Can a Virginia debt note authorize a confession of judgment by 'any substitute' chosen later by the named attorney-in-fact?

Plain-English summary

The Clerk of the Fairfax Circuit Court asked whether Virginia law allows confession of judgment by a third party who was appointed by an attorney-in-fact whose power of attorney granted "full power of substitution." That setup is common in commercial debt notes: the note names a person as the debtor's attorney-in-fact for confession of judgment, and adds "with full power of substitution," which the creditor reads as authority for the named person to delegate the confession to any other lawyer later.

The AG concluded that § 8.01-435 does not authorize confessions of judgment by these substituted third parties, and that such confessions would violate public policy. Two pillars support the answer.

First, plain text and the principle "to include one is to exclude the others." Section 8.01-435 names exactly two categories of people who can confess judgment: the debtor himself, and his "duly constituted attorney-in-fact." The note presented for confession "shall specifically name therein the attorney or attorneys or other person or persons authorized to confess such judgment." That word "specifically" and the requirement that the name appear in the note itself (not in a separate document) carry weight. The legislature could have added language permitting substitution or class-based authorizations. It didn't. Reading in such authority would expand the statute beyond what the legislature wrote.

Second, public policy. Confessions of judgment are a powerful creditor tool: they let a creditor obtain judgment without the debtor's day in court. Section 8.01-435 reflects what prior AG opinions describe as a "general concern with the possible abuse of confessed judgments, particularly those taken pursuant to a power of attorney waiving the right to due process." A construction that lets the named attorney-in-fact farm the role out to anyone they choose later would dilute the protective specificity the statute was designed to provide.

Federal authority on point: the U.S. District Court for the Eastern District of Virginia, applying Virginia law, held that a confession clause naming "any vice president or senior vice president of the Bank" as attorney-in-fact was not sufficiently specific to satisfy § 8.01-435, and that the statute must "be strictly construed to prevent abuse." The AG read that decision (though not binding) as a correct application of Virginia law, and extended its logic to the substitution-clause question.

A note on what this opinion does not decide: it addresses the legal validity of the instrument, not the separate question of whether a clerk may refuse to record an instrument. Clerks have only limited authority to refuse recordation. So even if § 8.01-435 doesn't validate the confession, the clerk might still have to record (or accept for filing) a document; the validity question would come up later if the creditor tries to use the confession.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 8.01-435 remains the operative statute. The framework around confessions of judgment in Virginia has not changed dramatically, but anyone drafting or evaluating a confession clause today should look at the current statutory text and any recent decisions on the specificity requirement.

Common questions

What is a confession of judgment?
A clause in a debt instrument by which the debtor pre-agrees that the creditor's lawyer can walk into court and enter judgment against the debtor on the debt without notice or a hearing. It's an extremely creditor-friendly device because it short-circuits the debtor's due process opportunity to defend.

Why is "specifically named" so important?
The specificity requirement is the protective core of the statute. If the debtor agreed to be subjected to confession by a particular named lawyer, the debtor at least knew who that person was at the time of signing. If the named lawyer can later substitute someone unknown, the debtor's agreement reaches further than the debtor knew. The AG read that expansion as both unauthorized and contrary to the statute's protective purpose.

Does this mean any substitution language is fatal?
The opinion specifically targets clauses that purport to let the named attorney-in-fact appoint a substitute who is not named in the note. The AG did not address situations where the original power of attorney itself names multiple specific attorneys-in-fact, any of whom can act. The key feature being rejected is the open-ended delegation to unnamed third parties.

What if all the substitution does is allow the named lawyer's law partner to handle the actual filing?
The opinion does not draw that fine line. The reasoning suggests that any substitution that effectively transfers the authority to an unspecified person would fall outside § 8.01-435. Whether a substitution to a specifically identifiable person at the same firm would survive is a question the opinion did not reach.

Can a clerk refuse to record the deed of trust or note with the offending clause?
The opinion explicitly flagged that as a separate question. Clerks have very limited authority to refuse instruments. The right venue for a substitution-clause challenge is likely a court contesting any subsequent confession of judgment based on the clause.

