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IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

CERTIFICATION FROM THE UNITED ) 

STATES DISTRICT COURT FOR THE ) 

EASTERN DISTRICT OF WASHINGTON ) 

IN ) 

LAURA ZAMORA JORDAN, as her 

separate estate, and on behalf of others 

similarly situated, 

Plaintiff, 

v. 

NATIONSTAR MORTGAGE, LLC, 

a Delaware limited liability company, 

Defendant. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) ________________________) 

No. 92081-8 

EnBanc 

JUL 0 7 2®~® Filed ______ _ 

OWENS, J. - After defaulting on her home mortgage payment, plaintiff 

Laura Jordan returned home from work one evening to discover she could not enter 

her own house: the locks had been changed without warning. A notice informed her 

that in order to gain access to her home, she must call defendant Nationstar Mortgage 

LLC to obtain the lockbox code and retrieve the new key inside. Although she 

 	 
	 
   
		

		

Jordan v. Nationstar Mortgage, LLC 

No. 92081-8 

eventually reentered her home, she removed her belongings the next day and has not 

returned since. Jordan's home loan was secured by a deed of trust, a commonly used 

security instrument that was created as an alternative to traditional mortgages to 

provide for a simpler method of foreclosure. The deed of trust contained provisions 

that allowed Nationstar to enter her home upon default without providing any notice 

to the homeowner. Today, we are asked to decide whether those provisions conflict 

with Washington law. 

Jordan represents a class action proceeding in federal court, which has certified 

two questions to us. The first question asks whether the deed of trust provisions 

conflict with a Washington law that prohibits a lender from taking possession of 

property prior to foreclosure. We hold that it does because the provisions allow 

Nationstar to take possession of the property after default, which conflicts with the 

statute. The second question asks whether Washington's statutory receivership 

scheme--providing for a third party to possess and manage property in lieu of either 

the lender or homeowner-is the exclusive remedy by which a lender may gain access 

to the property. As explained below, we hold nothing in our law establishes the 

receivership statutes as an exclusive remedy. 

FACTS 

In 2007, Jordan bought a home in Wenatchee, Washington, with a home loan of 

$172,000 from Homecomings Financial. She secured the loan by signing a deed of 

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No. 92081-8 

trust. The original lender assigned the loan to the Federal National Mortgage 

Association (Fannie Mae), one of the nation's largest mortgagees that primarily 

participates in the secondary mortgage market, which hired Nationstar to service the 

loan. 

Jordan went into default on her mortgage payments in January 20 11. In March 

2011, one ofNationstar's vendors came to Jordan's home and changed the locks on 

her front door. Jordan returned home to find a notice on the front door informing her 

that the property was found to be "unsecure or vacant" and that to protect her and the 

mortgagee's interest in the property, it was "secured against entry by unauthorized 

persons to prevent possible damage." Order Certifying Questions to Wash. Supreme 

Ct., Jordan v. Nationstar Mortg., LLC, No. 2:14-CV-0175-TOR at 6 (E.D. Wash. 

Aug. 10, 20 15). While the above-noted facts are undisputed, the parties dispute 

whether the home was vacant. Jordan contends she was living there, left for work that 

morning as usual, and returned to find the lockbox and notice. On the other hand, 

Nationstar contends that its vendor performed an inspection of the property and 

determined it was vacant. 

Upon finding the notice when she returned home, Jordan called the phone 

number provided and got the key from the lockbox to reenter her home. She took all 

of her belongings and vacated the house the next day. Since then, Nationstar's vendor 

has maintained the property's exterior and winterized the interior. Nationstar does not 

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No. 92081-8 

claim to have attempted to provide Jordan any notice of its intention to inspect the 

property and rekey it. Nationstar contends that its usual practice is to change the locks 

on only one door, such that it can access the home in the future, but also so that the 

owner can still enter the home through another door. Here, Jordan's home had only a 

front door and a sliding glass door in the rear of the home. Therefore, when 

Nationstar's vendor rekeyed the front door, she had no means of entry. 

