Deed of Trust - West Virginia

DEED OF TRUST

State of West Virginia

PREPARED BY:
[PREPARER NAME]
[ADDRESS]
[CITY, STATE ZIP]

RETURN TO:
[NAME]
[ADDRESS]
[CITY, STATE ZIP]

Date: [DATE]
Document Number: _________________ (Clerk's Use)
Property Address: [PROPERTY ADDRESS, CITY, WV ZIP]
District: [DISTRICT]
Tax Map and Parcel: [TAX MAP/PARCEL]

DEED OF TRUST

THIS DEED OF TRUST is made this [DAY] day of [MONTH], [YEAR], by and among:

GRANTOR (Borrower):
[GRANTOR NAME(S)]
[ADDRESS]
[CITY, STATE ZIP]

TRUSTEE:
[TRUSTEE NAME]
[ADDRESS]
[CITY, STATE ZIP]
(Must be a West Virginia Resident)

BENEFICIARY (Lender):
[BENEFICIARY/LENDER NAME]
[ADDRESS]
[CITY, STATE ZIP]

RECITALS AND GRANT

WHEREAS, Grantor is indebted to Beneficiary in the principal sum of [PRINCIPAL AMOUNT] DOLLARS ($[AMOUNT]), as evidenced by a Promissory Note of even date herewith (the "Note");

NOW, THEREFORE, Grantor does hereby grant, bargain, sell, and convey unto Trustee, in trust, with POWER OF SALE, the following described real property situated in [COUNTY] County, West Virginia:

SEE EXHIBIT A ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE

Property Address: [PROPERTY ADDRESS], [CITY], West Virginia [ZIP CODE]

TOGETHER WITH all buildings, improvements, and fixtures now or hereafter placed thereon; all easements, rights, appurtenances, rents, royalties, and profits; and all fixtures now or hereafter attached to the property (collectively, the "Trust Property").

TO HAVE AND TO HOLD the same unto Trustee, upon the trusts hereinafter expressed, to secure payment of the indebtedness evidenced by the Note.

ARTICLE I - OBLIGATIONS SECURED

This Deed of Trust secures to Beneficiary:
(a) The repayment of the debt evidenced by the Note, with interest, and all renewals, extensions, and modifications;
(b) The payment of all other sums, with interest, advanced under this Deed of Trust;
(c) The performance of Grantor's covenants and agreements under this Deed of Trust and the Note.

ARTICLE II - TRUSTEE PROVISIONS

2.1 Trustee Residency Requirement. The Trustee named in this security trust must be a West Virginia resident; a corporate trustee must also satisfy the charter and principal-office conditions in W. Va. Code § 38-1A-2.

2.2 Effect of Nonresident Trustee Sale. W. Va. Code § 38-1A-3 preserves title passing under a security trust despite a trustee’s nonresidency; this does not remove § 38-1A-2’s rule for naming or acting as trustee.

2.3 Substitution of Trustee. This Deed of Trust does not prescribe a separate substitution method. If the original Trustee dies, is removed, declines, resigns, refuses, or is unable to act, a party authorized by W. Va. Code § 38-1-13 may substitute a qualified Trustee by a signed and acknowledged writing recorded in the county where the real estate lies. The substituting party shall mail true copies of the substitution notice, first-class postage prepaid, to the last known addresses of Grantor and any other person owing the secured obligation, and present the original notice for recording and indexing in the county where this Deed of Trust is recorded. The recorded notice shall include the substituting party's certificate stating that the copies were mailed and the mailing date. The substitution takes effect upon the mailing and presentation for recording required by § 38-1-13(b).

2.4 Trustee's Compensation. Trustee's commission from sale proceeds is stated in § 38-1-7(a) and Section 5.9 below. Failure to return the inventory and account of sale required by § 38-1-8 forfeits the trustee's commissions on that sale.

ARTICLE III - COVENANTS OF GRANTOR

Grantor covenants and agrees as follows:

3.1 Payment. Grantor shall pay when due the principal and interest on the debt evidenced by the Note and all other sums secured hereby.

3.2 Insurance. Grantor shall keep the improvements insured against loss by fire and other hazards, with Beneficiary named as loss payee.

3.3 Taxes and Assessments. Grantor shall pay before delinquency all taxes, assessments, and charges against the Trust Property.

3.4 Maintenance. Grantor shall maintain the Trust Property in good condition and repair and shall not commit or permit waste.

3.5 Defense of Title. Grantor shall defend title against all claims.

3.6 Compliance with Laws. Grantor shall comply with all laws, ordinances, and regulations affecting the Trust Property.

ARTICLE IV - ASSIGNMENT OF RENTS

4.1 Assignment. Grantor hereby assigns to Beneficiary all rents, issues, and profits of the Trust Property as additional security.

4.2 License to Collect. Grantor shall have a license to collect and retain such rents prior to default. Upon default, this license shall terminate.

ARTICLE V - DEFAULT AND FORECLOSURE

5.1 Events of Default. The following shall constitute Events of Default:
(a) Failure to make any payment when due under the Note or this Deed of Trust;
(b) Breach of any covenant or agreement herein;
(c) Material misrepresentation by Grantor;
(d) Transfer of the Trust Property without Beneficiary's prior written consent, to the extent enforcement is permitted by applicable law.

