§21.5 GRANTOR'S PRESALE RIGHTS
This section discusses the rights of a grantor after default, prior to a nonjudicial foreclosure sale.
(1) Payoff or cure
The grantor has the right to pay off the entire obligation before the sale or cure the default and reinstate the debt, provided that the cure takes place at least 11 days before the sale. RCW 61.24.040(2).
(2) Restrain the sale
When the grantor cannot pay off the entire obligation, chooses not to cure, or cannot cure a default, in most cases the safest approach to attack a nonjudicial foreclosure sale is to file a lawsuit and move to restrain the sale. Amotion to restrain the sale must be brought at least five days before the sale and must be accompanied by a bond or other security required by the Act. RCW 61.24.130. Challenging a nonjudicial foreclosure prior to the date of the sale is consistent with the objectives set forth in Cox v. Helenius, 103 Wn.2d 383, 693 P.2d 683 (1985).
If equitable under the specific facts of the case, the failure to restrain the sale by injunction or otherwise may operate to waive the grantor's right to object to the sale. Klem v. Wash. Mut. Bank, 176 Wn.2d 771,295 P.3d 1179 (2013); Albice v. Premier Mortg. Servs. of Wash.,174 Wn.2d 560, 276 P.3d 1277 (2012); cf. Frizzell v. Murray, 179 Wn.2d 301, 313 P.3d 1171 (2013); Plein v. Lackey, 149 Wn.2d 214, 227, 67 P.3d 1061 (2003); Brown v. Household Realty Corp., 146 Wn.App. 157, 189 P.3d 233 (2008). See discussion of waiver in §21.7, below.
(3) CPA damages
The Act sets out specific grounds that constitute violations of the Consumer Protection Act (CPA), Chapter 19.86 RCW. RCW 61.24.135. A grantor may assert a presale claim seeking compensation for injuries arising out of any violation of the CPA. Frias v. Asset Foreclosure Servs., Inc., No. 89343-8,2014 WL4648173, at *2 (Wash. Sept. 18,2014) (citing Vawter v. Qual. Loan Serv. Corp. of Wash., 707 F.Supp.2d 1115 (W.D. Wash. 2010)). The court in Frias held that the Act does not preclude a presale claim to compensate for injury under the CPA. Id. at *10, slip op. at 22. The Act does not alter the elements of a cause of action under the CPA or the time at which the action accrues. Id. at *8, slip op. at 18. The court also held that material violations of the Act before the sale do not give rise to an independent cause of action for monetary damages under the Act. Id. at *10, slip op. at 22. In reaching that holding, the court found no explicit legislative intent to create a presale cause of action for monetary damages under the Act. Id. at * 8, slip op. at 17-18. When considering the three-part test for determining if an implied cause of action existed under the...
