[WSBAPT] summary judgment bank foreclosure

Fri Feb 6 18:58:21 PST 2015

Should have read “have not researched this issue.”

John Creahan
206-621-5848
www.cairn-law.com<http://www.cairn-law.com/>

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of John Creahan
Sent: Friday, February 6, 2015 6:38 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] summary judgment bank foreclosure

Josh,
I am not a litigator, and have researched this issue.
Having said that, I think you need to look to RCW 11.42.050 rather than 11.40.051. As I read the former, the limitations clock doesn’t start until a notice agent provides notice to creditors. Paragraph 1 only applies if a notice agent has been appointed. If not, paragraph 2 applies, which reads: “Any otherwise applicable statute of limitations applies without regard to the tolling provisions of RCW 4.16.190<http://apps.leg.wa.gov/rcw/default.aspx?cite=4.16.190>.”
If I understand the facts correctly, the bank appears to have had a valid (unsecured) claim against the parents and, later, their estate. If estate assets passed to the sons, the son’s inheritance would be subject to the bank’s claim.
Did the bank record their purported security interest in the property? Has it been removed from title? The probate doesn’t affect a security interest.
My $.02.
John

John Creahan
206-621-5848
www.cairn-law.com<http://www.cairn-law.com/>

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 6, 2015 4:59 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] summary judgment bank foreclosure

I will keep you informed.  I have about finished the answer.  The foreclosure complaint alleged that the parents estates were defendants and those estates were given notice.  Part of my rough draft of an answer is that there was no estate to give notice to.  I can certainly commence an estate, however, I wonder if it is necessary considering that well over 2 years have passed since the date of death and under 11.40.051(1)(C). all claims against the estate are now invalid if that is a statute of limitations.  My thinking is that the statute sets a statute of limitations, and one doesn’t have to commence an estate for the simple reason to reject the claim under that statute. The bank could have commenced an estate as creditor within 2 years of the dates of death, but they didn’t.

Is their authority that where, as here, a debt no longer exists, and that the interest in the property that once existed, i.e. the life estate, no longer exists,  that there can not be a valid security interest in the real property?  I think that is the crux of our argument.

From: Eric Nelsen<mailto:Eric at sayrelawoffices.com>
Sent: Friday, February 06, 2015 4:01 PM
To: WSBA Probate & Trust Listserv<mailto:wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] summary judgment bank foreclosure

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> [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

NOTICES:
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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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