Dear ILTA Members,
This is a very busy time of the year for the Idaho Land Title Association and we are on a roll. Daryl Olsen has developed and increased the educational opportunities IL-TA offers. We just completed regional ed trainings in Coeur d’ Alene and Boise in Janu-ary to complement the ones in Twin Falls and Idaho Falls. These shorter training ses-sions have been well received.
Next week we have our annual Winter Ed Seminar in Boise—at The Grove Hotel on March 7-8. It is not too late to register and participate. We have timely and informa-tive topics covering cyber issues and updates from the FBI; we have four underwriters presenting on core title topics; a nuts and bolts session on Remote Online Notary regard-ing what it is and what to expect followed by a panel discussion; legislative and case law updates; zoning issues; and, a Department of Insurance update from Director Cameron. Please see the full agenda and registration in this newsletter.
The Legislative Session is in full force and the Remote Online Notary bill is mov-ing forward and looks destined for passage. We are monitoring other issues inclusive of a revised flat fee bill for recordings that would be a single fee for all recordings. This bill has merit and the concept was well received but it ran into some issues regarding the fee amount in conjunction with revenue neutrality and might not make it this year. If it does not succeed it will be further reviewed for next year.
In conjunction with the Legislative Session we will be hosting our Legislative Re-ception at The Grove Hotel Thursday after our ed session from 4-6. An email went out earlier this week with information on how to personally invite your legislator. This is a simple yet important part of grass roots and advocacy. In conjunction with the Legislative Reception we will also hold our silent auction IPAC fundraiser. Please bring or send in auction items. This fundraising event is important to raise funds as part of our advocacy.
This is indeed a very busy time of year but I hope to see many of you next week in Boise at the ed seminar.
Cameron McFaddan, ILTA President
by Matt Ryden
Please take note of the following recent Idaho Supreme Court opinions affecting our industry. These cases will be discussed in greater detail at the ILTA Winter Education Seminar.
Monitor Finance, L.C. v. Wildlife Ridge Estates, LLC, Idaho Supreme Court Docket No. 45517 (Jan. 9, 2019). This decision examines the applicability of statutes of limitation to Deed of Trust foreclosure actions. Im-portantly, Monitor Finance represents a departure from two 2017 cases, CMJ Properties, LLC and Baughmann, to the extent those cases permit reliance on a maturity date stated in a recorded Deed of Trust as the date of accrual of the statute of limitations.
To summarize, on October 7, 2016, the beneficiaries sought judicial foreclosure of a deed of trust bearing a ma-turity date of June 28, 2006. The borrowers asserted that the action was barred under Idaho Code sections 45-1515 and 5-214A. The Court agreed that these statutes impose a 5-year limitation on actions to foreclose a deed of trust. However, in this case, the action was not time-barred because the borrowers made a partial payment on November 8, 2012. Under Idaho Code section 5-238, such a post-maturity payment on an installment note re-starts the 5-year statute of limitations.
Obviously, the occurrence of such a payment cannot be determined from the public record, and caution must be exercised before eliminating a deed of trust on the ground that it appears to be “out by time.”
Nora A Mulberry v. Burns Concrete, Inc., Idaho Supreme Court Docket No. 45184 (Feb. 21, 2019). This opinion examines the nature of a Right of First Refusal (“ROFR”), particularly its assignability.
Facts: In 1999, Nora Mulberry sold (i) a parcel of real property and (ii) an ROFR for a separate parcel of real property to Canyon Cove Development Company, LLP. Twelve days after closing, Canyon Cove recorded a deed conveying the purchased parcel, and assigned the ROFR, to Burns Concrete, Inc. Years later, Mulberry conveyed the ROFR parcel to an LLC wholly-owned by Mulberry.
Lawsuit: In 2016, Mulberry and her successor LLC sought a Declaratory Judgment that the ROFR was extin-guished by Canyon Cove’s conveyance to Burns Concrete. The District Court entered judgment in favor of Mul-berry, and Burns Concrete appealed.
Decision on Appeal: The Court remanded the case back to the lower court on the basis of two conclusions. First, it agreed with the District Court that an ROFR is personal in nature, and therefore unassignable without the consent of the grantor, absent clear language to the contrary in the instrument. Thus, since Canyon Cove’s ROFR contained no “successors and assigns” language, it could not assign its rights under the ROFR to Burns Concrete. Second, the Court concluded that the ROFR was not extinguished by either (a) Canyon Cove’s attempt to transfer it to Burns Concrete or (b) Mulberry’s conveyance of the subject parcel to her LLC.
As always, exception should be taken for any known ROFR’s until clearly terminated by their terms or released by an instrument approved by underwriting.
ITP and NTP News
Strive for your Idaho Title Professional (ITP) and demonstrate your credibility, knowledge, and commitment to the industry we work in. Participation and involvement are the keys. Talk to a Board member who will eagerly help you work toward achieving your credentials. See below for our newest ITP member—John Northrup. Once you get your ITP it will be a huge benefit (30 points of the 100 needed) in getting your National Title Pro-fessional (NTP) designation from ALTA. On the following page is my NTP Profile from the January TitleNews. The ITP and NTP designations are achievable. Get credentialed and distinguish yourself!
Please congratulate our newest Idaho Title Professional (ITP) – John Northrup