by James E. Clarke, Esq.
Orlans PC
USFN Member (DC, DE, MA, MD, MI, NH, RI, VA)

Several changes will impact Virginia foreclosure procedure related to owner-occupied properties.  First, the Notice of Sale must be sent 60 days prior to sale rather than 14 days. Correspondingly, lien holders entitled to notice (HOA/COA, subordinate mortgage/deeds of trust) must be on record 75 days prior to the sale to be entitled to notice.  Second, the Notice of Sale must include the website for HUD Office of Housing Counseling Agencies in addition to the phone number and website for the statewide legal aid center.  

Additionally, the notice must contain a warning that the notice is not a notice to vacate and to encourage the recipient to contact an attorney, legal aid, or counseling agency. Third, the Notice of Sale sent to the homeowner must include 1.) the date last payment was received, 2.) the amount of that payment, 3.) a reinstatement, and 4.) a payoff.  Fourth, the party mailing the Homeowner Notice, must execute an affidavit that the notice was sent along with a copy of the notice. Fifth, prior to sale, the trustee must provide copies of the affidavit and homeowner notice with financial data redacted, to each potential bidder at the sale. For non-owner-occupied properties, no changes are required.  

Absent direct evidence the property is not owner-occupied (e.g. vacant/abandoned/boarded or confirmation from the homeowner) we recommend treating any occupied property as owner occupied.  Changes will take effect July 1, 2021 with portions delayed until October 1, 2021. A copy of the legislation can be found at legp604.exe (virginia.gov).
 
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April 2021 e-Update