2016 North Dakota Century Code Title 35 Liens Chapter 35-22 Foreclosure of Mortgages of Real Property by Advertisement
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CHAPTER 35-22
FORECLOSURE OF MORTGAGES OF REAL PROPERTY BY ADVERTISEMENT
35-22-01. Foreclosure under power of sale - Prohibition - Exception.
Every mortgage of real property held by the state or any of its agencies, departments, or
instrumentalities, containing a power of sale, upon default being made in the conditions of such
mortgage, may be foreclosed by advertisement in the manner provided by law. No other
mortgage of real property shall be so foreclosed, but must be foreclosed by action.
35-22-02. Right to foreclose - Prerequisites - Recording.
To entitle a party to foreclose by advertisement, it is requisite:
1. That default in a condition of the mortgage has occurred by which the power of sale
has become operative;
2. That no action or proceeding has been instituted at law to recover the debt then
remaining secured by the mortgage, or any part thereof, or if any action or proceeding
has been instituted, that the same has been discontinued or that an execution upon
the judgment rendered therein has been returned unsatisfied in whole or in part; and
3. That the mortgage containing the power of sale has been recorded and, if it has been
assigned, that all the assignments thereof have been recorded.
35-22-03. Notice of intention to foreclose - Service - Payment - Failure to commence
foreclosure within ninety days.
Before any real estate mortgage may be foreclosed by advertisement, a notice of intention
to foreclose such mortgage must be served on the record title owner of the real estate described
in the mortgage unless the service thereof is excused by section 32-19-23. Such notice must be
in the form specified in section 32-19-21, and must be served as provided for the service of
such notice in foreclosure by action as prescribed in chapter 32-19, and the proof of service
thereof, or the proof of death of the record title owner, must be recorded with the notice and
certificate of sale. If the owner of the land or the owner's legal representative, before the
expiration of thirty days from the service of the notice of intention to foreclose the mortgage,
performs or complies with the conditions of the mortgage, the mortgage remains in full force and
effect the same as if no default had occurred. If the notice of sale is not published for the first
time within ninety days after the service of the notice of intention to foreclose, all proceedings
under the notice of intention to foreclose are deemed discontinued.
35-22-04. Foreclosure by advertisement enjoined - Procedure.
When the mortgagee or the mortgagee's assignee has served notice of intention to
foreclose a mortgage, and within the period provided by such notice it is made to appear by the
affidavit of the mortgagor, or any person claiming under the mortgagor, or the mortgagor's agent
or attorney, to the satisfaction of a judge of the district court of the county where the mortgaged
property is situated, that the mortgagor has a legal counterclaim or any other valid defense
against the collection of the whole or any part of the amount claimed to be due on such
mortgage, which proof must be made by affidavit stating the facts, but not on information and
belief, such judge, by an order to that effect, may enjoin the mortgagee or the mortgagee's
assignee from foreclosing the mortgage by advertisement and may direct that all further
proceedings for the foreclosure thereof be had in the district court having jurisdiction of the
subject matter. After the expiration of the period provided by the notice of intention, an order
enjoining the foreclosure by advertisement shall be made only on motion or order to show
cause. Notice of such motion, together with the affidavit used in support thereof, must be served
upon the attorney or agent of the mortgagee or assignee in the same manner as service of
other notices of motion, not less than eight days before the hearing thereon. The affidavit in
support of the motion must state the facts upon which the application is made, may not be on
information and belief, and must disclose a legal counterclaim or other valid defense to the
collection of the whole or some part of the amount claimed to be due on the mortgage. Upon the
hearing of the motion, the judge may enjoin the foreclosure of the mortgage by advertisement in
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the same manner as if the application had been made ex parte within the period of the notice of
intention to foreclose. Service of the restraining order may be made upon the attorney or agent
of the mortgagee or assignee, if the order was obtained ex parte, or if obtained on motion or
order to show cause, it may be served upon the attorney or agent or upon the sheriff of the
county where the foreclosure sale is to be had. If the notice of intention does not disclose the
address of a resident agent or attorney, the order may be served upon such sheriff.
35-22-05. Foreclosure for installments - Separate proceedings - Redemption.
If a mortgage is given to secure the payment of money by installments, each of the
installments mentioned in the mortgage must be taken and deemed to be a separate and
independent mortgage, and the mortgage for each of the installments may be foreclosed in the
same manner and with like effect as if a separate mortgage were given for each of the
installments, and a redemption from any such sale has the same effect as if the sale for the
installment had been made upon a prior independent mortgage.
