If you’re facing a foreclosure in West Virginia, it’s a good idea to learn as much as you can about federal and state foreclosure laws. Most homeowners are entitled to a 120-day preforeclosure period under federal law. But under state law, all the foreclosing bank typically must do before selling the house is:
Below you’ll find a summary of the basic information that generally applies to most people facing foreclosure in West Virginia.
In most cases, under federal law, a servicer must wait until the borrower is over 120 days' delinquent before officially starting the foreclosure process. (12 C.F.R. § 1024.41). (To learn more about federal mortgage servicing laws, see Nolo’s article Federal Laws That Protect Homeowners During Foreclosure.)
West Virginia foreclosures are usually nonjudicial, which means they happen outside of court. Judicial foreclosures, which go through the court system, are also possible. Because foreclosures in West Virginia are typically nonjudicial, this article focuses on that process.
Under West Virginia law, a homeowner gets two notices before losing the home to foreclosure: a notice of default and a notice of sale.
Notice of default. After the borrower has been in default for five days, the bank can personally deliver or mail a notice of default to the borrower's last known address. This notice gives you ten days to “cure the default” (bring the account current), but you’ll lose the right to cure after three defaults. (W. Va. Code § 46A-2-106).
Notice of sale. A reasonable amount of time before the sale takes place, the trustee (the third-party that handles foreclosures in West Virginia) must send the borrower a notice of sale by certified mail. (W. Va. Code § 38-1-4, Joy v. Chessie Employees Fed. Credit Union, 411 S.E.2d 261 (W.Va. 1991)). (To learn what time frame is considered reasonable, you’ll want to confer with a foreclosure lawyer.) Under West Virginia law, the notice is complete when the trustee mails the notice of sale, regardless of whether the mail is returned as refused or is undeliverable. (W.Va. Code § 38-1-4).
The trustee must also publish a copy of the notice of sale in a newspaper, generally once a week for two weeks. (W. Va. Code § 38-1-4, § 59-3-2). Then, the property is sold at a foreclosure sale.
"Reinstating" is when you catch up on the defaulted mortgage's missed payments, plus fees and costs, to stop a foreclosure.
In West Virginia, as discussed above, the notice of default must give the borrower ten days to cure the default and reinstate the loan. The borrower loses the right to reinstate after three defaults. (W. Va. Code § 46A-2-106). Your loan contract might also provide you with a right to reinstate. (To find out if you get this right and the deadline to complete a reinstatement, read the paperwork you signed when you took out the loan.)
In some states, the borrower can redeem the home within a specific amount of time after the foreclosure. West Virginia law, however, does not permit foreclosed homeowners to redeem the property after a foreclosure sale.
When the total mortgage debt exceeds the foreclosure sale price, the difference is called a "deficiency." Some states allow the foreclosing bank to seek a personal judgment, which is called a "deficiency judgment," against the borrower for this amount. Other states prohibit deficiency judgments with what are called anti-deficiency laws.
In West Virginia, the foreclosing party can get a deficiency judgment by filing a lawsuit after the nonjudicial foreclosure.
After giving notice to vacate, the purchaser who bought the property at the foreclosure sale may initiate an unlawful detainer (eviction) lawsuit against the foreclosed homeowners to evict them from the property.
Consider talking to a lawyer if you want to get more information about foreclosure procedures in West Virginia or find out about potential defenses to a foreclosure. Moreover, it's a good idea to make an appointment to speak to a HUD-approved housing counselor if you want to learn about different loss mitigation (foreclosure avoidance) options.