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21-48 FORECLOSURE OF REAL PROPERTY MORTGAGE BY ADVERTISEMENT
CHAPTER 21-48

FORECLOSURE OF REAL PROPERTY MORTGAGE BY ADVERTISEMENT

21-48-1      Foreclosure by advertisement available if mortgage contains power of sale.
21-48-2      Recording of mortgage and assignments required before foreclosure.
21-48-3      Default required before foreclosure.
21-48-4      Foreclosure not permitted after action at law to recover debt unless execution returned unsatisfied.
21-48-5      Mortgage for installments deemed separate mortgage for each installment--Effect of redemption by installments.
21-48-6      Publication of notice of foreclosure--Contents of notice.
21-48-6.1      Written notice of foreclosure sale required--Time--Parties.
21-48-7      Validation of prior foreclosures by receivers and personal representatives--Rights barred by no action.
21-48-8      Continuation of foreclosure proceedings despite changes in county boundaries or status.
21-48-9      Application by mortgagor or other interested party to require foreclosure by action--Injunction against foreclosure by advertisement--Service on mortgagee.
21-48-10      Time and place of sale--Officer making sale.
21-48-11      Postponement of sale--Notice.
21-48-12      Sale by parcels--Sale terminated when sufficient amount raised.
21-48-13      Purchase by mortgagee at sale.
21-48-14      Proof of value required for deficiency judgment after purchase by mortgagee--Other purchasers unaffected--Negotiability of instruments protected.
21-48-15      Costs, disbursements and attorney fees allowed from proceeds of sale.
21-48-16      Surplus proceeds of sale paid to clerk of court--Notice to mortgagor and junior lien holders of deposit of surplus.
21-48-17      Investment of surplus proceeds deposited with clerk.
21-48-18      Cancellation or endorsement of evidence of debt on application of proceeds of sale.
21-48-19      Certificate of sale given to purchaser--Contents--Execution and recording.
21-48-20      Prior certificates validated despite delay in recording--Rights barred by no action.
21-48-21      Deed given on expiration of time for redemption--Mortgagor entitled to harvest crops planted before issuance of deed.
21-48-22      Validation of prior proceedings on which deed issued--Time allowed for protection of existing rights.
21-48-22.1      Prior foreclosure sales validated despite defects--Rights barred by no action.
21-48-23      Record of foreclosure sale--Affidavits and certificate recorded--Notation by register of deeds.
21-48-24      Affidavits recorded to show compliance with federal acts.
21-48-25      Interest vested in purchaser by recording of instruments.
21-48-26      Validation of sales prior to January 1, 1982--Pending proceedings.


21-48-1Foreclosure by advertisement available if mortgage contains power of sale.

Every mortgage of real property containing therein a power of sale, upon default being made in the conditions of said mortgage, may be foreclosed by advertisement.

Source: CCivP 1877, § 597; SL 1883, ch 61, § 1; CL 1887, § 5411; RCCivP 1903, § 636; RC 1919, § 2876; SL 1927, ch 163; SL 1933, ch 135; SDC 1939 & Supp 1960, § 37.3001; SL 1961, ch 199.


21-48-2Recording of mortgage and assignments required before foreclosure.

To entitle any party to foreclose by advertisement, it shall be necessary that the mortgage containing such power of sale has been duly recorded and, if it shall have been assigned, that all the assignments thereof have been duly recorded in the county where such mortgaged premises are situated.

Source: CCivP 1877, § 598, subdiv 3; CL 1887, § 5412, subdiv 3; RCCivP 1903, § 637, subdiv 3; RC 1919, § 2877 (3); SDC 1939 & Supp 1960, § 37.3002 (3).


21-48-3Default required before foreclosure.

To entitle any party to foreclose by advertisement, it shall be necessary that some default in a condition of such mortgage shall have accrued, by which the power to sell has become operative.

Source: CCivP 1877, § 598, subdiv 1; CL 1887, § 5412, subdiv 1; RCCivP 1903, § 637, subdiv 1; RC 1919, § 2877 (1); SDC 1939 & Supp 1960, § 37.3002 (1).


