- Who sends it
- The trustee, by mail to everyone who was sent the Notice of Trustee's Sale
- What it starts
- Your chance to petition the district court of that county for an order paying out the surplus
- Do this first
- Call the county clerk and recorder in the county of the sale and confirm the amount deposited
What this notice is in Montana
Under Mont. Code Ann. § 71-1-316, the trustee first pays the costs of the sale, including reasonable trustee's and attorney fees, and then the loan being foreclosed. Any surplus must be deposited with the clerk and recorder of the county where the sale took place, along with a written notice of the amount and a copy of the Notice of Trustee's Sale.
The trustee must mail copies of the surplus notice, the Notice of Trustee's Sale and the affidavit of mailing to each person who was sent the notice of sale. Once the money is deposited, the trustee has no further duty for it. The clerk and recorder deposits it with the county treasurer.
What it does and does not mean
- It does not mean all the money is yours. Liens that were junior to the loan that was foreclosed, such as a second mortgage or a judgment lien, share in the surplus in the same order of priority they had on the home at the time of the sale (§ 71-1-316(3)(b)).
- It does not mean the county will mail you a check. The district court decides the order of priority and issues a written order telling the county treasurer whom to pay (§ 71-1-316(3)(a)).
- A lienholder who wins part of the surplus may also ask for its costs and attorney fees from the surplus (§ 71-1-316(4)).
- It does not require a paid finder. You can file the petition yourself.
The deadlines and how to count them
- File a petition asking for an order for disbursement in the district court for the county where the surplus is deposited (§ 71-1-316(3)(a)).
- At least 20 days before the hearing, notice of your petition must be served on every person who was sent the surplus notice and anyone else who has appeared in the case (§ 71-1-316(3)(c)). Count calendar days back from the hearing date, and leave extra time.
- Montana's statute does not set a last day to claim the money and does not say what happens if no one petitions. Do not wait.
The Montana surplus funds page explains each step.
What to do this week
- Call the clerk and recorder and the county treasurer in the county of the sale. Ask how much was deposited and under what name.
- Look up any other liens on the home (a second mortgage, judgment, or tax lien). Those holders may also claim the money.
- Visit or call the Montana Court Help Program, a free service of the Montana Supreme Court, for legal information about filing a petition in district court.
- Apply to Montana Legal Services Association at 1-800-666-6899 if a lienholder disputes your claim.
- Keep your mailing address current with the trustee and the county, even if you move out of state.
- Read after a foreclosure sale in Montana for your other rights after the sale.
Surplus finders and scam warnings
Once a sale record is public, people may offer to recover your surplus for a share of it. You do not need them to file a petition. For money that reaches the State as unclaimed property, Montana voids most finder fee agreements made before 24 months after the money is delivered to the State, except a deal with a lawyer to file a claim (§ 70-9-825).
- Never sign over a share of your surplus before you know how much is there.
- Ask the county yourself before you trust a letter that says money is waiting for you. See is this letter a scam.
- Report a pushy or misleading offer to the Montana Office of Consumer Protection at the Department of Justice.
The rest of the Montana process
See how foreclosure works in Montana, the timeline, ways to stop it and free help in Montana, or read the national guide to this letter.
Common questions
Where is my surplus money held after a Montana trustee's sale?
The trustee deposits it with the clerk and recorder of the county where the sale took place, who then deposits it with the county treasurer (Mont. Code Ann. § 71-1-316(1), (2)). It is paid out only on a district court order.
Can my second mortgage lender take part of my Montana surplus?
Yes, if it had a valid lien on the home. Junior liens share in the surplus in the same order of priority they had on the property at the time of the sale, and a lienholder who is paid may also seek its costs and attorney fees (Mont. Code Ann. § 71-1-316(3), (4)).
Do I need a lawyer to claim surplus in Montana?
Montana law does not require one. You file a petition in the district court and serve notice at least 20 days before the hearing. The Montana Court Help Program and Montana Legal Services Association can help you understand the paperwork.
Other Montana letters
- Notice of Trustee's SaleIn Montana, the Notice of Trustee's Sale is the main foreclosure paper for a home under a trust indenture. It is recorded with the county and mailed to you by certified mail at least 120 days before the auction. You can still stop the sale by paying only what is past due, plus costs and fees, any time before the time set for the sale.
- Written notice ending a tenancy at willAfter a Montana trustee's sale, the buyer is entitled to possession on the 10th day, and anyone still living there is treated as a tenant at will. Montana law ends a tenancy at will with a written notice to leave within a period of at least 1 month. Only after that period can the buyer go to court.
- Summons and complaint for unlawful detainerIf you are still in the home after the move-out period in the buyer's written notice, the buyer can sue for possession in district court or justice court. The summons must tell you to appear and answer within 10 days of service. If you do not, the court must enter judgment against you.
- Summons and complaint for foreclosureMontana lenders may foreclose a trust indenture in court instead of by trustee's sale, and older mortgages are foreclosed in court. If you are served with a summons and complaint, you generally have 21 days to answer. A court foreclosure can lead to a deficiency judgment, but it also gives you 1 year to redeem after the sheriff's sale.
- Sheriff's certificate of saleAfter a court foreclosure in Montana, the sheriff sells the home and gives the buyer a certificate of sale, with a duplicate filed with the county clerk. It is not a deed. You have 1 year from the sale to redeem, and the buyer cannot take possession from you during that year while you live there as your home.