Chapter 4 - Foreclosure Of Mortgages And Power Of Sale
CHAPTER 4 - FORECLOSURE OF MORTGAGES AND POWER OF SALE
34-4-101. Application.
Theprovisions of this act shall apply to all mortgages containing a power of saleexecuted prior to the passage thereof, not having been foreclosed, and nothingin this act contained shall be construed as limiting the power of parties to amortgage to provide therein as they may see fit as to the manner of foreclosureand sale, and when such provision is made, foreclosure and sale may be made inaccordance therewith, or in accordance with the provisions of this act.
34-4-102. Foreclosure by advertisement.
(a) Every mortgage of real estate, containing therein a powerof sale upon default being made in any condition thereof, may be foreclosed byadvertisement within ten (10) years after the maturing of such mortgage or thedebt secured thereby, or after the recording thereof, in the cases and in themanner hereinafter specified.
(b) The time within which such proceeding may be commencedunder the power of sale shall begin to run:
(i) As to any mortgage executed after May 21, 1945, from thedate of such mortgage, unless the maturity of the debt or obligation secured bysuch mortgage be clearly stated in or is otherwise readily ascertainable fromthe provisions of such mortgage;
(ii) (A) As to any mortgage executed prior to May 21, 1945, atthe latest of the following dates:
(I) The tenth anniversary of the maturity of the debt orobligation secured by such mortgage if clearly stated in or otherwise readilyascertainable from the provisions of the mortgage;
(II) The tenth anniversary of the recording of the mortgage if nosuch maturity date is clearly stated in or readily ascertainable from theprovisions of the mortgage;
(III) The stated, renewed, or extended maturity date recorded onor before December 31, 1971, in the manner provided in subdivision (B)(II) ofthis paragraph.
(B) The owner and holder of any debt or obligation secured by amortgage executed prior to May 21, 1945, the maturity date of which either:
(I) Is not clearly stated or otherwise readily ascertainable;or
(II) Has been renewed or extended by agreement, payment, orother act of the debtor, may, on or before December 31, 1971, record in theoffice of the county clerk in the county in which such real estate is locatedeither:
(1) An agreement signed and acknowledged by the debtor as aconveyance of real estate, stating the agreed, renewed or extended maturitydate of such debt or obligation; or
(2) An affidavit of the owner and holder of such debt orobligation, stating such maturity date and the date, form or manner of theagreement, payment or other act of the debtor fixing such date.
(c) No mortgage in which the maturity of the debt or obligationis not clearly stated or otherwise readily ascertainable, which was recorded onor before May 21, 1945, and for which no stated, renewed or extended maturitydate is recorded on or before December 31, 1971, may be foreclosed byadvertisement after December 31, 1971; and no such mortgage recorded after May21, 1945, may be foreclosed by advertisement commenced more than ten (10) yearsafter the date of such recording.
34-4-103. Prerequisites to foreclosure.
(a) To entitle any party to give a notice as hereinafterprescribed and to make such foreclosure, it is requisite:
(i) That some default in a condition of such mortgage hasoccurred by which the power to sell became operative;
(ii) That no suit or proceeding has been instituted at law torecover the debt then remaining secured by such mortgage, or any part thereof,or if any suit or proceeding has been instituted, that the same has beendiscontinued, or that an execution upon the judgment rendered therein has beenreturned unsatisfied in whole or in part;
(iii) That the mortgage containing the power of sale has beenduly recorded; and if it has been assigned, that all assignments have beenrecorded; and
(iv) That written notice of intent to foreclose the mortgage byadvertisement and sale has been served upon the record owner, and the person inpossession of the mortgaged premises if different than the record owner, bycertified mail with return receipt, mailed to the last known address of therecord owner and the person in possession at least ten (10) days beforecommencement of publication of notice of sale. Proof of compliance with thissubsection shall be by affidavit.
34-4-104. Publication and service of notices; generally.
