By Jason Cotton, Esq., and SallyGarrison, Esq.

The Mortgage Law Firm, PC *

USFN Member (AZ, CA, HI, NM, OK, OR, TX, WA)

The Washington Supreme Court recently issued an opinion that could materially alter foreclosure strategy for home equity products in the state and potentially influence broader national conversations about negotiability and enforcement rights. In Marquez Vargas v. RRA CP Opportunity Trust 1, No. 103735-0 (Wash. Apr. 30, 2026), the Court held that a HELOC note is a nonnegotiable instrument and, therefore, cannot support non-judicial foreclosure under Washington’s Deed of Trust Act (DTA) as currently written.

For the default servicing industry, this is not a technical footnote. It is a structural limitation on the use of Washington’s non-judicial process for a category of loans that has historically moved through foreclosure channels with relatively little distinction from traditional mortgage products.

The Core Holding

The Court’s holding – that a HELOC is not a negotiable instrument as defined by the UCC – was not exceptional; it keeps with most other states. Washington defines “negotiable instrument” at RCW 62A.3-104; it requires that the instrument define the debt as a “fixed amount of money.” The Court concluded a HELOC does not meet the UCC requirement of a promise to pay a “fixed amount of money.”

Unlike a traditional note with a fixed principal balance, a HELOC balance fluctuates based on draws and repayments. Although the line itself contains a ceiling, the amount owed is variable throughout the life of the instrument. According to the Court, that variability defeats negotiability.

Importantly, the Court rejected the reasoning adopted in certain other jurisdictions that a HELOC may become negotiable once the draw period closes. Instead, the Washington Supreme Court held that negotiability must be determined from the four corners of the instrument at origination. It means the determination cannot change during the life of a loan. A HELOC that begins as nonnegotiable remains nonnegotiable, regardless of later maturity or closure of ability to draw.

Having resolved that certified question, the Court moved on to whether the beneficiary of a nonnegotiable instrument could still use the DTA to foreclose non-judicially. “It shall be requisite to a trustee’s sale: … [t]hat, for residential real property of up to four units, before the notice of trustee's sale is recorded, transmitted, or served, the trustee shall have proof that the beneficiary is the holder of any promissory note or other obligation secured by the deed of trust. A declaration by the beneficiary made under the penalty of perjury stating that the beneficiary is the holder of any promissory note or other obligation secured by the deed of trust shall be sufficient proof as required under this subsection.” RCW 61.24.030(7)(a). (Emphasis added).

The Court held that, under Washington law, a beneficiary seeking to foreclose through the DTA must provide a “holder declaration.” The Court determined that the term “holder” within the DTA is limited to parties in possession of negotiable instruments.

That distinction matters.

Why This Matters Operationally

The practical effect of the decision extends beyond standing arguments. The Court effectively held that the non-judicial foreclosure framework established by the DTA is unavailable where the instrument does not qualify as a negotiable instrument because of the use of the term “holder” and the significance of possession in determining standing – which are only relevant tests with respect to negotiable instruments.

The Court’s reliance on scholarly commentary is also notable. Citing Professor Dale Whitman, the opinion emphasized that possession alone is not a reliable indicator of enforcement rights for nonnegotiable instruments. The Washington DTA, as currently written, uses the UCC’s “holder” mechanism to establish standing. That reasoning potentially weakens assumptions that have historically underpinned transfer and enforcement practices within the industry.

That creates immediate operational consequences:

• Increased reliance on judicial foreclosure for HELOC products.
• Potential timeline extensions and increased litigation exposure.
• Portfolio segmentation concerns for loans with draw features.
• Review of transfer documentation practices.
• Additional title considerations.

This opinion not only creates a difficult operational reality for servicers operating in Washington, but it changes the borrower’s expectations related to equity. Non-judicial foreclosure has long been valued for predictability, efficiency, and cost control. Removing that option for certain products fundamentally changes the economics and risk profile of default servicing. For borrowers, judicial foreclosure is more expensive and that cost is assessed against the potential equity in the real property.

The Bigger Issue: HELOCs May Not Be Alone

The Court expressly addressed HELOCs, but the reasoning may reach beyond HELOCs.

Any product containing draw provisions or variable balance mechanisms may invite similar scrutiny. The decision raises broader questions for instruments that do not fit neatly into traditional negotiable-note analysis. This Court also has set a review framework: Can you identify the debt amount at the time of origination?

Looking Ahead

The Washington Legislature may ultimately need to address the issue directly if preservation of non-judicial foreclosure remedies for HELOC products is viewed as a policy priority. Until then, servicers, investors, foreclosure counsel, and trustees should carefully review affected portfolios and coordinate with local counsel regarding enforcement strategy.

The decision is a reminder that mortgage servicing does not operate in a static legal environment. Small definitional issues, like whether an instrument is “negotiable,” can have significant operational consequences.

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USFNews - May 27

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