South Dakota Foreclosure Law Summary
Stop South Dakota Foreclosure
Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of Trust, Mortgage
- Timeline: Typically 90 days
- Right of Redemption: Varies
- Deficiency Judgments Allowed: Varies
In South Dakota, lenders may foreclose on deeds of trusts or mortgages
in default using either a judicial or non-judicial foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure, which involves filing a lawsuit
to obtain a court order to foreclose, is used when no power of sale is present in
the mortgage or deed of trust. Generally, after the court declares a foreclosure,
your home will be auctioned off to the highest bidder.
Non-Judicial Foreclosure
The non-judicial process of foreclosure is used when a power of
sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the
clause in a deed of trust or mortgage, in which the borrower pre-authorizes the
sale of property to pay off the balance on a loan in the event of the their default.
In deeds of trust or mortgages where a power of sale exists, the power given to
the lender to sell the property may be executed by the lender or their representative,
typically referred to as the trustee. Regulations for this type of foreclosure process
are outlined below in the "Power of Sale Foreclosure Guidelines".
Power of Sale Foreclosure Guidelines
If the deed of trust or mortgage contains a power of sale clause
and specifies the time, place and terms of sale, then the specified procedure must
be followed. Otherwise, the non-judicial power of sale foreclosure is carried out
as follows:
- A foreclosure notice must be published once a week for four
successive weeks in a newspaper of general circulation in the county where the
premises are located.
- At least twenty-one days prior to the date set for sale,
the lender must serve a written copy of the notice of foreclosure sale on the
borrower and any lien holder whose interest in the property being foreclosed
would be affected by the foreclosure.
- Said notice must contain the names of the borrower and lender,
the mortgage date, the amount due, a description of the premises and the time
and place of sale.
- The sale must be made by the sheriff of such county, or his
deputy, between the hours of 9:00 am and 5:00 pm to the highest bidder. Any
person including the mortgagee (lender) may bid at the sale. The winning bidder
will receive a certificate of sale.
- The sale may be postponed, from time to time, by inserting
a notice of such postponement, as soon as possible, in the newspaper in which
the original advertisement was published, and continuing such publication until
the time when the postponed sale occurs.
If the property is 40 acres or less, and the mortgage contains
a power of sale clause, then a 180-day period of redemption exists. If the property
is abandoned, the time period is reduced to 60 days. Generally, unless special short-term
redemption mortgage provisions apply, borrowers may redeem within one year of the
date of sale.
More information on South Dakota foreclosure laws.
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