From the time of acquisition, the Togamis operated the property as an apartment complex and made no modifications or alterations to the property. No proceeds of the foreclosure sale were available for distribution to Fresno Apartment Holders, the holder of the third deed of trust. Imperial, the holder of the first deed of trust, sought and obtained relief from the automatic stay and conducted a foreclosure sale on April 24, 1991. The new note contains the provision, "This note is not a purchase money note and there is full recourse to the Maker." The Togamis filed a voluntary chapter 11 petition on January 12, 1990. The Togamis executed a new note to Fresno Apartment Holders in the principal amount of $350,421, which includes arrearages that accrued as a result of the default. Fresno Apartment Investors agreed to reconvey the deed of trust in exchange for a new secured promissory note. In August 1987, the Togamis were able to refinance the 1982 purchase money Note through a loan from Imperial Thrift and Loan Association ("Imperial"). The Togamis were unable to acquire a new loan by April 1987 and defaulted on the original purchase money Note.
The lender, Fresno Investors, a Limited Partnership, also agreed to subordinate the obligation under the 1982 Note to new financing and to accept a new note in the principal amount of $325,000. The Note included an obligation by the maker to refinance the Note on or before April 1987. To finance the purchase, the Togamis assumed various notes and deeds of trust against the property, including a purchase money promissory note executed by Kakinami (the "Note"). The Togamis originally acquired the Fresno apartment building in 1982 from Joyce Kakinami pursuant to a tax deferred real estate exchange. § 5806 | United States Bankruptcy Court The plaintiffs, Minoru and Marianne Togami, commenced this adversary proceeding after Fresno Apartment Holders foreclosed on its interest in the real property located at 1544 East Fedora Avenue, Fresno, California, which is a 93 unit apartment building. Memorandum Decision re: Waiver of Anti-deficiency Provision of C.C.P.
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