The bill clarifies recording requirements for clerks with and without eRecording Systems in place. If eRecording system is in place, the clerk shall follow the provisions of the Uniform Real Property Electronic Recording Act. The bill further provides that if a clerk does not have an eRecording System, the clerk shall record a legible paper copy of an electronic document, provided that such copy otherwise meets the requirements for recordation and is certified to be a true and accurate copy of the electronic original by the party who submits the document for recordation.
Additionally, the bill requires an electronic notarial certificate to include the county or city in the Commonwealth where the notary public was physically located and indicate whether the notarization was done in person or by remote online notarization, defined in the bill as an electronic notarization where the signer is not in the physical presence of the notary. The bill also adds additional forms of "satisfactory evidence of identity" when a notary is using video and audio communication. Document Link
The new state bill is increasing the period for a foreclosure sale notices from 14 to 60 days and is requiring such notices to include information about the housing counseling. It also requires that an affidavit signed by the party that provided notice of the sale to the owner confirming that such notice was sent to the owner, with a copy of such notice attached to the affidavit. The foreclosure-related notice requirements will go into effect on October 1st, 2021.
This bill also provides several additional protections to the owners and tenants of manufactured homes, including restrictions for enforcement of judgment liens when the debt is less than $25,000 and providing additional notices about state housing rights and counseling.
Servicers shall be aware that the modified pre-foreclosure sale notice requirements will extend the overall foreclosure timelines. Document Link
Prepared by Kristine Brown, Managing Attorney
For the mortgage industry, meeting the challenge of assisting borrowers during this difficult time is paramount. And, where practical solutions can be found, loss mitigation is key. As the industry evolves, there is also the inevitable litigation that must be addressed. Favorable caselaw from Virginia seems to provide light at the end of the tunnel and a spread of common sense rulings that favor a harm standard crossing the Potomac.
Years ago, Shapiro & Brown obtained the ruling in Shepherd v. Burson establishing that a failure to disclose every secured party in the Notice of Intent to Foreclose is not a basis for dismissing a foreclosure action. The Court followed traditional Maryland law which required a party to allege not only an error but also actual harm or prejudice before setting aside or dismissing a foreclosure case. This logic has finally crossed over into Virginia.