SKU: 1532Finish: Polished BrassMaterial: Solid BrassRim mortise & surface strikes included3 different keepers for special mountingapplicationsFor use on old style casement windowsRim Strike Installation:1. Place fastener in desired location and secure loosely with four screws.2. Place rim strike in position to line up with fastener and install with two screws.3. Check operation of fastener with strike and tighten all screws.Mortise Strike Installation:1. Place fastener in desired location and secure loosely with four screws.2.

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Place mortise strike in position to line up with fastener. Mark position of screw holes, strike, and mortise hole using 3/16″ diameter drill and mortise 3/4″ deep recess. Install mortise strike with two screws.3. Check operation of fastener with strike and tighten all screws.Surface Strike Installation:1. Place fastener in desired location and secure loosely with four screws.2.

Place surface strike in position to line up with two screws.3. Check operation and tighten all screws. SKU:1448-WFinish: WhiteHeavy-duty extruded aluminum withtamper-resistant single hex securityscrew & wrenchSecurely locks window in closed or vented positionPrevents accidental opening by childrenEasy to installInstructions:Close movable panel. Attach lock to track edge, behind movable panel. Application may be on vertical or horizontal track. Insert 1/8″ hex wrench (included) into screw and tighten by turning clockwise.

For venting position, locate lock approximately 2″ from back of closed position and tighten set screw. SKU: 1447-WFinish: WhitePainted die cast housing with steel boltReversible handingSecurely locks door in closed or vented positionInstructions:Close moveable panel.

See illustrations for best installation method. Locate lock to appropriate surface with bolt retracted (unlocked position). Leave 1/16″ clearance between bolt tip and panel. Warning: Be sure drill and screws will not contact with glass.

Mark screw holes (1/16″ drill) and bolt hole (5/16″ drill). Venting position bolt hole may be located 2″ from back of closed panel. SKU: 1419Finish: Polished BrassUses special key for lock removalRemoval key is needed to unlockResists tampering if glass is brokenRecommended for wood windows onlyCaution: Locks are designed primarily for use while occupants are away. If used with occupants present, proper precautions should be taken for fire escapes. Keep key readily available.Instructions:1.

Close window.2. Drill 5/8″ diameter. X 1/4″ deep in lower sash.3. Drill 1/4″ diameter. Place bolt through cup washer and tighten.5.

Back out bolt until added security is needed.

A creditor who holds a debt secured by a Deed of Trust or Mortgage is held to various restrictions as to how to enforce the right to seize the security and whether, if the real property sale does not amount to enough to pay off the entire debt, further relief may be sought by then suing the debtor directly.

The reader should first read our article on Real Estate Transactions which describes Deeds of Trust as well as the Anti Deficiency Statute before reading further.

In addition to the restrictions applicable described in the articles above, the law in California also imposes the SINGLE ACTION RULE which severely restricts the choices open to a holder of real property security in seeking to enforce the debt. This article shall outline the restrictions applicable under California Code of Civil Procedure Section 726.

The Basic Law:

CCP § 726, commonly referred to as the single action rule, mandates one form of action[1] for the recovery of any debt secured by a mortgage or deed of trust on real property. The single action must be a foreclosure[2].

In addition, if a creditor wants a deficiency judgment, the rule contemplates a single action consisting of a two-stage judicial proceeding: the first stage orders the sale of the property, determines the liability for a deficiency and culminates in a foreclosure decree; the second stage establishes the amount of the deficiency. 3 Witkin Summary of California Law, Security Transactions in Real Property § 155 (9th ed. 1987) citing United Calif. Bank v. Tijerina, 25 C.A.3d 963, 968 (1972).

If the creditor elects a non-judicial foreclosure, a trustee’s sale, it cannot obtain a deficiency judgment. The rule is designed to prevent the creditor from commencing an action against the debtor before exhausting its security. If the creditor does not follow this security-first mandate, the debtor can raise the single action rule as a defense or as a sanction. The debtor can raise the defense that the debt is secured and he can force the creditor to foreclose first. If the debtor does not raise the defense, the creditor is sanctioned by the loss of its security. 3 Witkin Summary of California Law, Security Transactions in Real Property § 119 (9th ed. 1987).

The Requirements and the Risks:

The three essentials provided by the statute are to confine a recovery to one action, to make the mortgaged property the primary fund out of which satisfaction is to be had, and to give the plaintiff a personal judgment for the balance remaining after exhaustion of the security. Toby v Oregon Pacific R. Co. (1893) 98 C 490, 33 P 550; Ladd v Mathis (1899) 125 C 535, 13 P2d 1012; Otto v Long (1900) 127 C 471, 59 P 895.

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A secured creditor who fails to exhaust all his security for the same debt in a single action, in contravention of the one-form-of-action rule of Code Civ. Proc., § 726, waives the balance of the security and waives any claim to the unpaid balance of the debt. Although this is a harsh sanction, the harshness flowing from application of § 726 as a sanction is necessary to uphold the statutory policy of protecting debtors' rights. Bank of America V. Daily (1984, 4^th Dist) 152 Cal App 3d 767, 199 Cal Rptr 557.

The purpose of this statute is to prevent a multiplicity of suits. Ould v Stoddard (1880) 54 C 613; Felton v West (1894) 102 C 266, 36 P 676; Commercial Bank v Kershner (1898) 120 C 495, 52 P 848; Savings Bank of San Diego County v Central Market Co. (1898) 122 C 28, 54 P 273. Because of the substantive importance of §§ 726, a creditor cannot circumvent the requirement of looking to the security first by “waiving” the security and suing the debtor directly on the debt. The objective of this section is to force the creditor to look to the security as the primary source for payment of the debt before looking to the creditor’s other assets.

REFERENCES:

Code of Civil Procedure Section 726

See generally 3 Witkin, Summary of California Law, Security Trans-actions in Real Property §§ 111-180 (9th ed. 1987); Miller & Starr, California Real Estate §§ 9:104-195 (2nd ed. 1975).

Conclusion:

As with so much pertaining to California real property law, the risks in not carefully planning all steps and obtaining good legal and tax advice are myriad. This writer recalls a creditor who arrived at our office after a nonjudicial foreclosure on a deed of trust which only netted him about half of what was owed and who was dumbfounded to discover that he had already waived the right to collect the rest by his election of remedies. He was outraged that an admitted debt would now be unpaid due to his error in seeking to enforce his rights before obtaining competent legal advice before he acted. His rage was compounded when the debtor, relieved that the error had been made, sent him a note crowing about the results. The note quoted Auden:

Perhaps there is only one cardinal sin: impatience. Because of impatience, we were driven out of Paradise; because of impatience, we cannot return.

Our client may have found paradise but he certainly did not recover his entire debt. Be warned.

[1] There can be but one action for the recovery of any debt secured by a mortgage. Bartlett v Cottle (1883) 63 C 366; First Nat. Bank v Holt (1890) 87 C 158, 25 P 272; Byrne v Hoag (1899) 126 C 283, 58 P 688; Crescent Lumber Co. v Larson (1913) 166 C 168, 135 P 502.

[2] The one-form-of-action rule (Code Civ. Proc., §726, subd. (a)) applies to any proceeding or action by the beneficiary for the recovery of the debt, or enforcement of any right, secured by a mortgage or deed of trust. The only action that is permitted is foreclosure; any other 'action' is a violation of the rule, which invokes severe sanctions. Shin v Superior Court (1994, 2nd Dist) 26 Cal App 4th 542, 31 Cal Rptr 2d 587.