[WSBAPT] summary judgment bank foreclosure

Mon Feb 9 08:39:03 PST 2015

Sounds like a fun summary judgment issue☺

Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com<http://www.hawkeslawfirm.com>
206 367 5000
Fax is 206 367 4005

From: Eric Nelsen [mailto:Eric at sayrelawoffices.com]
Sent: Sunday, February 08, 2015 3:51 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] summary judgment bank foreclosure

Josh--I am with you on all counts.
(A) Bank has no secured interest on the property because the DOT attached to the life estate only, which vanished at death.
(B) Bank's direct claim against decedents on the Promissory Note is barred by the 2-year post-DOD statute of limitations under RCW 11.40.051, so it's impossible for the bank to sue on the Note.
(C) Decedents' heirs received title to the property via RCW 11.04.250 subject to the Deed of Trust--but the Note secured by the DOT expired under the 2-year post-DOD SoL, so the Deed of Trust is now removable by a quiet title action under RCW 7.28.300.
(D) It's impossible for the Bank to have given notice to an "Estate" If there is no probate opened and PR appointed (and no non-probate "notice agent" under RCW 11.42).
(E) No need to open a probate now because you don't need to defend the estates, just the decedents' heirs. (Maybe move to dismiss the Estates as improper parties and/or lack of service?) And if the bank had wanted to, it could have started a probate itself within the 2-year limit. I am pretty sure there is case law that says exactly that--that a creditor's remedy is to open a probate itself, if there isn't one already.

I don't think the 2-year SoL under RCW 11.40.051 has been explicitly tested under this scenario, but I think all the most relevant precedent is at least logically entirely in your favor.

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 Josh Grant
Sent: Friday, February 06, 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

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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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