in favor of California Golf's predecessor in interest constitutes an election of remedies binding on California Golf. Second, they contend that section 2924h limits the remedy available to California Golf for a "cancelled" sale to the costs of publishing a new notice of sale. For the reasons discussed below, we reject both of these arguments.
1. Standards of Review
Interpretation of statutes and the sufficiency of pleadings are both questions of law and we also review those matters de novo. (Coopers & Lybrand v.
We review, on a de novo basis, the order granting the respondents' motion for summary judgment. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474 [261 Cal.Rptr. 735].) In doing so, we apply the same rules the trial court was required to apply in deciding the motion. Because the respondents were the moving parties on California Golf's cross-complaint, they had the burden of demonstrating as a matter of law, with respect to California Golf's remaining cause of action for their failure to conclude trustee's sale, that one or more elements of the cause of action could not be established, or that there was a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Code of Civil Procedure, section 437c, subdivision (c), states that summary judgment is properly granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Because a summary judgment denies the adversary party a trial, it should be granted with caution. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 865 [247 Cal.Rptr. 504].)
2. The Doctrine of Election of Remedies Does Not Bar California Golf's Claims
Citing Vlahovich v. Cruz (1989) 213 Cal.App.3d 317 [261 Cal.Rptr. 565], the respondents assert that the doctrine of election of remedies supports a judgment in their favor. In Vlahovich, the court held it was unfair to the trustor if the beneficiary of a trust deed first obtains a judgment for judicial foreclosure and then later seeks to modify the judgment to allow for a nonjudicial foreclosure sale. The court stated that with a judgment for judicial foreclosure, the debtor may make efforts to secure the funds to exercise its right of redemption, and if the beneficiary is permitted to then seek nonjudicial sale, the debtor's right of redemption is precluded. The Vlahovich court cited Roam v. Koop (1974) 41 Cal.App.3d 1035 [116 Cal.Rptr. 539], where the plaintiff had asserted both contract and tort causes of action, pursued a
In this case, however, the respondents are not entitled to claim the benefit of the doctrine of election of remedies, given that they were not a trustor or debtor under the trust deed that was addressed in the prior suit brought by California Golf's predecessor. As the respondents were neither trustors nor debtors under the foreclosed trust deed, they are in no position to complain about the manner or means of actual foreclosure. They were bidders at the foreclosure sale and whether that proceeding arose from a judicial foreclosure or a nonjudicial one was of no concern to them as long as they received a valid trustee's deed to the property.
We also reject respondents' contention that since California Golf ultimately renoticed the foreclosure sale and disposed of the property in a new foreclosure sale, it has now elected a remedy that is inconsistent with its claim that respondents' purchase obligation should be enforced. At most, such sale simply mitigates the damages that California Golf may recover from respondents in this case. "The doctrine of election of remedies is but a specific
3. Section 2924h Does Not Preclude California Golf's Claims
As noted above, California Golf alleged causes of action against respondents for breach of warranty under California Uniform Commercial Code (hereafter, simply Commercial Code) section 3312 and fraud. We focus here primarily, but not exclusively, on the cause of action for breach of warranty. It is apparent that California Golf alleges a sufficient cause of action on that basis. Thirteen cashier's checks were made out to Perry Cooper. In due course, Perry Cooper endorsed those checks to the trustee, who then deposited them in its account for California Golf's benefit. Cooper then signed, under penalty of perjury, 13 declarations of loss, falsely denying that the checks had been transferred, and instead asserting the loss of the checks. The elements for a cause of action for breach of warranty under Commercial Code section 3312 appear to be satisfied.
Respondents contend, however, and the trial court agreed, that California Golf can have no remedy for respondents' wrongdoing beyond that provided in section 2924h, subdivision (d). Respondents contend that a single sentence in that subdivision is controlling. That sentence provides, "In the event the last and highest bidder cancels an instrument submitted to the trustee as a cash equivalent, the trustee shall provide a new notice of sale ... and shall be entitled to recover the costs of the new notice of sale...." In other words, according to respondents, the cancellation of the cashier's checks obligated the trustee to provide a new notice of sale for which respondents had to pay the costs. Respondents contend that the remedy provided in subdivision (d) is exclusive and that California Golf is prohibited from any further recovery against them, no matter how tortious their conduct has otherwise been. Similarly, respondents contend that a criminal remedy set forth in section 2924h—specifically, a misdemeanor penalty for the cancellation of a cashier's check, bank check, or cash equivalent provided by the highest bidder at a nonjudicial foreclosure sale—also prevents California Golf from obtaining any further remedy.
a. A Cashier's Check Is Not a "Cash Equivalent"
We are here concerned with the interpretation of a single sentence in section 2924h, subdivision (d), which states: "In the event the last and highest bidder cancels an instrument submitted to the trustee as a cash equivalent, the trustee shall provide a new notice of sale in the manner set forth in Section 2924f and shall be entitled to recover the costs of the new notice of sale as provided in Section 2924c." (Italics added.) In accepting the argument of the respondents, the trial court necessarily ruled that the cashier's checks were "cash equivalents" for purposes of section 2924h.
