Virginia puts homeowners on fast track to foreclosure
Friday, December 24, 2010; 12:00 AM
Since the meltdown in the housing market began more than three years ago, Maryland and the District have changed their foreclosure laws to give borrowers greater protection. Virginia has moved in the opposite direction.
Last year, the state legislature overwhelmingly passed a law making it easier for lenders to defend themselves when accused of giving homeowners too little warning of impending foreclosures.
The process moves so quickly in Virginia - one of the fastest states in the nation - that homeowners can receive less than two weeks' notice that their house is about to be sold on the courthouse steps.
That confronts homeowners with an almost impossible deadline. To get a court to stop the sale in that narrow window, they must gather evidence, file a lawsuit and potentially post a bond with the court that could total thousands of dollars. Instead of trying to find a lawyer and prepare a suit, many borrowers run out the clock trying to deal with their lender.
At a time when lenders have been cutting corners and using phony documents to seize huge numbers of houses, the hurdles can be insurmountable, according to lawyers, consumer advocates and borrowers who have tried to save their homes.
"There's no question that people are losing their homes when they should not be," said James W. "Jay" Speer, executive director of the Virginia Poverty Law Center, which is part of a legal-aid network.
In many states, homeowners facing foreclosure automatically get a day in court, a chance to tell a judge why they should keep their homes. The judicial process provides at least a modest check on error and abuse.
But in Virginia and 28 other states, as well as the District, according to the RealtyTrac foreclosure information service, borrowers have no such luck. They face "nonjudicial" foreclosure processes, meaning lenders can foreclose without going through the courts.
Maryland occupies a middle ground; it allows the process to play out with little if any substantive judicial review, but it sets a lower bar for homeowners asking a court to delay a sale.
In Virginia and many other nonjudicial states, homeowners' fate is largely in the hands of private authorities known as "trustees" rather than judges.
The trustees are supposed to protect the rights of both borrowers and lenders, but they have a built-in conflict of interest: They are hired by lenders.
Virginia lawyer Suzanne Wade used to serve as a trustee but switched sides and now represents bankrupt consumers. Years ago, the trustee system "worked well," Wade said. "Then you had the pressure from the larger lending institutions that made it more and more difficult to always do what you thought was the right thing."