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      IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CHRISTA L. ALBICE, a married woman,                 )
and BART A. TECCA and                               )      No. 85260-0
KAREN L. TECCA, husband and wife,                   )
                                                    )
                      Respondents,                  )
                                                    )
       v.                                           )      En Banc
                                                    )
PREMIER MORTGAGE SERVICES OF                        )
WASHINGTON, INC., a Washington                      )
corporation; OPTION ONE MORTGAGE                    )
CORPORATION, a California corporation,              )
                                                    )
                      Defendants,                   )
                                                    )
RON DICKINSON and "JANE DOE")
DICKINSON, husband and wife,                        )
                                                    )
                      Petitioners.                  )
___________________________________                 )      Filed May 24, 2012

       C. JOHNSON, J. -- This case involves interpretation of the deeds of trust act, 

chapter 61.24 RCW, and the statutory procedural requirements for nonjudicially 

foreclosing on an owner's interest.  This case also involves whether, under the facts 

here, the property owner waived the right to challenge the sale and whether the 

purchaser of the nonjudicial foreclosure sale statutorily qualifies as a bona fide  

Albice v. Dickinson, Cause No. 85260-0

purchaser (BFP).

       The trial court ruled that despite procedural noncompliance, the purchaser 

was a BFP under the statute and quieted title in the purchaser. The Court of Appeals 

reversed, holding that failure to comply with the statutory requirements was reason 

to set the sale aside and that factually, the purchaser did not qualify as a BFP. We 

affirm the Court of Appeals.

                                           FACTS

       Christa Albice and Karen Tecca (hereinafter Tecca) inherited the property at 

issue here. In 2003, Tecca borrowed $115,500 against the property. Clerk's Papers 

(CP) at 305. The property was appraised at $607,000 in 2003 (CP at 1038) and at 

$950,000 in 2007. CP at 394. The loan was serviced by Option One Mortgage 

Corporation (Option One), and Premier Mortgage Services of Washington (Premier) 

acted as the trustee. Option One and Premier shared databases, having access to the 

same loan information, and everyone who worked for Premier was an employee of 

Option One.

       In 2006, Tecca defaulted on the loan and received a notice of trustee's sale, 

setting the foreclosure sale for September 8, 2006. CP at 460. Tecca then, in July 

2006, negotiated and entered into a forbearance agreement to cure the default. The 

                                               2 

Albice v. Dickinson, Cause No. 85260-0

total reinstatement amount was for $5,126.97, which included $1,733.79 for 

estimated foreclosure fees and costs. CP at 471. Under the agreement, payments 

were due the 16th of each month, ending January 16, 2007. CP at 472. Although 

Tecca tendered each payment late, Option One accepted each payment, except for 

the last. The last payment was sent on February 2, 2007, but was rejected by Option 

One. During a deposition, Premier's representative, an Option One employee,

testified that the last late payment was the only breach of the Forbearance 

Agreement. CP at 259. Tecca learned the final payment was rejected on February 

10, 2007, and the payment was refunded on February 16, 2007. Although the 

Forbearance Agreement provided that upon breach, a 10-day written notice would 

be sent, Tecca never received this notice. CP at 468, 454. 

       The trustee's sale originally set for September 8, 2006 was continued six 

times. Each continuance was tied to the payments Tecca made under the 

Forbearance Agreement. The foreclosure sale took place on February 16, 2007.  CP 

at 352-59. Through an agent, the petitioner, Ron Dickinson, successfully bid 
$130,000 for the property.1

       Dickinson has purchased about 9 of his 13 properties at nonjudicial 

       1 Although four or five bidders showed up at the original sale date, only two bidders, one 
being Dickinson's agent, appeared at the February 16 sale. CP at 360, 426.

                                               3 

Albice v. Dickinson, Cause No. 85260-0

foreclosure sales. CP at 418-19. Dickinson buys and sells houses as a business. He 

has familiarized himself with foreclosure law to some extent to keep himself out of 

"trouble." CP at 428. When Dickinson learned that the Tecca property was for sale, 

he researched the property and obtained a copy of the notice of trustee's sale, which 

listed the amount in arrears as $1,228.03. CP at 526, 530. About a week before the 

originally scheduled sale, Dickinson visited Karen Tecca's home and offered to buy 

the property. She refused and told him the sale would not happen. CP at 421.

