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South Dakota Foreclosure Law Summary
Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed
of Trust, Mortgage
- Timeline: Typically 90 days
- Right of Redemption: Varies
- Deficiency Judgments Allowed: Varies
In South Dakota, lenders may foreclose on deeds of trusts
or mortgages in default using either a judicial or non-judicial
foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure, which involves filing
a lawsuit to obtain a court order to foreclose, is used
when no power of sale is present in the mortgage or deed
of trust. Generally, after the court declares a foreclosure,
your home will be auctioned off to the highest bidder.
Non-Judicial Foreclosure
The non-judicial process of foreclosure is used when
a power of sale clause exists in a mortgage or deed of
trust. A "power of sale" clause is the clause
in a deed of trust or mortgage, in which the borrower
pre-authorizes the sale of property to pay off the balance
on a loan in the event of the their default. In deeds
of trust or mortgages where a power of sale exists, the
power given to the lender to sell the property may be
executed by the lender or their representative, typically
referred to as the trustee. Regulations for this type
of foreclosure process are outlined below in the "Power
of Sale Foreclosure Guidelines".
Power of Sale Foreclosure Guidelines
If the deed of trust or mortgage contains a power of
sale clause and specifies the time, place and terms of
sale, then the specified procedure must be followed. Otherwise,
the non-judicial power of sale foreclosure is carried
out as follows:
- A foreclosure notice must be published once a week
for four successive weeks in a newspaper of general
circulation in the county where the premises are located.
- At least twenty-one days prior to the date set for
sale, the lender must serve a written copy of the notice
of foreclosure sale on the borrower and any lien holder
whose interest in the property being foreclosed would
be affected by the foreclosure.
- Said notice must contain the names of the borrower
and lender, the mortgage date, the amount due, a description
of the premises and the time and place of sale.
- The sale must be made by the sheriff of such county,
or his deputy, between the hours of 9:00 am and 5:00
pm to the highest bidder. Any person including the mortgagee
(lender) may bid at the sale. The winning bidder will
receive a certificate of sale.
- The sale may be postponed, from time to time, by inserting
a notice of such postponement, as soon as possible,
in the newspaper in which the original advertisement
was published, and continuing such publication until
the time when the postponed sale occurs.
If the property is 40 acres or less, and the mortgage
contains a power of sale clause, then a 180-day period
of redemption exists. If the property is abandoned, the
time period is reduced to 60 days. Generally, unless special
short-term redemption mortgage provisions apply, borrowers
may redeem within one year of the date of sale.
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