21-48-4Foreclosure not permitted after action at law to recover debt unless execution returned unsatisfied.

To entitle any party to foreclose by advertisement, it shall be necessary that no action or proceeding shall have been instituted at law to recover the debt then remaining secured by such mortgage, or any part thereof; or, if any action or proceeding has been instituted, that the same has been discontinued, or that an execution upon the judgment rendered therein has been returned unsatisfied, in whole or in part.

Source: CCivP 1877, § 598, subdiv 2; CL 1887, § 5412, subdiv 2; RCCivP 1903, § 637, subdiv 2; RC 1919, § 2877 (2); SDC 1939 & Supp 1960, § 37.3002 (2).


21-48-5Mortgage for installments deemed separate mortgage for each installment--Effect of redemption by installments.

In cases of mortgages given to secure the payment of money by installments, each of the installments mentioned in such mortgage, after the first, shall be taken and deemed to be a separate and independent mortgage, and such mortgage, for each of such installments, may be foreclosed in the same manner, and with like effect, as if such separate mortgage were given for each subsequent installment; and a redemption of any such sale shall have like effect as if the sale for such installment had been made upon a prior, independent mortgage.

Source: CCivP 1877, § 599; CL 1887, § 5413; RCCivP 1903, § 638; RC 1919, § 2878; SDC 1939 & Supp 1960, § 37.3003.


21-48-6Publication of notice of foreclosure--Contents of notice.

Notice that such mortgage will be foreclosed by sale of the mortgaged premises, or some part of them, shall be given, by publishing the notice at least once each week for four successive weeks in a legal newspaper of the county where the premises intended to be sold, or some of them, are situated, if there be one in the county, and if not, in the nearest newspaper in the state. Every notice shall specify:

(1)    The names of the mortgagor and mortgagee, and the assignee, if any;

(2)    The date of the mortgage;

(3)    The amount claimed to be due on the mortgage at the date of the notice;

(4)    A description of the mortgaged premises, conforming substantially to that contained in the mortgage;

(5)    The time and place of sale;

(6)    A description of the default;

(7)    That the mortgagor can apply for foreclosure by action pursuant to § 21-48-9;

(8)    The name and address of all persons claiming a lien, encumbrance, or other recorded ownership interest in the property.

Source: CCivP 1877, §§ 600, 601; CL 1887, §§ 5414, 5415; RCCivP 1903, §§ 639, 640; RC 1919, §§ 2879, 2880; SL 1929, ch 177; SL 1931, ch 178; SDC 1939 & Supp 1960, § 37.3004; SL 2002, ch 101, § 1.


21-48-6.1Written notice of foreclosure sale required--Time--Parties.

At least twenty-one days prior to the date set for sale, the foreclosing creditor shall serve a written copy of the notice of foreclosure sale on the mortgagor and any lien holder or encumbrancer whose interest in the property being foreclosed would be affected by the foreclosure.

Source: SL 2002, ch 101, § 3.


21-48-7Validation of prior foreclosures by receivers and personal representatives--Rights barred by no action.

All mortgage foreclosure sales of real property by advertisement, under power of sale contained in such mortgages, made before January 1, 1992, by any receiver or personal representative, appointed by a court of competent jurisdiction, acting for and on behalf of the trust or estate for which such receiver or personal representative was appointed, or any like foreclosure made by the assignee of any such receiver or personal representative, and where such receiver or personal representative acquired title to such mortgage or mortgages by virtue of such appointment, and not by assignment, are hereby legalized, cured, and validated as fully as if such mortgage or mortgages had been assigned by the owner thereof to such receiver or personal representative, and such assignment duly acknowledged and recorded, as required by § 43-11-29, relating to power of sale in mortgages, in whom such power vests by assignment and record thereof.

If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.

Source: SL 1939, ch 147; SDC Supp 1960, § 65.0304-2; SL 1992, ch 307, § 11.


21-48-8Continuation of foreclosure proceedings despite changes in county boundaries or status.

