How Do Existing Mortgage Obligations Affect the Sale and Division of Proceeds in a Partition in West Virginia? | West Virginia Partition Actions | FastCounsel
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How Do Existing Mortgage Obligations Affect the Sale and Division of Proceeds in a Partition in West Virginia?

Detailed Answer

Under West Virginia law (WV Code § 37-5-1 et seq., https://code.wvlegislature.gov/title37/chapter5/), a court-ordered partition sale must address existing mortgage liens before distributing sale proceeds. Mortgages remain attached to the property until satisfied. In a partition sale:

  • Mortgages stay on title. The property sells subject to recorded mortgages. Buyers take title free of cotenants’ rights but subject to mortgage liens.
  • Escrow of proceeds. The sale officer holds proceeds in escrow pending lien satisfaction and cost payment, per WV Code § 37-5-9 (WV Code § 37-5-9).
  • Priority of payment. Mortgage liens rank by recording date under WV Code § 38-4-2 (WV Code § 38-4-2). Senior liens are paid first, then junior liens, then sale costs.
  • Deficiency judgments. If proceeds fall short of lien balances, mortgagees may seek a deficiency judgment against cotenants proportionally based on their ownership interest.
  • Distribution of net proceeds. After paying mortgages and sale costs, the clerk distributes remaining funds among cotenants according to their ownership shares.

Hypothetical Example

Suppose Owners A, B, and C co-own a farm subject to a $100,000 senior mortgage and a $20,000 junior mortgage. A partition sale yields $110,000. The clerk pays off the senior mortgage in full, then applies $10,000 toward the junior mortgage. The junior lender may pursue a $10,000 deficiency judgment against A, B, and C. No proceeds remain for distribution.

Helpful Hints

  • Search county land records to identify all recorded mortgages before filing for partition.
  • Order a title search to confirm lien priority and amounts owed.
  • Negotiate mortgage payoffs with lienholders to maximize net proceeds.
  • Understand that deficiency judgments can follow if sale proceeds don’t fully satisfy mortgages.
  • Consult a licensed attorney for guidance on partition procedure and lien resolution.

Disclaimer: This article is for educational purposes only and does not constitute legal advice.

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