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2016 Op. Va. Att'y Gen. 1 (2016)

handle is hein.sag/sagva0136 and id is 1 raw text is: 

                          COMMONWEALTH of VIRGINIA
                                           Office of the Attorney General
Mark R. Herring                                                                                    900 East Main Street
Attorney General                                                                                Richmond, Virginia 23219
                                                February 19, 2016                                   FAX 804-786-1991
                                                                                                  Virginia Relay Services
        The Honorable John T. Frey                                                                      800-828-1120
        Clerk, Circuit Court of Fairfax County
        4110 Chain Bridge Road
        Fairfax, Virginia 22030-4048

        Dear Mr. Frey:

                I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of
        the Code of Virginia.

                                                 Issues Presented

                You ask several questions concerning service of a confessed judgment on a nonresident debtor
         under § 8.01-438 of the Code of Virginia. First, you ask whether service is sufficient if the officer serving
         process in the foreign jurisdiction returns the service as Posted. You also ask whether a return of
         service marked by the officer as Not Found is sufficient.

                Finally, you ask whether service is sufficient if the clerk mails a copy of the order by registered or
         certified mail to a nonresident judgment debtor at his last known post-office address and then files a
         certificate with the case papers showing that such has been done, but the registered or certified mail
         receipt is not returned to the clerk by the post office, or is returned stating not accepted or not at this

                                          Applicable Law and Discussion

                Section 8.01-432 authorizes the practice of judgment by confession. The statute provides that a
         debtor or his attorney-in-fact may confess a judgment, regardless of whether a suit has been brought on
         the debt:
                Any person being indebted to another person, or any 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

             VA. CODE ANN. § 8.01-432 (2015). See also § 8.01-431 (2015) (authorizing confession of judgment by debtor
         in a pending suit). The Code of Virginia regulates how lenders may incorporate confessed judgment provisions in

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