Cale

Plaintiff George G. Cale complained against defendant Transamerica Title Insurance (Transamerica) for “tortious breach of insurance contract” in refusing to indemnify him under a policy of title insurance. The trial court granted Transamerica’s motion for summary judgment. We shall affirm.

Cale loaned $8,000 to Stewart, Wolridge and Smith, the owners of a Sacramento townhouse (the property). The borrowers gave Cale their note for $8,000 secured by a second deed of trust on the townhouse which Cale recorded on March 3, 1987. Cale simultaneously purchased from Transamerica a title insurance policy to protect his secured interest in the property. The policy excepted from coverage a first deed of trust securing an indebtedness of $24,700 to Homestead Savings. Transamerica failed to disclose and therefore to except from coverage three other liens senior to Gale’s deed of trust.

The borrowers defaulted on the $8,000 note. Cale first became aware of the three undisclosed senior liens in May 1987 when he received a trustee’s sale guaranty report in anticipation of nonjudicial foreclosure under his trust deed. The liens were: (1) a $1,374 abstract of judgment against Stewart;…

I respectfully dissent.

Transamerica advised Cale that his loss could not be determined until he completed nonjudicial foreclosure proceedings. Cale did what Transamerica requested. His foreclosure left him with the extinguishment of his lien, the elimination of further remedies to collect his note, and property nobody else was willing to buy. Transamerica then told him he was still not damaged.

1 think Transamerica was right the first time. For reasons that follow, I believe the foreclosure sale made out a prima facie case of damage and loss to Cale which was unrebutted on summary judgment, so that the summary judgment was erroneously granted.

*429 Cale contends he was damaged as of the time of the foreclosure sale, when he obtained no money to satisfy his lien. Cale correctly notes that his nonjudicial foreclosure extinguished his lien (Civ. Code, § 2910; Ralph C. Sutro Co. v. Paramount Plastering, Inc. (1963) 216 Cal.App.2d 433, 437-438 [ 31 Cal.Rptr. 174 ]) and barred further attempts to collect the underlying note. (See Code Civ. Proc., § 580d; Roseleaf Corp. v. Chierighino (1963) 59 Cal.2d 35, 43 [ 27 Cal.Rptr. 873 , 378 P.2d 97 ].) Because the foreclosure sale had no…

Plaintiff George G. Cale complained against defendant Transamerica Title Insurance (Transamerica) for "tortious breach of insurance contract" in refusing to indemnify him under a policy of title insurance. The trial court granted Transamerica's motion for summary judgment. We shall affirm.

Cale loaned $8,000 to Stewart, Wolridge and Smith, the owners of a Sacramento townhouse (the property). The borrowers gave Cale their note for $8,000 secured by a second deed of trust on the townhouse which Cale recorded on March 3, 1987. Cale simultaneously purchased from Transamerica a title insurance policy to protect his secured interest in the property. The policy excepted from coverage a first deed of trust securing an indebtedness of $24,700 to Homestead Savings. Transamerica failed to disclose and therefore to except from coverage three other liens senior to Cale's deed of trust.

The borrowers defaulted on the $8,000 note. Cale first became aware of the three undisclosed senior liens in May 1987 when he received a trustee's sale guaranty report in anticipation of nonjudicial foreclosure under his trust deed. The liens were: (1) a $1,374 abstract of judgment…