1	Northwest Credit Union Collectors Association Home Foreclosures – Start to Finish: Our member’s home is in foreclosure, now what? Webinar – September 25, 2008
2	Presented By:
3	INTRODUCTION Who we are: Freddie Mac – Washington State Designated Counsel. Fannie Mae – Washington State Retained Counsel. Members of USFN, Seattle & Washington MBA, National MBA, NWCUCA, NACTT, REOMAC, NARCA What we do: Foreclosures, evictions, bankruptcy, collections, litigation. Where we work: Washington, Oregon, Idaho & Alaska (Collections only)
4	Seattle
5	Topics of Discussion Introduction to Washington, Oregon & Idaho Foreclosure timelines Fair debt collections practices act (FDCPA) Bankruptcy law changes Eviction Procedures Title perils and pitfalls First, Second Lienholds and Multiple Accounts
6	Washington State
7	Market Trends Realty Trac U.S. Foreclosure market report for September 2008 shows 303,879 properties nationwide were in some stage of foreclosure. This is up 27% over 2007. Nevada, California and Arizona have top state foreclosure rates. 303,879 sales held year to date nationwide.
8	Foreclosure Stats Foreclosure rates up nationwide:
9	Washington Foreclosure Process
10	Oregon State
11	Oregon Foreclosure Process
12	Counties in Idaho
13	Idaho Foreclosure Process
14	Going to Sale - Washington Approximately 132 days after the referral is received, the sale is held - provided there have been no delays in the process! If referral received on a Tuesday, we can cut the number of days to 122 days, or 128 days for a referral received on a Wednesday, barring no holidays or other delays.
15	Going to Sale - Oregon Must be appointed trustee to begin foreclosure. Assuming: 5 business days for receipt of appointment, and 8 business days for receipt of TSG Can go to sale approximately 132-136 days from date of referral.
16	Going to Sale – Idaho Approximately 150 days after the referral is received, the sale is held – provided there have been no delays in the process! Purchasers at sale entitled to possession after the 10^th day following the trustee’s sale.
17	FDCPA When a servicer/lender is a “Debt Collector” Application of the Act to Nonjudicial Foreclosures
18	FDCPA cont’d. Risks to Trustees Third Party Disclosures Application of the Act to Nonjudicial Foreclosures Leaving Phone Messages Reinstatement Letters Verification of Debt
19	Servicemember’s Civil Relief Act (SCRA) SCRA covers all Active Duty servicemembers, Reservists and members of the National Guard while on active duty. Protection begins on date of entering active duty. Protection generally terminates within 30 to 90 days from date of discharge from Active Duty. Foreclosure: Protection offered to Active Servicemembers if contract obligation is entered into prior to entry into Active Duty.
20	Servicemember’s Civil Relief Act (SCRA) cont’d. Obligations Servicemembers may be protected against: Outstanding credit card debt Mortgage payments Pending trials Taxes Terminations of lease
21	Servicemember’s Civil Relief Act (SCRA) cont’d. Maximum rate of interest on debts incurred before military service: Interest rate in excess of 6% is forgiven if servicemember provides copy of orders not less than 180 days after the date of servicemember’s termination or release from military service. Refer to State Statutes Washington - RCW 38.42.050 Oregon – ORS 408, ORS 314 (State Tax Relief) Idaho – I.C. Section 65
22	Risks to Lenders and Forwarders Vicarious Liability Negligent Supervision of Trustee Washington Consumer Protection Act
23	Title Perils and Pitfalls Mechanics’ liens and Construction Loans Homeowners Associations and Condo Association Liens UCC Fixture Filing Manufactured Homes Detecting and Correcting fraudulent reconveyances Unraveling incorrect reconveyances Dealing with Unrecorded Deeds of Trust Clearing Prior Liens Dangers of County Tax Sales How to complete a nonjudicial foreclosure when borrowers are deceased Contaminated Properties
24	New Construction?
25	Construction Completed?
26	Title Perils and Pitfalls Mechanics’ Liens and Construction Loans RCW 62.18; ORS 87.025 Priority Lien for value of work, plus costs and reasonable attorneys fees Strict compliance to perfect lien Title coverage UCC Fixture Filing Record prior to installation or 20 days Remedies
27	Title Perils and Pitfalls Condo Liens Distinguish between old (Horizontal Property Regimes Act, RCW 64.32) and new (Condominium Act, RCW 64.34) statutes, and between the type of development: ORS Ch. 100 (condos) ORS Ch. 94 (planned communities). Homeowner Associations No statutory priority, lien rights based on covenants.