When a foreclosure has been legally and properly commenced in any county by first publication of the notice of sale it may be carried on to full completion and issue of sheriff's deed or redemption, in such county, regardless of any change which may take place in the boundaries, name, legal, or political status of such county.

Source: SL 1917, ch 8, § 1; RC 1919, § 2896; SDC 1939 & Supp 1960, § 37.3013.


21-48-9Application by mortgagor or other interested party to require foreclosure by action--Injunction against foreclosure by advertisement--Service on mortgagee.

If the mortgagee or the mortgagee's assignee has commenced foreclosure by advertisement, the mortgagor, the mortgagor's successor in interest, or any other person claiming a lien, encumbrance, or recorded ownership interest in the real property that is the subject of the foreclosure, may require the owner and holder of the mortgage to foreclose by action and for that purpose shall present to the court having jurisdiction thereof an application describing the mortgage and stating the applicant's interest and stating why the mortgage should be foreclosed by action without necessity of stating any reasons, and upon such application the judge of such court shall, by an order to that effect, enjoin the mortgagee or the mortgagee's assignee from foreclosing such mortgage by advertisement, and direct that all further proceedings for the foreclosure be had in the circuit court properly having jurisdiction of the subject matter. For the purpose of carrying out the provisions of this section, service may be made upon the attorney or agent of the mortgagee or assignee.

Source: SL 1883, ch 61, § 1; CL 1887, § 5411; RCCivP 1903, § 636; RC 1919, § 2876; SL 1927, ch 163; SL 1933, ch 135; SDC 1939 & Supp 1960, § 37.3001; SL 1961, ch 199; SL 2002, ch 101, § 2.


21-48-10Time and place of sale--Officer making sale.

A sale under this chapter must be at public auction between the hours of nine o'clock in the forenoon and five o'clock in the afternoon on that day, in the county in which the premises to be sold, or some part thereof, are situated, and must be made by the sheriff of such county, or his deputy, to the highest bidder.

Source: CCivP 1877, § 602; CL 1887, § 5416; SL 1891, ch 84; RCCivP 1903, § 641; RC 1919, § 2881; SDC 1939 & Supp 1960, § 37.3005.


21-48-11Postponement of sale--Notice.

Such sale may be postponed, from time to time, by inserting a notice of such postponement, as soon as practicable, in the newspaper in which the original advertisement was published, and continuing such publication until the time to which such sale shall be postponed, at the expense of the party requesting such postponement.

Source: CCivP 1877, § 603; CL 1887, § 5417; RCCivP 1903, § 642; RC 1919, § 2882; SDC 1939 & Supp 1960, § 37.3005.


21-48-12Sale by parcels--Sale terminated when sufficient amount raised.

If the mortgaged premises consist of distinct farms, tracts, or lots, they must be sold separately, unless the same consist of platted lots having a structure partly upon each, in which case the lots must be sold as one tract; provided that whenever there be a paramount lien upon two or more lots or parcels of land not contiguous which paramount lien covers two or more of such separate lots or parcels, the separate lots or parcels may be sold in one parcel subject to such paramount lien. Except as are hereinbefore provided, no more farms, tracts, or lots must be sold than shall be necessary to satisfy the amount due on such mortgage at the date of the notice of sale, with interest, and the costs and expenses allowed by law.

Source: CCivP 1877, § 604; CL 1887, § 5418; RCCivP 1903, § 643; RC 1919, § 2883; SL 1929, ch 179; SDC 1939 & Supp 1960, § 37.3005.


21-48-13Purchase by mortgagee at sale.

The mortgagee, his assigns, or their legal representatives, may, fairly and in good faith, purchase the premises so advertised, or any part thereof, at such sale.

Source: CCivP 1877, § 605; CL 1887, § 5419; RCCivP 1903, § 644; RC 1919, § 2884; SDC 1939 & Supp 1960, § 37.3005.


21-48-14Proof of value required for deficiency judgment after purchase by mortgagee--Other purchasers unaffected--Negotiability of instruments protected.

