- Who sends it
- The trustee or the lender (beneficiary), by certified mail, after recording it with the county clerk and recorder
- What it starts
- At least 120 days before the trustee's sale, counted from the day the notice was recorded
- Do this first
- Write down the sale date and ask the trustee in writing for the amount needed to cure the default
What this notice is in Montana
Most Montana home loans on 40 acres or less use a trust indenture under the Small Tract Financing Act. The trustee can sell the home without a court case, by "advertisement and sale" (Mont. Code Ann. § 71-1-304). The Notice of Trustee's Sale is how that sale starts.
Under § 71-1-313, the notice must be signed, acknowledged and recorded with the clerk and recorder of the county where the home is. It must name the grantor (you), the trustee and the beneficiary, describe the property, say where the trust indenture is recorded, state the default and the sum owing, state the election to sell, and give the date, time and place of the sale.
Montana does not require a separate notice of default before this one. Your servicer's late notices and breach letter come first, and federal rules generally keep the servicer from starting foreclosure until you are more than 120 days behind. See how foreclosure works in Montana.
What it does and does not mean
- It does not mean the home is sold. The sale cannot happen until the date in the notice, at least 120 days after recording.
- The sale must be held between 9 a.m. and 4 p.m., at the county courthouse, at the property, or at the trustee's usual place of business in that county (§ 71-1-313(3)(g), (h)).
- It does not mean you owe the full loan to stop it. Montana lets you cure by paying the amount then due without the accelerated principal, plus costs actually incurred and reasonable trustee's and attorney fees (§ 71-1-312(1)).
- If the sale goes ahead, the lender cannot sue you for any shortfall after a trustee's sale (§ 71-1-317). See Montana deficiency rules.
- It also means you will have no right to buy the home back after a trustee's sale (§ 71-1-318(3)). Your time to act is before the sale.
The deadlines it starts and how to count them
- The sale date must be at least 120 days after the day the notice was filed for record (§ 71-1-313(3)(g)). Count calendar days, starting the day after the recording date shown on the notice.
- A copy of the recorded notice must be mailed to you by certified mail at least 120 days before the sale date (§ 71-1-315(1)(a)). If you got it late, write down the date you received it and show a lawyer.
- At least 20 days before the sale, the notice must be posted on the property, and the last of 3 weekly newspaper ads must run (§ 71-1-315(1)(b), (c)).
- You can cure up to the time fixed by the trustee for the sale (§ 71-1-312(1)). Do not wait for the last day, because the trustee needs time to give you a figure and confirm your funds.
- The sale can be postponed up to 15 days by an announcement at the sale with no other notice. If a bankruptcy stay or court order blocks the sale, each postponement can be up to 30 days and all of them together no more than 120 days (§ 71-1-315(3)).
- Federal rules: a complete loss mitigation application received more than 37 days before the sale must be reviewed, and the sale cannot be held during that review.
See how long foreclosure takes in Montana for the full timeline.
What to do this week
- Find the recording date and the sale date on the notice and mark both on your calendar.
- Write to the trustee named on the notice and ask for the cure (reinstatement) amount, with costs and fees listed. Keep a copy. See the national guide to a payoff and reinstatement quote.
- Send your servicer a complete loss mitigation application if you have not already. Get the date it was received in writing.
- Call NeighborWorks Montana at 1-866-587-2244 to reach a free foreclosure prevention counselor.
- Apply to Montana Legal Services Association online or at 1-800-666-6899 if you think the notice or the default is wrong, or if you are thinking about bankruptcy.
- Read how to stop foreclosure in Montana and, if the sale is close, a Montana foreclosure sale date is set.
If you cure, and free help in Montana
If you pay the cure amount, all foreclosure steps must be canceled and the loan goes back in place as if it had never been accelerated (§ 71-1-312(2)). Anyone with an interest in the home can then demand that the lender ask the trustee to record a cancellation of the notice of sale. A lender that refuses for 30 days after that demand is liable for the damages (§ 71-1-312(3), (4)). Ask for the recorded cancellation so the notice no longer clouds your title.
We did not find a statewide foreclosure mediation program in Montana. Free help comes from NeighborWorks Montana counselors, Montana Legal Services Association, and the State Bar of Montana Lawyer Referral Service at (406) 449-6577. The Montana foreclosure help page lists more.
- The newspaper ad brings mail and calls from people who offer to save your home for a fee or to take the deed. The Montana Division of Banking and Financial Institutions warns about foreclosure rescue fraud and home equity theft.
- Counseling is free. If someone asks for an upfront fee or asks you to sign over your deed, call the Division at (406) 841-2920 before you sign. See is this letter a scam.
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
How many days do I have after a Montana Notice of Trustee's Sale?
The sale date must be at least 120 days after the notice was recorded, and the copy must be mailed to you by certified mail at least 120 days before the sale (Mont. Code Ann. §§ 71-1-313, 71-1-315). You can cure up to the time set for the sale.
Can I stop a Montana trustee's sale by paying only what I missed?
Yes. Under Mont. Code Ann. § 71-1-312 you can pay the amount then due, without the part of the principal that is due only because of the default, plus costs and reasonable trustee's and attorney fees, at any time before the time set for the sale. The foreclosure must then be canceled.
Will I get a new notice if my Montana sale is postponed?
Not always. A postponement of up to 15 days can be announced out loud at the time and place of the sale, and no other notice is required (Mont. Code Ann. § 71-1-315(3)). Call the trustee before the sale date to ask whether it is still on.
Can the lender come after me for the rest of the loan after a Montana trustee's sale?
No. When a trust indenture is foreclosed by advertisement and sale, no deficiency judgment is allowed against you or anyone else on the note (Mont. Code Ann. § 71-1-317).
Other Montana letters
- Notice of surplus fundsIf your home sold at a trustee's sale for more than the loan and sale costs, Montana law makes the trustee deposit the extra with the county clerk and recorder and mail you notice. The county treasurer holds it. Only a district court order releases it, so you must file a petition.
- 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.
Sources
- Mont. Code Ann. § 71-1-313 (conditions and contents of the notice of sale)
- Mont. Code Ann. § 71-1-315 (mailing, posting, publication, postponement, sale)
- Mont. Code Ann. § 71-1-312 (cure and cancellation of the notice of sale)
- Mont. Code Ann. § 71-1-317 (deficiency judgment not allowed)
- Mont. Code Ann. § 71-1-304 (trust indentures; choice of foreclosure)
- Montana Division of Banking and Financial Institutions: Foreclosure Prevention
- Montana Legal Services Association: Apply for services