Graves

The trial court granted plaintiff Bank of America National Tmst and Savings Association’s motion for summary judgment and awarded it $61,530.32. Defendants, Mr. and Mrs. Graves (the Graveses), appeal. We affirm the judgment.

*610 Facts and Statement of the Case

In 1991, the Graveses opened a CustomLine equity account with Bank of America National Trust and Savings Association (Bank). Loans from the account were secured by a second deed of trust against the debtors’ home in Lake Arrowhead. The Bank lent $49,500 to the Graveses.

On July 15, 1992, the Graveses defaulted on the loan by failing to make the payment due on that date, and they made no further payments. On October 28, 1992, the Bank recorded a notice of default and election to sell under the deed of trust. The Bank set its trustee’s sale for March 17, 1993.

The Bank learned that Federal Home Loan Mortgage Corporation (FHLMC), the holder of the first deed of trust on the property, had also instituted foreclosure proceedings. The Bank therefore postponed its trustee’s sale until May 17, 1993. FHLMC completed its trustee’s sale on April 15, 1993, and it was the highest bidder at the sale. The sale price was the…

I dissent. The majority correctly states the dispositive test of Hibernia S. & L. Soc. v. Thornton (1895) 109 Cal. 427 [ 42 P. 447 ], but inexplicably fails to apply it.

*617 In Thornton , our Supreme Court said: “[W]hen the mortgagee, by his own act or neglect, deprives himself of the right to foreclose the mortgage, he at the same time deprives himself of the right to an action upon the note” (Hibernia S. & L. Soc. v. Thornton, supra, 109 Cal. 427 , 429, italics added.)

The majority also cites the more recent statement of the rule in Pacific Valley Bank v. Schwenke (1987) 189 Cal.App.3d 134 [ 234 Cal.Rptr. 298 ]: “Although an exception to the one-action rule [of Code of Civil Procedure section 726] has developed in cases where foreclosure would be an idle act because the security has been destroyed or has become worthless [citations], the exception does not apply if the beneficiary himself is responsible for the loss of security. Thus, a creditor is not allowed to circumvent the statute by divesting himself of his security without the consent of the debtor.” (Pacific Valley Bank, supra, at p. 140, italics added.)

In other words, the one action rule of Code of Civil Procedure…

The trial court granted plaintiff Bank of America National Trust and Savings Association's motion for summary judgment and awarded it $61,530.32. Defendants, Mr. and Mrs. Graves (the Graveses), appeal. We affirm the judgment.

In 1991, the Graveses opened a CustomLine equity account with Bank of America National Trust and Savings Association (Bank). Loans from the account were secured by a second deed of trust against the debtors' home in Lake Arrowhead. The Bank lent $49,500 to the Graveses.

On July 15, 1992, the Graveses defaulted on the loan by failing to make the payment due on that date, and they made no further payments. On October 28, 1992, the Bank recorded a notice of default and election to sell under the deed of trust. The Bank set its trustee's sale for March 17, 1993.

The Bank learned that Federal Home Loan Mortgage Corporation (FHLMC), the holder of the first deed of trust on the property, had also instituted foreclosure proceedings. The Bank therefore postponed its trustee's sale until May 17, 1993. FHLMC completed its trustee's sale on April 15, 1993, and it was the highest bidder at the sale. The sale price was the amount owing to FHLMC.…