March 01, 2018

You Can’t Lock the Doors! Are Lenders Powerless to Stop Zombie Properties in Lien Theory States? Part 2

Timothy M. Harris

Reprinted with permission from Real Property, Trust and Estate Law Journal, Fall 2017 (52:2) at 203–211. ©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 second of several excerpts from this article that will appear in GPSolo eReport.

IV. The Jordan v. Nationstar Court’s Analysis

The majority opinion in Jordan v. Nationstar Mortgage, LLC 53 answered the first certified question from the federal court in the negative.54 According to the court, the language in the deed of trust allowing a lender to enter a property after default conflicts with Washington’s lien theory of mortgages, as reflected in RCW section 7.28.230(1).55 That section states in pertinent part that “[a] mortgage of any interest in real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property, without a foreclosure and sale according to law.”56

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