Dear friends in the legal profession,
Is there a way to delay foreclosure in Washington State? The house is part of what appears to be an insolvent estate. I have a special needs person that was living with the deceased who is still in the house, and thus I need more time to sort out where and how this person is going to live. I would like to delay a couple months - house is scheduled to be sold in March 2011. I was thinking along the lines of a "produce the note" motion or something. I plan to hire a lawyer.
Chapter 7 Bankruptcy Attorney
When served with the foreclosure paperwork you (or the lawyer) should file an Answer to defend against the foreclosure.
Here are some Quick Facts about foreclosure in Washington: http://www.foreclosurelaw.org
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of Trust, Mortgage
- Timeline: Typically 120 days
- Right of Redemption: Yes, but may be precluded.
- Deficiency Judgments Allowed: Yes
In Washington, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or non-judicial foreclosure process.
The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, the property will be auctioned off to the highest bidder.
The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee.
If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows:
The notice of sale must be transmitted both by regular mail and by certified mail, return receipt requested, to the borrower at their last known address, and by regular mail to the attorney of record for the borrower, if any, not less than thirty (30) days prior to the day of sale.
The sheriff must publish a notice of the sale once a week, consecutively, for four (4) weeks, in any daily or weekly legal newspaper of general circulation published in the county in which the property is located. Additionally, the sheriff must also post the notice in two public places, one of which must be the courthouse door, in the county where the sale is to take place for a period of not less than four weeks prior to the day of sale.
Said notice must contain the time and place of the foreclosure sale, the names of the parties to the deed, the date of the deed, recording information, a property description, the terms of the sale, and the borrowers rights (or lack of) redemption.
The borrower has up to eleven (11) days before the sale stop the foreclosure process by paying the past due payments, plus expenses, including trustee and attorney fees.
The sale must be made by auction between 9:00 am in the morning and 4:00 am in the afternoon at the courthouse door on Friday unless Friday is a legal holiday and then the sale must be held on the next following regular business day. The sale may not be conducted less than 190 days from the date of default and the highest bidder will receive a certificate of sale.
If the non-judicial foreclosure process is used by the lender, then it cannot sue for a deficiency judgment. On judicial foreclosure sales, the borrower can be sued for a deficiency, unless the property is found to be abandoned for six (6) months before the decree of foreclosure.
REQUEST: Please give this answer a "thumbs up"(below) if you find it valuable.
Disclaimer: This answer does not constitute legal advice.
2 found this helpful
Landlord / Tenant Lawyer
WA is a non judicial state, so if you wait to file an answer, the foreclosure will be finalized before that ever happens, as you have to file suit against the lender/servicer/possibly the trustee.
Please contact the State Bar by going to http://www.wsba.org they have put together a volunteer project to match up distressed homeowners with volunteer attorneys, and have been getting excellent results. You can't file a motion unless or until you file a lawsuit to restrain the sale. Additionally, the disabled person probably qualifies for reasonable accommodation. Be sure to advise the attorney.
Hope this helps. Elizabeth Powell
1 found this helpful