How foreclosure works in South Dakota

The notices you will receive in South Dakota, in order

1. Notice that the whole loan is due

   From the lender after missed payments and the federal 120-day wait

   If you have a 180-day redemption mortgage, it may require 20 days' notice by registered or certified mail before the full balance is called due, and that notice can come with a notice of your right to cure. For other mortgages, read your mortgage for any notice it promises.

   SDCL 21-49-13

2. Agricultural mediation notice, farm and ranch land only

   Before the creditor can start the foreclosure

   A creditor enforcing a debt of $50,000 or more against agricultural land, meaning more than 40 acres outside a city used in farming or ranching, must first request mediation through the state agricultural mediation program. You then get a notice of a first meeting within 21 days.

   SDCL 54-13-1, 54-13-10, 54-13-11

3. Summons and complaint (foreclosure by action)

   Served on you when a court foreclosure starts

   You have 30 days after service to serve a written answer. If you do not answer, the lender can get a judgment and an order to sell the home without a trial.

   SDCL 15-6-12(a), 21-49-21

4. Notice of foreclosure sale (foreclosure by advertisement)

   Published once a week for 4 weeks in a row in a county legal newspaper

   The notice must give the amount claimed, describe the default, give the time and place of the sale, and say that you can apply for foreclosure by action. That last line is your right to move the case into court.

   SDCL 21-48-6

5. Written copy of the sale notice served on you

   At least 21 days before the sale

   The lender must serve you with a written copy of the notice of sale, not just publish it. Write down the date you got it and show it to legal aid.

   SDCL 21-48-6.1

6. Sheriff's certificate of sale

   Given at the sale; recorded within 10 days, or 20 days for a 180-day redemption mortgage

   The buyer gets a certificate, not a deed, showing the price paid. Your redemption period runs from the sale date, or for a 180-day redemption mortgage from the day the certificate is recorded.

   SDCL 21-48-19, 21-49-30

7. Sheriff's deed and eviction summons

   After the redemption period ends without a redemption

   The sheriff gives the buyer a deed. If you are still in the home, the buyer can bring an eviction case, called forcible entry and detainer, and you have only 5 days after service to appear and respond.

   SDCL 21-48-21, 21-16-1(5), 21-16-7

The legal steps in South Dakota

1. Missed payments and pre-foreclosure

   Federal rules generally bar the servicer from starting foreclosure until you are more than 120 days behind. Ask your servicer for help in writing and talk to a housing counselor or legal aid.

   12 C.F.R. § 1024.41(f)

2. Foreclosure starts: lawsuit or advertisement

   The lender either serves you with a summons and complaint in circuit court, or starts publishing a notice of foreclosure sale. Check your mortgage for a power of sale clause and for the words One Hundred Eighty Day Redemption in the title. If you are served with a lawsuit, you have 30 days to serve a written answer.

   SDCL 21-47-13, 21-48-1, 21-49-12, 15-6-12(a), 21-49-21

3. Notice of the sale

   In a foreclosure by advertisement the notice must be published once a week for four weeks in a row, and a written copy must be served on you at least 21 days before the sale. In a court foreclosure of a 180-day redemption mortgage, notice is published for at least two weeks.

   SDCL 21-48-6, 21-48-6.1, 21-49-25

4. Move the case into court if you want a judge

   If the lender is foreclosing by advertisement, you can apply to the circuit court to require foreclosure by action. You do not have to give reasons. The judge then orders the lender to stop the advertisement process and go through court.

   SDCL 21-48-9

5. Sheriff's sale

   The sheriff or a deputy sells the home at public auction in the county between 9 a.m. and 5 p.m. The buyer gets a certificate of sale, not a deed.

   SDCL 21-48-10, 21-47-21

6. Redemption period

   You can redeem by paying the sale price plus allowed amounts and interest within one year of the sale. For a 180-day redemption mortgage the period is 180 days from the recording of the certificate of sale, or 60 days if the home is abandoned. Possession is not given to the buyer until the redemption period ends.

   SDCL 21-52-11, 21-49-38, 21-47-13

7. Deed and move-out

   If no one redeems, the buyer gets a deed when the redemption period ends and can then take possession.

   SDCL 21-48-21, 21-47-24

Common questions in South Dakota