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The Pivotal Law Blog

Equifax announces customer information including Social Security Numbers have been stolen in a data breach

Posted Thursday, September 7, 2017 by Christopher L. Thayer

View CNN’s article here:

http://money.cnn.com/2017/09/07/technology/business/equifax-data-breach/index.html

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Case law update: express easement vs. prescriptive easement

Posted Wednesday, September 6, 2017 by Christopher L. Thayer

In Schoenfelder, et al v. Larson (No. 48885-0-II), the Court of Appeals Division II recently addressed a situation involving several neighbors and a private roadway. A group of neighbors used a private road for access to their properties. Although the neighbors all purchased their lots at different times, the evidence presented demonstrated that the private road had been in use since at least the 1960s. The Larsons purchased their lot in 2015.

The road runs through the Larsons’ property before reaching the Neighbors’ properties. The road is “approximately 10 feet wide, with curvy turns and in excess of 700 feet long.” It begins at Kopachuck Drive and runs west, cutting through two parcels of the Larsons’ property. For years, many vehicles travelled the road, including vehicles driven by family members, guests, delivery and service persons, and emergency service vehicles.

The neighbors’ property are benefited by and the Larsons’ property burdened by an express easement agreement, which was recorded in 1996. The easement grants ingress and egress over and across the road from Kopachuck Drive to the benefitted properties. It grants “non-exclusive surface easement for ingress and egress on five (5) feet on each side of the center line across the existing black topped road” that crosses the parties’ respective properties. The road is not wide enough for two vehicles to pass and therefore the neighbors often use certain “turn out” areas to make way for oncoming traffic – these turnouts are all located on the Larsons’ property and are all beyond the scope of the existing express easement (10 feet wide).

After a 4-day bench trial, the trial court ruled the neighbors had a prescriptive easement over the areas burdened by the “turn outs” and also blocked the Larson’s from constructing a fence within 2.5 feet of the recorded express easement location. This was in recognition that fire trucks and other commercial vehicles could barely fit on the 10 foot wide express easement.

Prescriptive easement. The Court of Appeals needed to address whether the express easement had been modified by the parties’ conduct, creating an additional “prescriptive” easement.

To establish a prescriptive easement, the person claiming the easement must use another person’s land for a period of 10 years and show that (1) he or she used the land in an ‘open’ and ‘notorious’ manner, (2) the use was ‘continuous’ or ‘uninterrupted,’ (3) the use occurred over ‘a uniform route,’ (4) the use was ‘adverse’ to the landowner, and (5) the use occurred ‘with the knowledge of such owner at a time when he was able in law to assert and enforce his rights.’

Gamboa v. Clark, 183 Wn.2d 38, 43, 348 P.3d 1214 (2015).

‘Adverse’ use generally means that the land was used without the landowner’s permission. “For a claimant to show that land use is ‘adverse and hostile to the rights of the owner’ in this context, the claimant must put forth evidence that he or she interfered with the owner’s use of the land in some manner.” Gamboa, 183 Wn.2d at 52. If a use is permissive, then no prescriptive easement will be found. What is known as “neighborly accommodation” often defeats a prescriptive easement claim – where the evidence suggests use of another’s property was permissive by implication as a gesture of good faith to a neighbor. Larsons argued permissive use in this case, but the Court of Appeals found the use of the turnouts was “adverse” based in part on the fact that prior owners of the Larson property had place rocks along the express easement (which blocked the turn outs) and the neighbors had removed these rocks (to allow continued access to the turn outs).

Whether or not a property owner has acquired property rights, including easement rights, by usage over time (prescriptive easements or adverse possession), is frequently a very fact-based inquiry. Schoenfelder is instructive in that it shows the length to which a Court will go to find “adverse” use, even in the face of claims the use was permissive and a neighborly accommodation. This is an “unpublished” case, meaning it has no precedential value.

If you have questions relating to an easement or property boundary line dispute, please contact managing partner Chris Thayer at (206) 805-1494 or CThayer@PivotalLawGroup.com.
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Washington Supreme Court Sends Strong Message Regarding Consumers and Meritless Debt Collection

Posted Wednesday, August 30, 2017 by McKean J. Evans

In its recent published opinion in Elliott Bay Adjustment Co., Inc. v. Caren Dacumos, the Washington Supreme Court confirmed the right of a debtor to collect attorneys’ fees in defending a meritless debt collection action in small claims court (i.e., in a lawsuit seeking less than ten thousand dollars). The court issued a strongly-worded opinion criticizing both the conduct of the debt collector in bringing the bogus lawsuit and the lower courts in denying the debtor’s request for attorney’s fees.

