[WSBARP] Ownership of home post foreclosure auction

NC seaseanc at gmail.com
Thu Jun 23 12:30:07 PDT 2016 

Could the owner have shown up and bid one dollar?

On Thursday, June 23, 2016, Wendy Walter <WWalter at mccarthyholthus.com>
wrote:

> Jim,
>
>
>
> Here’s a relevant statute that discusses tolling events in the statute of
> limitations.
>
> *RCW 4.16.230*
>
> *Statute tolled by judicial proceedings.*
>
> When the commencement of an action is stayed by injunction or a statutory
> prohibition, the time of the continuance of the injunction or prohibition
> shall not be a part of the time limited for the commencement of the action.
>
>
>
> The foreclosure fairness act, now within RCW 61.24 et seq. prohibits a
> beneficiary from proceeding to foreclosure right away and instead requires
> certain due diligence, meet and confer and mediation steps to be taken in
> certain cases.  I would argue that this is a statutory prohibition on
> commencement of an action and thus should not count against the beneficiary
> if the borrower were to challenge on the SOL defense.
>
>
>
> Furthermore, the CFPB servicing rules, contained in 12 CFR 1024.41
> similarly prohibit through federal rule the commencement of a foreclosure
> action by a beneficiary in certain circumstances.  Before getting a
> borrower’s hopes up that the SOL might help them get out of their debt,
> consider the huge efforts that were made at a state and federal level to
> provide loss mitigation to so many borrowers in our state (and across the
> country).  To come back and say that compliance with those efforts might
> prejudice the beneficiary from recovery on the debt, especially when the
> stakes are high and liability can be extreme for running the loss
> mitigation red lights put into effect is not likely to be supported by a
> court if you consider RCW 4.16.230.
>
>
>
> *Wendy Walter* | Partner - Pacific Northwest | Member State Bars of WA
> and OR
>
> McCarthy ♦ Holthus LLP
>
>     m. 108 1st  Ave. S., Suite 300, Seattle, WA  98104
>
>     d. 206.596.4844 | f. 206.780.6862 | c. 425.241.5459
>
>     e. wwalter at mccarthyholthus.com
> <javascript:_e(%7B%7D,'cvml','wwalter at mccarthyholthus.com');>
>
> Arizona ♦ California ♦ Colorado ♦  Idaho ♦ Nevada ♦ New Mexico ♦ Oregon ♦ Texas
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>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com
> <javascript:_e(%7B%7D,'cvml','wsbarp-bounces at lists.wsbarppt.com');>
> [mailto:wsbarp-bounces at lists.wsbarppt.com
> <javascript:_e(%7B%7D,'cvml','wsbarp-bounces at lists.wsbarppt.com');>] *On
> Behalf Of *Jim Doran
> *Sent:* Thursday, June 23, 2016 11:04 AM
> *To:* WSBA Real Property Listserv
> *Subject:* Re: [WSBARP] Ownership of home post foreclosure auction
>
>
>
> Wendy:
>
> I am not clear in my own mind about how the foreclosure process tolls the
> statute of limitations.  In general, how does that work?  I am willing to
> learn.  (I try not to but it happens anyway.)
>
> Jim
>
>
>
> James R. Doran
>
> Attorney at Law
>
> 100 E. Pine Street -  Suite 205
>
> Bellingham, WA 98225
> (360)393-9506
>
> jim at doranlegal.com <javascript:_e(%7B%7D,'cvml','jim at doranlegal.com');>
>
> www.doranlegal.com
>
>
>
> On Thu, Jun 23, 2016 at 10:12 AM, Wendy Walter <
> WWalter at mccarthyholthus.com
> <javascript:_e(%7B%7D,'cvml','WWalter at mccarthyholthus.com');>> wrote:
>
> But if the lender was statutorily barred from proceeding to foreclosure
> because of the pre-foreclosure diligence, meet and confer requirements, or
> the mediation program and the potential CFPB delays to proceeding to
> foreclosure due to the 120 day rule or the bar on dual tracking while
> reviewing a complete loss mitigation application the SOL defense might not
> apply.
>
>
>
> *Wendy Walter* | Partner - Pacific Northwest | Member State Bars of WA
> and OR
>
> McCarthy ♦ Holthus LLP
>
>     m. 108 1st  Ave. S., Suite 300, Seattle, WA  98104
>
>     d. 206.596.4844 | f. 206.780.6862 | c. 425.241.5459
>
>     e. wwalter at mccarthyholthus.com
> <javascript:_e(%7B%7D,'cvml','wwalter at mccarthyholthus.com');>
>
> Arizona ♦ California ♦ Colorado ♦  Idaho ♦ Nevada ♦ New Mexico ♦ Oregon ♦ Texas
> ♦ Washington
>
> CONFIDENTIALITY NOTICE: The information contained herein may be privileged
> and protected by the attorney/client and/or other privilege. It is
> confidential in nature and intended for use by the intended addressee only.
> If you are not the intended recipient, you are hereby expressly prohibited
> from dissemination distribution, copy or any use whatsoever of this
> transmission and its contents. If you receive this transmission in error,
> please reply or call the sender and arrangements will be made to retrieve
> the originals from you at no charge.
>
> Federal law requires us to advise you that communication with our office
> could be interpreted as an attempt to collect a debt and that any
> information obtained will be used for that purpose.
>
>
>
>
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com
> <javascript:_e(%7B%7D,'cvml','wsbarp-bounces at lists.wsbarppt.com');>
