PS 101 – Chapter 8 – Article 2 – Service of the Notice of Default – Training 4 Private Investigators and Process Servers

A non-judicial real estate foreclosure allows a mortgage holder to execute against a borrower without resorting to the court system to recover the mortgaged property. The law requires the service of certain documents over a specified period of time. The entire procedure is extremely time sensitive.

For the purposes of this section the words “borrower”and “grantor” are to be considered as referring to the same person.

The first document served during a non-judicial real estate foreclosure is a Notice of Default. The requirement for this notice comes from RCW 61.24.030(7) which states in part:

RCW 61.24.030(8)
That at least thirty days before notice of sale shall be recorded, transmitted or served, written notice of default shall be transmitted by the beneficiary or trustee to the borrower and grantor at their last known addresses by both first-class and either registered or certified mail, return receipt requested, and the beneficiary or trustee shall cause to be posted in a conspicuous place on the premises, a copy of the notice, or personally served on the borrower and grantor. …….

Service of a Notice of Default must be completed at least 30 days before the notice of sale (more commonly known as a Notice of Trustee’s Sale) is recorded, transmitted or served. Service of the Notice of Default must be done in at least two parts.

Part 1 – The Notice of Default must be mailed, by both first class and either registered or certified mail, return receipt requested, to the last known addresses of the borrower and grantor. These mailings are almost always done by the beneficiary or trustee.

Part 2 – The Notice of Default must be either: a) posted in a conspicuous place on the subject property, or b) personally served on the borrower and grantor. In nearly all instances this part of the service is accomplished by posting the notice on the property. Only in those rare instances where the real property cannot be reliably located, such as in the forest or in other unmarked areas, is service accomplished by presentation to the borrower.

Part 2(a) brings a question to mind: What is a “conspicuous place?” The answer may be something along the lines of “Conspicuous is in the eyes of the beholder.” You may see something as conspicuous but your client may not agree. Likewise, the grantor, whose property is being foreclosed, may see it in yet another way. And should the grantor challenge the conspicuousness of the posting in court then the judge may see it in even another way.

Here are some of the definitions of conspicuous:

con·spic·u·ous - kuhn-spik-yoo-uhs – adjective

easily seen or noticed; readily visible or observable: a conspicuous error.
attracting special attention, as by outstanding qualities or eccentricities: He was conspicuous by his booming laughter.

Best practice is to post the documents in a manner and place which a judge will agree is conspicuous. For instance, post the documents at or on the front door of the residence or other primary structure on the property. If the property is empty then along a street or road frontage, just be sure you are on the property. If the property is empty without a street or road frontage, such as in thick forest or cleared unimproved land, then anywhere on the property.

NOTE: Should it be necessary to serve the Notice of Default on the borrower the statute says “personally served.” Therefore the only mode of service acceptable will be personal service. Abode service is not acceptable.

Service Instructions Summary

Present documents to:

	Who	When & Where
1.	Personal service on the mortgagee	Anytime Anywhere
2.	Posting	Anytime at a conspicuous place on the premises which is the subject of the foreclosure action

NOTE: Nearly all such services are accomplished by posting the documents.

NOTE: Take a photograph of the posting.

NOTE: Be absolutely certain the posting is done on the subject property.

NOTE: Service must be done at least 120 days before the auction date.

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