July 6, 2016
Bankers and lawyers send many notices, letters and statements to borrowers struggling with their mortgage. The purpose of such paperwork is to collect on the mortgage debt. In Virginia, the Notice of Trustees Sale is very significant. In Virginia, the bank does not have to go to court first in order to obtain a foreclosure sale. The law permits the property to be sold by a trustee in a transaction outside of the direct supervision of a judge. The Foreclosure Trustee cannot conduct a valid foreclosure in Virginia without sending a proper Notice of Trustees Sale. The Trustees Sale is a public auction of the property to the highest bidder, usually on the courthouse steps. In order to protect her rights against abusive foreclosure tactics (examples discussed elsewhere on this blog), the borrower must understand the role this Notice of Trustees Sale plays. Borrowers exploring the possibility of contesting the foreclosure should retain qualified legal counsel when they receive the Notice of Trustees Sale.
When borrowers go to closing on the purchase or refinance of Virginia property, they review and sign a loan document called a Deed of Trust. Virginia judges treat Deeds of Trust as the “contract” between the borrower, lender and trustee regarding any foreclosure. The Deed of Trust imposes specific requirements on the lender if they want to foreclose. The bank is required to follow these requirements regardless as to whether the borrower is in default on the loan or not. Deeds of Trust describe what the Notice of Trustees Sale must include, who it must be sent to, requirements for it to be published in the newspaper, etc. The Virginia Code also has specific requirements about the Notice of Trustees Sale and its newspaper publication. The Notice of Trustees sale is more than a tool to intimidate the borrower or provide a courtesy to someone about to lose their home. The Notice is an essential building block. Absent this, the foreclosure is not valid.
Upon receiving the Notice of Trustees Sale, Borrowers must take seriously the trustee’s stated intention to foreclose on the property at the date written. For various reasons, lenders and trustees will cancel or postpone trustee’s sale, but they won’t do this simply upon request by the borrower. If the lender or trustee indicates that the sale has been temporarily cancelled or postponed, the borrower may request for written confirmation.
The Notice of Trustee’s Sale is an invitation to make an offer to enter into a contract for the property with the purchaser at the sale. The two main documents in a Trustees Sale are the Memorandum of Sale and the Trustee’s Deed of Foreclosure. The Memorandum of Sale is a written contract between the trustee and the new buyer. Some Deeds of Trust require that the trustee and the buyer make their contract on the terms set forth on the Notice of Trustee’s Sale. Sometimes trustees put additional terms into these Memoranda which create other contractual rights which may be of interest to the borrower. The Trustee’s Deed is the document conveying ownership of the property to the new buyer. A borrower investigating the validity of the foreclosure should carefully review the Deed of Trust, Notice of Trustees sale, Memorandum of Sale and Trustee’s Deed to determine whether any of the latter documents breach of the Deed of Trust. If the trustee refuses to provide a copy of the Memorandum of Sale, the borrower should seek the assistance of qualified legal counsel. Both the borrower and any potential purchasers are generally entitled to rely upon the terms of the Notice of Trustees Sale in making informed decisions about it. If the lender and trustee sell the property on terms and methods contrary to the Notice of Trustees Sale, then the Trustee’s Deed may be invalid. The validity of the Foreclosure Trustee’s Deed is an issue of great interest to any victim of wrongful foreclosure.
Many homeowners fighting foreclosure observe many contradictions between their loan documents, mailings received from the bankers and their lawyers, and the things they are told on the phone by the bankers and the banker’s lawyers. The banks have experienced foreclosure attorneys whom they may have instructed to aggressively pursue the foreclosure and eviction. The Notice of Trustees Sale is one of the essential “gears” in the “foreclosure factory” borrowers contend with. Receipt of this document may be the best time to contact qualified legal counsel to discuss your rights and options available for keeping your home.
Relevant Statute: Va. Code § 55-59.1. Notices required before sale by trustee to owners, lienors, etc.; if note lost.