28	Mobile Home
29	Mobile Homes No Title Elimination – No security interest: Treat as an abandoned vehicle. No Title Elimination - Lender on MH Title: Treat it as UCC sale. Foreclosure against both the real and personal property by including the mobile home description with real property description in Foreclosure Notices. Post sale conveyance of real property by trustee's deed and the mobile home by personal property transfer through the Department of Licensing or complete title elimination.
30	Mobile Homes – cont’d. No Title Elimination - Lender Not on MH Title, But Have Title Elimination Documents: If we can find the escrow, then we can often eliminate the title before the foreclosure sale and complete the process. No Title Elimination - Lender Not on MH, and No Title Elimination Documents: Attempt to locate registered owner and legal owner on title and secure releases. Alternatively, if the loan was written with the expectation the MH was to be collateral, we can file a suit for declaratory relief to establish the lender’s security interest in the MH.
31	Mobile Homes – cont’d. Lender Liability for Rent. RCW 59.20.074 A lender who has a security interest in a mobile home, located within a mobile home park, with a right to possession, is liable to the landlord from the date the secured party receives written notice by certified mail for rent for occupancy of the mobile home space under the same terms the tenant was paying prior to repossession, and any other reasonable expenses incurred after the receipt of the notice.
32	Title Perils and Pitfalls Detecting and correcting “debt forgiveness” and “private foreclosure” schemes Red Flags: The appointment signed by a “Settlor” or “Trustor.” Substitution not typical form document. The trustee appointed is an individual, not title company or other qualified entity. Substitution recorded as lengthy package of documents. Problem with intervening lienholders/BFPs Nonjudicial foreclosure with title company approval. Summons & Complaint, Lis Pendens
33	Title Perils and Pitfalls Unraveling Incorrect Reconveyances Title report/Litigation guarantee Junior lienholders/BFPs? Rescission Agreement Lender, Borrower, Title Company confirm original policy unaffected Summons and Complaint, Lis Pendens Inadvertence, debt not satisfied, innocent third party not affected
34	Title Perils and Pitfalls What if the Deed of Trust is NOT recorded? Check Title to Property Title Claim? Record Original Summons and Complaint, Lis Pendens Junior deeds of trust, judgments
35	Title Perils and Pitfalls Clearing Prior Liens: judgments, deeds of trust, lines of credit, etc. Title Claim? Look at the lender’s policy. Evidence of Payoff: HUD 1, cancelled checks, correspondence. LOCs: Oregon and Washington ORS 86.155; BOA v. Wells Fargo, 126 Wn.2d 710 (2005)
36	Title Perils and Pitfalls Dangers of County Tax Sales Washington – no redemption Oregon – 2 year redemption Idaho – 1 year redemption Payment of taxes by third parties, priority of lien Property Taxes, Water and Sewer Liens generally have priority and must be paid Environmental/Abatement Actions. Electrical Utilities. Lien for 4 months Tacoma PUD, Seattle City Light Seattle Mortgage Co. v. Heirs of Daisy Gray, 113 Wn.2d 479 (2006)
37	Title Perils and Pitfalls How to complete a nonjudicial foreclosure when borrowers are deceased. In general, no probate = judicial foreclosure. Investigation for title co. to insure nonjudicial Obtain death certificate Search for obituaries Investigative research for possible relatives Lender may have information Goal is to identify and obtain addresses for all potential heirs WA and ID are community property states, OR is not.
