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An Old Second Mortgage Holder is Now Suing Us Over a Foreclosed Property

Question:

Dear Steve,

Back in 2007 we had some investment properties, some we did short sales and one of them went into foreclosure; this one in the state of KS. The foreclosure took place in late 2008 or 2009. We received a letter from an attorney stating that his client may choose to take legal action against us for the amount owed, his client was the second lien holder. I’ve been reading about the statute of limitations and I read that for KS is 5 years

My question is can they really sue us? it’s been 7 years or more, I don’t want to respond to his letter, but I don’t want to get sued either.

Alejandra

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Answer:

Dear Alejandra,

There is nothing you can generally read or advice that is going to perfect for your situation. Considering this is an apparent threat from a lawyer I can’t stress enough that you absolutely need to get assistance from an attorney who is licensed in your state. The last thing you want to do is make the matter accidentally worse by responding incorrectly.

It appears that a second mortgage holder can sue to collect the deficiency following a foreclosure in Kansas. What is critical here is if you can raise the statute of limitations (SOL) as a defense in the suit. The SOL does not prevent a suit but can be raised as an argument in the case as too why the case should not have been filed.

But depending on the SOL is not as easy as it sounds. A number of issues can start and stop the SOL clock so having a knowledgeable legal opinion on your specific case is critical.

Keep in mind, not responding to the letter is not a magic wand to not get sued. What is clear is you will need to deal with the issue in a careful and knowledgeable way to best deal with this issue.

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