CHAPTER 21-54
FORECLOSURE OF PERSONAL PROPERTY LIENS AND PLEDGES BY ADVERTISEMENT
21-54-1 Remedy available where no other summary procedure provided.
21-54-2 Pledges foreclosed in manner prescribed by contract--Chapter applicable if procedure not prescribed.
21-54-3 Owner's affidavit of defense to summary foreclosure--Injunction requiring foreclosure by action--Costs taxed if defense not established.
21-54-4 Affidavit of lien recorded if lien not previously recorded.
21-54-5 Notice of sale issued--Contents.
21-54-6 Service of notice of sale--Mailing, publication and posting.
21-54-7 Place of sale--Notice of public access.
21-54-8 Time of sale--Adjournment to following day.
21-54-9 Sale of property in parts--Order of sale--Termination when sufficient amount raised.
21-54-10 Sale at auction to highest bidder--Purchase by lien holder.
21-54-11 Purchaser's title absolute and beyond redemption--Certificate or bill of sale--Evidence sufficient for registration of title.
21-54-12 Surplus paid to owner or clerk of courts.
21-54-13 Civil action for deficiency.
21-54-14 Report of proceedings--Contents and time of filing.
21-54-15 Abandoned mobile or manufactured home--Sale or disposal by real property owner--Notice to home owner--Promulgation of rules.
21-54-16 Notice to county treasurer of intent to sell or dispose--Promulgation of rules.
21-54-17 Disposition of abandoned mobile home or manufactured home that fails to sell--Abandoned title.
21-54-17.1 Disposal in lieu of sale--Abandoned title required.
21-54-18 Permit to move abandoned mobile home or manufactured home--Promulgation of rules.
21-54-19 Abatement of taxes owed on abandoned mobile home or manufactured home.
21-54-20 Voluntary transfer of title to mobile home or manufactured home to real property owner for disposal--Affidavit--Permit--Surrender of title to county treasurer.
21-54-21 Abatement of taxes on mobile home or manufactured home upon filing of affidavit and surrender of title.
21-54-1. Remedy available where no other summary procedure provided.
In all cases where no other procedure is provided for summary foreclosure of any personal property lien, or pledge, the same may be foreclosed as hereinafter provided in this chapter.
Source: SDC 1939 & Supp 1960, § 37.3401.
21-54-2. Pledges foreclosed in manner prescribed by contract--Chapter applicable if procedure not prescribed.
Pledges may be foreclosed in the manner prescribed in the contract of pledge; or if no manner is prescribed, or the manner prescribed is insufficient, the provisions of this chapter shall apply so far as consistent with the contract of pledge and the law of this state.
Source: SDC 1939 & Supp 1960, § 37.3409.
21-54-3. Owner's affidavit of defense to summary foreclosure--Injunction requiring foreclosure by action--Costs taxed if defense not established.
In all cases where foreclosure of any personal property lien except conditional sales contracts has been commenced by summary proceedings, the property owner or any person claiming right of possession or any other encumbrancer, may at any time before the sale of the property under such summary proceedings present to the circuit judge and file in the office of the clerk of courts for any county where such summary proceeding is pending, an affidavit stating that he has a defense to such foreclosure and desires to have the same conducted by court procedure. Thereupon the circuit judge shall issue an injunctional order directed to the lien holder and any agent conducting the proceeding, enjoining further summary procedure and requiring foreclosure of the lien in court. The order may be enforced the same as any other injunction of the court. If the defense shall not be established the costs incurred in the summary proceedings may be taxed as additional costs in the court proceeding against the party asserting the defense.
Source: SDC 1939 & Supp 1960, § 37.3410.
21-54-4. Affidavit of lien recorded if lien not previously recorded.
If any lien or pledge sought to be foreclosed under this chapter is not duly on file or of record in the office of the register of deeds of the county in which the foreclosure is to be conducted, the person desiring to foreclose such lien must first file in the office of such register of deeds a sworn statement of the lien as required in Title 44 for giving notice of lien claims.
