"NEW SECTION.  Sec. 1   A new section is added to chapter 61.24 RCW to read as follows:
     (1)(a) A trustee, beneficiary, or authorized agent may not issue a notice of default under RCW 61.24.030(7) until thirty days after initial contact is made as required under (b) of this subsection or thirty days after satisfying the due diligence requirements as described in subsection (5) of this section.
     (b) A beneficiary or authorized agent shall contact the borrower in person or by telephone in order to assess the borrower's financial ability to pay the debt secured by the deed of trust and explore options for the borrower to avoid foreclosure. During the initial contact, the beneficiary or authorized agent shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the beneficiary or authorized agent shall schedule the meeting to occur within fourteen days. The assessment of the borrower's financial ability to repay the debt and a discussion of options may occur during the initial contact or at the subsequent meeting scheduled for that purpose. At the initial contact, the borrower must be provided the toll-free telephone number made available by the department to find a department-certified housing counseling agency. Any meeting may occur telephonically.
     (2) A notice of default issued under RCW 61.24.030(7) must include a declaration, as provided in subsection (9) of this section, from the beneficiary or authorized agent that it has contacted the borrower as provided in subsection (1)(b) of this section, it has tried with due diligence to contact the borrower under subsection (5) of this section, or the borrower has surrendered the property to the trustee, beneficiary, or authorized agent. The trustee is entitled to rely on the declaration as conclusive evidence that the requirements of this section have been satisfied, and the trustee is not liable for the beneficiary's or its authorized agent's failure to comply with the requirements of this section.
     (3) A beneficiary's or authorized agent's loss mitigation personnel may participate by telephone during any contact required under this section.
     (4) Within fourteen days after the initial contact under subsection (1) of this section, if a borrower has designated a department-certified housing counseling agency, attorney, or other advisor to discuss with the beneficiary or authorized agent, on the borrower's behalf, options for the borrower to avoid foreclosure, the borrower shall inform the beneficiary or authorized agent and provide the contact information. The beneficiary or authorized agent shall contact the designated representative for the borrower for the discussion within fourteen days after the representative is designated by the borrower. Any deed of trust modification or workout plan offered at the meeting with the borrower's designated representative by the beneficiary or authorized agent is subject to approval by the borrower.
     (5) A notice of default may be issued under RCW 61.24.030(7) if a beneficiary or authorized agent has not contacted a borrower as required under subsection (1)(b) of this section and the failure to contact the borrower occurred despite the due diligence of the beneficiary or authorized agent. Due diligence requires the following:
     (a) A beneficiary or authorized agent shall first attempt to contact a borrower by sending a first-class letter to the address of the property encumbered by the deed of trust that includes the toll-free telephone number made available by the department to find a department-certified housing counseling agency, and the following information:
     "You may contact the Department of Financial Institutions, the Washington State Bar Association, or the Office of Civil Legal Aid for possible assistance or referrals."
     (b)(i) After the letter has been sent, the beneficiary or authorized agent shall attempt to contact the borrower by telephone at least three times at different hours and on different days. Telephone calls must be made to the primary telephone number on file with the beneficiary or authorized agent.
     (ii) A beneficiary or authorized agent may attempt to contact a borrower using an automated system to dial borrowers if the telephone call, when answered, is connected to a live representative of the beneficiary or authorized agent.
     (iii) A beneficiary or authorized agent satisfies the telephone contact requirements of this subsection (5)(b) if the beneficiary or authorized agent determines, after attempting contact under this subsection (5)(b), that the borrower's primary telephone number and secondary telephone number or numbers on file, if any, have been disconnected or are not good contact numbers for the borrower.
     (c) If the borrower does not respond within fourteen days after the telephone call requirements of (b) of this subsection have been satisfied, the beneficiary or authorized agent shall send a certified letter, with return receipt requested, to the borrower at the address of the property encumbered by the deed of trust.
     (d) The beneficiary or authorized agent shall provide a means for the borrower to contact the beneficiary or authorized agent in a timely manner, including a toll-free telephone number or charge-free equivalent that will provide access to a live representative during business hours.
     (e) The beneficiary or authorized agent shall post a link on the home page of the beneficiary's or authorized agent's internet web site, if any, to the following information:
     (i) Options that may be available to borrowers who are unable to afford their mortgage payments and who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore those options;
     (ii) A list of financial documents borrowers should collect and be prepared to present to the beneficiary or authorized agent when discussing options for avoiding foreclosure;
     (iii) A toll-free telephone number or charge-free equivalent for borrowers who wish to discuss options for avoiding foreclosure with their beneficiary or authorized agent; and
     (iv) The toll-free telephone number or charge-free equivalent made available by the department to find a department-certified housing counseling agency.
     (6) Subsections (1) and (5) of this section do not apply if any of the following occurs:
     (a) The borrower has surrendered the property as evidenced by either a letter confirming the surrender or delivery of the keys to the property to the trustee, beneficiary, or authorized agent;
     (b) The borrower has contracted with a distressed home consultant as defined in RCW 61.34.020; or
     (c) The borrower has filed for bankruptcy, and the bankruptcy stay remains in place.
     (7) This section applies only to deeds of trust made from January 1, 2003, to December 31, 2007, inclusive, that are recorded against owner-occupied residential real property. This section does not apply to deeds of trust: (a) Securing a debt incurred primarily for business, investment, or commercial purposes; (b) securing a guarantor's obligations under a guaranty; or (c) securing a purchaser's obligations under a seller-financed sale. For purposes of this subsection, "owner-occupied" means that the residence is the principal residence of the borrower.
     (8) As used in this section:
     (a) "Borrower" means a grantor of a deed of trust who executed a promissory note secured by the deed of trust.
     (b) "Department" means the United States department of housing and urban development.
     (c) "Residential real property" means a one-to-four, single-family residence, condominium unit, residential cooperative unit, residential unit in any other type of planned unit development, or manufactured home in which title has been eliminated under RCW 65.20.040.
     (d) "Seller-financed sale" means a real property transaction where the seller finances all or part of the purchase price, and that financed amount is secured by a deed of trust against the subject real property.
     (9) The form of declaration to be provided by the beneficiary or authorized agent as required under subsection (2) of this section must be in substantially the following form:

