21-49-11. Foreclosure alternatives available on small tracts subject to chapter--Mortgages under earlier law.

Any mortgage made pursuant to this chapter on real property of an area of not more than forty acres containing therein a power of sale, upon default being made in the conditions of the mortgage, may be foreclosed as provided in chapter 21-47 or 21-48 or as provided in this chapter. Any mortgage made pursuant to §§ 21-49-1 to 21-49-10 prior to July 1, 1977 may be foreclosed as provided therein or as provided in this section.

Source: SL 1963, ch 236, § 1; SDCL, § 21-49-1; SL 1972, ch 135; SL 1977, ch 187, § 1; SL 1979, ch 157, § 1.

21-49-12. Clause subjecting mortgage to chapter--Caption required--Mortgagor's right to possession of property during redemption period.

Any mortgage containing the following statement in printed or typed capital letters: "THE PARTIES AGREE THAT THE PROVISIONS OF THE ONE HUNDRED EIGHTY DAY REDEMPTION MORTGAGE ACT GOVERN THIS MORTGAGE," shall be subject to the provisions of this chapter. Any mortgage executed under this chapter shall be entitled in printed or typed capital letters: "MORTGAGE--ONE HUNDRED EIGHTY DAY REDEMPTION." No mortgage made pursuant to this chapter shall contain any provisions whereby the mortgagor is denied the right to possession of the mortgaged property during the redemption period as provided in this chapter.

Source: SL 1963, ch 236, § 5; SDCL, § 21-49-2; SL 1977, ch 187, § 2.

21-49-13. Provisions includable in mortgage--Satisfaction of notice requirements.

In particular, but without limitation, any mortgage subject to the provisions of this chapter, may contain provisions relating to:

(1)    In the case of default in the payment of the principal sum of money, or any part thereof, or interest thereon at the time specified for payment thereof, or in the case of nonpayment of any taxes, assessments, or insurance as required, or of breach of any covenant or agreement contained in the mortgage, then, the total debt, principal and interest, shall at the option of the holder of the mortgage, immediately become due and payable, upon twenty days' notice to the mortgagor. The notice may be given concurrently with any notice of the mortgagor's right to cure existing defaults. Thereafter the mortgage may be foreclosed, as provided in this chapter;

(2)    In the case of foreclosure, that the holder of the mortgage shall recover reasonable attorney fees and actual disbursements necessarily incurred;

(3)    In the case of foreclosure, that the holder of the mortgage is authorized to appoint a receiver to take possession of the mortgaged premises, if the premises are abandoned, or to have a receiver appointed by the circuit court upon sufficient proof being established therefor;

(4)    An agreement for the collection of installment payments for taxes and insurance to be held in escrow, in an account with the mortgagee, until the due dates thereof;

(5)    In the case of foreclosure, and during the period of redemption, that the mortgagor assigns all his rights and interest to the rental or income of the mortgaged premises;

(6)    In the case of foreclosure, that the mortgagor shall pay to the holder of the mortgage the difference between the net proceeds of sale, if less than the total debt due;

(7)    If the mortgaged premises are sold without the prior consent of the mortgagee, that the entire balance owing may at the option of the mortgagee be declared immediately due and payable upon sixty days notice to the mortgagor, and the mortgage foreclosed as provided in this chapter; or

(8)    That in the case of foreclosure by action, the holder of the certificate of sale may apply to the court for a reduction of the redemption period if the property has been abandoned by the mortgagor. If, after notice to the parties as the court directs, the court finds the property has been abandoned, the redemption period may be reduced. The redemption period may not be reduced to less than sixty days from the date of recording the certificate of sale.

The notice requirements of this section shall be satisfied when the notice is deposited in the United States mail, registered or certified mail, return receipt requested, and addressed to the last known address of the mortgagor.

Source: SL 1977, ch 187, § 3; SL 1981, ch 170, § 1; SL 1987, ch 29, § 30; SL 1988, ch 184, § 1.

21-49-14. Forms of mortgages authorized--Address and description requirements not applicable.

