September 11, 2018
By: Wendy Lee
In a recent published decision, the Washington State Court of Appeals assisted creditors by more clearly defining acceleration in the context of a foreclosure of residential property in a nonjudicial case [Merceri v. The Bank of New York Mellon, No. 76706-2-1, 2018 Wash. App. LEXIS 1923 (Aug. 13, 2018)].
Background
The trial court had granted summary judgment to a borrower who was seeking to quiet title to her real property by claiming that the creditor had exceeded the six-year statute of limitations (SOL) on enforcement of her deed of trust. The borrower’s argument was that the notice of default and intent to accelerate, apparently issued to comply with the uniform instrument requirements to deliver a 30-day notice, and using the language “if the default is not cured … the mortgage payments will be accelerated with the full amount … becoming due and payable …” had triggered acceleration on March 18, 2010 (the date by which the 30-day notice of default was expired).
Following that notice, the loan had been transferred and the subsequent beneficiary and servicer issued several monthly payment statements (indicating the amount to reinstate the loan), and the successor nonjudicial foreclosure trustee had issued a notice of trustee’s sale on June 1, 2016. The borrower sued shortly after the notice of trustee’s sale, contending that more than six years had elapsed from the March 18, 2010 date and the date of the notice of trustee’s sale. The notice of trustee’s sale indicates the full amount required to pay off the debt.
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