How to Challenge a Foreclosure in Virginia
Lenders in Virginia have two foreclosure routes available to them: judicial foreclosures and nonjudicial foreclosures. The strategy borrowers must use to challenge a foreclosure in Virginia will depend on the type of foreclosure their lender chooses and where the foreclosure is in the process. Lenders use nonjudicial foreclosures when they have a power of sale clause included in the mortgage contract signed by the borrower. This power of sale clause details the foreclosure process to be followed if the borrower defaults on payments. Judicial foreclosures require the lender to file a lawsuit to obtain a court order of foreclosure. Judicial foreclosures are also lengthier and give borrowers the chance to redeem, or repurchase, the property after the lender auctions the property.
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Instructions
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Find a legal basis to challenge and stop the foreclosure. Unless you are an expert in foreclosure law, hire a foreclosure lawyer. Possible legal challenges against a foreclosure include failure to abide by notice provisions, lack of original paperwork, fraud, duress and unjustified threats from the lender.
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File an injunction or temporary restraining order with the court requesting a stay on the foreclosure sale of your home. Note that if the lender corrects the issues you mention in the injunction, the foreclosure will continue after 10 days. If the lender chooses a judicial foreclosure, you will have the chance to present your challenges in court.
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File an exception to the foreclosure after the lender sells your home if the lender did not follow Virginia foreclosure statutes. For instance, even when a power of sale clause exists, lenders must advertise the foreclosure sale at least three times and include a legal description of the property, address, tax map identification and time and place of the foreclosure auction. If they fail to follow due process, a judge could declare the foreclosure void.
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File for Chapter 7 bankruptcy. This is only a temporary measure, but Chapter 7 bankruptcy petitions come with an automatic stay order, which stops the foreclosure process while the court processes your bankruptcy. This might give you the time to reorganize your finances and stop the foreclosure permanently.
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Tips & Warnings
The state of Virginia provides homeowners with free certified housing counselors who can guide you through the foreclosure process. For a complete list of certified counselors in Virginia, visit the Virginia Foreclosure Info website listed in the Resources section of this article.
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