Cornwell

This appeal arises from plaintiff David W. Cornwell’s assertion that he paid a mortgage payment by mailing a check to defendant Bank of America. The check was apparently lost in the mail and never cashed. Plaintiff contends that the trial court erred in refusing to grant his motion for summary judgment. Instead, the trial court granted defendant’s motion for summary judgment and awarded it attorneys’ fees and costs.

Facts and Issue

The facts in this case are essentially undisputed, and both parties moved for summary judgment.

According to the complaint for declaratory relief, plaintiff and others purchased real property in Lake Arrowhead in 1973. Later that year they borrowed $22,000 from the Bank of America to construct a home on the property. The promissory note was secured by a deed of trust on the property. The note requires monthly payments of $174.46. Except for the payment in issue, plaintiff has made all regular monthly payments on the property, using payment coupons and envelopes furnished by defendant. Because the bank had not received the missing payment, it eventually threatened to foreclose on the deed of trust. After the complaint was filed, the parties…