§20.15 - Redemption
Jurisdiction | Washington |
§20.15 REDEMPTION
"Redemption is the process of canceling and annulling a defeasible title, such as is created by a mortgage or a tax sale, by paying the debt or fulfilling other conditions." City of Tacoma v. Perkins, 42 Wn.2d 80, 85, 253 P.2d 957 (1953).
In Washington, the right to redeem is twofold: (1) equitablethe right to cancel the proceeding before the sheriff's sale by paying the debt plus costs and interest, and (2) statutorythe right to satisfy/cancel the proceedings before the end of the statutory redemption period after the sale, i.e., eight months or one year. To exercise the statutory right of redemption, the redemptioner only need do what the statute requires. Schmidt v. Worley, 134 Wash. 582, 236 P. 111 (1925); State ex rel. Bryant v. Starwich, 131 Wash. 101, 229 P. 12 (1924).
(1) Statutory provisions
The statutory rights of redemption, as opposed to the equity of redemption, are found in RCW 6.23.010 through .120. The practitioner faced with a redemption problem would be well advised to consult the annotations under either the California or Oregon statutes because the Washington statute is based on them. See OR. REV. STAT. §88.080; CAL. CIV. PROC. CODE §725a; F. C. Hackman, Statutory Redemption Rights, 3 WASH. L. REV. 177 (1928); Darryl A. Hart, The Statutory Right of Redemption in California, 52 CAL. L. REV. 846 (1964).
(2) Persons who may redeem
RCW 6.23.010 divides those having the right to redeem into two categories:
(a)he judgment debtor, in the whole or any part of the property separately sold. [Category I.]
(b) A creditor having a lien by judgment, decree, deed oftrust, or mortgage, on any portion ofthe property, or any portion of any part thereof, separately sold, subsequent in priority to that on which the property was sold. The persons mentioned in this subsection are termed redemptioners. [Category II.]
RCW 6.23.010(1)(a) & (b). The statute goes on to provide that "the terms 'judgment debtor,' 'redemptioner,' and 'purchaser' refer also to their respective successors in interest." RCW 6.23.010(2).
With respect to Category I, there is little ambiguity in the meaning of the term "judgment debtor." One author has provided the following definition: "[T]he 'judgment debtor' referred to in the redemption statute under consideration is that person, natural or artificial, who is adjudged to owe and must pay the sum found due in the judgment or decree pursuant to which an execution sale is made." F. C. Hackman, Statutory Redemption Rights, 3 WASH. L. REV. 177, 178 (1928).
More questions arise in Category II, the judgment debtor's successor in interest. When the owner of land conveys the land to a grantee subsequent to the purchase of the land at an execution sale by a mortgagee, the grantee may redeem, and when so redeemed, the estate is restored and stands as if no sale had ever been made. The grantee has no greater or no lesser rights than the judgment debtor. De Roberts v. Stiles, 24 Wash. 611, 64 P. 795 (1901); accord Gray v. C.A. Harris & Son, 200 Wash. 181, 93 P.2d 385 (1939); Ford v. Nokomis State Bank, 135 Wash. 37, 237 P. 314 (1925). California has expressly extended the definition of "successor in interest" to include one who acquires or succeeds to the interest of the judgment debtor, whether prior to or following the judgment. Call v. Thunderbird Mortgage Co., 58 Cal.2d 542, 375 P.2d 169 (1962). Thus, in California, a "successor in interest" may be a grantee, a trustee under the trust deed, the purchaser of the mortgagor's interest at a receiver sale, or the purchaser (including a judgment creditor) at an execution sale acquiring title. 44 CAL. JUR. 3D Mortgages §77 (2003); Bateman v. Kellogg, 59 Cal.App. 464, 211 P. 46 (1922); Pollard v. Harlow, 138 Cal. 390, 71 P. 454 (1903). It has been suggested that the California approach be followed in Washington. See F. C. Hackman, Statutory Redemption Rights, 3 WASH. L. REV. 177, 178-85 (1928); Darryl A. Hart, The Statutory Right of Redemption in California, 52 CAL. L. REV. 846, 854-58 (1964).
Those in Category II are termed "redemptioners." As to a creditor having a lien by judgment, decree, or mortgage, the term is self-explanatory. The holder of a lien by attachment or of a labor, mechanics', or materialmen's lien has no contractor's right to redeem. See Seelye v. N. P. Mortgage Co., 189 Wash. 297, 65 P.2d 218 (1937) (holder of unsecured claim allowed in receivership proceeding has no judgment, thus may not redeem); see also F. C. Hackman, Statutory Redemption Rights, 3 WASH. L. REV. 177 (1928). A creditor foreclosing a mortgage who seeks and obtains a deficiency judgment may not redeem from its own sale. Burwell & Morford v. Seattle Plumbing Supply Co., 14 Wn.2d 537, 128 P.2d 859 (1942); see F. C. Hackman, Statutory Redemption Rights, 3 WASH. L. REV. at 186 n.41 (and cases cited therein). It is possible after the sheriff's sale but before the sheriff's deed issues that a creditor can reduce its claim to judgment and qualify as a redemptioner. See Darryl A. Hart, The Statutory Right of Redemption in California, 52 CAL. L. REV. 846 (1964).
The Category II terms "on any portion" or "any part thereof, separately sold" have never caused any problem and seem self-explanatory.
The word "that" in the Category II phrase "subsequent in time to that on which the property was sold" refers to the lien the sale was held to satisfy. E.g., Burwell & Morford, 14 Wn.2d 537 (cited with approval in F. C. Hackman, Statutory Redemption Rights, 3 WASH. L. REV. 177 (1928); see also Seattle Med. Ctr. v. Cameo Corp., 54 Wn.2d 188, 339 P.2d 93 (1959); First Fed. Sav. & Loan Ass'n v. Marsh, 19 Wn.2d 438, 143 P.2d 297 (1943); W. Land & Cattle Co. v. Nat'l Bank, 28 Ariz. 270, 236 P. 725 (1925); Hervey v. Krost, 116 Ind. 268, 19 N.E. 125 (1888); Eldridge v. Wright, 55 Cal. 531 (1880).
Thus, to qualify as a redemptioner, one having a lien by judgment, mortgage, or decree must have a lien that is junior in priority to the lien being foreclosed; if the lien is superior to the one being foreclosed, the holder of the superior lien does not have a right of redemption (and presumably a redemption right would provide no additional protection for the holder of the superior lien) because the superior lienholder's lien...
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