NEW SECTION.  Sec. 2   A new section is added to chapter 61.24 RCW to read as follows:
     (1) Upon posting a notice of sale under RCW 61.24.040, a trustee or authorized agent shall also post the following notice, in the manner required for posting the notice of sale on the property to be sold, and a trustee, beneficiary, or authorized agent shall mail at the same time in an envelope addressed to the "Resident of property subject to foreclosure sale" the following notice:

     "The foreclosure process has begun on this property, which may affect your right to continue to live in this property. Ninety days or more after the date of this notice, this property may be sold at foreclosure. If you are renting this property, the new property owner may either give you a new lease or rental agreement or provide you with a sixty-day eviction notice. You may wish to contact a lawyer or your local legal aid or housing counseling agency to discuss any rights that you may have."

     (2) This section applies only to deeds of trust secured by residential real property, as defined in section 1 of this act, and if the billing address for the promissory note is different than the property address.

NEW SECTION.  Sec. 3   A new section is added to chapter 61.24 RCW to read as follows:
     (1)(a) A tenant or subtenant in possession of a residential real property at the time the property is sold in foreclosure must be given sixty days' written notice before the tenant or subtenant may be removed from the property as prescribed in chapter 59.12 RCW.
     (b) A tenant may be evicted for waste or nuisance and subject to unlawful detainer under chapter 59.12 RCW.
     (2) This section does not prohibit the new owner of a property purchased pursuant to a foreclosure sale or trustee's sale from:
     (a) Negotiating a new purchase, lease, or rental agreement with a tenant or subtenant; or
     (b) Offering a payment to a tenant or subtenant in exchange for vacating the premises on a date earlier than the expiration of the notice period described in subsection (1) of this section. However, the tenant or subtenant is not required to accept any payment offered.
     (3) This section does not apply if a party to the promissory note secured by the deed of trust remains on the property as a tenant, subtenant, or occupant.

NEW SECTION.  Sec. 4   Sections 2 and 3 of this act apply only to the foreclosure of a nonowner-occupied residential real property as defined in section 1 of this act.

