1999 Legislation
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HOUSE BILL NO. 170 – Deed of trust/default cured/notice


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Daily Data Tracking History

H0170...........................................................by BUSINESS
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

Bill Text


 ||||              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

 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
31    person.
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
18    sale.
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 / Fiscal Impact

                        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.

                            FISCAL NOTE

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