Summary of West Virginia's Foreclosure Laws

If you're facing a foreclosure in West Virginia, it’s important to understand some of the basics, including:

• the most common type of foreclosure procedure used in the state
• your rights and protections in the process, and
• whether you’ll be liable for a deficiency judgment afterward.

Read on to learn about each step in a West Virginia foreclosure and get information about both federal laws and state laws that protect you during the process.

When Foreclosure Will Begin

Except for a couple of exceptions, federal law prevents the servicer from officially starting a foreclosure until the borrower is more than 120 days delinquent on the loan. (12 C.F.R. § 1024.41). Also, federal law generally requires servicers to work with borrowers who’re behind in their payments in a loss mitigation process to try to avoid a foreclosure. (12 C.F.R. § 1024.41).

Foreclosures in West Virginia: Usually Nonjudicial

In West Virginia, most residential foreclosures are nonjudicial under a power of sale in a deed of trust. The foreclosing bank first gives a notice of default to the borrower, which provides ten days to cure (get current on the loan). (W. Va. Code § 46A-2-106).

The bank must also mail the borrower a notice of sale within a reasonable time before the sale, as well as publish the notice in a newspaper. (W. Va. Code § 38-1-4).

Right to Reinstate the Loan

The notice of default gives the borrower ten days to reinstate the loan. The borrower loses the right to reinstate after three defaults. (W. Va. Code § 46A-2-106).

No Right of Redemption Following a Nonjudicial Foreclosure

Some states have a law that allows a foreclosed homeowner to redeem the property after the foreclosure sale. West Virginia law doesn’t provide a redemption period after a nonjudicial foreclosure. (If you think you will lose your home to foreclosure, read When Do You Have to Leave Your Home When It’s in Foreclosure?)

Deficiency Judgments Following Foreclosure

If the total mortgage debt is more than the foreclosure sale price, the difference is called a “deficiency.” Some states allow the bank to get a personal judgment, called a “deficiency judgment,” against the borrower for this amount.

Deficiency judgments are allowed under West Virginia law. (W. Va. Code § 38-1-7). To get a deficiency judgment after a nonjudicial foreclosure, the bank must file a lawsuit against the borrower.

Finding West Virginia’s Foreclosure Laws

You can look up West Virginia’s foreclosure laws in the West Virginia Code, §§ 38-1-3 to 38-1-15. Statutes change, so checking them is always a good idea. How courts and agencies interpret and apply the law can also change. And some rules can even vary within a state. These are just some of the reasons to consider consulting an attorney if you’re facing a foreclosure.

Getting Help

While federal and state laws establish strict foreclosure procedures, mistakes in the process are common. If you think the foreclosing bank or servicer has violated the law and you want to find out about different ways to fight a foreclosure, consider contacting a local foreclosure attorney.

To learn about different loss mitigation options, talk to a HUD-approved housing counselor.