Jordan represents a certified class of3,600 Washington homeowners who were 

locked out of their homes pursuant to similar provisions in their deeds of trust with 

Nationstar. This case presents an important issue for these homeowners and the 

thousands of others subject to similar provisions, as well as the many mortgage 

companies that have a concern with preserving and protecting the properties in which 

they have an interest. Three amicus briefs were filed in this case: Federal Home Loan 

Mortgage Corporation (Freddie Mac) and the city of Spokane supporting defendant 

Nationstar, and the Northwest Consumer Law Center supporting plaintiff Jordan. 

Freddie Mac tells us that the provisions such as the ones at issue here are important to 

the foreclosure process because they allow lenders to enter the property to maintain 

and secure it. It contends that such provisions help meet Freddie Mac's requirements 

it imposes on companies like Nationstar to preserve properties. 

In April20 12, Jordan filed a complaint against Nationstar in Chelan County 

Superior Court, alleging state law claims that include trespass, breach of contract, and 

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No. 92081-8 

violations of the Washington Consumer Protection Act and the Fair Debt Collection 

Practices Act. Ch. 19.86 RCW; 15 U.S.C. §§ 1692-1692p. Chelan County Superior 

Court certified the class action, with Jordan as the representative for the 3,600 

similarly situated homeowners. Nationstar removed the action to the United States 

District Court for the Eastern District of Washington (District Court). The parties 

each filed motions for partial summary judgment. Nationstar asked the District Court 

to find the provisions at issue enforceable under Washington law. Jordan asked the 

District Court to find that before the lender can enter a borrower's property, the lender 

must obtain either the borrower's postdefault consent or permission from a court. 

Furthermore, Jordan contends that receivership is the only remedy by which a lender 

may gain access to the borrower's property. Finding that the case raised unresolved 

questions of Washington state law, the District Court certified two questions to us. 

We accepted the following certified questions. 

CERTIFIED QUESTIONS 

1. Under Washington's lien theory of mortgages and RCW 7.28.230(1), can 

a borrower and lender enter into a contractual agreement prior to default that allows the 

lender to enter, maintain, and secure the encumbered property prior to foreclosure? 

2. Does chapter 7.60 RCW, Washington's statutory receivership scheme, 

provide the exclusive remedy, absent postdefault consent by the borrower, for a lender 

to gain access to an encumbered property prior to foreclosure? 

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ANALYSIS 

Certified questions present questions of law and we review them de novo. See, 

e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., No. 1, 149 Wn.2d 660, 670, 

72P.3d 151 (2003). 

1. Washington's Lien Theory and RCW 7.28.230(1) Prevent a Borrower and a 

Lender from Contracting To Allow the Lender To Take Possession Based on 

Borrower Default 

The District Court asks us to determine whether a predefault clause in a deed of 

trust that allows a lender to enter, maintain, and secure the property before foreclosure 

is enforceable. We must determine whether these provisions contravene Washington 

law. As described below, the deed of trust provisions authorize a lender to enter the 

borrower's property after default. The parties agree that a Washington statute 

prohibits a lender from taking possession of a borrower's property prior to 

foreclosure. The controversial issue here is whether the deed of trust provisions 

allowing the lender to enter constitute taking possession prior to foreclosure, such that 

they conflict with state law. Based on Nationstar's practices, we find that the 

provisions do allow the lender to take possession and thus they are in conflict with 

state law. As such, we answer the first certified question in the negative. 

a. The Deed of Trust Provisions Allow a Lender To Enter the Borrower's 

Property upon Default or Abandonment 

"[I]t is the general rule that a contract which is contrary to the terms and policy 

of an express legislative enactment is illegal and unenforcible [sic]." State v. Nw. 

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Magnesite Co., 28 Wn.2d 1, 26, 182 P.2d 643 (1947). While we recognize an 

overarching freedom to contract, provisions are unenforceable where they are 

prohibited by statute. State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477,481, 687 

P.2d 1139 (1984). 

The provisions at issue are made up of two sections in the deed of trust. The 

first provision, in pertinent part, is as follows: 

9. Protection of Lender's Interest in the Property and Rights 

Under this Security Instrument. If (a) Borrower fails to perform the 

covenants and agreements contained in this Security Instrument, ... or 

(c) Borrower has abandoned the Property, then Lender may do and pay 

for whatever is reasonable or appropriate to protect Lender's interest in 

the Property and rights under this Security Instrument, including 

protecting and/or assessing the value of the Property, and securing 

and/or repairing the Property .... Securing the Property includes, but is 

not limited to, entering the Property to make repairs, change locks, 

replace or board up doors and windows, drain water from pipes, 

eliminate building or other code violations or dangerous conditions, and 

have utilities turned on or off. Although Lender may take action under 

this Section 9, Lender does not have to do so and is not under any duty 

or obligation to do so. 

