Can a Bank Repossess My Home to Cover Debt in Virginia?

Yes, The Bank Can Take Your Home!

Generally, yes if you have not been making your mortgage payments!

The laws in the Commonwealth of Virginia (as in most states) favor banks over financially stressed homeowners. The Deed of Trust (which is the mortgage instrument in Virginia) controls what happens when payments are delinquent. Some states force banks to take a delinquent borrower to court, which can delay the process for several months. Lenders in Virginia have access to a non-judicial process allowing them to avoid many of the delays typically associated with going to court. The process simply involves providing notice of a sale to the homeowner and notice to potential buyers at an auction. This notice is generally through a newspaper ad.

Although the state law favor lenders, federal bankruptcy law can trump the state processes allowing you to possibly retain your home and paying the arrearages. understanding them may help you to decide when it’s time to consult with Yorktown bankruptcy attorneys for Chapter 13 or Chapter 7 representation.

Types of Foreclosures

When you borrower money from a bank or other lender to purchase a home, a mortgage document called a Deed of Trust) is filed with the clerk of the county in which the property is located. The recorded document is a public record, and constitutes a lien against your property. It is this recorded lien that prevents you from selling your home without the debt owed on the property being paid in full. This same document also gives the bank the right to foreclose on (or repossess) the property in the event you fail to make all required payments.

Virginia allows banks to bypass the courts with a non-judicial foreclosure because the deed of trust contains a clause allowing its sale by the trustees name in the Deed of Trust. This power of sale clause contains your consent to the bank selling your home without first filing a lawsuit as long as the bank follows the following steps:

  • Comply with federal rules regarding how long banks must wait before beginning the process to foreclose on your home.
  • Send a notice at least 14 days before a sale informing you of the default and the impending sale of the property.
  • Publish the notice of sale of the property in a local newspaper.

Once the date of sale arrives, your home is sold to the highest bidder. The proceeds of the sale are applied toward repayment of the debt you owe plus unpaid taxes and the expenses associated with taking and selling the property. Any leftover funds would go to you. There rarely are leftover funds.

Types of Foreclosures (Cont.)

If the sale after repossession of your home does not generate enough money to cover what is owed to the bank, you would typically be liable for the balance. Virginia laws allow the lending institution to obtain a judgment against you for the amount that remains unpaid after the sale of your home.

When Should You Seek Chapter 7 or Chapter 13 Representation?

Consulting with bankruptcy lawyers before the foreclosure sale of your home may offer options for preventing or stopping that foreclosure. The options available to a typical homeowner in financial distress are found in Chapter 7 and Chapter 13 of the United States Bankruptcy Code.

It is best to seek representation from a bankruptcy attorney well before your bank begins the foreclosure process. While emergency filings are possible, the stress of such filings is tremendous and if not done correctly can have so otherwise preventable results. Chapter 13 bankruptcy is what many people refer to as a payment plan. If you are far behind in your payments and you want to keep your home, it likely is your only path to do so. (If you are only a little bit behind in your payments, a Chapter 7 bankruptcy may be in your best interest. The Chapter 7 cannot ‘save’ your home from foreclosure, but it may free up enough monthly cash to all you to resume payments and pay your lender a substantial portion of the arrearages until you are caught up. Most mortgage lenders want money, not another house in their inventories.

In a Chapter 13, you and your attorney would puts together a repayment plan to present to the bankruptcy court for approval. The plan shows how you will repay all or part of the debts you owe, including the missed payments to the bank holding the mortgage on your home. As long as you fulfill your obligation under the repayment plan, the balance of any unsecured debts remaining at the end of the repayment period will likely be discharged.

The filing of a Chapter 13 places a stay on foreclosure proceedings by your bank until the bankruptcy court makes a decision about the repayment plan. Once the plan is approved, the bank cannot foreclose as long as you make payments according to the plan.

Both Chapter 7 and Chapter 13 bankruptcy have somewhat stringent eligibility requirements that you must meet. Your attorney can advise you of which seems to be in your best interest.

Recent changes to the Virginia Exemption Statutes allow a Chapter 7 debtor to keep a much larger share of their home that before. As of July 1, 2020, the ‘homestead exemption’ for a house jumps from $5,000 to $25,000. Other exemptions exist for cars, for debtors over 65, disabled veterans, children and other considerations. Your attorney should help you navigate the exemptions available to you.

But then we return to the beginning. Even if the exemption protects your home from sale to pay your creditors, if you are not paying the lender even after the bankruptcy, the bank can still foreclose on its security interest. So don’t file bankruptcy to ‘save’ your house if you really don’t think you can meet the post-bankruptcy payments.

When You Need Skilled Chapter 7 Bankruptcy Representation

The bankruptcy attorneys at the Denbigh Law Center have provided trusted advice and guidance about foreclosure and bankruptcy to homeowners since 1982. Serving residents of Yorktown, Newport News, Hampton, Poquoson and Williamsburg, Virginia. Contact them today at 757-877-2244.