BILL REQ. #: S-3907.1
_____________________________________________
SENATE BILL 6514
_____________________________________________| State of Washington | 62nd Legislature | 2012 Regular Session |
By Senators Hobbs, Fain, Kastama, Litzow, Hatfield, and HarperRead first time 01/26/12. Referred to Committee on Financial Institutions, Housing & Insurance.
AN ACT Relating to publishing notice of owner-occupied real
property foreclosure sales on the internet; and amending RCW 61.24.040.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 61.24.040 and 2009 c 292 s 9 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 (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 (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 (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 (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 (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:
NOTICE OF TRUSTEE'S SALE
I.
NOTICE IS HEREBY GIVEN that the undersigned Trustee will on the . . . .
day of . . . . . ., . . ., at the hour of . . . . o'clock . . . . M. at
. . . . . . . . . . . . . . . . . . . . . . . . . . . . [street
address and location if inside a building] in the City of . . . . . .,
State of Washington, sell at public auction to the highest and best
bidder, payable at the time of sale, the following described real
property, situated in the County(ies) of . . . . . ., State of
Washington, to-wit:
[If any personal property is to be included in the trustee's
sale, include a description that reasonably identifies such
personal property]
which is subject to that certain Deed of Trust dated . . . . . .,
. . ., recorded . . . . . ., . . ., under Auditor's File No. . . . .,
records of . . . . . . County, Washington, from . . . . . . . . ., as
Grantor, to . . . . . . . . ., as Trustee, to secure an obligation in
favor of . . . . . . . . ., as Beneficiary, the beneficial interest in
which was assigned by . . . . . . . . ., under an Assignment recorded
under Auditor's File No. . . . . [Include recording information for
all counties if the Deed of Trust is recorded in more than one county.]
II.
No action commenced by the Beneficiary of the Deed of Trust is now
pending to seek satisfaction of the obligation in any Court by reason
of the Borrower's or Grantor's default on the obligation secured by the
Deed of Trust.
[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.]
III.
The default(s) for which this foreclosure is made is/are as follows:
[If default is for other than payment of money, set forth the
particulars]
Failure to pay when due the following amounts which are now in arrears:
IV.
The sum owing on the obligation secured by the Deed of Trust is:
Principal $ . . . . . ., together with interest as provided in the note
or other instrument secured from the . . . . day of . . . . . ., . . .,
and such other costs and fees as are due under the note or other
instrument secured, and as are provided by statute.
V.
The above-described real property will be sold to satisfy the expense
of sale and the obligation secured by the Deed of Trust as provided by
statute. The sale will be made without warranty, express or implied,
regarding title, possession, or encumbrances on the . . . . day of
. . . . . ., . . . The default(s) referred to in paragraph III must be
cured by the . . . . day of . . . . . ., . . . (11 days before the sale
date), to cause a discontinuance of the sale. The sale will be
discontinued and terminated if at any time on or before the . . . . day
of . . . . . ., . . ., (11 days before the sale date), the default(s)
as set forth in paragraph III is/are cured and the Trustee's fees and
costs are paid. The sale may be terminated any time after the . . . .
day of . . . . . ., . . . (11 days before the sale date), and before
the sale by the Borrower, Grantor, any Guarantor, or the holder of any
recorded junior lien or encumbrance paying the entire principal and
interest secured by the Deed of Trust, plus costs, fees, and advances,
if any, made pursuant to the terms of the obligation and/or Deed of
Trust, and curing all other defaults.
VI.
A written notice of default was transmitted by the Beneficiary or
Trustee to the Borrower and Grantor at the following addresses:
| . . . . . . . . . . . . |
| . . . . . . . . . . . . |
| . . . . . . . . . . . . |
by both first-class and certified mail on the . . . . day of
. . . . . ., . . ., proof of which is in the possession of the Trustee;
and the Borrower and Grantor were personally served on the . . . . day
of . . . . . ., . . ., with said written notice of default or the
written notice of default was posted in a conspicuous place on the real
property described in paragraph I above, and the Trustee has possession
of proof of such service or posting.
VII.
The Trustee whose name and address are set forth below will provide in
writing to anyone requesting it, a statement of all costs and fees due
at any time prior to the sale.
VIII.
The effect of the sale will be to deprive the Grantor and all those who
hold by, through or under the Grantor of all their interest in the
above-described property.
IX.
Anyone having any objection to the sale on any grounds whatsoever will
be afforded an opportunity to be heard as to those objections if they
bring a lawsuit to restrain the sale pursuant to RCW 61.24.130.
Failure to bring such a lawsuit may result in a waiver of any proper
grounds for invalidating the Trustee's sale.