38	Title Perils and Pitfalls Contaminated Property Meth/Drug Labs Seek to identify prior to trustee’s sale. Retain environmental consultant to evaluate and prepare estimate for the cost of clean up. Obtain certificate of clean up from the local government. Insurance coverage? See Graff v. All State Insurance, 113 Wn. App 799, 54 P.3d 1266 (2002) (drug lab was “vandalism” and not “contamination” and covered under homeowner’s policy). RCW 64.44 Fuel Tanks Insurance coverage? See Pederson’s v. Transamerica Insurance, 83 Wn. App. 432, 922 P.2d 126 (1996); RCW 70.105D. Nuisance/Abatement/Nonconforming Uses PMI insurance coverage may provide coverage. Some title policies now offer this type of coverage. Retain consultant or contractor to evaluate and prepare estimates to repair or correct alleged deficiency. Local government may have prior lien for abatement costs.
39	Contamination
40	Contaminated properties “Just a little mold to clean up!”
41	A Restrained Sale Must comply with the statutory procedure set forth in RCW 61.24.130. Action filed with the court Trustee served 5 days before the sale Bond required Failure to enjoin sale could result in waiver of claims Suit may seek other relief
42	Borrower Files Bankruptcy Now what should we do, and when should we do it? BAPCPA--The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
43	The Automatic Stay—11 USC §362 Goes into effect instantly upon debtor’s Bankruptcy case filing under Chapter 7, 11, or 13. Stop all collection and communication activities immediately upon notice of filing. Always safe bet to consult your local counsel if necessary for how best to proceed in particular circumstances.
44	How Long Must We Wait Before We Can Proceed? 11 USC 362 (c)(1) the stay of an act against property of the estate continues until such property is no longer property of the estate;* 11 USC 362(c)(2) the stay of any other act continues until the earliest of-- (A) the time the case is closed; (B) the time the case is dismissed; or (C) the time a discharge is granted or denied;* Caution: Relief from co-debtor stay in Chapter 13 cases necessary for non-filing borrowers when consumer loan is present. No co-debtor stay in Chapter 7 cases. *(McLean--adversary case where creditor proceeded with foreclosure sale after discharge but w/o first obtaining relief from stay. Property was still property of estate after discharge since relief had not been granted.)
45	Automatic Stay and Repeat Filers. (§362(c)). The benefits of the automatic stay are restricted for certain repeat filers: a. Bankruptcy within previous year? Debtor who had bk case dismissed within the last year will have the benefit of the automatic stay for only 30 days. b. Two or more bankruptcies within previous year? Debtor who had two or more cases dismissed within the last year does not get benefit of stay whatsoever.
46	Automatic Stay and Repeat Filers. (§362(c)). c. Extension of the stay. (§362(c)(3)(A)(B). The stay may be extended by the court in the above cases, but only upon a showing by the debtor that the current case is filed in good faith. d. Pending Motion for Relief. (§362(c)(3)(C)(ii)). New filing presumed to be not in good faith as to any creditor who filed a motion to lift the stay in the previous case, if that motion was pending at the time of dismissal or had been resolved by terminating, conditioning, or limiting the stay.
47	Automatic Dismissal. (§521(i)). If the debtor does not file schedules within 45 days, a chapter 7 or 13 case is dismissed by operation of law on the 46^th day. A party in interest may also request an order of dismissal, which must be entered within five days. A debtor may receive only one extension, for a maximum of 45 additional days, to file schedules and other initial documents. The trustee can prevent dismissal if retention of the case benefits the estate.
48	What Must We Do To Enforce Our Rights? File for Relief from Automatic Stay--11 USC 362(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay such as by terminating, annulling, modifying, or conditioning such stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; (2) with respect to a stay of an act against property under subsection (a) of this section, if:
49	What Must We Do To Enforce Our Rights? (A) the debtor does not have any equity in such property; and (B) such property is not necessary to an effective reorganization; Practical tip: The proper and most effective time frame for filing MFRs depends on the specific facts of each case and upon the Chapter filed. (Arrearage claim amount, equity/secured debt ratio, debtors intent w/ property, the assigned judge) In Chapter 13 cases, courts will allow more time for debtor to formulate a viable plan before relief motions will be entertained.
