[WSBARP] Deed of Trust Enforceability Issues
Mark McClure
mark at mcclurelawgroup.com
Wed Nov 6 11:08:59 PST 2024
Read it. Doesn’t appear to overrule Herzog:
*¶21 Applying the principles outlined above to this case, the six-year
statute of limitations on each individual missed installment payment began
to run on the due date of each missed payment. Thus, there are some
individual installment payments that may now be barred by the six-year
statute of limitations. But the final statute of limitations has not yet
begun to run on any of the notes or deeds of trust. That final statute of
limitation will not begin to run on any note or its corresponding deed of
trust until that note reaches maturity. **Wash. Fed., 195 Wash. App. at
663, 382 P.3d 20
<https://scholar.google.com/scholar_case?case=15542112841248524962&q=See+Merritt+v.+USAA+Federal+Savings+Bank&hl=en&as_sdt=4,48>*
* (citing **Hopper v. Hemphill, 19 Wash. App. 334, 335-36, 575 P.2d 746
(1978)
<https://scholar.google.com/scholar_case?case=6381401726308915942&q=See+Merritt+v.+USAA+Federal+Savings+Bank&hl=en&as_sdt=4,48>*
*; **Westar Funding, 157 Wash. App. at 784, 239 P.3d 1109
<https://scholar.google.com/scholar_case?case=12471014541614950616&q=See+Merritt+v.+USAA+Federal+Savings+Bank&hl=en&as_sdt=4,48>**;
31 WILLISTON & LORD, supra, § 79:17, at 338, § 79:18, at 347-50).*
*Mark C. McClure* *| *
*Managing Attorney *Law Office of Mark McClure, PS
*"Why Retire With Debt?"*1103 West Meeker Street, #101
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*From:* wsbarp-bounces at lists.wsbarppt.com [mailto:
wsbarp-bounces at lists.wsbarppt.com] *On Behalf Of *Randy Boyer
*Sent:* Wednesday, November 6, 2024 9:28 AM
*To:* Real Property Listserve
*Subject:* Re: [WSBARP] Deed of Trust Enforceability Issues
See Merritt v. USAA Federal Savings Bank
*Randy M. Boyer ______*
Attorney, WSBA# 8665
Law Office of Randy M. Boyer, Inc. P.S.
7017 196th St. S.W. Lynnwood, Washington 98036
( 425.712.3107| Fax 425.778.2274
mail to: randyedlynlaw at gmail.com
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On Nov 6, 2024, at 7:28 AM, Mark McClure <mark at mcclurelawgroup.com> wrote:
Hi Randy,
Wouldn’t only the portion due and owing within the 6 years prior to the
commencement of the case be the only thing that could be sued on, not the
entire balance? Is it still worth it in this case?
"[w]hen Statute of Limitations begins to run against an action to recover
upon contract payable in instal[l]ments" 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 instal[l]ment as it becomes due, for the part
then payable."
See Herzog v. Herzog, 23 Wn.2d 382, 388, 161 P.2d 142 (1945).
*Mark C. McClure*
*Managing Attorney *Law Office of Mark McClure, PS
*"Why Retire With Debt?"*1103 West Meeker Street, #101
Kent, WA 98032
Office: 253.631.6484
Email: Mark at McClureLawGroup.com
*Notice of Unavailability:* *November 27, 2024 – December 01, 2024*
*CONFIDENTIALITY NOTICE:* This email contains legal stuff. If you are not
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*From:* wsbarp-bounces at lists.wsbarppt.com [mailto:
wsbarp-bounces at lists.wsbarppt.com] *On Behalf Of *Mark Anderson
*Sent:* Tuesday, November 5, 2024 5:08 PM
*To:* WSBA Real Property Listserv
*Subject:* Re: [WSBARP] Deed of Trust Enforceability Issues
Thanks for weighing in, Randy. I wanted to see what was enforceable and
what was not.
*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
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*From:* wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com
> *On Behalf Of *Randy Boyer
*Sent:* Tuesday, November 5, 2024 1:23 PM
*To:* Real Property Listserve <wsbarp at lists.wsbarppt.com>
*Subject:* Re: [WSBARP] Deed of Trust Enforceability Issues
Mark,
Case law holds that the SOL continues as long as payments are due. The
final payment was due in 2019. So Seller has 6 years after the date that
payment was due. A Judicial foreclosure should be initiated right away.
*Randy M. Boyer ______*
Attorney, WSBA# 8665
Law Office of Randy M. Boyer, Inc. P.S.
7017 196th St. S.W. Lynnwood, Washington 98036
( 425.712.3107| Fax 425.778.2274
mail to: randyedlynlaw at gmail.com
This email is covered by the Electronic Communications Privacy Act, 18
U.S.C. Sections 2510-2521, and is legally privileged. This email was sent
by an attorney or his agent, is intended only for the addressee’s use, and
may contain confidential and privileged information. If you are not the
intended recipient, you are hereby notified that any retention,
dissemination, reproduction or other use of the information contained in
this e-mail is strictly prohibited. If you have received this email in
error, please delete it and immediately notify the sender by reply
email. Thank
you for your cooperation.
On Nov 5, 2024, at 1:08 PM, Mark Anderson <marka at mbaesq.com> wrote:
Dear All:
I could use your help with a scenario I have not seen before.
August 2012 – Owner purchased property from Seller. Owner gave Seller a
Note secured by a DOT on the property. Note was payable over 7 years.
August 2014 – Owner stopped making payments. Seller took no action to
enforce the Note or DOT. (I know the six-year statute of limitation began
to run at this point for enforcement of the principal obligation.)
September 2019 – Seller paid (advanced) property taxes on behalf of Owner
to avoid a tax sale. Owner continued to not make payments. Seller again
took no action to enforce the Note or DOT.
October 2024 – property is up again for a tax sale.
(Note: I have no idea why the Seller has never taken any action to enforce
the note or DOT.)
*Questions*:
1. Did the September 2019 payment of taxes affect the statute of
limitations for enforcing the DOT? If so, how?
2. Does the DOT still secure repayment of the additional amounts
advanced under the Note, even if it (I think likely) does not secure
repayment of the original amounts due and owing under the Note?
3. Independent of the Note and DOT, does the payment of property taxes
on behalf of Owner give Seller any right to file a lien against the
property in advance of the tax sale?
Thanks in advance for any answers or other insights you can provide.
*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
*CONFIDENTIALITY NOTICE*This transmission is confidential and is intended
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