Print Friendly HOUSE BILL NO. 170 – Deed of trust/default cured/notice
HOUSE BILL NO. 170
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DEED OF TRUST - Amends existing law to provide for publication of a notice
of cure if a default under a deed of trust is cured prior to the trustee's
sale of the property or entry of a decree of foreclosure.
02/04 House intro - 1st rdg - to printing
02/05 Rpt prt - to Bus
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature First Regular Session - 1999
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 170
BY BUSINESS COMMITTEE
1 AN ACT
2 RELATING TO DEEDS OF TRUST; AMENDING SECTION 45-1506, IDAHO CODE, TO PROVIDE
3 FOR PUBLICATION OF A NOTICE OF CURE IF A DEFAULT IS CURED PRIOR TO THE
4 TRUSTEE'S SALE OF THE PROPERTY OR ENTRY OF A DECREE OF FORECLOSURE.
5 Be It Enacted by the Legislature of the State of Idaho:
6 SECTION 1. That Section 45-1506, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 45-1506. MANNER OF FORECLOSURE -- NOTICE -- SALE. (1) A trust deed may be
9 foreclosed in the manner provided in this section.
10 (2) Subsequent to recording notice of default as hereinbefore provided,
11 and at least one hundred twenty (120) days before the day fixed by the trustee
12 for the trustee's sale, notice of such sale shall be given by registered or
13 certified mail, return receipt requested, to the last known address of the
14 following persons or their legal representatives, if any:
15 (a) The grantor in the trust deed and any person requesting notice of
16 record as provided in section 45-1511, Idaho Code.
17 (b) Any successor in interest of the grantor (including, but not limited
18 to, a grantee, transferee or lessee) whose interest appears of record
19 prior to the recording of the notice of default, or where the trustee or
20 the beneficiary has actual notice of such interest.
21 (c) Any person having a lien or interest subsequent to the interest of
22 the trustee in the trust deed where such lien or interest appears of
23 record prior to the recording of the notice of default, or where the
24 trustee or the beneficiary has actual notice of such lien or interest.
25 (3) The disability, insanity or death of any person to whom notice of
26 sale is to be given under subsection (2) of this section shall not delay or
27 impair in any way the trustee's right under a trust deed to proceed with a
28 sale under such deed, provided the notice of sale required under subsection
29 (2) of this section has been mailed as provided by law for service of summons
30 upon incompetents or to the administrator or executor of the estate of such
32 (4) The notice of sale shall set forth:
33 (a) The names of the grantor, trustee and beneficiary in the trust deed.
34 (b) A description of the property covered by the trust deed.
35 (c) The book and page of the mortgage records or the recorder's instru-
36 ment number where the trust deed is recorded.
37 (d) The default for which the foreclosure is made.
38 (e) The sum owing on the obligation secured by the trust deed.
39 (f) The date, time and place of the sale which shall be held at a desig-
40 nated time after 9:00 a.m. and before 4:00 p.m., Standard Time, and at a
41 designated place in the county or one of the counties where the property
42 is located.
43 (5) At least three (3) good faith attempts shall be made on different
1 days over a period of not less than seven (7) days each of which attempts must
2 be made at least thirty (30) days prior to the day of the sale to serve a copy
3 of the notice of sale upon an adult occupant of the real property in the man-
4 ner in which a summons is served. At the time of each such attempt, a copy of
5 the notice of sale shall be posted in a conspicuous place on the real property
6 unless the copy of the notice of sale previously posted remains conspicuously
7 posted. Provided, however, that if during such an attempt personal service is
8 made upon an adult occupant and a copy of the notice is posted, then no fur-
9 ther attempt at personal service and no further posting shall be required.
10 Provided, further, that if the adult occupant personally served is a person to
11 whom the notice of sale was required to be mailed (and was mailed) pursuant to
12 the foregoing subsections of this section, then no posting of the notice of
13 sale shall be required.
14 (6) A copy of the notice of sale shall be published in a newspaper of
15 general circulation in each of the counties in which the property is situated
16 once a week for four (4) successive weeks, making four (4) publishings in all,
17 with the last publication to be at least thirty (30) days prior to the day of
19 (7) An affidavit of mailing notice of sale and an affidavit of posting
20 (when required) and publication of notice of sale as required by subsection
21 (6) of this section shall be recorded in the mortgage records in the counties
22 in which the property described in the deed is situated at least twenty (20)
23 days prior to the date of sale.
