Present:    All the Justices

BRADLEY G. POLLACK,
SUBSTITUTE TRUSTEE

v.   Record No. 022189 OPINION BY JUSTICE CYNTHIA D. KINSER
                                        June 6, 2003
WILLIAM B. ALLEN, III, COMMISSIONER
OF ACCOUNTS FOR THE CIRCUIT COURT OF
SHENANDOAH COUNTY

           FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
                      Dennis Lee Hupp, Judge


      In this appeal, we decide whether the circuit court

erred by requiring a substitute trustee under deeds of

trust to file accounts of sale with the commissioner of

accounts when the advertised sales were not made, and

further erred by assessing fees personally against the

trustee for summonses and reports issued by the

commissioner with regard to those sales that never

occurred.    Concluding that, under the provisions of Code

§ 26-15, an account of sale is required only for “a sale

made,” we will reverse the judgment of the circuit court.

      Bradley G. Pollack, acting in the capacity of a

substitute trustee, advertised foreclosure sales of

timeshare units under 172 deeds of trust in three separate

advertisements.    The advertisements apparently prompted

payment from some of the debtors.    Accordingly, Pollack did
not proceed with the foreclosure sales under 104 of the

deeds of trust.

     On March 8, 2002, more than six months after the

advertised foreclosure sale dates, William B. Allen, III,

Commissioner of Accounts for the Circuit Court of

Shenandoah County, issued 172 summonses to Pollack

requiring him to file “FORECLOSURE TRUSTEE’S REPORT OF

SALE, as required by [Code] § 26-15” within 30 days after

service of the summonses and advising Pollack that failure

to file accounts of the sales would be reported to the

circuit court for further proceedings under Code §§ 26-13

and –15.    Within 30 days after the summonses were served on

Pollack, he filed accounts with regard to the 68

foreclosure sales that were actually made.

     The commissioner of accounts then reported to the

circuit court that Pollack had failed to file accounts of

sale for the remaining 104 advertised foreclosure sales.

The commissioner requested the court to issue summonses to

Pollack requiring him to file the accounts and to fine

Pollack for contempt of court for failing to comply with

the summonses previously issued by the commissioner of

accounts.

     The circuit court subsequently granted leave to

Pollack permitting him to submit affidavits from the


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holders of the 104 deed of trust notes verifying that no

foreclosure sales were made under those particular deeds of

trust.   After Pollack filed the affidavits, the court held

that no further response to the summonses issued by the

commissioner was required.   Nevertheless, the court

assessed fees against Pollack personally in the amount of

$750.00 for the summonses and reports issued by the

commissioner of accounts regarding the 104 advertised

foreclosures for which no sales occurred.

     Pollack objected to the order on the grounds that he

had “presented good cause to the [c]ourt for failing to

make reports as none were due.”   The court stayed its prior

order while considering Pollack’s objections but

subsequently entered an order removing the stay for the

reasons stated in a letter opinion.   The court explained

that, although “no accountings were due on 104 of the 172

cases,” it was awarding fees to the commissioner of

accounts “to compensate him for [the] time and effort”

expended as a result of Pollack’s failure to make “[a]

formal response . . . to each summons” issued by the

commissioner.

     On appeal, Pollack contends that the circuit court

erred by ordering him to “file reports under Virginia Code

§ 26-15 for sales that were never held” and by assessing


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fees against him personally “for the issuance of summonses

and reports issued by the [c]ommissioner of [a]ccounts on

sales that never occurred.”   He argues that any action

authorized by the provisions of Code § 26-15 “presupposes a

sale.”   There being no sales under the 104 deeds of trust

at issue, Pollack contends that he was not required to file

any reports and that the assessment of fees against him

was, therefore, improper.

     The commissioner of accounts, however, asserts on

brief that Pollack “foreclosed on deeds of trust securing

172 timeshare units by advertising sales” to be conducted

on three dates.    Claiming that Pollack failed in his duties

to report on 104 of the advertised sales, the commissioner

asserts that he had no choice but to proceed against

Pollack as directed by the relevant statutes and that the

court did not abuse its discretion in assessing fees

against Pollack.   We do not agree with the commissioner’s

position.

     To determine whether the circuit court erred, we must

examine the language utilized by the General Assembly in

Code § 26-15.   Our interpretation of this statute is guided

by familiar rules of statutory construction.