NEW SECTION.  Sec. 5   A new section is added to chapter 61.24 RCW to read as follows:
     (1) The failure of the grantor to bring a civil action to enjoin a foreclosure sale under this chapter may not be deemed a waiver of a claim for damages asserting:
     (a) Common law fraud, misrepresentation, and breach of contract;
     (b) A violation of RCW 19.144.080; or
     (c) Failure of the trustee to materially comply with the provisions of this chapter.
     (2) The nonwaived claims listed under subsection (1) of this section may be (a) asserted in an unlawful detainer action brought by the lender against the grantor as a holdover tenant or (b) independently brought against a lender or trustee if a third party is the successful bidder at the foreclosure sale.
     (3) The nonwaived claims listed under subsection (1) of this section are subject to the following limitations:
     (a) The claim must be asserted or brought within two years from the date of the foreclosure sale;
     (b) The claim may not seek any remedy at law or in equity other than direct monetary damages, unless the property is owned by the beneficiary at the time the action is filed;
     (c) The claim may not otherwise affect the validity or finality of the foreclosure sale or a subsequent transfer of the property to a bona fide purchaser;
     (d) A grantor who files such a claim is prohibited from filing for record a lis pendens without prior permission of a court, as provided for in RCW 4.28.320, or any other document purporting to create a similar effect, related to the real property foreclosed upon;
     (e) The claim may not otherwise operate to encumber or cloud the title to the property that was subject to the foreclosure sale, except to the extent that a judgment on the claim in favor of the grantor may, consistent with RCW 4.56.190, become a judgment lien on real property then owned by the lender; and
     (f) The relief that may be granted for judgment upon the claim is limited to actual damages. However, if the grantor brings in the same civil action a claim for violation of chapter 19.86 RCW, arising out of the same alleged facts, relief under chapter 19.86 RCW is limited to actual damages, treble damages as provided for in RCW 19.86.090, and the costs of suit, including a reasonable attorney's fee.
     (4) This section applies only to foreclosures of an owner-occupied one-to-four, single-family residence, condominium unit, residential cooperative unit, residential unit in any other type of planned unit development, or manufactured home in which title has been eliminated under RCW 65.20.040, which is the grantor's principal place of residence.
     (5) This section does not apply to the foreclosure of a deed of trust used to secure a debt incurred for business, investment, or commercial purposes or to secure a guaranty.

Sec. 6   RCW 61.24.010 and 2008 c 153 s 1 are each amended to read as follows:
     (1) The trustee of a deed of trust under this chapter shall be:
     (a) Any domestic corporation incorporated under Title 23B, 30, 31, 32, or 33 RCW of which at least one officer is a Washington resident; or
     (b) Any title insurance company authorized to insure title to real property under the laws of this state, or ((its agents)) any title insurance agent licensed under chapter 48.17 RCW; or
     (c) Any attorney who is an active member of the Washington state bar association at the time the attorney is named trustee; or
     (d) Any professional corporation incorporated under chapter 18.100 RCW, any professional limited liability company formed under chapter 25.15 RCW, any general partnership, including limited liability partnerships, formed under chapter 25.04 RCW, all of whose shareholders, members, or partners, respectively, are either licensed attorneys or entities, provided all of the owners of those entities are licensed attorneys, or any domestic corporation wholly owned by any of the entities under this subsection (1)(d); or
     (e) Any agency or instrumentality of the United States government; or
     (f) Any national bank, savings bank, or savings and loan association chartered under the laws of the United States.
     (2) The trustee may resign at its own election or be replaced by the beneficiary. The trustee shall give prompt written notice of its resignation to the beneficiary. The resignation of the trustee shall become effective upon the recording of the notice of resignation in each county in which the deed of trust is recorded. If a trustee is not appointed in the deed of trust, or upon the resignation, incapacity, disability, absence, or death of the trustee, or the election of the beneficiary to replace the trustee, the beneficiary shall appoint a trustee or a successor trustee. Only upon recording the appointment of a successor trustee in each county in which the deed of trust is recorded, the successor trustee shall be vested with all powers of an original trustee.
     (3) The trustee or successor trustee shall have no fiduciary duty or fiduciary obligation to the grantor or other persons having an interest in the property subject to the deed of trust.
     (4) ((The trustee or successor trustee shall act impartially between the borrower, grantor, and beneficiary.)) The trustee or successor trustee has a duty of good faith to the borrower as defined in section 1 of this act, beneficiary, grantor, or other persons having an interest in the property subject to the deed of trust.

