Statutory Foreclosure Protections in Virginia
A review of the statutes governing notice and advertisement of foreclosures in Virginia
OverviewWhile some states provide a myriad of different notice and right to cure requirements prior to a lender foreclosing on a property, Virginia has very few similar laws. Virginia permits lenders (through their foreclosing "trustee") to foreclose on delinquent loans without going to Court if the Deed of Trust includes a "power of sale" clause, whereby the homeowner pre-authorized the sale of the home under certain circumstances. Still, the trustee must follow Virginia law and the requirements in the Deed of Trust. Virginia statutes require two particular steps regardless of the language of the Deed of Trust: Advertisement and notice.
AdvertisementVirginia requires the foreclosure sale to be advertised. While the Deed of Trust may include additional advertising provisions, the Virginia Code requires that, at the very least, the advertisement be published in a generally circulated newspaper in the city or county where the property lies for either three different days or once a week for two weeks. If there is no language regarding advertisement in the Deed of Trust, the trustee must advertise the sale once a week for four successive weeks. Either way, the sale cannot be held less then eight days following the first advertisement or more than thirty days following the last advertisement. If a trustee fails to follow the publishing rules, the proper court must render the sale voidable.
The advertisement must include anything required by the Deed of trust as well as a general description of the property, the time, place, and terms of the sale, the name of the trustee, and contact information for inquiries concerning the sale. Courts have determined that a failure to comply with the content requirements for advertising will only render the sale void if the failure caused some sort of inequity to the homeowner (i.e. it resulted in a reduced sale price).
NoticeVirginia also requires that the owner of the property, among other interested parties, be mailed notice of the sale. The trustee must send a notice that includes the time, date, and place of the sale as well as the relevant recording information from the Deed of Trust or a copy of the appointment of the substitute trustee. The trustee must mail or personally deliver this notice 14 days prior to the sale. Mailing the advertisement satisfies the requirement. Virginia law does not require that the owner of the property actually receive the notice, only that the notice be sent to the last known address of the homeowner. Additionally, violation of these rules does not automatically render a foreclosure sale void. A trustee or lender cannot be held liable for failure to comply with these requirements.
What Homeowners Need to KnowDepending upon the requirements of foreclosure in a homeowner's Deed of Trust, there may be very little time between the notice of the foreclosure sale and the sale itself. It is much easier to prevent a foreclosure than to work to void a foreclosure sale. As such, homeowners should not wait until they receive a notice to take action on a delinquent account; at that point in time, it may be too late and emergency judicial proceedings may be necessary to assist in stopping the foreclosure sale. If a homeowner believes that a trustee is proceeding to a foreclosure sale without complying with Virginia Law or the Deed of Trust, many courts in Virginia will hear cases to prevent the foreclosure prior to the sale date. Homeowners need to make sure that their current address is always updated with their lender and that they retain copies of any documents showing that they reported any change of address. It is important that homeowners keep a copy of any and all documents they receive from their lender and to talk to an attorney or other qualified person if they are facing immediate foreclosure they feel may have violated their rights.