In Montana, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or non-judicial foreclosure process.
In judicial foreclosure, a court decrees the amount of the borrowers debt and gives him or her a short time to pay. If the borrower fails to pay within that time, then the court will issue a notice of sale.
The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines".
If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows:
A notice of sale must be recorded in the county where the property is located and then: 1) mailed, by registered or certified mail, to the borrower at his last known address at least 120 days before the foreclosure sale; 2) published once a week for three (3) successive weeks in a newspaper of general circulation in the county where the property is located; and 3) posted on the property at least twenty (20) days before the foreclosure sale.
The notice must contain the time, date and place of sale, the borrowers, lenders and trustees name, a description of both the property and the default, and the book and page where the deed is recorded.
The trustee must conduct the sale between the hours of 9:00 am and 4:00 pm at the courthouse in the county where the property is located. The property must be sold at public auction to the highest bidder.
The sale may be postponed for up to fifteen (15) days by posting a notice at the time and place where the sale was originally scheduled.
Lenders may not obtain a deficiency judgment against the borrower and the borrower has no rights of redemption.