[WSBARP] Ownership of home post foreclosure auction

[Jim Doran]

This Cranberry cawse is the one that got me started on the SOL analysis.

wendy added in the periods of the tolling of the SOL during a
pre-foreclosure and the foreclosure process.  If you extract the time that
the SOL was tolled, then the SOL may apply to eliminate some of the
payments and maybe all of the payments if enough time has gone by from some
sort of "acceleration".

The lenders and servicers do all kinds of strange things.  I have one case
where a modification offer from the servicer states that the loan was
accelerated years a go but the borrower had never received an
"acceleration" notice.  I want to bootstrap the current written statement
into the past but I don't think it will fly.

Jim



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

On Thu, Jun 23, 2016 at 1:06 PM, K. Garl Long <Garl at longlaw.biz> wrote:

> Attached unpublished opinion finds that the SOL ran despite the filing and
> dismissal of a judicial foreclosure.  Should a failed nonjudicial be
> treated differently?
>
> K. Garl Long
>
> On 06/23/2016 12:30 PM, NC wrote:
>
> Could the owner have shown up and bid one dollar?
>
> On Thursday, June 23, 2016, Wendy Walter < <WWalter at mccarthyholthus.com>
> 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
>>
>> 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 [mailto:
>> 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
>>
>> www.doranlegal.com
>>
>>
>>
>> On Thu, Jun 23, 2016 at 10:12 AM, Wendy Walter <
>> 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
>>
>> 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 [mailto:
>> 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
>>
>> <http://www.doranlegal.com>www.doranlegal.com
>>
>>
>>
>> On Thu, Jun 23, 2016 at 9:48 AM, Kathryn R. McKinley <
>> 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
>>
>>
>>
>> *From:* wsbarp-bounces at lists.wsbarppt.com [mailto:
>> 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 [
>> mailto:wsbarp-bounces at lists.wsbarppt.com] *On Behalf Of *Jim Doran
>> *Sent:* Thursday, June 23, 2016 8:06 AM
>> *To:* attorney at shanapavithran.com; WSBA Real Property Listserv <
>> 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
>>
>> <http://www.doranlegal.com>www.doranlegal.com
>>
>>
>>
>> On Thu, Jun 23, 2016 at 4:49 AM, <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
>> Website: www. shanapavithran.com
>>
>> *CONFIDENTIAL:  This email contains confidential and privileged matters.
>> If you receive this email in error please notify sender and delete the
>> email immediately.  Do not copy the contents or disseminate the information
>> contained therein.*
>>
>>
>>
>>
>> _______________________________________________
>> WSBARP mailing list
>> WSBARP at lists.wsbarppt.com
>> http://mailman.fsr.com/mailman/listinfo/wsbarp
>>
>>
>>
>>
>> _______________________________________________
>> WSBARP mailing list
>> WSBARP at lists.wsbarppt.com
>> http://mailman.fsr.com/mailman/listinfo/wsbarp
>>
>>
>>
>>
>> _______________________________________________
>> WSBARP mailing list
>> WSBARP at lists.wsbarppt.com
>> http://mailman.fsr.com/mailman/listinfo/wsbarp
>>
>>
>>
>
>
> --
> Nicholas L. Clapham
> (206)939-0262
>
> NOTICE- This email message may contain confidential and privileged
> information. It is intended only for the named recipent(s) and may contain
> attorney work product and/or information exempt from disclosure under
> applicable law. Any unauthorized use is prohibited.  If you are not the
> intended recipient, please contact the sender by reply email and destroy
> all copies of the original message. This does not constitute an electronic
> signature.
>
> Pursuant to U.S. Treasury Department Circular 230 and other IRS
> regulations, unless we expressly state otherwise, any tax advice contained
> in this communication (including any attachments) was not intended or
> written to be used, and cannot be used, for the purpose of (i) avoiding
> tax-related penalties or (ii) promoting, marketing or recommending to
> another party any transaction or matter(s) addressed herein.
>
>
>
>
>
> _______________________________________________
> WSBARP mailing listWSBARP at lists.wsbarppt.comhttp://mailman.fsr.com/mailman/listinfo/wsbarp
>
>
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20160624/78bee6a3/attachment.html>