(a) Notice that the mortgage will be foreclosed by a sale ofthe mortgaged premises, or some part of them, shall be given by publishing thenotice for four (4) consecutive weeks, at least once in each week, in anewspaper printed in the county where the premises included in the mortgage andintended to be sold, or some part of them, are situated, if there be one; andif no newspaper be printed in the county, then notice shall be published in apaper printed in the state and of general circulation in the county. Prior tofirst date of publication, a copy of the notice shall be served by certifiedmail with return receipt requested upon the record owner, the person inpossession of mortgaged premises, if different than the record owner, and allholders of recorded mortgages and liens subordinate to the mortgage beingforeclosed, which appear of record at least twenty-five (25) days before thescheduled foreclosure sale. The notice shall be sent to the last known addressfor the addressee, which shall be the address set forth in the mortgage or lienfiled of record unless another address has been recorded in the real estaterecords or has been provided to the foreclosing mortgagee or lienholder. Proofof compliance with this section shall be made by affidavit of an authorizedrepresentative of the foreclosing mortgagee or lienholder. A person or entitywho acts in reliance upon the affidavit without knowledge that therepresentations contained therein are incorrect shall not be liable to anyperson for so acting and may assume without inquiry the existence of the factscontained in the affidavit.
(b) If there are sale proceeds in excess of the amountnecessary to pay the foreclosing mortgagee, judgment creditor or other lienorin full, then within ten (10) business days following the sale of real estateby foreclosure, the foreclosing mortgagee or lienholder shall serve a copy ofthe sale results to the record owner of the mortgaged premises and all holdersof recorded mortgages and liens subordinate to the mortgage or lien beingforeclosed. Sale results shall be sent by certified mail with return receiptrequested to the last known address for the addressee, which shall be theaddress set forth in the mortgage or lien filed of record unless anotheraddress has been recorded in the real estate records or has been provided inwriting to the foreclosing mortgagee or lienholder. The sale results shallinclude the amount due the foreclosing mortgagee or lienholder as of the dateof sale, the name of the successful bidder and the amount of the successfulbid. If the certificate of sale awarded to the successful bidder includes therequired information, the foreclosing mortgagee or lienholder may comply withthis section by serving a copy of the certificate of sale.
34-4-105. Publication of notice; contents.
(a) Every such notice shall include:
(i) The names of the mortgagor and of the mortgagee and theassignee of the mortgage if any;
(ii) The date of the mortgage and when recorded;
(iii) The amount claimed to be due thereon at the date of thenotice;
(iv) A description of the mortgaged premises, conformingsubstantially with that contained in the mortgage;
(v) The time and place of sale; and
(vi) A statement that "The property being foreclosed uponmay be subject to other liens and encumbrances that will not be extinguished atthe sale and any prospective purchaser should research the status of titlebefore submitting a bid."
34-4-106. Time, place and manner of sale generally; mortgagee,judgment creditor or lienor shall be present or waive.
Thesale shall be at public vendue, between the hour of ten (10:00) o'clock in theforenoon, and five (5:00) o'clock in the afternoon, at the front door of thecourthouse, or the place of holding the district court of the county within thecounty in which the premises to be sold, or some part of them, are situated,and shall be made by the person appointed for that purpose in the mortgage orby the sheriff or deputy sheriff of the county, to the highest bidder. Thesheriff or deputy sheriff shall not hold the sale unless the foreclosingmortgagee, judgment creditor, other foreclosing lienor or an authorized agentof the foreclosing party is present at the sale or has previously waived to thesheriff conducting the sale the right to appear and bid at the sale. Thesheriff conducting the sale shall not be considered to be the authorized agentof the foreclosing party unless the foreclosing party has given the sheriff aspecified opening bid to be presented by the sheriff on behalf of theforeclosing party and the sheriff actually presents the opening bid. Anyforeclosure sale conducted without complying with the terms of this section isvoid, in which case the mortgage, power of sale, judgment or other lien whichis the subject of the voided sale is not extinguished or exhausted, but may beproperly foreclosed in a subsequent foreclosure sale in compliance withapplicable law.
34-4-107. Manner in which distinct tracts or lots sold.
Ifthe mortgaged premises consist of distinct tracts or lots, they shall be firstoffered for sale separately, and no more tracts or lots shall be sold thanshall be necessary to satisfy the amount due on such mortgage at the date ofthe notice of sale, with interest and costs and expenses allowed by law;provided, however, that in the event the aggregate of bids on such distincttracts or lots is not sufficient to satisfy said amount due, all such distincttracts or lots shall be offered and sold as a whole.
34-4-108. Mortgagee may purchase; by whom sale made; mortgagee,judgment creditor or lienor shall be present or waive.
