Chapter 61.12 RCW

FORECLOSURE OF REAL ESTATE MORTGAGES AND PERSONAL PROPERTY LIENS

Sections

61.12.010Encumbrances shall be by deed.
61.12.020MortgageFormContentsEffect.
61.12.030Removal of property from mortgaged premisesPenalty.
61.12.040ForeclosureVenue.
61.12.050When remedy confined to mortgaged property.
61.12.060JudgmentOrder of saleSatisfactionUpset price.
61.12.061Exception as to mortgages held by the United States.
61.12.070Decree to direct deficiencyWaiver in complaint.
61.12.080Deficiency judgmentHow enforced.
61.12.090Execution on decreeProcedure.
61.12.093Abandoned improved real estatePurchaser takes free of redemption rights.
61.12.094Abandoned improved real estateDeficiency judgment precludedComplaint, requisites, service.
61.12.095Abandoned improved real estateNot applicable to property used primarily for agricultural purposes.
61.12.100Levy for deficiency under same execution.
61.12.110Notice of sale on deficiency.
61.12.120Concurrent actions prohibited.
61.12.130Payment of sums dueStay of proceedings.
61.12.140Sale in parcels to pay installments due.
61.12.150Sale of whole propertyDisposition of proceeds.
61.12.170Recording.
61.12.180Foreclosure of reverse residential mortgageNotice.

NOTES:

Community realty, encumbering: RCW 26.16.040.
Corporate seals, effect of absence from instrument: RCW 64.04.105.
Foreclosure by organizations not admitted to transact business in state: Chapter 23B.18 RCW.
Mortgagee cannot maintain action for possession: RCW 7.28.230.
Mortgaging of decedents' estates: Chapter 11.56 RCW.
Notice and sale summary foreclosure of personal property liens: Chapter 60.10 RCW.
Partition, sales on credit: RCW 7.52.290, 7.52.420.
Possession of real estate to collect mortgaged rents and profits: RCW 7.28.230.
Sales under execution and redemption: Chapter 6.21 RCW.


61.12.010
Encumbrances shall be by deed.

See RCW 64.04.010.



61.12.020
Mortgage—Form—Contents—Effect.

Mortgages of land may be made in substantially the following form: The mortgagor (here insert name or names) mortgages to (here insert name or names) to secure the payment of (here insert the nature and amount of indebtedness, showing when due, rate of interest, and whether evidenced by note, bond or other instrument or not) the following described real estate (here insert description) situated in the county of . . . . . ., state of Washington.
Dated this . . . . day of . . . . . ., (year) . . . .
Every such mortgage, when otherwise properly executed, shall be deemed and held a good and sufficient conveyance and mortgage to secure the payment of the money therein specified. The parties may insert in such mortgage any lawful agreement or condition.



61.12.030
Removal of property from mortgaged premises—Penalty.

(1) When any real estate in this state is subject to, or is security for, any mortgage, mortgages, lien or liens, other than general liens arising under personal judgments, it shall be unlawful for any person who is the owner, mortgagor, lessee, or occupant of such real estate to destroy or remove or to cause to be destroyed or removed from the real estate any fixtures, buildings, or permanent improvements including a manufactured home whose title has been eliminated under chapter 65.20 RCW, not including crops growing thereon, without having first obtained from the owners or holders of each and all of such mortgages or other liens his, her, or their written consent for such removal or destruction.
(2) Any person willfully violating this section is guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment in the county jail for a period not to exceed six months, or by a fine of not more than five hundred dollars, or by both such fine and imprisonment.
[ 2003 c 53 § 288; 1989 c 343 § 21; 1899 c 75 § 1; RRS § 2709, part. FORMER PART OF SECTION: 1899 c 75 § 2 now codified as RCW 61.12.031.]

NOTES:

IntentEffective date2003 c 53: See notes following RCW 2.48.180.
Effective date1989 c 343: See RCW 65.20.950.



61.12.040
Foreclosure—Venue.

When default is made in the performance of any condition contained in a mortgage, the mortgagee or his or her assigns may proceed in the superior court of the county where the land, or some part thereof, lies, to foreclose the equity of redemption contained in the mortgage.

NOTES:

Real property, actions concerning to be brought where property is located: RCW 4.12.010.



61.12.050
When remedy confined to mortgaged property.

When there is no express agreement in the mortgage nor any separate instrument given for the payment of the sum secured thereby, the remedy of the mortgagee shall be confined to the property mortgaged.



61.12.060
Judgment—Order of sale—Satisfaction—Upset price.

In rendering judgment of foreclosure, the court shall order the mortgaged premises, or so much thereof as may be necessary, to be sold to satisfy the mortgage and costs of the action. The payment of the mortgage debt, with interest and costs, at any time before sale, shall satisfy the judgment. The court, in ordering the sale, may in its discretion, take judicial notice of economic conditions, and after a proper hearing, fix a minimum or upset price to which the mortgaged premises must be bid or sold before confirmation of the sale.
The court may, upon application for the confirmation of a sale, if it has not theretofore fixed an upset price, conduct a hearing, establish the value of the property, and, as a condition to confirmation, require that the fair value of the property be credited upon the foreclosure judgment. If an upset price has been established, the plaintiff may be required to credit this amount upon the judgment as a condition to confirmation. If the fair value as found by the court, when applied to the mortgage debt, discharges it, no deficiency judgment shall be granted.
[ 1935 c 125 § 1; Code 1881 § 611; 1877 p 127 § 616; 1869 p 146 § 565; 1854 p 207 § 410; RRS § 1118. FORMER PART OF SECTION: 1935 c 125 § 1 1/2 now codified as RCW 61.12.061.]

