US (United States) Code. Title 12. Chapter 38A: Single family mortgage foreclosure

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Banks and banking

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-CITE-

12 USC CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

.

-HEAD-

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-MISC1-

Sec.

3751. Findings and purpose.

(a) Findings.

(b) Purpose.

3752. Definitions.

3753. Applicability.

3754. Designation of foreclosure commissioner.

(a) In general.

(b) Power of sale.

(c) Qualifications.

(d) Designation procedure.

3755. Prerequisites to foreclosure.

(a) In general.

(b) Other rights unaffected.

3756. Commencement of foreclosure.

(a) Request to foreclosure commissioner.

(b) Designation of substitute foreclosure

commissioner.

(c) Written notice.

3757. Notice of default and foreclosure sale.

3758. Service of notice of foreclosure sale.

3759. Presale reinstatement.

(a) Withdrawal and cancellation.

(b) Opportunity of Secretary to dispute withdrawal.

(c) Effect of cancellation.

(d) Notice of cancellation.

3760. Conduct of sale; adjournment.

(a) In general.

(b) Duties of foreclosure commissioner.

(c) Adjournment or cancellation of sale.

(d) Cash deposits.

(e) Presumption of validity of sale.

3761. Foreclosure costs.

3762. Disposition of sale proceeds.

(a) Priority payments.

(b) Other payments.

3763. Transfer of title and possession.

(a) Delivery of deeds.

(b) Right of possession.

(c) Death of purchaser.

(d) Bona fide purchaser.

(e) No right of redemption.

(f) Taxes.

3764. Record of foreclosure and sale.

(a) Statements included.

(b) Effect of statements.

(c) Recordation of instruments.

3765. Effect of sale.

3766. Computation of time.

3767. Severability.

3768. Deficiency judgment.

(a) In general.

(b) Limitation.

-CITE-

12 USC Sec. 3751 01/06/03

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TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3751. Findings and purpose

-STATUTE-

(a) Findings

The Congress finds that -

(1) the disparate State laws under which mortgages are

foreclosed on behalf of the Secretary covering 1- to 4-family

residential properties -

(A) burden certain programs administered by the Secretary;

(B) increase the costs of collecting obligations; and

(C) generally are a detriment to the community in which the

properties are located;

(2) the long periods required to complete the foreclosure of

such mortgages under certain State laws -

(A) lead to deterioration in the condition of the properties

involved;

(B) necessitate substantial Federal holding expenditures;

(C) increase the risk of vandalism, fire loss, depreciation,

damage, and waste with respect to the properties; and

(D) adversely affect the neighborhoods in which the

properties are located;

(3) these conditions seriously impair the ability of the

Secretary to protect the Federal financial interest in the

affected properties and frustrate attainment of the objectives of

the underlying Federal program authority;

(4) the availability of uniform and more expeditious

procedures, with no right of redemption in the mortgagor or

others, for the foreclosure of these mortgages by the Secretary

will tend to ameliorate these conditions; and

(5) providing the Secretary with a nonjudicial foreclosure

procedure will reduce unnecessary litigation by removing many

foreclosures from the courts if they contribute to overcrowded

calendars.

(b) Purpose

The purpose of this chapter is to create a uniform Federal

foreclosure remedy for single family mortgages that -

(1) are held by the Secretary pursuant to title I or title II

of the National Housing Act (12 U.S.C. 1702 et seq., 1707 et

seq.); or

(2) secure loans obligated by the Secretary under section 1452b

(FOOTNOTE 1) of title 42.

(FOOTNOTE 1) See References in Text note below.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-REFTEXT-

REFERENCES IN TEXT

The National Housing Act, referred to in subsec. (b)(1), is act

June 27, 1934, ch. 847, 48 Stat. 1246, as amended. Titles I and II

of the Act are classified generally to subchapters I (Sec. 1702 et

seq.) and II (Sec. 1707 et seq.), respectively, of chapter 13 of

this title. For complete classification of this Act to the Code,

see section 1701 of this title and Tables.

Section 1452b of title 42, referred to in subsec. (b)(2), was

repealed by Pub. L. 101-625, title II, Sec. 289(b)(1), Nov. 28,

1990, 104 Stat. 4128.

