Can I force my bank to foreclose on my property?

Asked almost 4 years ago - Puyallup, WA

I moved out of property that I can no longer afford over a year ago but my bank has not foreclosed on the property. Now the HOA has sued me for not paying HOA dues. Can I make the bank foreclose?

Attorney answers (2)

  1. Roger Jay Sharp

    Contributor Level 11

    Answered . Many people in Washington are facing this difficult situation. For what ever reason, they are no longer living in a property subject to HOA dues. They are no longer paying the mortgage and the bank could foreclose. However, the bank has not foreclosed and HOA dues continue to accrue.

    In Washington the statute governing HOAs is RCW 64.38. (A condominium association is governed by RCW 64.34, and a condominium association has different rights than a non-condominium HOA.). An HOA does not have a statutory lien, although it may have a lien created under the declaration recorded in the process of creating the HOA. However, under the declaration it is likely that the HOA cannot foreclose to eliminate a bank's interests. Since the HOA cannot foreclose and eliminate the bank's interest, if the property is worth less than the amount owed to the bank, the HOA can only collect the amount due by going after you as the owner.

    The deed of trust you signed when you obtained the loan to purchase your property gave the bank certain rights, including the right to foreclose. However, a bank can waive its rights. It can elect not to foreclose.

    Perhaps the best solution is to cause the property to be rented for at least enough money to satisfy the HOA dues. Sometimes this may not be possible due to the condition of the property or because the bylaws enforced by the HOA prohibit rentals.

    Perhaps a creative attorney can help you find a solution.

  2. Paul Stephen Johnson

    Contributor Level 14

    Answered . Is the HOA seeking to foreclose? This may trigger the bank to take action. In bankruptcy you can file a motion to force the creditor to act. You may wish to consult an attorney in Washington who can represent you in the HOA proceeding and ask his/her advice.

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