5.2 Conditions for Trustee Sale. Pursuant to W.Va. Code § 38-1-3, before commencement of any foreclosure:
(a) The secured debt, or a part of it, has become payable and default has occurred in payment;
(b) All other conditions precedent to sale expressed in this Deed of Trust have occurred; and
(c) A creditor secured or surety indemnified, or that person’s assignee or personal representative, requires the Trustee to sell after proper notice.

5.3 Publication and Service of Notice. Subject to the narrow pre-July 1, 1980 exception stated in W. Va. Code § 38-1-4, Trustee shall publish notice as a Class II legal advertisement in the publication area for the county where the property is located. Trustee shall also serve the grantor by certified mail, return receipt requested, at the address shown in this deed or a later written address given to Beneficiary. A subordinate lienholder that previously notified the primary lienholder by certified mail must receive the statutory certified-mail notice at least twenty days before sale. This Deed of Trust states Grantor's notice address above.

5.4 Contents of Notice. The sale notice shall state the time and place of sale; the parties to this deed; its date; the recording office and book; the quantity and description of property; and the terms of sale (§ 38-1-4).

5.5 Place of Sale. Trustee shall conduct the sale at the time and place stated in the sale notice, consistent with this Deed of Trust and applicable law.

5.6 Conduct of Sale. The sale shall be:
(a) At public auction to the highest bidder;
(b) For cash, unless other terms are specified in this Deed of Trust.

5.7 After the Sale. After receiving the balance of the purchase price, Trustee shall:
(a) Prepare, execute, and deliver a deed conveying the Trust Property to the successful bidder;
(b) Apply the proceeds of sale as required;
(c) Return the inventory and account of sale required by § 38-1-8.

5.8 Sale Account. Within two months after a sale outside a decree, Trustee shall return an inventory of property sold and an account of sale to the clerk of the county where this deed was first recorded. Failure to do so forfeits the trustee’s commissions on that sale (§ 38-1-8).

If the Trust Property included real property occupied or intended to be occupied as Grantor's residence when this Deed of Trust was executed and delivered, Trustee shall submit with the sale report the additional disclosure form required by § 38-1-8a.

5.9 Application of Proceeds. Trustee shall apply the proceeds of sale:
(a) First, to expenses of executing the trust, including the Trustee's commission of five percent on the first $300 and two percent on the residue of the proceeds under § 38-1-7(a), subject to forfeiture under § 38-1-8 if Trustee fails to return the sale account;
(b) Next, the balance to secured debts and indemnified sureties pro rata or in the order of priority, if any, prescribed by this Deed of Trust;
(c) Then, any surplus to Grantor or the other persons entitled to it under § 38-1-7(a).

5.10 Effect of Sale. The parties’ rights after a completed trustee sale are governed by applicable West Virginia law and the terms of this Deed of Trust.

5.11 Release Upon Satisfaction. Once the loan secured by a lien of record in the proper county has been fully paid and satisfied, Beneficiary shall execute and furnish Grantor an appropriate written release free of charge within thirty days as required by W. Va. Code § 38-12-1. Beneficiary also agrees to submit the release for recording in the office where this Deed of Trust was recorded.

ARTICLE VI - RECONVEYANCE

6.1 Release. Upon payment of all sums secured hereby, Beneficiary shall execute a release of this Deed of Trust, which shall be recorded with the Clerk of the County Commission.

6.2 Recording. The release shall be recorded in [COUNTY] County, West Virginia.

ARTICLE VII - RECORDING REQUIREMENTS

7.1 Recording. This Deed of Trust shall be recorded with the Clerk of the County Commission of [COUNTY] County, West Virginia.

7.2 Recording. Beneficiary and Trustee are authorized to submit this signed and acknowledged Deed of Trust for recording in the county identified above.

ARTICLE VIII - MISCELLANEOUS PROVISIONS

8.1 Governing Law. This Deed of Trust shall be governed by West Virginia law.

8.2 Successors and Assigns. This Deed of Trust binds and benefits the heirs, executors, administrators, successors, and assigns of the parties.

8.3 Severability. If any provision is held invalid, all other provisions remain in full force.

8.4 Notices. All notices shall be in writing and sent to the addresses set forth above.

8.5 Entire Agreement. This Deed of Trust and the Note constitute the entire agreement of the parties.

ARTICLE IX - RIDERS AND ADDENDA

The following riders are attached hereto and incorporated herein:

☐ Adjustable Rate Rider
☐ Condominium Rider
☐ Planned Unit Development Rider
☐ Second Home Rider
☐ 1-4 Family Rider
☐ Other: [SPECIFY]

SIGNATURE PAGE

IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the date first written above.

GRANTOR(S):

_______________________________
[GRANTOR NAME]
Date: _________________________

_______________________________
[GRANTOR NAME]
Date: _________________________

ACKNOWLEDGMENT

STATE OF WEST VIRGINIA
COUNTY OF [COUNTY]

The foregoing instrument was acknowledged before me this _____ day of ______________, 20___, by [GRANTOR NAME(S)].

_______________________________
Notary Public
My Commission Expires: ___________

[NOTARY SEAL]

EXHIBIT A

LEGAL DESCRIPTION

The land referred to herein is situated in [DISTRICT] District, County of [COUNTY], State of West Virginia, and is described as follows:

[INSERT COMPLETE LEGAL DESCRIPTION]

Tax Map and Parcel: [NUMBER]
District: [DISTRICT]

This document prepared by:
[PREPARER NAME]
[ADDRESS]
[PHONE]
[EMAIL]