The first thing one notices about the language of section 2924h is the repetition of certain words in subdivisions (b) and (d). Those words come first in subdivision (b) and we italicize them here: "(b) At the trustee's sale
According to the trial court and the respondents, the term "cash equivalent" in the italicized language is a generic term that includes both the various methods of payment that precede the term "cash equivalent" and the additional methods of payment that a notice of sale states would be acceptable to the trustee. However, that reading of the italicized language essentially rewrites the statute by substituting the word "other" for the word "a" immediately before the term "cash equivalent" and makes the language read "or other cash equivalent which has been designated in the notice of sale as acceptable to the trustee." In making that substitution, a cashier's check then becomes just one of several "cash equivalents" that are mentioned in the italicized language.
Our interpretation is buttressed when considered in connection with other subdivisions of section 2924h. Indeed, if respondents were correct, there would be no need to repeat the four-item disjunctive list four times in section 2924h following its initial introduction; the phrase "cash or cash equivalent"
As we conclude that "cash equivalent" is a term of art that does not include cashier's checks, the disputed language of section 2924h, subdivision (d) providing for the recovery of the costs of renoticing the sale if "the last and highest bidder cancels an instrument submitted to the trustee as a cash equivalent" simply does not encompass the "stop payment" of cashier's checks submitted to the trustee as payment. Therefore, the trial court erred in holding that California Golf
b. The Civil Remedies Provided by Section 2924h Are Not Exclusive
Even if respondents were correct, however, in their assertion that California Golf has a remedy set forth in section 2924h, subdivision (d), this would not assist them since, contrary to their assertion, the remedies of section 2924h are not exclusive. Respondents rely on statements in three cases which, they argue, indicate that the Legislature intended to occupy the field of nonjudicial foreclosure sales and permit no further remedies. (I. E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285 [216 Cal.Rptr. 438, 702 P.2d 596]; Residential Capital v. Cal-Western Reconveyance Corp., supra, 108 Cal.App.4th at p. 821; Moeller v. Lien (1994) 25 Cal.App.4th 822, 834 [30 Cal.Rptr.2d 777].) Before addressing the cases on which respondents rely, a brief overview of the purposes of the statutes governing nonjudicial foreclosure is appropriate.
In each of the cases on which respondents rely, the court did not conclude that no remedies outside those provided by the nonjudicial foreclosure statutes are available simply because the Legislature intended to occupy the field. Instead, the court also considered the policies advanced by the statutory scheme, and whether those policies would be frustrated by the allowance of the additional remedy. (I. E. Associates v. Safeco Title Ins. Co., supra, 39 Cal.3d at pp. 288-289 [concluding that expanding the notice obligations of the trustee would not be supported by policy]; Residential Capital v. Cal-Western Reconveyance Corp., supra, 108 Cal.App.4th at pp. 827, 829 [declining to "graft a tort remedy onto a comprehensive statutory scheme in the absence of a compelling justification for doing so," and concluding that the addition of the proposed remedy would not fit within the comprehensive statutory scheme]; Moeller v. Lien, supra, 25 Cal.App.4th at p. 834 [concluding that "[i]t would be inconsistent with the comprehensive and exhaustive statutory scheme regulating nonjudicial foreclosures to incorporate another unrelated cure provision into statutory nonjudicial foreclosure proceedings"].)
It is clear, then, that the mere existence of a comprehensive statutory scheme does not necessarily eliminate all further remedies without the consideration of the relevant policy concerns. Indeed, California courts have repeatedly allowed parties to pursue additional remedies for misconduct arising out of a nonjudicial foreclosure sale when not inconsistent with the policies behind the statutes. In Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1231 [44 Cal.Rptr.2d 352, 900 P.2d 601], our Supreme Court concluded that a lender who obtained the property with a full credit bid at a foreclosure sale was not precluded from suing a third party who had fraudulently induced it to make the loan. The court concluded that "`the antideficiency laws were not intended to immunize wrongdoers from the consequences of their fraudulent acts'" and that, if the court applies a proper measure of damages, "`fraud suits do not frustrate the antideficiency policies because there should be no double recovery for the beneficiary.'" (Id. at p. 1238.) In South Bay Building Enterprises, Inc. v. Riviera Lend-Lease, Inc.
