In BAC Home Loans Servicing v. Fulbright, the Court addressed Bank of America’s attempt to protect its security interest in a foreclosed condominium against the claims of a purchaser at a foreclosure sale.

In 2006, the Tanglewood at Klahanie condominium declaration was recorded. Jeanne Lewis purchased a unit in 2007 and secured the loan with a deed of trust. In 2008, Ms. Lewis failed to pay the condominium assessments.

The association started foreclosure proceedings in 2009. Bank of America was a named defendant. The Bank did not respond. A default was entered in June 2009 and a foreclosure decree issued.

Michael Fulbright purchased the condominium for a bit over $14,000 in May 2010. This amount covered the unpaid assessments. The sale was confirmed in June 2010.

Nearly a year later (but within the redemption period) the Bank alerted Mr. Fulbright that it intended to redeem the property by paying him the amount due, plus costs and accrued interest. Mr. Fulbright refused and the Bank sought an injunction to force the matter.

The Court rejected the Bank’s attempt at redemption. Relying on the language in RCW 64.34.364(1), the Court concluded that the association’s lien commenced when the assessment came due. The Bank’s argument that the lien dated from the date the declaration was recorded was expressly rejected.

The recording of the declaration gave the bank notice that a future assessment lien might arise. The Bank was provided with notice when the foreclosure proceedings commenced. “This was the bank’s opportunity to step in and pay off the delinquent assessments in order to avoid having its own lien eliminated. The bank missed this opportunity.”

Indeed, the bank did miss the opportunity… and Mr. Fulbright seized it!

The symposium will include several prominent guest speakers addressing the issues that arise when views and trees come into conflict.

Topics will include the methodology behind valuing trees and views, government view and tree protection policies and dealing with conflicts between them.

There will be a discussion on view covenants and ordinances.

For more information, and to sign up, you can contact the Urban Forest Symposium web site.

I have addressed the elements in a previous post. The purpose of this post is to alert readers to a recent Washington Supreme Court case that addressed an adverse claim of public property.

The general rule is that public property cannot be acquired by adverse possession. RCW 4.16.160.

This question recently wound its way through the court system: what if a governmental entity acquires property that had previously been acquired by adverse possession? Can the governmental entity use the statutory defense to defeat someone’s adverse possession claim to the land?

The Supreme Court of Washington answered no.

Where a party has perfected an adverse possession claim prior to the governmental entity’s acquisition of the property, the cause of action as to ownership is not barred. Gorman v City of Woodinville, 175 Wn.2d 68, 283 P.3d (2012).

The rule follows from the reasoning that title acquired by adverse possession is inchoate title. It automatically vests in the possessor (and is passed to the possessor’s successors!) upon the passage of a ten year period of open, notorious, exclusive, hostile, actual and uninterrupted use. The possessor is not obligated to due to perfect his interest: the quiet title action merely confirms that title to land has passed to the adverse possessor.

Before walking away from an adverse possession claim to public land, it is important to identify the date the possession started and the date the public acquired title. Is there a chance that the possession ripened into ownership before the transfer to the public entity?

Recently, a landowner with property adjacent to the state penitentiary in Walla Walla, claimed that the state’s operation of an on-site firing range made their property unmarketable. They sought $3.7 million in compensation.

The Court set out the elements of inverse condemnation. They are: (1) a taking, (2) of private property; (3) for public use; (4) without just compensation; (5) by a governmental entity without a formal eminent domain proceeding.

Surely the operation of a live firing range would impact a neighboring landowner’s property?

Well, while the court expressed that that might indeed be true, in this case the landowner’s claim was denied.

You see, the live firing range had been in operation since 1886. The landowner, in other words, had purchased the land while the penitentiary and firing range were already in existence. The landowner’s gripe was most likely triggered when the property was rezoned from agricultural to residential. Realizing that they would not benefit from this rezone because of the presence of the firing range/penitentiary, they sought compensation.

There are hints in the case that the landowner might have had a claim had the intensity of the government’s use of the firing range had increased during their ownership, but that was not established.

Tom v. State, 164 Wn.App. 609 (2011)

Disputes about insurance coverage arise all the time. After all, someone will need to pay for the repair after an event that causes significant damage. Often, we look to insurance companies to pay. They often don’t want to.

Recently, the Court of Appeals, considered whether a commercial tenant is an “implied co-insured” under its landlord’s fire insurance policy. The case is Community Ass’n Underwriters of America Inc, v. Kalles, 164 Wn.App. 30 (2011).