-COD-

CODIFICATION

Section is based on section 802 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-MISC3-

EFFECTIVE DATE

Title II of Pub. L. 103-327, Sept. 28, 1994, 108 Stat. 2316,

provided in part that title VIII of S. 2281, One Hundred Third

Congress, as reported July 13, 1994, which is classified to this

chapter, is incorporated into Pub. L. 103-327 and deemed enacted

into law upon enactment of Pub. L. 103-327, which was approved

Sept. 28, 1994.

SHORT TITLE

Section 801 of title VIII of S. 2281, One Hundred Third Congress,

as reported July 13, 1994, which was enacted into law by title II

of Pub. L. 103-327, Sept. 28, 1994, 108 Stat. 2316, provided in

part, that: ''This title (enacting this chapter) may be cited as

the 'Single Family Mortgage Foreclosure Act of 1994'.''

-CITE-

12 USC Sec. 3752 01/06/03

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TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3752. Definitions

-STATUTE-

For purposes of this chapter, the following definitions shall

apply:

(1) Bona fide purchaser

The term ''bona fide purchaser'' means a purchaser for value in

good faith and without notice of any adverse claim, and who

acquires the security property free of any adverse claim.

(2) County

The term ''county'' has the same meaning as in section 2 of

title 1.

(3) Mortgage

The term ''mortgage'' means a deed of trust, mortgage, deed to

secure debt, security agreement, or any other form of instrument

under which any property (real, personal or mixed), or any

interest in property (including leaseholds, life estates,

reversionary interests, and any other estates under applicable

State law), is conveyed in trust, mortgaged, encumbered, pledged,

or otherwise rendered subject to a lien for the purpose of

securing the payment of money or the performance of an

obligation.

(4) Mortgage agreement

The term ''mortgage agreement'' means the note or debt

instrument and the mortgage instrument, deed of trust instrument,

trust deed, or instrument or instruments creating the mortgage,

including any instrument incorporated by reference therein and

any instrument or agreement amending or modifying any of the

foregoing.

(5) Mortgagor

The term ''mortgagor'' means the obligor, grantor, or trustee

named in the mortgage agreement and, unless the context otherwise

indicates, includes the current owner of record of the security

property whether or not such owner is personally liable on the

mortgage debt.

(6) Owner

The term ''owner'' means any person who has an ownership

interest in property and includes heirs, devises, executors,

administrators, and other personal representatives, and trustees

of testamentary trusts if the owner of record is deceased.

(7) Person

The term ''person'' includes any individual, group of

individuals, association, partnership, corporation, or

organization.

(8) Record; recorded

The terms ''record'' and ''recorded'' include ''register'' and

''registered'' in the instance of registered land.

(9) Security property

The term ''security property'' means the property (real,

personal or mixed) or an interest in property (including

leaseholds, life estates, reversionary interests, and any other

estates under applicable State law), together with fixtures and

other interests subject to the lien of the mortgage under

applicable State law.

(10) Single family mortgage

The term ''single family mortgage'' means a mortgage that

covers property on which there is located a 1- to 4-family

residence, and that -

(A) is held by the Secretary pursuant to title I or title II

of the National Housing Act (12 U.S.C. 1702 et seq., 1707 et

seq.); or

(B) secures a loan obligated by the Secretary under section

1452b of title 42, as it existed before the repeal of that

section by section 12839 of title 42 (except that a mortgage

securing such a loan that covers property containing

nonresidential space and a 1- to 4-family dwelling shall not be

subject to this chapter).

(11) State

The term ''State'' means -

(A) the several States;

(B) the District of Columbia;

(C) the Commonwealth of Puerto Rico;

(D) the United States Virgin Islands;

(E) Guam;

(F) American Samoa;

(G) the Northern Mariana Islands;

(H) the Trust Territory of the Pacific Islands; and

(I) Indian tribes, as defined by the Secretary.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-REFTEXT-

REFERENCES IN TEXT

The National Housing Act, referred to in par. (10)(A), is act

June 27, 1934, ch. 847, 48 Stat. 1246, as amended. Titles I and II

of the Act are classified generally to subchapters I (Sec. 1702 et

seq.) and II (Sec. 1707 et seq.), respectively, of chapter 13 of

this title. For complete classification of this Act to the Code,

see section 1701 of this title and Tables.

-COD-

CODIFICATION

Section is based on section 803 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-TRANS-

TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS

For termination of Trust Territory of the Pacific Islands, see

note set out preceding section 1681 of Title 48, Territories and

Insular Possessions.