Real estate mortgages, in any form, including but not limited to, open end mortgages, collateral real estate mortgages, renegotiated rate mortgages, shared appreciation mortgages, and variable rate mortgages are authorized under the provisions of this chapter. The provisions of § 7-9-7 shall not be applicable to proceedings under this chapter.

Source: SL 1977, ch 187, § 4; SL 1981, ch 170, § 2.

21-49-15. Commencement of foreclosure or satisfaction action--Service of process on nonresident defendant--Required defendants.

Any action for the foreclosure or satisfaction of mortgages under this chapter shall be commenced in the circuit court for the county where the mortgaged property, or some portion thereof, is situated. If a defendant is not a resident of the county, process may be served on him in any other county within the state. All persons having an interest in, or lien on, the mortgaged property as of the date of filing the action shall be named as defendants in the action.

Source: SL 1977, ch 187, § 5; SL 1981, ch 170, § 3.

21-49-16. Service by publication.

If the defendant is a nonresident of the state, or absent or concealed, or if he is a resident of the state and after due diligence cannot be found in the state, service may be made by publication in the manner prescribed by statute or rule of court in ordinary civil actions. If any proper party defendant is deceased, service upon unknown heirs, devisees, legatees, personal representatives, creditors, and other unknown persons who might have a right of redemption from the mortgage, may be made by publication, as provided by § 15-9-9.

Source: SL 1977, ch 187, § 6; SL 1995, ch 167, § 188.

21-49-17. Joinder of other persons liable--Judgment and enforcement of judgment as against mortgagor.

If the mortgage debt is secured by the obligation, or other evidence of debt, of any person other than the mortgagor, the plaintiff may make such other person a party to the action, and the court may render judgment for the balance of such debt remaining unsatisfied, after a sale of the mortgaged property, as well as against such other person as against the mortgagor, and may enforce such judgment as in other cases by execution or other process.

Source: SL 1977, ch 187, § 7.

21-49-18. Other recovery proceedings to be stated in complaint.

In an action for the foreclosure or satisfaction of a mortgage, the complaint shall state whether any proceedings have been had at law or otherwise for the recovery of the debt secured by such mortgage or any part thereof; and if a recovery has been had, whether any and what part thereof has been collected.

Source: SL 1977, ch 187, § 8.

21-49-19. Money judgment as precluding foreclosure unless execution remains unsatisfied.

If it appears that any judgment has been obtained in an action at law for the moneys demanded by such complaint, or any part thereof, no foreclosure proceedings shall be commenced in such case unless an execution against the property of the defendant in such judgment has been issued, and the sheriff or other officer shall have made return that the execution is unsatisfied in whole or in part, and that the defendant has no property other than property mortgaged under this chapter whereon to satisfy such execution.

Source: SL 1977, ch 187, § 9.

21-49-20. Recovery proceedings not allowed pending foreclosure action.

After action for foreclosure shall be commenced, and while it is pending, no proceedings at law shall be had for the recovery of the debt secured by the mortgage.

Source: SL 1977, ch 187, § 10.

21-49-21. Time for defendant's answer.

A defendant in an action for foreclosure shall serve his answer to the complaint of the plaintiff within thirty days after service of the summons.

Source: SL 1977, ch 187, § 11.

21-49-22. Injunction against injury to property--Duration.

The court may by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of the mortgaged property during the existence of a lien or the foreclosure of a mortgage thereon, and until the expiration of the time allowed for redemption.

Source: SL 1977, ch 187, § 12.

21-49-23. Judgment rendered for amount due and costs--Sale of property and delivery to purchaser--Lien priorities.

In an action for foreclosure or satisfaction, a court may:

(1)    Render a judgment against the mortgagor for the amount of the mortgage debt due at the time of the rendition of such judgment, and the costs of the action, including reasonable attorney fees and actual disbursements made,

(2)    Order and decree a sale of the mortgaged property, or such part thereof as may be sufficient to pay the amount adjudged to be due, and costs of sale,

(3)    If deemed necessary, direct in what parcels the property shall be offered, and the order in which they shall be offered and further to direct that if there be no bid for any parcel, such parcel may be sold with any other parcel, not yet sold, in one parcel; and

(4)    Order and compel the delivery of possession of the property to the purchaser.

