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 

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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 

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§ 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 

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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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