AccountAffidavits Related to the NoteProcedure

Foreclosure Administration Procedure

In all foreclosure sales, trustees conducting sales under deeds of trust must file an account of the sale within six months after the sale date.1 The trustee is not required to file an inventory with the commissioner’s office.

The commissioner reviews the foreclosure sale usually at least six months after the sale. The commissioner’s office has no information about pending foreclosures prior to the sale. The commissioner is not the proper person to resolve disputes between the borrower and the lender as to the propriety of the sale.

The Supreme Court has not approved forms for foreclosure accounts. A suggested form of account is available under the “Foreclosures” tab above. Copies of forms are also available at the Forms Task Bar.

Trustees should refer to the Foreclosure Account Checklist before filing an account with the commissioner’s office to ensure a complete package is being sent. Trustees should pay close attention to the addition and subtraction of the columns in the account. Math errors will require the filing of an amended account and an additional filing fee.

Each account of a foreclosure trustee must show that the trustee has distributed all of the monies received from the sale properly, including distributions to the lender, subordinate creditors, or the former owner (if the property sells for more than is owed). The commissioner will examine the notices and advertisement of sale to make sure they are accurate and conform to statutory requirements. The commissioner will make sure that the lender directing the trustee is also the holder of the note. If the lender cannot produce the original note, the commissioner will require the filing of a lost note affidavit from the lender and will make sure that the trustee and the lender have provided special notice to the borrower prior to the sale giving the borrower an opportunity to object to the lender’s sale. In examining accounts of trustees’ sales, the commissioner is always aware that the trustee owes a fiduciary duty to the borrower as well as to the lender, even though the trustee is acting at the request of the lender.


__________________

1  Virginia Code § 64.2-1309.





 



Links

Home   :::   Terms of Use   :::   Privacy Statement   :::   Copyright © 2008  COA-FFX, Inc.