35-22-06. Notice - Published six times.
Notice that the mortgage will be foreclosed by a sale of the mortgaged premises or some
part thereof must be given by publishing the same six times, once in each week for six
successive weeks, in a newspaper published in the county where the premises intended to be
sold, or some part thereof, are situated, if there is one, and if not, then in some newspaper
published in an adjoining county.
35-22-07. Notice of sale - Form.
The notice of sale must be in substantially the following form:
Notice is given that that certain mortgage, executed and delivered by ____________,
mortgagor, to ____________, mortgagee, dated ____________, ____, and filed for record
in the office of the recorder of the county of __________ and state of North Dakota on
__________, ____, and recorded in book ____________ of ____________ at page
_________ (and assigned by said mortgagee to __________), will be foreclosed by a sale
of the premises in such mortgage and hereinafter described at the front door of the
courthouse in the county of ____________ and state of North Dakota at the hour of
__________ o'clock ___m., on ______________, ______, to satisfy the amount due upon
such mortgage on the day of sale. The premises described in such mortgage and which will
be sold to satisfy the same are described as follows: (here insert description and street
address, if any).
There will be due on such mortgage at the date of sale the sum of ____________
dollars.
The failure to include the street address in the notice does not affect the validity of the notice.
35-22-08. Sale to be conducted at public auction - Time and place.
The sale must be at public auction between the hours of nine a.m. and the setting of the sun
on that day, at the front door of the courthouse in the county in which the premises to be sold or
some part of them are situated, and must be made to the highest bidder by the sheriff of the
county, acting in person or by deputy.
35-22-09. Sale as unit or by tracts.
If the mortgaged premises consist of a single farm or tract, the property may be sold as a
unit. If the premises consist of several distinct farms or tracts, the same must be sold separately,
and only such farms or tracts may be sold as are necessary to satisfy the amount due on the
mortgage at the date of the sale, including the costs and expenses allowed by law.
35-22-10. Mortgagee, assigns, or representatives may purchase.
The mortgagee, the mortgagee's assigns, or the legal representatives of any of them, fairly
and in good faith may purchase the premises advertised or any part thereof at the sale.
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35-22-11. Certificate of sale - Contents - Recordation within sixty days after sale Effect of certificate.
When any real property is sold by virtue of a power of sale contained in any mortgage, the
officer making the sale immediately shall give to the purchaser a certificate of sale containing all
of the following:
1. A particular description of the real property sold.
2. The price bid for each distinct lot or parcel.
3. The whole price paid.
4. The costs and fees for making the sale.
The certificate must be executed and acknowledged and must be recorded in the office of the
recorder of the county wherein the real property is situated within sixty days after the date of the
sale. The sheriff's certificate, or a copy thereof certified by the recorder, is evidence of the facts
therein recited and contained.
35-22-12. Costs - Disbursements.
The person foreclosing a mortgage by advertisement is entitled to the person's costs and
disbursements out of the proceeds of the sale.
35-22-13. Foreclosure - Attorney's and sheriff's fees - Division of attorney's fees
unlawful.
Repealed by S.L. 1975, ch. 106, § 673.
35-22-14. Affidavit of publication - Contents - Filed within sixty days.
An affidavit, made as provided in section 31-04-06, of the publication of the notice of the
sale and of any postponement must be filed for record by the officer making the sale, in the
office of the recorder of the county in which the real property is situated, within sixty days after
the sale.
35-22-15. Recorder - Note of sale on margin of mortgage record.
A note referring to the page and book or document number where the evidence of any sale
made under a mortgage is recorded must be made by the recorder in the margin of the record
of the mortgage.
35-22-16. Affidavit of publication recorded - Effect of in evidence.
The affidavit of publication must be recorded in the office of the recorder of the county in
which the real property is situated in a record kept for mortgages. The original affidavit, the
record thereof, and certified copies of the record are prima facie evidence of the facts contained
in the record.
35-22-17. Copy of affidavit of publication to be mailed.
Within ten days after the filing of the affidavit of publication of the notice of mortgage
foreclosure in any foreclosure of a real estate mortgage by advertisement, a copy of the affidavit
of publication must be mailed by certified mail to the record title owner and to every subsequent
mortgagee whose mortgage appears on record, addressed to the person at the post office
shown of record in the recorder's office. If no post-office address appears of record, the copy
must be addressed to the post office located nearest to the land described in the certificate of
sale.
