[WSBAPT] deed of trust in a probate

Fri Oct 21 13:38:34 PDT 2016

It’s an Assignment of Deed of Trust and an endorsement of promissory note. I see documents called assignment of note, but that is a misnomer. In the past, some folks purchased a stream of payments (a portion of the installment payments, not the entire note) and did that by an Assignment of Right to Payment, but Endorsement is the correct term under Art. 3 of the UCC.

RCW 62A.3-104
Negotiable instrument.
(a) Except as provided in subsections (c) and (d), "negotiable instrument" means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
(1) Is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
(2) Is payable on demand or at a definite time; and
(3) Does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor.
(b) "Instrument" means a negotiable instrument.
(c) An order that meets all of the requirements of subsection (a), except subsection (a)(1), and otherwise falls within the definition of "check" in subsection (f) is a negotiable instrument and a check.
(d) A promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this Article.
(e) An instrument is a "note" if it is a promise and is a "draft" if it is an order. If an instrument falls within the definition of both "note" and "draft," a person entitled to enforce the instrument may treat it as either.
(f) "Check" means (i) a draft, other than a documentary draft, payable on demand and drawn on a bank, or (ii) a cashier's check or teller's check. An instrument may be a check even though it is described on its face by another term, such as "money order."
(g) "Cashier's check" means a draft with respect to which the drawer and drawee are the same bank or branches of the same bank.
(h) "Teller's check" means a draft drawn by a bank (i) on another bank, or (ii) payable at or through a bank.
(i) "Traveler's check" means an instrument that (i) is payable on demand, (ii) is drawn on or payable at or through a bank, (iii) is designated by the term "traveler's check" or by a substantially similar term, and (iv) requires, as a condition to payment, a countersignature by a person whose specimen signature appears on the instrument.
(j) "Certificate of deposit" means an instrument containing an acknowledgment by a bank that a sum of money has been received by the bank and a promise by the bank to repay the sum of money. A certificate of deposit is a note of the bank.

RCW 62A.3-109
Payable to bearer or to order.
(a) A promise or order is payable to bearer if it:
(1) States that it is payable to bearer or to the order of bearer or otherwise indicates that the person in possession of the promise or order is entitled to payment; 
(2) Does not state a payee; or
(3) States that it is payable to or to the order of cash or otherwise indicates that it is not payable to an identified person.
(b) A promise or order that is not payable to bearer is payable to order if it is payable (i) to the order of an identified person or (ii) to an identified person or order. A promise or order that is payable to order is payable to the identified person.
(c) An instrument payable to bearer may become payable to an identified person if it is specially indorsed pursuant to RCW 62A.3-205(a). An instrument payable to an identified person may become payable to bearer if it is indorsed in blank pursuant to RCW 62A.3-205(b).

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com

This message is from an attorney, so it’s confidential. If you are not the 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 Jenna Brozik
Sent: Friday, October 21, 2016 12:02 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] deed of trust in a probate

Thanks Mike and Bob.  My understanding is that there needs to be two separate documents, an assignment of the promissory note and an assignment of the deed.  Is this correct?

I know Mike you suggested another method for the promissory note but I also think you can do an assignment of the note.  

Jenna Brozik
Attorney at Law
Prinz & Brozik PLLC
445 S Grand Ave
Pullman, WA 99163
(509)338-0908 / (509) 338-3527 (fax)
jennaprinzlaw at gmail.com

On Fri, Oct 21, 2016 at 9:22 AM, Mike Winslow <mike at winslegal.com> wrote:
Jenna,
The Promissory Note is a negotiable instrument, just like a personal check. Transfer is by “endorsement”, not by assignment. Example: Pay to the order of Jane Smith; by Jane Smith, Personal Representative of the Estate of John Doe Smith.
This should be placed on the original of the promissory note, then original delivered to the recipient.
If the original note is lost I can give you additional instructions about how to handle off list. If you have any other questions about this process, please call or email.

BTW, now is a good time to determine the status of the collection account. If a third party collection service is involved they will need to be notified of the change in owner of the note. If the decedent was collecting the note directly, then it would be wise to determine the status of principal and interest, check for missing payments, then verify this in writing with the borrower. This will avoid later disputes about pay off amount or balance in the event of default and foreclosure. Also recommend that if the account was being collected directly that your client consider moving the collection process to a service that has the proper software to track the installment payments and issue 1099s. Less expense than paying an accountant to prepare every year and less hassle than doing this by oneself.
Shameless plug: 
http://incsnoteservices.com/

Mike

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com

This message is from an attorney, so it’s confidential. If you are not the 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 Jenna Brozik
Sent: Thursday, October 20, 2016 12:21 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] deed of trust in a probate

Hello list mates,

This is the scenario:

The decedent died and left my client, his daughter, everything and also she was named the Personal Representative in his will.  The probate is currently open.

The decedent (the PR's father) had commercial property (land) in which he sold to an individual.  The sale was secured by a promissory note in which the individual paid some down but owed the remaining amount to her father.  There is a deed which transfers the property to the individual from the decedent.  The decedent also had a deed of trust in which he was the beneficiary and a title company was the trustee.

I am going to do an Assignment of Promissory Note to the daughter (the PR). It appears that I can also prepare an Assignment of the Deed of Trust based on the Carpenter v. Longan case.

Does anyone have an Assignment of Deed of Trust form or template and/or does anyone have any comments regarding this?

Thanks in advance,

Jenna Brozik
Attorney at Law
Prinz & Brozik PLLC
445 S Grand Ave
Pullman, WA 99163
(509)338-0908 <tel:%28509%29338-0908>  / (509) 338-3527 <tel:%28509%29%20338-3527>  (fax)
jennaprinzlaw at gmail.com

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