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SF 1444

1st Engrossment - 89th Legislature (2015 - 2016) Posted on 09/29/2015 12:25pm

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - 1st Engrossment

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A bill for an act
relating to real property; mortgages; clarifying provisions relating to foreclosure
sales; amending Minnesota Statutes 2014, sections 580.07, subdivision 2;
580.30, subdivision 1; 582.25.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2014, section 580.07, subdivision 2, is amended to read:


Subd. 2.

Postponement by mortgagor or owner.

(a) If all or a part of the property
to be sold is classified as homestead under section 273.124 and contains one to four
dwelling units, the mortgagor or owner may, in the manner provided in this subdivision,
postpone the sale to the first date that is not a Saturday, Sunday, or legal holiday and is:

(1) five months after the originally scheduled date of sale if the original redemption
period was six months under section 580.23, subdivision 1; or

(2) 11 months after the originally scheduled date of sale if the original redemption
period was 12 months under section 580.23, subdivision 2. To postpone a foreclosure sale
pursuant to this subdivision, at any time after the first publication of the notice of mortgage
foreclosure sale under section 580.03 but at least 15 days prior to the scheduled sale date
specified in that notice, the mortgagor shall: (1) execute a sworn affidavit in the form set
forth in subdivision 3, (2) record the affidavit in the office of each county recorder and
registrar of titles where the mortgage was recorded, and (3) file with the sheriff conducting
the sale and deliver to the attorney foreclosing the mortgage a copy of the recorded affidavit,
showing the date and office in which the affidavit was recorded. Recording of the affidavit
and postponement of the foreclosure sale pursuant to this subdivision shall automatically
reduce the mortgagor's redemption period under section 580.23 to five weeks. The
postponement of a foreclosure sale pursuant to this subdivision does not require any change
in the contents of the notice of sale, service of the notice of sale if the occupant was served
with the notice of sale prior to postponement under this subdivision, or publication of the
notice of sale if publication was commenced prior to postponement under this subdivision,
notwithstanding the service and publication time periods specified in section 580.03, but
the sheriff's certificate of sale shall indicate the actual date of the foreclosure sale and the
actual length of the mortgagor's redemption period. No notice of postponement need be
published. An affidavit complying with subdivision 3 shall be prima facie evidence of the
facts stated therein, and shall be entitled to be recorded. The right to postpone a foreclosure
sale pursuant to this subdivision may be exercised only once, regardless whether the
mortgagor reinstates the mortgage prior to the postponed mortgage foreclosure sale.

(b) If the automatic stay under United States Code, title 11, section 362, applies
to the mortgage foreclosure after a mortgagor or owner requests postponement of the
sheriff's sale under this section, then when the automatic stay is no longer applicable, the
mortgagor's or owner's election to shorten the redemption period to five weeks under this
section remains applicable to the mortgage foreclosure.

new text begin (c) Except for the circumstances set forth in paragraph (b), this section does not
reduce the mortgagor's redemption period under section 580.23 for any subsequent
foreclosure of the mortgage.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment
and applies to mortgages executed before, on, or after that date.
new text end

Sec. 2.

Minnesota Statutes 2014, section 580.30, subdivision 1, is amended to read:


Subdivision 1.

Reinstatement.

In any proceedings for the foreclosure of a real
estate mortgage, whether by action or by advertisement, if at any time before the sale
of the premises under such foreclosure the mortgagor, the owner, or any holder of any
subsequent encumbrance or lien, or any one for them, shall pay or cause to be paid to the
holder of the mortgage so being foreclosed, or to the attorney foreclosing the same, or
to the sheriff of the county, the amount actually due thereon and constituting the default
actually existing in the conditions of the mortgage at the time of the commencement of the
foreclosure proceedings, including insurance, delinquent taxes, if any, upon the premises,
interest to date of payment, cost of publication and services of process or notices, attorney's
fees not exceeding $150 or one-half of the attorney's fees authorized by section 582.01,
whichever is greater, any costs incurred when an order to reduce a mortgagor's redemption
period under section 582.032 is entered, including costs and disbursements awarded under
section 582.032, subdivision 9, together with other lawful disbursements necessarily
incurred in connection with the proceedings by the party foreclosing, then, and in that
event, the mortgage shall be fully reinstated and further proceedings in such foreclosure
shall be thereupon abandoned.new text begin The holder of a mortgage shall inform the mortgagor of
the amount necessary to reinstate the mortgage within three days of receipt of a request
for a reinstatement amount from the mortgagor. If the amount necessary to reinstate the
mortgage was not mailed to the mortgagor within three days of receipt of the request, no
liability accrues to the party foreclosing the mortgage or the party's attorney and the
foreclosure is not invalidated if the mortgage reinstatement amount was mailed by first
class mail to the mortgagor at least three days prior to the date of the completed sheriff's
sale. Notwithstanding any law to the contrary, the holder of a mortgage has no obligation
to delay or postpone a foreclosure sale upon receipt of a request for a reinstatement amount
when that request was made less than three days prior to the sale. The reinstatement
amount provided is effective for a period of seven days after the holder of the mortgage
provides it to the mortgagor or until the foreclosure sale, whichever occurs first.
new text end

Sec. 3.