Themortgagee, his assigns, or his or their legal representatives may fairly and ingood faith, purchase the premises sold upon foreclosure of any mortgage byadvertisement under power of sale or any part thereof, at the sale; andwhenever the mortgage shall provide for the mortgagee to sell the premises atthe foreclosure sale, notwithstanding the provision, the sale may be made bythe sheriff, or deputy sheriff, or by the mortgagee at the option of thelatter. The sale shall be postponed, if the foreclosing mortgagee, judgmentcreditor or other foreclosing lienor, or an authorized agent of the foreclosingmortgagee, judgment creditor or other foreclosing lienor, is not present at thesale or has not previously waived in writing the right to appear and bid at thesale.
34-4-109. Postponement of sale.
Aforeclosure sale may be postponed from time to time by inserting a notice ofthe postponement as soon as practicable in the newspaper in which the originaladvertisement was published and continuing the publication until the time towhich the sale shall be postponed, at the expense of the party requesting thepostponement, provided that the original advertisement is published at leastonce a week, over four (4) consecutive weeks, and the notice of postponement ispublished at least once a week, over two (2) consecutive weeks.
34-4-110. Successor to officer making sale may execute conveyance.
Ifthe term of service of the officer who makes sale of any lands and tenements asprovided in chapter 243 of the Wyoming Compiled Statutes of 1910 expires, or ifsuch officer die, be absent or unable for any cause to make a deed ofconveyance of the property sold, any successor of such officer may execute suchconveyance.
34-4-111. Costs and expenses; generally.
Thecosts and expenses of the foreclosure sale, which shall be paid out of theproceeds of the sale, shall include the costs of advertising, the fee of theofficer or person making the sale and executing the deed, said fee not toexceed ten dollars ($10.00); and an attorney or solicitor's fee if there be astipulation therefor in the mortgage.
34-4-112. Costs and expenses; attorney's fees.
Wheneveran attorney's fee is provided for in any real or chattel mortgage, or the noteor notes secured thereby, such attorney's fee shall not be allowed or added tothe mortgage debt in any foreclosure by public advertisement and sale, unlessit shall appear by the affidavit of an attorney admitted generally to practicein this state representing the mortgagee or his assigns in such foreclosures,or the party instituting such foreclosure, which affidavit shall be filed withthe sheriff or person who shall conduct the sale under such foreclosure, andsaid affidavit shall state therein that there has been and is no agreement,express or implied, between such attorney and his client, nor between him andany other person except a practicing attorney of this state engaged with him asan attorney in the foreclosure proceeding, for any sharing or division of saidfee so to be allowed or added to the debt involved, and said fee when soallowed or added to the debt shall be only as compensation for servicesactually rendered in the foreclosure proceeding by an attorney admitted topractice in this state and residing therein. Provided, however, that in theforeclosure of real estate mortgages, this section shall in no wise affect thetitle to the real estate involved in such a foreclosure.
34-4-113. Payment of proceeds.
(a) After any sale of real estate made as herein prescribed,proceeds from the sale shall be paid over by the officer or other person makingthe sale in the following order:
(i) Payment of the reasonable expenses of collection andenforcement and, to the extent provided by law, reasonable attorney's fees andlegal expenses incurred by the foreclosing mortgagee;
(ii) The satisfaction of obligations secured by the mortgagebeing foreclosed;
(iii) The satisfaction of obligations secured by any subordinateor junior mortgage or other lien on the real estate sold at the foreclosuresale; and
(iv) Surplus proceeds on demand to the mortgagor, his legalrepresentatives or assigns, and if no demand is made, then the foreclosingmortgagee, officer or other person making sale may retain the surplus proceedsfor disposition to the mortgagor or may dispose of the surplus proceeds inaccordance with W.S. 34-24-101 et seq.
(b) If the foreclosing mortgagee receives a demand for theproceeds accompanied by the materials required by W.S. 1-18-104(c) and signedby the holder of a subordinate or junior mortgage or other lien within thirty(30) days after the results of the sale are served in accordance with W.S.34-4-104, proceeds remaining after distribution under paragraphs (a)(i) and(ii) of this section shall be paid over by the officer or other person makingthe sale as agreed upon by all parties in interest, or by court order, to thesubordinate mortgagees or lienholders in accordance with their priority and tothe extent of their interest.
(c) Subject to the other provisions of this section, amortgagee shall account to and pay a mortgagor for any surplus, and the mortgagoris liable for any deficiency.