- Who sends it
- The holder of a second (subordinate) mortgage, by certified mail, return receipt requested. Original lenders, their servicers, banks and credit unions are exempt
- What it starts
- 60 days from the mailing date before the holder can ask the trustee to sell
- Do this first
- Compare the itemized balance with your own records and call legal aid about a court accounting before any sale
What this document is in Virginia
Va. Code § 55.1-321(A1), added in 2024, covers a sale started because of a default on a loan that was second in line (subordinate) when it was recorded and was never moved up to first place by a recorded subordination agreement.
Before a sale, that holder must give the trustee an affidavit saying whether monthly statements were sent to the owner for each period when interest, fees or other charges were added. It must include an itemized list of the current amount owed, showing any periods where charges were waived because no statements were sent.
The holder must send you a copy of the affidavit with a written notice that it will ask the trustee to sell when 60 days have passed from the day of mailing. The notice goes by certified mail, return receipt requested, to your last known mailing address.
The rule does not apply if the holder is the original creditor, a servicer acting for the original creditor, a national or state chartered bank, or a federal or state chartered credit union.
What it does and does not mean
- It is a warning that the holder plans to ask for a trustee's sale. It does not set a sale date.
- No interest, fees or other charges may be added for any period when monthly statements were not sent, unless the holder names a specific legal exemption that excused the statements for that period.
- It does not replace the Notice of Trustee's Sale. If a sale is set on a home you live in, that separate notice must still be mailed at least 60 days before the sale (Va. Code § 55.1-321(A)).
- The notice must tell you that if you believe charges were added in error, you may, before the sale, ask the circuit court for an accounting and an order setting the proper balance. If the court finds charges were wrong, you are entitled to your attorney fees and costs from the holder.
The deadline it starts and how to count it
- Count 60 calendar days from the day the notice was mailed, which is usually on the certified mail receipt or envelope. Do not count from the day you signed for it.
- Only after those 60 days can the holder ask the trustee to sell.
- Your right to ask for a court accounting under this law must be used before the sale. Do not wait for a sale date to talk to a lawyer.
- If you live in the home, the separate notice of sale adds its own 60-day minimum before any auction.
See how long foreclosure takes in Virginia for the full timeline.
What to do this week
- Write the mailing date and the 60th day on your calendar.
- Gather every monthly statement you got for this loan, plus any letters about the balance. Mark the months with no statement.
- Compare those months with the itemized list in the affidavit. Look for interest or fees added for months with no statement.
- Check who sent it. If the holder is your original lender, its servicer, a bank or a credit union, this rule does not apply, but you can still ask for a payoff and a loss mitigation review.
- Call legal aid at 866-534-5243 (866-LEGLAID) about asking the circuit court for an accounting before any sale.
- Read how to stop foreclosure in Virginia and Virginia deficiency rules, because a second mortgage debt can remain even after the home is sold.
Free help in Virginia and scam warnings
Virginia Law Help connects you with free legal aid online or at 866-LEGLAID. If your lender or servicer is licensed by the state, you can also file a complaint with the Virginia State Corporation Commission's Bureau of Financial Institutions. The Virginia foreclosure help page lists more.
- Be careful with anyone who offers to fight old second mortgage charges for an upfront fee. In Virginia, a foreclosure rescue provider cannot take a fee before fully doing the work (Va. Code § 59.1-200.1).
- Old second mortgages are sometimes sold to debt buyers. Confirm who holds the loan before you pay anyone, and pay only the holder or its servicer.
The rest of the Virginia process
See how foreclosure works in Virginia, the timeline, ways to stop it and free help in Virginia, or read the national guide to this letter.
Common questions
My Virginia second mortgage holder never sent monthly statements. Can it still charge interest?
Under Va. Code § 55.1-321(A1), a covered holder may not charge interest, fees or other charges for any period when periodic statements were not sent, unless it identifies a specific legal exemption for that period. If you think charges were added in error, you can ask the circuit court for an accounting before the sale.
Does this Virginia rule apply to my bank's home equity loan?
No. The rule does not apply to the original creditor, a servicer acting for the original creditor, a national or state chartered bank, or a federal or state chartered credit union. It mainly reaches other holders, such as companies that bought the loan later.
What happens after the 60 days?
The holder can ask the trustee to sell. If you live in the home, the trustee or holder must still mail you a written notice of sale at least 60 days before the auction (Va. Code § 55.1-321(A)), and the sale must be advertised in a newspaper (Va. Code § 55.1-322).
Can I get my lawyer paid if the charges were wrong?
The statute says that if the court decides charges were assessed in error, you are entitled to recover attorney fees and costs from the subordinate mortgage holder (Va. Code § 55.1-321(A1)). A lawyer can tell you whether your case is likely to fit.
Other Virginia letters
- Appointment of Substitute TrusteeA Virginia Appointment of Substitute Trustee names the person or law firm the lender has picked to run a trustee's sale of your home. It does not set a sale date by itself. But a new trustee is often named shortly before a sale, so treat it as a warning to get help now.
- Notice of Trustee's Sale (written notice of proposed sale)In Virginia, this is the main foreclosure notice. For a home you live in, it must be mailed at least 60 days before the auction, show what you owe in arrears and point you to free counselors and legal aid. It also says in plain words that it is not a notice to vacate.
- Written Termination Notice (three-day notice after foreclosure)If you are still living in your single-family home on the day of the Virginia foreclosure sale, you become a tenant at sufferance. The new owner can end that with a written termination notice given at least 3 days ahead, and then file an eviction case. The notice itself does not let anyone remove you.
- Summons for Unlawful Detainer (Civil Claim for Eviction), Form DC-421A Summons for Unlawful Detainer means the new owner has filed an eviction case in general district court. It gives a return date. If you do not come to court, the judge can enter a judgment and a writ of eviction can be issued right away. Go to court, and call legal aid now.
- Writ of Eviction (and the sheriff's 72-hour notice)A writ of eviction is the court's order telling the sheriff to give the new owner possession of the home. In Virginia, the sheriff must give you at least 72 hours' notice with the date and time. Use that time to move your things and call legal aid.