Source: SDC 1939 & Supp 1960, § 37.3402.
21-54-5. Notice of sale issued--Contents.
The person desiring to foreclose such lien, shall issue a notice of sale, signed by himself, agent, or attorney, and stating:
(1) The names and addresses of the owner of the property and of all lien claimants, as shown by the files of the register of deeds of the county where the foreclosure is to be conducted and also those otherwise known to the lien claimant;
(2) A description of the property sufficient for identification of it;
(3) The location of the property;
(4) Statement of the grounds on which the lien is claimed, and reference to its filing in the office of register of deeds;
(5) The nature of the default under which foreclosure is sought;
(6) The amount claimed to be due at the date of the notice;
(7) The time and place of sale.
Source: Supreme Court Rule 593, 1939; SDC 1939 & Supp 1960, § 37.3405.
21-54-6. Service of notice of sale--Mailing, publication and posting.
Notice of the sale shall be given by mailing copies of the same to the property owner and all other lien claimants at their addresses as shown by the notice of sale and by publishing such notice for at least one issue in a legal newspaper published in the county nearest the place of sale, or if no such newspaper is published in the county, by mailing and posting one copy of the notice on the bulletin board at the front door of the courthouse, or if there be no courthouse, at the place where circuit court was last held in the county, all to be done at least ten days before the date fixed for the sale.
Source: SL 1929, ch 174; SDC 1939 & Supp 1960, § 37.3406.
21-54-7. Place of sale--Notice of public access.
Foreclosures under this chapter may be held at any public place in any of the municipalities or villages of the county in which the foreclosure is to be held, but in case of heavy or bulky articles or materials which cannot be conveniently or practicably moved, the sale may be held where they are located provided the public is afforded free right of access for inspection and bidding. In such cases notice of all such facts and definite description of the place, and reason for holding the sale there and of the public's right of access must be stated in the notice of sale.
Source: SDC 1939 & Supp 1960, § 37.3404; SL 1992, ch 60, § 2.
21-54-8. Time of sale--Adjournment to following day.
Any foreclosure sale under this chapter may be held on any day of the week except Sunday or other legal holiday and shall be held between the hours of ten o'clock in the forenoon and five o'clock in the afternoon, except that when a sale has been commenced and cannot be completed by five o'clock it may be continued for another hour on the same day and if not then completed, adjourned until ten o'clock on the following day, and so continuing until completed.
Source: SDC 1939 & Supp 1960, § 37.3403.
21-54-9. Sale of property in parts--Order of sale--Termination when sufficient amount raised.
If the property is conveniently and practicably divisible, the owner or any other lien holder may require it to be sold in parts and direct the order of such sale. In such cases the owner shall have the preference right to direct the order of sale, and the other lien holders shall have such preference in order of their respective priorities, if those preceding shall have failed to exercise such right.
If it is sold in parts, no more of the property shall be sold than is necessary to satisfy the lien and the costs and expenses of the proceedings.
Source: SDC 1939 & Supp 1960, § 37.3407.
21-54-10. Sale at auction to highest bidder--Purchase by lien holder.
The sale shall be made at public auction to the highest bidder for cash. The lien holder may bid and purchase and have the amount of his bid credited on his lien.
Source: SDC 1939 & Supp 1960, § 37.3407.
21-54-11. Purchaser's title absolute and beyond redemption--Certificate or bill of sale--Evidence sufficient for registration of title.
The title of a purchaser at any such sale shall be absolute and beyond redemption and it may be evidenced by a certificate or bill of sale from the party making the sale or from the report of sale as filed, and the report of sale shall be prima facie evidence of its contents. In the case of motor vehicles or other articles of which public registry of title is required by law, any such evidence of conveyance shall be sufficient to require registration of such vehicles or articles and for the issue of new title or other certificate accordingly.
Source: SDC 1939 & Supp 1960, § 37.3408.
