[WSBAPT] summary judgment bank foreclosure

[Eric Nelsen]

Marcus may be right regarding the contract provision, but I had one thought about that--I recall case law that says, when one party asserts rights under a contract and the other party asserts defenses based on avoiding the contract, the defending party can still receive an attorney fee award under a prevailing party clause in the avoided contract. I don't know if that necessarily applies in this circumstance, but something to consider.

Actually, second thought--the provision of RCW 4.84.330 seems to say outright that if the action is based on the contract, the prevailing party can collect attorney fees regardless of whether the prevailing party was actually a party to the contract. So maybe no probate necessary.

Sorry I don't have briefing to provide. All I have is a long-standing fear and loathing of B of A. Go get 'em!

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040



From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Friday, February 06, 2015 3:31 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] summary judgment bank foreclosure

Josh:
I don’t have briefing on this issue, but I would think the contract provision wouldn’t apply unless someone steps into the shoes of parents’ estate as the contract was between them.  May need to open a probate to assert their rights.  As to CR 11, it really depend how egregious the conduct has been, and that might be the case here, but I never count on CR 11 award for fees.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
Adoption Attorney*
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Friday, February 06, 2015 3:03 PM
To: wsbar trust
Subject: [WSBAPT] summary judgment bank foreclosure

I am wondering if anyone has  sample form(s)?

My client has been served with a foreclosure complaint and summons.  I have explained repeatedly that B of A has no right to foreclose.  Client’s parents were the borrowers. A year or so before they borrowed from BofA they gave house to client retaining a life estate on it.  Title company goofed and didn’t notice the deed.  Title company has admitted that goof, and I have told bank to go collect on lender’s title policy.  Parents died many years ago(way more than 2).  Because all they could encumber was a life estate, and the life estates are long gone, foreclosure compalint of the house should be cancelled by summary judgment. No action against parents’ estates in the 2 years since they died.

Anyone have a summary judgment forms that would be similar that I can work off of?

I will be asking for attorney fees under RCW 4.84.330 (contract provides for attorneys’ fees = prevailing party collects).  I will put that in the answer as well.
I have pointed all this out many times over the last several years to various collection bureau’s, so I would think the complaint to foreclose violated CR 11, except that the collection bureau probably didn’t pass on the info to the attorney.  I don’t need CR 11 anyway because of 4.84.330.  Maybe if they oppose the summary judgment motion?

thanks

Joshua F. Grant, PS
Attorney at Law
P. O. Box 619
Wilbur, WA 99185
tel 509 647 5578
fax 509 647 2734
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