§ 4532 - Power of sale; procedures; notices; forms
§ 4532. Power of sale; procedures; notices; forms
(a) Notice of intention to foreclose. At least 30 days prior to publication of a notice of sale, notice of intention to foreclose in a writing complying with this section must be sent to the mortgagor by registered or certified mail at his or her last known address. The writing must state, in a manner calculated to make the mortgagor aware of the situation:
(1) the mortgage to be foreclosed;
(2) the mortgage condition claimed to have been breached;
(3) that the mortgage holder has accelerated maturity of the debt secured by the mortgage, if that is the case;
(4) the amount to be paid or other action necessary to cure, and the time within which the cure must take place, which shall be not less than 30 days after the date of the notice of intention to foreclose;
(5) the intention of the mortgage holder to foreclose by exercising the power of sale contained in the mortgage, if the breach of the mortgage condition is not cured within the time and in the manner specified in the notice; and
(6) that the mortgagor will be entitled to be sent notice of the foreclosure sale at least 60 days prior to the sale and to redeem the premises at any time prior to the sale by paying the full amount due under the mortgage, including the costs and expenses of the sale.
(b) Notice of intent to foreclose form. The following form of notice of intent to foreclose may be used and may be altered as circumstances require; but nothing herein shall be construed to prevent the use of other forms except that all notices required under subsection (a) of this section shall comply with the provisions of subsection (a) of this section:
PLEASE TAKE NOTICE that you have defaulted under Loan No. __________ by [mortgage condition breached] required by your Promissory Note dated ____________, 19____. This default also constitutes a breach of the Mortgage, dated ____________, 19____ , recorded in Volume ______ at Page ________ of the Land Records, which secures the Loan. As a result of your default, we have accelerated the maturity of all indebtedness due on the Loan and secured by the Mortgage, totaling $ ____________ as of today's date. In order to cure this default, you must pay to us on or before _____________ [a date not less than thirty (30) days after the date of this Notice] the sum of $ ____________ , plus interest at the rate of $ ______ per day to the date of payment. If you do not cure this default by making the payments required, it is our intention to foreclose by exercising the power of sale contained in the above Mortgage. You will be sent notice of the foreclosure sale at least sixty (60) days prior to the sale, and you will be entitled to redeem your interest in the mortgaged property at any time prior to the sale by paying the full amount due under the Mortgage, including the costs and expenses of the sale. If you do not cure the default or redeem your interest, your ownership of the mortgaged property will be terminated.
(c) Publication of notice of sale. Notice of sale shall be published once in each of three successive weeks, in a newspaper of general circulation in the town where the land lies, the first publication to be not less than 21 days before the day of sale.
(d) Recording notice of sale in land records. In the case of a nonjudicial foreclosure by power of sale under section 4531a(b) of this title, the mortgage holder shall record the notice of sale in the land records of the town or city where the land lies not less than 60 days prior to the sale. The filing of the notice of the sale shall be in lieu of filing a foreclosure complaint under section 4523 of this title and shall be sufficient notice of the pendency of the nonjudicial foreclosure by power of sale to all persons who acquire any interest or lien in the mortgaged property between the dates of recording the notice of sale and recording the foreclosure deed. Without further notice or service, those persons shall be bound by the power of sale and the foreclosure deed and shall be foreclosed from all rights or equity in the mortgaged property.
(e) Service of notice of sale. In all cases, a copy of the notice of sale shall be served on the mortgagor or his or her representative in interest, or sent by registered or certified mail addressed to the mortgagor or such representative at his or her last known address, or to such person and address as may be agreed upon in said mortgage, at least 60 days before said sale. The term "mortgagor" shall mean the mortgagor or the then record owner of the premises. A copy of the notice of sale shall also be sent to any tenant lawfully occupying the premises and to any person having a recorded interest in the premises of record which will be foreclosed by the sale, provided that the interest is recorded in the applicable land records prior to the recording of the notice of sale in the case of a nonjudicial foreclosure or the recording of the foreclosure complaint in the case of judicial foreclosure. The notice shall be sent not less than 60 days before the sale. Notice to a tenant shall be sufficient if mailed to the tenant by first class mail at the address specified in the lease, if recorded, or to the "occupant" at the address of the leased premises, if the lease is not recorded. Compliance with the notice requirements of this section shall be sufficient and the failure to give additional notice shall not be grounds to invalidate the sale.