24 (8) The sale shall be held on the date and at the time and place desig-
25 nated in the notice of sale or notice of rescheduled sale as provided in sec-
26 tion 45-1506A, Idaho Code, unless the sale is postponed as provided in this
27 subsection or as provided in section 45-1506B, Idaho Code, respecting the
28 effect of an intervening stay or injunctive relief order. The trustee shall
29 sell the property in one parcel or in separate parcels at auction to the high-
30 est bidder. Any person, including the beneficiary under the trust deed, may
31 bid at the trustee's sale. The attorney for such trustee may conduct the sale
32 and act in such sale as the auctioneer of trustee. The trustee may postpone
33 the sale of the property upon request of the beneficiary by publicly announc-
34 ing at the time and place originally fixed for the sale, the postponement to a
35 stated subsequent date and hour. No sale may be postponed to a date more than
36 thirty (30) days subsequent to the date from which the sale is postponed. A
37 postponed sale may itself be postponed in the same manner and within the same
38 time limitations as provided in this subsection.
39 (9) The purchaser at the sale shall forthwith pay the price bid and upon
40 receipt of payment the trustee shall execute and deliver the trustee's deed to
41 such purchaser, provided that in the event of any refusal to pay purchase
42 money, the officer making such sale shall have the right to resell or reject
43 any subsequent bid as provided by law in the case of sales under execution.
44 (10) The trustee's deed shall convey to the purchaser the interest in the
45 property which the grantor had, or had the power to convey, at the time of the
46 execution by him of the trust deed together with any interest the grantor or
47 his successors in interest acquired after the execution of such trust deed.
48 (11) The purchaser at the trustee's sale shall be entitled to possession
49 of the property on the tenth day following the sale, and any persons remaining
50 in possession thereafter under any interest except one prior to the deed of
51 trust shall be deemed to be tenants at sufferance.
52 (12) Whenever all or a portion of any obligation secured by a deed of
53 trust which has become due by reason of a default of any part of that obliga-
54 tion, including taxes, assessments, premiums for insurance or advances made by
55 a beneficiary in accordance with the terms of the deed of trust, the grantor
1 or his successor in interest in the trust property or any part thereof, or any
2 beneficiary under a subordinate deed of trust or any person having a subordi-
3 nate lien or encumbrance of record thereon, at any time within one hundred
4 fifteen (115) days of the recording of the notice of default under such deed
5 of trust, if the power of sale therein is to be exercised, or otherwise at any
6 time prior to the entry of a decree of foreclosure, may pay to the benefi-
7 ciary or their successors in interest, respectively, the entire amount then
8 due under the terms of the deed of trust and the obligation secured thereby
9 (including costs and expenses actually incurred in enforcing the terms of such
10 obligation and a reasonable trustee's fee subject to the limitations imposed
11 by subsection (6) of section 45-1502, Idaho Code, and attorney's fees as may
12 be provided in the promissory note) other than such portion of the principal
13 as would not then be due had no default occurred, and thereby cure the default
14 theretofore existing, and thereupon, all proceedings theretofore had or insti-
15 tuted shall be dismissed or discontinued and the obligation and deed of trust
16 shall be reinstated and shall be and remain in force and effect, the same as
17 if no acceleration had occurred. If the default is cured prior to the
18 sale or prior to the entry of a decree of foreclosure as provided in this sub-
19 section, the beneficiary may cause a notice of cure to be published in a news-
20 paper of general circulation in each of the counties in which the property is
21 situated once a week for two (2) successive weeks within thirty (30) days
22 after the cure has been effected. The notice of cure shall contain the infor-
23 mation specified in subsections (4)(a), (b) and (c) of this section, shall
24 indicate by whom the default was cured and shall provide any other informa-
25 tion necessary to indicate that the proceedings have been terminated and that
26 the obligation and deed of trust have been fully satisfied or are otherwise
27 reinstated and in full force and effect.
28 (13) Any mailing to persons outside the United States and its territories
29 required by this chapter may be made by ordinary first class mail if certified
30 or registered mail service is unavailable.
31 (14) Service by mail in accordance with the provisions of this section
32 shall be deemed effective at the time of mailing.
STATEMENT OF PURPOSE
The purpose of this legislation is to provide a permissive
vehicle to allow cured defaults to be noticed in a newspaper of
general circulation in each of the counties in which the property
is situated once a week for (2) successive weeks within thirty
days after the cure has been effected.
This allows the grantor in the trust deed or any involved related
persons the opportunity to notify the community that the default
has been cured or resolved prior to the trustees sale of the
property or foreclosure action.
Optional expense incurred by the grantor if they choose to
advertise to place a public notice indicating the default has
been cured or resolved.
CONTACT: Representative Wendy Jaquet
STATEMENT OE PURPOSE/ FISCAL NOTE Bill No. H 170