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Deeds of Trusts

In West Virginia, a Deed of Trust is a legal document used in real estate transactions as a security instrument for a loan. It functions similarly to a mortgage but involves a third-party trustee who holds legal title to the property until the loan is repaid. If the borrower defaults, the trustee can initiate a non-judicial foreclosure process.

West Virginia State Code Provisions for Deeds of Trust
Definition and Purpose

A Deed of Trust is a legal instrument that secures a loan by placing legal title to real estate in the hands of a trustee until the borrower repays the debt.
Governed primarily by West Virginia Code Chapter 38, Article 1 (§ 38-1-1 et seq.), which outlines foreclosure procedures and lender rights.

Parties Involved

  • Grantor (Borrower): The property owner who takes out the loan.
  • Beneficiary (Lender): The entity providing the loan.
  • Trustee: A neutral third party who holds the legal title to the property until the loan is paid off.

Recording Requirement

Under West Virginia Code § 40-1-9, a Deed of Trust must be acknowledged before a notary public and recorded in the county clerk’s office where the property is located to be enforceable.

Foreclosure Process (Non-Judicial)

  • West Virginia is a non-judicial foreclosure state, meaning foreclosure does not require court involvement if a power of sale clause is included in the Deed of Trust.
  • West Virginia Code § 38-1-3 states that if the borrower defaults, the trustee may sell the property at a public auction after providing proper notice.
  • West Virginia Code § 38-1-4 requires the lender to advertise the foreclosure sale in a local newspaper for at least four consecutive weeks before the auction.

Rights of Redemption

Unlike some states, West Virginia does not provide a statutory right of redemption after foreclosure under a Deed of Trust, meaning the borrower cannot reclaim the property after it is sold.

Satisfaction and Release

  • Once the loan is fully paid, the lender must file a release of the Deed of Trust with the county clerk’s office under West Virginia Code § 38-12-1.
    Key Takeaways
  • A Deed of Trust in West Virginia secures a loan using real property, with a trustee holding the title.
  • Foreclosure is typically non-judicial, allowing lenders to sell the property without going to court.
  • Recording the Deed of Trust is essential for legal enforceability.
  • Borrowers have no post-foreclosure right of redemption in West Virginia.