Important things to keep in mind when facing foreclosure
In a recent case, the issue arose as to what options a party has when their home has already been foreclosed upon, and sold in a trustee’s sale. Washington’s Deed of Trust Act provides direction for this issue in RCW 61.24.130.
As interpreted in In re Marriage of Kaseburg,126 Wash.App. 546, 108 P.3d 1278 (2005), a party waives the right to post-foreclosure-sale remedies under the Deed of Trust Act where the party:
- received notice of the right to enjoin the sale;
- had actual or constructive knowledge of a defense to foreclosure prior to the sale; AND
- failed to bring an action to obtain a court order enjoining the sale
This Act provides a the only manner in which ANY party may prevent or restrain a trustee’s sale on any proper ground, once the foreclosure has begun with a “receipt of the notice of sale and foreclosure.” Id. at 236.
It would seem that the safeguards required before a trustee’s sale can go through, influenced what that legislature allows in post-foreclosure-sale remedies. In other words, even if there is a valid reason to undue a trustee’s sale, you must take those steps prior to the sale. IF, of course, you did not receive proper notice and were not aware of the sale, you are NOT barred from bringing an action to stop the sale.
To be safe, if one is facing a foreclosure and his/her home has a scheduled trustee’s sale date, the best thing is to hire an attorney to initiate the legal process. At a minimum, therefore, the home owner is not guilty of waiving his or her rights to post-foreclosure-sale remedies and can forestall the process before it is too late.