§ 18-50-103 — Conditions to exercise of power of sale

A beneficiary or mortgagee may not initiate a foreclosure under this chapter unless: (1) The deed of trust or mortgage is filed for record with the recorder of the county in which the trust property is situated; (2) (A) The beneficiary or mortgagee: (i) Has personal knowledge of the records and information provided under this subdivision (2); and (ii) At least ten (10) days before initiating the foreclosure has provided by standard mail to the grantor, mortgagor, or obligor at the address of the property encumbered by the mortgage or deed of trust or the mailing address of the grantor, mortgagor, or obligor: (a) A true and correct copy of the note with all required endorsements, the mortgage, or the deed of trust; (b) The name of the holder and the physical location of the original note; (c) A true and correct copy of the original mortgage or deed of trust and if in the possession of the beneficiary or mortgagee, each assignment or allonge of the mortgage or deed of trust; (d) Information, including the applicable telephone number and Internet address, regarding the availability to the grantor, mortgagor, or obligor of each program for loan modification assistance or forbearance assistance offered: (1) Solely by the beneficiary or the mortgagee; or (2) By a government agency if the beneficiary or mortgagee participates in the government agency's program; and (e) If the default is the result of the failure to make payment, a payment history showing the date of default. (B) If a true and correct copy of the original note, mortgage, deed of trust, or an assignment or allonge of the note, mortgage, or deed of trust is lost or otherwise unavailable, the beneficiary or mortgagee may, instead of providing true and correct copies of the note, mortgage, deed of trust, or assignment or allonge of the note, mortgage, or deed of trust, provide a statement that the document is lost or otherwise unavailable, and shall recite the good faith efforts the beneficiary or mortgagee has made to locate the document. (C) The duties of the beneficiary or mortgagee to provide information under this subdivision (2) are not delegable to the beneficiary's trustee or the mortgagee's attorney-in-fact; (3) There is a default by the mortgagor, grantor, or obligor with respect to any provision in the mortgage or deed of trust that authorizes sale in the event of default of the provision; and (4) No action has been instituted to recover the debt or any part of it secured by the mortgage or deed of trust or, if such action has been instituted, the action has been dismissed.

Legislative History

Acts 1987, No. 53, § 3; 1999, No. 983, § 3; 2011, No. 885, § 2.