[WSBARP] HOA Execution of Judgment Lien and Redemption Rights

Thu Sep 7 13:25:00 PDT 2017

Paul, 

          First, look at the governing documents to see if they refer to
foreclosing liens in the manner of foreclosing mortgages. That turns it into
a contract to use the mortgage statutes. Second, plead it in the Complaint,
you have to do that anyway, and see if they deny. If they don't answer, that
is a default on that as well as all the other issues. But you still have to,
in theory, get by CR 55(b), as something that is not an amount certain. I
brief it as part of an overall CR 55(b) brief and make the argument that you
are entitled to this relief because of how the association handles liens,
and those cases you reference. Most judges are amazed to see a CR 55(b)
brief in the first place and don't argue much with your proof. Some might. 

          So, if the association has governing documents that specify
following the mortgage statute (or any other lien statute which refers to
the mortgage statute), or has a policy of handling lien foreclosures this
way, and there is a default, then you should be able to get where you want
to go.

          We do it all the time, but the governing documents specify
foreclosing in the manner of mortgages. Might be worth amending the Bylaws
to say so.

Rob

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
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From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Thursday, September 07, 2017 11:46 AM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] HOA Execution of Judgment Lien and Redemption Rights

Research is not revealing a clear answer.  An HOA sued many homeowners for
delinquent dues.  HOA received a Default Judgment against one of the
homeowners but let the Judgment sit for about 5 years.  I am now helping the
HOA with execution on the Judgment.  No one (including homeowner) has lived
in the residence for multiple years, thus abandonment?  OK, so I am trying
to figure out the redemption rights.  RCW 6.23.020 says “(1) Unless
redemption rights have been precluded pursuant to RCW 61.12.093 et seq., the
judgment debtor or any redemptioner may redeem the property from the
purchaser at any time 
..” So, the basic issue is whether RCW 61.12.093
applies to this situation.  

RCW 61.12.093 says, in full:  “In actions to foreclose mortgages on real
property improved by structure or structures, if the court finds that the
mortgagor or his or her successor in interest has abandoned said property
for six months or more, the purchaser at the sheriff's sale shall take title
in and to such property free from all redemption rights as provided for in
RCW 6.23.010 et seq. upon confirmation of the sheriff's sale by the court.
Lack of occupancy by, or by authority of, the mortgagor or his or her
successor in interest for a continuous period of six months or more prior to
the date of the decree of foreclosure, coupled with failure to make payment
upon the mortgage obligation within the said six month period, will be prima
facie evidence of abandonment.”

Ok, so this RCW uses language like “to foreclose mortgages” and “mortgagor”
and “mortgage obligation”.  While it would appear that the abandonment
concept of RCW 61.12.093 only applies to a mortgage situation, there are
several cases (like Performance Construction, LLC v. Glenn, 380 P.3d 618,
195 Wn.App. 406 (Wash.App. Div. 1 2016) that involve judgment
creditors/debtors and the court mentions in passing, but doesn’t apply, RCW
61.12.093.  What does the collective mind think (and no, my HOA client does
not want to be the test case)?  Can a HOA in executing on a judgment lien
use RCW 61.12.093 to eliminate all redemption rights?

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