Virginia on invalidating foreclosure sale seeing dating
Trustees cannot act as purchasers, directly or indirectly, at their own sales; when a trustee buys directly or indirectly at his own sale, that constitutes constructive fraud, and the transaction is voidable.
This rule also applies to a trustee who is named in a deed of trust but does not act. If the person who is to conduct the foreclosure is not named in the deed of trust as trustee, a substitution of trustee is needed.
Sibert commenced this action on October 29, 2014, more than five years after the foreclosure sale, alleging that Wells Fargo, by foreclosing on his property and selling his house without a court order while he was in the Army, violated the SCRA, rendering the foreclosure invalid. In an opinion and order entered in this case, the district court granted Wells Fargo's motion for summary judgment, concluding that Sibert's mortgage obligation was not protected by the SCRA. § 3953(a), and noted that the application of that language to multiple periods of military service was an issue of first impression. Accordingly, we affirm the district court's judgment. Put simply, my good colleagues are wrong to withhold SCRA protection from Sibert for two sound reasons.
The court stated that resolution of the case “turn[ed] on the interpretation of the phrase ‘originated before the period of the servicemember's military service’ ” in 50 U. “On its own,” the court explained, “the language ․ is unclear on whether it contemplates multiple periods of military service,” but the court found that “the specific context of the language indicates that the statute does not apply to obligations incurred while one is in the military, because the underlying concern is the impact military service may have on a servicemember's income and status, uncontemplated at the time when they incurred the obligation.” The court accordingly concluded that “[b]ecause it is undisputed that Sibert's mortgage originated while he was in the military, that obligation does not qualify under [§ 3953(a)]” and, “[a]s a result, Sibert cannot claim the remedy provided in [§ 3953(c)].” Because of its ruling, the court did not reach Wells Fargo's alternative argument that Sibert had waived his rights under the SCRA by executing the addendum to his move-out agreement. § 3953(a) “does not apply to obligations that originate while a servicemember is already in the military” and that therefore it did not provide protection to Sibert's mortgage, which was incurred while he was in the Navy. But in 1942, in reaction to the attack on Pearl Harbor and the United States' entry into the war, Congress amended the 1940 law to expand its protections. Because of our ruling, we need not determine, whether, in the alternative, Sibert executed a valid waiver of his rights under the SCRA. First, the plain language of § 3953 of Title 50 prohibits a non-judicial home foreclosure sale against Sibert, as an active duty soldier, on an obligation he incurred prior to his Army service — notwithstanding Sibert's earlier period of military service in the United States Navy.
The pro rata cost of such publication shall become a part of the tax and together with all other costs, including reasonable attorneys' fees set by the court and the costs of any title examination conducted in order to comply with the notice requirements imposed by this section, shall be collected if payment is made by the owner in redemption of the real property described therein whether or not court proceedings have been initiated.
A notice substantially in the following form shall be sufficient: Notice Judicial Sale of Real Property On........… proceedings will be commenced under the authority of § 58.1-3965 et seq.
The trustee must not place himself in a position where the trustee’s personal interests conflict with the interests of the parties to whom he owes a fiduciary duty.From the district court's judgment dated May 4, 2016, Sibert filed this appeal. In this case, Sibert incurred his obligation during his service in the Navy, and Wells Fargo began foreclosure proceedings after Sibert left the Navy. The court reasoned that “[t]he Act was designed to ensure that servicemembers do not suffer financial or other disadvantages as a result of entering the service,” explaining that the Act accomplishes this goal “by shielding servicemembers whose income changes as a result of their being called to active duty, and who therefore can no longer keep up with obligations negotiated on the basis of prior levels of income. 1178 — containing the same relevant limitations on covered mortgage obligations. AFFIRMEDUnlike my friends of the panel majority, I am entirely confident that plaintiff Richard Sibert, an active duty soldier in the United States Army, is entitled to avail himself of the statutory protection accorded to American servicemembers against non-judicial foreclosure sales of their homes. Second, if any further effort at statutory interpretation is required, § 3953 must be construed liberally in favor of Sibert. In July 2004, Sergeant Sibert began serving this country as an active duty sailor in the Navy. According to the panel majority, Sergeant Sibert, despite having incurred his home mortgage obligation nearly a year before he entered into active duty Army service, cannot avail himself of SCRA's protection against a non-judicial foreclosure sale.This is in response to your request for a refund of recordation tax that you paid on April 26, 2010, to record a deed of bargain and sale conveying 3.049 acres in the ***** magisterial District in ***** (the "property") to a relative.We’ve put together a brief primer summarizing the key strengths, weaknesses and procedural guidelines for each alternative to help you determine which option works best for your needs, timeline and budgetary constraints. A trustee can act only in a manner authorized by the express or implied terms of the trust instrument or as authorized by statute.If the deed of trust does not provide otherwise, the provisions of the Virginia Code control as to the authority of the trustee.
§ 58.1-801 a tax is imposed on the recordation of every deed conveying real estate based on the consideration of the deed or the actual value of the property conveyed, whichever is greater.