- Who sends it
- The foreclosing lender or its attorney publishes it in a county legal newspaper and serves a written copy on you
- What it starts
- A sheriff's sale on the date in the notice, at least 4 weeks after publication starts and at least 21 days after you are served
- Do this first
- Find the sale date, then call legal aid about applying for foreclosure by action under SDCL 21-48-9
What this document is in South Dakota
If your mortgage contains a power of sale, the lender can foreclose by advertisement after a default, without suing you (SDCL 21-48-1). The notice must be published at least once a week for four weeks in a row in a legal newspaper in the county where the home is (SDCL 21-48-6).
SDCL 21-48-6 lists what it must say: the names of the borrower, the lender and any assignee; the date of the mortgage; the amount claimed due as of the notice date; a description of the property; the time and place of sale; a description of the default; that you can apply for foreclosure by action under SDCL 21-48-9; and the name and address of everyone claiming a recorded lien or interest.
Publication alone is not enough. At least 21 days before the sale, the lender must serve a written copy of the notice on you and on any lienholder whose interest would be affected (SDCL 21-48-6.1).
What it does and does not mean
- It does not mean you must move. The buyer at the sale gets a sheriff's certificate of sale, not a deed, and you can stay and redeem during the redemption period.
- It gives you a right to make the lender go to court. Under SDCL 21-48-9 you apply to the circuit court describing the mortgage and your interest, without stating any reasons. The judge then orders the lender to stop the advertisement and foreclose by action.
- The sale must be a public auction run by the county sheriff or a deputy, between 9 a.m. and 5 p.m., in the county where the home is, to the highest bidder (SDCL 21-48-10).
- If the lender buys the home and later wants a deficiency, it must first prove to a court that the home sold for its true market value or more (SDCL 21-48-14).
The deadlines it starts and how to count them
- Sale date: printed in the notice. Publication must run at least once a week for four weeks in a row before it (SDCL 21-48-6).
- Served copy: at least 21 days before the sale (SDCL 21-48-6.1). Count back 21 calendar days from the sale date. If you were served later than that, show the papers to a lawyer right away.
- Moving the case into court: SDCL 21-48-9 sets no day count, but it applies while the foreclosure by advertisement is going on, so the application must be made before the sale. Do it as early as you can.
- Postponement: the lender can postpone the sale by publishing a postponement notice in the same newspaper as soon as practicable and keeping it running until the new date (SDCL 21-48-11). Check the paper and call the sheriff.
- After the sale: the redemption period is one year from the sale for most mortgages (SDCL 21-52-11), or 180 days from recording of the certificate for a 180-day redemption mortgage (SDCL 21-49-38).
See what to do when a South Dakota sale date is set for a day-by-day plan.
What to do this week
- Write down the sale date and the date you were served. Keep the copy and the envelope.
- Compare the amount claimed and the default described with your records.
- Apply through SD Law Help, or call East River Legal Services at 1-800-952-3015 or Dakota Plains Legal Services at 605-856-4444, and ask about an application for foreclosure by action under SDCL 21-48-9.
- Send your servicer a complete loss mitigation application if you have not. If it arrives more than 37 days before the sale, federal rules give you added protection.
- Ask the servicer and the lender's attorney, in writing, to postpone the sale while your application is reviewed.
- Call the county sheriff's office to confirm the sale date and place.
Help and scam warnings
Because the notice runs in the newspaper, it often brings letters and visits from people offering to save your home or buy it fast. South Dakota has no law written just for these offers.
- Do not pay upfront fees. Federal rules generally bar mortgage relief companies from charging before you sign a deal with your lender that they got for you (12 C.F.R. § 1015.5(a)).
- Do not sign over your deed or your redemption rights without advice. Report offers that worry you to the South Dakota Attorney General's Consumer Protection division.
- Free counseling is available through South Dakota Housing's HERO network. See the South Dakota foreclosure help page.
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
Can I make my South Dakota lender foreclose in court instead?
Yes. If the lender started a foreclosure by advertisement, SDCL 21-48-9 lets you apply to the circuit court describing the mortgage and your interest, without giving reasons. The judge must order the lender to stop the advertisement and proceed in circuit court. Legal aid can help with the application.
Does the lender have to send me the South Dakota sale notice, or just print it in the paper?
Both. It must be published once a week for four weeks in a row (SDCL 21-48-6), and a written copy must be served on you at least 21 days before the sale (SDCL 21-48-6.1).
Can my South Dakota sale be postponed?
Yes. The lender can postpone it by publishing a notice of postponement in the same newspaper and keeping it running until the new date (SDCL 21-48-11). Ask your servicer in writing, and confirm any new date with the sheriff's office.
Is the South Dakota sale the end?
No. You usually have one year from the sale to redeem (SDCL 21-52-11), or 180 days from recording of the certificate for a 180-day redemption mortgage (SDCL 21-49-38), and you keep possession during that time.
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.
- 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.
- Sheriff's notice of deposit of surplus with the clerk of courtsWhen a foreclosure sale by advertisement brings in more than the costs and the debt, the sheriff pays the extra to the clerk of the circuit court and must mail notice of the deposit to you and to junior lienholders. The court decides who gets it. You can ask for it yourself without paying a finder.
- 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 21-48-6 (publication and contents of notice)
- SDCL 21-48-6.1 (written notice served 21 days before sale)
- SDCL 21-48-9 (application to require foreclosure by action)
- SDCL 21-48-1 (foreclosure by advertisement with power of sale)
- SDCL 21-48-10 (time and place of sale)
- SDCL 21-48-11 (postponement of sale)
- SDCL 21-48-14 (proof of value before deficiency)
- SDCL 21-52-11 (one-year redemption)
- SD Law Help