[WSBAPT] Question about foreclosure of deed of trust on commercial property

[Candace Wilkerson]

Dear Listmates,

I have a case in which a client has incurred substantial attorney fees trying to deal with a borrower who defaulted and who then filed multiple bankruptcy cases to avoid the foreclosure of the property at issue.  The bankruptcy cases were all dismissed, but the attorney fees continued to increase during the process because the client had to appear in those cases as well.  At one point, the non-judicial foreclosure was dismissed in order to try to deal with the matter as a civil case.  That case has now been dismissed without prejudice in order to start a new nonjudicial foreclosure.

I have reviewed RCW 61.24, and have not been able to conclusively determine the answer to this question: can the client add all of his attorney fees incurred in the former civil case and dealing with the borrower's multiple bankruptcy cases to the current foreclosure action?  I'm concerned by RCW 61.24.080, which says:

The trustee shall apply the proceeds of the sale as follows:

  1.  To the expense of sale, including a reasonable charge by the trustee and by his or her attorney: PROVIDED, That the aggregate of the charges by the trustee and his or her attorney, for their services in the sale, shall not exceed the amount which would, by the superior court of the county in which the trustee's sale occurred, have been deemed a reasonable attorney fee, had the trust deed been foreclosed as a mortgage in a noncontested action in that court.


My client is not trying to get more attorney fees than he is entitled to receive; he simply wants to recoup all of the money he has had to spend following the borrower through the various courts/proceedings.  The deed of trust and promissory note both allow for reasonable attorney fees.

Any thoughts would be much appreciated.

Thanks in advance.

Candace Wilkerson

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