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

[Eric Nelsen]

I'm with Rob -- I have a vague recollection of a case that even says something about a non-judicial foreclosure action not being "commencement of an action" sufficient to satisfy statute of limitations. So if the non-judicial isn't completed before the S/L, a judicial should be commenced under the usual civil rules--file or serve before the S/L and do the other within 90 days.

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 Rob Wilson-Hoss
Sent: Wednesday, February 03, 2016 9:31 AM
To: 'WSBA Probate & Trust Listserv'; jeff at bellanddavispllc.com
Subject: Re: [WSBAPT] State of Limitations on Non-Judicial Foreclosure of Deed of Trust

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
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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 Mike Winslow
Sent: Tuesday, February 02, 2016 5:12 PM
To: jeff at bellanddavispllc.com<mailto: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<http://www.rtcreceivers.com>


Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
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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 Jeff Davis
Sent: Tuesday, February 02, 2016 4:38 PM
To: wsbapt at lists.wsbarppt.com<mailto: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<mailto:info at bellanddavispllc.com>
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