The primary reason for using a deed of trust
instead of a mortgage is speed of foreclosure. A traditional
mortgage requires the filing of a lawsuit, which is then followed
by a sheriff's sale of the property. Even after the sheriff's
sale, the debtor usually has a period of time to buy it back,
normally six months or so, depending on the state where the
property is located. This is known as the right of redemption.
By the time all is said and done, it can take more than a
year and thousands of dollars to complete the foreclosure
With a deed of trust, however, a private sale can be conducted
after a short notice, usually 90 days, and there generally
is no right of redemption. The trustee's sale is final, quick,
Because of this accelerated procedure, the courts construe
the deed of trust statutes strictly against the lender. If
there is any ambiguity or question about the validity of a
foreclosure proceeding, the decision will usually be in the
An actual example illustrates this point. A borrower signed
a note providing that if a payment was missed, the lender
could not accelerate the note until the borrower had been
given 30 days written notice. During the 30 days, the note
allowed the borrower to make the late payment, plus any late
charges, and avoid foreclosure.
In this case, the borrower did default. The lender sent a
written notice of the default, as required by the note, and
one day later gave the statutory notice of the trustee's sale
(in this particular case, 90 days). The lender then completed
the sale in due course, and the borrower sued to set it aside.
Did the lender have to give a 30-day notice plus a 90-day
notice, or could both notices run at the same time?
The borrower argued that he was entitled to receive the 30-day
notice and the 90-day notice consecutively. In other words,
the lender would have to first give the 30-day notice specified
in the note, and only after 30 days had passed without a cure
could the lender give the 90-day notice of the trustee's sale,
or 120 days total. Under this theory, the borrower could cure
during both the 30-day period contained in the note and during
the 90-day period prior to the sale by making the late payment
plus any late charges and expenses.
The lender argued that there was no reason these two periods
could not run concurrently. The borrower received the 30-day
notice required by the note and the 90-day notice required
by law for the trustee's sale, even though they both ran at
the same time.
As you surely guessed, the court resolved the issue in favor
of the borrower. The court said that when a note requires
a notice, that notice must be given and the time to cure must
expire before the statutory 90-day notice may even be given.
The result is that whenever a note gives the borrower the
right to receive notice of default and an opportunity to cure,
the borrower is entitled to receive two notices and two cure
periods, one after the other.
Always be very careful to comply fully with all the terms
of the note and applicable law when foreclosing a deed of
trust, and resolve all ambiguities in favor of the borrower.
It is advisable to obtain experienced legal counsel to conduct
the foreclosure. In addition, be reluctant to provide lengthy
cure periods in the note or deed of trust, because these will
only add to the time it takes to foreclose if there is a default.
See Schaeffer v. Chapman, 176 Ariz. 326, 861 P.2D 611 (Ariz.
Return To Legal