In no case under this chapter shall the possession of the property so sold be delivered to the person entitled thereto, until after the expiration of the period of redemption, subject however to the rights of any person under a valid assignment of rents, and a receiver in possession thereof. There shall be added to the amount of any such judgment all sums reasonably expended by the mortgagee for the protection and preservation of the mortgaged property or the mortgagee's interest therein. The court shall further determine the priority of any other liens, the owners of which were made a party to the action, and shall have the further power to determine the rights of subsequent liens filed after the commencement of suit.

Source: SL 1977, ch 187, § 13; SL 1981, ch 170, § 4.

21-49-24. Sale by court-appointed officer--Levy not required.

Any sale of mortgaged property shall be made by a person appointed by the court, and shall be made as the court shall direct, in the county where the property, or some part is located. No levy on mortgaged property under the judgment shall be required and the officer may proceed to advertise and sell it upon receipt of the judgment without further proceedings.

Source: SL 1977, ch 187, § 14.

21-49-25. Notice of sale--Contents.

Notice of the sale of such mortgaged property shall be given by publishing it at least once a week for at least two successive weeks in a legal newspaper of general circulation in each of the counties where the property is located. Each notice shall specify:

(1)    The name of the mortgagor, and any assignee;

(2)    The amount claimed to be due;

(3)    The date of the mortgage;

(4)    A description of the property, as described in the mortgage;

(5)    The time, manner and place of sale, as directed by the court; and

(6)    Any other matter as ordered by the court.

Source: SL 1977, ch 187, § 15.

21-49-26. Mortgagee may purchase at sale--Bid required.

The holder of the mortgage may purchase the premises or any part thereof at the foreclosure sale if the holder bids therefor the full amount of the judgment debt, less the sum of the balances due, as of the date of sale, on any prior liens or encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments. In no event, however, may the holder of the mortgage be required to bid a sum in excess of the debt adjudged to be due, with the costs included in the judgment upon which sale was made, and expenses of sale.

Source: SL 1977, ch 187, § 15; SL 1989, ch 191, § 3.

21-49-27. Bid of less than full debt amount--Requirements--Execution for deficiency.

If the holder of the mortgage is not willing to bid the full amount of the judgment debt, and if foreclosure has been commenced by action, such holder shall establish at the time of the trial to the satisfaction of the court, the fair and reasonable value of the mortgaged premises, and the court shall determine the value less the sum of the balances due, as of the date of judgment, on any prior liens or encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments. If the court shall find such fair and reasonable value, less the sum of the balances due, as of the date of judgment, on any prior liens or encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments, to be less than the sum due on the mortgage with costs and disbursements, and expense of sale, the court may by such judgment authorize such holder to bid not less than the value as thus determined, less the sum of the balances due, as of the date of sale, on any prior liens or encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments. If foreclosure has been commenced by advertisement, the mortgagee may seek a deficiency in accordance with § 21-48-14. If foreclosure has been commenced by action and a deficiency remains after the foreclosure sale, such holder shall be entitled to a general execution for such deficiency only upon application to the court.

Source: SL 1977, ch 187, § 16; SL 1981, ch 170, § 5; SL 1989, ch 191, § 4.

21-49-28. Foreclosure as complete satisfaction of debt.

Except as provided in § 21-49-27, such foreclosure shall operate as a complete satisfaction of the debt secured by a mortgage and judgment issued under this chapter.

Source: SL 1977, ch 187, § 17.

21-49-29. Application of sale proceeds.

It shall be the duty of any officer who conducts any such sale to apply the proceeds in the following priority:

(1)    To the payment of the expenses of sale;

(2)    To the payment of the costs included in the judgment upon which sale was made;

(3)    To the discharge of the debt adjudged to be due;

(4)    To pay the surplus, if any, into court for the use of the defendants subject to the order of the court.