Ex. 19, at 8. The provisions also allows the lender to "make reasonable entries upon 

and inspections of the Property" where the lender has reasonable cause and gives the 

borrower notice. !d. at 7. It also requires the borrower to maintain and protect the 

property. !d. 

Together, these sections are the so-called "entry provisions" that are at issue in 

this case, which allow the lender to enter, maintain, and secure the property after the 

borrower's default or abandonment. Nationstar hinges its argument on the need to 

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secure abandoned property, stating it does not enter occupied property. However, the 

provision plainly states that the lender may "secure" the property after the borrower 

defaults or abandons the property. The provision specifically lists changing the locks 

as a method of securing the property. Thus, the provisions authorize the lender to 

enter and rekey the property solely upon default, regardless of whether the borrower 

has abandoned the property. 

As explained below, it is well settled that Washington law prohibits lenders 

from taking possession of borrowers' property before foreclosure. This question turns 

on whether the above provisions authorize lenders to "take possession" and if, in fact, 

the lender's actions here constituted taking possession. 

b. Washington's Lien Theory Does Not Permit a Lender To Take Possession of 

Property Prior to Foreclosure 

Our case law is clear that Washington law prohibits a lender from taking 

possession of property before foreclosure of the borrower's home. Importantly, the 

parties agree on this point; under state law, a secured lender cannot gain possession of 

the encumbered property before foreclosure. 

RCW 7.28.230 provides that 

(I ) A mortgage of any interest in real property shall not be deemed a 

conveyance so as to enable the owner of the mortgage to recover possession of 

the real property, without a foreclosure and sale according to law.Pl 

1 Before 1969, this section of the statute ended after "without a foreclosure and sale according to 

law." CODE OF 1881, § 546. It was amended in 1969 to make clear that the statute should not be 

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No. 92081-8 

This statute essentially codified Washington's lien theory of mortgages. The 

mortgage lien theory prevails in Washington, meaning that the mortgage is seen as 

"nothing more than a lien upon the property to secure payment of the mortgage debt, 

and in no sense a conveyance entitling the mortgagee to possession or enjoyment of 

the property as owner." W. Loan & Bldg. Co. v. Mifflin, 162 Wash. 33, 39,297 P. 743 

(1931). We have interpreted RCW 7.28.230(1) to mean that a mortgagor's default 

does not disrupt the mortgagor's right to possession of real property, and that the 

mortgagor retains the right to possession until there has been foreclosure and sale of 

the property. Howard v. Edgren, 62 Wn.2d 884, 885, 385 P.2d 41 (1963). 

The Restatement (Third) of Property takes the approach that mortgagee 

possession agreements conflict with lien theory statutes. See RESTATEMENT (THIRD) 

OF PROP.: MORTGAGES § 4.1 cmt. b (AM. LAW IN ST. 1997). Several lien theory 

jurisdictions hold that provisions that allow the lender to take possession of the 

property contravenes public policy that is inherent to the lien theory; indeed, some 

states have even codified statutes that specifically invalidate such agreements. See, 

e.g., COLO. REV. STAT. ANN.§ 38-35-117; IDAHO CODE ANN.§ 6-104; NEV. REV. 

STAT.§ 40.050; OKLA. STAT. ANN. tit. 42, § 10; UTAH CODE ANN.§ 78B-6-1310. 

interpreted to prohibit a mortgagee from collecting rents before foreclosure. See LAws OF 1969, 

1st Ex. Sess., ch. 122, §I; and see Kezner v. Landover Corp., 87 Wn. App. 458,464,942 P.2d 

I 003 (1997). However, the bedrock principle that borrowers have a right to possession prior to 

foreclosure was not altered by the amendment. 

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No. 92081-8 

Washington's legislature, however, did not specifically invalidate such contrary 

agreements in its codification of lien theory prohibiting the lender from taking 

possession of property before foreclosure. That the legislature did not specifically 

invalidate such contract provisions, as did other states, does not mean the provisions 

do not conflict with our laws. Thus, we must determine whether its statute is in 

conflict with such an agreement. 