Background and statutory framework

The statute:

• § 8.01-435. "Confession of judgment may be made either by the debtor himself or by his duly constituted attorney-in-fact." Requires the note to "specifically name therein the attorney or attorneys or other person or persons authorized to confess such judgment."

Construction principles applied:

• Plain meaning of statutory text.
• The principle that when a statute specifies certain things, the intention to exclude what is not specified may be inferred (naming specific persons implies the exclusion of unnamed others).
• Strict construction to prevent abuse (drawn from the E.D. Va. decision, which the AG applied to the substitution question).

Policy context: Confessions of judgment trade procedural due process for creditor speed. The General Assembly's drafting choices around § 8.01-435 reflect a willingness to allow that trade only within bounds the legislature itself spelled out.

The opinion notes that the Virginia Supreme Court has not interpreted current § 8.01-435 on this exact question. The federal E.D. Va. decision is the closest authority, and the AG read it as persuasive and as a correct application of Virginia law.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 8.01-435

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-099-Frey.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

November 5, 2010

The Honorable John T. Frey, Clerk
Circuit Court of Fairfax County
4110 Chain Bridge Road
Fairfax, Virginia 22030

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.

Issue Presented

You ask whether § 8.01-435 permits confession of judgment by a third party who has been appointed by an attorney-in-fact whose power of attorney grants "full power of substitution," or whether such a construction would violate public policy.

Response

It is my opinion that § 8.01-435 does not authorize confessions of judgment by third parties appointed by attorneys-in-fact with "full power of substitution," and that such confessions would violate public policy.

Applicable Law and Discussion

Section 8.01-435 designates who may confess judgment. It provides that confession of judgment "may be made either by the debtor himself or by his duly constituted attorney-in-fact." The section further provides, for instances where judgment is confessed by the debtor's attorney-in-fact, that the note presented "shall specifically name therein the attorney or attorneys or other person or persons authorized to confess such judgment...."

When the language of a statute is clear and unambiguous, the statute is to be applied according to its plain meaning, and when a statute specifies certain things, the intention to exclude that which is not specified may be inferred. By its terms, § 8.01-435 authorizes only debtors and their attorneys-in-fact to confess judgment; there is no mention of unnamed third parties. Moreover, the provision requires the attorney-in-fact to be "specifically" named. The General Assembly could have employed language allowing for substitution of the attorney-in-fact or for the naming of a class of unspecified persons to confess judgment, but instead, § 8.01-435 refers only to debtors and attorneys-in-fact specifically named. Additionally, the provision requires the note itself, not any separate document, to contain the specified name. In sum, the statute indicates that the General Assembly did not intend such broad authorization for the confession of judgments.

In addition, prior opinions of this Office have concluded that the purpose of § 8.01-435 is to act as a limitation on creditors' practices of taking from debtors a general power of attorney authorizing any attorney to confess judgment on the involved instrument in any court. The limiting language contained in § 8.01-435 was chosen by the General Assembly based upon a "general concern with the possible abuse of confessed judgments, particularly those taken pursuant to a power of attorney waiving the right to due process."

Although the Supreme Court of Virginia has not had occasion to interpret current § 8.01-435, the United States District Court for the Eastern District of Virginia, applying Virginia law, has addressed its scope. In ruling that a confession of judgment clause in a note that named as the attorney-in-fact "any vice president or senior vice president of the Bank" was not sufficiently specific to meet the requirements of § 8.01-435, the court found that the provisions of § 8.01-435 must "be strictly construed to prevent abuse." In light of the above, I conclude that this decision, although not binding on Virginia courts, is persuasive and represents a correct application of Virginia law and, by its logic, would not permit a confession of judgment provision that left the appointment of an attorney-in-fact to be determined at a later date when a substitution was made by a person other than the debtor.

Conclusion

Accordingly, it is my opinion that § 8.01-435 does not authorize confessions of judgment by third parties appointed by attorneys-in-fact with "full power of substitution," and that such confessions would violate public policy.

With warmest regards, I am

Kenneth T. Cuccinelli, II
Attorney General