West Virginia And Mortgage Property Laws

West Virginia a title theory state of United States of America it has its own set of laws regarding property which entitles the lender to keep the property under trust till the full payment of the loan. This title document is referred to as deed of trust. The terms and conditions in the deed of trust are more or less the same as that of the mortgage documents which can be used to get the property a judicial foreclosure.

DEEDS OF TRUST:

A non-judicial foreclosure is a primary method to get the property foreclosed it does not require the court’s intervention but has to have a court notice bearing the right to sale of the said property which is also known as power of sale. At the signing of the mortgage documents a provision is made for the power of sale clause which gives the attorney the rights to get the property foreclosed in case the loan is not repaid which is known as the note. Non-judicial methods have very strict laws enforcing them to have all the required details regarding the power of sale and the notice requirements in case of default loan payment.

SALE NOTICE:

1. Before the sale proceedings of the said foreclosed property a notice of foreclosure sale needs to be advertised as per the West Virginia Code, Chapter 59, Class II, once for two consecutive weeks. The same notice needs to be pasted on the judicial buildings notice board and in public areas twenty days before the sale of the foreclosed property. The notice should also be sent to the borrower as well as the lien holders.
2. Notice of sale proceedings should have all relevant details about the venue, time and date along with the name of the borrower and the lender as mentioned in the deed with the date on which the deed was drafted along with a recorded statement about the type of property and the terms and condition of sale in case of default.
3. The foreclosed property is auctioned to the person who bids the highest and he is required to deposit one third of the amount into the lenders account. A postponement of the foreclosed property can be done if the trustee agrees and the request needs to be advertised in the same way as that of the sale proceedings of the foreclosed property.

A judicial foreclosure can be obtained by the lender if he approaches the court to get an official judgment for the foreclosure of the property. The sheriff then sees to the sale proceedings of the foreclosed property. A complaint needs to be filed along with a recorded statement known as lis pendens providing publicly the details of the foreclosed property.

LEGAL INSTRUMENTS:

Commercial transaction documents are known as security agreement and otherwise it is referred to as mortgage or note. Sometimes both these i.e. the security agreement and the mortgaged documents are merged. A mortgage is filed in order to verify the said loan along with the terms and condition for the repayment of the same which are included in the note.

TIME PERIOD:

To get a valid non-judicial foreclosure notice it takes about two to three months. This can be further delayed in case the borrower files a case seeking delay of the sale for the foreclosed property stating bankruptcy.

RIGHT TO REDEMPTION:

Statutory right of redemption is not granted in West Virginia where the borrower can reclaim the foreclosed property if the said property has been sold under the power of sale clause.

DEFICIENCY JUDGMENTS:

Deficiency judgment cannot be obtained even if the property is sold publicly and the amount is far less than the actual amount that was borrowed.

STATUTES:

Non-judicial foreclosure laws are found in the West Virginia Code, of Chapter 38, Article 1(Vendor and Trust Deed Liens) which includes §38-16-506. There is a reference of Deeds of Trust in §38-1-1a and there is a reference about public notice and the provision which are found in the West Virginia Code, Chapter 59 (Reference Class II, legal advertisements).