-CITE-

12 USC Sec. 3753 01/06/03

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TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3753. Applicability

-STATUTE-

Single family mortgages encumbering real estate located in any

State may be foreclosed by the Secretary in accordance with this

chapter, or pursuant to other foreclosure procedures available, at

the option of the Secretary.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 804 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-CITE-

12 USC Sec. 3754 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3754. Designation of foreclosure commissioner

-STATUTE-

(a) In general

The Secretary may designate a person or persons to serve as a

foreclosure commissioner or commissioners for the purpose of

foreclosing upon a single family mortgage.

(b) Power of sale

A foreclosure commissioner designated under this section shall

have a nonjudicial power of sale.

(c) Qualifications

The foreclosure commissioner, if a natural person, shall be a

resident of the State in which the security property is located

and, if not a natural person, the foreclosure commissioner must be

duly authorized to transact business under laws of the State in

which the security property is located. No person shall be

designated as a foreclosure commissioner unless that person is

responsible, financially sound, and competent to conduct a

foreclosure.

(d) Designation procedure

(1) Written designation

The Secretary may designate a foreclosure commissioner by

executing a written designation stating the name and business or

residential address of the commissioner, except that if a person

is designated in his or her capacity as an official or employee

of a government or corporate entity, such person may be

designated by his or her unique title or position instead of by

name.

(2) Substitute commissioners

The Secretary may, with or without cause, designate a

substitute foreclosure commissioner to replace a previously

designated foreclosure commissioner.

(3) Number

More than 1 foreclosure commissioner may be designated at any

time.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 805 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 3756 of this title.

-CITE-

12 USC Sec. 3755 01/06/03

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TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3755. Prerequisites to foreclosure

-STATUTE-

(a) In general

(1) Upon breach of covenant or condition

The Secretary is authorized to foreclose a mortgage under this

chapter upon the breach of a covenant or condition in the

mortgage agreement.

(2) No other pending proceedings

(A) Prior to commencement

No foreclosure may be commenced under this chapter unless any

previously pending judicial or nonjudicial proceeding that has

been separately instituted by the Secretary to foreclose the

mortgage (other than under this chapter), has been withdrawn,

dismissed, or otherwise terminated.

(B) After commencement

No separately instituted foreclosure proceeding on a mortgage

which is the subject of a foreclosure proceeding under this

chapter shall be instituted by the Secretary during the

pendency of foreclosure pursuant to this chapter.

(b) Other rights unaffected

Nothing in this chapter shall preclude the Secretary from -

(1) enforcing any right, other than foreclosure, under

applicable Federal or State law, including any right to obtain a

monetary judgment; or

(2) foreclosing under this chapter if the Secretary has

obtained or is seeking any other remedy available pursuant to

Federal or State law, or under the mortgage agreement, including

the appointment of a receiver, mortgagee-in-possession status, or

relief under an assignment of rents.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 806 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 3756 of this title.

-CITE-

12 USC Sec. 3756 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3756. Commencement of foreclosure

-STATUTE-

(a) Request to foreclosure commissioner

If the Secretary, as holder of a single family mortgage,

determines that the prerequisites to foreclosure set forth in

section 3755 of this title are satisfied, the Secretary may request

the foreclosure commissioner to commence foreclosure of a single

family mortgage. Upon such request, the foreclosure commissioner

shall commence foreclosure of the mortgage, by commencing service

of a notice of default and foreclosure sale in accordance with

sections 3757 and 3758 of this title.

(b) Designation of substitute foreclosure commissioner

After commencement of a foreclosure under this chapter, the

Secretary may designate a substitute foreclosure commissioner at

any time before the time of the foreclosure sale, and the

foreclosure shall continue without prejudice, unless the substitute

commissioner, in that commissioner's sole discretion, finds that

continuation of the foreclosure sale will unfairly affect the

interests of the mortgagor. If the substitute commissioner makes

such a finding, the substitute commissioner shall cancel the

foreclosure sale, or adjourn such sale in accordance with section

3760(c) of this title.

(c) Written notice

Upon designation of a substitute foreclosure commissioner, a copy

of the written notice of such designation described in section 3754

of this title shall be served -

(1) by mail, as provided in section 3758 of this title (except

that the minimum time periods between mailing and the date of

foreclosure sale prescribed in such section shall not apply); or

(2) in any other manner which, in the substitute commissioner's

sole discretion, is conducive to achieving timely notice of such

substitution.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 807 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3758, 3759 of this title.

