April 01, 2018

You Can’t Lock the Doors! Are Lenders Powerless to Stop Zombie Properties in Lien Theory States? Part 3

Timothy M. Harris

Reprinted with permission from Real Property, Trust and Estate Law Journal, Fall 2017 (52:2) at 211-223. ©2017 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

This is the third of several excerpts from this article that will appear in GPSolo eReport.

 

V. Where the Court’s Analysis Is Flawed

Unfortunately, the Jordan court’s analysis is flawed both legally and from a policy perspective. The entry provision in Ms. Jordan’s deed of trust (and found in thousands of others like it) is not inconsistent with Washington’s lien theory of mortgages and RCW section 7.28.230(1). The court’s holding that Nationstar was in possession of the property is a questionable conclusion, unsupported by the cases and alternate definitions of possession. The dissent, written by Justice Stephens and joined by Justice McCloud and Chief Justice Madsen, disagreed with the court’s analysis and would have held that “the first certified question should have been answered in the affirmative.”111

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