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Home Foreclosures: Virgin Islands

V.I. Code Ann. tit. 5, §§ 484, 492 to 496; V.I. Code Ann. tit. 28, §§ 531 to 538

Most Common Method of Foreclosure: Judicial. V.I. Code Ann. tit. 28, § 531 provides that liens on real property, except for judgment liens, whether created by a mortgage or otherwise “shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured thereby, by an action of an equitable nature.”

Preforeclosure Notice:

Home Foreclosures: Washington

Wash. Rev. Code §§ 61.24.020 to 61.24.163

Most Common Method of Foreclosure: Power of sale on deed of trust. Power of sale foreclosure is not available for agricultural or farm land. § 61.24.030.

Preforeclosure Notice:

Number of Notices: Two: Notice of default and notice of sale. §§ 61.24.030, 61.24.040.

Home Foreclosures: West Virginia

W. Va. Code §§ 38-1-3 to 38-1-15

Most Common Method of Foreclosure: Power of sale.

Preforeclosure Notice:

Number of Notices: One.

Collection Actions: 3.7.8.1 Terminology

Although courts use varying terminology, this chapter uses the term “tolling” to mean suspension of the running of the limitations period and “reviving” to mean restarting the running of the limitations period from the beginning. When the limitations period is five years—and two years remain on the period—and the period is tolled, then two years continue to remain left in the period until the tolling of the period ceases. If the action is revived, then the counting goes back to zero, and the limitations period does not expire for five more years.

Home Foreclosures: 3.6.4 Role of Document Custodian

A holder may retain possession of a note through an agent.372 Transfers of possession of a note can occur directly or through the holder’s agent.373 Pooling and servicing agreements typically designate a financial institution to serve as the custodian of the notes and security instruments for the loans in the trust’s pools. The designated custodian serves as the trust’s agent for the limited purpose of maintaining possession of these documents.

Home Foreclosures: 3.6.5 Evidentiary Problems

Regardless of whether a judicial or non-judicial foreclosure is involved, challenges to authority to foreclose often come down to issues of evidence. In summary judgment proceedings and at trials servicers must present evidence regarding the status of notes and mortgages. This includes evidence of possession of notes and the dates of indorsements. It can also mean providing evidence of the written assignments of mortgages and deeds of trust. Servicers rely on professional witnesses to establish these facts.

Home Foreclosures: 7.5.5 Higher-Priced Mortgage Loans

A “higher-priced mortgage loan”130 is a first or second closed-end mortgage with an APR that exceeds the “average prime offer rate” (APOR) by the appropriate threshold.131 The higher-priced loan category is designed to match the subprime market and uses rate triggers lower than high-cost loans under HOEPA.132 These loans can be purchase money loans or refinance loans, so long as they meet the APOR trigger.

Home Foreclosures: 7.5.6 The Home Ownership and Equity Protection Act (HOEPA)

The Home Ownership and Equity Protection Act (HOEPA)138 carves out a class of high-rate loans and subjects them to special regulation. For these loans, HOEPA requires additional disclosures, prohibits certain abusive loan terms and practices, imposes additional penalties, and expands the potential liability of assignees.

Home Foreclosures: 7.6.1 Introduction

The Real Estate Settlement Procedures Act (RESPA)147 is the primary federal law directly addressing residential mortgage settlements.148 RESPA, originally enacted in 1974, is intended to ensure that consumers in real estate transactions receive timely information about the nature and cost of the settlement process and to protect consumers “from unnecessarily high settlement charges caused by certain abusive practices.”149 To accomplish these

Home Foreclosures: 7.8 Civil RICO

The federal Racketeer Influenced and Corrupt Organizations Act (RICO)186 provides powerful civil remedies, including attorney fees and treble damages, to victims subjected to a broadly defined range of “racketeering activity” or to the collection of an “unlawful debt,” which is defined as any usurious debt bearing interest of at least twice the “enforceable rate.”187

Home Foreclosures: 7.9 SAFE Act Licensing

Under the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act),194 individual loan originators (those involved in processing loan applications) must register with the National Mortgage Licensing System and Registry (NMLSR) and be state-licensed.195 Those employed by a depository institution (such as a bank or credit union) or an entity regulated by a federal banking agency must register with the NMLSR, but are not required to be state-licensed.