Nationstar concedes that the borrower's right to possession cannot be overcome 

by a contrary provision in the mortgage or deed of trust because such a provision 

would be nnenforceable as it would contravene Washington law. Def.'s Answering 

Br. at 11. However, Nationstar argues that the entry provisions do not authorize the 

lender to take "possession" and that its specific conduct at Jordan's residence did not 

constitute possession. Therefore, the determinative issue in answering this first 

certified question is whether the entry provisions cause the lender to gain 

"possession." As explained below, the entry provisions do authorize conduct that 

constitutes "possession." 

c. These Entry Provisions Allow a Lender To Take Possession Prior to 

Foreclosure and Therefore Conflict with State Law 

We must determine if the entry provisions authorize the lender to take 

"possession" of the property. If they do, the provisions are in conflict with 

Washington law. Here, we look to the actions that Nationstar took pursuant to the 

entry provisions to see if they constituted "possession." Possession has slightly 

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No. 92081-8 

different meanings in different areas of the law. The parties supplied defmitions from 

real property law, tort law, and landlord-tenant law because it is unclear which 

definition is applicable to RCW 7.28.230(1). 

Under any definition, the conduct allowed under the entry provisions 

constitutes possession because Nationstar's actions satisfY the key element of 

possession: control. In property law, "possession" is defined as "a physical relation to 

the land of a kind which gives a certain degree of physical control over the land, and 

an intent so to exercise such control as to exclude other members of society in general 

from any present occupation ofthe land." RESTATEMENT (FIRST) OF PROP.: 

DEFINITION OF CERTAIN GENERAL TERMS§ 7(a) (AM. LAW INST. 1936). 

The key element to the property defmition of "possession" is the "certain 

degree of physical control." Tort law similarly requires control. In tort law, which is 

concerned primarily with liability, a "possessor of land" is defined as "a person who 

occupies the land and controls it." RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR 

PHYSICAL AND EMOTIONAL HARM§ 49 (AM. LAW INST. 2012). 

The Court of Appeals applied the tort definition of possession when it 

considered the phrase "mortgagees in possession" for purposes of premises liability. 

Coleman v. Hoffman, 115 Wn. App. 853, 858-59, 64 P.3d 65 (2003). There, the 

lender used RCW 7 .28.230(1) as a defense to its putative possession to avoid liability, 

arguing that it could not have been "in possession" because the statute forbids it. !d. 

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at 863. The court relied on the above tort definition of "possession" and another 

prominent source that stated for a lender to be liable, it must '"exercise dominion and 

control over the property."' !d. at 859 (quoting 62 AM. JUR. 2D Premises Liability 

§ 8, at 356 (1990)). In finding that the plaintiff showed enough facts of lender's 

possession, the court pointed to the lender's repairs and payments of utility bills. !d. 

at 862-63. 

We also find that landlord-tenant law's treatment of"possession" helpfulparticularly its analysis of the impact of changing locks. In Aldrich v. Olson, the 

Court of Appeals found that when the landlord changed the locks of her tenant's 

home, it was an unlawful eviction. 12 Wn. App. 665, 672, 531 P .2d 825 (1975). The 

court reasoned, "It is difficult to visualize an act of a landlord more specifically 

intended as a reassumption of possession by the landlord and a permanent deprivation 

of the tenant's possession than a 'lockout' without the tenant's knowledge or 

permission." !d. at 667. 

From any approach, we find that Nationstar's conduct constituted possession. 

The foregoing possession definitions, as well as Coleman and Aldrich, are instructive. 

Nationstar's vendor's actions constituted possession because its actions are 

representative of control. The vendor drilled out Jordan's existing locks and replaced 

the lock with its own. Nationstar stated in its brief that it rekeyed Jordan's property to 

allow itself access to return to secure the property by winterizing it and to make 

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repmrs. Def.'s Answering Br. at 33-34. Perhaps that is true; however, rekeying the 

property also had the effect of communicating to Jordan that Nationstar now 

controlled the property. The action left Jordan with no method of entering her own 

property. Nationstar relies on the fact that it did not change the locks to exclude 

