§ 35-22-04 — Foreclosure by advertisement enjoined - Procedure

North Dakota § 35-22-04

• Jurisdiction: North Dakota
• Title 35: Liens
• Ch. 35-22: Foreclosure of Mortgages of Real Property by Advertisement

Text

When the mortgagee or the mortgagee's assignee has served notice of intention to
foreclose a mortgage, and within the period provided by such notice it is made to appear by the
affidavit of the mortgagor, or any person claiming under the mortgagor, or the mortgagor's agent
or attorney, to the satisfaction of a judge of the district court of the county where the mortgaged
property is situated, that the mortgagor has a legal counterclaim or any other valid defense
against the collection of the whole or any part of the amount claimed to be due on such
mortgage, which proof must be made by affidavit stating the facts, but not on information and
belief, such judge, by an order to that effect, may enjoin the mortgagee or the mortgagee's
assignee from foreclosing the mortgage by advertisement and may direct that all further
proceedings for the foreclosure thereof be had in the district court having jurisdiction of the
subject matter. After the expiration of the period provided by the notice of intention, an order
enjoining the foreclosure by advertisement shall be made only on motion or order to show
cause. Notice of such motion, together with the affidavit used in support thereof, must be served
upon the attorney or agent of the mortgagee or assignee in the same manner as service of
other notices of motion, not less than eight days before the hearing thereon. The affidavit in
support of the motion must state the facts upon which the application is made, may not be on
information and belief, and must disclose a legal counterclaim or other valid defense to the
collection of the whole or some part of the amount claimed to be due on the mortgage. Upon the
hearing of the motion, the judge may enjoin the foreclosure of the mortgage by advertisement in

the same manner as if the application had been made ex parte within the period of the notice of
intention to foreclose. Service of the restraining order may be made upon the attorney or agent
of the mortgagee or assignee, if the order was obtained ex parte, or if obtained on motion or
order to show cause, it may be served upon the attorney or agent or upon the sheriff of the
county where the foreclosure sale is to be had. If the notice of intention does not disclose the
address of a resident agent or attorney, the order may be served upon such sheriff.