When any sale of real estate has been made by a mortgagee, trustee, or other person authorized to make the same at which the mortgagee, payee, or other holder of the obligation thereby secured becomes the purchaser and takes title, either directly or indirectly, before such mortgagee, payee, or other holder of the secured obligation as aforesaid, shall be entitled to any deficiency judgment against the mortgagor, trustor, or other maker of any such obligation whose property has been so purchased, he shall first establish to the satisfaction of the court in which such action for a deficiency judgment is pending that the property covered by such mortgage sold at foreclosure sale for its true market value or more at the time of such sale, and in adjudging any such deficiency the court in arriving at the amount of such judgment shall deduct from the amount of the mortgage indebtedness remaining unsatisfied after the sale of the mortgaged property the difference between the true market value of said property at the time of such sale and the amount for which it sold, if such amount was less than the true market value at the time of sale.

This section shall not affect nor apply to the rights of other purchasers or of innocent third parties nor shall it be held to affect or defeat the negotiability of any note, bond, or other obligation secured by such mortgage, deed of trust, or other instrument.

This section shall not apply to foreclosure sales made pursuant to an order or decree of court nor to any judgment sought or rendered in any foreclosure by action nor to any sale confirmed prior to July 1, 1937.

Source: SL 1937, ch 208; SDC 1939 & Supp 1960, § 37.3007.


21-48-15Costs, disbursements and attorney fees allowed from proceeds of sale.

The party foreclosing a mortgage by advertisement shall be entitled to his costs and disbursements, including any attorney fees allowed by law, out of the proceeds of the sale.

Source: CCivP 1877, § 615; SL 1887, ch 28, § 1; CL 1887, § 5429; RCCivP 1903, § 654; RC 1919, § 2895; SDC 1939 & Supp 1960, § 37.3014.


21-48-16Surplus proceeds of sale paid to clerk of court--Notice to mortgagor and junior lien holders of deposit of surplus.

It shall be the duty of every officer who conducts any such sale to apply the proceeds thereof as provided in § 21-47-18, except that the surplus, if any, shall be paid to the clerk of the circuit court and he shall give his receipt therefor. The sheriff shall forthwith give notice by mail to the mortgagor, his personal representatives or assigns, and to all persons holding junior encumbrances or liens, of the deposit of such surplus with the clerk.

Source: CCivP 1877, § 610; SL 1887, ch 27, § 1; CL 1887, § 5424; SL 1893, ch 118; RCCivP 1903, §§ 649, 664; RC 1919, § 2885; SL 1923, ch 222; SDC 1939 & Supp 1960, § 37.3006.


21-48-17Investment of surplus proceeds deposited with clerk.

If such surplus, or any part thereof, shall remain with the clerk of said court for a term of three months without the rights thereto being fully determined, the clerk may deposit the same in some bank in said county and take an interest-bearing certificate of deposit therefor, and hold the same for the benefit of the person or persons who may be entitled thereto until the rights of the parties thereto have been fully determined.

Source: SL 1923, ch 222; SDC 1939 & Supp 1960, § 37.3006.


21-48-18Cancellation or endorsement of evidence of debt on application of proceeds of sale.

If the amount realized at the sale was sufficient to satisfy the mortgage debt and all other sums due at date of sale, the officer shall cancel the evidence of the debt by permanent endorsement thereon and return it to the person primarily liable thereon upon demand of such person or his attorney but if no such demand be made prior to the time deed or redemption under the foreclosure is made, the officer shall be no longer responsible for such return. If the amount realized at such sale is not sufficient to pay the sums due as aforesaid, the officer shall endorse on the evidence of the debt in permanent form, the amount of the sale and the amount remaining due on the debt, and return the evidence of the debt to the mortgagee, assignee, or other owner thereof. The officer making such endorsements shall date and sign the same.

Source: SDC 1939 & Supp 1960, § 37.3006.


21-48-19Certificate of sale given to purchaser--Contents--Execution and recording.