21-54-12. Surplus paid to owner or clerk of courts.
If there be any surplus it may be paid direct to the person entitled thereto and his receipt taken and filed with the report, or it may be paid into the office of the clerk of courts of the county for the benefit of the persons entitled thereto and receipt of such clerk taken and filed with the report of the sale.
Source: SDC 1939 & Supp 1960, § 37.3408.
21-54-13. Civil action for deficiency.
If there be any deficiency, the lien claimant may recover therefor by civil action or otherwise as his rights may appear.
Source: SDC 1939 & Supp 1960, § 37.3408.
21-54-14. Report of proceedings--Contents and time of filing.
The lien holder, or his agent, or attorney duly authorized shall make a sworn report of the proceedings showing:
(1) Proof by affidavits of giving notice of the sale as required by this chapter, including a copy of the notice;
(2) An account of the sale, showing the items sold, amounts bid and paid, and, names and addresses of the purchasers;
(3) The amount due on the lien, together with the costs and disbursements of the sale and the surplus or deficiency remaining, if any.
The report of the sale shall be filed in the office of the register of deeds of the county within five days after the sale.
Source: SDC 1939 & Supp 1960, § 37.3408.
21-54-15. Abandoned mobile or manufactured home--Sale or disposal by real property owner--Notice to home owner--Promulgation of rules.
If a mobile home or manufactured home as defined in chapter 32-7A has been abandoned and left on leased real property, the owner of real property may sell or dispose of the mobile home or manufactured home under the provisions of this chapter. A mobile home or manufactured home is considered abandoned if the owner of the home has not removed the home from the real property owner's land within thirty days of the court issuing a writ of possession as provided in chapter 21-16. Upon issuance of the writ of possession by the court, the owner of real property shall send the owner of the mobile home or manufactured home and any lienholder with a lien properly noted pursuant to chapter 32-3, written notice of intent to sell or dispose of the home pursuant to this chapter if the home is not removed from the real property owner's property within thirty days. The notice must be sent to the last known address of the owner of the mobile home or manufactured home. The Department of Revenue shall promulgate rules pursuant to chapter 1-26 to prescribe a form for the written notice. Any written notice shall be sent by certified mail. Any sale is subject to any taxes owed on the home and unpaid lot rent but such unpaid lot rent lien may not exceed two month's lot rent at the price previously agreed to by the owner of real property and owner of the mobile home or manufactured home.
Source: SL 2007, ch 140, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2023, ch 66, § 1.
21-54-16. Notice to county treasurer of intent to sell or dispose--Promulgation of rules.
After the owner of the abandoned mobile home or manufactured home has been provided thirty days' written notice, and before the owner of real property proceeds with the sale or disposal of the abandoned mobile home or manufactured home, the owner of the real property shall provide written notice of intent to sell or dispose of the abandoned property to the county treasurer where the home is located. The Department of Revenue shall promulgate rules pursuant to chapter 1-26 to prescribe a form for the written notice. If the treasurer has not issued a distress warrant and informed the owner and any lien holder of real property of such issuance within thirty days of the notice required by this section, or the mobile home or manufactured home has not been removed by its owner or any lien holder within thirty days of the notice provided by § 21-54-15, the owner of real property may proceed with the sale or disposal pursuant to this chapter.
Source: SL 2007, ch 140, § 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2023, ch 66, § 2.
21-54-17. Disposition of abandoned mobile home or manufactured home that fails to sell--Abandoned title.
If an abandoned mobile home or manufactured home fails to sell at a sale held pursuant to this chapter, title to the mobile home or manufactured home is irrevocably vested with the owner of the real property. The owner of the real property on which the mobile home or manufactured home resides, may obtain an abandoned title without payment or obligation to pay any taxes owed on the home or any lien on the home at the time of acquisition. However, if the owner of the real property intends any use of the abandoned mobile home or manufactured home other than disposal, the owner of the real property may obtain an abandoned title after paying any taxes owed on the home. The department shall promulgate rules pursuant to chapter 1-26 to prescribe a form that shall be used to apply for the abandoned title.
