West Virginia Foreclosure Laws: Process, Timeline and Your Rights

West Virginia law provides for non-judicial foreclosure of a trust deed: after a default, and once the conditions in the trust deed are met, the trustee must, when the lender requires it, sell the property at public auction after giving the notice of sale required by statute.

The trustee must publish a notice of the trustee's sale as a Class II legal advertisement in the county where the property is located (once a week for two successive weeks), unless an older trust deed made before July 1, 1980 waived publication. A copy of the notice must be sent to the borrower (grantor) by certified mail, return receipt requested, at the address in the trust deed or a later address the borrower gave the lender in writing; notice is complete when mailed, even if returned. Junior lienholders who have notified the first lienholder of their lien must be sent notice by certified mail at least 20 days before the sale. The notice must state the time and place of sale, the parties, the date and recording information of the trust deed, a description of the property, and the terms of sale.

The time frames set by the statutes reviewed are: publication of the notice of sale once a week for two successive weeks; certified-mail notice to qualifying junior lienholders at least 20 days before the sale; and, for loans covered by the West Virginia Consumer Credit and Protection Act, no acceleration or collection action until 10 days after a notice of the right to cure is given.

Under the West Virginia Consumer Credit and Protection Act, after a consumer has been in default on a secured consumer loan for five days, the creditor may send a written notice of the right to cure. The creditor may not accelerate the debt, sue, or take the collateral until 10 days after that notice. During those 10 days, the consumer can cure by paying all unpaid sums due (without acceleration) plus any unpaid delinquency or deferral charges, which restores the consumer's rights as if there had been no default. A consumer who has defaulted and been given notice three or more times on the same obligation loses this right to cure.

West Virginia law recognizes civil actions seeking a deficiency judgment on a debt secured by a deed of trust. After a trustee's sale, the trustee pays the expenses of the sale (including the trustee's commission), then the secured debts, and pays any surplus to the borrower. In an action for a deficiency judgment, the borrower and any co-maker, guarantor, surety or other defendant may not argue as a defense that the property's fair market value was not obtained at a trustee's sale conducted under the statute.

After a trustee's sale of residential rental property, a tenant with an unexpired written lease that was not recorded, or was recorded after the deed of trust, can have the tenancy ended by the buyer only with 90 days' written notice or with written notice at least 30 days before the lease expires, whichever is shorter. A month-to-month or other tenancy can be ended with 30 days' written notice. The lease terms stay enforceable during the notice period, and if the tenant does not follow the lease the new owner may use the eviction process. The notice must identify the property, the date of the trustee's sale, where the trustee's deed is recorded, the date the tenancy will end, and the buyer with contact information, and must be served by regular mail plus personal delivery, posting on the front door, or certified mail. Tenancies of factory-built homes are governed by a separate statute.

Under the Uniform Common Interest Ownership Act, an association has a lien on a unit for assessments and fines from the time they become due. The lien is generally ahead of other liens except those recorded before the declaration, a first mortgage recorded before the assessment became delinquent, and real estate taxes. The lien is extinguished unless proceedings to enforce it are started within three years after the full amount becomes due. The association may also sue for the amount owed or take a deed in lieu of foreclosure, and a judgment must include costs and reasonable attorney's fees for the prevailing party.

After a tax lien on real estate is sold under W. Va. Code § 11A-3-45 or § 11A-3-48, the owner (or another person entitled to pay the taxes, or a lienholder) may redeem at any time before a tax deed is issued by paying the State Auditor the taxes, interest and charges due on the sale date with interest of 1% per month from the sale, any later taxes the purchaser paid with 1% monthly interest, and certain expenses for the notice-to-redeem process and title examination.

The West Virginia Housing Development Fund (WVHDF) offers mortgage assistance to its own borrowers who are struggling and can refer them to certified housing counselors; other borrowers are told to contact their mortgage servicer. WVHDF also points homeowners to HUD housing counseling, NeighborWorks foreclosure counseling, the HOPE hotline (1-888-995-HOPE), and 211 for other financial needs.