[WSBARP] SOL Calculation for Foreclosure Action

[Eric Nelsen]

If the S/L to collect a debt has passed, then the DOT or mortgage can be stripped off by a quiet title action. RCW 7.28.300.

S/L on an installment note is separate for each missed payment, unless the total amount is accelerated. Here's the authority quoted in an unpublished case, Kirsch v. Cranberry Financial LLC, 69959-8-I (Div. 1, December 23, 2013):

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) (same).[9] 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).

FN 9 reads:
Kirsch contests this rule, arguing that Cranberry cites distinguishable family law cases for the proposition that the statute of limitations runs against each installment separately. Though some of Cranberry's cited cases are family law cases, they describe a general proposition of contract law applying to all contracts in which installment payments are due. Further, some of those family law cases cite 82 A.L.R. 316 (1931), which addresses in general terms, "[w]hen Statute of Limitations begins to run against an action to recover upon contract payable in installments" and describes the general rule: "The general rule in such a case is similar to the general rule herewith noted in the case of contract obligations, it having been held that the Statute of Limitations begins to run from the expiration of the period fixed for the payment of each installment as it becomes due, for the part then payable." See Herzog v. Herzog, 23 Wn.2d 382, 388, 161 P.2d 142 (1945).

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 Oscar Yang, Esq.
Sent: Tuesday, May 26, 2015 12:31 PM
To: WSBA Real Property Listserv
Subject: [WSBARP] SOL Calculation for Foreclosure Action

Dear Listmates:

I know in another state, there were some debates on when the SOL should start running for foreclosure actions (for example,  among the last payment date by the borrower, the acceleration payment date, the first date to fail to make a full monthly payment, etc).   What date does WA use to calculate the SOL of a foreclosure action?  Many foreclosure actions that I have seen are well within the SOL period, but I still want to calculate it correctly.  I apologize if this question sounds too basic.

Kind regards,
Oscar Yang
Managing Attorney
ES BERRY LAW PC

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