-CITE-

12 USC Sec. 3757 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3757. Notice of default and foreclosure sale

-STATUTE-

The notice of default and foreclosure sale to be served in

accordance with this chapter shall set forth -

(1) the name and address of the foreclosure commissioner;

(2) the date on which the notice is issued;

(3) the names of -

(A) the Secretary;

(B) the original mortgagee (if other than the Secretary); and

(C) the original mortgagor;

(4) the street address or a description of the location of the

security property, and a description of the security property,

sufficient to identify the property to be sold;

(5) the date of the mortgage, the office in which the mortgage

is recorded, and the liber number and folio or other appropriate

description of the location of recordation of the mortgage;

(6) identification of the failure to make payment, including

the due date of the earliest installment payment remaining wholly

unpaid as of the date on which the notice is issued upon which

the foreclosure is based, or a description of any other default

or defaults upon which foreclosure is based, and the acceleration

of the secured indebtedness;

(7) the date, time, and location of the foreclosure sale;

(8) a statement that the foreclosure is being conducted

pursuant to this chapter;

(9) a description of the types of costs, if any, to be paid by

the purchaser upon transfer of title;

(10) the amount and method of deposit to be required at the

foreclosure sale (except that no deposit shall be required of the

Secretary) and the time and method of payment of the balance of

the foreclosure purchase price; and

(11) any other appropriate terms of sale or information, as the

Secretary may determine.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 808 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3756, 3758 of this title.

-CITE-

12 USC Sec. 3758 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3758. Service of notice of foreclosure sale

-STATUTE-

The foreclosure commissioner shall serve the notice of default

and foreclosure sale described in section 3757 of this title upon

the following persons and in the following manner, and no

additional notice shall be required to be served, notwithstanding

any notice requirements of any State or local law:

(1) Timing

Not less than 21 days before the date of the foreclosure sale,

the notice of default and foreclosure sale shall be filed in the

manner authorized for filing a notice of an action concerning

real property according to the law of the State in which the

security property is located or, if none, in the manner

authorized by section 3201 of title 28.

(2) Notice by mail

(A) In general

The notice of foreclosure sale shall be sent by certified or

registered mail, postage prepaid and return receipt requested,

to the following:

(i) Current owner

The current security property owner of record, as the

record existed 45 days before the date originally set for the

foreclosure sale (whether or not the notice describes a sale

adjourned).

(ii) Mortgagors

All mortgagors of record or other persons who appear on the

basis of the record to be liable for part or all of the

mortgage debt, as the record existed 45 days before the date

originally set for the foreclosure sale (whether or not the

notice describes a sale adjourned).

(iii) Dwelling units

All dwelling units in the security property (whether or not

the notice describes a sale adjourned).

(iv) Other lienholders

All persons holding liens of record upon the security

property, as the record existed 45 days before the date

originally set for the foreclosure sale (whether or not the

notice describes a sale adjourned).

(B) Timing

(i) Notice under clauses (i) and (ii)

Notice under clauses (i) and (ii) of subparagraph (A) shall

be mailed not less than 21 days before the date of the

foreclosure sale, and shall be mailed to the current owner

and mortgagor at the last known address of the current owner

and mortgagor, or, if none, to the address of the security

property, or, at the discretion of the foreclosure

commissioner, to any other address believed to be that of

such current owner and mortgagor.

(ii) Notice under clause (iii)

Notice under clause (iii) of subparagraph (A) shall be

mailed not less than 21 days before the date of the

foreclosure sale. If the names of the occupants of the

security property are not known to the Secretary, or the

security property has more than 1 dwelling, the notice shall

be posted at the security property not less than 21 days

before the foreclosure sale.

(iii) Notice under clause (iv)

Notice under clause (iv) of subparagraph (A) shall be

mailed not less than 21 days before the date of the

foreclosure sale, and shall be mailed to each such

lienholder's address of record or, at the discretion of the

foreclosure commissioner, to any other address believed to be

that of such lienholder.

(C) Effectiveness of notice

Notice by mail pursuant to this section or section 3756(c) of

this title shall be deemed duly given upon mailing, whether or

not received by the addressee and whether or not a return

receipt is received or the notice is returned.

(3) Publication

(A) In general

A copy of the notice of default and foreclosure sale shall be

published once a week during 3 successive calendar weeks before

the date of the foreclosure sale. Such publication shall be in

a newspaper or newspapers having general circulation in the

county or counties in which the security property being sold is

located. To the extent practicable, the newspaper or

newspapers chosen shall be a newspaper or newspapers having

circulation conducive to achieving notice of foreclosure by

publication. A legal newspaper that is accepted as a newspaper

of legal record in the county or counties in which the security

property being sold is located shall be considered a newspaper

having general circulation for the purposes of this paragraph.

