[WSBARP] defending and judicial foreclosure, no debt owing by defendants
Scott Osborne
scott.osborne2 at gmail.com
Fri Nov 14 15:11:24 PST 2014
Who signed the deed of trust?
Scott Osborne
scott.osborne2 at gmail.com
scotto at foster.com
206 447-6293 - Direct Line
206 359-5454 Cell
Sent from my iPad
> On Nov 14, 2014, at 2:55 PM, Josh Grant <jgrant at accima.com> wrote:
>
> I agree that there was a debt owing when the parents died, however, that was over 2 years ago (in fact closer to a decade ago) and so I am thinking that the time for pursuing any such debt has expired, even though no notice to creditors was published (in fact no probate was ever needed).
>
> From: Kathryn R. McKinley
> Sent: Friday, November 14, 2014 2:29 PM
> To: WSBA Real Property Listserv
> Subject: Re: [WSBARP] defending and judicial foreclosure, no debt owing by defendants
>
> Technically, I think the underlying debt is still owing, now by the "estate" of the parents, as opposed to the parents themselves. If there were no assets, then that may be a moot point. If there were other assets which simply "passed" to the son, there could be an issue.
>
> Kathryn R. McKinley
> Of Counsel
> <image001.jpg>
> 717 W. Sprague Ave. Suite 1200
> Spokane, WA 99201
> (509) 455-6000
> kathryn.mckinley at painehamblen.com
> This message is private or privileged. If you are not the person for whom this message is intended, please delete it and notify me immediately, and please do not copy or send this message to anyone else.
>
> From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
> Sent: Friday, November 14, 2014 2:14 PM
> To: WSBA Real Property Listserv
> Subject: Re: [WSBARP] defending and judicial foreclosure, no debt owing by defendants
>
> Thank you Eric and John
>
> No, I didn’t get any responses... very helpful.
>
> I had not thought about “if the contract calls for attorney fees then they pay the non-party’s.” and John cites the statute 4.84.340 that so holds. <image002.png>
>
> My main concern was a dim recollection that there is authority that a secured party can foreclose a lien even if the underlying debt is not owing. And I have heard that if there is no debt, there is no such possibility.
>
> I am trying to keep my fees down for the client, particularly here, where all they have to do is make the claim on their title insurance. So I haven’t taken the time to research that.
>
> Thanks!
>
> Josh
>
> Joshua F. Grant, PS
> Attorney at Law
> P. O. Box 619
> Wilbur, WA 99185
> tel 509 647 5578
> fax 509 647 2734
>
> From: Eric Nelsen
> Sent: Friday, November 14, 2014 1:14 PM
> To: WSBA Real Property Listserv
> Subject: Re: [WSBARP] defending and judicial foreclosure, no debt owing by defendants
>
> Josh, did you get any responses to this? If it's true that the borrower/parents had only a life estate in the property at time of the loan, and lender's security interest therefore vanished when they died, then I think you can set up a CR 11 claim. There's case law somewhere...the CR 11 obligation is ongoing, and if the suit was filed erroneously and plaintiff is given clear information that it the suit is not proper, then their failure to dismiss immediately is a violation of CR 11--by persisting in a claim that is clearly not well-grounded in fact.
>
> I also think that SJ is appropriate on both issues--no personal liability of defendants, no valid lien on the real property. No relevant facts seem to be in dispute. But I'd sure also ask for CR 11 sanctions or find another hook for attorney fees as well. Maybe the case law that says, if a plaintiff sues on a contract that allows for attorney fees and defendant turns out to not be a party to the contract (or defense is based on rescission or something else that renders the contract terms moot), the defendant can still ask for attorney fees based on that contract? At least I remember some case law that says something like that.
>
> 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: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
> Sent: Wednesday, November 12, 2014 3:29 PM
> To: wsbar
> Subject: [WSBARP] defending and judicial foreclosure, no debt owing by defendants
>
> My client and his parents have been sued with a judicial foreclosure complaint of a 1998 loan. Plaintiff is a US Bank NA “as trustee under the pooling and servicing agreement...”
>
> The parents have been dead for well over 2 years. My client didn’t sign on the loan. The parents signed the loan, but they didn’t own the property when the loan was made.. as they had previously given the house to my client. they reserved a life estate in the gift deed which was recorded before 1998. Obviously the life estate is now over. I assume that the lien on the life estate is also over. There was a lender’s policy issued to the Plaintiff for $76,500. I have been trying to get them to claim proceeds from that lender’s policy for years, all I got for my efforts was this judicial foreclosure of my client’s land. They now claim the $63,041 principal owing plus interest of $18,253.46 interest so they are claiming a little more than the title insurance would pay them (about $8000). However, had they claimed the insurance proceeds a couple of years ago, when I told them about it, the title insurance proceeds would have covered all pr and interest.
>
> Plaintiff’s attorney (appears to be a collection law firm??) has ignored my correspondence.
>
> I have confirmed that the lender’s policy is in effect, the title company admits they goofed, and they seem ready to pay. They denied my claim to defend the foreclosure (correctly) saying that I didn’t represent the insured basically saying “the lender may have a claim but you don’t”.
>
> So my question is what can I threaten to do , if the collection attorney continues to ignore common sense? I am going to send another letter that says “go grab the insurance money and drop this suit”.
>
> Can I threaten Summary Judgment because no one they sued owes any money? and the real estate lien is invalid because there is no valid underlying debt?
> CR 11 attorney fees, if they resist the summary judgment (Given all the info I have given one collection bureau after another through the years, maybe CR 11 will apply to the filing of the judicial foreclosure complaint itself even if they don’t resist??
>
> I think this really boils down to whether they can foreclose a lien where there is no underlying debt when they filed their complaint? and if so, don’t they have to offset the insurance proceeds which they can claim if they would do so?
>
> If they can foreclose their old lien, then they could get my client’s house back, and then go claim the title insurance proceeds as well?
>
> They have asked for quiet title against everyone claiming under the decedents.
>
> Maybe the answer and the summary judgment we file will say, “no quiet title to my client” and award CR 11 sanctions for not simply filing for the title insurance, and again, because there is no valid underlying loan.
>
> No estate was ever filed. My client could file their will and deny any creditors claim as not owing. But I don’t think that will quiet title to the house.
>
> sorry this is so long.
>
> 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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