What Must Be Done to Stop Non-Judicial Foreclosure — Preserving Defenses

In Plein v. Lackey, 149 Wn.2d 214, 229, 67 P.3d 1061 (2003), the Washington Supreme Court held that failure to obtain a preliminary injunction or restraining order barring a nonjudicial foreclosure sale waived defenses to the sale. The court stated that the under the waiver  provision set forth in RCW 61.24.040(1)(f)(IX) (“[a]nyone having any objection to the sale on any grounds whatsoever will be afforded an opportunity to be heard as to those objections if they bring a lawsuit to restrain the sale pursuant to RCW  61.24.130“).  Failure to bring such a lawsuit may result in a waiver of any proper grounds for invalidating the Trustee’s sale.a waiver of a post-sale contest occurs when “a party (1) received notice of the right to enjoin the sale, (2) had actual or constructive knowledge of a defense to foreclosure prior to the sale, and (3) failed to bring an action to obtain a court order enjoining the sale.” Id. at 227 (citing Country Express Stores, Inc. v. Sims, 87 Wn. App. 741, 751, 943 P.2d 374 (1997)). We determined that the plaintiff had waived his right to contest the foreclosure because, although he sought a permanent injunction and disputed whether there was a default, he “failed to obtain a preliminary injunction or other order restraining the foreclosure sale.” Id. at 229. Plein was re-affirmed in Frizzell v. Murray, Case No. 87927-3  (Wn. Supreme Court,  Dec. 5, 2013).

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