(B) Exception

If there is no newspaper published at least weekly which has

a general circulation in one of the counties in which the

security property being sold is located, copies of the notice

of default and foreclosure sale shall be posted not less than

21 days before the date of the foreclosure sale -

(i) at the courthouse of any county or counties in which

the security property is located; and

(ii) at the place where the sale is to be held.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 809 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3756, 3759, 3760, 3761,

3764, 3765 of this title.

-CITE-

12 USC Sec. 3759 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3759. Presale reinstatement

-STATUTE-

(a) Withdrawal and cancellation

(1) In general

Except as provided in sections 3756(b) and 3760(c) of this

title, the foreclosure commissioner shall withdraw the security

property from foreclosure and cancel the foreclosure sale only if

-

(A) the Secretary directs the foreclosure commissioner to do

so before or at the time of the sale;

(B) the foreclosure commissioner finds, upon application of

the mortgagor not less than 3 days before the date of the sale,

that the default or defaults upon which the foreclosure is

based did not exist at the time of service of the notice of

default and foreclosure sale; or

(C)(i) in the case of a foreclosure involving a monetary

default, there is tendered to the foreclosure commissioner

before public auction is completed the entire amount of

principal and interest which would be due if payments under the

mortgage had not been accelerated;

(ii) in the case of a foreclosure involving a nonmonetary

default, the foreclosure commissioner, upon application of the

mortgagor before the date of foreclosure sale, finds that such

default is cured; and

(iii) there is tendered to the foreclosure commissioner

before public auction is completed -

(I) all amounts due under the mortgage agreement (excluding

additional amounts which would have been due if mortgage

payments had been accelerated);

(II) all amounts of expenditures secured by the mortgage;

and

(III) all costs of foreclosure incurred for which payment

from the proceeds of foreclosure is provided in section 3761

of this title.

(2) Discretionary noncancellation

The Secretary may refuse to cancel a foreclosure sale pursuant

to paragraph (1)(C) if the current mortgagor or owner of record

has, on one or more previous occasions, caused a foreclosure of

the mortgage, commenced pursuant to this chapter or otherwise, to

be canceled by curing a default.

(b) Opportunity of Secretary to dispute withdrawal

Before withdrawing the security property from foreclosure under

subparagraph (B) or (C) of subsection (a)(1) of this section, the

foreclosure commissioner shall afford the Secretary a reasonable

opportunity to demonstrate why the security property should not be

so withdrawn.

(c) Effect of cancellation

(1) Mortgage unaffected

In any case in which a foreclosure commenced under this chapter

is canceled, the mortgage shall continue in effect as though

acceleration had not occurred.

(2) Commencement of new foreclosure sale

Cancellation of a foreclosure sale under this chapter shall

have no effect on the commencement of a subsequent foreclosure

proceeding under this chapter.

(d) Notice of cancellation

The foreclosure commissioner shall file a notice of cancellation

in the same place and manner provided for filing the notice of

default and foreclosure sale in section 3758 of this title.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 810 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 3760 of this title.

-CITE-

12 USC Sec. 3760 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3760. Conduct of sale; adjournment

-STATUTE-

(a) In general

(1) Manner and time

A foreclosure sale pursuant to this chapter shall be held at

public auction and shall be scheduled to begin between the hours

of 9 o'clock ante meridian and 4 o'clock post meridian local

time.

(2) Location

The foreclosure sale shall be held at a location specified in

the notice of default and foreclosure sale and such location

shall be at a place where foreclosure real estate auctions are

customarily held in the county or counties in which the property

to be sold is located, or at a courthouse therein, or at or on

the property to be sold. Sale of security property situated in

two or more counties may be held in any 1 of the counties in

which any part of the security property is situated.

(3) Sale of multiple properties

The foreclosure commissioner may designate the order in which

multiple security properties are sold.

(b) Duties of foreclosure commissioner

(1) Conduct of sale

(A) In general

The foreclosure commissioner shall conduct the foreclosure

sale in accordance with the provisions of this chapter and in a

manner fair to both the mortgagor and the Secretary.

(B) Written bids

Written one-price sealed bids shall be accepted by the

foreclosure commissioner from the Secretary and other persons

for entry by announcement by the foreclosure commissioner at

the sale.

