[WSBARP] non-judicial deed of trust foreclosure but lender seeks receiver to sell the property

[Tom J. Westbrook]

Carl,

 

I am not an expert on the Receiver statute but have been appointed as a
Custodial and General Receiver in the past as well as counsel and
co-counsel in a few Receiverships. There are a few different ways to get
there. Typically in a commercial setting you will find a business loan
agreement of some type that provides for a receivership. Collection of
rents and safeguarding the property are among the relief a lender may be
seeking. Additionally, many commercial deeds of trust provide something
like this: 3.  Receiver. In addition to the foregoing rights and remedies,
Beneficiary shall upon the occurrence of default, be entitled to the
appointment of a receiver as a matter of right without regard to whether
the apparent value of the Subject Property exceeds the amount of the
secured indebtedness, and any receiver appointed may serve without bond.
Employment by Beneficiary shall not disqualify a person from serving as
receiver.

 

The Notice of Default does not stop an effort for appointment of Receiver
– only the Notice of Trustee’s Sale does that as there cannot be any court
action pending on the same matter.

 

I suggest you look to the documents your client signed – not just the
statute.

 

Sincerely,

 

Tom

 

Thomas J. Westbrook

Attorney at Law

 

Thomas J. Westbrook, PLLC

PO Box 1

Littlerock, WA 98556

 

Olympia Office:

Evergreen Plaza Building

711 Capitol Way S.

Suite 101

Olympia, WA 98501

 

Telephone: 360-357-7400     

Facsimile:  360-357-7414

Email:          <mailto:tjw at w3net.net> tjw at w3net.net

Skype: thomas.westbrook

 

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From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Carl Gay
Sent: Wednesday, June 18, 2014 6:48 PM
To: listserve real property
Subject: [WSBARP] non-judicial deed of trust foreclosure but lender seeks
receiver to sell the property

 

Dear Colleagues,

 

A business client presents a case where his lender initiated a
non-judicial deed of trust foreclosure in November of 2013 by sending a
30-day Notice of Default under chapter 61.24 RCW. No subsequent Notice of
Foreclosure or Notice of Trustee’s Sale was ever given. However, two weeks
ago the lender filed and served a Complaint for Appointment of Receiver
and noted a show cause hearing as to why a receiver should not be
appointed immediately to take possession of the property. The complaint,
motion, and supporting declaration state that a receivership will allow
the lender to “market and sell the property through a real estate broker,
ultimately yielding a higher price than at a trustee’s foreclosure sale”.
I believe my client has defenses to the foreclosure, but I am curious if
any of you have experienced this lender/beneficiary tactic, which is
certainly new to me. In a brief review of chapter 7.60 RCW, and
specifically RCW 7.60.15, it appears in this circumstance the court can
only appoint a custodial receiver, not a general receiver, who would not
have any authority to sell the property. Thank you in advance for your
helpful comments and advice.

 

Best regards,

clg

 


CARL LLOYD GAY 

GREENAWAY, GAY & TULLOCH

Attorneys and Counselors at Law 

829 East Eighth Street Suite A

Port Angeles, Washington 98362

Email clgay at tfon.com

Telephone (360) 452-3323 

Facsimile (360) 452-3724 

 

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