Category Archive for : ‘Articles’

Statute of Limitations Considerations Post-Covid

With the end of the moratorium and influx of proceed instructions regarding foreclosures that have been on hold for prolonged periods of time, it seems prudent to review recent developments in Kansas regarding the relevant statute of limitations.

In Kansas, foreclosure actions are subject to a five-year statute of limitations. However, the case law in Kansas is quite clear that where the loan documents provide the lender the right to accelerate the debt at the lender’s discretion, then the statute of limitations is not actually triggered until the debt is accelerated. Absent unusual circumstances, the debt is not considered accelerated until a lawsuit is filed …

Kansas Court of Appeals Rules for Lender in Statute of Limitations Case

In a recent ruling, the Kansas Court of Appeals addressed a residential mortgage foreclosure lawsuit in which the Kansas Trial Court ruled the case was barred by the statute of limitations. The Court of Appeals ruled the trial court erroneously concluded the lender’s claims were time barred under K.S.A. 60-511(1)’s five-year limitation’s period based upon the date the lender’s 2011 Notice of Intent to Accelerate was sent to the borrower. The case is a published opinion and styled Wilmington Savings Fund Society, FSB v. Holverson, et al., Kansas Court of Appeals No. 122,179. This case is noteworthy as …

Service by Publication Concerns During COVID

In Kansas over the last several years, even prior to the difficulties caused by COVID-19, there has been a swell of scrutiny surrounding service by publication from title companies and underwriters. The source of this scrutiny stems from K.S.A. §60-309(a) which provides that a judgment entered on service by publication, “may at any time within two years after its entry, move for relief from the judgment and to be allowed to defend.”

The obvious concern is that a property sold under a judgment where plaintiff effected service by publication would be vulnerable. However, the statute also considers that and provides that if sale of …

Case Poses Question of Conveyance Under Redemption

A recent appellate decision given in Bucklin Nat'l Bank v. Hayse Ranch, 475 P.3d 1 (Kan. Ct. App. 2020) yielded an interesting result which may impact the redemption and subsequent conveyance of ownership process in Kansas. In 2018, Bucklin National Bank (“Bucklin”) initiated a foreclosure action against the defendants (“Hayses”); however, while that 2018 action was pending, a third party (“Pruitt”) intervened claiming ownership of the subject real estate. Pruitt had purchased and exercised the redemption rights from the Hayses in a 2002 foreclosure action. In Kansas, rights of redemption are as transferrable as any other ownership interest.

Even though Pruitt believed that …

Disclaiming Redemption Rights in Kansas

An interesting district court case may change how parties disclaim going forward in Kansas. In Nationstar Mortgage LLC v. The Heirs at Law of Karen E. Steddum-Menefee, deceased (No. 2020-CV-000473, Eighteenth Judicial District, Oct. 30, 2020) the borrower’s heirs disclaimed any interest into or against the subject property being foreclosed upon and were dismissed from the case.

In Kansas, it is a common occurrence for heirs or other parties who were named in the foreclosure action, but who may not have a real interest in the property to disclaim and request dismissal from the action. Doing so may allow that individual or other entity to …

Challenging Validity of Mechanic's Liens in Kansas

The Kansas Court of Appeals in In re A Purported Lien Against Prop. of Dist. at City Ctr., LLC, 2020 Kan. App. LEXIS 13 (Ct. App. Feb. 28, 2020) reversed the district court in an interesting case regarding an allegedly fraudulent mechanic’s lien.

This case began with a recognizable fact pattern where a construction company was contracted to build a mixed-use development. The contractor then hired a subcontractor to supply steel and labor. As is often the case, change orders began to be submitted and approved resulting in a total that exceeded the original contract terms.

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Tenants' Standing in Foreclosures in Kansas

A pro se mother and daughter recently challenged a foreclosure in the Kansas Court of Appeals that, in part, resulted in clarification of the rights of a tenant/occupant of a property subject to the foreclosure.

Citimortgage, Inc. v. Scott-Jacobs, 2019 Kan. App. Unpub. LEXIS 863 (Ct. App. Dec. 27, 2019) was an appeal brought by a borrower and her daughter appealing the district court’s awarding of an in rem summary judgment to Citimortgage and claiming the district court erred by entering judgment in favor of Citimortgage and erred again by dismissing the appellants’ counterclaims

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Clarifying 'Usual Place of Abode' in SCRA Collection Cases

In overturning the default judgment granted against the debtor in Coastal Credit, LLC v. McNair, 446 P.3d 495 (Kan. Ct. App. 2019), the Kansas Court of Appeals has recently made an important ruling regarding service of process on active military debtors.

The debtor in McNair was in active status in the Army and stationed in Africa when the financing contract he had entered into to purchase a car went into default.

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