[WSBAPT] State of Limitations on Non-Judicial Foreclosure of Deed of Trust

Wed Feb 3 09:30:58 PST 2016

Hi, Jeff, how's it going? We're still unhappy that we weren't smart enough
to move to the rain shadow in Sequim decades ago.  

All of the posts are helpful; as to your question, the upshot is first to
figure out when the debt is due (and this depends on in many cases whether
there is an acceleration clause, or in some older cases, not so much); and
then RCW 7.28.300 says, 

"The record owner of real estate may maintain an action to quiet title
against the lien of a mortgage or deed of trust on the real estate where an
action to foreclose such mortgage or deed of trust would be barred by the
statute of limitations, and, upon proof sufficient to satisfy the court, may
have judgment quieting title against such a lien."

So, before the six year bar arrives, then the note holder should either
finish the nonjudicial foreclosure, or file judicially. His judicial action
to foreclose is not barred by the SOL if it is begun before the six years
runs.  I think. 

Rob

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

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From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Mike Winslow
Sent: Tuesday, February 02, 2016 5:12 PM
To: jeff at bellanddavispllc.com; 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] State of Limitations on Non-Judicial Foreclosure of
Deed of Trust

Here is a reply from the RP list (Kevin Hanchett) that may be of additional
help:

Generally, actions based on written contracts must be commenced within six
years after breach. RCW 4.16.040. The general rule for debts payable by
installment provides, "A separate cause of action arises on each
installment, and the statute of limitations runs separately against each
...." 31 Richard A. Lord, Williston on Contracts § 79:17, at 338 (4th ed.
2004); see also 25 David K. Dewolf, Keller W. Allen & Darlene Barrier
Caruso, Washington Practice: Contract Law and Practice § 16:20, at 196
(2012-13 Supp.) ("Where a contract calls for payment of an obligation by
installments, the statute of limitations begins to run for each installment
at the time such payment is due"); Hassler v. Account Brokers of Larimer
County. Inc.. 274 P.3d 547, 553 (Colo. 2012) (same); Bay Area Laundry & Dry
Cleaning Pension Trust Fund v. Ferbar Corp. of CaL 522 U.S. 192, 208-09, 118
S.Ct. 542, 139 L.Ed.2d 553 (1997)  But if an obligation that is to be repaid
in installments is accelerated— either automatically by the terms of the
agreement or by the election of the creditor pursuant to an optional
acceleration clause—the entire remaining balance of the loan becomes due
immediately and the statute of limitations is triggered for all installments
that had not previously become due. 31 Richard A. Lord, supra, § 79:17, at
338; § 79:18, at 347-50; 12 Am.Jur.2d, Bills & Notes § 581 (same); Bay Area,
522 U.S. at 208-09 (same). The statute of limitations commences upon
maturity of a note. A.A.C. Corp. v. Reed. 73 Wn.2d 612, 615, 440 P.2d 465
(1968). 

Kevin Hanchett

Resource Transition Consultants, LLC

144 Railroad Avenue, Suite 310

Edmonds WA 98020

(425) 678-8162

Cell (206) 930-5332

Fax (425) 967-3083

www.rtcreceivers.com 

Michael A. Winslow

1204 Cleveland Ave.

Mount Vernon, WA 98273

Ph. 360-336-3321

Em. Mike at winslegal.com

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intended recipient, it’s too late to stop reading this message, but you may
not use it for any improper purpose. Huge Disclaimer available upon request.

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Jeff Davis
Sent: Tuesday, February 02, 2016 4:38 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] State of Limitations on Non-Judicial Foreclosure of Deed
of Trust

PC has less than six months before statute of limitation runs on enforcing
promissory note secured by DOT.  Walcker v. Benson and McLaughlin, P.S., 79
Wn. App. 739, 904 P.2d 1176 (1995) bars DOT foreclosures after the SOL runs
on the note.  Question is does the non-judicial sale have to occur before
the SOL runs or will starting the process, serving Notice of Default and
setting sale date before it runs toll the SOL?  If sale must be done before
the SOL runs then judicial foreclosure is the route to take at this late
date.

Jeff

W. Jeff Davis, Esq.

Attorney at Law

BELL & DAVIS PLLC
P.O. Box 510
Sequim WA 98382
Phone No.:(360) 683.1129 
Fax No.: (360) 683.1258 
email: info at bellanddavispllc.com
www.bellanddavispllc.com <http://www.bellanddavispllc.com/> 

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