Kirkpatrick

This is an appeal from a summary judgment granted defendant Westamerica Bank (the Bank) in an action to declare the Bank waived its loan security and forfeited its right to collect a debt of some $4 million for violation of the one form of action rule. (Code Civ. Proc., § 726 (hereafter section 726).)

The Kirkpatrick Family Trust (the Trust) borrowed money from the Bank and signed a nonrecourse note, secured by a deed of trust on an apartment complex. The Bank filed an action against the Trust which included a count for damages for breach of a claimed implied obligation under the loan agreement to sell off apartment units as condominiums. The Trust did not interpose the one form of action rule or the nonrecourse provision of the note as defenses. Rather, it successfully moved for summary adjudication of that count on the merits.

The Trust then filed a separate action for declaratory relief, contending the Bank’s failure to foreclose under the deed of trust was an election of remedies which waives the security under section 726 and that it cannot sue on the note because of its nonrecourse provision. The Trust seeks a forfeiture of the debt of some $4 million which it had…