(1) All fees and costs of every kind
and nature incurred under the provisions of articles 37 to 39 of this title shall be
fees and costs of the sale chargeable as additional amounts owing under the deed
of trust or other lien being foreclosed. The amounts shall be deducted from the
proceeds of any sale, or, if there are not cash proceeds from a sale adequate to pay
such amounts, to the extent of the inadequacy, the amounts shall be paid by the
holder of the evidence of debt. The officer may decline to issue the confirmation
deed pursuant to section 38-38-501 until all sums due to the officer have been
paid.
(2) (Deleted by amendment, L. 2006, p. 1455, � 13; L. 2007, p. 1849, � 27,
effective January 1, 2008.)
(3) Fees and costs include but are not limited to the following amounts that
have been paid or incurred:
(a) Costs and expenses allowable under the evidence of debt, deed of trust,
or other lien being foreclosed; and
(b) Reasonable attorney fees and the costs incurred by the holder or the
attorney for the holder in enforcing the evidence of debt, the deed of trust, or other
lien being foreclosed or in defending, protecting, and insuring the holder's interest
in the foreclosed property or any improvements on the property, including but not
limited to:
(I) All expenses actually incurred by the officer conducting the sale,
publication costs, statutory notice costs and postage, and appraisal fees;
(II) Any general or special taxes or ditch or water assessments levied or
accruing against the property and any governmental or quasi-governmental lien,
fine, penalty, or assessment against the property;
(III) The premiums on any property, casualty, general liability, or title
insurance acquired to protect the holder's interest in the property or improvements
on the property;
(IV) Sums due on any prior lien or encumbrance on the property, including
the portion of an assessment by a homeowners' association that constitutes a lien
prior to the lien being foreclosed; except that any principal that would not have
been due in the absence of acceleration shall not be included in the sum due unless
paid after the expiration of the time to cure the indebtedness pursuant to this
article;
(V) If the property is subject to a lease, all sums due under the lease;
(VI) The reasonable costs and expenses of defending, protecting, securing,
and maintaining and repairing the property and the holder's interest in the property
or the improvements on the property, receiver's fees and expenses, inspection fees,
court costs, attorney fees, and fees and costs of the attorney in the employment of
the owner of the evidence of debt;
(VII) Costs and expenses made pursuant to a valid order from a court of
competent jurisdiction to bring the property and the improvements on the property
into compliance with the federal, state, county, and local laws, ordinances, and
regulations affecting the property, the improvements on the property, or the use of
the property; and
(VIII) Other costs and expenses that may be permitted by the deed of trust,
mortgage, or other lien securing the debt or that may be authorized by a court of
competent jurisdiction.
(c) As used in this subsection (3), holder means the holder of the certificate
of purchase, the holder of the certificate of redemption, or the holder of the
evidence of debt.
(4) In the case of a redemption, the fees and costs listed in subsection (3) of
this section that the holder of the certificate of purchase or certificate of
redemption has paid or incurred as of the time of filing of the statement for
redemption are allowable and shall be included in the statement of redemption if
such amounts have not been included in a prior bid or statement of redemption.
(5) Notwithstanding the provisions of subsections (1), (3), and (4) of this
section, a holder of an evidence of debt, certificate of purchase, or certificate of
redemption shall not accept from a provider of services or products related to
property inspection, broker's price opinion, title report, appraisal, insurance, repair,
or maintenance or from an agent or affiliate of the provider any payment, benefit, or
remuneration of any kind, whether in the form of cash, employee, advertising,
computer program or service, bank deposit, or other good or service in connection
with a foreclosure in which a property inspection, broker's price opinion, title report,
appraisal, insurance, repair, or maintenance service or product of the provider or an
agent or affiliate of the provider was used, unless the total value of all payment,
benefit, or remuneration received by the holder from the provider of the service or
product is shown and credited against amounts owed to the holder in each bid, cure
statement, or redemption statement.