The Harbour Commons condominium owners’ association had purchased a fire insurance policy. The Elkins owned a unit in the condominium which they leased to the Kalles. A fire partially destroyed the unit.

The Insurance Company paid to repair the damage and then sued the Kalles. The Insurance Company claimed that the Kalles had negligently used a space heater which caused the fire.

Kalles moved for summary judgment and asserted that they were “implied co-insureds” under the policy and that Washington law prohibits an insurer from suing its insured on a subrogation claim. The Court agreed with the Kalles and specifically held that, absent a clearly expressed agreement to the contrary, the law presumes a tenant to be a co-insured on the landlord’s fire insurance policy.

The tenant is an “implied” insured because they are not specifically named in the policy.

Does this case excuse a tenant from obtaining their own insurance? Absolutely not. There is nothing in this case that suggests that a landlord’s insurance policy would (or should) cover a tenant’s personal property.

Why mediate?

Mediation is voluntary and can often encompass more issues than those that are involved in the specific dispute. Creative mediators will encourage the parties to think “outside the box.” It is even possible that a relationship can be repaired by finding common ground.

Mediation (or some other form of dispute resolution) is required in most civil lawsuits in King County. It should be considered in all cases.

If you have questions about mediation, if you are looking for an attorney to help you or represent you at a mediation or if you are looking for a mediator, I look forward to your calls.

Attorneys have the right to require parties and witnesses to answer questions during the discovery process. It can be a nerve wracking time. Most lawsuits settle because of what happens during the depositions.

The person who is deposed is called the deponent. At your deposition, you are able to have your attorney present. Normally, the other lawyer is also present as is the opposing party. A court reporter will take notes and make sure that the deposition is properly recorded. The deposition can be recorded by tape, typed up with a special transcriber machine, and/or placed on videotape. You will be placed under oath and the attorney for the other side can ask you questions about your case. Your attorney will be able to object to the questions asked, if appropriate. After the deposition is completed, either side can ask that it be typed up (transcribed.) Lawyers can use the transcript from the deposition at trial or in support of motions filed in your case.

Preparing for your deposition

It is important that you are prepared for your deposition. An unprepared person may provide responses which are inconsistent with those previously given on other occasions, and may allow the other attorney to argue that you were not being truthful at your deposition or at trial.

Discuss your concerns with your lawyer before the deposition so that your questions are answered. It is important to:

• Review all other statements that you have made in the past about your case, especially affidavits and other documents which have been filed in court.
• Review your notes, logs, calendars and other paperwork so that you can easily recall the important details such as dates, times and events which previously occurred.
• Discuss subjects which are sensitive that you may not wish to disclose so that both you and your attorney are aware of these matters. Attorneys who learn things for the first time at a deposition may have more difficulty protecting your interests.

Attending your deposition

The most important thing you can do at your deposition is to tell the truth. You are initially placed under oath and you have sworn to tell the “truth, the whole truth and nothing but the truth.” Many cases turn on the issue of credibility. If a lawyer can prove that your answers are untruthful, the judge may disbelieve you at trial.

At the deposition, listen to the questions. Don’t answer before the question is completely asked. Think about the question and pause for a moment before answering. This will give you time to insure that your answer is correct. Also, this will give your lawyer time to state an objection, if necessary. Also, this will stop the other lawyer from trying to ask questions and receive responses so fast that you answer quickly without thinking.

Don’t get mad at the other lawyer at the deposition. Lawyers may use the deposition as a way to find your weak points so that they can push your buttons at trial and make you angry. Finally, keep cool at the deposition, and generally keep your answers brief and to the point.

1. In cases involving less than $50,000 in controversy, the parties must go through mandatory arbitration.
2. In cases involving less than $10,000 in controversy, a party can make an offer of settlement and, if after arbitration they recover as much or more than offered, they can recover their attorney’s fees and costs.

The Washington Supreme Court, in Williams v. Tilaye (2012) looked at the interplay of the mandatory arbitration rules and the offer of settlement rules and overturned an award of attorney’s fees to the plaintiff because the plaintiffs’ offers to settle came AFTER the mandatory arbitration.

The issue before the Court was this: whether the plaintiffs in a personal injury suit who made an offer of settlement after mandatory arbitration but before trial de novo, and recovered more after trial than they offered in settlement, are entitled to attorney fees under RCW 4.84.250.

