BILL REQ. #: S-0898.3
State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 01/31/11. Referred to Committee on Financial Institutions, Housing & Insurance.
AN ACT Relating to lien holder requirements for certain foreclosure sales; amending RCW 61.24.127; and adding a new section to chapter 64.04 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 A new section is added to chapter 64.04 RCW
to read as follows:
(1) Whenever a written agreement for the purchase and sale of
owner-occupied residential real estate, by its existing terms and upon
closing, results in contractual sale proceeds that are insufficient to
pay in full the obligation owed to a lien holder of a beneficial
interest of a mortgage, deed of trust, or real estate contract
encumbering the residential real estate and the seller makes a written
offer to the lien holder to accept less than the amount the lien holder
is owed in order to facilitate closing of the purchase and sale
acceptable to the purchaser and seller, the lien holder must in good
faith, within forty-five days upon the receipt of a written offer,
deliver to the seller, in writing, an acceptance, rejection, or
counter-offer of the seller's written offer.
(2) A seller has a right of action for actual monetary damages
incurred as a result of the lien holder's failure to comply with the
good faith requirements of subsection (1) of this section.
(3) The legislature finds that the practices covered by this
section are matters vitally affecting the public interest for the
purpose of applying chapter 19.86 RCW. A violation of this section is
not reasonable in relation to the development and preservation of
business and is an unfair or deceptive act in trade or commerce and an
unfair method of competition for the purpose of applying chapter 19.86
RCW.
Sec. 2 RCW 61.24.127 and 2009 c 292 s 6 are each amended to read
as follows:
(1) The failure of the borrower or 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 or misrepresentation;
(b) A violation of Title 19 RCW; ((or))
(c) Failure of the trustee to materially comply with the provisions
of this chapter; or
(d) A violation of section 1 of this act.
(2) 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 or within the applicable statute of
limitations for such claim, whichever expires earlier;
(b) The claim may not seek any remedy at law or in equity other
than monetary damages;
(c) The claim may not affect in any way the validity or finality of
the foreclosure sale or a subsequent transfer of the property;
(d) A borrower or grantor who files such a claim is prohibited from
recording a lis pendens or any other document purporting to create a
similar effect, related to the real property foreclosed upon;
(e) The claim may not operate in any way 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 borrower or
grantor may, consistent with RCW 4.56.190, become a judgment lien on
real property then owned by the judgment debtor; and
(f) The relief that may be granted for judgment upon the claim is
limited to actual damages. However, if the borrower or 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) [(3)])) (3) This section applies only to foreclosures of
owner-occupied residential real property.
(((5) [(4)])) (4) This section does not apply to the foreclosure of
a deed of trust used to secure a commercial loan.