Dickinson attended the first scheduled sale, kept track of postponements, and 

phoned Premier to determine the next sale date. He was surprised when the property 

did finally come up for sale.

       Tecca first learned the property was sold when Dickinson told Tecca they no 

longer owned it and needed to leave. Dickinson then filed an unlawful detainer 

action and sought to quiet title. Tecca countersued, seeking to quiet title in an action 

to set aside the nonjudicial sale. Tecca also brought suit against Option One and 

Premier, but the trial court dismissed the action based on an arbitration clause. 

Tecca's and Dickinson's actions were consolidated. Dickinson cross-claimed 

against Option One and Premier, but he voluntarily dismissed those claims.

       Dickinson moved for summary judgment to establish that he was a BFP and 

                                               4 

Albice v. Dickinson, Cause No. 85260-0

entitled to quiet title. Tecca also moved for summary judgment, arguing the 

foreclosure sale should be set aside because the sale occurred after the statutory 

deadline and Premier was not a qualified trustee with authority to conduct the sale. 

The trial court granted Dickinson's motion, ruling that Dickinson was a BFP and 

despite procedural noncompliance by the trustee, the recitations in the trustee's deed 

were conclusive evidence of statutory compliance in favor of BFPs. The issue of 

whether Premier was a qualified trustee was left for trial. Following trial, the court 
concluded Premier was authorized to act as the trustee,2 quieted title in Dickinson, 

and awarded Dickinson damages.

       Tecca appealed. The Court of Appeals reversed, setting the sale aside. It 

reversed the trial court's award of damages and instead awarded Tecca costs and 

fees as the prevailing party under RCW 4.84.010. Albice v. Premier Mortg. Servs.

of Wash., Inc., 157 Wn. App. 912, 923-25, 928, 935, 239 P.3d 1148 (2010). 

       Dickinson petitioned for review. We granted review. Albice v. Premier 

Mortg. Servs. of Wash., Inc., 170 Wn.2d 1029, 249 P.3d 623 (2011).

                                           ISSUES

       2 The trial court concluded Premier had statutory authority to act as a trustee under RCW 
61.24.010, determining Premier was qualified based on its internal records rather than annual 
reports filed with the Secretary of State. We do not reach this issue.

                                               5 

Albice v. Dickinson, Cause No. 85260-0

   1. Whether a trustee's sale taking place beyond the 120 days permitted by RCW 

       61.24.040(6) warrants invalidating the sale.

   2. Whether, under the circumstances of this case, a borrower waives the right to 

       bring a postsale challenge for failing to utilize the presale remedies under

       RCW 61.24.130.

   3. Whether a bona fide purchaser can prevail despite an otherwise invalid sale.

                                         ANALYSIS

       This case raises questions of law and statutory interpretation on appeal from 

summary judgment. Our review is de novo. Lamtec Corp. v. Dep't of Revenue, 170 

Wn.2d 838, 842, 246 P.3d 788 (2011) (citing Dreiling v. Jain, 151 Wn.2d 900, 908, 

93 P.3d 861 (2004)).

       The deeds of trust act, chapter 61.24 RCW,3 creates a three-party mortgage 

system allowing lenders, when payment default occurs, to nonjudicially foreclose by 

trustee's sale. The act furthers three goals: (1) that the nonjudicial foreclosure 

process should be efficient and inexpensive, (2) that the process should result in 

interested parties having an adequate opportunity to prevent wrongful foreclosure, 

and (3) that the process should promote stability of land titles. Cox v. Helenius, 103 

       3 This chapter was revised in 2009 and 2012. No changes affect any of the statutes at issue 
here; thus, the current version is cited.

                                               6 

Albice v. Dickinson, Cause No. 85260-0

Wn.2d 383, 387, 693 P.2d 683 (1985). Because the act dispenses with many 

protections commonly enjoyed by borrowers under judicial foreclosures, lenders 

must strictly comply with the statutes and courts must strictly construe the statutes 

in the borrower's favor. Udall v. T.D. Escrow Servs., Inc., 159 Wn.2d 903, 915-16, 

154 P.3d 882 (2007); Koegel v. Prudential Mut. Sav. Bank, 51 Wn. App. 108, 111-

12, 752 P.2d 385 (1988). The procedural requirements for conducting a trustee sale 

are extensively spelled out in RCW 61.24.030 and RCW 61.24.040. Procedural 

irregularities, such as those divesting a trustee of its statutory authority to sell the 

property, can invalidate the sale. Udall, 159 Wn.2d at 911. 

