HB648: Judgment; payee, etc., may appoint substitute for any attorney-in-fact authorized to confess.


HOUSE BILL NO. 648
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee for Courts of Justice
on January 30, 2012)
(Patron Prior to Substitute--Delegate Habeeb)
A BILL to amend and reenact § 8.01-435 of the Code of Virginia, relating to confessions of judgment by a substitute attorney-in-fact.

Be it enacted by the General Assembly of Virginia:

1.  That § 8.01-435 of the Code of Virginia is amended and reenacted as follows:

§ 8.01-435. Who may confess judgment.

Confession of judgment under the provisions of § 8.01-432 may be made either by the debtor himself or by his duly constituted attorney-in-fact, acting under and by virtue of a power of attorney duly executed and acknowledged by him as deeds are required to be acknowledged, before any officer or person authorized to take acknowledgments of writings to be recorded in this Commonwealth, provided, however, that any power of attorney incorporated in, and made part of, any note or bond authorizing the confession of judgment thereon against the makers and endorsers in the event of default in the payment thereof at maturity need not be acknowledged, but shall specifically name therein the attorney or attorneys or other person or persons authorized to confess such judgment and the clerk's office in which the judgment is to be confessed.

The payee, obligee, or person otherwise entitled to payment under any note or bond may appoint a substitute for any attorney-in-fact authorized to confess judgment that is specifically named in such note or bond, by specifically naming the substitute attorney-in-fact in an instrument appointing the substitute attorney-in-fact. Such instrument shall be recorded and indexed according to law in the clerk's office where judgment is to be confessed by the terms of such note or bond, and a clerk's fee for such recording shall be paid as set out in § 17.1-275. If such note or bond does not contain a notice informing the debtor that a substitute attorney-in-fact may be appointed by the payee, obligee, or person otherwise entitled to payment under the note or bond, then within 10 days after the instrument appointing the substitute attorney-in-fact is recorded, the person appointing the substitute attorney-in-fact shall send notice of the appointment by certified mail to the debtor's last known address as it appears in the records of the person appointing the substitute attorney-in-fact.

HOUSE BILL NO. 648
Offered January 11, 2012
Prefiled January 11, 2012
A BILL to amend and reenact §§ 8.01-432, 8.01-435, 8.01-436, 8.01-438, and 8.01-439 of the Code of Virginia, relating to confessions of judgment by a substitute attorney-in-fact.
Patron-- Habeeb

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1.  That §§ 8.01-432, 8.01-435, 8.01-436, 8.01-438, and 8.01-439 of the Code of Virginia are amended and reenacted as follows:

§ 8.01-432. Confession of judgment irrespective of suit pending.

Any person being indebted to another person, or any attorney-in-fact or substitute attorney-in-fact pursuant to a power of attorney, may at any time confess judgment in the clerk's office of any circuit court in this Commonwealth, whether a suit, motion or action be pending therefor or not, for only such principal and interest as his creditor may be willing to accept a judgment for, which judgment, when so confessed, shall be forthwith entered of record by the clerk in whose office it is confessed, in the proper order book of his court. Such judgment shall be as final and as binding as though confessed in open court or rendered by the court, subject to the control of the court in the clerk's office of which the same shall have been confessed.

§ 8.01-435. Who may confess judgment.

Confession of judgment under the provisions of § 8.01-432 may be made either by (i) the debtor himself or by (ii) either his duly constituted attorney-in-fact or any substitute attorney-in-fact, acting under and by virtue of a power of attorney, provided that the power of attorney and, if necessary, the designation of a substitute attorney-in-fact are duly executed and acknowledged by him as deeds are required to be acknowledged, before any officer or person authorized to take acknowledgments of writings to be recorded in this Commonwealth, provided, however, that any. Any power of attorney incorporated in, and made part of, any note or bond authorizing the confession of judgment thereon against the makers and endorsers in the event of default in the payment thereof at maturity need not be acknowledged, but shall specifically name therein the attorney or attorneys or other person or persons authorized to confess such judgment and the clerk's office in which the judgment is to be confessed.

§ 8.01-436. Form of confession of judgment.

On the presentation of any such power of attorney or designation as is mentioned in § 8.01-435 by any of the persons therein named as attorney-in-fact or substitute attorney-in-fact, or on the personal appearance of the debtor and the expression by him of his desire to confess such judgment, the clerk of the court mentioned in such power of attorney, or before whom such debtor shall so appear, shall draw and require the attorney-in-fact or substitute attorney-in-fact so appearing, or the debtor, as the case may be, to sign a confession of judgment, which shall be in form substantially as follows:


 "Virgina: In the clerk's office of the .................. court
 of the ............ of ............, I, (or we) A.B., (or A.B.
 and C.D., etc.) hereby acknowledged myself (or ourselves) to be
 justly indebted to, and do hereby confess judgment in favor of
 (name of creditor) in the sum of ......... dollars ($........)
 with interest thereon from the ............ day of ..........,
 two thousand ............, until paid, and the cost of this
 proceeding (including the attorney's fees and collection fees
 provided for in the instrument on which the proceeding is based)
 hereby waiving the benefit of my (or our) homestead exemptions
 as to the same, provided the instrument on which the proceeding
 is based carries such homestead waiver.
 Given under my (or our) hand, this ......... day
 of .................., two thousand and ..................
                                               (Signatures)
 or, if by an attorney-in-fact, signatures and seals of debtors,
                                By .............................
                                his (or their) attorney-in-fact."

§ 8.01-438. When judgment confessed by attorney-in-fact copy to be served on judgment debtor.

If a judgment is confessed by an attorney-in-fact or substitute attorney-in-fact, it shall be the duty of the clerk within ten 10 days from the entry thereof to cause to be served upon the judgment debtor a certified copy of the order so entered in the common-law order book, to which order shall be appended a notice setting forth the provisions of § 8.01-433. The officer who serves the order shall make return thereof within ten 10 days after service to the clerk. The clerk shall promptly file the order with the papers in the case. The failure to serve a copy of the order within sixty 60 days from the date of entry thereof shall render the judgment void as to any debtor not so served.

Service of a copy of the order on a nonresident judgment debtor by an officer of the county or city of his residence, authorized by law to serve processes therein, or by the clerk of the court sending a copy of the order by registered or certified mail to such nonresident judgment debtor at his last known post-office post office address and the filing of a certificate with the papers in the case showing that such has been done or of a receipt showing the receipt of such letter by such nonresident judgment debtor, shall be deemed sufficient service thereof for the purposes of this section.

§ 8.01-439. Filing of records by clerk.

Such confession and clerk's certificate, together with the power of attorney and, if necessary, the designation of a substitute attorney-in-fact if the confession be by an attorney-in-fact or a substitute attorney-in-fact, and the note, bond, or other obligation, if there be such, on which the judgment is based, shall be securely attached together by the clerk and filed by him among the records in his office.