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35-22 Foreclosure of Mortgages of Real Property by Advertisement

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CHAPTER 35-22FORECLOSURE OF MORTGAGES OF REAL PROPERTY BY ADVERTISEMENT35-22-01.Foreclosure under power of sale - Prohibition - Exception.Everymortgage of real property held by the state or any of its agencies, departments, or<br>instrumentalities, containing a power of sale, upon default being made in the conditions of such<br>mortgage, may be foreclosed by advertisement in the manner provided by law.No othermortgage of real property shall be so foreclosed, but must be foreclosed by action.35-22-02.Right to foreclose - Prerequisites - Recording.To entitle a party toforeclose by advertisement, it is requisite:1.That default in a condition of the mortgage has occurred by which the power of sale<br>has become operative;2.That no action or proceeding has been instituted at law to recover the debt then<br>remaining secured by the mortgage, or any part thereof, or if any action or<br>proceeding has been instituted, that the same has been discontinued or that an<br>execution upon the judgment rendered therein has been returned unsatisfied in<br>whole or in part; and3.That the mortgage containing the power of sale has been recorded and, if it has<br>been assigned, that all the assignments thereof have been recorded.35-22-03.Notice of intention to foreclose - Service - Payment - Failure tocommence foreclosure within ninety days. Before any real estate mortgage may be<br>foreclosed by advertisement, a notice of intention to foreclose such mortgage must be served on<br>the record title owner of the real estate described in the mortgage unless the service thereof is<br>excused by section 32-19-23. Such notice must be in the form specified in section 32-19-21, and<br>must be served as provided for the service of such notice in foreclosure by action as prescribed<br>in chapter 32-19, and the proof of service thereof, or the proof of death of the record title owner,<br>must be recorded with the notice and certificate of sale. If the owner of the land or the owner's<br>legal representative, before the expiration of thirty days from the service of the notice of intention<br>to foreclose the mortgage, performs or complies with the conditions of the mortgage, the<br>mortgage remains in full force and effect the same as if no default had occurred. If the notice of<br>sale is not published for the first time within ninety days after the service of the notice of intention<br>to foreclose, all proceedings under the notice of intention to foreclose are deemed discontinued.35-22-04. Foreclosure by advertisement enjoined - Procedure. When the mortgageeor the mortgagee's assignee has served notice of intention to foreclose a mortgage, and within<br>the period provided by such notice it is made to appear by the affidavit of the mortgagor, or any<br>person claiming under the mortgagor, or the mortgagor's agent or attorney, to the satisfaction of<br>a judge of the district court of the county where the mortgaged property is situated, that the<br>mortgagor has a legal counterclaim or any other valid defense against the collection of the whole<br>or any part of the amount claimed to be due on such mortgage, which proof must be made by<br>affidavit stating the facts, but not on information and belief, such judge, by an order to that effect,<br>may enjoin the mortgagee or the mortgagee's assignee from foreclosing the mortgage by<br>advertisement and may direct that all further proceedings for the foreclosure thereof be had in the<br>district court having jurisdiction of the subject matter. After the expiration of the period provided<br>by the notice of intention, an order enjoining the foreclosure by advertisement shall be made only<br>on motion or order to show cause. Notice of such motion, together with the affidavit used in<br>support thereof, must be served upon the attorney or agent of the mortgagee or assignee in the<br>same manner as service of other notices of motion, not less than eight days before the hearing<br>thereon. The affidavit in support of the motion must state the facts upon which the application is<br>made, may not be on information and belief, and must disclose a legal counterclaim or other<br>valid defense to the collection of the whole or some part of the amount claimed to be due on the<br>mortgage. Upon the hearing of the motion, the judge may enjoin the foreclosure of the mortgage<br>by advertisement in the same manner as if the application had been made ex parte within thePage No. 1period of the notice of intention to foreclose. Service of the restraining order may be made upon<br>the attorney or agent of