   1. Procedural Irregularities

       Throughout the proceedings, Tecca has argued that the trustee's failure to 

comply with certain statutory requirements renders the sale invalid. These 

procedural irregularities or defects include that Premier had no authority to conduct 

the sale 161 days after the original sale date under RCW 61.24.040(6), that Premier 

violated RCW 61.24.090(1) by failing to discontinue the sale after they cured 

default more than 11 days before the actual sale date, and that the recitals contained 

in the trustee's deed were inadequate under RCW 61.24.040(7). Regarding the 

recitals, the Court of Appeals agreed with Tecca, concluding that because the deed 

                                               7 

Albice v. Dickinson, Cause No. 85260-0

of trust failed to recite any facts triggering the protections of RCW 61.24.040(7), 

Dickinson was not protected from the undisputed defects in the sale. The Court of 

Appeals then set the sale aside based on its conclusion that Premier had no statutory 

authority to sell the property when it continued the sale past the 120 days permitted 

by the act. We agree with the Court of Appeals' holding that Premier lost statutory 

authority after it continued the sale past 120 days from the original sale date and that 

the sale was invalid. We need not address or resolve any further issues regarding 

other procedural irregularities. 

       RCW 61.24.040(1)(f), (2) provides the requirements for a deed of trust 

foreclosure, including the notice requirements for the trustee's sale and foreclosure. 

Under RCW 61.24.040(6), a trustee may continue a sale "for any cause the trustee 

deems advantageous . . . for a period or periods not exceeding a total of one 

hundred twenty days" (emphasis added). A plain reading of this provision permits a 

trustee to continue a sale once or more than once but unambiguously limits the 

trustee from continuing the sale past 120 days.

       When a party's authority to act is prescribed by a statute and the statute 

includes time limits, as under RCW 61.24.040(6), failure to act within that time 

violates the statute and divests the party of statutory authority. Without statutory 

                                               8 

Albice v. Dickinson, Cause No. 85260-0

authority, any action taken is invalid. As we have already mentioned and held, under 

this statute, strict compliance is required. Udall, 159 Wn.2d at 915-16. Therefore, 

strictly applying the statute as required, we agree with the Court of Appeals and 

hold that under RCW 61.24.040(6), a trustee is not authorized, at least not without 

reissuing the statutory notices, to conduct a sale after 120 days from the original sale 

date, and such a sale is invalid. 

       Here, Premier issued the notice of trustee's sale listing the sale date as 

September 8, 2006. Premier held the actual sale on February 16, 2007, 161 days 

from the original sale date in violation of the statute and divesting its statutory 

authority to sell. The sale was invalid. 

   2. Waiver

       Though undisputed that Premier failed to strictly comply with its statutory 

obligations, Dickinson nevertheless contends Tecca waived their right to bring a 

postsale challenge by failing to pursue the presale remedies provided for in RCW 

61.24.040(1)(f)(IX). Waiver is an equitable principle that can apply to defeat 

someone's legal rights where the facts support an argument that the party 

relinquished their rights by delaying in asserting or failing to assert an otherwise 

available adequate remedy. Dickinson urges us to find waiver, contending that at 

                                               9 

Albice v. Dickinson, Cause No. 85260-0

any time after Tecca received notice of their presale rights and before the actual 

sale, they could have restrained the sale and litigated the issue of the alleged breach 

of the Forbearance Agreement and underlying debt. He argues that because Tecca 

failed to use their presale remedies, their postsale challenge is barred. We disagree.

       We have found waiver in a foreclosure setting where the facts support its 

application. In Plein, we established that waiver of any postsale challenge occurs 

where a party (1) received notice of the right to enjoin the sale, (2) had actual or 

constructive knowledge of a defense to foreclosure prior to the sale, and (3) failed to 

bring an action to obtain a court order enjoining the sale. Plein v. Lackey, 149 

Wn.2d 214, 227, 67 P.3d 1061 (2003) (citing Cox, 103 Wn.2d at 388). In that case, 

the borrower received the notices of foreclosure and trustee's sale, notifying him of 

his presale right to seek a restraining order. Almost two months before the 

scheduled sale, the borrower sought a permanent injunction barring the trustee's 

sale on grounds that there was no default on the underlying debt. In addition, the 

parties were involved in a lawsuit disputing corporate dealings and other actions. 

