- Who sends it
- The county sheriff who ran the sale, by mail, right after the surplus is deposited with the clerk
- What it starts
- Your chance to ask the circuit court to pay the surplus to you; no claim deadline was found in the statutes
- Do this first
- Call the clerk of courts in the county of the sale and ask how to apply for the surplus in that case
What this notice is in South Dakota
Under SDCL 21-48-16, the officer who conducts a foreclosure sale by advertisement applies the money as SDCL 21-47-18 directs: first the costs and expenses of the sale, then the costs taxed, then the debt. Any surplus is paid to the clerk of the circuit court, who gives a receipt. The sheriff must "forthwith" mail notice of the deposit to the mortgagor and to everyone holding a junior lien.
After a court foreclosure, the surplus is paid into court "for the use of the defendant or the person entitled thereto, subject to the order of the court" (SDCL 21-47-18(4)). The statute does not require a separate mailed notice in that case, so check the sheriff's return of sale, which must show any surplus (SDCL 15-19-20).
What it does and does not mean
- It does not mean all of the money is yours. Junior lienholders, such as a second mortgage, get the same notice and can claim it too. The court decides who is entitled.
- It does not mean a check is coming. The money is held subject to the court's order.
- It does not end your right to redeem. Surplus and redemption are separate. See the sheriff's certificate of sale.
- You do not need a paid finder to claim it.
The deadlines and how to count them
- No deadline to claim was found in the foreclosure statutes. Apply soon anyway, because lienholders can claim first.
- If the surplus stays with the clerk for three months without the rights being decided, the clerk may put it in an interest-bearing certificate of deposit for whoever is entitled (SDCL 21-48-17). In a court foreclosure, the court may direct it be put out at interest after three months (SDCL 21-47-18).
- Money that is never claimed may later go to the State Treasurer's unclaimed property program.
The South Dakota surplus funds page explains each step.
What to do this week
- Call or visit the clerk of courts in the county where the sale was held. Give your name as it appears on the mortgage and ask how much was deposited and how to apply in that case.
- Ask the clerk or the Unified Judicial System's Self Help pages how to file a request to the court for the money.
- List any second mortgage, home equity line or judgment liens that may claim part of the surplus.
- Bring proof that you were the owner, such as your deed or the notice of sale.
- If a lienholder disputes your claim, contact legal aid through SD Law Help.
Scam warnings tied to this notice
- Expect calls or letters from companies offering to recover your surplus for a share. We found no South Dakota fee cap for surplus still with the clerk of courts, so call the clerk yourself first. It costs nothing.
- For money already reported to the State Treasurer, fee agreements made too early are unenforceable, and later agreements over 25 percent must be in writing and signed by you (SDCL 43-41B-36).
- Never sign a power of attorney or an assignment of your claim before you know how much is on deposit.
The rest of the South Dakota process
See how foreclosure works in South Dakota, the timeline, ways to stop it and free help in South Dakota, or read the national guide to this letter.
Common questions
Who holds my South Dakota foreclosure surplus?
The clerk of the circuit court in the county where the sale took place. After a sale by advertisement, SDCL 21-48-16 has the sheriff pay it to the clerk and mail you notice. After a court foreclosure, SDCL 21-47-18 has it paid into court subject to the court's order.
Will a South Dakota second mortgage lender get my surplus?
It may. Junior lienholders get the same notice under SDCL 21-48-16 and can ask for the money, and the court decides who is entitled. Whatever is left after valid claims can be paid to you.
Does South Dakota surplus earn interest while it waits?
It can. If the surplus sits with the clerk for three months without the rights being decided, the clerk may put it in an interest-bearing certificate of deposit for whoever is entitled (SDCL 21-48-17). The law allows this but does not require it.
Other South Dakota letters
- Twenty-day notice that the whole debt is due (One Hundred Eighty Day Redemption mortgage)If your mortgage is titled "MORTGAGE--ONE HUNDRED EIGHTY DAY REDEMPTION," it can let the lender call the whole debt due after a default on 20 days' notice by registered or certified mail. The notice may come with a notice of your right to cure. It is not a lawsuit and not a sale notice, but foreclosure can follow once the 20 days pass.
- Summons and Complaint (foreclosure by action)A summons and complaint means your lender has sued to foreclose in circuit court, called foreclosure by action. You have 30 days after you are served to serve a written answer. In this kind of case, paying the past-due principal and interest plus costs into court before judgment requires the case to be dismissed.
- Notice of Mortgage Foreclosure Sale (foreclosure by advertisement)In a foreclosure by advertisement, there is no lawsuit. The lender publishes a notice of sale for four weeks in a row and must serve you a written copy at least 21 days before the sheriff's sale. The notice must tell you that you can apply to have the foreclosure done in court instead, and you do not have to give a reason.
- Sheriff's Certificate of SaleAt a South Dakota foreclosure sale, the sheriff gives the buyer a certificate of sale and records it with the register of deeds. It is not a deed. You keep living in the home and can redeem for one year from the sale, or 180 days from recording for a 180-day redemption mortgage.
- Summons and complaint for forcible entry and detainer (eviction) after a sheriff's deedOnce the redemption period ends without a redemption and the sheriff gives the buyer a deed, the buyer can file a forcible entry and detainer case if you are still in the home. The summons gives you only 5 days from service to appear and respond. Only a court judgment can order you out.
Sources
- SDCL 21-48-16 (surplus paid to clerk; mailed notice of deposit)
- SDCL 21-48-17 (investment of surplus after three months)
- SDCL 21-47-18 (application of sale proceeds)
- SDCL Chapter 15-19 (sheriff's return of sale)
- SDCL 43-41B-36 (agreements to locate reported property)
- South Dakota Unified Judicial System: Self Help