Ung

I. INTRODUCTION

Plaintiff Mui Ung gave a promissory note, secured by a deed of trust on real property, to defendant Henry Koehler. Some 11 years after the note became due, defendant, claiming nonpayment, recorded a notice of default against the property in anticipation of a nonjudicial foreclosure sale. Plaintiff filed this action to enjoin the sale, contending that the statutory time limit for exercising the power of sale in the deed of trust had expired.

At common law there was no time limitation on the exercise of the power of sale in a deed of trust. The Legislature reversed that rule of law in 1982 when it passed the Marketable Record Title Act (Act) (Civ. Code, § 880.020 et seq.), which has been held in prior decisions to impose a time limit on such exercise of either 10 or 60 years from the “final maturity date” of the underlying debt. Notwithstanding this authority, plaintiff argued that defendant’s right to nonjudicial foreclosure under the deed of trust expired four years, rather than 10 or 60 years, after the note became due. She premised this argument on a provision of the Act, section 882.030, which had not been considered in the prior decisions. The trial…