 Montana Loan Modification Guidelines
When you develop a definite plan of action with well-timed, well-informed
steps, you can stop the foreclosure process and save your home. We have
outlined the foreclosure process for the state of Montana .
The Process
Real estate may be foreclosed on by filing a lawsuit or by conducting
a non-judicial private foreclosure sale in compliance with Montana law.
Montana has some unusual mortgage provisions that have been largely replaced
by the Small Tract Financing Act of Montana for homesteads and small business
real estate. If the tract of land is 15 acres or less, then the lender
may use a trust deed that provides for a relatively quick and inexpensive
foreclosure procedure. Unless the Small Tract Financing Act applies, then
the lender must foreclose either by filing a lawsuit and seeking an order
of sale, or else following a special foreclosure procedure.
Under Montana's special foreclosure procedures, if applicable, the lender
or person conducting the foreclosure sale must publish, post and serve
a foreclosure notice at least 30 days in advance of the foreclosure sale.
The notices must be advertised in a newspaper where the real estate is
located, and if there is no newspaper, then by posting the notices in five
conspicuous places in the county. Two other notices must be posted in conspicuous
places in the township in which the land is situated, and one such notice
must be in such a conspicuous place as will be most likely to give notice
to all persons of the sale, and one must be posted at the front door of
the county courthouse. The notice of sale must be further served on the
occupant of the property to be foreclosed on and upon every person claiming
an interest in the property who may be found in the state of Montana.
Small Tract Financing Act Foreclosure Procedure
If the tract of land is less than 15 acres, then the Small Tract Financing
Act applies to the foreclosure under the power sale provisions of a deed
of trust. If there is a default on a loan obligation secured by the deed
of trust, and then recorded a notice of sale, duly executed and acknowledged
by the trustee named in the deed of trust, which sets forth l proper information,
then the foreclosure may be done out of court. The contents of the foreclosure
notice must include:
1. The names of the borrower, lender and trustee.
2. A description of the property in foreclosure.
3. A description of the default causing the foreclosure.
4. The book and page where the trust deed is recorded.
5. The sum owing on the defaulted loan.
6. The trustee's or lender's intention to sell the property or pay off
the debt.
7. The date of the sale, which shall be not less than 120 days subsequent
to the date the foreclosure notice is filed for record.
8. The time of the sale, which shall be between the hours of 9 A.M. and
4 P.M., mountain standard time.
9. The place of the sale, which shall be at the courthouse in the county
in which the property is located, or at the office or usual place of business
of the trustee if it's within the county in which the property is located.
Mailing of Foreclosure Notices
The trustee, at least 120 days before the date fixed for the foreclosure
sale, must mail foreclosure notices by registered or certified mail to
the following persons:
- The borrower, at the borrower's last known address
- Any person who recorded a request for notice
- Any record title owner as of the notice filing date
Posting
At least 20 days before the date fixed for the trustee's sale, a copy
of the recorded notice of sale must be posted in a conspicuous place on
the property to be sold. The trustee may request the sheriff or constable
of the county to post the notice. A copy of the notice shall be published
in a newspaper of general circulation in the county in which the property
is located once per week for three successive weeks. The posting and the
last publication shall be made at least 20 days before the date fixed for
the trustee's sale.
Recording
On or before the date of the sale the trustee must record an affidavit
stating that the requirements of mailing, posting and publication have
been met.
Sale Procedures
At the date, time and place specified for foreclosure in the notice of
sale, the trustee or his or her attorney shall sell the property at public
auction to the highest bidder. The sale may be postponed up to 15 days
by a proclamation made at the time the foreclosure sale would otherwise
have taken place. The purchaser must pay the high bid price in cash. In
return, the purchaser will receive a trustee's deed. If the purchaser fails
to pay, then the trustee can resell the proper at any time to the highest
bidder. The trustee may reject any further bidding by a bidder who fails
to produce cash in response to winning a bid.
Redemption
Although the old statutes provided for a one year right of redemption,
the Small Tract Financing Act eliminates the borrower's right to redeem
after a properly conducted foreclosure sale.
Deficiency
Montana does not allow a deficiency judgment unless the foreclosure was
done by filing a lawsuit and the sale proceeds were insufficient to pay
the judgment. Small Tract Financing Act foreclosures done out of court
by advertisement do not give the lender any right to collect a deficiency
from the borrower.
Possession
The lender may obtain possession on the tenth day following the sale.
Any person still in the house or property is to be treated as a tenant
at will (a nonpaying tenant)
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