Minnesota Statutes 2014, section 582.25, is amended to read:


582.25 MORTGAGES; VALIDATING FORECLOSURE SALES.

Every mortgage foreclosure sale by advertisement in this state under power of sale
contained in any mortgage duly executed and recorded in the office of the county recorder
or registered with the registrar of titles of the proper county of this state, together with
the record of such foreclosure sale, is, after expiration of the period specified in section
582.27, hereby legalized and made valid and effective to all intents and purposes, as
against any or all of the following objections:

(1) that the power of attorney, recorded or filed in the proper office provided for
by section 580.05:

(i) did not definitely describe and identify the mortgage;

(ii) did not definitely describe and identify the mortgage, but instead described
another mortgage between the same parties;

(iii) did not have the corporate seal affixed thereto, if executed by a corporation;

(iv) had not been executed and recorded or filed prior to sale, or had been executed
prior to, but not recorded or filed until after such sale;

(v) was executed subsequent to the date of the printed notice of sale or subsequent to
the date of the first publication of such notice;

(2) that no power of attorney to foreclose such mortgage as provided in section
580.05, was ever given, or recorded, or registered;

(3) that the notice of sale:

(i) was published only three, four or five times, or that it was published six times but
not for six weeks prior to the date of sale;

(ii) properly described the property to be sold in one or more of the publications
thereof but failed to do so in the other publications thereof, the correct description having
been contained in the copy of said notice served on the occupant of the premises;

(iii) correctly stated the date of the month and hour and place of sale but named a
day of the week which did not fall on the date given for such sale, or failed to state or state
correctly the year of such sale;

(iv) correctly described the real estate but omitted the county and state in which
said real estate is located;

(v) correctly described the land by government subdivision, township and range,
but described it as being in a county other than that in which said mortgage foreclosure
proceedings were pending, and other than that in which said government subdivision
was actually located;

(vi) did not state the amount due or failed to state the correct amount due or claimed
to be due;

(vii) incorrectly stated the municipal status of the place where the sale was to occur;

(viii) in one or more of the publications thereof, or in the notice served on the
occupant or occupants designated either a place or a time of sale other than that stated
in the certificate of sale;

(ix) failed to state the names of one or more of the assignees of the mortgage and
described the subscriber thereof as mortgagee instead of assignee;

(x) failed to state or incorrectly stated the name of the mortgagor, the mortgagee,
or assignee of mortgagee;

(xi) was not served upon persons whose possession of the mortgaged premises was
otherwise than by their personal presence thereon, if a return or affidavit was recorded
or filed as a part of the foreclosure record that at a date at least four weeks prior to the
sale the mortgaged premises were vacant and unoccupied;

(xii) was not served upon all of the parties in possession of the mortgaged premises,
provided it was served upon one or more of such parties;

(xiii) was not served upon the persons in possession of the mortgaged premises, if, at
least two weeks before the sale was actually made, a copy of the notice was served upon
the owner in the manner provided by law for service upon the occupants, or the owner
received actual notice of the proposed sale;

(xiv) gave the correct description at length, and an incorrect description by
abbreviation or figures set off by the parentheses, or vice versa;

(xv) was served personally upon the occupants of the premises as such, but said
service was less than four weeks prior to the appointed time of sale;

(xvi) did not state the original principal amount secured, or failed to state the correct
original principal amount secured;

(4) that distinct and separate parcels of land were sold together as one parcel and to
one bidder for one bid for the whole as one parcel;

(5) that no authenticated copy of the order appointing, or letters issued to a foreign
representative of the estate of the mortgagee or assignee, was properly filed or recorded,
provided such order or letters have been filed or recorded in the proper office prior to one
year after the last day of the redemption period of the mortgagor, the mortgagor's personal
representatives or assigns;

(6) that a holder of a mortgage was a representative appointed by a court of competent
jurisdiction in another state or county in which before the foreclosure sale an authenticated
copy of the representative's letters or other record of authority were filed for record in the
office of the county recorder of the proper county but no certificate was filed and recorded
therewith showing that said letters or other record of authority were still in force;

(7)(i) that said mortgage was assigned by a decree of a court exercising probate
jurisdiction in which decree the mortgage was not specifically or sufficiently described;

