ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4030
(By Delegates Trump, L. White, Faircloth, Rowe,
Staton and
Johnson)
[Passed February 11, 1998; in effect from passage.]
AN ACT 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 enforcing liens reserved by any conveyance
of real estate or created by any trust deed or mortgage on
real estate; permitting extensions of certain liens by the
lienholder; providing that obligations payable on demand
express no maturity date; and addressing the retroactive and
prospective application of changes made.
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 by conveyance or created
by deed of trust or mortgage on real estate.
(a) Any lien reserved by any conveyance of real estate or
created by any deed of trust or mortgage on real estate expires
after 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 subsection (b) or (e)
of this section:
(1) If the final maturity date of the obligation is
ascertainable from the lien instrument, the lien expires five
years after that date.
(2) If the final maturity date of the obligation is not
ascertainable from the lien instrument, the lien expires thirty- five years after the date of the lien instrument. However, if
the lienholder rerecords the lien instrument prior to thirty-five
years from the date of the lien instrument and includes a copy of
the obligation secured by the lien so that the final maturity is
ascertainable, the lien expires five years after the date of
maturity.
(b) If an affidavit or extension notice executed by the
secured party or beneficiary of the lien instrument or an
amendment to the lien instrument executed by the grantor or
mortgagor and the secured party or beneficiary is recorded prior
to expiration of the original period of limitation, as specified
in subsection (a) of this section, the period of limitation is
extended as follows:
(1) If the final maturity date of the obligation, as extended, secured by the lien instrument is ascertainable from
the affidavit, extension notice or amendment, the lien expires
five years after the date of final maturity of the obligation, as
extended.
(2) If the final maturity date of the obligation, as
extended, secured by the lien instrument is not ascertainable
from the affidavit, extension notice or amendment, the lien
expires thirty-five years after the date of the lien instrument.
However, if the lienholder rerecords the lien instrument prior to
thirty-five years from the date of the lien instrument and
includes a copy of the obligation secured by the lien so that the
final maturity is ascertainable, the lien expires five years
after the date of maturity.
(c) Any affidavit, extension notice or amendment filed
pursuant to subsection (b) of this section after the effective
date of this section, shall include, but is not limited to, the
following:
(1) The unpaid balance of the debt and interest secured by
the lien instrument;
(2) The final maturity date of the obligation, 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, extension notice or amendment in the same manner as the original lien instrument and shall note that filing on the
margin of the page where the original lien instrument is
recorded.
(d) If the lien instrument 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 runs from the maturity date of the
final installment.
(e) For purposes of this section only, a lien instrument
securing an obligation which is payable on demand expresses no
maturity date.
(f) Nothing in this section extinguishes any lien which was
reserved or created and in effect prior to the first day of July,
one thousand nine hundred ninety-eight. With respect to any lien
reserved or created and in effect prior to the first day of July,
one thousand nine hundred ninety-eight, the lien is valid for
twenty years after its stated maturity, or if no maturity date is
stated in the lien instrument, for thirty-five years after the
date of the lien instrument.
(g) The periods of limitation created by this section may be
extended only as provided in this section and may not be extended
by any other method or by operation of law.