H. B. 2793
(By Delegates Staton, Fleischauer and Trump
)
[Introduced March 27, 1997; Referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section five, article two, chapter
fifty-five of the code of West Virginia, one thousand nine
hundred thirty one, as amended, relating to limitation of
actions and suits for liens reserved on the face of any
conveyance of real estate, or created by any trust deed or
mortgage on real estate.
Be it enacted by the Legislature of West Virginia:
That section five, article two, chapter fifty-five of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted, to read as follows:
ARTICLE 2. LIMITATION OF ACTIONS AND SUITS.
§55-2-5. Enforcement of liens reserved or created on real estate.
No lien reserved on the face of any conveyance of real estate,
or lien created by any trust deed or mortgage on real estate, shall be valid or binding as a lien on such real estate, after the
expiration of twenty years from the date on which the debt or
obligation secured thereby becomes due, unless suit to enforce the
same shall have been instituted prior to the expiration of such
period. If any debt or obligation incurred or maturing subsequent
to the debt or obligation secured by a lien reserved on the face of
any conveyance of real estate, or lien created by any trust deed or
mortgage on real estate, be also secured, in whole or in part, by
the same lien, such lien shall continue to be valid and binding as
a lien on such real estate for a period of twenty years from the
date on which such subsequent debt or obligation secured by such
lien becomes due, but not thereafter unless suit to enforce the
same shall have been instituted prior to the expiration of such
period. No extension of the original time of payment of such debt
or obligation, or renewal of any note or other evidence of
indebtedness secured by such lien, or provision for such extension
or renewal in such conveyance, trust deed or mortgage, shall
operate to extend the limitation of twenty years hereinbefore
provided: Provided, That the lien reserved or created as aforesaid
shall continue to be valid and be enforceable, if, prior to the
expiration of the original period of limitations, the vendor or the
mortgagee or the trustee or beneficiary, or their successors or
assigns, shall execute and cause to be recorded in the office where
the lien instrument was recorded an affidavit setting forth the unpaid balance of the debt and interest secured by such lien
instrument. Upon the filing of such affidavit the lien of the lien
instrument shall continue and be enforceable for an additional
period of twenty years from the date of the filing of such
affidavit unless sooner released, and the clerk of the court shall
cause the extension affidavit to be recorded and indexed in the
same manner as the lien instrument and shall note the fact of
filing such extension affidavit on the margin of the page where
such lien instrument is recorded. Such affidavit shall recite the
book and page of recordation of the deed, deed of trust or
mortgage. The provisions of this section shall apply, with like
effect, to every such lien now existing, as well as to every such
lien hereafter reserved or created.
(a) Any lien reserved by any conveyance of real estate or
created by any deed of trust or mortgage on real estate terminates
after the expiration of the following periods of time, unless suit
to enforce the lien is instituted prior to expiration of the time
period or unless the lien is extended as specified in subsections
(b) or (f) of this section:
(1) If the final maturity date of the lien obligation is
ascertainable from the record instrument, the lien expires five
years after that date.
(2) If the final maturity date of the lien obligation is not
ascertainable from the record instrument, the lien expires twenty
years after the date of the lien. However, if the lienholder rerecords the lien instrument prior to twenty years from the date
of the lien and includes a copy of the obligation secured by the
lien so that the final maturity is ascertainable, the lien shall
terminate five years after the date of maturity.
(b) If an affidavit or extension agreement executed by the
parties in interest to the lien obligation is recorded prior to
expiration of the original period of limitation, as specified in
subsection (a), the time shall be extended as follows:
(1) If the final maturity date of the lien obligation, as
extended, secured by the lien is ascertainable from the record of
the affidavit or extension agreement, five years after the date of
final maturity of the obligation, as extended.
(2) If the final maturity date of the lien obligation, as
extended, secured by the lien is not ascertainable from the record
of the affidavit or extension agreement, the lien expires twenty
years after the date of the lien. However, if the lienholder
rerecords the lien instrument prior to twenty years from the date
of the lien and includes a copy of the obligation secured by the
lien so that the final maturity is ascertainable, the lien shall
terminate five years after the date of maturity.
(c) Any affidavit or extension agreement filed pursuant to
subsection (b) of this section after the effective date of this
section, shall include the following:
(1) The unpaid balance of the debt and interest secured by
the lien instrument;
(2) The final maturity date of the obligation of the lien, as
extended; and
(3) The book and page of recordation of the original lien
instrument.
The clerk of the county commission, shall record and index any
affidavit or extension agreement in the same manner as the original
lien instrument and note that filing on the margin of the page
where the original lien instrument is recorded.
(d) If the record instrument of the lien obligation shows
that it secures an obligation payable in installments and the
maturity date of the final installment of the obligation is
ascertainable from the lien instrument, the time shall run from the
maturity date of the final installment.
(e) Any instrument evidencing any lien obligation or
extension of the lien obligation executed by the parties in
interest to the lien obligation which was not recorded prior to the
effective date of this section, shall be recorded before the first
day of July, one thousand nine hundred ninety-eight.
(f) Nothing in this section shall extinguish any lien
obligation which was reserved or created and in effect prior to the
effective date of this section: Provided, That, any action to
enforce those liens shall be brought or recordation of the lien
obligation pursuant to subsection (e) shall be made before the
first day of July, one thousand nine hundred ninety-eight.
(g) The time shall be extended only as provided in this
section and shall not be extended by any other method or by
operation of law.
(h) The provisions of this section shall apply with like
effect to every such lien now existing as well as to every such
lien hereafter reserved or created.
NOTE: The purpose of this bill is to change to five years the
statute of limitation of any lien reserved on the face of any
conveyance of real estate, any trust deed or mortgage on real
estate.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.