How foreclosure works in Virginia

The notices you will receive in Virginia, in order

1. Default letter from your servicer

   From your servicer, usually after you miss payments and before the trustee is asked to sell

   Your deed of trust usually requires a notice of default before the loan can be called due. Read it for the amount needed to catch up and the deadline. Call your servicer and a HUD-approved housing counselor right away, because the trustee cannot start until after the federal 120-day wait.

   Va. Code § 55.1-321(C)

2. Appointment of substitute trustee

   Recorded by the lender in the land records before or when the trustee acts

   The lender can replace the trustee named in your deed of trust with a substitute, often a law firm. The appointment must be recorded where your deed of trust is recorded, and the notice of sale must give its recording number or include a copy. This tells you who is running the sale.

   Va. Code §§ 55.1-320(9), 55.1-321(A)

3. Written notice of sale

   Mailed by certified or registered mail at least 60 days before the sale for a home you live in (14 days for other property)

   It gives the time, date and place of the sale. For an owner-occupied home it must also list your last payment, the total amount in arrears, your remaining principal, the HUD housing counseling website, the statewide legal aid website and phone, and a line saying it is not a notice to vacate. Sending it counts as calling the whole loan due.

   Va. Code § 55.1-321(A), (E), (F)

4. Lost note notice, if the lender cannot find the note

   Mailed by certified mail at least 60 days before the lender asks the trustee to sell an owner-occupied home

   If the lender says the original note is lost, it must tell you so and give you the trustee's name and address. If you worry someone else could later try to collect on the same note, you can ask the circuit court to require protection for you before the sale.

   Va. Code § 55.1-321(B)

5. Affidavit and notice from a second-mortgage holder

   Mailed by certified mail at least 60 days before a sale request on some old second mortgages

   Certain holders of a second mortgage must swear whether they sent you monthly statements, and cannot charge interest or fees for periods with no statements. If you think the charges are wrong, you can ask the circuit court for an accounting before the sale. Original lenders, their servicers, banks and credit unions are exempt.

   Va. Code § 55.1-321(A1)

6. Newspaper advertisement of sale

   Published in a local newspaper; the sale is at least 8 days after the first ad and no more than 30 days after the last

   The ad describes the property by street address, gives the time, place and terms of the sale, names the trustee, and lists the name, address and phone number of someone who can answer questions about the sale. Write that contact down.

   Va. Code §§ 55.1-322, 55.1-323

7. Three-day termination notice and unlawful detainer summons

   From the buyer after the sale, if you are still living in the home

   If you remain in the home after the sale, you become a tenant at sufferance. The buyer can end that with a written notice at least 3 days ahead and then file an unlawful detainer in general district court. A summons means a court date. Go to it and call legal aid.

   Va. Code § 8.01-126(F)(4)

The legal steps in Virginia

1. Missed payments

   Federal rules generally stop your servicer from starting foreclosure until you are more than 120 days behind. Your deed of trust usually requires a default letter first. Call your servicer and a housing counselor as early as you can.

   12 C.F.R. § 1024.41(f)

2. Notice of the sale

   For an owner-occupied home, the trustee or lender must send you written notice of the time, date and place of the sale by certified or registered mail at least 60 days before the sale. The sale cannot go forward unless the trustee has proof the notice was sent.

   Va. Code § 55.1-321(A)

3. Newspaper advertisement

   The trustee advertises the sale in a local newspaper as many times as your deed of trust says. If the deed of trust is silent, it runs once a week for four weeks, or on five different days in a city or a county next to a city.

   Va. Code § 55.1-322

4. Foreclosure sale

   The trustee sells the home at public auction. The sale must be held no earlier than eight days after the first advertisement and no more than 30 days after the last one. The trustee can postpone the sale; a postponed sale must be advertised again the same way, but no new mailed notice is needed.

   Va. Code §§ 55.1-321(D), 55.1-322, 55.1-320(7)

5. After the sale

   The trustee pays out the sale money and files an accounting with the local commissioner of accounts. Virginia statutes do not give you a right to buy the home back. If you stay, you become a tenant at sufferance: the buyer must give you at least 3 days' written notice and then win an unlawful detainer case in general district court before the sheriff can remove you, and you can owe fair market rent from the sale date.

   Va. Code §§ 55.1-324, 8.01-126(F)(4)

Common questions in Virginia