[WSBARP] CCR question

[swhite8893 at aol.com]

     In any discussion relating to this topic, I think you have to differentiate between condos and noncondo HOA's, although there was an attempt in this year's legislative session to change that(see SB 6253, a very significant proposal for any HOA). In some areas, the focus is on condos. Here in the hinterland, the focus is on areas with single family homes. Priority is not governed by statute but by case law as may be influenced by the language in the governing documents.
     While BAC Home Loans Servicing was a condo situation, and while it had Bank of America arguing it did not have priority(ironic for a lot of reasons), a lot of the language in the opinion does not rely on the statute, particularly where it discusses the rational of Nat'l Bank of Wash. v Equity Investors, as being applicable.
     This is consistent with several states, the leading opinion from which is probably Bessemer v. Gersten, 381 So, 2d 1344 (Fla. 1980).
     I also think if you go back and look at the theoretical basis for common law liens (the work being done was protecting the security interest), it is analogous. However, common law liens are abolished in Washington. However, it seems to me that if you have a contractually based lien, your covenants, that has priority language, that rationale could be used to support that claim. 
     I had suspected the reason for the preloan bank concerns was underwriting, and several years ago that seemed to be more of an issue, but I never saw any specific standards and never heard of someone who could not get a loan, but not perhaps from a particular bank. I have not seen the issue come up for several years. Perhaps other's experience is different.

Steve
     
 

Stephen Whitehouse
Whitehouse & Nichols, LLP
Attorneys at Law
P.O. Box 1273
601 W. Railroad Ave.
Shelton, Wa. 98584
360-426-5885
swhite8893 at aol.com

 
 
-----Original Message-----
From: Jim Doran <jim at doranlegal.com>
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Sent: Mon, Mar 16, 2015 5:43 pm
Subject: Re: [WSBARP] CCR question


 
  
It is my understanding, recently gained, that the super-priority statutes in Washington (and seven other states) means that the HOA lien is superior to the prior mortgages, even though the HOA line may be later in time.  The mortgage/DOT might be first in time to the actual specific HOA lien but the mortgage/DOT are junior in legal status because of the need to have the fees paid.  If the lender does not respond to s sheriff’s sale, for instance, the lender’s security can be eliminated.
  
 
  
See attached cases.
  
 
  
   
James R. Doran
   
Attorney at Law
   
100 E. Pine Street – Suite 205
   
Bellingham, WA 98225
   
(360)393-9506
   
jim at doranlegal.com
   
www.doranlegal.com
  
  
 
  
   
    
From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Jeanne Dawes
Sent: Monday, March 16, 2015 5:26 PM
To: WSBA Real Property Listserv (wsbarp at lists.wsbarppt.com)
Subject: [WSBARP] CCR question
   
  
  
 
  
   
Dear Listmates:
  
  
   
 
  
  
   
What is the rationale for subordinating the homeowner’s association lien/assessments to that of a first mortgage lender?  Is it because lender’s will not lend if there is no subordination, or can the CCR’s not subordinate the lien, and create a preference for unpaid (defaulted) homeowner lien assessments that would have priority over subsequently recorded mortgages?
  
  
   
 
  
  
   
Jeanne J. Dawes
  
  
   
Attorney at Law
  
  
   
Gore & Grewe, P.S.
  
  
   
103 E. Indiana Avenue, Suite A
  
  
   
Spokane, WA 99207-2317
  
  
   
Voice:  509-326-7500
  
  
   
Fax:      509-326-7503
  
  
   
jjdawes at goregrewe.com
  
  
   
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