Montana Foreclosure Laws
Montana Foreclosure is Judicial.
Trust Indentures Authorized -- Montana Foreclosure Power of Sale for Breach in Trustee.
(1) A transfer in trust of an interest in real property of an area not
exceeding 40 acres may be made to secure the performance of an obligation of
a grantor or any other person named in the indenture to a beneficiary. However,
a trust indenture may not be substituted for a mortgage that was in existence
on March 5, 1963.
(2) When a transfer in trust of an interest in real property is made
to secure the performance of the obligation referred to in subsection (1), a
power of sale is conferred upon the trustee to be exercised after a breach of
the obligation for which the transfer is security.
(3) A trust indenture executed in conformity with this part may be foreclosed
by advertisement and sale in the manner provided in this part or, at the option
of the beneficiary, by judicial procedure as provided by law for the foreclosure
of mortgages on real property. Montana foreclosure power of sale may
be exercised by the trustee without express provision in the trust indenture.
(4) If a trust indenture states that the real property involved does
not exceed 40 acres, the statement is binding upon all parties and conclusive
as to compliance with the provisions of this part relative to the power to make
a transfer, trust, and power of sale.
Qualifications of trustee -- successor trustee.
Montana foreclosure law states that:
(1) The trustee of a trust indenture under this part must be:
(a) an attorney who is licensed to practice law in Montana;
(b) a bank, trust company, or savings and loan association authorized
to do business in Montana under the laws of Montana or the United States; or
(c) a title insurer or title insurance producer or agency authorized
to do business in Montana under the laws of Montana.
(2) The beneficiary may appoint a successor trustee at any time by filing
for record, in the office of the clerk and recorder of each county in which
the trust property or some part of the trust property is situated, a substitution
of trustee. The substitution must identify the trust indenture by stating the
names of the original parties to the trust indenture and the date of recordation
and the book and page where the information is recorded, must state the name
and mailing address of the new trustee, and must be executed and acknowledged
by all of the beneficiaries designated in the trust indenture or their successors
in interest. From the time the substitution is filed for record, the new trustee
is vested with all the power, duties, authority, and title of the trustee named
in the trust indenture and of any successor trustee.
Discontinuance of Montana Foreclosure Proceedings when entire amount of default paid.
(1) Whenever all or a portion of any obligation secured by a trust
indenture has, prior to the maturity date fixed in such obligation, become
due or been declared due by reason of a breach or default in the performance
of any obligation secured by the trust indenture, including a default in the
payment of interest or of any installment of principal or by reason of failure
of the grantor to pay, in accordance with the terms of such trust indenture,
taxes, assessments, premiums for insurance, or advances made by the beneficiary
in accordance with the terms of such obligation or of such trust indenture,
the grantor or his successor in interest in the trust property or any part
thereof or any other person having a subordinate lien or encumbrance of record
thereon or any beneficiary under a subordinate trust indenture, at any time
prior to the time fixed by the trustee for the trustee's sale if the power
of sale is to be exercised, may pay to the beneficiary or his successor in
interest the entire amount then due under the terms of such trust indenture
and the obligation secured thereby (including costs and expenses actually
incurred and reasonable trustee's and attorney's fees) other than such portion
of the principal as would not then be due had no default occurred and thereby
cure the default theretofore existing.
(2) Thereupon all proceedings theretofore had or instituted to foreclose
the trust indenture shall be canceled and the obligation and the trust indenture
shall be reinstated and shall be and remain in force and effect the same as
if no such acceleration had occurred.
(3) If the default is cured and the obligation and the trust indenture
reinstated in the manner hereinabove provided, the beneficiary or his assignee
shall, on demand of any person having an interest in the trust property, execute,
acknowledge, and deliver to him a request that the trustee execute, acknowledge,
and deliver a cancellation of the recorded notice of sale under such trust
indenture.
(4) Any beneficiary under a trust indenture or his assignee who, for
a period of 30 days after such demand, refuses to request the trustee to execute,
acknowledge, and deliver such cancellation shall be liable to the person entitled
to such request for all damages resulting from such refusal.