     “While in the construction of statutes the
     constant endeavor of the courts is to ascertain
     and give effect to the intention of the


                               4
     legislature, that intention must be gathered from
     the words used, unless a literal construction
     would involve a manifest absurdity. Where the
     legislature has used words of a plain and
     definite import the courts cannot put upon them a
     construction which amounts to holding the
     legislature did not mean what it has actually
     expressed.”

Halifax Corp. v. First Union Nat’l Bank, 262 Va. 91, 99-

100, 546 S.E.2d 696, 702 (2001) (quoting Watkins v. Hall,

161 Va. 924, 930, 172 S.E. 445, 447 (1934)); accord Haislip

v. Southern Heritage Ins. Co., 254 Va. 265, 268, 492 S.E.2d

135, 137 (1997); Weinberg v. Given, 252 Va. 221, 225, 476

S.E.2d 502, 504 (1996); Turner v. Wexler, 244 Va. 124, 127,

418 S.E.2d 886, 887 (1992); Grillo v. Montebello

Condominium Unit Owners Ass’n, 243 Va. 475, 477, 416 S.E.2d

444, 445 (1992).

     In relevant part, Code § 26-15 provides that

     [w]ithin six months after the date of a sale made
     under any recorded deed of trust, mortgage or
     assignment for benefit of creditors, otherwise
     than under a decree, the trustee shall return an
     account of sale to the commissioner of accounts
     of the court wherein the instrument was first
     recorded. Promptly after recording any trustee’s
     deed, the trustee shall deliver to the
     commissioner of accounts a copy of the deed. The
     date of sale is the date specified in the notice
     of sale, or any postponement thereof . . . .

          If the commissioner of accounts of the court
     wherein an instrument was first recorded becomes
     aware that an account as required by this section
     has not been filed, the commissioner and the
     court shall proceed against the trustee in like
     manner and impose like penalties as set forth in


                             5
     § 26-13, unless such trustee is excused for
     sufficient reason.

     Under the plain terms of Code § 26-15, an account of

sale must be returned to the commissioner of accounts

“[w]ithin six months after the date of a sale made under

any recorded deed of trust.”    The phrase “sale made”

clearly contemplates an actual sale.       That occurrence, not

the advertisement of a foreclosure sale, triggers a

trustee’s statutory duty to file an account of sale with

the commissioner.   The six-month period during which the

account of sale must be filed for a “sale made” commences

to run on the “date specified in the notice of sale, or any

postponement thereof.”     Code § 26-15.

     If we adopted the interpretation of Code § 26-15 urged

by the commissioner of accounts, we would be altering the

statutory language.    Nothing in Code § 26-15 requires a

trustee to file any type of report regarding an advertised

foreclosure sale that does not take place, i.e., when a

sale is not made.     Thus, the only accounts of sale that

Pollack was required to return to the commissioner were for

“sales made.”   Neither the commissioner of accounts nor the

circuit court had authority under Code § 26-15 to proceed

against Pollack by issuing summonses or assessing a fine or

fees for the 104 advertised sales that were not made.        Only



                                6
when “an account as required by this section [Code § 26-15]

has not been filed” is the commissioner or the court

authorized to proceed against a trustee by utilizing the

procedures and penalties allowed under Code § 26-13. ∗   Code

§ 26-15.

     For this reason, we conclude that the circuit court

erred by requiring Pollack to file reports for advertised

foreclosure sales that were not made and by assessing fees

against Pollack personally.   Accordingly, we will reverse

the judgment of the circuit court and enter final judgment

here in favor of Pollack.

                                  Reversed and final judgment.




     ∗
       When a fiduciary fails to make a required return, the
provisions of Code § 26-13 authorize a commissioner of
accounts to issue a summons calling for the fiduciary to
make the return. If the fiduciary fails to do so within 30
days after service of the summons, the commissioner is
required to report that fact to the court. Then, the court
is authorized to issue a summons for the fiduciary’s
appearance and to impose a fine unless the fiduciary is
“excused for sufficient reason.” Code § 26-13.
     Similarly, under Code § 26-23, the assessment of costs
against a fiduciary personally is permitted only when the
fiduciary “fail[s], without good cause, to make the returns
. . . required.”

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