## Facts

- A homeowner’s loan was secured by a deed of trust serviced by Nationstar Mortgage, LLC.
- The deed of trust included provisions authorizing the beneficiary or its agents, after default, to enter, maintain, and secure the property without notice to the homeowner.
- After the borrower defaulted, a property-preservation agent acting for Nationstar concluded the home was vacant, changed the front-door locks, and installed a lockbox with a notice requiring the borrower to contact Nationstar for access.
- The borrower returned home and could not enter because the locks had been changed; she obtained the lockbox code from Nationstar to retrieve the new key.
- The borrower removed her belongings the next day and did not return.
- The case reached the Washington Supreme Court on certified questions asking whether the deed-of-trust entry provisions violated Washington’s prohibition on pre-foreclosure possession and whether statutory receivership is the exclusive means for pre-foreclosure access.

## Issues

1. Whether deed-of-trust provisions authorizing a beneficiary (or its agents) to enter, secure, and control access to property after default constitute prohibited pre-foreclosure “possession” under RCW 7.28.230(1), rendering such provisions unenforceable.
2. Whether Washington’s receivership statutes (ch. 7.60 RCW) provide the exclusive method for a lender to obtain pre-foreclosure access or control of encumbered property.

## Decision

- The court answered the first certified question: actions authorized by the deed of trust that rise to “actual possession” before foreclosure conflict with RCW 7.28.230(1) and are unenforceable to that extent.
- The court treated changing the locks and conditioning the owner’s entry on contacting the servicer as a “clear expression of control” amounting to prohibited possession.
- The court answered the second certified question: Washington’s receivership statutes are not an exclusive remedy for pre-foreclosure access.
- The court clarified that any non-receivership method of access must still comply with RCW 7.28.230(1)’s bar on pre-foreclosure possession.

## Legal Principles

- RCW 7.28.230(1) reflects a public policy that a security interest in real property does not authorize the creditor to recover possession without foreclosure and sale; deed-of-trust beneficiaries are subject to this bar in substance.
- “Actual possession” requires a degree of physical control; changing locks and restricting the owner’s access can constitute possession even if the lender does not occupy the premises.
- Contract terms in a deed of trust cannot authorize conduct that violates RCW 7.28.230(1); provisions permitting pre-foreclosure possession are unenforceable to that extent.
- Chapter 7.60 RCW receivership is available to obtain court-supervised control of property, but it does not displace other lawful avenues for access (including post-default borrower consent), so long as the lender does not take prohibited possession.

## Conclusion

The Washington Supreme Court held that deed-of-trust provisions authorizing a lender to rekey a home and control the borrower’s access after default amount to unlawful pre-foreclosure possession under RCW 7.28.230(1) and are unenforceable to that extent, while also holding that receivership is not the exclusive means of obtaining pre-foreclosure access.


Jordan v. Nationstar Mortg., LLC, 374 P.3d 1195 (Wash. 2016)