(C) Auctioneer

The foreclosure commissioner may serve as auctioneer, or, in

accordance with regulations of the Secretary, may employ an

auctioneer to be paid from the commission provided for in

section 3761(5) of this title.

(2) Eligible participants

(A) In general

The Secretary, and any other person who has submitted a

written one-price bid, may bid at the foreclosure sale.

(B) Prohibited participants

The foreclosure commissioner or any relative, related

business entity, or employee of the foreclosure commissioner or

a related business entity shall not be permitted to bid in any

manner on the security property subject to foreclosure sale,

except that the foreclosure commissioner or an auctioneer may

be directed by the Secretary to enter a bid on the Secretary's

behalf.

(c) Adjournment or cancellation of sale

(1) General authority

The foreclosure commissioner may, before or at the time of the

foreclosure sale, adjourn or cancel the foreclosure sale if the

commissioner determines, in the commissioner's discretion, that -

(A) circumstances are not conducive to a sale which is fair

to the mortgagor and the Secretary; or

(B) additional time is necessary to determine whether the

security property should be withdrawn from foreclosure, as

provided in section 3759 of this title.

(2) Adjournment to same or later day

The foreclosure commissioner may adjourn a foreclosure sale to

a later hour the same day by announcing or posting the new time

and place of the foreclosure sale, or may adjourn the foreclosure

sale for not less than 9 and not more than 31 days, in which case

the commissioner shall serve a notice of default and foreclosure

sale revised to recite the fact that the foreclosure sale has

been adjourned to a specified date, as well as any other

information the foreclosure commissioner deems appropriate. Such

notice shall be served by publication and mailing in accordance

with section 3758 of this title, except that publication may be

made on any of 3 separate days before the revised date of

foreclosure sale, and mailing may be made at any time not less

than 7 days before the date to which the foreclosure sale has

been adjourned.

(d) Cash deposits

The foreclosure commissioner may require a bidder to make a cash

deposit in an amount or percentage set by the foreclosure

commissioner and stated in the notice of foreclosure sale before

the bid is accepted. A successful bidder at the foreclosure sale

who fails to comply with the terms of the sale may be required to

forfeit the cash deposit or, at the election of the foreclosure

commissioner after consultation with the Secretary, shall be liable

to the Secretary for any costs incurred as a result of such

failure.

(e) Presumption of validity of sale

Any foreclosure sale held in accordance with this chapter shall

be conclusively presumed to have been conducted in a legal, fair,

and reasonable manner. The sale price shall be conclusively

presumed to be reasonable and equal to the fair market value of the

property.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 811 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3756, 3759, 3761, 3764 of

this title.

-CITE-

12 USC Sec. 3761 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3761. Foreclosure costs

-STATUTE-

The following foreclosure costs shall be paid from the sale

proceeds before satisfaction of any other claim to such sale

proceeds:

(1) Advertising and postage

Necessary advertising costs and postage incurred in giving

notice pursuant to sections 3758 and 3760 of this title.

(2) Mileage

Mileage (determined by the most reasonable road distance) for

posting notices and for the foreclosure commissioner's or

auctioneer's attendance at the sale, as provided in section 1821

of title 28.

(3) Title and lien search

Reasonable and necessary costs incurred in connection with any

search of title and lien records.

(4) Recordation fees

Costs incurred to record documents.

(5) Commission

A commission for the foreclosure commissioner (if the

foreclosure commissioner is not an employee of the United States)

for the conduct of the foreclosure, to the extent such a

commission is authorized by the Secretary.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 812 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3759, 3760, 3762 of this

title.

-CITE-

12 USC Sec. 3762 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3762. Disposition of sale proceeds

-STATUTE-

(a) Priority payments

Money realized from a foreclosure sale shall be made available

for obligation and expenditure in the following order:

(1) Costs of foreclosure

To cover the costs of the foreclosure proceeding described in

section 3761 of this title.

(2) Tax liens

To pay valid tax liens or assessments if required by the notice

of default and foreclosure sale.

(3) Prior liens

To pay any liens recorded before the recording of the mortgage

which are required to be paid in conformity with the terms of

sale in the notice of default and foreclosure sale.

(4) Service charges and advances

To pay service charges and advances for taxes, assessments, and

property insurance premiums.

(5) Interest

To pay any outstanding interest.

(6) Principal

To pay the principal outstanding balance secured by the

mortgage (including expenditures for the necessary protection,

preservation, and repair of the security property as authorized

under the mortgage agreement and interest thereon if provided for

in the mortgage agreement).