35-22-18. Affidavit of mailing - Recordation.
An affidavit setting forth the time and manner of the mailing of the copy of the affidavit of
publication, the description of the land, and the name and post-office address of the person or
persons to whom the affidavit of publication was mailed must be filed and recorded in the
recorder's office.
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35-22-19. Failure to mail notices - Liability.
The failure to comply with sections 35-22-17 and 35-22-18 in no way invalidates the
foreclosure proceedings nor affects the title to the property involved, but such failure renders the
state liable in a civil action to the person entitled to a copy of the affidavit of publication herein
described for any damage sustained by the person by reason of such failure.
35-22-20. Redemption - Who may redeem - Notice to officer making sale.
The property sold may be redeemed in like manner and with the same effect as is provided
for redemption of real property sold upon execution in chapter 28-24 so far as the same may be
applicable by:
1. The mortgagor or the mortgagor's successor in interest of the whole or any part of the
property.
2. A creditor having a lien by judgment or mortgage on the property sold, or on some
share or part thereof, subsequent to that on which the property was sold.
Such creditor is termed a redemptioner and has all the rights of a redemptioner under that
chapter, and the mortgagor or the mortgagor's successor in interest has all the rights of the
judgment debtor and the judgment debtor's successor in interest as provided therein. The notice
of redemption required to be given to the sheriff under that chapter, in foreclosure by
advertisement, may be given to the officer making the sale.
35-22-21. Deed - Issuance - Effect.
If the mortgaged premises are not redeemed, it is the duty of the officer who sold the same,
or that person's successor in office, or some other person appointed by the district court for that
purpose, to complete the sale by executing a deed of the premises sold to the original
purchaser, the original purchaser's heirs or assigns, or to any person who may have acquired
the title and interest of the purchaser by redemption or otherwise. The deed has the same force
and effect as if it had been executed pursuant to a sale under a foreclosure of the mortgage by
an action in which all persons having an interest in or lien upon the property subsequent to the
mortgage were made parties and duly served with process.
35-22-22. Disposition of proceeds of sale.
If after the sale there remains in the hands of the officer making the sale any surplus money
after satisfying the mortgage on the real property sold and after payment of the costs and
expenses of the foreclosure and sale, the surplus must be held by such officer for a period of
thirty days after the sale unless some person who at the time of the sale had an interest in or
lien upon the property sold or some part thereof serves a written notice upon such officer of a
claim to the surplus or some part thereof. If no notice of claim is served within the period
aforesaid, the officer, upon the expiration of the period and upon demand, shall pay over the
surplus to the mortgagor, the mortgagor's legal representatives, or assigns.
35-22-23. Payment of surplus into court - Petition for surplus.
If the notice mentioned in section 35-22-22 is served upon the officer making the sale within
the time therein provided, such officer forthwith shall pay the surplus into the district court of the
county in which the sale was made. Any person claiming the surplus, or any part thereof, as
provided in section 35-22-22, at any time before an order for distribution is made as prescribed
in section 35-22-25, may file in the office of the clerk of the district court of the county where the
sale took place a petition stating the nature and extent of that person's claim and praying for an
order directing the payment to that person of the surplus money, or a part thereof.
35-22-24. Application for order directing payment of surplus - Notice - Service.
A person filing the petition as prescribed in section 35-22-23, after the expiration of thirty
days from the day of sale, may apply to the district court for an order thereon. Notice of the
application must be served either by mail or personally upon each person who has filed a like
petition, upon the mortgagor, the person in actual possession of the property, if any, and upon
every person having an interest in or lien upon the property sold subsequent to the mortgage
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foreclosed and whose interest or lien, at the time of the sale, was recorded in the proper office
in the county or counties in which the property sold is situated. The notice must be served at
least eight days before the application. If it is shown to the court by affidavit that service upon
any person required to be served cannot be made with due diligence, notice may be given to
that person in any manner which the court directs.
35-22-25. Order for distribution - Payment.
Upon the presentation of the petition with due proof of the service of the notice of the
application, the court shall ascertain the amount due to the petitioner and to each other person
whose claim is a lien upon the surplus money and the priorities of the several liens. The court
thereupon shall make such order for the distribution of the surplus money as justice requires,
and the surplus money must be distributed accordingly.
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