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Court of Appeals permits foreclosures, saying they were not time-barred

Posted Thursday, November 3, 2016 by Pivotal Law Group

ForeclosureRecently, the Washington State Court of Appeals decided two cases related to home foreclosures. In both, the Court upheld the lender’s right to foreclose in the face of challenges based upon Statute of Limitations – the argument that the legal time limit for initiating foreclosure had passed.

When a person borrows money to buy a home or other real property, the loan generally involves two main elements:

(1) the buyer’s written promise to pay the lender back (a.k.a. the “Promissory Note”), and

(2) the buyer’s agreement that the lender can foreclose on the property if the buyer fails to pay back the loan (a.k.a. the “Mortgage”).

Mortgages are subject to a six-year Statute of Limitations, meaning foreclosure must be started within six years. The question is: six years from when? To put this issue into context, it helps to understand the difference between two types of promissory notes – demand notes and installment notes.

A demand note is payable immediately on the date of its execution, i.e. when it is signed. It is essentially saying “I owe you money right now.” See, e.g., Walcker v. Benson and McLaughlin, PS, 79 Wn. App. 739, 904 P.2d 1176 (1995).

By contrast, an installment note is payable in multiple payments over a designated period. It is essentially saying “I owe you money in the future at certain designated times.” For installment notes, the statute of limitations runs against each installment from the time it becomes due. See, e.g., Herzog v. Herzog, 23 Wn.2d 382, 387-88, 161 P.2d 142 (1945).

Which brings us to the two recent Court of Appeals cases:

  • Edmundson v. Bank of America, N.A., No. 74016-4-I (July 11, 2016)

In July 2007, the Edmundsons obtained a loan to purchase real property. That loan was documented by a Promissory Note, payable in monthly installments, and secured by a Deed of Trust. (Note: For purposes of the issues addressed in this article, a Deed of Trust is similar to a Mortgage.) The last payment was due on August 1, 2037, the maturity date of the note.

The Edmundsons defaulted on the note when they stopped making payments in November 2008. They filed for bankruptcy in June 2009, and on December 31, 2013, the bankruptcy court discharged their debts, including the Promissory Note.

Based on the Edmundsons’ failure to make their payments, on October 23, 2014, the lender issued a Notice of Default – the method for initiating foreclosure on a Deed of Trust. The Edmundsons filed suit to stop the foreclosure, and the trial court found in favor of the Edmundsons.

The Court of Appeals reversed. The Edmundsons’ Promissory Note was an installment note – requiring monthly payments for a specified period of time. As a result, every missed payment by the Edmundsons, until the date when the Promissory Note was discharged in bankruptcy (December 31, 2013), started its own six-year Statute of Limitations. The lender initiated foreclosure on October 23, 2014, less than a year later, and well within the six-year time period.

With regard to the bankruptcy issue, the Court also found that even though the Edmundsons’ Promissory Note was discharged in bankruptcy, the ability of the lender to foreclose on the property was not. In doing so, the Court followed United States Supreme Court law of Johnson v. Home State Bank, 501 U.S. 78, 82-83, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (1991):

A defaulting debtor can protect himself from personal liability by obtaining a discharge [through bankruptcy]. However, such a discharge extinguishes only “the personal liability of the debtor.”… [A] creditor’s right to foreclose on the mortgage survives or passes through the bankruptcy.

This means the lender cannot continue to pursue the debtor for money owed on the Promissory Note, but can still foreclose on the property, as long as the underlying lien was neither avoided nor eliminated in bankruptcy.

  • 4518 S. 256th, LLC v. Karen L. Gibbon, P.S., No. 73834-8-I (August 15, 2016)

The case of 4518 S. 256th, LLC involved similar issues, as well as another concept related to mortgages: acceleration. Installment notes can contain what’s called an “acceleration clause,” which gives the lender the right upon default to demand the immediate payment of all installments, including future ones. If a debt is accelerated, the debt is due immediately, and the Statute of Limitations runs from that due date.

To accelerate a note, “[s]ome affirmative action is required, some action by which the holder of the note makes known to the payors that he intends to declare the whole debt due.” Glassmaker v. Ricard, 23 Wn. App. 35, 37, 593 P.2d 179 (1979). “[M]ere default alone will not accelerate the note.” A.A.C. Corp. v. Reed, 72 Wn.2d 612, 165 440 P.2d 465 (1968). Acceleration “must be made in a clear and unequivocal manner which effectively apprises the maker that the holder has exercised his right to accelerate the payment date.” Glassmaker, 23 Wn. App. at 38.

