How foreclosure works in West Virginia

The notices you will receive in West Virginia, in order

1. Notice of right to cure default

   From your lender after you are at least 5 days late; it must wait 10 days after giving it before calling the loan due

   It must state the lender's name, address and phone, the amount you must pay and the date to pay it. If you pay all unpaid sums due by that date, plus any late or deferral charges, the default is cured and your loan goes on as if you had never missed. Notice counts as given when it is mailed, so check your mail.

   W. Va. Code § 46A-2-106

2. Letters from your servicer about options

   During the federal 120-day wait

   Your servicer will contact you about loss mitigation, such as a modification or repayment plan. Answer every letter and send what it asks for. This is the best time to get help from a HUD-approved counselor or Legal Aid of West Virginia.

   12 C.F.R. § 1024.41(f)

3. Notice of substitution of trustee

   Mailed to you by first-class mail and recorded with the county clerk, if the lender replaces the original trustee

   Where the deed of trust has no method of its own, the lender can name a substitute trustee, often a law firm, when the original trustee cannot or will not act. The substitution takes effect when a copy is mailed to you and the notice is recorded. The name on it tells you who to contact about the sale.

   W. Va. Code § 38-1-13

4. Notice of trustee's sale by certified mail

   Mailed by the trustee before the sale; no minimum number of days is set in the statute

   A copy goes by certified mail to the address in your deed of trust, or a newer address you gave the lender in writing. It counts as delivered when mailed, even if it comes back refused or undeliverable. It must give the time and place of sale, the parties, the date and recording of the deed of trust, the property, and the terms of sale.

   W. Va. Code § 38-1-4

5. Newspaper notice of sale

   Once a week for 2 weeks in a row in a newspaper in your county

   The notice runs as a Class II legal advertisement under the Legal Advertisements heading. Your deed of trust cannot waive it, except for some deeds of trust signed before 1 July 1980.

   W. Va. Code §§ 38-1-4, 59-3-2(a)

6. Report of sale filed with the county clerk

   Within 2 months after the sale

   The trustee must file an inventory and account of the sale with the county clerk where your deed of trust was first recorded. For a home you lived in, a disclosure form must list the sale price applied to the loan, the buyer and the trustee's contact information.

   W. Va. Code §§ 38-1-8, 38-1-8a

7. Unlawful detainer summons

   From the buyer after the sale, if you do not move out

   The buyer can file in circuit court to recover possession. The summons must be served at least 10 days before the court date. Call legal aid as soon as you get it and go to court.

   W. Va. Code §§ 55-3-1, 55-3-3

The legal steps in West Virginia

1. Missed payments

   Federal rules generally stop your servicer from starting foreclosure until you are more than 120 days behind. Use this time to contact your servicer, a housing counselor and legal aid.

   12 C.F.R. § 1024.41(f)

2. Notice of right to cure

   For a consumer loan, the lender must send a written notice of your right to cure. It must state the amount needed and the date to pay. The lender cannot accelerate the loan or move against the property until 10 days after giving that notice. A copy must also go to any co-signer. You lose this right if you have been in default and given notice 3 or more times on the same loan.

   W. Va. Code § 46A-2-106

3. Notice of trustee's sale

   The trustee publishes a notice of sale in a newspaper in the county once a week for two weeks in a row. A copy must be sent to you by certified mail at the address in your deed of trust or a newer address you gave the lender in writing. Notice counts as given when mailed, even if you do not pick it up.

   W. Va. Code §§ 38-1-4, 59-3-2

4. Trustee's sale

   The trustee sells the home at public auction at the time and place stated in the notice.

   W. Va. Code § 38-1-3

5. After the sale

   The trustee pays the sale costs and the debt and must pay any surplus to you, and must file an account of the sale with the county clerk within 2 months. State trustee sale law does not provide a right to buy the home back. If you stay, the buyer can file an unlawful detainer in circuit court. A suit to challenge the sale for a notice or procedure problem must be filed within one year.

   W. Va. Code §§ 38-1-4a, 38-1-7, 38-1-8, 55-3-1

Common questions in West Virginia