Source: SL 1977, ch 187, § 18.

21-49-30. Certificate of sale to purchaser--Contents--Recording--Commencement of redemption period.

The person making such 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)    The legal description of the property sold;

(3)    The price bid for each distinct parcel; and

(4)    The whole price paid.

The certificate shall be executed and acknowledged and shall be recorded in the office of the register of deeds where the property is located within twenty days from the date of sale. The period of redemption as provided in this chapter shall commence on the date that the certificate is recorded.

Source: SL 1977, ch 187, § 19.

21-49-31. Redemption defined.

Redemption as provided in this chapter is the right to repay the total amount of the judgment, and any deficiency as determined by the court, together with such additional sums as prescribed by § 21-49-34.

Source: SL 1977, ch 187, § 20.

21-49-32. Waste of property restrained during redemption period.

Until the expiration of the time for redemption, the court may restrain the commission of waste on the property upon the application of the purchaser or the judgment creditor.

Source: SL 1977, ch 187, § 21.

21-49-33. Right of judgment debtor and lien holders to redeem.

The judgment debtor or successor, and the holders of any lien, legal or equitable, subsequent and junior to that from which redemption is to be made, on the property sold, or any part thereof, shall have the right to redeem from such sale during the redemption period.

Source: SL 1977, ch 187, § 22.

21-49-34. Payments by persons redeeming.

Such persons may redeem from the purchaser by paying the person making the sale the amount of the purchase price, plus any sums paid by the purchaser to protect his interest in such property in particular, but not in limitation thereof, for such items as taxes, insurance, maintenance expenses reasonably incurred to preserve the value of the mortgaged premises, or payments on a superior lien, together with interest on the total judgment at the same rate of interest as provided in the mortgage. If the purchaser also is the holder of another lien upon the property foreclosed, or part thereof, other than the mortgage upon which sale was made, which additional lien is superior to the lien of the person redeeming, the person redeeming shall likewise pay the amount of such additional lien including interest at the rate provided by the lien or at the legal rate to the date of payment.

Source: SL 1977, ch 187, § 23.

21-49-35. Notice of redemption--Form--Recording.

A written notice of redemption shall be served on the purchaser and the person making the sale by the person seeking to redeem. If such person redeem as holder of a judgment, notice shall be a certified copy thereof. If such person redeem as holder of a mortgage or other lien, notice shall be a certified copy of the record thereof, together with a certified copy of any assignment to establish his claim, and an affidavit showing the amount then actually due on the lien; and at the same time shall pay to the person making the sale the amount prescribed by § 21-49-34. If such person redeem as a successor in interest of a judgment debtor, notice shall be proof of interest in such property.

A duplicate of the notice of redemption with proof of service shall be forthwith filed for record with the register of deeds of the counties where the property is located.

Source: SL 1977, ch 187, § 24.

21-49-36. Certificate of redemption--Contents.

Upon such redemption, the person who made the sale shall execute and deliver to the person making redemption a certificate of redemption duly acknowledged setting forth the fact of such redemption, the amount paid, specifying the items required to be paid under the terms of this chapter and the date of such redemption.

Source: SL 1977, ch 187, § 25.

21-49-37. Recording certificate of redemption.

The certificate of redemption shall be filed for record in the office of register of deeds of the counties where the property is located.

Source: SL 1977, ch 187, § 26.

21-49-38. Deed issued after short redemption or abandonment period--Maximum period.

Unless the property is redeemed from the sale within one hundred eighty days or within sixty days if the property is abandoned, from the recording of the certificate of sale, it is the duty of the person who made the sale to execute and deliver a deed of the property sold to the purchaser, or to any person who may have acquired the title and interest of the purchaser. In no event may redemption be extended beyond the period of one hundred eighty consecutive days, computed from the date the certificate is recorded.

Source: SL 1963, ch 236, § 4; SDCL, § 21-49-9; SL 1977, ch 187, § 27; SL 1988, ch 184, § 2.