(7) Late charges or fees

To pay any late charges or fees.

(b) Other payments

(1) Other lienholders and the mortgagor

Any surplus of proceeds from a foreclosure sale, after payment

of the items described in subsection (a) of this section shall be

paid in the following order:

(A) First, to holders of liens recorded after the mortgage in

the order of priority under Federal law or the law of the State

in which the security property is located.

(B) Second, to the appropriate mortgagor.

(2) Disputed claims

If the person to whom such surplus is to be paid cannot be

located, or if the surplus available is insufficient to pay all

claimants and the claimants cannot agree on the allocation of the

surplus, or if any person claiming an interest in the mortgage

proceeds does not agree that some or all of the sale proceeds

should be paid to a claimant as provided in this section, that

part of the sale proceeds in question may be deposited by the

foreclosure commissioner with an appropriate official or court

authorized under law to receive disputed funds in such

circumstances. If a procedure for the deposit of disputed funds

is not available, and the foreclosure commissioner files a bill

of interpleader or is sued as a stakeholder to determine

entitlement to such funds, the foreclosure commissioner's

necessary costs incurred in taking or defending such action shall

be deductible from the disputed funds.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 813 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 3768 of this title.

-CITE-

12 USC Sec. 3763 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3763. Transfer of title and possession

-STATUTE-

(a) Delivery of deeds

The foreclosure commissioner shall, upon delivery of a deed or

deeds to the purchaser or purchasers (which shall be without

warranty or covenants to the purchaser or purchasers) obtain the

balance of the purchase price in accordance with the terms of sale

provided in the notice of default and foreclosure sale.

Notwithstanding any State law to the contrary, delivery of a deed

by the foreclosure commissioner shall be a conveyance of the

property, and constitute passage of title to the mortgaged

property, and no judicial proceedings shall be required ancillary

or supplementary to the procedures provided in this chapter to

assure the validity of the conveyance or confirmation of such

conveyance.

(b) Right of possession

A purchaser at a foreclosure sale held pursuant to this chapter

shall be entitled to possession upon passage of title under

subsection (a) of this section to the mortgaged property, subject

to any interest or interests not barred under section 3765 of this

title. Any person remaining in possession of the mortgaged

property after the passage of title shall be deemed a tenant at

sufferance subject to eviction under local law.

(c) Death of purchaser

If a purchaser dies before execution and delivery of the deed

conveying the property to the purchaser, the foreclosure

commissioner shall execute and deliver the deed to a representative

of the decedent purchaser's estate upon payment of the purchase

price in accordance with the terms of sale. Such delivery to the

representative of the purchaser's estate shall have the same effect

as if accomplished during the lifetime of the purchaser.

(d) Bona fide purchaser

The purchaser of property under this chapter shall be presumed to

be a bona fide purchaser.

(e) No right of redemption

(1) In general

There shall be no right of redemption, or right of possession

based upon a right of redemption, in the mortgagor or others

subsequent to a foreclosure completed pursuant to this chapter.

(2) Certain provisions

Section 1710(l) of this title and section 1452c of title 42

shall not apply to mortgages foreclosed under this chapter.

(f) Taxes

When a mortgage foreclosed pursuant to this chapter is conveyed

to the Secretary, no tax shall be imposed or collected with respect

to the foreclosure commissioner's deed (including any tax

customarily imposed upon the deed instrument or upon the conveyance

or transfer of title to the property). Failure to collect or pay a

tax of the type and under the circumstances stated in the preceding

sentence shall not be grounds for refusing to record such a deed,

for failing to recognize such recordation as imparting notice, or

for denying the enforcement of such a deed and its provisions in

any State or Federal court.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 814 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-CITE-

12 USC Sec. 3764 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3764. Record of foreclosure and sale

-STATUTE-

(a) Statements included

To establish a sufficient record of foreclosure and sale, the

foreclosure commissioner shall include in the recitals of the deed

to the purchaser, or prepare as an affidavit or addendum to the

deed, a statement setting forth -

(1) the date, time, and place of the foreclosure sale;

(2) that the mortgage was held by the Secretary, the date of

the mortgage, the office in which the mortgage was recorded, and

the liber number and folio or other appropriate description of

the recordation of the mortgage;

(3) the particulars of the foreclosure commissioner's service

of the notice of default and foreclosure sale in accordance with

sections 3758 and 3760 of this title;

(4) the date and place of filing the notice of default and

foreclosure sale;

(5) that the foreclosure was conducted in accordance with the

provisions of this chapter and with the terms of the notice of

default and foreclosure sale; and

(6) the sale amount.

