Cosentino

Coastal Construction Company (hereafter seller) appeals from a declaratory relief judgment enjoining it from foreclosing on a purchase money deed of trust. The trial court ruled that Probate Code section 9391 barred enforcement of the trust deed because seller failed to file a creditor’s claim with the debtor’s estate waiving recourse against other property in the estate. Section 9391 provides: “The holder of a mortgage or other lien on property in the decedent’s estate, including, but not limited to, a judgment lien, may commence an action to enforce the lien against the property that is subject to the lien, without first filing a claim as provided in this part, if in the complaint the holder of the lien expressly waives all recourse against other property in the estate. Section 366.2 of the Code of Civil Procedure does not apply to an action under this section.” We reverse and conclude that section 9391 does not apply to private nonjudicial foreclosures brought under a power of sale to enforce a deed of trust.

In 1977, seller conveyed a residential lot to Louis Cosentino and his wife, Edith. Seller financed the sale by carrying back a $20,000 purchase money note…