S.D. Codified Laws § 21-48A-1

Current through the 2024 Legislative Session

Section 21-48A-1 - Voluntary foreclosure procedure-Notice

Upon the mutual written agreement of the mortgagor and mortgagee, a real estate mortgage may be foreclosed pursuant to this chapter by doing all of the following:

(1) The mortgagor shall convey to the mortgagee, subject to acceptance, all interest in the real property subject to the mortgage;

(2) The mortgagee shall accept the mortgagor's conveyance and waive any rights to a deficiency against the mortgagor arising from the mortgage;

(3) The mortgagee shall have immediate possession of the real property;

(4) The mortgagor and mortgagee shall file a jointly executed document with the register of deeds stating that the mortgagor and mortgagee have elected to follow the alternative voluntary foreclosure procedures pursuant to this chapter;

(5) The mortgagee shall send by certified mail a notice of the election to all junior lienholders as of the date of the conveyance under subdivision (1) of this section, determined from the records of the applicable clerk of courts and register of deeds, stating that the junior lienholders have sixty days from the date of mailing to exercise any rights of redemption. Such notice shall also include the sum necessary to redeem the premises. Such sum may include the principal debt, interest thereon at the applicable rate, and all other payments made by the mortgagee and reasonably incurred to protect the first mortgagee's mortgage, and to preserve and protect the property, including reasonable attorney's fees;

(6) On the date of the written agreement provided in this section, the mortgagee shall furnish the mortgagor a completed form in duplicate, captioned "Disclosure and Notice of Cancellation". The form shall be attached to said written agreement, shall be in conspicuous type and shall be in the following general form:

"DISCLOSURE AND NOTICE OF CANCELLATION

_________________________

(enter date of transaction)

South Dakota foreclosure law requires that you have the right to redeem your property from foreclosure. If you agree to this voluntary foreclosure you will be giving up your right to redeem your real estate.

Under foreclosure law, if your mortgage lender does not receive enough money to cover what you owe when the property is sold, you could be required to pay the deficiency. If your mortgage lender receives more money than you owe, the difference must be paid to you. If you agree to this voluntary foreclosure you will not have to pay any deficiency but you also will not be paid any excess, if any.

NOTE: There may be other advantages and disadvantages, including an effect on your income tax liability. If you have any question or doubts, you are encouraged to obtain competent advice.

You may cancel this transaction, without penalty or obligation, within five business days from the above date.

This transaction is entirely voluntary. You cannot be required to sign the attached foreclosure agreement.

This voluntary foreclosure agreement will become final unless you sign and deliver or mail this notice of cancellation to

__________________ before midnight of __________________

(name of mortgagee) (enter proper date).

I HEREBY CANCEL THIS TRANSACTION.

______________________________ _____________________________________

DATE SIGNATURE"

SDCL 21-48A-1

SL 1991, ch 185, § 1.