Senate Bill No. 353
(By Senator Foster, By Request)
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[Introduced January 27, 2010; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §38-1-4 of the Code of West Virginia,
1931, as amended, relating to trust deed liens; notice of
sale; and providing for notice of a trust sale by regular
first-class mail in addition to the other existing methods of
notice.
Be it enacted by the Legislature of West Virginia:
That §38-1-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. VENDOR'S AND TRUST DEED LIENS.
§38-1-4. Notice of sale.
Unless property is to be sold under a deed of trust executed
and delivered prior to July 1, 1980, which contains a provision
waiving the requirement of published notice, the trustee shall
publish a notice of a trustee's sale as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for such
the publication shall be the county where the property is located: Provided, That any notice of sale published since July 1, 1980, and
prior to the effective date of this section, shall be deemed is
considered to have met the requirements of the section if such the
notice were published as Class II legal advertisements, in
compliance with the provisions of article three, chapter fifty-nine
of this code, in that by the enactment of the Acts of the
Legislature, regular session, 1980, the Legislature intended that
all notice of sales pursuant to trust deeds were to have been
published as Class II legal advertisements.
Except as expressly provided in this section, no a trust deed
shall may not waive the requirements of publication of notice
required by this section.
In all cases, a copy of such the notice shall be served on the
grantor in such the trust deed, or his or her agent or personal
representative, by certified mail, return receipt requested,
and
by regular first-class mail
directed to the address shown by the
grantors on the deed of trust or such other address given to the
beneficiary of said the trust deed or said beneficiary's agent or
assignee in writing by the said the grantor subsequent to the
execution and delivery of the trust deed. and Notice shall be
deemed is considered complete when such the notice is mailed to the
aforesaid address, notwithstanding the fact that such mail may be
returned as refused or undeliverable and notice shall also be
served by certified mail, at least twenty days prior to the sale,
upon any subordinate lienholder who has previously notified the
primary lienholder by certified mail of the existence of a
subordinate lien. Every trust deed shall state the address to which such the notice shall is be mailed.
Every notice of sale by a trustee under a trust deed shall
show the following particulars: (a) The time and place of sale;
(b) the names of the parties to the deed under which it will be
made; (c) the date of the deed; (d) the office and book in which it
is recorded; (e) the quantity and description of the land or other
property or both conveyed thereby; and (f) the terms of sale.
Notice to a subordinate lienholder shall be is complete when
such the notice is mailed in accordance with the provisions of this
section, directed to the address of the subordinate lienholder as
provided by such the subordinate lienholder in the notice of
existence of a subordinate lien.
The provisions of this section relating to the methods of
serving notice are not exclusive. In addition to, but not in lieu
of, any service of notice required by the provisions of this
section, service of such the notice may be also made by any other
method authorized for the service of original process in the
circuit courts of this state by statute or by the rules of civil
procedure for trial courts of record.
An individual who purchases property at a trustee's sale is
under no duty to ascertain whether notice was given to subordinate
lienholders in accordance with the provisions of this section, and
such right, title and interest as the purchaser may acquire shall
may not be affected by defects in such notice or the service
thereof, if the purchaser is otherwise a bona fide purchaser for
value.
NOTE: The purpose of this bill is to
provide for notice of a
trust sale by regular first-class mail in addition to the other
existing methods of notice. This provides additional assurance
that the borrower receives notice of sale, in conformity with the
decisions for notice of tax sales pursuant to
Plemons v. Gale
and
Jones
v. Flowers.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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