50	MFR --Notice period (How long before motion heard or default entered?): Eastern District of Washington – 15 days (12 plus 3 days for mailing). Western District of Washington – 28 days (25 plus 3 days for mailing). District of Oregon – 17 days (14 plus 3 days for mailing). District of Idaho – 17 days
51	Homestead Exemptions Debtors can protect certain amounts of equity in their residential real property. Measured at the time the case is filed. Debtor elects either state or federal exemptions. (Ex. If case filed prior to effective date of revised homestead amount of $125,000, then debtor only gets $40,000 in WA.)
52	What Else Must We Do To Enforce Our Rights? File a Proof of Claim…a must in order to be paid in Chapter 13 cases where debtors intend to pay their mortgage loan through the plan. Proof of Claims: Filed in Chapter 13 and 11 cases, and in Chapter 7 asset cases. Claims are deemed valid unless objected to by debtors. Claims should include addendum breaking down the pre-petition arrearages. Supporting loan docs such as Note & DOT must be included.
53	Chapter 13 Cases– Plan, Confirmation, And Discharge The law imposes restrictions on Chapter 13 plan length and plan content. It also restricts the Chapter 13 discharge and imposes continuing duties on the debtor. A. Plan Confirmation Hearing. (§1324(b)). The Chapter 13 plan confirmation hearing can be held not earlier than 20 days and not later than 45 days from the meeting of creditors. Practical tip: Courts are typically willing to continue confirmation hearings and allow reasonable time for debtors to get their act together. Plan on needing to to be a bit patient!
54	Chapter 13 Cases cont’d. B. Plan Length. (§1325(b) &1322(d)(1)). Plans may have maximum 5-year duration if the debtor’s gross income exceeds the Bureau of Census medians, 3-year duration if gross income is less than the medians, unless the court extends the 3-year duration for cause. Debtors with gross incomes above the median must commit their disposable income for 5 years; debtors below the median must do so for only 3 years.
55	Chapter 13 Cases cont’d. C. Modification of Rights. (§1322(b)(2)). Pursuant to §1322(b)(2), a Chapter 13 debtor may not modify the rights of a creditor secured by any portion of the debtor’s residence; however junior mortgagees holding wholly unsecured liens may be stripped off by §506(a) of the Code. Practical tip: It is ESSENTIAL for thorough Chapter 13 Plan reviews to ensure adequate protection and modification of rights only when permissible. Inadequate objections could result in confirmation of an improper plan that negatively affects your rights!
56	Chapter 13 Cases cont’d. D. Immediate Secured Payments in Chapter 13. 1. Chapter 13 plans must provide that secured creditors are paid monthly. Debtors must commence Chapter 13 plan payments within 30 days of filing, but until confirmation, must also make adequate protection payments to PMSI creditors of personal property. (§1326(a)(1)(B) & (C)). Practical tip: When payments are made into the plan by debtor prior to plan confirmation, and $ exists on hand with the trustee for disbursement thereunder, we typically seek pre-confirmation orders with debtors stipulating for payments directed to creditor so that clients can start getting paid quicker and before confirmation.
57	Chapter 13 Cases cont’d. D. Immediate Secured Payments in Chapter 13 Cont’d. 2. The debtor may reduce payments to the trustee by the amounts that the debtor pays directly to lessors of personal property or purchase money security interest creditors. (§1326(a)(1)). (Translation: Debtor may opt to pay creditors directly outside of plan so long as they are current on payments. This saves the debtor from having to pay trustee’s fee percentage on top of the loan amount.)
58	Chapter 13 Cases cont’d. D. Immediate Secured Payments in Chapter 13 Cont’d. 3. The periodic payments to be made to each secured creditor must be made in equal monthly amounts and such amounts must be sufficient to provide adequate protection. (§1325(a)(5)(B)(ii)).
59	Creditor Liability: Areas In Which To Be Cautious A. Misapplied Payments. (§524(i)). The willful failure of a creditor to credit payments made to the creditor pursuant to a reorganization plan in accordance with the plan constitutes a violation of the discharge injunction if the failure to properly credit the payments caused a material injury to the debtor, unless the order confirming plan is revoked, the plan is in default, or the creditor has not received the payments required to be made under the plan. Practical tip: This is a current hot topic for debtors’ attorneys, attendees of the BK boot camps, seeking adversary proceeding subsidies for their practice.
