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 the property to pay off the balance on loan in the event of 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 before the date set for sale, the lender must serve a written copy of the notice of foreclosure sale on the borrower and any lienholder 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.
Redemption Rights Of Borrower
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 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.
