- Who sends it
- The lender's attorney files the case in the circuit court of the county where the home is and has you served, usually by the sheriff or another authorized person
- What it starts
- 30 days after service to serve a written answer on the lender's attorney
- Do this first
- Write down the date you were served, count 30 days, and apply for free legal help through SD Law Help today
What this document is in South Dakota
South Dakota lets a lender foreclose in two ways. It can sue in circuit court, called foreclosure by action (chapter 21-47), or, if the mortgage has a power of sale, foreclose by advertisement without a lawsuit (SDCL 21-48-1). A summons and complaint means the lender chose court, or that someone required it to go to court under SDCL 21-48-9.
The summons tells you a case has been filed and how to respond. The complaint lists the mortgage, what the lender says you owe, and what it asks the court to do. For a 180-day redemption mortgage, everyone with an interest in or lien on the home must be named, and the complaint must say whether the lender has already tried to collect the debt another way (SDCL 21-49-15, 21-49-18).
Sometimes the summons is served without the complaint. Then the summons must say where the complaint is or will be filed. If you give notice of appearance and demand a copy in writing within 30 days, the lender must serve it within 20 days, and you then have 30 days to answer (SDCL 15-6-4(b)).
What it does and does not mean
- It does not mean you must leave. Even after a judgment and sale, the buyer cannot get possession until the redemption period ends (SDCL 21-47-13).
- It means a judge, not the lender, decides the amount due and whether a sale is ordered.
- If the lender wants to bid less than the full debt at the sale, it must prove the fair and reasonable value of the home at trial. Otherwise the sale fully pays the mortgage debt (SDCL 21-47-16, 21-47-17). See deficiency judgments in South Dakota.
- If you ignore it, the lender can show by affidavit that you did not answer and ask for judgment without a trial (SDCL 15-6-55(a)).
The deadline it starts and how to count it
- You must serve your answer within 30 days after service of the complaint on you (SDCL 15-6-12(a)). For a 180-day redemption mortgage, SDCL 21-49-21 says the same: 30 days after service of the summons.
- Count from the day after you were served. Day 1 is the next day. If day 30 is a Saturday, Sunday or legal holiday, the deadline moves to the next day that is not (SDCL 15-6-6(a)).
- Serve means deliver a copy to the lender's attorney named on the summons. File the original with the clerk of courts as well, and keep proof of when and how you served it.
- Before judgment: paying into court the principal and interest then due, with costs and disbursements, requires the complaint to be dismissed on a loan with later installments still to come (SDCL 21-47-8).
- After judgment and before the sale: paying the same amounts into court stays the case until a later default (SDCL 21-47-10).
See how foreclosure works in South Dakota for each step after the answer.
What to do this week
- Write the service date on the papers and mark day 30.
- Apply through SD Law Help and say you have a 30-day court deadline. For an urgent deadline, call East River Legal Services at 1-800-952-3015 or Dakota Plains Legal Services at 605-856-4444.
- Check the complaint's amount against your records and note anything that looks wrong, such as payments not credited or fees you do not recognize.
- Ask the servicer in writing for the amount of principal and interest now due and the costs, in case paying into court under SDCL 21-47-8 is possible.
- If you cannot get a lawyer, the South Dakota Unified Judicial System's Self Help pages explain representing yourself and filing. If you can pay a lawyer, use the State Bar of South Dakota lawyer referral service.
- Keep working on a loss mitigation application with a free HERO network counselor. The lawsuit does not end your chance to apply.
State help and scam warnings
- Filing an answer and calling legal aid cost little or nothing. Be wary of anyone who wants a large upfront fee to "stop the lawsuit."
- A complaint to the South Dakota Division of Banking or the Attorney General does not pause the case or your 30 days.
- More contacts are on 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
How long do I have to answer a South Dakota foreclosure lawsuit?
30 days after you are served (SDCL 15-6-12(a)), and SDCL 21-49-21 says the same for 180-day redemption mortgages. Count from the day after service, and if the last day falls on a weekend or legal holiday, it moves to the next business day (SDCL 15-6-6(a)).
Can I stop a South Dakota court foreclosure by catching up?
The law gives a path in court cases. Paying into court the principal and interest then due, with costs, before judgment requires the case to be dismissed (SDCL 21-47-8). Paying after judgment but before the sale stays the case until a later default (SDCL 21-47-10). Whether this works after the whole loan was called due was not confirmed, so ask a lawyer.
Will I owe money after a South Dakota court foreclosure sale?
Usually not. A court foreclosure counts as full payment of the debt unless the lender proved the fair and reasonable value of the home at trial and the court let it bid less (SDCL 21-47-16, 21-47-17). That is one reason to answer and take part in the case.
I got the summons but no complaint. What do I do?
The summons must say where the complaint is or will be filed. Within 30 days, give notice of appearance and demand a copy of the complaint in writing. The lender must serve it within 20 days, and you then have 30 days to answer (SDCL 15-6-4(b)).
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.
- 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.
- 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 15-6-12(a) (30 days to answer)
- SDCL 21-49-21 (answer within 30 days, 180-day redemption mortgages)
- SDCL 15-6-4(b) (summons served without complaint)
- SDCL 15-6-6(a) (computation of time)
- SDCL 21-47-8 (dismissal on payment before judgment)
- SDCL 21-47-10 (stay on payment before sale)
- SDCL 21-47-13 (no possession to buyer until redemption ends)
- SDCL 15-6-55(a) (entry of default)
- SDCL 21-49-15 and 21-49-18 (180-day redemption mortgage foreclosure actions)
- South Dakota Unified Judicial System: Self Help
- SD Law Help