(ii) that the mortgage foreclosed had been assigned by the final decree of
the court exercising probate jurisdiction to the heirs, devisees, or legatees of the
deceased mortgagee, or the mortgagee's assigns, and subsequent thereto and before the
representative of the estate had been discharged by order of the court, the representative
had assigned the mortgage to one of the heirs, devisees, or legatees named in such final
decree, and such assignment placed on record and the foreclosure proceedings conducted
in the name of such assignee and without any assignment of the mortgage from the heirs,
devisees, or legatees named in such final decree, and the mortgaged premises bid in at the
sale by such assignee, and the sheriff's certificate of sale, with accompanying affidavits
recorded in the office of the county recorder of the proper county;

(iii) that a mortgage owned by joint tenants or tenants in common was foreclosed
by only one tenant;

(8) that the sheriff's certificate of sale or the accompanying affidavits and return of
service were not executed, filed or recorded within 20 days after the date of sale, but have
been executed and filed or recorded prior to the last day of the redemption period of the
mortgagor, the mortgagor's personal representatives or assigns;

(9) that the year, or the month, or the day, or the hour of the sale is omitted or
incorrectly or insufficiently stated in the notice of sale or the sheriff's certificate of sale;

(10)(i) that prior to the foreclosure no registration tax was paid on the mortgage,
provided such tax had been paid prior to one year after the last day of the redemption
period of the mortgagor, the mortgagor's personal representatives or assigns;

(ii) that an insufficient registration tax has been paid on the mortgage;

(11) that the date of the mortgage or any assignment thereof or the date, the
month, the day, hour, book, and page, or document number of the record or filing of the
mortgage or any assignment thereof, in the office of the county recorder or registrar of
titles is omitted or incorrectly or insufficiently stated in the notice of sale or in any of the
foreclosure papers, affidavits or instruments;

(12) that the notice of mortgage foreclosure sale or sheriff's certificate of sale
designated the place of sale as the office of a county official located in the court house of
the county when such office was not located in such court house;

(13) that no notice of the pendency of the proceedings to enforce or foreclose
the mortgage as provided in section 508.57, was filed with the registrar of titles or no
memorial thereof was entered on the register at the time of or prior to the commencement
of such proceedings; or that when required by section 508.57, the notice of mortgage
foreclosure sale failed to state the fact of registration;

(14) that the power of attorney to foreclose or the notice of sale was signed by the
person who was the representative of an estate, but failed to state or correctly state the
person's representative capacity;

(15) that the complete description of the property foreclosed was not set forth in
the sheriff's certificate of sale, if said certificate correctly refers to the mortgage by book
and page numbers or document number and date of filing and the premises are accurately
described in the printed notice of sale annexed to said foreclosure sale record containing
said sheriff's certificate of sale;

(16) that the date of recording of the mortgage was improperly stated in the sheriff's
certificate of mortgage foreclosure sale, the mortgage being otherwise properly described
in said sheriff's certificate of mortgage foreclosure sale and said certificate of mortgage
foreclosure sale further referring to the printed notice of mortgage foreclosure sale
attached to said sheriff's certificate of mortgage foreclosure sale in which printed notice
the mortgage and its recording was properly described;

(17) that prior to the first publication of the notice of sale in foreclosure of a
mortgage by advertisement, an action or proceeding had been instituted for the foreclosure
of said mortgage or the recovery of the debt secured thereby and such action or proceeding
had not been discontinued;

(18) that at the time and place of sale the sheriff considered and accepted a bid
submitted prior to the date of the sale by the owner of the mortgage and sold the mortgaged
premises for the amount of such bid, no other bid having been submitted, and no one
representing the owner of the mortgage being present at the time and place of sale;

(19) that such sale was postponed by the sheriff to a date or time subsequent to the
one specified in the notice of sale but there was no publication or posting of a notice of
such postponement;

(20) that there was not recorded with letters or other record of authority issued to a
representative appointed by a court of competent jurisdiction in another state or county, a
certificate that said letters or other record of authority were still in force and effect;

(21) that the sheriff's affidavit of sale correctly stated in words the sum for which
said premises were bid in and purchased by the mortgagee, but incorrectly stated the same
in figures immediately following the correct amount in words;

(22) that the notice of pendency of the foreclosure as required by section 580.032
was not filed for record before the first date of publication of the foreclosure notice, but
was filed before the date of sale; deleted text beginand
deleted text end

(23) that the servicer did not comply with the requirements of section 582.043deleted text begin.deleted text endnew text begin; and
new text end

new text begin (24) that notice for any postponement of the sheriff's sale by the party conducting
the foreclosure was not timely or properly mailed or published.
new text end