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Montana The Process Real estate may be foreclosed on by filing a
lawsuit or by conducting a non-judicial private foreclosure sale in
compliance with Montana law. Montana has some unusual mortgage provisions
that have been largely replaced by the Small Tract Financing Act of Montana
for homesteads and small business real estate. If the tract of land is 15
acres or less, then the lender may use a trust deed that provides for a
relatively quick and inexpensive foreclosure procedure. Unless the Small
Tract Financing Act applies, then the lender must foreclose either by filing
a lawsuit and seeking an order of sale, or else following a special
foreclosure procedure. Under Montana's special foreclosure procedures, if
applicable, the lender or person conducting the foreclosure sale must
publish, post and serve a foreclosure notice at least 30 days in advance of
the foreclosure sale. The notices must be advertised in a newspaper where the
real estate is located, and if there is no newspaper, then by posting the
notices in five conspicuous places in the county. Two other notices must be
posted in conspicuous places in the township in which the land is situated,
and one such notice must be in such a conspicuous place as will be most
likely to give notice to all persons of the sale, and one must be posted at
the front door of the county courthouse. The notice of sale must be further
served on the occupant of the property to be foreclosed on and upon every
person claiming an interest in the property who may be found in the state of
Montana. Small Tract Financing Act Foreclosure Procedure If the tract of land is less than 15 acres, then
the Small Tract Financing Act applies to the foreclosure under the power sale
provisions of a deed of trust. If there is a default on a loan obligation
secured by the deed of trust, and then recorded a notice of sale, duly
executed and acknowledged by the trustee named in the deed of trust, which
sets forth l proper information, then the foreclosure may be done out of
court. The contents of the foreclosure notice must include: The names of the borrower, lender and trustee. A description of the property in foreclosure. A description of the default causing the
foreclosure. The book and page where the trust deed is
recorded. The sum owing on the defaulted loan. The trustee's or lender's intention to sell the
property or pay off the debt. The date of the sale, which shall be not less than
120 days subsequent to the date the foreclosure notice is filed for record. The time of the sale, which shall be between the
hours of 9 A.M. and 4 P.M., mountain standard time. The place of the sale, which shall be at the
courthouse in the county in which the property is located, or at the office
or usual place of business of the trustee if it's within the county in which
the property is located. Mailing of Foreclosure Notices The trustee, at least 120 days before the date
fixed for the foreclosure sale, must mail foreclosure notices by registered
or certified mail to the following persons: The borrower, at the borrower's last known address
Any person who recorded a request for notice Any record title owner as of the notice filing
date Posting At least 20 days before the date fixed for the
trustee's sale, a copy of the recorded notice of sale must be posted in a
conspicuous place on the property to be sold. The trustee may request the
sheriff or constable of the county to post the notice. A copy of the notice
shall be published in a newspaper of general circulation in the county in
which the property is located once per week for three successive weeks. The
posting and the last publication shall be made at least 20 days before the
date fixed for the trustee's sale. Recording On or before the date of the sale the trustee must
record an affidavit stating that the requirements of mailing, posting and
publication have been met. Sale Procedures At the date, time and place specified for
foreclosure in the notice of sale, the trustee or his or her attorney shall
sell the property at public auction to the highest bidder. The sale may be
postponed up to 15 days by a proclamation made at the time the foreclosure
sale would otherwise have taken place. The purchaser must pay the high bid
price in cash. In return, the purchaser will receive a trustee's deed. If the
purchaser fails to pay, then the trustee can resell the proper at any time to
the highest bidder. The trustee may reject any further bidding by a bidder
who fails to produce cash in response to winning a bid. Redemption Although the old statutes provided for a one year
right of redemption, the Small Tract Financing Act eliminates the borrower's
right to redeem after a properly conducted foreclosure sale. Deficiency Montana does not allow a deficiency judgment
unless the foreclosure was done by filing a lawsuit and the sale proceeds
were insufficient to pay the judgment. Small Tract Financing Act foreclosures
done out of court by advertisement do not give the lender any right to
collect a deficiency from the borrower. Possession The lender may obtain possession on the tenth day
following the sale. Any person still in the house or property is to be
treated as a tenant at will (a nonpaying tenant |
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