Sec. 7   RCW 61.24.030 and 2008 c 153 s 2 and 2008 c 108 s 22 are each reenacted and amended to read as follows:
     It shall be requisite to a trustee's sale:
     (1) That the deed of trust contains a power of sale;
     (2) That the deed of trust contains a statement that the real property conveyed is not used principally for agricultural purposes; provided, if the statement is false on the date the deed of trust was granted or amended to include that statement, and false on the date of the trustee's sale, then the deed of trust must be foreclosed judicially. Real property is used for agricultural purposes if it is used in an operation that produces crops, livestock, or aquatic goods;
     (3) That a default has occurred in the obligation secured or a covenant of the grantor, which by the terms of the deed of trust makes operative the power to sell;
     (4) That no action commenced by the beneficiary of the deed of trust is now pending to seek satisfaction of an obligation secured by the deed of trust in any court by reason of the grantor's default on the obligation secured: PROVIDED, That (a) the seeking of the appointment of a receiver shall not constitute an action for purposes of this chapter; and (b) if a receiver is appointed, the grantor shall be entitled to any rents or profits derived from property subject to a homestead as defined in RCW 6.13.010. If the deed of trust was granted to secure a commercial loan, this subsection shall not apply to actions brought to enforce any other lien or security interest granted to secure the obligation secured by the deed of trust being foreclosed;
     (5) That the deed of trust has been recorded in each county in which the land or some part thereof is situated;
     (6) That prior to the date of the notice of trustee's sale and continuing thereafter through the date of the trustee's sale, the trustee must maintain a street address in this state where personal service of process may be made, and the trustee must maintain a physical presence and have telephone service at such address; and
     (7) That at least thirty days before notice of sale shall be recorded, transmitted or served, written notice of default shall be transmitted by the beneficiary or trustee to the borrower and grantor at their last known addresses by both first-class and either registered or certified mail, return receipt requested, and the beneficiary or trustee shall cause to be posted in a conspicuous place on the premises, a copy of the notice, or personally served on the borrower and grantor. This notice shall contain the following information:
     (a) A description of the property which is then subject to the deed of trust;
     (b) Each county in which the deed of trust is recorded and the document number given to the deed of trust upon recording by each county auditor or recording officer;
     (c) That the beneficiary has declared the borrower or grantor to be in default, and a concise statement of the default alleged;
     (d) An itemized account of the amount or amounts in arrears if the default alleged is failure to make payments;
     (e) An itemized account of all other specific charges, costs, or fees that the borrower, grantor, or any guarantor is or may be obliged to pay to reinstate the deed of trust before the recording of the notice of sale;
     (f) The total of (d) and (e) of this subsection, designated clearly and conspicuously as the amount necessary to reinstate the note and deed of trust before the recording of the notice of sale;
     (g) That failure to cure the alleged default within thirty days of the date of mailing of the notice, or if personally served, within thirty days of the date of personal service thereof, may lead to recordation, transmittal, and publication of a notice of sale, and that the property described in (a) of this subsection may be sold at public auction at a date no less than one hundred twenty days in the future;
     (h) That the effect of the recordation, transmittal, and publication of a notice of sale will be to (i) increase the costs and fees and (ii) publicize the default and advertise the grantor's property for sale;
     (i) That the effect of the sale of the grantor's property by the trustee will be to deprive the grantor of all their interest in the property described in (a) of this subsection;
     (j) That the borrower, grantor, and any guarantor has recourse to the courts pursuant to RCW 61.24.130 to contest the alleged default on any proper ground; and
     (k)(i) That before the notice of sale is recorded, transmitted, or served, the trustee: (A) Has proof that the beneficiary is the actual holder of any promissory note or other obligation secured by the deed of trust; or (B) has possession of the original of any promissory note secured by the deed of trust with the proper endorsements so that the entity initiating the foreclosure sale has the authority to enforce the terms of the promissory note. In the event that an original of a promissory note is lost, a copy of any promissory note secured by the deed of trust and a notarized statement, made by the beneficiary under the penalty of perjury, that the original promissory note has been lost may be provided.
     (ii) Proof that the beneficiary is the actual holder of the promissory note or other obligation secured by the deed of trust must be made by way of an affidavit made by a person with personal knowledge of the physical location of the promissory note or other obligation.
     (l) In the event the property secured by the deed of trust is owner-occupied residential property, a statement, prominently set out at the beginning of the notice, which shall state as follows:
     "You should take care to protect your interest in your home. This notice of default (your failure to pay) is the first step in a process that could result in you losing your home. You should carefully review your options. For example:
     Can you pay and stop the foreclosure process?
     Do you dispute the failure to pay?
     Can you sell your property to preserve your equity?
     Are you able to refinance this loan with a new loan from another lender with payments, terms, and fees that are more affordable?
     Do you qualify for any government or private homeowner assistance programs?
     Do you know if filing for bankruptcy is an option? What are the pros and cons of doing so?
     Do not ignore this notice; because if you do nothing, you could lose your home at a foreclosure sale. (No foreclosure sale can be held any sooner than ninety days after a notice of sale is issued and a notice of sale cannot be issued until thirty days after this notice.) Also, if you do nothing to pay what you owe, be careful of people who claim they can help you. There are many individuals and businesses that watch for the notices of sale in order to unfairly profit as a result of borrowers' distress.
     You may feel you need help understanding what to do. There are a number of professional resources available, including home loan counselors and attorneys, who may assist you. Many legal services are lower-cost or even free, depending on your ability to pay. If you desire legal help in understanding your options or handling this default, you may obtain a referral (at no charge) by contacting the county bar association in the county where your home is located. These legal referral services also provide information about lower-cost or free legal services for those who qualify. You may contact the Department of Financial Institutions, the Washington State Bar Association, or the Office of Civil Legal Aid for possible assistance or referrals."

