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My Dad, of Watertown, SD, died recently and was preceded in

death by my Mom a...
My Dad, of Watertown, SD, died recently and was preceded in death by my Mom a couple years ago. Dad's major, and only worthwhile, asset was his house. My brother, two sisters, and I each own 1/4 of the property, valued at $168,000 by the city assessor. On the title there is a claim by a Mr. Abrahamson, an attorney from Omaha. My Dad & Mom had given a promissory note that had a term of 120 months, backed up by their home, for $39,500 to Mr. Abrahamson's group as consideration for a down payment on an apartment complex located in Omaha, Douglas County, NE, that Dad & Mom bought on Sept. 30, 1986. The promissory note was recorded, but I am not sure where. My Dad told my sister that the claim had been satisfied, however, when our local attorney wrote to Mr. Abrahamson to request that they send a letter documenting that the claim had been satisfied, they never responded. That has been three weeks ago and we'd like to sell the house to satisfy a multitude of debts that Dad had accrued because of his illness. You can no longer collect on a promissory note after 5 years in NE and 6 years in SD, but our attorney says they have 15 years to collect and 15 years to file for a judgement. Does the claimant have a valid claim so long after this debt was incurred?
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9/23/2013
Law Pro
Law Pro, Lawyer
Category: Real Estate Law
Satisfied Customers: 24,870
Experience: 20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
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Welcome! My goal is to do my very best to understand your situation and to provide a full and complete excellent answer for you.

My name is XXXXX XXXXX I'm going to assist you with your question.

Please bear with me if you believe my answer isn’t coming fast enough because I’m also working with other customers too. I apologize for any seemingly late response.


I am making double sure of the statute of limitations.

Where did your attorney come up with the 15 years to collect?

When were payments to be made on the loan?
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Customer reply replied 4 years ago

This is the third different way I've responded to this question but here we go again.


 


This is what my attorney sent me:


SDCL 15-2-7 provides that foreclosure of a mortgage can be commenced only within 15 years after the cause of action shall have accrued.


SDCL 15-2-5 provides that a cause of action to foreclose a mortgage accrues at the last date of maturity of the debt as stated in or ascertainable from the record of such mortgage, and if not stated in or ascertainable from the record of the mortgage then 15 year from the date of the mortgage. There are no SD cases construing 15-2-5.


 


I don't actually know how to read this.


 


Dad did make payments but there aren't any records we can find. He told us he had satisfied the debt. He kept the apartment complex for several years so I think he must have made a number of payments. My guess is that payments were made for 2 to 4 years but that is a total guess. The paper trail just isn't there and the bank he used has been sold and would guess they wouldn't have any statements that they have kept.

I am going to opt out of your question and open this up for other professionals. You do not have to stay online for the question to be active, or rate this question yet as it would then discourage others from answering. Should a professional pick it up, you should be alerted via email and/or SMS (text message) unless you actively disable these features.

There is no need for you to reply at this time as this may "lock" your question back to me, thus inadvertently delaying a response from someone else.

I researched the foreclosure law of SD and there are really NO cases on the subject. So, although I think it's different that what your attorney stated, I'm going to opt out for another expert who may know for certain.
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Customer reply replied 4 years ago
Relist: Other.
Attorney opted out so I received no answer. Hope I don't get charged for him opting out.
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 38,663
Experience: 17 years real estate, Realtor. Landlord 26 years
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Hello and welcome! My name is XXXXX XXXXX I will try my level best to help with your situation or get you to someone who can.
.
The statute of limitations for collecting on a promissory note secured by a property mortgage is only 6 years in SD against the borrower personally. So the lender could no longer pursue the estate for payment on the debt.
.
However, your attorney is correct in that the lender can foreclose against the property that was secured by the note for up to 15 years after the note came due. If it was entered into in 1986, and was a 120 month note, then that would make it come due in 1996. Adding 15 years onto that takes you to 2011 at the latest for the creditor to pursue collection by foreclosing on the property.
.
The time limit in NE is only 10 years after the cause of action accrues, so 2006. (NRS 25-202)
.
So I would have to disagree with your attorney about the creditor being able to take action now on the debt, whether personally against the estate or by foreclosing on the property secured by the note.
.
At this point your recourse would be to file a "quiet title" action in court to demonstrate to the judge that the SOL has expired for both personal action and an action to foreclose on the property. The judge can then enter a judicial order dissolving the lien against the property and clearing the title.
.
.
Thanks
Barrister
Barrister
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Customer reply replied 4 years ago

This is what my attorney sent me:
SDCL 15-2-7 provides that foreclosure of a mortgage can be commenced only within 15 years after the cause of action shall have accrued.
SDCL 15-2-5 provides that a cause of action to foreclose a mortgage accrues at the last date of maturity of the debt as stated in or ascertainable from the record of such mortgage, and if not stated in or ascertainable from the record of the mortgage then 15 year from the date of the mortgage.

There are no SD cases construing 15-2-5.
I don't really understand it.


As far as payments, there were payments made because he kept the property for several years. However, there are no records that we can find anywhere. And we looked for checking account registers or account books anything, but there wasn't anything we found. We know that payments were made but how much or how many would be a guess. Dad said he had paid it off and they had a mortgage burning when they paid their mortgage off but no one mentioned anything about an outstanding loan on the mortgage.


Thanks,
Mark

Those were the particular statutes I was referring to when I commented on the 15 year time limit from the end of the mortgage for collection by foreclosure. Since this was a ten year note, that takes it to 1996. Then 15 years after that (if father paid nothing on the note) would take you to 2011 at the very latest for any creditor action.
.
So whether he paid it or not, the time has passed for the creditor to take any action.
.
.
Thanks
Barrister
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