Trustees in Foreclosure

Trustee under a deed of trust are agents for both the lender and the borrowers.  Accordingly, a trustee must act fairly and impartially.  The lender must not let either the lender or the borrower influence the manner in which a trustee carries out the terms of the deed of trust, especially if this would be detrimental to either party.  If any question arises as to the existence of the default or the amount in default, a trustee should seek the aid and direction of the court.  The powers and duties of a trustee are governed by the deed of trust and Virginia Code Section 55-59.1 et seq.  The code provides when the deed of trust does not.  A trustee has no right to exercise the power of sale or to obtain possession until such time as the borrower defaults under the note or deed of trust, and, then, only for the purpose of selling the property at foreclosure or preserving the property until sale.  When a default occurs, there is no change in title – the property merely becomes eligible to be sold under the powers originally conferred to the trustee by the owner.  Thus, the noteholder has the right to have the property sold and the proceeds of the sale applied to the debt.