[WSBARP] Foreclosure question

[Eric Nelsen]

I'm not offering a referral, but on statute of limitations, here's info re running the limitation against an installment note, from some research I did a while back:

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 Here's the authority quoted in an unpublished case, Kirsch v. Cranberry Financial LLC, 69959-8-I (Div. 1, December 23, 2013):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
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Gregory L. Gilday
Sent: Friday, August 11, 2017 9:57 AM
To: WSBA RPPT Real Property Discussion Forum
Subject: [WSBARP] Foreclosure question

I have a friend who has a deed of trust foreclosure sale scheduled two weeks from now in Island County.  He has not made a payment in nine (9) years, and he says he has signed nothing with the lender in that 9 year period.  I am thinking the statute of limitations will be his friend.  Comments and referrals (including self) are solicited.

Thank you in advance.
--


Very Truly Yours,
Gregory L. Gilday
Law Office of Cole & Gilday, P.C.

10101 - 270th St. NW
Stanwood, WA 98292
(360) 629-2900 (Telephone)
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