- Who sends it
- Your lender's lawyer, through the district court, usually served on you in person
- What it starts
- 21 days from service to serve a written answer
- Do this first
- Write down the date you were served and call Montana Legal Services Association the same day
What this document is in Montana
A trust indenture can be foreclosed by trustee's sale or, at the lender's option, by court procedure like a mortgage (Mont. Code Ann. § 71-1-304(3)). Montana allows only one action to recover a debt secured by a mortgage on real estate. In it, the court can order the home sold, decide how the money is applied, and order payment of costs and the amount due (§ 71-1-222(1)).
The case starts with a complaint filed in district court and a summons issued by the clerk. The summons must name the court and the parties, state the time to appear and defend, and warn that if you do not, a default judgment will be entered for what the complaint asks (Mont. R. Civ. P. 4(c)(2)(A)).
What it does and does not mean
- It does not mean the home is sold. The court must first enter a judgment, and then the sheriff sells the home.
- It means the rules are different from a trustee's sale. If the sale does not cover the debt, a judgment for the balance can be docketed against anyone personally liable, and it becomes a lien on your other real estate (§ 71-1-222(2)). See Montana deficiency rules.
- There is no deficiency if the mortgage was given to the seller for the unpaid purchase price (§ 71-1-232).
- You keep a right to redeem the home for 1 year after the sheriff's sale, and you can stay in a home you live in during that year (§§ 25-13-802, 71-1-229). See certificate of sale.
The deadline and how to count it
- You must serve an answer within 21 days after being served with the summons and complaint, unless the court orders otherwise (Mont. R. Civ. P. 12(a)(1)(A)).
- Count calendar days starting the day after you were served. If day 21 falls on a Saturday, Sunday or legal holiday, the deadline moves to the next day that is not (Mont. R. Civ. P. 6(a)).
- If you were served by publication in a newspaper, service is complete on the date of the last publication (Mont. R. Civ. P. 4(o)(7)). Read the summons for the time it gives you.
- Federal rules: a complete loss mitigation application received more than 37 days before a sale blocks the servicer from moving for judgment or holding the sale during the review.
See how long foreclosure takes in Montana for how court cases compare with trustee's sales.
What to do this week
- Write the date you were served on the papers and count 21 days.
- Apply to Montana Legal Services Association at 1-800-666-6899 or online, or call the State Bar of Montana Lawyer Referral Service at (406) 449-6577.
- Contact the Montana Court Help Program for free legal information about filing an answer in district court.
- File a written answer with the clerk of the district court named on the summons and serve a copy on the lender's lawyer. Keep a stamped copy.
- Send your servicer a complete loss mitigation application and call NeighborWorks Montana at 1-866-587-2244 for a free counselor.
- Read how to stop foreclosure in Montana.
State help and scam warnings
We did not find a statewide foreclosure mediation program in Montana. The Montana foreclosure help page lists free counseling and legal aid.
- A court case is public, so expect offers from people who say they can stop it for a fee. Check any company with the Montana Division of Banking and Financial Institutions at (406) 841-2920 before you pay.
- Never sign over your deed to someone who promises to save the home.
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 long do I have to answer a Montana foreclosure lawsuit?
Generally 21 days after you are served with the summons and complaint (Mont. R. Civ. P. 12(a)(1)(A)). If you do not answer, the lender can ask for a default judgment.
Why would my Montana lender sue instead of using a trustee's sale?
Montana lets the lender choose court foreclosure for a trust indenture (Mont. Code Ann. § 71-1-304(3)). A court foreclosure can lead to a judgment for any balance left after the sale (§ 71-1-222(2)), which a trustee's sale cannot (§ 71-1-317).
Can I still save my home after a Montana court foreclosure sale?
Yes. You can redeem within 1 year after the sheriff's sale by paying the buyer the purchase price with interest and certain costs (Mont. Code Ann. § 25-13-802). You can stay in a home you live in during that year (§ 71-1-229).
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.
- 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.
- 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. § 71-1-304 (lender's option of court foreclosure)
- Mont. Code Ann. § 71-1-222 (proceedings in foreclosure suits; deficiency)
- Mont. Code Ann. § 71-1-232 (no deficiency on purchase price mortgage)
- Mont. Code Ann. § 71-1-229 (possession during redemption period)
- Montana Rules of Civil Procedure, Rule 12 (time to answer)
- Montana Rules of Civil Procedure, Rule 4 (summons contents; service by publication)
- Montana Rules of Civil Procedure, Rule 6 (computing time)
- Montana Judicial Branch: Court Help Program
- Montana Division of Banking and Financial Institutions: Foreclosure Prevention