[Add Part X to this notice if applicable under RCW 61.24.040(((9)))
(10)]
[Acknowledgment]
(2) In addition to providing the borrower and grantor the notice of
sale described in subsection (1)(f) of this section, the trustee shall
include with the copy of the notice which is mailed to the grantor, a
statement to the grantor in substantially the following form:
NOTICE OF FORECLOSURE
Pursuant to the Revised Code of Washington,
Chapter 61.24 RCW
The attached Notice of Trustee's Sale is a consequence of
default(s) in the obligation to . . . . . ., the Beneficiary of your
Deed of Trust and owner of the obligation secured thereby. Unless the
default(s) is/are cured, your property will be sold at auction on the
. . . . day of . . . . . ., . . .
To cure the default(s), you must bring the payments current, cure
any other defaults, and pay accrued late charges and other costs,
advances, and attorneys' fees as set forth below by the . . . . day of
. . . . . ., . . . [11 days before the sale date]. To date, these
arrears and costs are as follows:
| | | Estimated amount |
| | Currently due | that will be due |
| | to reinstate | to reinstate |
| | on. . . . . | on. . . . . |
| | . . . . . . | . . . . . . |
| | | (11 days before |
| | | the date set |
| | | for sale)
|
| Delinquent payments | |
| from. . . . . . , | | |
| . . . , in the | | |
| amount of | | |
| $. . . . /mo.: | $. . . . | $. . . .
|
| Late charges in | | |
| the total | | |
| amount of: | $. . . . | $. . . . |
| | | | Estimated |
| | | | Amounts |
| Attorneys' fees: | $. . . . | $. . . .
|
| Trustee's fee: | $. . . . | $. . . .
|
| Trustee's expenses: | |
(Itemization)
| | |
| Title report | $. . . . | $. . . . |
| Recording fees | $. . . . | $. . . . |
Service/Posting
of Notices |
$. . . . |
$. . . . |
Postage/Copying
expense |
$. . . . |
$. . . . |
| Publication | $. . . . | $. . . . |
Telephone
charges |
$. . . . | $. . . . |
| Inspection fees | $. . . . | $. . . . |
| . . . . . . | $. . . . | $. . . . |
| . . . . . . | $. . . . | $. . . . |
| TOTALS | $. . . . | $. . . . |
To pay off the entire obligation secured by your Deed of Trust as
of the . . . . . day of . . . . . . you must pay a total of $. . . . .
in principal, $. . . . . in interest, plus other costs and advances
estimated to date in the amount of $. . . . . . From and after the
date of this notice you must submit a written request to the Trustee to
obtain the total amount to pay off the entire obligation secured by
your Deed of Trust as of the payoff date.
As to the defaults which do not involve payment of money to the
Beneficiary of your Deed of Trust, you must cure each such default.
Listed below are the defaults which do not involve payment of money to
the Beneficiary of your Deed of Trust. Opposite each such listed
default is a brief description of the action necessary to cure the
default and a description of the documentation necessary to show that
the default has been cured.
You may reinstate your Deed of Trust and the obligation secured
thereby at any time up to and including the . . . . day of . . . . . .,
. . . [11 days before the sale date], by paying the amount set forth or
estimated above and by curing any other defaults described above. Of
course, as time passes other payments may become due, and any further
payments coming due and any additional late charges must be added to
your reinstating payment. Any new defaults not involving payment of
money that occur after the date of this notice must also be cured in
order to effect reinstatement. In addition, because some of the
charges can only be estimated at this time, and because the amount
necessary to reinstate or to pay off the entire indebtedness may
include presently unknown expenditures required to preserve the
property or to comply with state or local law, it will be necessary for
you to contact the Trustee before the time you tender reinstatement or
the payoff amount so that you may be advised of the exact amount you
will be required to pay. Tender of payment or performance must be made
to: . . . . . ., whose address is . . . . . ., telephone ( )
. . . . . . AFTER THE . . . . DAY OF . . . . . ., . . ., YOU MAY NOT
REINSTATE YOUR DEED OF TRUST BY PAYING THE BACK PAYMENTS AND COSTS AND
FEES AND CURING THE OTHER DEFAULTS AS OUTLINED ABOVE. The Trustee will
respond to any written request for current payoff or reinstatement
amounts within ten days of receipt of your written request. In such a
case, you will only be able to stop the sale by paying, before the
sale, the total principal balance ($ . . . . . .) plus accrued
interest, costs and advances, if any, made pursuant to the terms of the
documents and by curing the other defaults as outlined above.
You may contest this default by initiating court action in the
Superior Court of the county in which the sale is to be held. In such
action, you may raise any legitimate defenses you have to this default.
A copy of your Deed of Trust and documents evidencing the obligation
secured thereby are enclosed. You may wish to consult a lawyer. Legal
action on your part may prevent or restrain the sale, but only if you
persuade the court of the merits of your defense. You may contact the
Department of Financial Institutions or the statewide civil legal aid
hotline for possible assistance or referrals.