Sec. 8   RCW 61.24.040 and 2008 c 153 s 3 are each amended to read as follows:
     A deed of trust foreclosed under this chapter shall be foreclosed as follows:
     (1) At least ninety days before the sale, the trustee shall:
     (a) Record a notice in the form described in ((RCW 61.24.040(1)))(f) of this subsection in the office of the auditor in each county in which the deed of trust is recorded;
     (b) To the extent the trustee elects to foreclose its lien or interest, or the beneficiary elects to preserve its right to seek a deficiency judgment against a borrower or grantor under RCW 61.24.100(3)(a), and if their addresses are stated in a recorded instrument evidencing their interest, lien, or claim of lien, or an amendment thereto, or are otherwise known to the trustee, cause a copy of the notice of sale described in ((RCW 61.24.040(1)))(f) of this subsection to be transmitted by both first-class and either certified or registered mail, return receipt requested, to the following persons or their legal representatives, if any, at such address:
     (i) The borrower and grantor;
     (ii) The beneficiary of any deed of trust or mortgagee of any mortgage, or any person who has a lien or claim of lien against the property, that was recorded subsequent to the recordation of the deed of trust being foreclosed and before the recordation of the notice of sale;
     (iii) The vendee in any real estate contract, the lessee in any lease, or the holder of any conveyances of any interest or estate in any portion or all of the property described in such notice, if that contract, lease, or conveyance of such interest or estate, or a memorandum or other notice thereof, was recorded after the recordation of the deed of trust being foreclosed and before the recordation of the notice of sale;
     (iv) The last holder of record of any other lien against or interest in the property that is subject to a subordination to the deed of trust being foreclosed that was recorded before the recordation of the notice of sale;
     (v) The last holder of record of the lien of any judgment subordinate to the deed of trust being foreclosed; and
     (vi) The occupants of property consisting solely of a single-family residence, or a condominium, cooperative, or other dwelling unit in a multiplex or other building containing fewer than five residential units, whether or not the occupant's rental agreement is recorded, which notice may be a single notice addressed to "occupants" for each unit known to the trustee or beneficiary;
     (c) Cause a copy of the notice of sale described in ((RCW 61.24.040(1)))(f) of this subsection to be transmitted by both first-class and either certified or registered mail, return receipt requested, to the plaintiff or the plaintiff's attorney of record, in any court action to foreclose a lien or other encumbrance on all or any part of the property, provided a court action is pending and a lis pendens in connection therewith is recorded in the office of the auditor of any county in which all or part of the property is located on the date the notice is recorded;
     (d) Cause a copy of the notice of sale described in ((RCW 61.24.040(1))) (f) of this subsection to be transmitted by both first-class and either certified or registered mail, return receipt requested, to any person who has recorded a request for notice in accordance with RCW 61.24.045, at the address specified in such person's most recently recorded request for notice;
     (e) Cause a copy of the notice of sale described in ((RCW 61.24.040(1))) (f) of this subsection to be posted in a conspicuous place on the property, or in lieu of posting, cause a copy of said notice to be served upon any occupant of the property;
     (f) The notice shall be in substantially the following form:

[If any personal property is to be included in the trustee's sale, include a description that reasonably identifies such personal property]

[If there is another action pending to foreclose other security for all or part of the same debt, qualify the statement and identify the action.]

[If default is for other than payment of money, set forth the particulars]

Sec. 9   RCW 61.24.060 and 1998 c 295 s 8 are each amended to read as follows:
     The purchaser at the trustee's sale shall be entitled to possession of the property on the twentieth day following the sale, as against the grantor under the deed of trust and anyone having an interest junior to the deed of trust, including occupants ((and)) who are not tenants, who were given all of the notices to which they were entitled under this chapter. For tenant-occupied property, the purchaser shall provide a tenant with written notice in accordance with section 2 of this act. The purchaser shall also have a right to the summary proceedings to obtain possession of real property provided in chapter 59.12 RCW.

NEW SECTION.  Sec. 10   A new section is added to chapter 59.12 RCW to read as follows:
     An unlawful detainer action, commenced as a result of a trustee's sale under chapter 61.24 RCW, must comply with the requirements of RCW 61.24.040 and 61.24.060.

NEW SECTION.  Sec. 11   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 12   Sections 1 through 4, 8, and 9 of this act expire December 31, 2012."