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Dimitry Esquire
Dimitry Esquire, Attorney
Category: Real Estate Law
Satisfied Customers: 41220
Experience:  JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin
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My wife and I own ( by TE ) 47 Acres of land improved by a

Customer Question

My wife and I own ( by TE ) 47 Acres of land improved by a SF residence
In 2004 We borrowed 200k from a "friend" 9, BD, and used the property to secure the note.
The note and deed of trust were signed and recorded in September 2004
The note requires payment in full 36 months from the date "hereof" ( 29/9/2004 )
The Deed of Trust refers to the 200k being due 60 months from the date hereof.
Neither the Note nor teh Deed were paid as agreed. BD never took any action to record any notices of default, foreclosure etc. We have never signed anything other than this first set of documents.
In 2009 my wife and I both filed for Chpt 7 and were discharged in 2009
BD and his note were included properly in the bankruptcy. We never signed any agreements to repledge or similar.
So over the years we have paid BD interest payments but have not signed nor has he recorded any docs since 2004.
So I would like to know... what do I need to file to clear BD's lien from my property?
I understand that the staute of limitations has long since lapsed and so my thinking is that BD no longer has a security interest and that the note was properly discharged in a chapter 7 case. Will he have an recourse if I do file to release this claim?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  LawTalk replied 1 year ago.

Good afternoon,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

I empathize with your situation, but I believe you may misunderstand the statute of limitations as it applies in this situation.

Once a lien is filed on a property it doesn't go away, despite the fact that you may file bankruptcy and have the personal obligation on the debt discharged. Neither does the lien go away because the statutes of limitation may have run on the right of the lender to sue you because they failed to file suit within the appropriate amount of time. A secured interest in real property once filed, remains a valid claim against the property forever, until; the lien is satisfied or otherwise released by the lender.

In conclusion, while the note may have been discharged in your bankruptcy, the bankruptcy had no legal effect on a secured lien on the property which was in place prior to the date of bankruptcy? To clear the lien, unless the lender is willing to simply forgive the debt, the debt will need to be paid off---either before you sell the property, or during closing on a sale in the future by you or by your heirs or assigns.

I understand that you may be disappointed by the Answer you received, as it was not particularly favorable to your situation. Had I been able to provide an Answer which might have given you a successful legal outcome, it would have been my pleasure to do so.

If you have additional questions, you may of course reply back to me and I will be happy to continue to assist you further until your questions have been answered to your satisfaction.

Would you please take a moment to positively rate my service to you based on the understanding of the law I provided by clicking on the rating stars---three stars or more. It is that easy. That is the way I am compensated for having helped you.

Thank you in advance. I wish you the best in your future,

Doug

Customer: replied 1 year ago.
Doug,
I am afriad either my question was poorly worded or perhaps you concentrated on the wrong set of facts.
WV Code 55-2 speaks to my question here.
Please review WV Code Chapter 55 as it pertains to actions on deeds of trust. Per 55-2 it appears that BD is not secured as you state. Please explain how your answer comports with the WV statute.
Expert:  LawTalk replied 1 year ago.

I am unable to further assist you in this matter, and I am going to opt out of your question and open this up for other professionals.

Your question is being placed back in the question list for other professionals to see, and to respond to. You do not have to stay online for the question to be active. Should another professional pick it up, you should be alerted by email unless you actively disable this feature.

There is no need for you to reply at this time as this may "lock" your question back to me, thus inadvertently delaying other professionals' access to it.

I apologize for any inconvenience and wish you well in your future.

Doug

Expert:  Dimitry Esquire replied 1 year ago.

Thank you for your question. A different professional here.

I have reviewed the code for you but I am unclear as to how you believe it pertains to your question. To ensure that I am looking at the right code, I am posting it below. Please advise if this is the correct information.

§55-2-12. Personal actions not otherwise provided for.
Every personal action for which no limitation is otherwise prescribed shall be brought: (a) Within two years next after the right to bring the same shall have accrued, if it be for damage to property; (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; and (c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative.

Customer: replied 1 year ago.
I am refering to 55-2-5 West Virginia Code - §55-2-5. — Enforcement of liens reserved by conveyance or created by deed of trust or mortgage on real estate.§55-2-5. Enforcement of liens reserved by conveyance or created by deed of trust or mortgage on real estate.
(a) Any lien reserved by any conveyance of real estate or created by any deed of trust or mortgage on real estate expires after the following periods of time, unless suit to enforce the lien is instituted prior to expiration of the time period or unless the lien is extended as specified in subsection (b) or (e) of this section:
(1) If the final maturity date of the obligation is ascertainable from the lien instrument, the lien expires five years after that date.
(2) If the final maturity date of the obligation is not ascertainable from the lien instrument, the lien expires thirty-five years after the date of the lien instrument. However, if the lienholder rerecords the lien instrument prior to thirty-five years from the date of the lien instrument and includes a copy of the obligation secured by the lien so that the final maturity is ascertainable, the lien expires five years after the date of maturity.
Expert:  Dimitry Esquire replied 1 year ago.

Hi,

I reviewed the language of the code on your behalf. You mentioned paying this person interest payments. When did you make your last payment, and was it toward this debt or some other debts owed?

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