Considering the policy interests advanced by the statutory scheme governing nonjudicial foreclosure sales, and the policy interests advanced by Commercial Code section 3312, it is clear that allowing a remedy under the latter does not undermine the former. Indeed, the two remedies are complementary and advance the same goals. The first two goals of the nonjudicial foreclosure statutes: (1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor and (2) to protect the debtor/trustor from a wrongful loss of the property, are not impacted by the decision that we reach. This case most certainly, however, involves the third policy interest: to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser. This policy consideration is advanced by the fact that, under the statutory scheme, a bid at a foreclosure sale constitutes an "an irrevocable offer" to purchase the property for the amount of the bid. (§ 2924h, subd. (a); Alliance Mortgage Co. v. Roth-well, supra, 10 Cal.4th at p. 1237.) It is similarly advanced by the fact that, under the statutory scheme, once the bid is accepted, the sale is complete. (§ 2924h, subd. (c); Angell v. Superior Court (1999) 73 Cal.App.4th 691, 699-701 [86 Cal.Rptr.2d 657]; Ballengee v. Sadlier (1986) 179 Cal.App.3d 1, 4-5 [224 Cal.Rptr. 301].) It is further advanced by the fact that, under the statutory scheme, bidders are required to pay their bids in cash, cashier's checks, or bank checks. Certain "cash equivalents," such as personal checks, can only be accepted if the trustee so designates in the notice of sale. The statutory scheme envisions payment by means of cash, cashier's checks, or bank checks in an apparent attempt to guarantee that the acceptance of the highest bid will, in fact, result in funds in that amount actually being transferred.
Similarly, the Commercial Code is concerned with guaranteeing the validity and collectability of cashier's checks. Purchasers of cashier's checks have no right to stop payment on them. If a bank wrongfully refuses to pay a cashier's check, the holder is entitled to compensation which may include consequential damages. (Com. Code, § 3411.) A purchaser of a cashier's check can file a declaration of loss, but only under penalty of perjury. (Com. Code, § 3312, subd. (a)(3).) Even when such a declaration is made, it has no effect until 90 days after the date of the check, and the bank may pay on the
The Commercial Code provisions governing cashier's checks are entirely compatible with the Civil Code sections governing nonjudicial foreclosures. Cashier's checks are a preferred form of payment in nonjudicial foreclosure sales precisely because they are readily negotiable and come with a bank's guarantee of payment. For this reason, they advance the goal of achieving finality of properly conducted foreclosure sales. Reading the nonjudicial foreclosure statutes' references to cashier's checks without also considering the Commercial Code sections relating to cashier's checks empties those references of meaning. There would be no point in preferring cashier's checks as payment at nonjudicial foreclosure sales if cashier's checks could be cancelled as freely as could, say, personal checks. Cashier's checks are preferred because they are as good as cash; cashier's checks are as good as cash because of provisions such as Commercial Code section 3312. Allowing California Golf to proceed with a cause of action against respondents for violating section 3312 is not contrary to the policies underlying the nonjudicial foreclosure statutes; instead, it supports those policies. The statutory remedies of section 2924h provide no bar to California Golf's pursuit of a cause of action against respondents for breach of warranty under Commercial Code section 3312. The analysis and result is the same with respect to California Golf's fraud cause of action.
Respondents assert that they "stop[ped] payment" on the cashier's checks due to alleged fraudulent misrepresentations which had induced them to bid too much for the property. If respondents were the victims of fraud in the sale, their remedy was to properly pursue their judicial remedies for fraud, not to engage in "self-help" by intentionally and fraudulently filing affidavits of loss in order to frustrate a trustee's sale which had already been completed.
c. The Criminal Remedies Are Not Exclusive
4. The Trial Court Erred When It Sustained the Respondents' Demurrer, Granted a Final Judgment in Their Favor, and Apportioned Wells Fargo's Attorney's Fees
The trial court granted summary adjudication to respondents with respect to California Golf's complaint, then sustained respondents' demurrer to the breach of warranty and fraud causes of action in California Golf's crosscomplaint. Summary judgment was awarded respondents with respect to California Golf's cause of action for wrongful failure to complete the trustee's sale, crediting it only with the cost of renoticing the sale. Each of these rulings was based on the determination that California Golf's sole remedy against the respondents was the cost of renoticing the foreclosure sale. Since we have determined that California Golf's remedy is not so limited, each of these rulings was error. We will order that the trial court vacate those orders. Additionally, the trial court must vacate its order apportioning Wells Fargo's attorney's fees between California Golf and the respondents since such order depends on the trial court's ultimate determination of the issues raised by California Golf's cross-complaint. Moreover, on this record, the trial court's order releasing the interpleaded funds to the respondents was clear error as respondents had demonstrated no entitlement thereto. We will direct the trial court to issue an order requiring the immediate restoration of those funds to the custody of the court, to be held and disbursed after a final determination of the extent of the parties' respective entitlement thereto.