The court may grant a restraining order or injunction to restrain
a trustee's sale pursuant to RCW 61.24.130 upon five days notice to the
trustee of the time when, place where, and the judge before whom the
application for the restraining order or injunction is to be made.
This notice shall include copies of all pleadings and related documents
to be given to the judge. Notice and other process may be served on
the trustee at:
If you do not reinstate the secured obligation and your Deed of
Trust in the manner set forth above, or if you do not succeed in
restraining the sale by court action, your property will be sold. The
effect of such sale will be to deprive you and all those who hold by,
through or under you of all interest in the property;
(3) In addition, the trustee shall cause a copy of the notice of
sale described in subsection (1)(f) of this section (excluding the
acknowledgment) to be published in a legal newspaper in each county in
which the property or any part thereof is situated, once on or between
the thirty-fifth and twenty-eighth day before the date of sale, and
once on or between the fourteenth and seventh day before the date of
sale;
(4)(a) For owner-occupied properties, the trustee shall also cause
a copy of the notice of sale described in subsection (1)(f) of this
section (excluding the acknowledgement) to be published on an internet
web site beginning on the thirty-fifth day before the date of sale and
ending on the seventh day before the date of sale.
(b) To qualify as an internet web site suitable for publishing a
notice of sale, the internet web site must:
(i) Be available to any person;
(ii) Be completely free to the public for viewing and not require
a subscription to the site;
(iii) Be primarily used to advertise real property under
foreclosure; and
(iv) Be operated by a person who maintains a physical presence and
address in the state, including telephone service at such address;
(5) On the date and at the time designated in the notice of sale,
the trustee or its authorized agent shall sell the property at public
auction to the highest bidder. The trustee may sell the property in
gross or in parcels as the trustee shall deem most advantageous;
(((5))) (6) The place of sale shall be at any designated public
place within the county where the property is located and if the
property is in more than one county, the sale may be in any of the
counties where the property is located. The sale shall be on Friday,
or if Friday is a legal holiday on the following Monday, and during the
hours set by statute for the conduct of sales of real estate at
execution;
(((6))) (7) The trustee has no obligation to, but may, for any
cause the trustee deems advantageous, continue the sale for a period or
periods not exceeding a total of one hundred twenty days by (a) a
public proclamation at the time and place fixed for sale in the notice
of sale and if the continuance is beyond the date of sale, by giving
notice of the new time and place of the sale by both first class and
either certified or registered mail, return receipt requested, to the
persons specified in subsection (1)(b)(i) and (ii) of this section to
be deposited in the mail (i) not less than four days before the new
date fixed for the sale if the sale is continued for up to seven days;
or (ii) not more than three days after the date of the continuance by
oral proclamation if the sale is continued for more than seven days,
or, alternatively, (b) by giving notice of the time and place of the
postponed sale in the manner and to the persons specified in subsection
(1)(b), (c), (d), and (e) of this section and publishing a copy of such
notice once in the newspaper(s) described in subsection (3) of this
section, more than seven days before the date fixed for sale in the
notice of sale. No other notice of the postponed sale need be given;
(((7))) (8) The purchaser shall forthwith pay the price bid and on
payment the trustee shall execute to the purchaser its deed; the deed
shall recite the facts showing that the sale was conducted in
compliance with all of the requirements of this chapter and of the deed
of trust, which recital shall be prima facie evidence of such
compliance and conclusive evidence thereof in favor of bona fide
purchasers and encumbrancers for value, except that these recitals
shall not affect the lien or interest of any person entitled to notice
under subsection (1) of this section, if the trustee fails to give the
required notice to such person. In such case, the lien or interest of
such omitted person shall not be affected by the sale and such omitted
person shall be treated as if such person was the holder of the same
lien or interest and was omitted as a party defendant in a judicial
foreclosure proceeding;
(((8))) (9) The sale as authorized under this chapter shall not
take place less than one hundred ninety days from the date of default
in any of the obligations secured;
(((9))) (10) If the trustee elects to foreclose the interest of any
occupant or tenant of property comprised 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, the following notice shall be included as Part X of the Notice
of Trustee's Sale:
X.
NOTICE TO OCCUPANTS OR TENANTS
The purchaser at the trustee's sale is entitled to possession of the
property on the 20th day following the sale, as against the grantor
under the deed of trust (the owner) and anyone having an interest
junior to the deed of trust, including occupants who are not tenants.
After the 20th day following the sale the purchaser has the right to
evict occupants who are not tenants by summary proceedings under
chapter 59.12 RCW. For tenant-occupied property, the purchaser shall
provide a tenant with written notice in accordance with RCW 61.24.060;
(((10))) (11) Only one copy of all notices required by this chapter
need be given to a person who is both the borrower and the grantor.
All notices required by this chapter that are given to a general
partnership are deemed given to each of its general partners, unless
otherwise agreed by the parties.
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