Disclaimer: This article is educational only and is not legal advice. Laws change and every situation is different. Consult a West Virginia attorney or your local circuit court clerk before you act.
Detailed Answer
If a foreclosure sale in West Virginia generated money in excess of what was needed to satisfy the judgment and sale costs, that leftover money (the “surplus” or “overage”) may be claimed by the former owner or other lienholders. Recovering that money requires filing a civil special proceeding (sometimes called a petition or motion to determine and distribute surplus funds) in the circuit court where the sale occurred. The steps below describe the usual procedure and the practical elements you will need to complete.
1. Confirm a surplus exists and determine the amount
- Obtain the sheriff’s or commissioner’s return and the deed of sale from the circuit court clerk where the property was sold. These documents show the sale price, amounts paid to the judgment creditor and other lienholders, and whether a surplus was reported.
- If the sale was handled by a master commissioner, check the commissioner’s report and the court’s distribution order.
2. Identify who has potential claims
- Common claimants: the former homeowner (owner of record), junior lienholders, taxing authorities with unpaid taxes, and sometimes the foreclosing creditor if there was a redemption or calculation issue.
- Check the foreclosure judgment and any distribution order to see who the court already paid.
3. Prepare the petition (special proceeding) to recover the surplus
- File a written petition or motion in the circuit court where the sale occurred. If no case number exists for this matter, request that the clerk open a new special proceeding docket.
- Include these elements in the petition:
- A caption with the circuit court and county (where the sale took place).
- Your name (claimant), address, and relation to the sale (former owner, lienholder, etc.).
- A clear statement of facts: date of sale, case number of the foreclosure, sale price, and the amount of surplus you claim. Attach the sheriff’s/commissioner’s return, deed of sale, and relevant court distribution order as exhibits.
- Legal basis for your claim (identify that you are requesting distribution of surplus funds under the court’s authority).
- A request for relief: an order directing the clerk or sheriff to pay the surplus (or a portion) to you, and for any necessary hearing.
- An affidavit or sworn statement supporting your claim to the funds (your identity, ownership status, and that you have not been paid).
4. File the petition with the clerk of the circuit court
- File the original petition and copies with the circuit court clerk in the county where the property was located and the sale took place.
- Pay any filing fee or ask the clerk about fee waiver procedures if you cannot pay.
5. Serve notice on interested parties
- Serve the petition and any hearing notice on all parties who might have an interest in the surplus (foreclosing creditor, junior lienholders shown in the foreclosure records, taxing authorities, and any other recorded lienholder).
- If you cannot locate certain parties, the court may allow service by publication. Follow the court’s direction and West Virginia civil procedure rules for proper service. The clerk can explain local practice.
6. Attend the hearing and present evidence
- The court will schedule a hearing if required. Bring the original documents proving your claim: title records, the sheriff’s/commissioner’s return, the deed of sale, payoff statements, and your affidavit.
- If multiple claimants appear, the court will decide priority based on recorded liens, the foreclosure judgment, and equitable considerations.
7. Obtain a court order directing payment and collect the funds
- If the court finds in your favor, it will issue an order directing the clerk or sheriff to disburse the surplus funds to you (or to multiple claimants in set amounts).
- The clerk or sheriff will typically require a certified copy of the order and may require identification and an endorsed receipt before releasing funds.
Where to find the controlling law and local rules
West Virginia statutes and local circuit court rules govern foreclosure procedures and court practice. For statutory language and public resources, start with the West Virginia Code and the West Virginia Judiciary:
- West Virginia Code collections: https://code.wvlegislature.gov/
- West Virginia Judiciary (court resources and clerk contact information): https://www.courtswv.gov/
Common timeline and practical notes
- Timing depends on when the sale occurred and the court’s docket. File as soon as you know a surplus exists to reduce the chance of competing claims.
- If multiple claimants appear, distribution can be delayed while the court determines priorities.
- Do not accept funds directly from a purchaser or third party without a court order; distribution is typically done through the clerk or sheriff under court authority.
When to consult a West Virginia attorney
- If other lienholders contest your claim.
- If the identity of the rightful claimant is unclear (estate issues, disputes about title, bankruptcy filings, or exemptions).
- If the amount is large or legal questions (such as equitable subrogation or priority disputes) arise.
Helpful Hints
- Start at the county circuit clerk’s office where the foreclosure sale happened—clerk staff can point you to the sale documents and explain local filing steps.
- Collect and attach clear proof of your ownership or lien priority: deeds, recorded mortgages, tax bills, payoff statements, and the sheriff’s/commissioner’s return.
- Include a signed affidavit describing why you are entitled to the funds; a clear narrative helps the judge resolve disputes faster.
- Serve all known interested parties promptly and keep proof of service. Failure to give proper notice can delay or invalidate an order.
- If you can’t find a party, ask the clerk about service by publication—this is commonly allowed when a party’s address is unknown.
- Ask the clerk whether the court prefers a petition captioned as a new special proceeding or as a motion in the foreclosure case; local practice varies.
- Get certified copies of the court order before you go to the sheriff or clerk to collect funds; many offices require them.
- If the surplus is small, weigh the costs of hiring an attorney vs. filing yourself. For larger sums or contested claims, an attorney can protect your priority and handle complex service issues.
For precise statutory references and forms that apply to your county, contact the circuit court clerk where the property was located and consider consulting a West Virginia attorney. Courts and statutes change; a local attorney can confirm deadlines, the correct procedure, and help you prepare the petition and supporting affidavits.
Resources: West Virginia Code (official): https://code.wvlegislature.gov/ • West Virginia Judiciary: https://www.courtswv.gov/