Does a creditor who fails to exhaust all security for the same debt in a single action have a right to foreclose on the trust deed?

California, United States of America


The following excerpt is from Security Pacific Nat. Bank v. Wozab, 223 Cal.App.3d 1042, 258 Cal.Rptr. 850 (Cal. App. 1989):

Bank of America v. Daily, supra, 152 Cal.App.3d 767, 199 Cal.Rptr. 557 notes the " 'classic sanction' " against the creditor who fails to exhaust all security for the same debt in a single action is waiver of both the balance of the security and the unpaid balance of the debt. (At p. 772, 199 Cal.Rptr. 557.) The court thereafter holds, however, plaintiff by taking its setoff waived its right to foreclose on the trust deed. (Id., at p. 773, 199 P. 557.)

Commercial Bank v. Kershner requires that the sanction be waiver of the entire indebtedness, not merely the security. This is consistent with the goal of section 726 that there be only one action on an indebtedness secured by a mortgage on real property.

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