- Who sends it
- The buyer at the trustee's sale, through the circuit clerk; served on you
- What it starts
- A court date (the return day) at least 10 days after service
- Do this first
- Find the return day on the summons and call Mountain State Justice or a lawyer
What this document is in West Virginia
W. Va. Code § 55-3-1 lets a party "against whom such possession is unlawfully detained" sue out of the circuit court clerk's office a summons against the occupant "to answer the complaint of the plaintiff that the defendant is in the possession of, and unlawfully withholds from the plaintiff, the premises in question." The West Virginia state and funnel files say a foreclosure buyer can use this process to recover possession from a former owner who stays.
If you rent a home that was sold at a trustee's sale, a different notice applies first: the buyer can end an unexpired written lease with 90 days' written notice, or 30 days before the lease ends if sooner, and a month-to-month tenancy with 30 days' written notice. That notice must state the sale date and identify the buyer (W. Va. Code § 38-1-16).
What it does and does not mean
- It is a court case, not a lockout. The buyer needs a court ruling to recover possession.
- If you appear, your plea is "not guilty," and a jury can be impaneled to decide whether you unlawfully withhold the home and what damages, if any, the buyer gets (W. Va. Code § 55-3-3).
- The case "shall have precedence for trial over all other civil causes on the docket" (W. Va. Code § 55-3-3), so it can move fast.
- It does not decide whether you owe a deficiency or are owed a surplus. See the trustee's report of sale.
The deadline it starts and how to count it
The summons must be made returnable not more than 90 days after its date and "shall be served at least ten days before the return day" (W. Va. Code § 55-3-3). The return day printed on the summons is when you must appear. If you were served fewer than 10 days before it, tell the court and a lawyer.
Separately, a lawsuit to set aside the sale itself for a notice or procedure problem must be filed within one year from the sale date (W. Va. Code § 38-1-4a).
What to do this week
- Write down the date you were served and the return day.
- Call Mountain State Justice at 304-344-3144, or the State Bar Lawyer Referral Service for a first 30-minute visit for no more than $25.
- Go to court on the return day. If you do not appear and plead, the case can be tried without you.
- If you are a tenant, bring your lease and any notice you got under § 38-1-16.
- Make a moving plan and ask the buyer in writing whether it will give you more time or pay moving costs.
- Read what happens after a West Virginia foreclosure sale.
State help and scam warnings
Legal Aid of West Virginia says it is "not able to assist with foreclosure issues" and points people to Mountain State Justice. See the West Virginia foreclosure help page and the national notice to vacate guide.
- Get any cash-for-keys or move-out agreement in writing before you leave.
- Be wary of anyone who offers to delay the case for a fee without being a licensed West Virginia lawyer.
The rest of the West Virginia process
See how foreclosure works in West Virginia, the timeline, ways to stop it and free help in West Virginia, or read the national guide to this letter.
Common questions
How much notice do I get before a West Virginia unlawful detainer hearing?
The summons must be served at least 10 days before its return day, and the return day can be no more than 90 days after the summons date (W. Va. Code § 55-3-3).
Can I get a jury in a West Virginia unlawful detainer case?
Yes. Under W. Va. Code § 55-3-3, if you plead not guilty, a jury is impaneled to decide whether you unlawfully withhold the home.
I rent the house that was foreclosed. How long do I have?
Under W. Va. Code § 38-1-16, the buyer can end an unexpired written lease with 90 days' written notice, or 30 days before the lease ends if sooner, and a month-to-month tenancy with 30 days' written notice.
Other West Virginia letters
- Notice of Consumer's Right to Cure DefaultOn a consumer loan, West Virginia law says the lender cannot accelerate the loan or move against your home until 10 days after it gives you a written notice of your right to cure. Until then you can catch up by paying only the unpaid amounts due, without the whole loan being called due.
- Notice of Trustee's SaleIn West Virginia, the trustee under your deed of trust sells the home without a court case after publishing a notice of sale once a week for two weeks in a row and mailing you a copy by certified mail. The notice gives the time, place and terms of the sale. There is no right to buy the home back afterward, so act before the sale.
- Trustee's Report of Sale (inventory and account of sale)After a West Virginia trustee's sale, the trustee must file an inventory and account of the sale with the county clerk within two months. For a home you lived in, it includes a disclosure form showing the sale price, the debt and the net amount applied to the loan. This is how you check whether there is surplus money that must be paid to you.
- Notice to Redeem (tax lien sale)If the tax lien on your West Virginia property was sold, the buyer can ask the State Auditor to send you a Notice to Redeem. It shows the exact amount to pay and the date on or after which a tax deed can be made. You can redeem by paying the Auditor any time before the deed is issued, and in installments if the home is your primary residence.