(f) Notice of sale form. The following notice of sale form may be used and may be altered as circumstances require; but nothing herein shall be construed to prevent the use of other forms except that all notices relating to property subject to the provisions of section 4531a(b) of this title shall include the language specified in subsection (j) of this section:
By virtue and in execution of the Power of Sale contained in a certain mortgage given by ______________ to ______________ dated ______________ and recorded in Volume ______________ Page ______________ of the land records of the town of _____________ , of which mortgage the undersigned is the present holder,
(If by assignment, or in any fiduciary capacity, give reference.) for breach of the conditions of said mortgage and for the purpose of foreclosing the same will be sold at Public Auction at ____________ o'clock, ____ M. on the _____________ day of A.D. _____________ 19____ , ____________ (place) _____________ all and singular the premises described in said mortgage,
(In case of partial releases, state exceptions.)
To wit: (Legal description of the premises.)
Terms of sale: (State here the amount, if any, to be paid in cash by the purchaser at the time of the sale, and the schedule for payment of the balance.)
The mortgagor is entitled to redeem the premises at any time prior to the sale by paying the full amount due under the mortgage, including the costs and expenses of the sale.
Other terms to be announced at the sale or inquire at ______________________________
(Signed) ______________________________________________________
______________________________________________________
Mortgagee (may be signed by
mortgagee's attorney)
______________________ 19____
(g) Location of sale. The sale shall be held on the premises where the real estate is located except it may be held elsewhere if another place for sale is directed by the court or, in the case of nonjudicial foreclosure, agreed to in writing by the mortgagor and the mortgagee not less than 60 days nor more than 90 days before the sale. At the sale, the premises shall be sold to the highest bidder in conformance with the terms of sale set forth in the foreclosure notice. The mortgagor is entitled to receive any surplus from the proceeds of the sale and the mortgagor shall be liable for any deficiency as determined by a subsequent action for a deficiency judgment. The mortgagee or person conducting the sale may interplead any sale proceeds in excess of the indebtedness and expenses secured by the mortgage in the event there are any liens of record against the real estate.
(h) Who may be a purchaser. A mortgagee selling under a power contained in the mortgage, the mortgagor or any subsequent lien holder may be a purchaser at the sale.
(i) Right of redemption by mortgagor. The mortgagor is entitled to redeem the premises at any time prior to the sale by paying the full amount due under the mortgage, including the costs and expenses of the sale.
(j) Notice of foreclosure sale. In the case of a nonjudicial foreclosure by power of sale subject to section 4531a(b) of this title, notice of the sale as served or mailed shall include the following language: "The mortgagor is hereby notified that at any time before the foreclosure sale, the mortgagor has a right to petition the superior court for the county in which the mortgaged premises are situated, with service upon the mortgagee, and upon such bond as the court may require, to enjoin the scheduled foreclosure sale. Failure to institute such petition and complete service upon the foreclosing party, or their agent, conducting the sale prior to sale shall thereafter bar any action or right of action of the mortgagor based on the validity of the foreclosure, the right of the mortgage holder to conduct the foreclosure sale, or compliance by the mortgage holder with the notice requirements and other conditions of section 4532 of Title 12. An action to recover damages resulting from the sale of the premises on the date of the sale may be commenced at any time within one year following the date of the sale, but not thereafter." The mortgagor shall have the rights contained in the notice provided for in this subsection. (Added 1973, No. 226 (Adj. Sess.), § 2; amended 1993, No. 179 (Adj. Sess.), § 2.)