Paul Clark
In this Blog we open the conversation with
economic loss caused by the current mortgage
crisis.
West Virginia Foreclosure Law
Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of
Trust, Mortgage
- Timeline: Typically 60 days
- Right of Redemption: No
- Deficiency Judgments Allowed: No
In West Virginia,
lenders may foreclose on deeds of trusts or
mortgages in default using either a judicial or
non-judicial foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure, which involves
filing a lawsuit to obtain a court order to
foreclose, is used when no power of sale is present
in the mortgage or deed of trust. Generally, after
the court declares a foreclosure, the property will
be auctioned off to the highest bidder.
Non-Judicial Foreclosure
The non-judicial process of foreclosure is used when
a power of sale clause exists in a mortgage or deed
of trust. A "power of sale" clause is the clause in
a deed of trust or mortgage, in which the borrower
pre-authorizes the sale of property to pay off the
balance on a loan in the event
of the their default. In deeds of trust or mortgages
where a power of sale exists, the power given to the
lender to sell the property may be executed by the
lender or their representative, typically referred
to as the trustee. Regulations for this type of
foreclosure process are outlined below in the "Power
of Sale Foreclosure Guidelines".
Power of Sale Foreclosure Guidelines
If the deed of trust or mortgage contains a
power of sale clause and specifies the time,
place and terms of sale, then the specified
procedure must be followed. Otherwise, the
non-judicial power of sale foreclosure is
carried out as follows:
The notice of sale must be posted on the
front door of the courthouse for the county
in which the property to be sold is located,
and three (3) other public places, one of
which must be the property itself, at least
twenty (20) days prior to sale. The notice
must also be served upon the borrower and
subordinate lien holders at least twenty
(20) days prior to the foreclosure sale.
Additionally, the notice must be published
as a Class III legal advertisement in the
county where the property is located once a
week for four (4) weeks.
Said notice must contain the time and place
of the foreclosure sale, the names of the
parties to the deed, the date of the deed,
recording information, a property
description and the terms of the sale.
The sale must be held at the time and
place stated in the foreclosure notice and
completed by public auction to the highest
bidder. Unless the deed specifies the terms
of sale, the buyer must pay one-third (1/3)
of the bid amount in cash at the sale.
Deficiency actions are generally not permitted in
West Virginia and there are no rights of redemption.
