Foreclosure & Alternatives Law
You never want to go into a foreclosure without knowing how the process is supposed to work in your state, the legal options that you have, and the rights that the laws in South Dakota give you. For example, you have the option to declare bankruptcy if it is applicable in your situation, and it can then slow the foreclosure process down a bit, but there is no guarantee that it will stop it entirely. Once the bankruptcy case has been resolved, the foreclosure lawsuit can begin again, and you are still legally obligated to pay off that debt.
This is just one tactic for fighting a foreclosure, and it has worked in some cases; namely, people are sometimes able to get rid of other debts so that their mortgages become affordable again, and they can then square things up before the home is auctioned off. Below are some other key things that you should know about this process.
A foreclosure cannot legally proceed until the lending company -— or the foreclosing party —- has published an official notice. That has to be done four times, and it must see publication once a week. Also, as the homeowner, you must be sent your own notice 21 days in advance. This notice will tell you that the lawsuit is coming, and it will also tell you that you have the right to ask for a judicial foreclosure instead of a nonjudicial foreclosure if you so desire.
The laws for reinstatement vary depending on the type of foreclosure being used. If it is judicial, you can pay off the full amount of back payments and fees that you owe, prior to any ruling from the court, and the case will then be dismissed. If the court has made a ruling but the house hasn’t been sold, and then you pay it back, the foreclosure might be put on hold. However, it could start back up if you default on another payment.
For nonjudicial foreclosures, you do not have these same lawful rights. They may, however, be given to you in the language of your mortgage contract. They are simply not guaranteed by law.
You might also want to redeem the property even after the sale is carried out. In many cases, you get a full year to do this. However, your mortgage contract may say that your specific loan is a short-term redemption loan. If it does, your time period drops to six months.
The Servicemembers Civil Relief Act is a federal ruling, and, under it, military members are protected from having their homes foreclosed upon if they are busy serving the country on active duty. In South Dakota, the law extends these federal protections so that you also get them if you are in the National Guard and you are called officially to active duty.
The last step is to leave the house, but this works in two ways. For a nonjudicial foreclosure, the law does not say how things must progress, so you will have to talk to the lender about what they desire. For a judicial foreclosure, though, the judge will make the ruling. He or she may decide that you can stay in the home until the 6-month or 12-month redemption period ends. Then the owner can give you a notice to vacate the home in three days. After that, the new owner will need to ask law enforcement for an eviction.