In his long, but unanimous opinion, Justice Sanders explained policy rationale and language between the two statutory schemes which should be required reading for any practitioner handling smaller dollar value claims or matters subject to mandatory arbitration. For everyone, litigants and counsel alike, the rule in these cases should be to make those offers to settle early so as to preserve your right to collect an award of attorney’s fees.

In his case, the plaintiffs were each received a judgment. One judgment was for $20,512. The other received a judgment for $7,482.

The trial court had awarded attorney’s fees of $49,847.50 and $25,722.00. The failure to make a timely offer meant that these awards were overturned.

If you have a claim or are defending against a claim where the damages sought are less than $10,000 it is important to have discussion with your attorney about the strategic and tactical reasons for making early offers to settle.

The case is Kiely v. Graves and concerns competing claims to a portion of an alley that had been vacated by the city of Port Townsend. William and Sally Chapin Kiely were neighbors to Kenneth and Karen Graves. An alley ran the length of the properties, and as long as anyone could remember, a wire fence ran the length of the two properties.

The Graves property adjacent to the disputed alley has remained open space where the Graves have planted fruit trees, berry vines, and garlic. Part of the Kielys’ cottage encroached upon the disputed alley.

In 2008, the Graves filed a petition with the city to vacate the western half of the alley and merge it into their property. The city held a public hearing on the application and in February 2009, the Port Townsend City Council passed an ordinance to vacate the alley and convey the vacated alley to the Graves through a lot line adjustment.

The Kielys then filed an action claiming that they owned the entire alley through adverse possession. The trial court agreed with the Kielys.

The Supreme Court granted direct review to decide whether the Kielys could assert adverse possession based on events which preceded vacation of the alley. Upon review, the Court found that Port Townsend held an easement interest in the alley until it was vacated by public hearing. This is a critical finding because RCW 7.28.090 prevents the adverse possession of property owned by a governmental entity. The Kielys agreed that the interest held was an easement interest, but they argued that the statute should not apply to easements.

As the Court clearly stated, “This case hinges on whether an easement dedicated for a public thoroughfare constitutes ‘land held for any public purpose’ under RCW 7.28.090. We hold that it does.”

And with that, the Court reversed the trial court and rejected Kielys’ adverse possession claim.

Dedicated unused and opened alleys run through many areas in our towns and cities. Even long use of these unused alleys will not result in the property being transferred to the possessors.

While attorneys all approach their craft in unique ways, there are several steps that most trial lawyers will do before trial. For me, the pretrial preparation begins when my calender system alerts me that trial is 100 days away. I do the following:

1. Review the entire file (reading the pleadings, correspondence, notes and memorandums that were created during the initial investigation and discovery phases).

2. Identify if there are any steps that need to be completed or updated. This usually involves a review of status of the discovery. Have all the interrogatories been answered? Do they need to be supplemented? Are all the pertinent documents where they can be found? Do we have them all?

3. Update any legal issues. I review the legal issues that were previously identified and update the research that had been done. Were any cases or statutes changed since the original work had been done? Are there any new legal issues that need to be researched?

4. Identify all witnesses. Who will be testifying at trial? It is important to identify which witnesses will be testifying. Outlines of their prospective testimony need to be created. Particular attention needs to be paid to tie the documents and trial exhibits to the specific witnesses that will be used to introduce them.

5. Contact all our witnesses. I send a form letter to all of our witnesses informing them of the upcoming trial date. I follow this up with a phone call to confirm their attendance and also to schedule a time to meet to review their testimony.

6. Settlement. With the wealth of information at this point in the matter, it is a good time to revisit settlement. Both sides might be more willing to discuss settlement and, with the help of a professional mediator, this is often the point when disputes are resolved.

7. Create final pretrial list. After completing the foregoing, I will often put the matter aside for a few weeks. Then, 50 days before trial, the final trial preparations begin. I will write more about those steps in a future post.

Not only during these final stages, but throughout the litigation, it is important for there to be communication between myself and my clients about their goals. I have never had a client with a goal of “going to trial.” Their goals most often concern some underlying interest. Whether it is a lawsuit to recover money (or avoid a claim brought by one seeking money) or concerning a real property boundary, they want to dispute over with and there interests protected. Revisiting their goals, discussing their interests and advising them on the strengths and weaknesses of their positions, happens from my first contact with them, through the end of the representation.