Jordan (because it provided her a lockbox and phone nmnber to call) to provide proof 

that it did not possess the premises. However, although she was able to obtain a key 

by calling, the process made Nationstar the "middle man." She could no longer 

access her home without going through Nationstar. This action of changing the locks 

and allowing her a key only after contacting Nationstar for the lockbox code is a clear 

expression of control. Although Nationstar did not exclude Jordan from the premises 

(as she was able to gain a key and enter), she left the next day and did not return. In 

its amicus brief, the Northwest Consumer Law Center advised us anecdotally that 

many similarly situated Washington homeowners felt that when the lender changed 

the locks to their homes, they no longer had a right to continue to possess the 

property. See Br. of Amicus Curiae Nw. Consumer Law Ctr. at 6. 

Nationstar effectively ousted Jordan by changing her locks, exercising its 

control over the property. Although the mortgagee-mortgagor context is different 

from the landlord-tenant context, Aldrich provides an apt analogy here because the 

court there found that changing the tenant's locks was the most striking showing of a 

reassmnption of possession. 12 Wn. App. at 667. Changing the locks is akin to 

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No. 92081-8 

exercising control, which is the key element of possession. By changing the locks, 

Nationstar took possession of the property. Since these actions are authorized by the 

entry provisions, the entry provisions allow the lender to take possession of the 

property. Because Washington law prohibits lenders from taking possession of the 

borrower's property before foreclosure, the provisions are in conflict with state law. 

Therefore, we must answer the first certified question in the negative and find that the 

entry provisions are unenforceable. 

2. Chapter 7. 60 RCW Does Not Provide the Exclusive Remedy for a Lender To 

Gain Access to an Encumbered Property Prior to Foreclosure 

The second certified question asks whether this state's receivership statutes 

separately prohibit the entry provisions. Specifically, this second question asks 

whether chapter 7.60 RCW, which provides for the judicial appointment of a third 

party receiver to manage the property, is the exclusive method by which lenders can 

gain access to encumbered property prior to foreclosure. 

This is an issue of first impression in this court, and no Washington appellate 

decision is on point. We must answer this question in the negative because nothing 

indicates that the statutory receivership scheme provides the exclusive remedy for 

lenders to access a property. 

a. Background on Receivership and Its Role in Mortgage Foreclosure 

Chapter 7.60 RCW governs Washington's receivership scheme. A "receiver" 

is a third party appointed by a court to take charge of property and manage it as the 

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court directs. 18 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON 

PRACTICE: REAL ESTATE: TRANSACTIONS,§ 18.6, at 310 (2d ed. 2004). The statutes 

enumerate some 40 circumstances under which a receiver may be appointed. Only a 

few concern mortgaged real property. See RCW 7.60.025(1)(b), (g), (cc), (dd). 

Although authorized by statute, lenders are not entitled to a receiver, even where a 

clause in the mortgage provides for the appointment of a receiver. STOEBUCK & 

WEAVER, supra, § 18.6, at 312. While statutory grounds exist for a court-appointed 

receiver prior to foreclosure, it is rarely sought. I d. at 314. 

In the context of mortgaged real property, a receiver might be appointed as a 

"custodial receiver," who would take possession of the property and preserve it. 

RCW 7.60.015; 7.60.025(1)(g). Commonly, receivers are appointed to collect rent 

from income-producing property. STOEBUCK & WEAVER, supra, § 18.6, at 310-11; 

see RCW 7 .28.230(1) (providing grounds for appointing a receiver to collect rent for 

application to mortgage). Importantly, nothing in the text ofRCW 7.28.230(1) or 

chapter 7.60 RCW requires the appointment of a receiver in this context. 

Jordan argues that the entry provisions are Nationstar's attempt to contract 

around chapter 7.60 RCW's requirements and that the legislature intended for the 

statutes to provide lenders an exclusive remedy. However, as explained below, 

Jordan's arguments fail to establish that chapter 7.60 RCW does so. 

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b. The Contract Provisions Do Not Conflict with Chapter 7. 60 RCW 

We have held that the deed of trust act in chapter 61.24 RCW cannot be 

contracted around in two recent cases where parties attempted to modify the deed of 

trust act's requirements by private contract. See Bain v. Metro. Mortg. Grp., Inc., 175 

Wn.2d 83, 107,285 P.3d 34 (2012) (holding that parties cannot contract to fit a 

statutory definition to fulfill the act's requirements); Schroeder v. Excelsior Mgmt. 

