South Dakota Codified Laws 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;
Terms Used In South Dakota Codified Laws 21-48A-1
- Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Mortgagee: The person to whom property is mortgaged and who has loaned the money.
- Mortgagor: The person who pledges property to a creditor as collateral for a loan and who receives the money.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Property: includes property, real and personal. See South Dakota Codified Laws 2-14-2
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- written: include typewriting and typewritten, printing and printed, except in the case of signatures, and where the words are used by way of contrast to typewriting and printing. See South Dakota Codified Laws 2-14-2
(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”
Source: SL 1991, ch 185, § 1.