The borrower failed to seek a temporary injunction, which would have halted the 

sale pending a hearing on the merits of the permanent injunction. As a result, the 

sale proceeded as scheduled, on the date listed in the notices, and the property was 

                                              10 

Albice v. Dickinson, Cause No. 85260-0

sold before the hearing. Plein, 149 Wn.2d at 220-21.  Under these circumstances, in 

finding waiver, we recognized that allowing the borrower to delay asserting a 

defense until after the sale would have defeated the spirit and intent of the act.4

Plein, 149 Wn.2d at 228 (citing Peoples Nat'l Bank of Wash. v. Ostrander, 6 Wn. 

App. 28, 32, 491 P.2d 1058 (1971)). Given that the borrower had adequate 

opportunity to utilize his presale remedies to prevent wrongful foreclosure, we 

explained that finding waiver under those circumstances furthered the goals of the 

act. Plein, 149 Wn.2d at 228.

       Waiver, however, cannot apply to all circumstances or types of postsale 

challenges. RCW 61.24.040(1)(f)(IX) provides that "[f]ailure to bring . . . a lawsuit 

may result in waiver of any proper grounds for invalidating the Trustee's sale" 

(emphasis added). The word "may" indicates the legislature neither requires nor 

intends for courts to strictly apply waiver. Under the statute, we apply waiver only 

       4 Similarly, the Court of Appeals has found waiver in cases where the challenging party 
failed to seek a temporary restraining order even though they knew of proper grounds for such an 
order well in advance of the sale. See, e.g., Peoples Nat'l Bank of Wash. v. Ostrander, 6 Wn. 
App. 28, 32, 491 P.2d 1058 (1971) (defendants were barred from asserting a postsale challenge 
when defendants chose to wait until after the sale, about five months after discovery of the alleged 
fraud, to assert their claimed defense); Koegel, 51 Wn. App. at 116 (borrower waived right to 
contest the sale because as early as a month prior to the sale, the borrower, more than once, 
threatened to enjoin the sale, and the borrower's attorney attended the sale but made no 
continuance request or objection); County Express Stores, Inc. v. Sims, 87 Wn. App. 741, 744, 
752, 943 P.2d 374 (1997).

                                              11 

Albice v. Dickinson, Cause No. 85260-0

where it is equitable under the circumstances and where it serves the goals of the 

act. Unlike judicial foreclosures, trustee foreclosure sales are conducted with little 

to no oversight. Still, once a property is sold, the act favors purchasers over 

property owners and other borrowers by giving preference to the third 

goal -- stability of land titles. It does so by creating, at minimum, a rebuttable 

presumption that the sale was conducted in compliance with the procedural 
requirements of the act.5 Thus, in determining whether waiver applies, the second 

goal -- that the nonjudicial foreclosure process should result in is interested parties 

having an adequate opportunity to prevent wrongful foreclosure -- becomes 

particularly important. 

       Under the facts of this case, we conclude waiver cannot be equitably 

established. Dickinson seemingly argues that Tecca's presale remedies were 

triggered the moment they received notice of the trustee's sale. Yet this argument 

assumes the borrower can challenge the underlying debt. Although this was correct 

in Plein, because the borrower believed the debt had been paid, here, when Tecca 

       5 RCW 61.24.040(7) provides that the deed's recital of statutory compliance constitutes 
"prima facie evidence of such compliance and conclusive evidence thereof in favor of bona fide 
purchasers and encumbrancers for value."

