TITLE 6

ACTIONS IN PARTICULAR CASES

CHAPTER 1

FORECLOSURE OF MORTGAGES AND OTHER LIENS

6-101.  Proceedings in foreclosure — Construction of section — Meaning of "action" — Effect of foreclosure on holder of unrecorded lien. (1) There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate which action must be in accordance with the provisions of this chapter. In such action the court may, by its judgment, direct a sale of the incumbered property (or so much thereof as may be necessary) and the application of the proceeds of the sale to the payment of the costs of the court and the expenses of the sale, and the amount due to the plaintiff; and sales of real estate under judgments of foreclosure of mortgages and liens are subject to redemption as in the case of sales under execution; (and if it appear from the sheriff’s return that the proceeds are insufficient, and a balance still remains due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt), and it becomes a lien on the real estate of such judgment debtor, as in other cases on which execution may be issued.

(2)  The provisions of this section must be construed in order to permit a secured creditor to realize upon collateral for a debt or other obligation agreed upon by the debtor and creditor.

(3)  As used in this section, an "action" does not include any of the following acts or proceedings:

(a)  To appoint a receiver for, or obtain possession of, any real or personal property collateral for the debt or other obligation;

(b)  To enforce a security interest in, or the assignment of, any rents, issues, profits or other income of any real or personal property;

(c)  To enforce a mortgage or other lien upon any real or personal property collateral located outside of the state which is security for the same debt or other obligation;

(d)  To secure a judgment outside of this state on a debt or other obligation secured by real property in this state and by real or personal property collateral located outside this state;

(e)  For the exercise, pursuant to section 45-1505, Idaho Code, of a power of sale conferred pursuant to section 45-1503, Idaho Code;

(f)  For the exercise of any right or remedy authorized by:

(i)   The Idaho uniform commercial code, title 28, Idaho Code, except the securing of a judgment on the secured debt, including a deficiency judgment, in a court in Idaho; or

(ii)  The uniform commercial code as enacted in any other state;

(g)  For claim and delivery of personal property pursuant to chapter 3, title 8, Idaho Code;

(h)  For the exercise of any right to set off a deposit account, or to enforce a pledge in a deposit account pursuant to a written agreement or pledge or to enforce a banker’s lien;

(i)  To draw under a letter of credit;

(j)  To collect any debt, or enforce any obligation or right, secured by a mortgage or other lien on real property if the property has been sold to a person other than the creditor to satisfy, in whole or in part, a debt or other obligation or right secured by a senior mortgage or other senior lien on the property;

(k)  Relating to any proceeding in bankruptcy, including the filing of a proof of claim, seeking relief from an automatic stay and any other action to determine the amount or validity of a debt or other obligation;

(l)  For filing a claim pursuant to the Idaho uniform probate code, title 15, Idaho Code, or to enforce such a claim which has been disallowed;

(m)  Which does not include the collection of the debt or enforcement of the obligation or realization of the collateral securing the debt or other obligation;

(n)  Which is exempted from the provisions of this section by specific statute;

(o)  To recover costs of suit, costs and expenses of sale, attorney fees and other incidental relief in connection with any action authorized in this subsection.

(4)  No person holding a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the proper office at the commencement of the action, need be made a party to such action; and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding such unrecorded conveyance or lien as if he had been made a party to the action.

History:

[(6-101) C.C.P. 1881, sec. 468; R.S., R.C., & C.L., sec. 4520; C.S., sec. 6949; I.C.A., sec. 9-101; am. 1967, ch. 272, sec. 1, p. 745; am. 1993, ch. 281, sec. 1, p. 949.]