FORECLOSURES IN MONTANA

Montana Code Annotated 1981, Vol. 3, Section 25-13-801

Judicial foreclosure: Yes

Non-judicial foreclosure available: Yes

Typically non-judicial.  Real estate may be foreclosed on by filing a lawsuit or conducting a non-judicial private foreclosure sale in compliance with state law.  If tract of land is over 15 acres then lender must foreclosure either by filing a lawsuit or seeking an order of sale. 

Preliminary 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

 
Notice of Sale:  The Notice of Sale must include the names of the borrower, lender, and trustee.  A description of the property in foreclosure.  A description of the default causing the foreclosure.  The book and page where the deed of trust is recorded.  The sum owing on the defaulted loan.  The trustee’s or lender’s intention to sell the property and pay off the debt.  The date of the sale, which should not be less than 120 days form the date the Notice of Sale recorded.  The time of sale, between 9 A.M. and 4 P.M. MSN.  The place of the sale, which shall be at the courthouse in the county in which the property is located, or the office or usual place of business of the trustee within the same county. 

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 staling 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 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).