                                              12 

Albice v. Dickinson, Cause No. 85260-0

received the notice, they had no grounds to challenge the underlying debt. In fact, by 

entering into the Forbearance Agreement, they were acknowledging default on their 

loan payment. This postponed the foreclosure sale, and tendering each monthly 

payment gave them additional time to cure the default. While making these 

payments, Tecca had no reason to seek an order restraining a sale that may not even 

proceed.6  

       Further, unlike in Plein, where the borrower had a defense almost two months 

prior to the sale, here, Tecca had no knowledge of their alleged breach in time to 

restrain the sale. Tecca tendered all payments, albeit late, under the Forbearance 

Agreement. Option One accepted all of those late payments and permitted Premier 

to continue the sale each time, except for the last. By repeatedly accepting the prior 

late payments, Option One created expectancy in Tecca that their last late payment 

would also be accepted. Tecca could not have known Option One would consider 

their last late payment a breach of the agreement having never done so before. They 

reasonably believed their last payment cured the default. While the Forbearance 

Agreement stated they would receive a 10-day written notice upon breach, Tecca 

       6 Unlike in Plein, where the sale proceeded as scheduled on the date in the notices, the 
sale here was continued six times.

                                              13 

Albice v. Dickinson, Cause No. 85260-0

never received this notice.7 They rightly assumed the sale would be canceled after 

they tendered their last payment.8 And after learning their property had been sold, 

Tecca promptly brought their countersuit, showing no intention of "sleeping on" 

their rights. 

       Additionally, and equally important, to ensure trustees strictly comply with 

the requirements of the act, courts must be able to review postsale challenges where, 

like here, the claims are promptly asserted. Although Dickinson contends this 

defeats the third goal, the goal is to promote the stability of land titles. Cox, 103 

Wn.2d at 387. Enforcing statutory compliance encourages trustees to conduct 

procedurally sound sales. When trustees strictly comply with their legal obligations 

under the act, interested parties will have no claim for postsale relief, thereby 

       7 Dickinson argues that Option One notified Tecca of the breach by sending a letter on 
January 31, 2007. Karen Tecca, however, testified at her deposition that she did not receive the 
purported letter, and while Option One produced an internal electronic copy of the letter, it 
produced no proof of service. We view the facts in the light most favorable to Tecca as the 
nonmoving party on summary judgment.

       8 As Tecca contends, Premier was required to discontinue the sale under RCW 
61.24.090(1) as they submitted final payment curing the default more than 11 days prior to the 
actual sale date. Although under the Forbearance Agreement Tecca tendered payments to Option 
One, as the Court of Appeals noted, Albice, 157 Wn. App. at 934 n.16, it would be disingenuous 
to suggest Premier had no notice of Tecca's final payment. Option One and Premier were closely 
affiliated, if not the same company. The two companies shared databases, that is, had access to 
the same loan information, and everyone who worked for Premier was an employee of Option 
One.

                                              14 

Albice v. Dickinson, Cause No. 85260-0

promoting stable land titles overall. Under the facts here, we hold that Tecca did not 

waive their rights. 

   3. Bona Fide Purchaser

       Despite the trustee's failure to strictly comply with the statutory

requirements and in addition to the waiver argument, Dickinson contends he is a 

BFP and should receive title. While the trial court concluded that Dickinson was a 

BFP, the Court of Appeals disagreed. We agree with the Court of Appeals.

       Under RCW 61.24.040(7), the deed's "recital shall be prima facie evidence 

of [statutory] compliance and conclusive evidence thereof in favor of bona fide 
purchasers."9 Whether Dickinson was a BFP is factual and legal inquiry. A BFP is 

one who purchases property without actual or constructive knowledge of another's 

       9 As mentioned, Tecca also contends that the recitals in the deed were inadequate to 
demonstrate compliance with the statute and cannot protect Dickinson even if he were a BFP. 
The act requires the deed to "recite the facts showing that the sale was conducted in compliance 
with all of the requirements of this chapter and of the deed of trust." RCW 61.24.040(7) 
(emphasis added). Here, the deed contained conclusory language stating "[a]ll legal requirements 
and all provisions of said Deed of Trust have been complied with, as to acts to be performed and 
notices to be given, as provided in Chapter 61.24 RCW." CP at 824. Although Dickinson argues 
that the recitals in the deed are almost identical to the form deed in 4 Washington State Bar 
Association, Washington Real Property Deskbook § 47.11(16) (3d ed. Supp. 2001), the party 
drafting the deed, or any legal document, must still consult the law to ensure compliance. The 
statute requires the deed to recite "facts" showing statutory compliance. Not only did the deed 
contain conclusory language stating compliance, the deed also misleadingly listed the sale date in 
the notice of trustee's sale as February 16, 2007, instead of the original sale date of September 8, 
2006. It also incorrectly states that the default was not cured, that is, that final payment was not 
tendered, 11 days prior to the date of the trustee's sale. It is questionable whether the recitals in 
the deed satisfied the statute.