(5) A cancellation of a recorded notice of sale shall, when executed
and acknowledged, be entitled to be recorded and shall be sufficient if it
sets forth a reference to the trust indenture and the book and page where
the same is recorded, a reference to the notice of sale and to the book and
page where the same is recorded, and a statement that such notice of sale
is canceled.
Conditions for Montana Foreclosure by Advertisement and Sale.
The trustee may foreclose a trust indenture by advertisement and sale under
this part if:
(1) the trust indenture, any assignments of the trust indenture by
the trustee or the beneficiary, and any appointment of a successor trustee
are recorded in the office of the clerk and recorder of each county in which
the property described in the trust indenture or some part thereof is situated;
(2) there is a default by the grantor or other person owing an obligation
or by their successors in interest, the performance of which is secured by
the trust indenture, with respect to any provision in the indenture which
authorizes sale in the event of default of such provision; and
(3) the trustee or beneficiary shall have filed for record in the office
of the clerk and recorder in each county where the property described in the
indenture or some part thereof is situated a notice of sale, duly executed
and acknowledged by such trustee or beneficiary, setting forth:
(a) the names of the grantor, trustee, and beneficiary in the trust
indenture and the name of any successor trustee;
(b) a description of the property covered by the trust indenture;
(c) the book and page of the mortgage records where the trust indenture
is recorded;
(d) the default for which the Montana foreclosure is made;
(e) the sum owing on the obligation secured by the trust indenture;
(f) the trustee's or beneficiary's election to sell the property to
satisfy the obligation;
(g) the date of sale, which shall not be less than 120 days subsequent
to the date on which the notice of sale is filed for record, and the time
of sale, which shall be between the hours of 9 a.m. and 4 p.m., mountain standard
time;
(h) the place of sale which shall be at the courthouse of the county
or one of the counties where the property is situated or at the location of
the property or at the trustee's usual place of business if within the county
or one of the counties where the property is situated.
Requests for Copies of Montana Foreclosure Notice of Sale.
At any time subsequent to the recordation of a trust indenture and prior to the recordation of notice of sale under the indenture, any person desiring a copy of any notice of sale under a trust indenture (1) may cause to be filed for record in the office of the county clerk and recorder of the county or counties in which any part or parcel of the real property is situated, a duly acknowledged request for a copy of any Montana foreclosure notice of sale, showing service upon the trustee. The request shall contain the name and address of the person requesting a copy of the notice and shall identify the trust indenture by stating the names of the parties to the indenture, the date of recordation of the indenture, and the book and page where the indenture is recorded. The county clerk and recorder shall immediately make a cross-reference of the request to the trust indenture either on the margin of the page where the trust indenture is recorded or in some other suitable place. No request, statement, or notation placed on the record pursuant to this section shall affect title to the property or be deemed notice to any person that any person so recording the request has any right, title, interest in, lien, or charge upon the property referred to in the trust indenture.
Montana Foreclosure Notice -- Sale -- Payment.
A trust deed may be foreclosed by advertisement and sale in the manner provided
from Montana foreclosure statutes:
(1) The trustee shall give notice of the sale in the following manner:
(a) At least 120 days before the date fixed for the trustee's sale,
a copy of the recorded notice of sale shall be mailed by registered or certified
mail to:
(i) the grantor, at the grantor's address as set forth in the trust
indenture or (in the event no address of the grantor is set forth in the trust
indenture) at the grantor's last known address;
(ii) each person designated in the trust indenture to receive notice
of sale whose address is set forth therein, at such address;
(iii) each person who has filed for record a request for a copy of
notice of sale within the time and in the manner hereinafter provided, at
the address of such person as set forth in such request;
(iv) any successor in interest to the grantor whose interest and address
appear of record at the filing date and time of the notice of sale, at such
address;
(v) any person having a lien or interest subsequent to the interest
of the trustee and whose lien or interest and address appear of record at
the filing date and time of the notice of sale, at such address.
(b) At least 20 days before the date fixed for the Montana foreclosure
trustee's sale, a copy of the recorded notice of sale shall be posted in some
conspicuous place on the property to be sold. Upon request of the trustee, the
notice of sale shall be posted by a sheriff or constable of the county wherein
the property to be sold is located.
