Wilhite

After our original opinion was filed on July 17,

1981, the Supreme Court granted appellant’s petition for hearing, then retransferred the cause to our court for consideration in light of Dawn Investment Co., Inc. v. Superior Court (1982) 30 Cal.3d 695 [ 180 Cal.Rptr. 332 , 639 P.2d 974 ]. Upon due consideration, we conclude the same result is mandated.

The Callihans appeal a permanent injunction barring their nonjudicial foreclosure of a second deed of trust on real property purchased by Sam L. Wilhite, Jr. (Wilhite). The Callihans also complain of attorney fees granted to Wilhite. The appeal turns on the right of the Callihans —who claim “noninstitutional” lender status—to enforce a “due-on-sale” clause.

Facts

Henry W. Callihan with the assistance of his wife Lucille G. Callihan manage an investment portfolio. A substantial portion of the portfolio consists of second trust deed loans. The Callihans have made at least 20 loans secured by trust deeds in the last 5 years. Many of the loans were made through San Diego Home Loan Corporation (SDHLC), trustee on the trust deed and collector of installments due on the loans.

On September 23, 1977, Callihan loaned Mr. and…