GENERALLY Present law provides that in a sale of land to foreclose a deed of trust, mortgage, or other lien securing the payment of money or other thing of value or under judicial orders or process, the advertisement of the sale must be made at least three different times in some newspaper published in the county where the sale is to be made. Present law requires the first publication to be at least 20 days prior to the sale of the foreclosed property. This bill requires public notice of the sale to be given rather than an advertisement of sale. This bill clarifies that, in addition to the above, public notice is also generally satisfied if a copy of the public notice is posted on the secretary of state's website for a minimum of 20 continuous days, and that the first date that the public notice is either published in print or posted on the website is deemed to be the public notice date for the sake of calculating dates in accordance with this item. However, on and after January 1, 2025, absent specific, contrary, or additional requirements in the relevant legal instrument governing a foreclosure, public notice is satisfied only by providing public notice through the secretary of state's website. This bill sets the rate for posting public notice on the secretary of state’s website at $200 per posting.EXEMPTIONS Present law requirements as described above do not apply where the debt on the property being sold does not exceed $200, in which event the owner of the property may order that advertisement to be made by posted written notices instead of being published in a newspaper. This bill removes the option for such posted written notices instead of publishing in a newspaper.CONTRACTS Present law does not apply to notice published in accordance with any contract entered into and expressed in a mortgage, deed of trust, or other legal instrument. This bill deletes this provision.REQUIREMENT OF SELLER Present law provides that in a sale of land to foreclose a deed of trust, mortgage, or other lien securing the payment of money or other thing of value or under judicial orders or process, the trustee or other party that sells the property must send to the debtor and any co-debtor a copy of the notice, which must be sent on or before the first date of publication by registered or certified mail, return receipt requested. This bill maintains this provision, but requires the notice to comply with the changes made above in the GENERALLY section.RECIPIENTS OF NOTICE Present law provides that notice must be sent to the following: (1) If to the debtor, addressed to the debtor both at the mailing address of the property, if any; and to the last known mailing address of the debtor or any other mailing address of the debtor specifically designated for purposes of receiving notices provided at least 30 days prior to the first publication date in written correspondence or written notice in accordance with the loan agreement from the debtor to the creditor, but only if the last known mailing address of the debtor or other mailing address designated by the debtor is different from the mailing address of the property; and (2) If to a co-debtor, addressed to the co-debtor at the last known mailing address of the co-debtor or any other mailing address of the co-debtor specifically designated for purposes of receiving notices provided at least 30 days prior to the first publication date in written correspondence or written notice in accordance with the loan agreement from the co-debtor to the creditor, but only if the last known mailing address of the co-debtor or other mailing address designated by the co-debtor is different from the mailing address of the property and different from the mailing address of the debtor. This bill maintains these provisions, but requires the notice to meet comply with changes made above in the GENERALLY section.ADJOURNMENT AND RESCHEDULING Present law provides that, unless postponement or adjournment is contractually prohibited, a sale may be adjourned and rescheduled one or more times without additional newspaper publication, upon compliance with the following provisions: (1) The sale must be held within one year of the originally scheduled date; (2) Each postponement or adjournment must be to a specified date and time, and must be announced at the date, time and location of each scheduled sale date; (3) If the postponement or adjournment is for more than 30 days, notice of the new date, time, and location must be mailed no less than 10 calendar days prior to the sale date via regular mail to the debtor and co-debtor; and (4) Notice of the right to postpone or adjourn without additional newspaper publication must not be required to be published in any newspaper publication. This bill revises the above provisions and provides that each postponement or adjournment must be set to a specified date and time and announced by posting the date, time, and location of each scheduled sale on the secretary of state's website, rather than announced at each scheduled sale date as the present law demanded, so long as the foreclosing party posts notice on the website regarding the continuance at least five days prior to the immediately preceding posted sale date. If the continuance is not properly posted at least five days prior to the then-scheduled sale date, then the postponement or adjournment must be announced on the date and at the location and time of the then-scheduled sale. This bill also requires that for each postponement of adjournment, notice of the new date, time and location must be mailed to the debtor and co-debtor via regular mail at least 10 calendar days prior to the sale date unless the postponement or adjournment occurs within 10 days of the scheduled sale date in which case must be mailed as soon as is practical. WHEN A NEWSPAPER IS NOT AVAILABLE Present law provides that, if no newspaper is published in the county in which the land is to be sold, then the advertisement in a newspaper is dispensed with, unless ordered by a court. This bill maintains this provision, except that public notice must still be posted on the secretary of state's website. Present law provides that, whenever the advertisement cannot be made in a newspaper, the officer must make publication of the sale for 30 days by written notices posted in at least five of the most public places in the county, one of which must be the courthouse door, and another in the neighborhood of the defendant; and if of realty, in the civil district where the land lies. This bill maintains this provision, except for adding that public notice requirements are satisfied by posting notice on the secretary of state's website.CONTENTS OF NOTICE Present law provides that the contents of the notice must do the following: (1) Give the names of the plaintiff and defendant, or parties interested; (2) Give a concise description of the land; such description must include a legal description, which means a reference to the deed book and page that contains the complete legal description of the property, and common description. However, a metes and bounds description may be included in the description of the land; (3) Mention the time and place of the sale; (4) Identify each and every lien or claimed lien of the United States, which requires notice to be given to the United States in order for the sale of the land thus advertised not to be subject to the lien or claim of lien of the United States. For every lien or claim of lien of the United States so identified, affirmatively state that the notice required to be given to the United States has been timely given and state that the sale of the land thus advertised will be subject to the right of the United States to redeem the land; (5) Identify each and every lien or claimed lien of the state, which requires notice to be given to the state in order for the sale of the land thus advertised not to be subject to the lien or claim of lien of the state. For every lien or claim of the state so identified, affirmatively state that the notice required to be given to the state has been timely given and state that the sale of the land thus advertised will be subject to the right of the state to redeem the land; and (6) For each concise description of land, provide the corresponding names of the parties interested. This bill amends (1) by requiring that the names of the foreclosing party, property owner, and any interested parties must be included in the public notice of the sale rather than just the names of the plaintiff and defendant or any parties interested. This bill also removes the permissive authorization to include in the description of the land, a metes and bounds description. Instead, this bill maintains that this description is not required.NOTICE IN WRITING IF PRINTER REFUSES Present law provides that, if the printer will not make the publication for the rates provided statutorily, then the officer or person conducting the sale must make publication by written notices. This bill removes the requirement of the officer or person making the sale to make publication by written notices and provides, instead, that if the printer will not honor the rates provided for in statute, then publishing public notice in a newspaper is not a requirement. However, public notice must still be posted on the secretary of state's website.SALE WITHOUT NOTICE NOT VOID Present law provides that if the officer or other person making the sale proceeds to sell without meeting the requirements for notice, then the sale is not void or voidable based on that. This bill expands the scope of this provision's protection of a bona fide purchaser by including that regardless of the fact that the officer or other person making the sale does not pursue the provisions of the legal instruments governing the foreclosure, the sale is not considered void or voidable based on that.

Statutes affected:
Introduced: 49-8-117