Grp., LLC, 177 Wn.2d 94, 107,297 P.3d 677 (2013) (holding that parties cannot 

contractually waive a requirement under the act that agricultural properties may only 

be foreclosed judicially). 

Jordan argues that like in B a in and Schroeder, the entry provisions attempt to 

"bypass" statutes that dictate a lender's only entry method. Pl.'s Opening Br. at 25. 

However, Jordan misconstrues the receivership statutes as providing a "list of 

requisites to a lender gaining access to a borrower's property." Id. at 28. While the 

statutes enumerate receivership requirements, they are not concerned with a lender's 

access to borrower's property but rather merely set forth requirements should a 

receiver be necessary. Thus, the entry provisions do not attempt to circumvent the 

receivership statutes and thus do not conflict with chapter 7.60 RCW. Similarly, 

Jordan's other arguments do not support her contention that the receivership statutes 

provide lenders an exclusive remedy to access property. In fact, as explained below, 

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the text of the statute and policy considerations support a finding that chapter 7.60 

RCW does not provide lenders the exclusive remedy. 

c. The Statute's Text Supports Finding That It Does Not Provide an 

Exclusive Remedy 

The text of the statute supports a finding that it does not provide the exclusive 

remedy. First, the plain language of the statute must be examined to determine 

exclusivity. We have held that when engaging in statutory interpretation, our 

"fundamental objective is to ascertain and carry out the Legislature's intent, and if the 

statute's meaning is plain on its face, then the court must give effect to that plain 

meaning as an expression of legislative intent." Dep 't of Ecology v. Campbell & 

Gwinn, LLC, 146 Wn.2d 1, 9-10,43 P.3d 4 (2002). 

Of course, an exclusivity clause would be the clearest indication of the 

legislature's intent that the statute be exclusive, but as Jordan concedes, this statute 

does not have one. However, Jordan argues that because the statutory scheme is 

"comprehensive," the legislature intended for the statute to provide the exclusive 

remedy for lenders such that they cannot contract for entry otherwise. See generally 

Pl. Opening Br. at 24-37; and see LAWS OF 2004, ch. 165, § 1. It is true that the 

receivership statutory scheme is comprehensive, but the plain language of the statute 

does not suggest that chapter 7.60 RCW was intended to be an exclusive remedy. 

If a court were to appoint a receiver in this context, it would likely be pursuant 

to RCW 7.60.025(1). Thus, we analyze the question of whether the receivership 

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provides lenders the exclusive remedy under that portion of the provision. The statute 

provides, in part: 

A receiver may be appointed by the superior court of this state in the following 

instances, but except in any case ... in which a receiver's appointment with 

respect to real property is sought under (b)(ii) of this subsection, a receiver 

shall be appointed only if the court additionally determines that the 

appointment of a receiver is reasonably necessary and that other available 

remedies either are not available or are inadequate. 

RCW 7 .60.025(1) (emphasis added). Subsection (b )(ii) provides that a receiver may 

be appointed after the commencement of a foreclosure proceeding on a lien against 

real property where the appointment is provided for by agreement or is necessary to 

collect rent or profits from the property. 

In analyzing this text, we look to its plain language. In general, the court's 

discretion is illustrated by the word "may." Under subsection (b )(ii), a receiver shall 

be appointed, but only if the court makes additional fmdings. First the court must find 

a receiver is "reasonably necessary." RCW 7.60.025(l)(b)(ii). Second, and more 

importantly, the court determines that "other available remedies either are not 

available or are inadequate." RCW 7.60.025(1) (emphasis added). 

Courts consider all of the facts and circumstances to determine whether to 

appoint a receiver. Union Boom Co. v. Samish Boom Co., 33 Wash. 144, 152, 74 P. 

53 (1903). "It is well established that a receiver should not be appointed if there is 

any other adequate remedy." King County Dep 't of Cmty. & Human Servs. v. Nw. 

Dejs. Ass 'n, 118 Wn. App. 117, 126, 75 P.3d 583 (2003) (citing Bergman Clay Mfg. 