60	Creditor Liability: Areas In Which To Be Cautious cont’d. B. Sample of Current Adversary Cases Violation of stay cases—Foreclosure after discharge but not before BK case closure, dismissal, or grant of relief. More violation of stay cases—Direct debtor contact via telephone or mail after actual or constructive notice of BK filing.
61	Creditor Liability: Areas In Which To Be Cautious cont’d. B. Sample of Current Adversary Cases cont’d. RESPA violation for failure to provide accounting on real property contracts. Take caution in closing LOC accounts after payoff; reconvey asap so as to prevent subsequent charge up by debtor. Trustees are using creative means to attempt to void payoffs through fraudulent transfer arguments.
62	Preparing the Bid Bid Calculations Multiple Liens, One Note IRS Liens: 120 days Junior lien problem WAMU v. USA, 115 Wn.2d 52 (1990) Considerations for Junior Lienholders bidding at Senior Lienholder’s Sale Obtaining Payoff Figures Determining What to Bid
63	First, Second Lienholders and Multiple Accounts What to do if you are the first lien holder What to do if you are the second lien holder, with the senior lien holder also foreclosing When do you sit back and when do you take action? What if the Credit Union has a real estate loan, plus a car or a credit card loan with the member?
64	Loss Mitigation Alternatives to starting foreclosure Loss mitigation effort Repayment plans Deeds in lieu Loan modifications
65	Crying the Sale Must be in a public place in county where property is located Between the hours of 9:00 a.m. and 4:00 p.m. Washington – Fridays or on Monday if Friday is a holiday Oregon – Monday through Friday Idaho – Monday through Friday
66	The Trustee’s Deed Timely Filing of the Trustee’s Deed WA 15 days, with safe harbor for subsequent bankruptcy filing. OR 10 days. ORS 86.755(3) .780 Freddie Mac loans – deed must record on the 10^th day after sale, no earlier and no later!
67	Third Party Sale Handling Surplus Funds Retrieval of Surplus Funds from Sale by other Lenders Act promptly, little judicial scrutiny Oregon: Indemnity more common
68	REO Property
69	Washington Eviction Timeline
70	(Washington) 20 Days After Sale - Eviction Under RCW 61.24.060, the purchaser at the trustee’s sale is entitled to possession of the property on the 20^th day following the sale. Should not change locks prior to this day unless: There is clear and unequivocal evidence that the occupant has abandoned property; or Property needs to be secured to protect owner’s security interest; or Obtained order for Writ of Restitution and physical lock-out has occurred. The purchaser has a right to the summary proceedings to obtain possession of the property. No additional notice is required prior to initiating a unlawful detainer action.
71	(Washington) 20 Days After Sale cont’d. As part of our procedure, we send out a courtesy 20 day notice to vacate letter. May offer CFK (Cash for Keys) as incentive to vacate. Occupants Check On or after the 20^th day, we file a summons and complaint for unlawful detainer pursuant to RCW 59.12, et seq. (served on borrower and/or occupants of premises (collectively “Defendant(s)”). If Defendant(s) do not Answer the summons/complaint, we may move for a default judgment. If we receive an Answer from Defendant(s), we must set this matter for a show cause hearing, as it is now contested. The order for show cause must set the date, time, and place for the hearing and must be served on the Defendant(s).
72	Going to Court - Show Cause Hearings The Order for Show Cause requires the Defendant(s) to appear at a hearing to Show Cause why a Writ of Restitution should not be entered. Dealing with a represented Defendant. May not communicate with Defendant directly Unfamiliarity with law Raising issues not appropriate for Unlawful Detainer Action Discovery or Trial Issues occasionally raised Challenges to Foreclosure “I am only the tenant, I paid rent, and did not know foreclosure occurred” “I have been working something out with lender” “I was in the military when the foreclosure occurred.” (Service members Civil Relief Act)
73	Going to Court cont’d. A court's jurisdiction in an unlawful detainer action is limited to determining the right to possession of real property and certain other incidental issues, such as damages and past due rent. Puget Sound Inv. Group Inc., v. Bridges, 92 Wn. App. 523, 526, 963 P.2d 944 (1997). Defenses are not cognizable in an unlawful detainer action unless they relate to the issue of the tenant’s possessory rights. Sav. Bank of Puget Sound v. Mink, 49 Wn.App. 204, 209, 741 P.2d 1043 (1987). Competing claims to title may not be litigated in an unlawful detainer action. Puget Sound, 92 Wn.App at 526.