(2) On or before the date of sale, there shall be recorded in the office
of the clerk and recorder of each county where the property or some part thereof
is situated, affidavits of mailing, posting, and publication showing compliance
with the requirements of this section.
(3) On the date and at the time and place designated in the notice
of sale, the trustee or his attorney shall sell the property at public auction
to the highest bidder. The property may be sold in one parcel or in separate
parcels, and any person, including the beneficiary under the trust indenture
but excluding the trustee, may bid at the sale. The person making the sale
may, for any cause he deems expedient, postpone the sale for a period not
exceeding 15 days by public proclamation at the time and place fixed in the
notice of sale. No other notice of the postponed sale need be given. In the
event a sale cannot be held at the scheduled time by reason of the automatic
stay provision of the United States Bankruptcy Code, 11 U.S.C. 362, or of
a stay order issued by any court of competent jurisdiction, the person making
the sale may, as often as he considers expedient, postpone the sale. Each
postponement may not exceed 30 days, and all postponements, in the aggregate,
may not exceed 120 days. Each postponement must be effected by a public proclamation
at the time and place fixed in the notice of sale or fixed by previous postponement.
No other notice of the postponed sale need be given.
(4) The purchaser at the Montana foreclosure sale shall pay the
price bid in cash, and upon receipt of payment, the trustee shall execute and
deliver a trustee's deed to the purchaser. In the event the purchaser refuses
to pay the purchase price, the person conducting the sale shall have the right
to resell the property at any time to the highest bidder. The party refusing
to pay shall be liable for any loss occasioned thereby, and the person making
the sale may also, in his discretion, thereafter reject any other bid of such
person.
Disposition of Proceeds of Montana Foreclosure Sale.
The trustee shall apply the proceeds of the trustee's sale as follows:
(1) to the costs and expenses of exercising the power of sale and of
the sale, including reasonable trustee's fees and attorney's fees;
(2) to the obligation secured by the trust indenture;
(3) the surplus, if any, to the person or persons legally entitled
thereto, or the trustee, in his discretion, may deposit such surplus with
the clerk and recorder of the county in which the sale took place. Upon depositing
such surplus, the trustee shall be discharged from all further responsibility
therefore and the clerk and recorder shall deposit the same with the county
treasurer subject to the order of the district court of such county.
Deficiency judgment not allowed in Montana.
When a trust indenture executed in conformity with this part is foreclosed by advertisement and sale, no other or further action, suit, or proceedings shall be taken or judgment entered for any deficiency against the grantor or his surety, guarantor, or successor in interest, if any, on the note, bond, or other obligation secured by the trust indenture or against any other person obligated on such note, bond, or other obligation.
Trustee's deed.
(1) The trustee's deed to the purchaser at the Montana foreclosure
trustee's sale may contain, in addition to a description of the property conveyed,
recitals of compliance with the requirements of this part relating to the exercise
of the power of sale and the sale, including recitals of the facts concerning
the default, the notice given, the conduct of the sale, and the receipt of the
purchase money from the purchaser.
(2) When the trustee's deed is recorded in the deed records of the
county or counties where the property described in the deed is situated, the
recitals contained in the deed and in the affidavits (2) shall be prima facie
evidence in any court of the truth of the matters set forth therein, except
that the same shall be conclusive evidence in favor of subsequent bona fide
purchasers and encumbrancers for value and without notice.
(3) The trustee's deed shall operate to convey to the purchaser, without
right of redemption, the trustee's title and all right, title, interest, and
claim of the grantor and his successors in interest and of all persons claiming
by, through, or under them in and to the property sold, including all such
right, title, interest, and claim in and to such property acquired by the
grantor or his successors in interest subsequent to the execution of the trust
indenture.
Possession of Property.
The purchaser at the trustee's sale shall be entitled to possession of the property on the 10th day following the sale, and any persons remaining in possession after that date under any interest, except one prior to the trust indenture, shall be deemed to be tenants at will.
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