Foreclosure

What Are West Virginia's Deficiency Judgment Laws?

Does West Virginia allow deficiency judgments? Yes.
By Amy Loftsgordon, Attorney · University of Denver Sturm College of Law
Updated: Dec 9th, 2025
Why Trust Us?
Why Trust Us?

An experienced team of legal writers and editors researches, drafts, edits, and updates the articles in the Understand Your Issue section of Lawyers.com. Each contributor has either a law degree or independently established legal credentials. Learn more about us.

If you lose your home in West Virginia to a foreclosure, but the foreclosure sale price is less than the amount you owe on your mortgage loan, the foreclosing party (the "bank") can get a deficiency judgment.

In the past, homeowners in West Virginia were able to get an offset in the amount of the deficiency judgment if the property sold for less than its fair market value at the foreclosure sale. However, the state legislature passed a law prohibiting a borrower from getting this reduction in the deficiency amount.



What Is a Deficiency Judgment?

If a property sells at a foreclosure sale for less than the full outstanding mortgage debt, the difference is commonly called a "deficiency balance." Some states allow a foreclosing bank to get a deficiency judgment (a personal judgment) against the borrower for the amount of the deficiency balance.

How Does a Bank Collect a Deficiency Judgment?

Once a bank gets a deficiency judgment, it can use common collections methods to collect the deficiency from the borrower by, for example, garnishing wages or levying a bank account.

Are Deficiency Judgments After a Home Foreclosure Allowed in All the States?

Some states have anti-deficiency laws prohibiting deficiency judgments after foreclosure in certain circumstances.

Are Deficiency Judgments Allowed in West Virginia?

Yes. West Virginia doesn't have an anti-deficiency law, so deficiency judgments are allowed.

What Happens After a Foreclosure in West Virginia?

Foreclosures in West Virginia may be judicial or nonjudicial.

  • How judicial foreclosures work in West Virginia. With a judicial foreclosure, the bank files a lawsuit against you in court.
  • How nonjudicial foreclosures work in West Virginia. Nonjudicial foreclosures don’t involve the court system. In a nonjudicial foreclosure, the bank has to finish certain out-of-court steps, which are set out in the state statutes. Most West Virginia foreclosures are nonjudicial.

With either type of foreclosure the process ends with a foreclosure sale. At a foreclosure sale, the bank typically bids on the home using a “credit bid.” Basically, the bank gets a credit up to the amount the borrower owes. Sometimes, the bank bids the full amount of the borrower's debt; sometimes, it bids less.

Whoever makes the highest bid at the sale, either the bank (which makes a credit bid) or a third party (who bids cash), becomes the property's new owner. If the final bid is less than what's owed on the mortgage loan, the sale results in a deficiency.

You might have to pay a deficiency judgment after either type of foreclosure in West Virginia.

Example of a Mortgage Deficiency in a West Virginia Foreclosure

Suppose Westley gets a loan from a bank in the amount of $300,000 to buy a home. A few years later, he stops making payments after losing his job. The bank forecloses, and the property sells for $275,000—but Westley still owes $290,000 on the loan. The deficiency is $15,000 ($290,000 minus $275,000).

    To get a deficiency judgment after a nonjudicial foreclosure, the bank must file a lawsuit against the borrower. (W. Va. Code § 38-1-7 (2025).) To get a deficiency judgment in a judicial foreclosure, the bank must seek the deficiency in the same lawsuit as the foreclosure.

    Developments in West Virginia Deficiency Judgment Law

    In 2014, the Supreme Court of Appeals of West Virginia held in Sostaric v. Marshall that a borrower facing a deficiency judgment could get an offset in the deficiency amount if the property's fair market value was greater than the foreclosure sale price. To get the offset, the defendant had to affirmatively assert that the fair market value was more than the foreclosure sale price as a defense in the deficiency action (Sostaric v. Marshall, No. 14-0143, Supreme Court of Appeals of West Virginia (November 12, 2014)).

    But Senate Bill 418, effective June 11, 2015, overturned the Sostaric decision and amended West Virginia law (specifically, W. Va. Code § 38-1-7) to prevent a defendant from raising the fair market value of the home as a defense in a deficiency action.

    Standard for Setting Aside a Foreclosure Sale West Virginia Due to Excessive Deficiency Amount

    Before the Sostaric decision, the court indicated that the standard for setting aside (voiding) a foreclosure sale is whether the foreclosure sale price was so low and so unfair that it "shocked the conscience" of the court. Because Sostaric was overturned, a court will likely use this standard if you ask a court to set aside the sale due to an insufficient sale price.

    Do Foreclosures Always Result in a Deficiency?

    If the sale price equals or exceeds the mortgage debt amount, there's no deficiency. In fact, if the sale results in surplus funds (more than what's needed to pay off any other liens, like a second mortgage or HELOC), you might be entitled to that extra money following the foreclosure sale.

    Getting Help

    If you’re facing a foreclosure in West Virginia and want to learn about possible defenses or loss mitigation (foreclosure avoidance) options, like a mortgage modification, short sale, or deed in lieu of foreclosure, consider talking to a foreclosure attorney or a HUD-approved housing counselor.

    If a bank is currently seeking or already has a deficiency judgment against you and you want information about whether you can discharge (eliminate) your liability for the debt by filing for bankruptcy, consider talking to a bankruptcy attorney.

    About the Author

    Amy Loftsgordon Attorney · University of Denver Sturm College of Law

    Amy Loftsgordon is a legal editor at Nolo, focusing on foreclosure, debt management, and personal finance. She writes for Nolo.com and Lawyers.com and has been quoted by news outlets that include U.S. News & World Report and Bankrate.

    Get Professional Help

    Find a Foreclosure lawyer
    Practice Area:
    Zip Code:
    How It Works
    1. Briefly tell us about your case
    2. Provide your contact information
    3. Connect with local attorneys
    NEED PROFESSIONAL HELP?

    Talk to an attorney

    How It Works

    1. Briefly tell us about your case
    2. Provide your contact information
    3. Choose attorneys to contact you