In 4518 S. 256th, LLC, the Property at issue was subject to a Promissory Note and a Deed of Trust, and the borrowers defaulted. In 2008, the lender initiated foreclosure. As required by Washington statute, the lender also issued a Notice of Trustee’s Sale, which stated that if default was not cured at least 11 days before the sale date, the only way to stop the sale was by paying the entire unpaid balance on the note.

For unspecified reasons, the sale never occurred. Over six years later, in 2014/15, the lender again attempted to foreclose on the Property. The owner of the Property argued that by initiating foreclosure and issuing a Notice of Trustee’s Sale in 2008, the lender accelerated the loan and commenced the Statute of Limitations, making the 2014/15 foreclosure – and any future attempted foreclosure – time barred.

The Court of Appeals disagreed. The Court found that foreclosure and acceleration are two separate processes, and the lender had expressly pursued the former, not the latter. The Court further found that the Notice of Trustee’s Sale did not automatically accelerate the loan. That Notice simply contained language – required by Washington statute governing foreclosure – describing how to stop the foreclosure process. Nothing in either that language, or the foreclosure laws in general, require a lender to accelerate a loan in order to pursue foreclosure.

These decisions are noteworthy for all Mortgages and Deeds of Trust. Many home loans require monthly payments for as much as 30 years. So if a borrower is ever in default, the lender could wait a long time and still foreclose – potentially until just shy of six years after the final maturity date of the note. And the lender is not necessarily limited to one attempt at foreclosure, as long as that Statute of Limitations period has not run out and the borrower is still in default.

Photo credit: Sign of the Times - Foreclosure, used under the Creative Commons license.

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Crash avoidance features are constantly changing, expected to decrease collisions

Posted Wednesday, October 26, 2016 by Christopher L. Thayer

Brake LightEvery year, more crash avoidance features make their way into new vehicles. For instance, thirty years ago, the Reagan administration required new cars starting with 1986 models to have high-mounted “third brake lights,” intended to reduce the number of rear-end collisions. Today, new features include forward-collision warning and automated braking.

Whether the third brake light mandate worked as predicted is not entirely clear, given other factors affect the statistics – like the instance of drug-impaired or distracted driving.

Still, the consensus seems to be that the third-light mandate worked. As far back as 1995, an insurance institute study concluded that model year 1986 cars experienced 5 percent fewer rear-end collisions from 1986 through 1991 than would have been expected without the high-mounted lamp.

“Anything that makes you more visible is an improvement,” says Jennifer Stockburger, director of operations for Consumer Reports’ auto test center. “There’s no doubt that occupants are better protected than they were 30 years ago.”

Better vehicle designs and other safety technology have made cars safer than ever, with the pace of improvement very swift in recent years. Between 2009 and 2012, for example, the chances of dying in a car crash fell by a third, according to a 2015 study by the institute.

About two dozen auto makers have committed to making automatic emergency braking a standard feature by 2022 or sooner, with the goal of reducing the instance and severity of rear-end collisions even further.

Click here for a link to the full article, or see the link below:


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Washington Supreme Court confirms emotional distress damages for cutting down a tree are authorized, subject to trebling

Posted Friday, October 21, 2016 by Christopher L. Thayer

Cherry TreeIn Pendergrast v. Matichuk, the Washington Supreme Court revisited the Timber Trespass statute (which awards damages against a person who wrongfully cuts down a tree on another’s land. In 2006, Leslie Pendergrast and Robert Matichuk bought adjacent lots separated by a solid wooden fence. The fence enclosed a venerable cherry tree on Pendergrast’s lot. For several years, Pendergrast and Matichuk maintained their lots as if the fence was the boundary line between them. Unfortunately, the fence stood several feet from the true property line as indicated by the legal description in the deeds. The cherry tree stood on the disputed part of Pendergrast’s lot.

In 2008, Matichuk had the property surveyed and determined that the legal description of his lot extended several feet beyond the fence into the Pendergrast lot. Matichuk informed Pendergrast he had discovered the fence encroached on his land. He advised Pendergrast he intended to move the fence to the correct property line as indicated on his deed.