The officer making such real estate mortgage foreclosure sale shall give to the purchaser a certificate of sale, containing:

(1)    A recital of the fact of the sale, stating the time and place, and the name of the purchaser;

(2)    A particular description of the real property sold;

(3)    The price bid for each distinct lot or parcel;

(4)    The whole price paid; which certificate must be executed and acknowledged and shall be recorded in the office of the register of deeds where the mortgage is recorded within ten days from the date of sale, and shall have the same validity and effect as a certificate of sale of real property under execution.

Source: CCivP 1877, § 606; CL 1887, § 5420; RCCivP 1903, § 645; SL 1907, ch 189; RC 1919, § 2886; SL 1925, ch 222; SDC 1939, § 37.3008; SL 1949, ch 141, § 1.


21-48-20Prior certificates validated despite delay in recording--Rights barred by no action.

All certificates of mortgage foreclosure sale of real property by advertisement under power of sale recorded prior to January 1, 1992, and the records of such certificates, are hereby legalized, cured, and validated, and such certificates and the record thereof are made and declared to be in every manner and respect of like force and effect as though such certificates had been recorded within ten days from the date of sale as required by § 21-48-19.

If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.

Source: SDC 1939, § 65.0304; SL 1992, ch 307, § 12.


21-48-21Deed given on expiration of time for redemption--Mortgagor entitled to harvest crops planted before issuance of deed.

If such mortgaged premises are not redeemed, the officer or his successor in office, or some other person appointed by the circuit court for that purpose, shall complete such sale, by executing a deed of the premises so sold to the original purchaser, his heirs, or assigns, or to any person who may have acquired the title and interest of such purchaser by redemption or otherwise. Whenever crops have been sown on the mortgaged premises, before the issuance of a sheriff's deed, the mortgagor shall be entitled to the crops grown thereon and the right to enter on the premises to harvest the crops after the issuance of the deed.

Source: CCivP 1877, § 609; CL 1887, § 5423; RCCivP 1903, § 648; SL 1909, ch 78; SL 1913, ch 269; RC 1919, § 2890; SDC 1939 & Supp 1960, § 37.3011; SL 1986, ch 177, § 1.


21-48-22Validation of prior proceedings on which deed issued--Time allowed for protection of existing rights.

All proceedings of mortgage foreclosure sale of real property by advertisement, and completed by issuance of sheriff's deed prior to July 1, 1941, and which proceedings were irregular or defective, are hereby legalized, cured and validated as fully as if such foreclosure proceedings had been wholly regular and as by law provided.

The provisions of this section shall not apply to any action involving real property which was pending on July 1, 1951, or which was commenced prior to July 1, 1952, as to which a notice of the pendency of such action was recorded prior to July 1, 1952, as provided herein.

If any person has any vested right in any real property, or any part thereof, by reason of any mortgage foreclosure sale such as is referred to herein, if no action or proceeding to enforce such right was begun prior to July 1, 1952, such rights shall be forever barred; and no action or proceeding so brought shall be of any force or effect, or maintainable in any court of this state, unless, prior to July 1, 1952, there was recorded in the office of the register of deeds of the county in which the real estate affected is situated a notice of the pendency of such action, in accordance with the provisions of chapter 15-10.

Source: SL 1951, ch 197; SDC Supp 1960, § 65.0304-1.


21-48-22.1Prior foreclosure sales validated despite defects--Rights barred by no action.

All mortgage foreclosure sales of real property by advertisement, under power of sale contained in such mortgages, made before January 1, 1992, the sheriff's deed thereof having been executed and delivered to the purchaser of such real property before January 1, 1975, notwithstanding any defect of notice, acknowledgment of any instrument or the recording thereof, or any other defect in the proceeding, are hereby cured, legalized, and validated as fully as if such foreclosure proceedings had been made in full compliance with all existing statutes or laws.

If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.

Source: SL 1975, ch 167; SL 1992, ch 307, § 13.


21-48-23Record of foreclosure sale--Affidavits and certificate recorded--Notation by register of deeds.