                                              15 

Albice v. Dickinson, Cause No. 85260-0

claim of right to, or equity in, the property, and who pays valuable consideration. 

But if the purchaser has knowledge or information that would cause an ordinarily 

prudent person to inquire further, and if such inquiry, reasonably diligently pursued, 

would lead to discovery of title defects or of equitable rights of others regarding the 

property, then the purchaser has constructive knowledge of everything the inquiry 

would have revealed. Thus, in considering whether a person is a BFP, we ask (1) 

whether the surrounding events created a duty of inquiry, and if so, (2) whether the 

purchaser satisfied that duty. In this determination, we consider the purchaser's 

knowledge and experience with real estate. Miebach v. Colasurdo, 102 Wn.2d 170, 

175-76, 685 P.2d 1074 (1984).

       The facts pertaining to Dickinson's status are undisputed. We give, as did the 

Court of Appeals, substantial weight to Dickinson's real estate experience. 

Dickinson has extensive experience with nonjudicial foreclosure sales, purchasing 9

of his 13 properties at such sales. He familiarized himself with foreclosure law and

knew enough about the process to obtain the notice of trustee's sale from a title 

company.

       Dickinson had within his knowledge sufficient facts to put an experienced 

real estate purchaser, such as himself, on inquiry notice. He had a copy of the notice 

                                              16 

Albice v. Dickinson, Cause No. 85260-0

of trustee's sale, which listed the amount in arrears as only $1,228.03, suggesting 

Tecca had substantial equity in the property. CP at 530. Dickinson contacted Tecca, 

who refused to sell him the property and insisted the sale would not happen. 

Dickinson kept track of the numerous continuances and was surprised that the 

property was finally up for sale, five months after the date listed in the notice. The 

number of continuances, however, chilled the bidding process, contributing to the 

grossly inadequate purchase price. Although four or five bidders showed up to the 

original sale, only Dickinson and another bidder showed up at the actual sale. 

Dickinson was prepared to bid up to $450,000 for the property, showing he knew 

the property was worth at least that much. The substantial equity coupled with the 

minor default amount, Tecca's intention to keep the property, and the numerous 

continuances created a duty of inquiry, which Dickinson failed to satisfy. Given that 

he had already contacted Tecca once, Dickinson could have contacted Tecca again 

to determine whether default had been cured. Had Dickinson made a reasonably 

diligent inquiry, he could have discovered that the numerous continuances were tied 

to payments under the Forbearance Agreement. Because real estate investment was 

his livelihood, Dickinson should have taken more care with this purchase in order to 

claim BFP protection. We agree with the Court of Appeals and hold that Dickinson 

                                              17 

Albice v. Dickinson, Cause No. 85260-0

was not a BFP.

                                       CONCLUSION

       The nonjudicial foreclosure proceedings here were marred by repeated 

statutory noncompliance. The financial institution acting as the lender also appeared 

to be acting as the trustee under a different name; the lender repeatedly accepted 

late payments and, at its sole discretion, rejected only the final late payment that 

would have cured the default; and the trustee conducted a sale without statutory 

authority. Equity cannot support waiver given these procedural defects and the 

purchaser's status as a sophisticated real estate investor or buyer who had 

constructive knowledge of the defects in the sale. 

       We conclude the trustee sale was invalid. We affirm the Court of Appeals and 

remand to the trial court to enter an order declaring the sale invalid and quieting title 

in Tecca as against Dickinson. We also affirm the Court of Appeals' decision 

reversing the trial court's judgments for rent, costs, and statutory attorney fees in 

favor of Dickinson.

AUTHOR:
        Justice Charles W. Johnson

WE CONCUR:

                                              18 

Albice v. Dickinson, Cause No. 85260-0

        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

        Justice Tom Chambers                             Justice Charles K. Wiggins

        Justice Susan Owens                              Gerry L. Alexander, Justice Pro Tem.

                                              19