55-59.1 - Notices required before sale by trustee to owners, lienors, etc.; if note lost. - Virginia Statutes

§ 55-59.1. Notices required before sale by trustee to owners, lienors, etc.;if note lost.

A. In addition to the advertisement required by § 55-59.2 the trustee or theparty secured shall give written notice of the time, date and place of anyproposed sale in execution of a deed of trust, which notice shall includeeither (i) the instrument number or deed book and page numbers of theinstrument of appointment filed pursuant to § 55-59, or (ii) said noticeshall include a copy of the executed and notarized appointment of substitutetrustee by personal delivery or by mail to (i) the present owner of theproperty to be sold at his last known address as such owner and addressappear in the records of the party secured, (ii) any subordinate lienholderwho holds a note against the property secured by a deed of trust recorded atleast 30 days prior to the proposed sale and whose address is recorded withthe deed of trust, (iii) any assignee of such a note secured by a deed oftrust provided the assignment and address of assignee are likewise recordedat least 30 days prior to the proposed sale, (iv) any condominium unitowners' association which has filed a lien pursuant to § 55-79.84, (v) anyproperty owners' association which has filed a lien pursuant to § 55-516, and(vi) any proprietary lessees' association which has filed a lien pursuant to§ 55-472. Written notice shall be given pursuant to clauses (iv), (v) and(vi), only if the lien is recorded at least 30 days prior to the proposedsale. Mailing of a copy of the advertisement or a notice containing the sameinformation to the owner by certified or registered mail no less than 14 daysprior to such sale and to lienholders, the property owners' association orproprietary lessees' association, their assigns and the condominium unitowners' association, at the address noted in the memorandum of lien, byordinary mail no less than 14 days prior to such sale shall be a sufficientcompliance with the requirement of notice. The written notice of proposedsale when given as provided herein shall be deemed an effective exercise ofany right of acceleration contained in such deed of trust or otherwisepossessed by the party secured relative to the indebtedness secured. Theinadvertent failure to give notice as required by this subsection shall notimpose liability on either the trustee or the secured party.

B. If a note or other evidence of indebtedness secured by a deed of trust islost or for any reason cannot be produced and the beneficiary submits to thetrustee an affidavit to that effect, the trustee may nonetheless proceed tosale, provided the beneficiary has given written notice to the personrequired to pay the instrument that the instrument is unavailable and arequest for sale will be made of the trustee upon expiration of 14 days fromthe date of mailing of the notice. The notice shall be sent by certifiedmail, return receipt requested, to the last known address of the personrequired to pay the instrument as reflected in the records of the beneficiaryand shall include the name and mailing address of the trustee. The noticeshall further advise the person required to pay the instrument that if hebelieves he may be subject to a claim by a person other than the beneficiaryto enforce the instrument, he may petition the circuit court of the county orcity where the property or some part thereof lies for an order requiring thebeneficiary to provide adequate protection against any such claim. If deemedappropriate by the court, the court may condition the sale on a finding thatthe person required to pay the instrument is adequately protected againstloss that might occur by reason of a claim by another person to enforce theinstrument. Adequate protection may be provided by any reasonable means. Ifthe trustee proceeds to sale, the fact that the instrument is lost or cannotbe produced shall not affect the authority of the trustee to sell or thevalidity of the sale.

C. When the written notice of proposed sale is given as provided herein,there shall be a rebuttable presumption that the lienholder has complied withany requirement to provide notice of default contained in a deed of trust.Failure to comply with the requirements of notice contained in this sectionshall not affect the validity of the sale, and a purchaser for value at suchsale shall be under no duty to ascertain whether such notice was validlygiven.

D. In the event of postponement of sale, which may be done in the discretionof the trustee, no new or additional notice need be given pursuant to thissection.

(1979, c. 12; 1992, c. 739; 1993, c. 597; 1994, c. 143; 2004, c. 1001; 2009,c. 307.)