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Jordan v. Nationstar Mortgage, LLC 

No. 92081-8 

Co. v. Bergman, 73 Wash. 144, 147, 131 P. 485 (1913)). The Court of Appeals 

reasoned that allowing a current board of directors to oversee a corporation "was not 

an adequate remedy" and, thus, found that appointment of a receiver was appropriate. 

!d. at 126. 

Thus, in general, other remedies exist outside of appointing a receiver. It is not 

before us to determine what particular remedies are available. To answer this 

question, it is sufficient that the plain language of the provision does not indicate that 

chapter 7.60 RCW was meant to provide an exclusive remedy to lenders. Finally, 

public policy also supports the finding that the statute is not the exclusive remedy, 

which we discuss below. 

d. Public Policy Supports Finding That Chapter 7.60 RCW Does Not Provide 

an Exclusive Remedy 

To the extent that chapter 7.60 RCW's language is not explicit, it is worth 

noting a relevant policy consideration. One of the advantages of a deed of trust is that 

it offers '"efficient and inexpensive"' nonjudicial foreclosure. Schroeder, 177 Wn.2d 

at 104 (quoting Cox v. Helenius, 103 Wn.2d 383,387,693 P.2d 683 (1985)). Thus, 

requiring lenders to wade through the judicial receivership process in all casesregardless of the facts and circumstances-is illogical. Overall, both policy and the 

plain text of the statute support finding that it does not provide an exclusive remedy to 

lenders. Thus, we must answer this question in the negative. 

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Jordan v. Nationstar Mortgage, LLC 

No. 92081-8 

CONCLUSION 

We answer the first certified question in the negative. Washington law 

prohibits lenders from taking possession of property prior to foreclosure. These entry 

provisions enable the lender to take possession after default, and the lender's action 

here constitutes taking possession. Therefore, the entry provisions are in direct 

conflict with state law and are unenforceable. 

As to the second question, we also answer it in the negative. The text of the 

receivership statutes, the legislative intent behind them, and public policy 

considerations compel us to find that chapter 7.60 RCW is not the exclusive remedy 

for lenders to gain access to a borrower's property. 

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Jordan v. Nationstar Mortgage, LLC 

No. 92081-8 

WE CONCUR: 

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Jordan v. Nationstar Mortgage, LLC 

No. 92081-8 

STEPHENS, J. (dissenting}-! respectfully dissent because the majority 

erroneously equates the entry provisions at issue with actual possession. Months 

after Laura Jordan defaulted on her loan, Nationstar Mortgage LLC inspected 

Jordan's property and determined that it was vacant. Pursuant to the deed of trust's 

entry provisions, Nationstar secured the home by changing the lock to the front door 

and posted instructions on how Jordan could enter the home if she returned. This 

practice is not inconsistent with Washington's lien theory of mortgages and RCW 

7.28.230(1). Accordingly, the first certified question should be answered in the 

affirmative. 

"Washington courts have hesitated to 'invoke public policy to limit or avoid 

express contract terms absent legislative action."' Brown v. Snohomish County 

Physicians Corp., 120 Wn.2d 747, 753, 845 P.2d 334 (1993) (quoting State Farm 

 	 
	 
   
		

		

Jordan v. Nationstar Mortgage, LLC, 92081-8 (Stephens, J. Dissenting) 

Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 481, 687 P.2d 1139 (1984)). It is 

undisputed that the deed of trust's entry provisions were contractually agreed to and 

authorized Nationstar to change the locks on Jordan's home after default. And as 

the majority correctly notes, Washington's legislature has not "specifically 

invalidate[ d] such contrary agreements in its codification of lien theory prohibiting 

the lender from taking possession of property before foreclosure." Majority at 10. 

The majority nevertheless finds the entry provisions contravene Washington's 

rule against lenders taking preforeclosure possession of borrowers' property. The 

majority does so by describing the entry provisions as authorizing the lender to take 

"possession." Id. at 8, 12. But the certified question asks not whether lenders can 

take "possession" of property before foreclosure. Instead, it asks whether the lender 

can "enter, maintain, and secure the encumbered property" before foreclosure. 

Order Certifying Questions to Wash. Supreme Court, Jordan v. Nationstar Mortg., 

LLC, No. 2:14-CV-0175-TOR at 9 (E. Wash. Aug. 10, 2015). Absent legislation 

stating otherwise, the entry provisions at issue are not inconsistent with 

Washington's lien theory of mortgages and RCW 7.28.230(1). 

