Appointment of Substitute Trustee
(Foreclosure) (VA)

Summary

This appointment of substitute trustee template may be used by a lender in Virginia to appoint a substitute trustee prior to the nonjudicial foreclosure of real property pursuant to a deed of trust. This template contains practical guidance and drafting notes. A deed of trust is the preferred security instrument in Virginia. Most foreclosures are completed nonjudicially pursuant to the noteholder's contractual right to a power of sale granted by the borrower to a trustee in the deed of trust. Typically, the trustees named in the original deed of trust are officers of the noteholder or the attorneys or settlement agent who closed the loan secured by the deed of trust. On serviced loans originated by another lender, trustees named in the original deed of trust are usually unfamiliar to the servicer and may be difficult to locate or contact. Consequently, the noteholder often needs to replace the original trustees named in the deed of trust with substitute trustees before proceeding with a nonjudicial foreclosure. Virtually all deeds of trust give the noteholder the right to substitute the original trustees designated therein for any reason. In addition, Va. Code Ann. § 55.1-320(9) provides that the party secured by a deed of trust shall have the power to appoint a substitute trustee, whether or not such power is expressly granted in the deed of trust. There is no limit on the number of trustees or substitute trustees that can be appointed and each has the authority to act individually if the deed of trust contains language similar to the phrase "any trustee may act." Va. Code Ann. § 55.1-325(11). Moreover, a substitute trustee becomes vested with all "powers, rights, authority, and duties" of the original trustee when the appointment is executed, unless the deed of trust specifies otherwise. For further guidance, see Commercial Foreclosure (VA) and Residential Foreclosure (VA).