A record of foreclosure sale must be made as follows:

(1)    An affidavit of the publication of the notice of sale and of any notice of postponement must be made by the printer or publisher of the newspaper in which such notice was published, or some person in his employ knowing the facts;

(2)    An affidavit by the person foreclosing the mortgage, or his attorney, or someone knowing the facts, setting forth the facts relating to the military service status of the owner of the mortgaged premises at the time of sale which affidavit, where such may be required, may also set forth the fact of service of notice of sale upon the secretary of the treasury of the United States of America or his delegate in accordance with the provisions of subsection (c)(1) of section 7425 of the Internal Revenue Code of 1954 as amended by Public Law 89-719, known as the Federal Tax Lien Act of 1966, and as amended through January 1, 1987;

(3)    An affidavit executed by the person foreclosing the mortgage, that person's attorney or someone knowing the facts, stating that the mortgagor and any person who is required to receive notice under § 21-48-6.1 have been given notice of the foreclosure and that no request for foreclosure by action has been made;

(4)    Such affidavits and the certificate of sale hereinabove provided for, must be recorded at length by the register of deeds of the county in which the real property is situated in a book kept for that purpose, and such original instruments, or the records thereof, or certified copies of such records, shall be prima facie evidence of the facts therein contained;

(5)    A note shall be made by the register of deeds in the margin of the record of any mortgage which has been foreclosed, showing the book and page where the evidence of such foreclosure sale is recorded.

Source: SDC 1939, § 37.3012; SL 1949, ch 141, § 2; SL 1957, ch 197; SL 1967, ch 151; SL 1987, ch 29, § 78; SL 2002, ch 101, § 4.


21-48-24Affidavits recorded to show compliance with federal acts.

The affidavit provided for in subdivision 21-48-23(2) may be made and filed for record for the purpose of complying with the provisions of the Servicemembers Civil Relief Act of 2003, 54 Stat. 1178, 50 App. U.S.C.A. 501-48 and 560-591, as amended to January 1, 2007, and if required, for the purpose of showing compliance with the Federal Tax Lien Act, as amended to January 1, 2007. The affidavit may be made and filed for record at any time after the mortgage foreclosure sale, whether the sale was heretofore or is hereafter made.

Source: SDC 1939, § 37.3012 as added by SL 1957, ch 197; SL 1967, ch 151; SL 2007, ch 187, § 234.


21-48-25Interest vested in purchaser by recording of instruments.

A record of the instruments described in § 21-48-23 and the deed executed upon the sale of the real property, shall vest in the purchaser or person acquiring title thereto by redemption or otherwise, the same interest as a deed upon foreclosure of a real estate mortgage by action in court.

Source: CCivP 1877, § 614; CL 1887, § 5428; RCCivP 1903, § 653; RC 1919, § 2894; SDC 1939, § 37.3012; SL 1949, ch 141, § 2; SL 1957, ch 197; SL 1967, ch 151.


21-48-26Validation of sales prior to January 1, 1982--Pending proceedings.

All mortgage foreclosure sales of real property by advertisement under power of sale contained in such mortgages, in which the sheriff's certificate of sale therefor was executed and recorded before January 1, 1992, in the office of the register of deeds of the county, or counties, where the real estate affected thereby is situated, are, notwithstanding any defect or irregularity therein, hereby cured, legalized, and validated.

The provisions of this section do not apply to any action or proceeding involving real property pending on July 1, 1993, or commenced prior to July 1, 1993, if a notice of the pendency of such action or proceeding was recorded prior to July 1, 1993.

If anyone has any right in any real property, or any part thereof, adversely affected by a mortgage foreclosure sale referred to in this section, and no action or proceeding to enforce such right is commenced prior to July 1, 1993, such right shall be forever barred, and no action or proceeding so brought may be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, a notice of the pendency of such action or proceeding was recorded in accordance with the provisions of chapter 15-10 in the office of the register of deeds of the county, or counties, where any real property affected thereby is situated.

Source: SL 1982, ch 175; SL 1992, ch 307, § 14.


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