(b) Effect of statements

The items set forth in subsection (a) of this section shall -

(1) be prima facie evidence of the truth of such facts in any

Federal or State court; and

(2) evidence a conclusive presumption in favor of bona fide

purchasers and encumbrancers for value without notice.

Encumbrancers for value include liens placed by lenders who provide

the purchaser with purchase money in exchange for a security

interest in the newly-conveyed property.

(c) Recordation of instruments

The deed executed by the foreclosure commissioner, the

foreclosure commissioner's affidavit (if prepared) and any other

instruments submitted for recordation in relation to the

foreclosure of the security property under this chapter shall be

accepted for recordation by the registrar of deeds or other

appropriate official of the county or counties in which the

security property is located upon tendering of payment of the usual

recording fees for such instruments, and without regard to the

compliance of those instruments with any other local filing

requirements.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 815 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-CITE-

12 USC Sec. 3765 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3765. Effect of sale

-STATUTE-

A sale, made and conducted as prescribed in this chapter to a

bona fide purchaser, shall bar all claims upon, or with respect to,

the property sold, for each of the following persons:

(1) Notice recipients

Any person to whom the notice of default and foreclosure sale

was mailed as provided in this chapter, and the heir, devisee,

executor, administrator, successor, or assignee claiming under

any such person.

(2) Subordinate claimants with knowledge

Any person claiming any interest in the property subordinate to

that of the mortgage, if such person had actual knowledge of the

foreclosure sale.

(3) Nonrecorded claimants

Any person claiming any interest in the property, whose

assignment, mortgage, or other conveyance was not duly recorded

or filed in the proper place for recording or filing, or whose

judgment or decree was not duly docketed or filed in the proper

place for docketing or filing, before the date on which the

notice of the foreclosure sale was first served by publication,

as required by section 3758(3) of this title, and the executor,

administrator, or assignee of such a person.

(4) Other persons

Any person claiming an interest in the property under a

statutory lien or encumbrance created subsequent to the recording

or filing of the mortgage being foreclosed, and attaching to the

title or interest of any person designated in any of the

foregoing paragraphs.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 816 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 3763 of this title.

-CITE-

12 USC Sec. 3766 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3766. Computation of time

-STATUTE-

Periods of time provided for in this chapter shall be calculated

in consecutive calendar days, including the day or days on which

the actions or events occur or are to occur for which the period of

time is provided and including the day on which an event occurs or

is to occur from which the period is to be calculated.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 817 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-CITE-

12 USC Sec. 3767 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3767. Severability

-STATUTE-

If any part of this chapter shall, for any reason, be adjudged by

a court of competent jurisdiction to be invalid, or invalid as

applied to a class of cases, such judgment shall not affect,

impair, or invalidate the remainder thereof, and shall be confined

in its operation to the part thereof directly involved in the

controversy in which such judgment shall have been rendered.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 818 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-CITE-

12 USC Sec. 3768 01/06/03

-EXPCITE-

TITLE 12 - BANKS AND BANKING

CHAPTER 38A - SINGLE FAMILY MORTGAGE FORECLOSURE

-HEAD-

Sec. 3768. Deficiency judgment

-STATUTE-

(a) In general

(1) Referral to Attorney General

If after deducting the payments provided for in section 3762 of

this title, the price at which the security property is sold at a

foreclosure sale is less than the unpaid balance of the debt

secured by the security property, resulting in a deficiency, the

Secretary may refer the matter to the Attorney General who may

commence an action or actions against any or all debtors to

recover the deficiency, unless such an action is specifically

prohibited by the mortgage.

(2) Other recoveries

In any action instituted pursuant to this section the United

States may recover -

(A) any amount authorized by section 3011 of title 28; and

(B) the costs of the action.

(b) Limitation

Any action commenced to recover a deficiency under this section

must be brought not later than 6 years after the date of the last

sale of the security property.

-SOURCE-

(Pub. L. 103-327, title II, Sept. 28, 1994, 108 Stat. 2316.)

-COD-

CODIFICATION

Section is based on section 819 of title VIII of S. 2281, One

Hundred Third Congress, as reported July 13, 1994, which was

enacted into law by Pub. L. 103-327.

-CITE-