[WSBARP] Question about when judgments become liens against the homestead
Kary Krismer
Krismer at comcast.net
Sat Oct 1 05:40:20 PDT 2022
Thank you for the update.
That title company response is what I was referring to in my first
response. Basically title companies are not willing to take the word of
the seller that the property was homestead property the entire time.
Somewhat inconsistent with how lax they seem to be regarding identity
affidavits on judgments. In any case, there's probably even more reason
to take that position when the homestead claimant is deceased and not
able to testify. Ignoring the trust issues, they could be left in
litigation without a witness on their side.
I'll again suggest looking into whether the probate court has any powers
to determine secured claims. In bankruptcy court the property would be
sold free and clear of the liens and then the right to proceeds
determined by court order. I sort of doubt the probate court has the
power to do that, but it probably does have the power to litigate the
issue of being secured with the judgment creditors. The difference
might be that you might not be able to sell the property until after the
court rules, and in bankruptcy court the sale free and clear can be done
by motion, where probate might require a complaint. Again, bankruptcy
was my practice area, not probate.
Kary L. Krismer
206 723-2148
On 9/30/2022 11:06 AM, Chandra Lewnau wrote:
> There are no surviving minor children or a spouse so the award in lieu
> of homestead/basic award protections do not apply.
>
> The argument that it is no longer a homestead would make sense but the
> creditor claim statutes RCW 11.40.130 states that "if a judgment was
> entered against the decedent during the decedent's lifetime, an
> execution may not issue on the judgment after the death of the
> decedent. *The judgment must be presented in the manner provided in
> RCW **11.40.070*
> <http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.070>*, but if the
> judgment is a lien on any property of the decedent, the property may
> be sold for the satisfaction of the judgment and the officer making
> the sale shall account to the personal representative for any surplus."*
>
> FYI, the not completely unexpected response from the title company to
> my argument that several of the judgments were not perfected liens and
> therefore had to submit timely claims was this:
>
> /_Underwriter response_/:
>
> “Our stance is that a filed judgment attaches to all assets without
> the necessity of being recorded.
>
> Since all the judgments were perfected they are liens until they are
> paid or expire by time being ten years.”
>
>
> On Fri, Sep 30, 2022 at 5:52 AM Kary Krismer <Krismer at comcast.net> wrote:
>
> That's an interesting thought (death terminates the homestead).
> My practice area was bankruptcy, and there the status of the date
> of filing bankruptcy was important. Not sure if probate courts
> follow similar rules, or even if they determine secured and
> unsecured claims.
>
> But there is the award in lieu of homestead, or whatever it is
> called now. I would question how that factors in against judgment
> creditors, recorded or otherwise. If the homestead does terminate
> on death maybe something remains in the form of the beneficiary
> homestead rights. Something for the OP to look at.
>
> Kary L. Krismer
> 206 723-2148
>
> On 9/29/2022 10:00 AM, Mark Anderson wrote:
>>
>> So, here’s a thought. PR is trying to sell the _former_
>> homestead. Now dead, the owner does not use the property as a
>> residence. The homestead no longer exists.
>>
>> In my current view (subject to counterarguments), the judgment
>> liens attach to the whole of the property upon the owner’s death,
>> so long as the requirements of RCW 4.56.190-200 have been met.
>>
>> *Mark B. Anderson
>> *ANDERSON LAW FIRM PLLC
>> 821 Dock St Ste 209 PMB 4-12
>> Tacoma, Washington 98402
>> +1 253-327-1750
>> +1 253-327-1751 (fax)
>> marka at mbaesq.com
>> www.mbaesq.com <http://www.mbaesq.com/>
>>
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>> *From:* wsbarp-bounces at lists.wsbarppt.com
>> <wsbarp-bounces at lists.wsbarppt.com>
>> <mailto:wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Chandra
>> Lewnau
>> *Sent:* 09/28/2022 12:40 PM
>> *To:* WSBA Real Property Discussion List
>> <wsbarp at lists.wsbarppt.com> <mailto:wsbarp at lists.wsbarppt.com>
>> *Subject:* [WSBARP] Question about when judgments become liens
>> against the homestead
>>
>> I am dealing with my first probate estate where the decedent had
>> outstanding judgments. The PR is trying to sell the former
>> homestead and the title company has found 4 judgments they say
>> must be paid before the sale. The sale price exceeds the
>> homestead exemption for the county and all the judgments together
>> are less than that excess value. I'm trying to confirm the PR
>> actually must pay off these debts based on the current status of
>> the judgments, whether creditor claims are filed or not.
>>
>> Are all of the following judgments liens against the homestead
>> property? I am looking at RCW 6.13.090 (not sure if RCW 4.56.200
>> applies to the homestead).
>>
>> One judgment was entered in the superior court of the county
>> where the real estate is located. I think RCW 6.13.090 requires
>> this to be filed with the county recording officer so I don't
>> think it is a lien on the homestead.
>>
>> One judgment was entered in the District Court of the county
>> where the real property is located and that judgment was then
>> filed with the county recording officer of the same county. I
>> think RCW 6.13.090 says this one is a lien on the homestead.
>>
>> Two judgments were entered in the District Court of the county
>> where the real property is located. I think RCW 4.56.200(4) and
>> (5) require them to be filed in the superior court and RCW
>> 6.13.090 requires them to be filed with the county, so I don't
>> think a lien has commenced.
>>
>> As a follow up question, if there is a lien, does the creditor
>> have to file a creditor claim? I think the answer is no, but RCW
>> 11.40.130 is not completely clear.
>>
>> --
>>
>> --
>>
>> *Chandra M. Lewnau**|* Attorney
>>
>> WALL GROUP LAW
>>
>> 51 W. Dayton St., Suite 305 *|* Edmonds, WA 98020
>>
>> *Tel* 425.670.1560 *|**Fax* 425.361.1512
>> *|*http://www.wallgrouplaw.com <http://www.wallgrouplaw.com/>
>>
>> THIS ACCOUNT IS FOR MAILING LIST PURPOSES ONLY.
>>
>> For faster response email chandra at wallgrouplaw.com
>> <http://wallgrouplaw.com>
>>
>>
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