> [mailto:wsbarp-bounces at lists.wsbarppt.com
> <javascript:_e(%7B%7D,'cvml','wsbarp-bounces at lists.wsbarppt.com');>] *On
> Behalf Of *Jim Doran
> *Sent:* Thursday, June 23, 2016 10:09 AM
> *To:* WSBA Real Property Listserv
> *Subject:* Re: [WSBARP] Ownership of home post foreclosure auction
>
>
>
> That's what I thought.
>
> Now, bring in the Statute of Limitations issue and the debt might be
> barred completely or at least partially.  This depends on the time fromthe
> "acceleration" of the debt.  but certainly some of the past due payments
> might have fallen off the debt.
>
> Jim Doran
>
>
> James R. Doran
>
> Attorney at Law
>
> 100 E. Pine Street -  Suite 205
>
> Bellingham, WA 98225
> (360)393-9506
>
> jim at doranlegal.com <javascript:_e(%7B%7D,'cvml','jim at doranlegal.com');>
>
> www.doranlegal.com
>
>
>
> On Thu, Jun 23, 2016 at 9:48 AM, Kathryn R. McKinley <
> Kathryn.McKinley at painehamblen.com
> <javascript:_e(%7B%7D,'cvml','Kathryn.McKinley at painehamblen.com');>>
> wrote:
>
> The sale is only “final” if the Trustee accepts an offer and delivers the
> deed within 15 days. If that isn’t done, there is no sale and the Deed of
> Trust continues to encumber the property.
>
>
>
> *Kathryn R. McKinley*
>
> Partner
> [image: PHEmailLogo]
> 717 W. Sprague Ave. Suite 1200
> Spokane, WA 99201
> (509) 455-6000
> kathryn.mckinley at painehamblen.com
> <javascript:_e(%7B%7D,'cvml','cindy.bryan at painehamblen.com');>
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com
> <javascript:_e(%7B%7D,'cvml','wsbarp-bounces at lists.wsbarppt.com');>
> [mailto:wsbarp-bounces at lists.wsbarppt.com
> <javascript:_e(%7B%7D,'cvml','wsbarp-bounces at lists.wsbarppt.com');>] *On
> Behalf Of *Paul Neumiller
> *Sent:* Thursday, June 23, 2016 9:29 AM
> *To:* 'WSBA Real Property Listserv'
> *Subject:* Re: [WSBARP] Ownership of home post foreclosure auction
>
>
>
> Whoa!?!?!  I have never heard of this.  Why would a bank do this??  I
> would think that the foreclosure process WAS completed because an auction
> took place at the court house steps.  It’s not the debtor’s fault the bank
> didn’t credit bid its loan at the sale.  Why couldn’t the debtor now make
> the argument that the loan has been wiped out by the sale and there is no
> deficiency opportunity because the lender used a nonjudicial foreclosure?
> Is anyone else seeing this?
>
>
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com
> <javascript:_e(%7B%7D,'cvml','wsbarp-bounces at lists.wsbarppt.com');> [
> mailto:wsbarp-bounces at lists.wsbarppt.com
> <javascript:_e(%7B%7D,'cvml','wsbarp-bounces at lists.wsbarppt.com');>] *On
> Behalf Of *Jim Doran
> *Sent:* Thursday, June 23, 2016 8:06 AM
> *To:* attorney at shanapavithran.com
> <javascript:_e(%7B%7D,'cvml','attorney at shanapavithran.com');>; WSBA Real
> Property Listserv <wsbarp at lists.wsbarppt.com
> <javascript:_e(%7B%7D,'cvml','wsbarp at lists.wsbarppt.com');>>
> *Subject:* Re: [WSBARP] Ownership of home post foreclosure auction.
>
>
>
> If the home was not "purchased" at the sale then the foreclosure was not
> completed.  No deed from the Trustee was delivered to a new owner.
>
> This means that your client is still the owner of the property.
>
> There are a number of defenses that can be raised in a foreclosure process
> to keep the bank and servicer at bay.  Now that the great recession of 2008
> is getting years past the statute of limitations defense is looming and
> working its way through the courts of America.  The entire debt or part of
> it might now be barred.
>
> anyway, if you client wants to talk to me a bout tis, or you want to, I am
> happy to do so.  I have been doing "foreclosure defense" for a while now.
>
> Jim Doran
>
>
> James R. Doran
>
> Attorney at Law
>
> 100 E. Pine Street -  Suite 205
>
> Bellingham, WA 98225
> (360)393-9506
>
> jim at doranlegal.com <javascript:_e(%7B%7D,'cvml','jim at doranlegal.com');>
>
> www.doranlegal.com
>
>
>
> On Thu, Jun 23, 2016 at 4:49 AM, <attorney at shanapavithran.com
> <javascript:_e(%7B%7D,'cvml','attorney at shanapavithran.com');>> wrote:
>
>  I have a client, whose home was foreclosed, pursuant to a trust deed
> foreclosure.  The lender held an auction on 2/5/16.  The value of the
> mortgage was approximately 230K appraised current value is approximately
> 155K.  Though foreclosed, home was not sold at the auction.  The bank did
> not bid at the auction or transfer ownership of the home to the bank's
> name.  The home remains in the client's name. He still pays the water bill
> on it.  He does not live there right now.  What rights does he have
> regarding the home?  Does the bank own it or does the client own it
> outright, as the mortgage is discharged by the foreclosure.
>
>
>
>
>
> Shana Pavithran
> Attorney-at-Law
> Pavithran, PLLC.
> 22525 SE 64th Place, #279
> Issaquah, WA 98027
>
> Telephone: (425) 557-3625
>
> Email: attorney at shanapavithran.com
> <javascript:_e(%7B%7D,'cvml','attorney at shanapavithran.com');>
> Website: www. shanapavithran.com
>
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