[WSBARP] PN and DOT enforcable against the borrower after years of nonpayment?

[Eric Nelsen]

Depends on the payment terms of the note. The 6-year S/L runs on each installment payment, so if the payment schedule is still ongoing, the S/L hasn’t passed yet as to payments due within the last 6 years. See e.g. Cedar West Owners Assn. v. Nationstar Mortgage, 7 Wn.App.2d 473, 434 P.3d 554 (Div. 1 2019). Maybe the principal amount owing might be shaved down by the S/L passing on previous installment payments, but mathematically those are the payments that are mostly interest so I don’t know how much that will reduce the client’s debt. I also haven’t seen a case that actually attempts to do the calculations to figure out the effect of having S/L run on some installment payments.

I don’t think adverse possession works since the Trustee of the DOT has no possessory interest, by definition. There’s no way for “open and notorious” possession of the property to be, legally speaking, “hostile” or adverse to the Trustee.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Ryan P. Coon
Sent: Friday, April 16, 2021 3:27 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] PN and DOT enforcable against the borrower after years of nonpayment?


Dear Listies,

Client purchased a vacant parcel in 2003, seller financed via Promissory Note and Deed of Trust. Client stopped making payments on the Note during the 2008 housing crash and hasn't made any payments since. No attempts have been made to collect on the balance owed and no foreclosure attempted. Clients also haven't paid property taxes since sometime in 2008 or 2009. Someone has paid property taxes to prevent foreclosure, Client suspects the seller/lender.

Client now wonders whether, after 12-13 years of nonpayment, they can clear title in their name without paying the balance on the Note.

Any thoughts on what Clients options are? Can they claim Statute of Limitations? Adverse possession?
--


Very Truly Yours,
Ryan P. Coon
Law Office of Cole & Gilday, P.C.

10101 - 270th St. NW
Stanwood, WA 98292
(360) 629-2900 (Telephone)
(360) 629-0220 (Fax)

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