the mortgagee or assignee, if the order was obtained ex parte, or if<br>obtained on motion or order to show cause, it may be served upon the attorney or agent or upon<br>the sheriff of the county where the foreclosure sale is to be had. If the notice of intention does<br>not disclose the address of a resident agent or attorney, the order may be served upon such<br>sheriff.35-22-05. Foreclosure for installments - Separate proceedings - Redemption. If amortgage is given to secure the payment of money by installments, each of the installments<br>mentioned in the mortgage must be taken and deemed to be a separate and independent<br>mortgage, and the mortgage for each of the installments may be foreclosed in the same manner<br>and with like effect as if a separate mortgage were given for each of the installments, and a<br>redemption from any such sale has the same effect as if the sale for the installment had been<br>made upon a prior independent mortgage.35-22-06. Notice - Published six times. Notice that the mortgage will be foreclosed bya sale of the mortgaged premises or some part thereof must be given by publishing the same six<br>times, once in each week for six successive weeks, in a newspaper published in the county<br>where the premises intended to be sold, or some part thereof, are situated, if there is one, and if<br>not, then in some newspaper published in an adjoining county.35-22-07.Notice of sale - Form.The notice of sale must be in substantially thefollowing form:Noticeisgiventhatthatcertainmortgage,executedanddeliveredby____________, mortgagor, to ____________, mortgagee, dated ____________, ____,<br>and filed for record in the office of the recorder of the county of __________ and state of<br>North Dakota on __________, ____, and recorded in book ____________ of<br>____________ at page _________ (and assigned by said mortgagee to __________),<br>will be foreclosed by a sale of the premises in such mortgage and hereinafter described<br>at the front door of the courthouse in the county of ____________ and state of North<br>Dakota at the hour of __________ o'clock ___m., on ______________, ______, to satisfy<br>the amount due upon such mortgage on the day of sale. The premises described in such<br>mortgage and which will be sold to satisfy the same are described as follows: (here insert<br>description and street address, if any).There will be due on such mortgage at the date of sale the sum of ____________dollars.The failure to include the street address in the notice does not affect the validity of the notice.35-22-08. Sale to be conducted at public auction - Time and place. The sale mustbe at public auction between the hours of nine a.m. and the setting of the sun on that day, at the<br>front door of the courthouse in the county in which the premises to be sold or some part of them<br>are situated, and must be made to the highest bidder by the sheriff of the county, acting in person<br>or by deputy.35-22-09. Sale as unit or by tracts. If the mortgaged premises consist of a single farmor tract, the property may be sold as a unit. If the premises consist of several distinct farms or<br>tracts, the same must be sold separately, and only such farms or tracts may be sold as are<br>necessary to satisfy the amount due on the mortgage at the date of the sale, including the costs<br>and expenses allowed by law.35-22-10. Mortgagee, assigns, or representatives may purchase. The mortgagee,the mortgagee's assigns, or the legal representatives of any of them, fairly and in good faith may<br>purchase the premises advertised or any part thereof at the sale.35-22-11. Certificate of sale - Contents - Recordation within sixty days after sale -Effect of certificate. When any real property is sold by virtue of a power of sale contained inPage No. 2any mortgage, the officer making the sale immediately shall give to the purchaser a certificate of<br>sale containing all of the following:1.A particular description of the real property sold.2.The price bid for each distinct lot or parcel.3.The whole price paid.4.The costs and fees for making the sale.The certificate must be executed and acknowledged and must be recorded in the office of the<br>recorder of the county wherein the real property is situated within sixty days after the date of the<br>sale. The sheriff's certificate, or a copy thereof certified by the recorder, is evidence of the facts<br>therein recited and contained.35-22-12.Costs - Disbursements.The person foreclosing a mortgage byadvertisement is entitled to the person's costs and disbursements out of the proceeds of the sale.35-22-13. Foreclosure - Attorney's and sheriff's fees - Division of attorney's feesunlawful. 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