Home Foreclosures: 7.10 State High-Cost Mortgage Statutes

State anti-predatory lending laws also can be powerful tools for challenging unfair lending practices and defending against foreclosure. The scope and content of these state laws varies widely.203 Some like HOEPA provide a private right of action for borrowers, while other limit enforcement to government agencies. Some permit double or treble damages, while others limit relief to compensatory damages.

Mortgage Servicing and Loan Modifications: 19(g)(1) Creditor to provide special information booklet.

1. Revision of booklet. The Bureau may, from time to time, issue revised or alternative versions of the special information booklet that addresses transactions subject to § 1026.19(g) by publishing a notice in the Federal Register. The Bureau also may choose to permit the forms or booklets of other Federal agencies to be used by creditors. In such an event, the availability of the booklet or alternate materials for these transactions will be set forth in a notice in the Federal Register.

Mortgage Servicing and Loan Modifications: 19(g)(2) Permissible changes.

1. Reproduction. The special information booklet may be reproduced in any form, provided that no changes are made, except as otherwise provided under § 1026.19(g)(2). See also comment 19(g)(2)–3. Provision of the special information booklet as a part of a larger document does not satisfy the requirements of § 1026.19(g). Any color, size and quality of paper, type of print, and method of reproduction may be used so long as the booklet is clearly legible.

Mortgage Servicing and Loan Modifications: 20(a) Refinancings

1. Definition. A refinancing is a new transaction requiring a complete new set of disclosures. Whether a refinancing has occurred is determined by reference to whether the original obligation has been satisfied or extinguished and replaced by a new obligation, based on the parties’ contract and applicable law. The refinancing may involve the consolidation of several existing obligations, disbursement of new money to the consumer or on the consumer’s behalf, or the rescheduling of payments under an existing obligation.

Mortgage Servicing and Loan Modifications: 20(b) Assumptions

1. General definition.

i. An assumption as defined in § 1026.20(b) is a new transaction and new disclosures must be made to the subsequent consumer. An assumption under the regulation requires the following three elements:

A. A residential mortgage transaction.

B. An express acceptance of the subsequent consumer by the creditor.

C. A written agreement.

Mortgage Servicing and Loan Modifications: 20(c) Rate adjustments with a corresponding change in payment.

1. Creditors, assignees, and servicers. Creditors, assignees, and servicers that own either the applicable adjustable-rate mortgage or the applicable mortgage servicing rights or both are subject to the requirements of § 1026.20(c). Creditors, assignees, and servicers are also subject to the requirements of any provision of subpart C that governs § 1026.20(c). For example, the form requirements of § 1026.17(a) apply to § 1026.20(c) disclosures and thus, assignees and servicers, as well as creditors, are subject to those requirements.

Mortgage Servicing and Loan Modifications: 20(d) Initial rate adjustment.

1. Creditors, assignees, and servicers. Creditors, assignees, and servicers that own either the applicable adjustable-rate mortgage or the applicable mortgage servicing rights or both are subject to the requirements of § 1026.20(d). Creditors, assignees, and servicers are also subject to the requirements of any provision of subpart C that governs § 1026.20(d). For example, the form requirements of § 1026.17(a) apply to § 1026.20(d) disclosures and thus, assignees and servicers, as well as creditors, are subject to those requirements.

Mortgage Servicing and Loan Modifications: 20(e)(1) Scope.

1. Real property or dwelling. For purposes of § 1026.20(e)(1), the term “real property” includes vacant and unimproved land. The term “dwelling” includes vacation and second homes and mobile homes, boats, and trailers used as residences. See § 1026.2(a)(19) and related commentary for additional guidance regarding the term “dwelling.”