Source: SL 2007, ch 140, § 3.
21-54-17.1. Disposal in lieu of sale--Abandoned title required.
If the owner of the real property intends to dispose of the mobile home or manufactured home in lieu of sale, the owner of the real property must first obtain an abandoned title after paying any taxes owed on the home.
Source: SL 2023, ch 66, § 3.
21-54-18. Permit to move abandoned mobile home or manufactured home--Promulgation of rules.
If an owner of the real property obtains a title to a mobile home or manufactured home pursuant to § 21-54-17, the owner of the real property shall obtain a permit pursuant to § 32-5-16.3 to move the abandoned mobile home or manufactured home. If the owner of the real property obtains a title to a mobile home or manufactured home pursuant to § 21-54-17 and files an affidavit with the county treasurer stating that the owner is going to move the abandoned mobile home or manufactured home for the sole purpose of disposal, the county treasurer shall issue the permit provided by § 32-5-16.3 without receiving payment of the current year's taxes. If the owner of the real property obtains a title to a mobile home or manufactured home pursuant to § 21-54-17.1, the county treasurer shall issue the permit provided by § 32-5-16.3. The Department of Revenue shall promulgate rules pursuant to chapter 1-26 to prescribe a form for the affidavit.
Source: SL 2007, ch 140, § 4; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2023, ch 66, § 4.
21-54-19. Abatement of taxes owed on abandoned mobile home or manufactured home.
The county treasurer shall deliver the affidavit filed pursuant to § 21-54-18 to the board of county commissioners after issuance of the permit. Upon receipt of the affidavit, the board of county commissioners shall abate any taxes owed on the mobile home or manufactured home.
Source: SL 2007, ch 140, § 5.
21-54-20. Voluntary transfer of title to mobile home or manufactured home to real property owner for disposal--Affidavit--Permit--Surrender of title to county treasurer.
An owner of an unencumbered, except for taxes owed, mobile home or manufactured home may voluntarily transfer title of the mobile home or manufactured home, for the sole purpose of disposal, to the owner of the real property upon which the mobile home or manufactured home is located. The treasurer shall issue a title to the owner of the real property on which the mobile home or manufactured home is located, without payment or obligation to pay any taxes owed on the home at the time of acquisition.
Prior to disposal, the owner of the real property shall submit an affidavit for disposal of the mobile home or manufactured home, and the properly endorsed title, to the county treasurer verifying that title was transferred for disposal purposes only and that no consideration was exchanged.
If the owner of the real property is moving the mobile home or manufactured home as part of the disposal process, the county treasurer shall issue the permit provided by § 32-5-16.3 to move the mobile home or manufactured home for disposal purposes without receiving payment of taxes owed on the mobile home or manufactured home.
The owner of the real property has ninety days from the date of the affidavit to dispose of the mobile home or manufactured home and to surrender the title to the county treasurer. The county treasurer may allow an additional sixty days for disposal upon request by the owner of the mobile home or manufactured home upon good cause shown for such additional days. If the title is not timely surrendered to the county treasurer, the owner of the real property is liable for all taxes owed on the mobile home or manufactured home.
The Department of Revenue shall prescribe the form for the affidavit required by this section.
Source: SL 2015, ch 125, § 1.
21-54-21. Abatement of taxes on mobile home or manufactured home upon filing of affidavit and surrender of title.
The county treasurer shall deliver the affidavit filed pursuant to § 21-54-20 to the board of county commissioners after issuance of the permit. Upon receipt of the affidavit, the board of county commissioners shall abate any taxes owed on the mobile home or manufactured home pursuant to the provisions of § 21-54-19. However, if the owner of the real property failed to timely surrender the title to the county treasurer, the board may not abate any taxes owed on the mobile home or manufactured home.
Source: SL 2015, ch 125, § 2.