NOTES:

Confirmation of sale of land: RCW 6.21.110.



61.12.061
Exception as to mortgages held by the United States.

The provisions of *this act shall not apply to any mortgage while such mortgage is held by the United States or by any agency, department, bureau, board or commission thereof as security or pledge of the maker, its successors or assigns.
[1935 c 125 § 1 1/2; RRS § 1118-1. Formerly RCW 61.12.060, part.]

NOTES:

*Reviser's note: "this act" appears in 1935 c 125 § 1 1/2; section 1 of the 1935 act amends Code 1881 § 611; the 1935 act is codified as RCW 61.12.060 and 61.12.061.



61.12.070
Decree to direct deficiency—Waiver in complaint.

When there is an express agreement for the payment of the sum of money secured contained in the mortgage or any separate instrument, the court shall direct in the decree of foreclosure that the balance due on the mortgage, and costs which may remain unsatisfied after the sale of the mortgaged premises, shall be satisfied from any property of the mortgage debtor: PROVIDED, HOWEVER, That in all cases where the mortgagee or other owner of such mortgage has expressly waived any right to a deficiency judgment in the complaint, as provided by RCW 6.23.020, there shall be no such judgment for deficiency, and the remedy of the mortgagee or other owner of the mortgage shall be confined to the sale of the property mortgaged.



61.12.080
Deficiency judgment—How enforced.

Judgments over for any deficiency remaining unsatisfied after application of the proceeds of sale of mortgaged property, either real or personal, shall be similar in all respects to other judgments for the recovery of money, and may be made a lien upon the property of a judgment debtor as other judgments, and the collections thereof enforced in the same manner.
[Code 1881 § 622; 1877 p 129 § 625; 1869 p 148 § 575; RRS § 1120.]

NOTES:

Enforcement of judgments: Title 6 RCW.



61.12.090
Execution on decree—Procedure.

A decree of foreclosure of mortgage or other lien may be enforced by execution as an ordinary judgment or decree for the payment of money. The execution shall contain a description of the property described in the decree. The sheriff shall endorse upon the execution the time when he or she receives it, and he or she shall thereupon forthwith proceed to sell such property, or so much thereof as may be necessary to satisfy the judgment, interest, and costs upon giving the notice prescribed in RCW 6.21.030.

NOTES:

Severability1988 c 231: See note following RCW 6.01.050.
Property exempt from execution and attachment: RCW 6.15.010.



61.12.093
Abandoned improved real estate—Purchaser takes free of redemption rights.

In actions to foreclose mortgages on real property improved by structure or structures, if the court finds that the mortgagor or his or her successor in interest has abandoned said property for six months or more, the purchaser at the sheriff's sale shall take title in and to such property free from all redemption rights as provided for in RCW 6.23.010 et seq. upon confirmation of the sheriff's sale by the court. Lack of occupancy by, or by authority of, the mortgagor or his or her successor in interest for a continuous period of six months or more prior to the date of the decree of foreclosure, coupled with failure to make payment upon the mortgage obligation within the said six month period, will be prima facie evidence of abandonment.

NOTES:

Deed to issue upon request immediately after confirmation of sale: RCW 6.21.120.



61.12.094
Abandoned improved real estate—Deficiency judgment precluded—Complaint, requisites, service.

When proceeding under RCW 61.12.093 through 61.12.095, no deficiency judgment shall be allowed. No mortgagee shall deprive any mortgagor, his or her successors in interest, or any redemptioner of redemption rights by default decree without alleging such intention in the complaint: PROVIDED, HOWEVER, That such complaint need not be served upon any person who acquired the status of such successor in interest or redemptioner after the recording of lis pendens in such foreclosure action.



61.12.095
Abandoned improved real estate—Not applicable to property used primarily for agricultural purposes.

RCW 61.12.093 and 61.12.094 shall not apply to property used primarily for agricultural purposes.



61.12.100
Levy for deficiency under same execution.

In all actions of foreclosure where there is a decree for the sale of the mortgaged premises or property, and a judgment over for any deficiency remaining unsatisfied after applying the proceeds of the sale of mortgaged property, further levy and sales upon other property of the judgment debtor may be made under the same execution. In such sales it shall only be necessary to advertise notice for two weeks in a newspaper published in the county where the said property is located, and if there be no newspaper published therein, then in the most convenient newspaper having a circulation in such county.



