Federal and state laws regulate loan servicing and foreclosure processes. And most of the laws give protections to borrowers. Servicers generally have to provide borrowers with loss mitigation opportunities, account for each foreclosure step, and strictly comply with foreclosure laws. Also, most people who take out a loan to buy a residential property in South Dakota sign a promissory note and a mortgage containing a power of sale clause. These documents give homeowners some contractual rights in addition to federal and state legal protections.
In a South Dakota foreclosure, you’ll most likely get the right to:
So, don’t get caught off guard if you're a South Dakota homeowner who’s behind in mortgage payments. Learn about each step in a South Dakota foreclosure, from missing your first payment to a foreclosure sale. Once you understand the process, you can make the most of your situation and, hopefully, work out a way to save your home or at least get through the process with as little anxiety as possible.
The period after you fall behind in payments, but before a foreclosure officially starts, is generally called the "preforeclosure" stage. (Sometimes, people refer to the period before a foreclosure sale actually happens as "preforeclosure," too.) During this time, the servicer can charge you various fees, like late charges and inspection fees, and, in most cases, must inform you about ways to avoid foreclosure and send you a preforeclosure notice called a “breach letter.”
If you miss a payment, most loans include a grace period of ten or fifteen days, after which time the servicer will assess a late fee. Each month you miss a payment, the servicer will charge this fee. To find out the late charge amount and grace period for your loan, look at the promissory note you signed. You can also find this information on your monthly mortgage statement.
Also, most South Dakota mortgages allow the lender (or the current loan holder, referred to as the “lender” in this article) to take necessary steps to protect its interest in the property. Property inspections are performed to ensure that the home is occupied and appropriately maintained. Inspections, which are generally drive-by, are usually ordered automatically once the loan goes into default and typically cost around $10 or $15.
Other types of fees the servicer might charge include those for broker’s price opinions, which are like appraisals, and property preservation costs, such as for yard maintenance or winterizing an abandoned home.
Under federal mortgage servicing laws, the servicer must contact, or attempt to contact, you by phone to discuss loss mitigation options, like a loan modification, forbearance, or repayment plan, no later than 36 days after you miss a payment and again within 36 days after each following delinquency. No later than 45 days after missing a payment, the servicer has to inform you in writing about loss mitigation options that might be available and appoint personnel to help you try to work out a way to avoid foreclosure. A few exceptions are in place for some of these requirements, though, like if you've filed bankruptcy or asked the servicer not to contact you pursuant to the Fair Debt Collection Practices Act. (12 C.F.R. § 1024.39, 12 C.F.R. § 1024.40).
Federal mortgage servicing laws also prohibit dual tracking (pursuing a foreclosure while a complete loss mitigation application is pending).
Many South Dakota mortgages have a provision that requires the lender to send a notice, commonly called a “breach letter,” informing you that the loan is in default before the lender can accelerate the loan. The breach letter gives you a chance to cure the default and avoid foreclosure.
Under federal law, the servicer usually can’t officially begin a foreclosure until you're more than 120 days past due on payments, subject to a couple of exceptions. (12 C.F.R. § 1024.41). This 120-day period provides most homeowners with ample opportunity to submit a loss mitigation application to the servicer.
If you default on your mortgage payments in South Dakota, the lender may foreclose using a judicial or nonjudicial method.
A judicial foreclosure begins when the lender files a lawsuit asking a court for an order allowing a foreclosure sale. If you don’t respond with a written answer, the lender will automatically win the case. But if you choose to defend the foreclosure lawsuit, the court will review the evidence and determine the winner. If the lender wins, the judge will enter a judgment and order your home sold.
If the lender chooses a nonjudicial foreclosure, it must complete the out-of-court procedures described in the state statutes. After completing the required steps, the lender can sell the home at a foreclosure sale. Lenders in South Dakota sometimes opt to use the nonjudicial process because it’s quicker and cheaper than litigating the matter in court.
The nonjudicial process is pretty straightforward: The lender serves the borrower a notice of sale at least 21 days before the sale date and publishes the notice in a newspaper once a week for four weeks. (S.D. Codified Laws § 21-48-6.1, § 21-48-6). Then the lender can sell the property at a foreclosure sale.
Though, even if the lender starts a nonjudicial foreclosure, you can force it to foreclose judicially (in court) by applying in the appropriate court. (S.D. Codified Laws § 21-48-9). Converting a nonjudicial foreclosure to a judicial one might be a good idea, especially if you have a strong defense to the foreclosure. If you want to convert a nonjudicial foreclosure into a judicial one, consult with a South Dakota attorney to make sure you follow the proper procedures.
At the sale, the lender usually makes a credit bid. The lender can bid up to the total amount owed, including fees and costs, or it may bid less. In some states, including South Dakota, when the lender is the high bidder at the sale but bids less than the total debt, it can get a deficiency judgment against the borrower.
