Sunday, December 26, 2010

Virginia Foreclosure Terror Continues

Whashington Post just released an article correctly pointing out that, while many states move toward greater protection of homeowners in foreclosure, Virginia continues its pro-establishment stance and actually is moving away from protecting homeowners.  One of the issues mentioned in the Washington Post article is that the foreclosure trustee can mail a notice of sale to the homeowner exactly 14 days prior to the scheduled sale.  The homeowner will then receive the notice 11 days prior to the sale in most cases.  What the article fails to mention is that most circuit courts in Virginia require at least a 14-day advance notice to schedule a hearing to challenge the contemplated sale.  Thus it is effectively impossible for a homeowner who receives a notice of sale to challenge the sale in court prior to the sale taking place.  Even though one can (in theory) ask for an expedited hearing sooner than in 14 days, one must establish that grounds for such expedited hearing exist, and the courts have been reluctant to grant expedited hearings merely because the sale is scheduled to take place in less than 14 days.

It seems that the local court policy (2 week notice) and the statutory requirement of allowing a notice of sale to be mailed only 14 days in advance create a due process violation subject to facial challenge. Once such a challenge is mounted, the issue is going to be whether the opportunity to ask for an expedited consideration in less than 14 days satisfies due process for a homeowner faced with non-judicial foreclosure.

The Washington Post article can be found here:

The Va Supreme Court case likely referenced in the article can be read here:

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