61.12.110
Notice of sale on deficiency.

When sales of other property not embraced in the mortgage or decree of sale are made under the execution to satisfy any deficiency remaining due upon judgment, two weeks' publication of notice of such sale shall be sufficient. Such notice shall be published in a newspaper printed in the county where the property is situated, and if there be no newspaper published therein, then in the most convenient newspaper having a circulation in said county.
[Code 1881 § 621; 1877 p 129 § 624; 1869 p 148 § 574; RRS § 1124.]

NOTES:

Notice of sales under execution: RCW 6.21.020.



61.12.120
Concurrent actions prohibited.

The plaintiff shall not proceed to foreclose his or her mortgage while he or she is prosecuting any other action for the same debt or matter which is secured by the mortgage, or while he or she is seeking to obtain execution of any judgment in such other action; nor shall he or she prosecute any other action for the same matter while he or she is foreclosing his or her mortgage or prosecuting a judgment of foreclosure.



61.12.130
Payment of sums due—Stay of proceedings.

Whenever a complaint is filed for the foreclosure of a mortgage upon which there shall be due any interest or installment of the principal, and there are other installments not due, if the defendant pay into the court the principal and interest due, with costs, at any time before the final judgment, proceedings thereon shall be stayed, subject to be enforced upon a subsequent default in the payment of any installment of the principal or interest thereafter becoming due. In the final judgment, the court shall direct at what time and upon what default any subsequent execution shall issue.



61.12.140
Sale in parcels to pay installments due.

In such cases, after final judgment, the court shall ascertain whether the property can be sold in parcels, and if it can be done without injury to the interests of the parties, the court shall direct so much only of the premises to be sold, as will be sufficient to pay the amount then due on the mortgage with costs, and the judgment shall remain and be enforced upon any subsequent default, unless the amount due shall be paid before execution of the judgment is perfected.
[Code 1881 § 616; 1877 p 128 § 620 (2d of 2 sections with same number); 1869 p 147 § 570; 1854 p 208 § 415; RRS § 1127.]



61.12.150
Sale of whole property—Disposition of proceeds.

If the mortgaged premises cannot be sold in parcels, the court shall order the whole to be sold, and the proceeds of the sale shall be applied first to the payment of the principal due, interest and costs, and then to the residue secured by the mortgage and not due; and if the residue does not bear interest, a deduction shall be made therefrom by discounting the legal interest. In all cases where the proceeds of the sale are more than sufficient to pay the amount due and costs, the surplus shall be applied to all interests in, or liens or claims of liens against, the property eliminated by sale under this section in the order of priority that the interest, lien, or claim attached to the property. Any remaining surplus shall be paid to the mortgage debtor, his or her heirs and assigns.



61.12.170
Recording.

See chapter 65.08 RCW.



61.12.180
Foreclosure of reverse residential mortgage—Notice.

(1) Before any mortgagee of residential real property commences any legal action under RCW 61.12.040 to foreclose any reverse residential mortgage, such person shall give the mortgagor notice of such intention at least thirty-three days in advance. For the purposes of this section "residential real property" means property consisting solely of a single-family residence, a two-to-four-unit owner occupied dwelling, a residential condominium unit, a manufactured home, or a residential cooperative unit.
(2) Notice of intention to take action as specified in subsection (1) of this section must be in writing and sent to the resident mortgagor or, in case of the death of the last surviving mortgagor, addressed to any known surviving spouse or to "unknown heirs" of the residential mortgagor, by first-class and either certified or registered mail, return receipt requested, at his or her last known address and, if different, at the residence which is the subject of the residential mortgage.
(3) The written notice must be in English and Spanish, in a form to be published by the department of commerce, and must clearly and conspicuously state:
(a) The particular obligation or real estate security interest;
(b) The nature of the default claimed or the reason for acceleration of the mortgage;
(c) Except in cases where the acceleration is due to the death of the last surviving mortgagor, the right, if any, of the mortgagor to cure the default and exactly what performance, including what sum of money, if any, must be tendered to cure the default;
(d) Except in cases where the acceleration is due to the death of the last surviving mortgagor, the applicable time within which the mortgagor must cure the default;
(e) A statement printed in no less than twelve-point font and bolded that reads:
"If you do nothing to cure the default, if any, we intend to start a lawsuit to foreclose your mortgaged property. If the mortgage is foreclosed, your mortgaged property will be sold to pay off the mortgage debt. You should contact a housing counselor or attorney as soon as possible."; and
(f) The toll-free telephone number to find a department-approved home equity conversion mortgage counseling agency from the United States department of housing and urban development, the toll-free numbers for the statewide foreclosure hotline recommended by the housing finance commission, and the statewide civil legal aid hotline for assistance and referrals.
(4) It is an unfair or deceptive act in trade or commerce and an unfair method of competition in violation of the consumer protection act, chapter 19.86 RCW, affecting the public interest, for any person or entity to:
(a) Fail to send the notice as required in this section at least thirty-three days before accelerating the maturity of any reverse residential mortgage obligation or commencing any legal action under RCW 61.12.040;
(b) Fail to state the nature of the default, the correct amount or action that is required to cure the default, if any, or the time and manner in which to cure if cure is possible; or
(c) To send the notice required in this section without the advisory language and information about foreclosure assistance.