The judgment from which California Golf has appealed is reversed and the cause is remanded with directions requiring that the trial court (1) vacate its orders sustaining the demurrer and granting summary judgment and adjudication with respect to California Golf's complaint and cross-complaint and issue new orders overruling the demurrer and denying the motions for summary judgment and adjudication, (2) vacate its order apportioning the attorney's fees ordered paid to Wells Fargo, (3) issue an order requiring the respondents, and each of them, to forthwith return the interpleaded funds to the custody of the court;
Klein, P. J., and Kitching, J., concurred.
By uniting with Wells Fargo, the respondents "became `entitled to avail [themselves] of all the procedure and remedies to which [Wells Fargo] would be entitled for the purpose of defeating the action or resisting the claims of the plaintiff ... [.]' [Citations.] [¶] An intervening party is accordingly `to be regarded as a plaintiff or as a defendant in the action ... [depending upon] the party for whose success he seeks to intervene ... [.]' [Citation.]" (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879 [150 Cal.Rptr. 606].) In Timberidge, interveners united with the defendant city and thus "were to be regarded as defendants in plaintiffs' action and their complaints in intervention as answers to plaintiffs' complaint." (Ibid.)
"(a) Each and every bid made by a bidder at a trustee's sale under a power of sale contained in a deed of trust or mortgage shall be deemed to be an irrevocable offer by that bidder to purchase the property being sold by the trustee under the power of sale for the amount of the bid.... [¶] (b) At the trustee's sale the trustee shall have the right (1) to require every bidder to show evidence of the bidder's ability to deposit with the trustee the full amount of his or her final bid in cash, a cashier's check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee prior to, and as a condition to, the recognizing of the bid, and to conditionally accept and hold these amounts for the duration of the sale, and (2) to require the last and highest bidder to deposit, if not deposited previously, the full amount of the bidder's final bid in cash, a cashier's check drawn on a state or national bank, ... immediately prior to the completion of the sale, the completion of the sale being so announced by the fall of the hammer or in another customary manner.... [¶] (c) In the event the trustee accepts a check drawn by a credit union or a savings and loan association pursuant to this subdivision or a cash equivalent designated in the notice of sale, the trustee may withhold the issuance of the trustee's deed to the successful bidder submitting the check drawn by a state or federal credit union or savings and loan association or the cash equivalent until funds become available to the payee or endorsee as a matter of right. [¶] ... However, the sale is subject to an automatic rescission for a failure of consideration in the event the funds are not `available for withdrawal' as defined in Section 12413.1 of the Insurance Code. The trustee shall send a notice of rescission for a failure of consideration to the last and highest bidder submitting the check or alternative instrument, if the address of the last and highest bidder is known to the trustee. [¶] ... [¶] (d) If the trustee has not required the last and highest bidder to deposit the cash, a cashier's check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee in the manner set forth in paragraph (2) of subdivision (b), the trustee shall complete the sale. If the last and highest bidder then fails to deliver to the trustee, when demanded, the amount of his or her final bid in cash, a cashier's check drawn on a state or national bank, a check drawn by a state or federal credit union, or a check drawn by a state or federal savings and loan association, savings association, or savings bank specified in Section 5102 of the Financial Code and authorized to do business in this state, or a cash equivalent which has been designated in the notice of sale as acceptable to the trustee, that bidder shall be liable to the trustee for all damages which the trustee may sustain by the refusal to deliver to the trustee the amount of the final bid, including any court costs and reasonable attorneys' fees. [¶] If the last and highest bidder willfully fails to deliver to the trustee the amount of his or her final bid in cash, a cashier's check drawn on a state or national bank, ... or if the last and highest bidder cancels a cashiers check drawn on a state or national bank, ... that bidder shall be guilty of a misdemeanor punishable by a fine of not more than two thousand five hundred dollars ($2,500). [¶] In the event the last and highest bidder cancels an instrument submitted to the trustee as a cash equivalent, the trustee shall provide a new notice of sale in the manner set forth in Section 2924f and shall be entitled to recover the costs of the new notice of sale as provided in Section 2924c. [¶] ... [¶] (f) In the event that this section conflicts with any other statute, then this section shall prevail. [¶] (g) It shall be unlawful for any person, acting alone or in concert with others, (1) to offer to accept or accept from another, any consideration of any type not to bid, or (2) to fix or restrain bidding in any manner, at a sale of property conducted pursuant to a power of sale in a deed of trust or mortgage. However, it shall not be unlawful for any person, including a trustee, to state that a property subject to a recorded notice of default or subject to a sale conducted pursuant to this chapter is being sold in an `as-is' condition. [¶] In addition to any other remedies, any person committing any act declared unlawful by this subdivision or any act which would operate as a fraud or deceit upon any beneficiary, trustor, or junior lienor shall, upon conviction, be fined not more than ten thousand dollars ($10,000) or imprisoned in the county jail for not more than one year, or be punished by both that fine and imprisonment." (Italics added.)