[WSBAPT] Listserve Q

Mon Jun 25 09:56:26 PDT 2018

And, just for fun, if you are a creditor, including a secured lender, and the creditor dies, you cannot just sue The Estate of (Creditor), unless an estate in probate has been opened. But it happens all the time, especially with deed of trust foreclosures. Some lenders can't figure out how to nonjudicially foreclose against someone who is no longer among us, so they judicially foreclose and name The Estate of, but there is no probate filed. For unsecured debt, if it is worth it, you start a probate as the creditor. If it is real property, you can do that, but you can also get to foreclosure by winding your way through 11.04.250 and get at the heirs directly by suing them or getting releases or agreements. Better to always pre-qualify borrowers and exclude those who are going to die before they pay the loan off. 

And, for more fun, we have in these parts an "investor-developer" who is a true bottom feeder. He often takes title in one of several fictitious corporations. Those deeds are void, unless the corporation is later formed, and then it accedes to title. John Davis v. Cedar Glen, 75 Wash. 2d 214. How quickly it has to incorporate, I don' t know, but the cases suggest, pretty soon. 

Ha - the last one I worked on he took title in the name of a fictitious person. He used his address, he was the one who always dealt with it, but he tried to insulate himself by deeding to someone whom we suspected did not exist. Made it easy for us - we tried really hard to find the "person," had to admit defeat, and served by publication.  Leading to default and lien foreclosure judgment and sale.

This was the same guy, who, last time I sued him, came into court and said he was the defendant. Sat on the stand and gave a name I knew was not his. I said, is that really your name? He said it was. So I asked to see his license. He said he forgot it. The judge figured what was up - he said how did you get here? I drove. Then you committed an offense? Should I call downstairs to District Court? He said no, pulled out his wallet, and voila. A different name.  

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 Lenard
Sent: Monday, June 25, 2018 9:11 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Listserve Q

Part of your argument is that fictitious legal entities do not exist unless the government says they exist.  For example, there is a corporation act that says corporations are separate legal entities, an LLC act that says likewise and business trust/Massachusetts trust act as well.  So a business trust is the only trust that is a separate legal entity.  Otherwise why would we need RCW 23.90?

Many attorneys make the mistake of assuming trusts and estates are separate legal entities.  Not according to trust and estate law.  The IRS website even says that when a person dies their estate becomes a separate legal entity.  Not so.  It becomes a taxpayer and a trust may be a taxpayer, too.  That does not create a separate legal entity.

I have seen trust documents that state that the trust has a name and can hold title to property in the trust name.  Not good policy, at least not until we change trust law.  If all we need to create a separate legal entity is write a document that says so, why do we need a corporation act, an LLC act, etc?  Trust law has always been about relationships, not legal entities.

Lenard L. Wittlake, PLLC

Attorney & Counselor at Law

22 E. Poplar Street, Suite 200

P.O. Box 1233

Walla Walla, WA  99362

(509) 529-1529 voice

(509) 850-3515 fax

lenard at wittlakelaw.com

www.lwattorney.com <http://www.lwattorney.com/> 

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Rod Harmon
Sent: Friday, June 22, 2018 11:37 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Listserve Q

Rich:

That was so well said I am going to include it in a footnote to a motion for reconsideration I am filing in the court of appeals.  Haven’t figured out what to cite as authority, though.

Rod Harmon

RODNEY T. HARMON

       Attorney at Law

         P.O. Box 1066

      Bothell, WA   98041

     Tel:   (425) 402-7800

     Fax:  (425) 458-9096

     <http://www.rodharmon.com> www.rodharmon.com

    <mailto:rodharmon at msn.com> rodharmon at msn.com

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Rich McEntee
Sent: Thursday, June 21, 2018 10:21 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Listserve Q

Rod

It is not really a title company issue as much as a legal issue that title companies often catch. 

The creation of a trust involves the separation of rights to the trust property — the title to trust property is split between the trustee and the beneficiaries. The trustee holds legal title to the property and the beneficiaries hold equitable title. As the trustee holds legal title to the property, the property is held in the trustee's name. The trust is not a legal entity that can hold properly. It is simply a name/term that denotes the relationship between the grantor and the trustee. Thus, when it is said that property is being transferred to a trust, what is really meant is that property is being transferred to a trustee to be held “in trust” for the benefit of someone else.  

Regards

Rich

Rich McEntee

McEntee Law Office

3800 Bridgeport Way W Ste A411

University Place, WA  98466

253.227.9894

 <mailto:jrmcentee at gmail.com> jrmcentee at gmail.com

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On Jun 21, 2018, at 9:10 PM, John J. Sullivan <sullaw at comcast.net> wrote:

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