The majority cites inapposite authority to equate the entry provisions with 

actual possession. At the outset, the majority's reliance on the Restatement is 

misplaced. RESTATEMENT (THIRD) OF PROP: MORTGAGES§ 4.1 (AM. LAW. INST. 

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Jordan v. Nationstar Mortgage, LLC, 92081-8 (Stephens, J. Dissenting) 

1997). The Restatement does not contemplate entry provisions, like those considered 

here, but rather a lender taking possession. The Restatement merely reiterates the 

general rule against accelerated pre foreclosure possession of property. In illustrative 

applications of this rule, the Restatement examines instances where the mortgagee 

has "file[d] an action to obtain possession of [the property]." REsTATEMENT§ 4.1 

cmt. b, illus. 1-3. Here, however, Nationstar has not filed an action to obtain 

possession of Jordan's property. Instead, after Jordan defaulted on her loan, 

Nationstar took contractually authorized steps to secure the abandoned propertyand it posted instructions on how Jordan could access the property, consistent with 

her continued right of possession. 

Neither of the two Court of Appeals decisions cited by the majority support 

equating the entry provisions to possession. Aldrich v. Olson does not even interpret 

"possession" in RCW 7.28.230(1). 12 Wn. App. 665, 531 P.2d 825 (1975). And 

Coleman v. Hoffman merely clarifies the difference between the right to possession 

(applicable to foreclosure actions) and actual possession (applicable to premises 

liability matters): "Although RCW 7.28.230 effectively precludes a mortgagee from 

obtaining possession of property to the mortgagor's exclusion, the statute does nof 

bear on the question of whether a mortgagee actually possess the property. Actual 

possession, not a right to possession, is the critical inquiry in premises liability 

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Jordan v. Nationstar Mortgage, LLC, 92081-8 (Stephens, J. Dissenting) 

cases." 115 Wn. App. 853, 863-64, 64 P.2d 65 (2003). But unlike the landlords in 

Aldrich and Coleman, Nationstar never possessed the property to Jordan's exclusion. 

Rather, Nationstar provided Jordan with instructions on how to enter her home if she 

returned. At no point did Nationstar ever object to Jordan's continued right to 

possession before foreclosure. 

Finally, even if we regarded the entry provisions as interfering with Jordan's 

right to possession, Nationstar was nevertheless justified in securing Jordan's 

abandoned property. The Restatement recognizes three exceptions to the general 

rule that mortgagees cannot obtain possession of the mortgagor's property before 

foreclosure: (1) mortgagor consent, (2) mortgagee's possession as the result of 

peaceful entry in good faith after purchasing the property at a void or voidable 

foreclosure sale, and (3) mortgagor abandonment. RESTATEMENT§ 4.1 cmt. c. Here, 

the evidence supported Nationstar securing Jordan's home under the mortgagor 

abandonment exception. Months after Jordan defaulted on her loan, Nationstar 

inspected Jordan's property and determined that it was vacant. Nationstar then 

changed the locks, which it was allowed to do under the entry provisions in order to 

secure the property. Cf PNC Bank, NA v. Van Hoornaar, 44 F. Supp. 3d 846, 856-

57 (E.D. Wis. 2014) (dismissing trespass claim against lender for changing a 

homeowner's locks upon default because the mortgage agreement authorizing the 

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Jordan v. Nations tar Mortgage, LLC, 92081-8 (Stephens, J. Dissenting) 

lender to secure the premises upon default or abandonment created an implied 

consent to entry); see also Tennant v. Chase Home Fin., LLC, 187 So. 3d 1172, 

1181-82 (Ala. Civ. App. 2015). Moreover, public policy considerations support 

Nationstar securing Jordan's abandoned property: "Not only is it important to protect 

the [property] against the elements and vandalism, but society is benefited by [the 

property's] productive use." RESTATEMENT§ 4.1 cmt. c. 

Pursuant to entry agreements like the one mutually agreed on by Nationstar 

and Jordan, a lender may "enter, maintain, and secure" seemingly abandoned 

property before foreclosure without taking "possession" of it. Because the first 

certified question should be answered in the affirmative, I dissent. 

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Jordan v. Nationstar Mortgage, LLC, 92081-8 (Stephens, J. Dissenting) 

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