Articles

Important Changes to Arizona Trustee Sale Notices

By: Valerie Marciano, Esq.

Foreclosure, one of the hot economic topics in Arizona, has some new legal requirements.   The Arizona state legislature passed and the governor signed, House Bill 2626, which requires lenders and homeowners to explore options that avoid foreclosure.  Two methods of foreclosure are available to a lender in Arizona - the judicial foreclosure and the trustee sale process.  Judicial foreclosure, rarely used in Arizona because it is a costly and lengthy process, is a court proceeding initiated by a lender.  HB 2626 does not impact the judicial foreclosure process available to lenders.  Rather, HB 2626 applies when a lender chooses the trustee sale method to recover the house given as loan collateral. 

Current law states that the trustee appointed by a lender has to comply with certain requirements in the trustee sale process:

  1. record the notice of trustee sale at least 91 days before the date of sale;
  2. mail a copy of the notice to the trustor, (typically the borrower) within 5 days after the notice of trustee sale is recorded;
  3. mail a copy of the notice to those who are shown on the county records as having an interest in the property or who have recorded a "request for notice" within 30 days after the notice is recorded;
  4. post a copy of the notice on the property in a conspicuous place at least 20 days prior to the sale; and
  5. publish the notice in a newspaper in the county where the property is located and to be sold, at least once a week for 4 consecutive weeks until at least 10 days before the sale to be held.   

The new law, which became effective on July 30, 2010, imposes a new requirement for lenders holding first lien deeds of trust recorded from January 1, 2003 to December 31, 2008:  At least 30 days before the notice is recorded, the lender must attempt to contact the borrower to explore options that avoid foreclosure.  The lender must also certify in writing, under oath, that it complied with the new requirement, or that the new requirement does not apply in that instance. 

The new requirements are inapplicable if:

  1. loans that are made, purchased, or serviced by a state or local housing agency, such as the Federal National Mortgage Association and Federal Home Loan Mortgage Corporation, or that are collateral for their securities;
  2. lenders who made 5 or fewer loans in one calendar year, i.e. many private lenders; and
  3. lenders who have complied with the U.S. Department of Treasury Home Modification Program. 

The lender still must provide the written certificate that the requirements imposed by HB 2626 do not apply the proposed trustee's sale.

The new law does not require a servicer to violate contractual agreements for investor-owned loans.  Nor does HB 2626 require a loan servicer to provide a modification for a borrower who (1) is not willing or able to pay under a modification; (2) has surrendered the property; (3) has filed bankruptcy; or (4) has vacated or abandoned the property. 

If a lender chooses not to comply with the new requirement as a matter of course in handling its lender portfolio, a careful review of the requirements should be made to avoid a potential defense to the trustee sale proceeding.  For the borrower who receives the new notice from the lender, the borrower should investigate the options afforded to avoid an impending foreclosure of the home.

About the author:  Valerie Marciano is a litigation attorney at the Phoenix law firm of Jaburg Wilk.  She assists clients with business issues, foreclosures, creditor's rights issues and anti-deficiency issues.  Val can be reached at vlm@jaburgwilk.com or 602.248.1025. 

 

 

 

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