74	Going to Court cont’d. In an unlawful detainer action the trial court can either (1) enter a judgment in favor of the defendant by dismissing the action with prejudice, or (2) render a judgment in favor of the plaintiff pursuant to RCW 59.12.120 or RCW 59.12.170. If the plaintiff prevails at the Show Cause Hearing, the court will enter an Order for a Writ of Restitution. A Writ of Restitution authorizes the Sheriff to secure premises and to physically eject the occupants from the premises, restoring the premises back to plaintiff. Occupants may decide to voluntarily vacate –prior to the Writ being executed. Occupants request extension of Writ to Vacate Occupants leave personal property
75	Dealing with Personal Property
76	Abandoned Property- Now What? What constitutes abandonment? Must be clear, unequivocal, and decisive evidence (no bed, no food, etc.). REO agent should go to property to determine vacancy status. If appears vacant, but personal property remaining-REO agent should take pictures and/or inventory property. If the property is hard to determine amount of value, should send to Attorney to evaluate whether need to store and/or send applicable statutory notices.
77	Obligation to Store and Give Notice Under RCW 59.18.310., 312 If a Writ of Restitution has not been issued: Send out a 45-day Notice of Abandoned Property pursuant to the RCW 59.18.310. After 45 days from the date the notice of such sale or disposal is mailed or personally delivered to tenant; landlord may sell or dispose of such property, including personal papers, family pictures, and keepsakes. Landlord may apply any income derived therefrom against moneys due the landlord, including actual or reasonable costs whichever is less of drayage and storage of the property. If the property has a cumulative value of $50 or less, landlord may sell or dispose of the property in the manner provided in this section, [except for personal papers, family pictures, and keepsakes], after seven days from the date the notice of sale or disposal is mailed or personally delivered to tenant.
78	Obligation to Store and Give Notice - Cont’d If a Writ of Restitution has been issued: Send out a 30-day Notice of Abandoned Property pursuant to RCW 59.18.312. Sheriff serves occupant Writ and Request for Storage of Personal Property. Prior to sale of property stored with a cumulative value of over $100, landlord shall notify tenant of the pending sale. After 30 days from the date the notice of the sale is mailed or personally delivered to tenant’s last known address, landlord may sell the property, including personal papers, family pictures, and keepsakes, and dispose of any property not sold. If the property that is being stored has a cumulative value of $100 or less, then landlord may sell or dispose of the property in the manner provided in this section, [except for personal papers, family pictures, and keepsakes.] Prior to the sale or disposal of property stored with a cumulative value of $100 or less, landlord shall notify tenant of the pending sale or disposal. The notice shall either be mailed to tenant’s last known address or personally delivered to tenant. After seven days from the date the notice is mailed or delivered to tenant, landlord may sell or dispose of the property. If Landlord chooses to sell property, may apply proceeds to offset storage costs.
79	Dealing with Sheriff Need to obtain indemnity bond. Need to follow eviction instructions from Sheriff (every County is different). In WA, need new form for Request of Storage of Personal Property that the Sheriff requires, along with Writ for posting on the property. Sheriff will post/serve the writ on the property giving the occupants 3 days notice to vacate If still occupied after 3^rd day, then REO agent will need to schedule a physical lock-out date with the sheriff and advise the lender of this date. Communicate with REO agent on lock-out with Sheriff DO NOT INFORM OCCUPANT OF LOCK-OUT DATE!!
