The South Dakota foreclosure process, in plain English
Most of what you have read about stopping a foreclosure assumes a pre sale window to catch up. South Dakota does not work that way. In an advertisement foreclosure there is no statutory right to reinstate at all. What South Dakota gives you instead comes after the sale: a redemption period of up to a year during which you keep living in the house, plus the right to force the whole case in front of a judge.
Your time comes after the sale here, not before it
How South Dakota forecloses: Sheriff's sale, either by advertisement or by court action. South Dakota uses power of sale mortgages sold by the county sheriff, not deeds of trust sold by a private trustee. There is no notice of default from a trustee, because there is no trustee. SDCL 21-48-9 also lets you move the whole thing into circuit court, and the published notice is required to tell you so.
The sequence, step by step
- Your servicer has to reach out
Within 36 to 45 days of a missed payment
Federal rules require live contact about loss mitigation and written follow up. This is where most of your actual leverage sits in South Dakota, so answer it.
- Federal waiting period
120 days delinquent
Under 12 CFR 1024.41(f) the first foreclosure filing cannot happen until the loan is more than 120 days delinquent, and it cannot happen at all while a complete loss mitigation application is pending.
- Published notice of sale
Once a week for four successive weeks
SDCL 21-48-6 requires publication in a legal newspaper of the county. The notice has to name the parties, the amount claimed due, the property, the time and place of sale, the nature of the default, and your right under SDCL 21-48-9 to require foreclosure by action instead.
- Written notice to you
At least 21 days before the sale
SDCL 21-48-6.1 requires the foreclosing creditor to serve a written copy of the notice on you, and on anyone holding a lien that would be affected, at least twenty one days before the sale date.
- Your right to move it into court
Before the sale
Under SDCL 21-48-9 you, your successor, or anyone with a recorded interest can apply to the circuit court, and the judge is directed to enjoin the advertisement foreclosure and send it to court. Separately, SDCL 21-48-2 bars the advertisement route entirely unless the mortgage and every assignment of it were recorded in the county, which is worth checking if your loan has changed hands.
- Sheriff's sale
Between 9am and 5pm, in the county
SDCL 21-48-10 puts the sale with the sheriff or a deputy, by public auction, in the county where the property sits. If the price exceeds what is owed, SDCL 21-48-16 sends the surplus to the clerk of courts and requires the sheriff to tell you it is there. That money goes unclaimed constantly.
- Redemption, and you stay in the house
One year, or 180 days
SDCL 21-52-11 gives one year from the date of sale unless yours is a one hundred eighty day redemption mortgage. You keep possession throughout, and the purchaser does not get a deed until redemption expires.
The four questions everyone asks
Can I catch up and stop it?
Not by statute in an advertisement foreclosure. Check your mortgage
There is no cure or reinstatement provision anywhere in SDCL chapter 21-48, so in an advertisement foreclosure your right to catch up comes from the mortgage document and your loan's servicing rules, not from state law. Standard Fannie Mae and Freddie Mac instruments contain a reinstatement covenant, and FHA, VA and USDA loans have their own, so most people do have one. You need to read yours or ask your servicer in writing. In a judicial foreclosure it is different: SDCL 21-47-8 requires dismissal if you pay the installments due before judgment, and SDCL 21-47-10 stays the case if you pay before the sale. Whether those let you pay arrears only once the lender has accelerated is not settled by any South Dakota case we could find, so do not plan around it without a lawyer.
Deadline: Whatever your mortgage document gives you
Can I get it back after the sale?
Yes, one year, or 180 days on a short term redemption mortgage
SDCL 21-52-11 gives one year from the date of sale. The exception is a one hundred eighty day redemption mortgage under SDCL chapter 21-49, which is not something the lender chooses at foreclosure: it had to be written that way at closing, on forty acres or less, with the caption MORTGAGE--ONE HUNDRED EIGHTY DAY REDEMPTION on the document itself. So you can work out your own redemption period by looking at page one of your recorded mortgage. On those mortgages the period runs 180 days from recording of the certificate of sale, and a court can cut it to 60 if it finds the property abandoned. Either way you keep possession until redemption expires, and redeeming means paying the sale price plus what the purchaser has advanced, not the arrears.
Can they come after me for the shortfall?
Yes, but capped at the property's true market value
After an advertisement foreclosure, SDCL 21-48-14 requires a lender that bought at its own sale to prove the property sold for its true market value before it can get a deficiency, and the court must deduct the gap if it sold for less. That protection does not apply when a third party outbids the lender. After a judicial foreclosure, SDCL 21-47-16 makes the lender establish fair and reasonable value at trial, and SDCL 21-47-17 extinguishes the debt entirely if a deficiency is not decreed in the foreclosure itself. No South Dakota statute sets a foreclosure specific deadline for a deficiency action.
How long does all of this take?
Typically six to ten months from your first missed payment to an advertisement sale, and roughly nine to eighteen months if it goes through the courts, longer if contested. Then the redemption period runs on top of that. These are estimates built from the fixed parts of the statute, not a number the statute gives.
These are typical ranges, not promises. Bankruptcy filings, a complete loss mitigation application, or a signed purchase contract can all extend them.
Free help in South Dakota that is not us
These are free and independent. We list them because you should have somewhere to check our answers against.
- SD Housing, foreclosure and homebuyer counseling
The state housing authority's list of free HUD approved counseling agencies across South Dakota
- South Dakota Unified Judicial System, get legal help
The state court system's directory of free and low cost civil legal assistance
- Dakota Plains Legal Services
Free civil legal help including housing, across eight offices in South Dakota. 605-856-4444.
Where this comes from
So you can check it yourself, or hand it to an attorney.
SDCL chapter 21-47 (foreclosure by action), including 21-47-8 and 21-47-10 (payment before judgment or sale), 21-47-13 (possession during redemption), 21-47-16 and 21-47-17 (fair value and extinguishment). SDCL chapter 21-48 (foreclosure by advertisement), including 21-48-2 (recorded assignments), 21-48-6 and 21-48-6.1 (notice), 21-48-9 (requiring foreclosure by action), 21-48-10 (sale), 21-48-14 (deficiency), 21-48-16 (surplus). SDCL chapter 21-49 (One Hundred Eighty Day Redemption Mortgage Act), including 21-49-11, 21-49-12 and 21-49-38. SDCL chapter 21-52 (redemption), including 21-52-2, 21-52-7 and 21-52-11. Federal: 12 CFR 1024.39 and 1024.41.
The information on this site is general education about state foreclosure procedure. It is not legal advice, and laws change. Talk to a licensed attorney in your state about your specific situation.