Short Sale Laws in South Dakota
Short Sale Laws and Foreclosure Rules in South Dakota
Do I still owe the bank after a short sale?
Maybe. When you sell your home for less than the amount you owe against it, something needs to be done about the balance left over. This is called the deficiency balance. The bank can do one of three things:
- choose to forgive this balance, known as a waiver of deficiency.
- they can ask you to pay it back by carrying a unsecured note.
- they can pursue a judgement or collection on the remaining balance.
Some states like California have passed laws that require lenders to waive the deficiency if they agree to accept a short sale. South Dakota does not currently have such a law so you will need to negotiate the waiver of deficiency
Do most banks waive the balance after a short sale?
Generally, most 1st position lien holders will waive the remaining balance on a short sale. 2nd liens get a much smaller portion of the funds in a short sale and as a result will generally want to make up the difference in some way. They may ask for you to contribute funds at closing, send your account to collections, or sue you in court to get a judgement against you.
There are federal short sale programs like HAFA, that require all participating lenders to waive the balance. There are other programs like the Chase Short Sale Outreach and the Bank of America Cooperative Short Sale Program that also have the deficiency waiver built in. If you are not participating in these programs, it is important that your agent negotiate this release and have it built into the short sale approval letter
Do I have to hire a real estate agent to do a short sale?
There is no state law that requires you to hire a licensed agent to sell your house in a short sale. The bank however may require that you list the home for sale with a local real estate professional to ensure that you are doing everything possible to get fair market value for the property. They can’t force you to list your home with an agent, but they can refuse to do a short sale if you don’t.
Do I have to show the bank my financial information?
Generally the bank will want to see that you do not have the capacity to continue to make your loan payments until it is paid off as agreed when you borrowed the money. Because of this, they will need to see that there is a reason for you to sell your home. If you are claiming that you can no longer afford to make your payments, they will require proof of that. This is done by having you supply tax returns, bank statements, and recent paystubs and a short sale hardship letter. There are some short sale programs that require a limited amount of documentation which would eliminate the need to supply financial documentation.
Do I have to pay for someone to negotiate my short sale?
No. You don’t have to pay to sell your home on a short sale. The commissions paid to real estate agents come out of the banks proceeds. Some states allow for short sale negotiators to collect a special fee for negotiating a short sale that will be separate from a real estate commission. It is beneficial but not necessary to hire a specialist to handle your short sale. They can often be paid by the buyer, bank, agent or the seller.
Judicial or Non-Judicial Foreclosure State?
The primary method of foreclosure in South Dakota involves what is known as non-judicial foreclosure. This type of foreclosure does not involve court action but requires notice commonly called foreclosure by advertisement. When the mortgage is initially signed it will usually contain a provision called a power of sale clause which upon default allows an attorney to foreclose on the property in order to satisfy the underlying defaulted loan. Auctions are conducted by the Sheriff. Because this is a non-judicial remedy there are very stringent notice requirements and the legal documents are required to contain the power of sale language in order to use this type of foreclosure method.
Does Seller Owe Deficiency Amount After Foreclosure or Short Sale?
Yes. A deficiency judgment may generally be obtained when a property in foreclosure is sold at a public sale for less than the loan amount which the underlying mortgage secures. Credit must be given for the fair market value of the property.
For a short sale, the deficiency can be waived if agreed in writing on the short sale approval letter.
State Foreclosure Laws for Negotiating Short Sales
- Section 15-2-5. Actions Accrual of cause of action for mortgage foreclosure
Law which regulates the when an amount of judgment begins to accrue towards the unpaid debt.
- Section 21-48-10. Time and place of sale–Officer making sale
Law which regulates the procedure as to how the sale will be held.
- Section 21-48-3. Default required before foreclosure
Law which regulates the required document before foreclosure may continue.
- Section 21-48-6.1. Written notice of foreclosure sale required-Time-Parties
Law which regulates mortgagor to be informed of foreclosure.
- Section 21-48A-4. Judicial foreclosure action by junior lien holder before redemption period
Law which regulates the right of any junior lien holder.
- Section 21-49-25. Notice of sale – Contents
Law which regulates the required procedure to begin the status of a sale.
- Section 21-49-31. Redemption defined
Law which regulates the right of the mortgagor to redeem property back after an auction.
- Section 21-47. Actions to Foreclose Real Property Mortgages
Laws which regulates the foreclosure process on all types of mortgages.
- Section South Dakota State Statutes