80	Dealing with Sheriff cont’d If Physical lock-out is scheduled, lender’s agent needs to have arranged for a crew to meet Sheriff at property on the arranged date and time. Sheriff will not proceed with lock-out if crew is not there. If sufficient arrangements have not been made, the Sheriff will cancel the lock-out and re-schedule. Sheriff is only there to secure the premises and to stay until occupant is removed. If personal property remaining, must analyze value of personal property and if need to send out statutory notices.
81	Junk or is it ??
82	What to do with Property Property Value Look to statute to determine value amount: Valueless Property No Writ = over $50 Writ = over $100 Decide if going to store property and where (on-site or off-site) Must be stored in clean, dry, secure area Send out applicable notice of abandoned property (30 or 45 days) to last known address with deadline. Must not dispose of property before the deadline!!
83	Watch out for family heirlooms!! (One person’s trash is another person’s treasure)
84	Other Types of Abandoned Property Vehicles Obtain VIN# or License Plate information to determine ownership status May be able to utilize towing company that will send out applicable legal notices to owner.
85	Other Types of Property cont’d. Equipment, Inventory, Trade Fixtures Obtain ownership status
86	Other Types of Property cont’d. Animals Depending on what type of animal May need to call animal control, or certified licensed and bonded hauler for livestock May also need caregiver
87	Waste Committed Upon Property A tenant is guilty of unlawful detainer when they commit waste upon the premises. RCW 59.12.030(5) A tenant could be subject to a damages claim or prosecution under RCW 9A.48 for their intentional damage to the property. See RCW 59.18.130.
88	Example of Waste Committed Upon Property
89	Example of Waste-Cont’d
90	You Suspect Property Used as a Drug Lab-Now What? A few indicators of possible drug lab Excessive garbage Red stains in the kitchen or bathroom Chemical odors or Corrosives Used needles These labs are set up in motels, houses, apartments, storage units, and vehicles. If you suspect a drug lab, DO NOT ENTER PROPERTY!! Proper decontamination is necessary to reduce the public health risks of injuries and hazardous exposures associated with clandestine drug labs. Property owner is responsible for cost of cleaning up an illegal drug lab. By law, the property MUST go through a Clandestine Drug Lab Cleanup Program. (check applicable state laws and Department of Social and Health Services). Have a licensed Clandestine Drug Lab (CDL) decontamination contractor retained for property assessment, cleanup, and eventual issuance of certificate of fitness. The initial property assessment involves an inspection of the property and grounds by a licensed CDL contractor for evidence of damage or contamination related to the drug lab.
91	Drug Lab – cont’d. Clandestine Drug Lab Program Office of Environmental Health and Safety Washington State Department of Health 243 Israel Road S.E. Tumwater, WA 98501 (360) 236-3385 1(888) 586-9427 www.doh.wa.gov/ehp/ts/CDL Clandestine Drug Lab Cleanup Program Oregon State Department of Human Services 800 NE Oregon ST., Suite 608 Portland, OR 97232-2162 (971)673-0457 www.oregon.gov/DHS/ph/druglab
92	Oregon Eviction Timeline
93	Procedures to FED (Forcible Eviction & Detainer) ORS 86.755(5) New Owner Entitled to possession 10 days from date of Trustee’s Sale. Summons and Complaint filed. First Appearance is scheduled within 2 weeks from filing. At first appearance hearing -3 things can happen: Defendant can appear and request a trial; If Defendant fails to appear, default judgment is taken and move out date is set; or Defendant appears and enters into a stipulation to a move out date (usually within 30 days from the date of the first appearance)
94	(Oregon) Possible Defenses to FED (Eviction) Validity of Note and Deed of Trust; Compliance with federal & state lending laws; Challenges Foreclosure procedure. **Under Oregon law, issues involving the validity of title in a FED action should not be decided, only right to possession. Option One Mortgage Corp. v. Wall, 159 Or App 354, 358 (1999).
95	(Oregon) Obtained Default If Default taken - a Notice of Restitution (NOR) is issued and served on the Defendants indicating the date set for restitution on the property (usually four to five days). Occupancy check. Proceed to lock-out if necessary. If still occupied, file an Affidavit of Non-Compliance, take judgment and serve NOR on Defendant-indicating date set for restitution of the property After date passes, do another occupancy check and again, proceed to lock-out.