Matichuk tore down the fence, built a new one on the property line indicated by the deed, and had the cherry tree cut down. Litigation ensued. Pendergrast sued, seeking, among other things, to quiet title in the strip of land between the old fence line and the new one. In a preliminary ruling, the trial court found in favor of Pendergrast, confirming Pendergrast owned the dispute strip of land – including the cherry tree. She also sought damages for trespass and timber trespass, including treble damages under the timber trespass statute, RCW 64.12.030 (Washington’s “Timber Trespass” statute).

The matter proceeded to trial and the jury found in favor of Pendergrast, awarding her damages for economic and noneconomic damages (i.e., pain and suffering, emotional distress, etc.). In accordance with the Timber Trespass statute, the trial judge tripled the economic damage award, but not the non-economic damages.

The Washington Supreme Court noted the Timber Trespass statute provides:

Whenever any person shall cut down … any tree … on the land of another person … without lawful authority, in an action by the person … against the person committing the trespasses … any judgment for the plaintiff shall be for treble the amount of damages claimed or assessed.

The purpose of the timber trespass statute is well established: “to (1) punish a voluntary offender, (2) provide treble damages, and (3) discourage persons from carelessly or intentionally removing another’s merchantable shrubs or trees on the gamble that the enterprise will be profitable if actual damages only are incurred.” The timber trespass statute is silent on the types of damages subject to trebling. The question before the Washington Supreme Court was whether courts have the authority to treble non-economic damages (e.g., emotional distress) awarded under the Timber Trespass statute. The Washington State Supreme Court answered this in the affirmative, finding there was a basis to treble all damages awarded under the statute.

This case shows the perils of removing a tree on another’s property. Where a party can establish by a preponderance of evidence that the removal of the tree caused emotional distress, the jury may award damages, and these damages may be tripled if there is a violation of Washington’s Timber Trespass statute. In the Pendergrast case, that meant an award of over $200,000.

Photo credit: In the Cherry Tree, used under the Creative Commons license.

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$50M Settlement in Oso slide case

Posted Thursday, October 13, 2016 by Pivotal Law Group

OsoLast Sunday, just one day before the jury was set to convene in the Oso landslide lawsuit, the plaintiffs settled with Washington state for $50 million. The settlement includes almost $395,000 in attorney’s fees and costs for various sanction motions, but does not include penalties the court may impose against the state for destruction of emails involving the state’s experts. Judge Roger Rogoff, presiding over the case, must approve the settlement.

The lawsuit was filed by survivors and family members of the 43 people who died in the March 22, 2014, landslide that raced across the North Fork of the Stillaguamish and into the Steelhead Haven community.

The plaintiffs’ attorneys allege that a crib wall fence built on state property retained loose soils from earlier landslides and increased the ability of the leading edge of the massive 2014 landslide to move the way it did as it swept through the neighborhood.

Click here for a link to the full article or see the link below:


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State ordered to pay for destruction of emails in Oso case

Posted Wednesday, October 5, 2016 by Pivotal Law Group

OsoKing County Superior Court Judge Roger Rogoff announced yesterday he would sanction the state over the deletion of emails that should have been preserved during litigation over the 2014 Oso landslide.

Rogoff did not set a dollar figure on the amount of the sanctions, but said they would include costs that lawyers for slide victims incurred because of the deletions, along with a “significant” punitive amount.

The judge also said the jury in the case, which is scheduled for opening statements next Monday, will be allowed to infer that the experts deleted the emails because they would have hurt the state’s case.

That same day, Attorney General Bob Ferguson released a statement regarding Judge Rogoff’s ruling:

I respect today’s order from Judge Rogoff in the Oso litigation. I recognize and take responsibility for the errors of my office in conducting discovery in this important case.

Ferguson promised his office “continues to work diligently to rectify our mistakes” and “have already begun developing new internal training programs to ensure this problem does not occur again.”

It was also announced Mark Jobson, a Washington state special assistant attorney general who knew state expert witnesses were deleting the emails, had been let go by the Washington Attorney General’s Office.

Plaintiffs allege the state and a timber company should be held liable for the slide because construction of a sediment retention wall and logging made the hillside more dangerous, and they failed to warn residents of the danger. With regard to the emails, they argue the experts tailored heir filings to benefit the state’s case and deleted the emails to cover their tracks.

Click here for a link to the full article and here for a link to the Attorney General’s announcement, or see the links below:



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