The One-Action Rule & Foreclosure in California and Utah

Learn about the one action rule in California and Utah.

If you fall behind in your mortgage payments, California’s “one action rule” says that your mortgage lender can only take one action against you, whether it is to conduct a trustee’s sale, sue on the promissory note for the balance of the debt, or judicially foreclose. Utah has a similar rule.

Read on to learn more about the one action rule in California, how California's one action rule relates to the state’s “security first” rule, and what happens in the case of junior mortgages and HELOCs. Also, learn about Utah’s one action rule and security first approach.

California’s One Action Rule

Most residential foreclosures in California are nonjudicial, which means the lender does not have to go through state court to get one. (Read more about the California Foreclosure Laws and Procedures.) Though, sometimes California foreclosures are judicial and go through the state court system. (To learn more about the difference between judicial and nonjudicial foreclosure, and the procedures for each, see Will Your Foreclosure Take Place In or Out of Court?)

California law restricts a lender with a secured interest in real property—for example, the lender that made your home loan—to taking only one action to enforce the debt. The one action rule states “There can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property.” (Cal. Code Civ. Proc. § 726(a).) This means that a lender is only allowed to do one of the following:

  • foreclose nonjudicially (conduct a trustee’s sale)
  • foreclose judicially, or
  • sue the borrower personally on the promissory note for the balance of the debt.

Ultimately, this rule limits a lender to bringing only one foreclosure proceeding or court action against a borrower who falls behind in mortgage payments.

Relationship to California’s Security First Rule

The one action rule appears to allow the lender to sue the borrower personally based on the promissory note and skip foreclosure altogether. But California courts have interpreted the rule to mean that a lender must pursue the real estate before suing the borrower personally. Walker v. Community Bank, 10 Cal. 3d 729 (1974). This is known as the “security first rule.” The goal of this rule is to prevent a secured lender from suing the defaulting borrower on the debt itself before foreclosing on the security interest.

This means that a mortgage lender—whether its loan is a first mortgage, second, or HELOC—must foreclose the security (your home) rather than suing you directly on the underlying promissory note. (Cal. Code Civ. Proc. § 726(a).) As a result of the one action and security first rules, the lender’s options are significantly limited when a borrower defaults on a mortgage.

Second Mortgages, HELOCs, and Other Junior Lienholders

If the first mortgage lender forecloses and you have a second or third mortgage, or a HELOC, in certain circumstances you may face a lawsuit from one of those lenders.

Sold-out junior lienholders. If a senior lienholder forecloses, any junior liens—like second mortgages and HELOCs, among others—are also foreclosed and those junior lienholders lose their security interest in the real estate. This is referred to as a “sold-out junior lienholder.”

A sold-out junior lienholder can sue the borrower personally on the promissory note because it has not had its “one action” yet and it is not limited by the security first rule because the property has already been foreclosed. So, if your house is underwater—where the equity in your home doesn’t cover all of the outstanding debt including second and third mortgages—you may face lawsuits from those lenders to collect the balance of the loans.

Situations where a sold-out junior lienholder cannot get a personal judgment against you. If the lender that foreclosed the first mortgage is the same lender on the junior loan, that lender cannot sue you personally on the note for the junior loan after foreclosing the senior loan. Also, under California law, the lender cannot try to get a personal judgment against you if the loan was:

  • a purchase-money loan (a loan that is used to buy the property)
  • a refinance of a purchase-money loan (for example, a refinance of your original mortgage), or
  • a seller-financed loan (a loan you take out from the person or entity selling the property to you).

(Learn more in Nolo's article Deficiency Judgments After Foreclosure in California.)

Utah's One Action Rule

Similar to California, Utah foreclosures are typically nonjudicial, but judicial foreclosures are also possible. (Learn more about Utah foreclosures.)

Also like California, Utah has a “one action” rule which states that there can be only “one action for the recovery of any debt, or the enforcement of any right, secured solely by mortgage [or deed of trust] upon real estate.” (Utah Code Ann. § 78B-6-901.) (Learn more about the difference between a mortgage and a deed of trust.) Basically, this limits the lender to one civil (court) action to collect the debt.

Based on the wording of the statute, Utah’s one action rule appears to permit the lender to sue the borrower personally on the promissory note for a money judgment and skip foreclosure altogether. However, the Utah Supreme Court has interpreted this statute to mean that a lender must first foreclose on the real estate before suing the borrower for a money judgment if and when the proceeds from the foreclosure sale are insufficient to pay off the debt. This is known as a “security first” approach. The purpose of the security first approach is to stop a mortgage lender from going after the defaulting borrower’s other assets before foreclosing on the real property to satisfy the debt.

Relationship to Utah’s Law on Deficiency Judgments

When a lender forecloses, the total debt owed by the borrower to the lender often exceeds the foreclosure sale price. The difference between the sale price and the total debt is called a "deficiency" and a lawsuit to recover that deficiency is called a “deficiency action.”

Example. Say the total debt owed is $300,000, but the home only sells for $250,000 at the foreclosure sale. The deficiency is $50,000. The lender may file a deficiency action against the borrower to recover the $50,000 deficiency.

Under Utah law, the lender may file a deficiency action within three months after a nonjudicial foreclosure sale. (Utah Code Ann. § 57-1-32.) This then counts as the lender’s one civil action. If the lender chooses to foreclose judicially, it may include a claim for a deficiency judgment in the foreclosure suit, which counts as its one action.

Second Mortgages, Home Equity Lines of Credit (HELOCs), and Other Junior Lienholders

Much like in California, under Utah’s one action rule and security first approach, a mortgage lender—whether the loan is a first mortgage, second mortgage, or HELOC—must foreclose the home before suing you personally on the underlying promissory note.

Sold-out junior lienholders. In Utah, after the first mortgage lender forecloses, if your outstanding mortgage debt—including second and third mortgages—is more than your home is worth, you may face lawsuits from those other lenders to collect the balance of the loans.

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