Elliott Bay sued Dacumos in small claims court over a $482.84 doctor’s bill that Dacumos had already paid. When Dacumos received the lawsuit, she immediately called Elliott Bay and told them she had already paid the bill in full. Elliott Bay told her she needed to make additional payments or Elliott Bay would obtain a judgment against her in court, garnish her wages, and pursue her for interest and attorney’s fees.

Dacumos hired a lawyer to defend the lawsuit. In the course of litigation, Elliott Bay insisted there were no factual disputes over whether Dacumos owed the doctor’s bill. Elliott Bay threatened to seek “significant” attorney’s fees from Dacumos.

After Dacumos provided the court bank statements showing she had paid the doctor’s bill, Elliott Bay acknowledged that the doctor’s office had mistakenly credited Dacumos’ payment to another patient’s account. Elliott Bay asked the court to grant a voluntary dismissal of its lawsuit against Dacumos “without prejudice.” “Without prejudice” means, in plain language, that it would be as if Elliott Bay had never sued Dacumos and Elliott Bay would be free to bring the same lawsuit again. Dacumos asked the court to instead dismiss the lawsuit with prejudice, meaning Elliott Bay could not sue Dacumos again on the debt. The court agreed with Dacumos and dismissed the case with prejudice, but refused to award Dacumos attorney’s fees.

The Washington Supreme Court reversed and ordered the lower court to grant Dacumos’ request for attorneys’ fees. The court pointed out that Washington law makes an award of attorney’s fees mandatory in cases seeking less than ten thousand dollars where one party is the “prevailing party.” Disagreeing with the lower courts, the Supreme Court concluded that Dacumos was the “prevailing party” because the lower court’s dismissal with prejudice established that Elliott Bay would never recover anything from Dacumos on the disputed doctor’s bill.

Beyond that fairly straightforward ruling, the Supreme Court sent a message to Washington’s lower courts that consumers who have to hire lawyers to defend bogus debt collection cases should recover their attorney’s fees from the debt collector. The Supreme Court criticized the lower court for “fail[ing] to appreciate that litigants have difficulty in obtaining counsel to assist in defending against collection activity when the alleged debt is small.” The court reiterated its statement in a prior case that attorney’s fee awards are important because defending debt collection cases over small amounts of money is “undesirable work to the great majority of attorneys” and many law firms would not allow a client like Dacumos through the office front door or advise her it was not economical to hire a lawyer to fight the case. The court also noted that “large corporate defendants can be uncooperative in discovery, leading to an increase in effort expended by the debtor’s attorney.”

If you are concerned about wrongful debt collection, contact Pivotal Law Group today for a free consultation.

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WASHINGTON COURT OF APPEALS HOLDS GROWING OR FELLING TIMBER DOES NOT CONSTITUTE ‘FARMING’

Posted Wednesday, August 23, 2017 by Christopher L. Thayer

Alternative TextIn its recent published opinion in Schroeder v. Haberthur, the Washington Court of Appeals, Division Three, held that growing and felling timber is not “farming” under the Deed of Trust Act (“DTA”), construing the DTA using definitions found in the Uniform Commercial Code (“UCC”).

The lawsuit turned on whether Excelsior Mortgage Equity Fund (“Excelsior”) could conduct a nonjudicial foreclosure on 200 acres of Shroeder’s land. Schroeder took out a loan from Excelsior in 2007 and secured the loan by a deed of trust on his 200 acre parcel. Schroeder described the parcel as 75 percent “Ag and timberland” and 25 percent scrapyard. Schroeder operated a logging business on the land in addition to a scrap metal business.

After Schroeder defaulted on the loan, Excelsior sought a nonjudicial foreclosure on the parcel. At a lengthy nonjury trial, Schroeder argued that timber is a “crop” under the DTA, precluding a nonjudicial foreclosure under the DTA, which prohibits nonjudicial foreclosure of agricultural land.

The Court of Appeals held that timber is not a “crop” and thus Schroeder’s use of the parcel for timber and logging purposes did not render the parcel agricultural. Since the DTA does not define “crops,” the Court of Appeals held that the UCC definition applied. The court noted that the legislature likely expected that the UCC would apply to the DTA, and that UCC definitions often applied in other secured transaction settings. Thus, the court concluded that Schroeder’s use of the parcel was not agricultural and Excelsior was entitled to conduct a nonjudicial foreclosure on the parcel.

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If you were offered a free cruise over the phone, you may be due up to $900

Posted Thursday, August 17, 2017 by Christopher L. Thayer

If you received a robocall offering you a free cruise from 2009 to 2014, you may be entitled to a settlement up to $900.

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

http://komonews.com/news/nation-world/if-you-were-offered-a-free-cruise-over-the-phone-you-could-be-due-up-to-900

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