If the lender is the highest bidder, the property becomes what’s called “Real Estate Owned” (REO). But if a bidder, say a third party, is the highest bidder and offers more than you owe, and the sale results in excess proceeds—that is, money over and above what’s needed to pay off all the liens on your property—you're entitled to that surplus money.
A few potential ways to stop a foreclosure include reinstating the loan, redeeming the property, or filing for bankruptcy. Of course, if you're able to work out a loss mitigation option, like a loan modification, that will also stop a foreclosure.
South Dakota law doesn’t provide the borrower with the right to reinstate the loan in a nonjudicial foreclosure. The terms of the mortgage contract, however, might give you this right. To find out if you get the right to complete a reinstatement, check your mortgage contract. Or the lender might agree to let you complete a reinstatement.
If the foreclosure is judicial, state law does provide the right to reinstate. If you pay the reinstatement amount before the court enters a judgment in a judicial foreclosure, the court will dismiss the foreclosure action. But if you reinstate after judgment, but before the sale, the court will stay (postpone) the foreclosure action. If you default again, the foreclosure can continue. (S.D. Codified Laws § 21-47-8, § 21-47-10).
One way to stop a foreclosure is by “redeeming” the property. To redeem, you have to pay off the full amount of the loan before the foreclosure sale.
Some states also provide foreclosed borrowers with a redemption period after the foreclosure sale, during which they can buy back the home. Generally, foreclosed homeowners in South Dakota get one year to redeem the property after a foreclosure sale. (S.D. Codified Laws § 21-52-11). But if the mortgage is a short-term redemption mortgage, the redemption period is 180 days after the person or entity who bought the property at the foreclosure sale records a certificate of sale in the land records. (S.D. Codified Laws § 21-49-30, § 21-52-11). To find out if you have a short-term redemption mortgage, check your loan paperwork or talk to a lawyer.
Also, if the borrower abandons the property, the new owner can ask the court to reduce the redemption period to 60 days. (S.D. Codified Laws § 21-49-13(8), § 21-49-38).
If you're facing a foreclosure, filing for bankruptcy might help. In fact, if a foreclosure sale is scheduled to occur in the next day or so, the best way to stop the sale immediately is by filing for bankruptcy. Once you file for bankruptcy, something called an "automatic stay" goes into effect. The stay functions as an injunction, which prohibits the lender from foreclosing on your home or otherwise trying to collect its debt, at least temporarily.
In many cases, filing for Chapter 7 bankruptcy can delay the foreclosure by a matter of months. Or, if you want to save your home, filing for Chapter 13 bankruptcy might be the answer. To find out about the options available to you, speak with a local bankruptcy attorney.
In a foreclosure, the borrower’s total mortgage debt sometimes exceeds the foreclosure sale price. The difference between the total debt and the sale price is called a “deficiency.” For example, say the total debt owed is $400,000, but the home sells for $350,000 at the foreclosure sale. The deficiency is $50,000. In some states, the lender can seek a personal judgment against the debtor to recover the deficiency. Generally, once the lender gets a deficiency judgment, the lender may collect this amount—in our example, $50,000—from the borrower.
While the lender can get a deficiency judgment after a nonjudicial foreclosure, if the lender buys the home at the foreclosure sale, the amount of the deficiency is limited to the difference between the borrower’s total debt and the home’s fair market value. (S.D. Codified Laws § 21-48-14).
Deficiency judgments can also happen in judicial foreclosures. The court will take the property’s value into account and look at other factors when deciding whether a deficiency exists. (S.D. Codified Laws § 21-47-16, § 21-47-17).
In this article, you’ll find details on foreclosure laws in South Dakota, with citations to statutes so you can learn more. Statutes change, so checking them is always a good idea.
To find South Dakota’s laws, search online for “South Dakota statutes” or “South Dakota laws.” Make sure you’re reading the most recent, official laws. Usually, the URL will end in “.gov” or the statutes will be on an official state legislature webpage.
For more information on federal mortgage servicing laws, as well as foreclosure relief options, go to the Consumer Financial Protection Bureau (CFPB) website.
Although the programs under the Making Home Affordable (MHA) initiative have expired, the MHA website still contains useful information for homeowners facing foreclosure.
How courts and agencies interpret and apply laws can change. And some rules can even vary within a state. These are just some of the reasons to consider consulting a lawyer if you’re facing a foreclosure. If you have questions about South Dakota’s foreclosure process or want to learn about potential defenses to a foreclosure and possibly fight the foreclosure in court, consider talking to a foreclosure attorney.
It’s also a good idea to talk to a HUD-approved housing counselor if you want to learn about different loss mitigation options. You can use the CFPB's Find a Counselor tool to get a list of HUD-approved housing counseling agencies in your area. You can also call the Homeownership Preservation Foundation (HOPE) Hotline, which is open 24 hours a day, seven days a week, at 888-995-HOPE (4673).