96	(Oregon) Lock-Out Occurs after the NOR time has lapsed and the property is still occupied. After notification of occupancy, may request the court issue a Writ of Execution on Judgment to the county sheriff. Representative of plaintiff (usually agent) and a locksmith must be present at the time of lock-out. **There is only 60 days from the date of judgment or date of possession, whichever is later, to complete the eviction process otherwise the case is dismissed without prejudice.
97	(Oregon) Personal Property Remaining If Personal Property is Remaining, should send out Notice of Abandoned Property to Defendant, with specified deadline. Generally, for manufactured homes, floating homes, and/or recreational vehicles, there is a 45-day time period, with another 30 days added if they contact [the designated party- i.e. agent] and say they want to pick up their manufactured home, floating home or RV. For cars, you can foreclose the possessory lien and sell the car(s) no less than 60 days after the lien attached for any vehicle with an appraised value greater than $1,000 and no less than 30 days for any vehicle with an appraised value between $500 - $1,000 and no less than 15 days for any vehicle with an appraised value of less than $500. For all the other property, they have 8 days from the date of the notice.
98	Idaho Evictions Ten days after the foreclosure process is completed, the grantee of the trustee’s deed (purchaser) may proceed with an eviction of any person remaining in possession of the property by filing a complaint seeking a writ of assistance. The complaint must be served upon the person(s) in possession, who then has a right to make an appearance, file an answer denying the purchaser right to possession, and proceed to trial on the matter. If the court rules in favor of the purchaser, a writ of assistance is issued directing the sheriff to place the holder of the deed of trust in possession of the premises. Damages may also be obtained along with attorneys’ fees and costs.
99	Idaho Evictions cont’d. In rare circumstances, an action for eviction under unlawful detainer statutes may be used to obtain an accelerated trial. [See Idaho Code § 6-303, et. seq.] Three days’ written notice must be given to the tenant prior to initiating court action, which includes a statement of the default and what is required to cure the default. If the default is not cured within three days, a complaint may be filed and a hearing held within 12 days. The complaint and notice of trial setting must be served immediately upon the tenant. No damages may be sought in this accelerated court action. However, a subsequent suit may be brought to recover damages incurred in pursuing the original unlawful detainer action. Proceedings based on unlawful detainer are not common after foreclosure sale. [See also Noble v. Harris, 33 Idaho 401, 195 P. 543 (1921) and Coe v. Bennett, 39 Idaho 176, 226 P. 736 (1924)] See, USFN, Charles Just, Just Law, Inc., 2006
100	Idaho Evictions cont’d. If a tenant leaves property of value behind after vacating the premises, the landlord has no right to immediately dispose of the property, but rather has an obligation to reasonably safeguard the property until it is properly disposed of. The property may be reclaimed by the tenant or disposed of in accordance with the abandoned or unclaimed property laws of the State of Idaho. See, Idaho Attorney General’s Office.
101	Thank you!! Home Foreclosures – Start to Finish: David Weibel, Scott Crawford and Annette Cook
102	Contact Information Bishop, White & Marshall, P.S. 720 Olive Way, Suite 1301 Seattle, WA 98101 Phone: 206.622.5306 Fax: 206.622.0354 www.bwmlegal.com This presentation will be available at our website www.bwmlegal.com until 10-3-08 We strive to provide information that is both accurate and updated for the states we cover. However, laws change frequently and information in this presentation is general in nature and should not be used as a substitute for legal advice. You should always speak to an attorney in your area before taking actions that may affect your rights.
103	Primary Points of Contact David A. Weibel, Partner Phone – 206-622-5306 ext. 5916 Email – dweibel@bwmlegal.com Scott Crawford, Bankruptcy Associate Phone – 206-622-5306 ext. 7493 Email – scrawford@bwmlegal.com Annette Cook, Litigation Associate Phone – 206-622-5306 ext. 5917 Email – acook@bwmlegal.com Lori Graeff, Client Services Manager Phone – 206-622-5306 ext. 5906 Email – lgraeff@bwmlegal.com