12 U.S.C. § 3709 — Presale reinstatement

Page 1559 TITLE 12—BANKS AND BANKING § 3710 address stated in the mortgage agreement, or, if none, to the address of the security prop- erty, or, at the discretion of the foreclosure commissioner, to any other address believed to be that of such owner or mortgagor. Notice under clause (C) of this paragraph shall be mailed at least ten days prior to the date of foreclosure sale, and shall be mailed to each such lienholder’s address as stated of record or, at the discretion of the foreclosure com- missioner, to any other address believed to be that of such lienholder. Notice by mail pursu- ant to this subsection or section 3707(b) 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 letter is returned. (2) A copy of the notice of default and fore- closure sale shall be published, as provided herein, once a week during three successive calendar weeks, and the date of last publica- tion shall be not less than four nor more than twelve days prior to the sale date. The infor- mation included in the notice of default and foreclosure sale pursuant to section 3706(a)(4) of this title may be omitted, in the foreclosure commissioner’s discretion, from the published notice. Such publication shall be in a news- paper or newspapers having general circula- tion in the county or counties in which the se- curity property being sold is located. To the extent practicable, the newspaper or news- papers chosen shall be a newspaper or news- papers, if any is available, having circulation conducive to achieving notice of foreclosure by publication. Should there be 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 in at least three public places in each such county at least twenty-one days prior to the date of sale. (3) A copy of the notice of default and fore- closure sale shall be posted in a prominent place at or on the real property to be sold at least seven days prior to the foreclosure sale, and entry upon the premises for this purpose shall be privileged as against all persons. If the property consists of two or more non- contiguous parcels of land, a copy of the no- tice of default and foreclosure sale shall be posted in a prominent place on each such par- cel. If the security property consists of two or more separate buildings, a copy of the notice of default and foreclosure sale shall be posted in a prominent place on each such building. Posting at or on the premises shall not be re- quired where the foreclosure commissioner, in the commissioner’s sole discretion, finds that the act of posting will likely cause a breach of the peace or that posting may result in an in- creased risk of vandalism or damage to the property. (Pub. L. 97–35, title III, § 369, Aug. 13, 1981, 95 Stat. 426.) § 3709. Presale reinstatement (a) Grounds Except as provided in sections 3707(b) and 3710(c) of this title, the foreclosure commis- sioner shall withdraw the security property from foreclosure and cancel the foreclosure sale only if— (1) the Secretary so directs the commis- sioner prior to or at the time of sale; (2) the commissioner finds, upon application of the mortgagor at least three days prior to the date of sale, that the default or defaults upon which the foreclosure is based did not exist at the time of service of the notice of de- fault and foreclosure sale; or (3)(A) in the case of a foreclosure involving a monetary default, there is tendered to the foreclosure commissioner before public auc- tion is completed the entire amount of prin- cipal and interest which would be due if pay- ments under the mortgage had not been accel- erated; (B) in the case of a foreclosure involv- ing a nonmonetary default, the foreclosure commissioner, upon application of the mort- gagor before the date of foreclosure sale, finds that such default is cured; and (C) there is ten- dered to the foreclosure commissioner before public auction is completed all amounts due under the mortgage agreement (excluding ad- ditional amounts which would have been due if mortgage payments had been accelerated), all amounts of expenditures secured by the mort- gage and all costs of foreclosure incurred for which payment from the proceeds of fore- closure is provided in section 3711 of this title, except that the Secretary shall have discre- tion to refuse to cancel a foreclosure pursuant to this paragraph (3) if the current mortgagor or owner of record has on one or more previous occasions caused a foreclosure of the mort- gage, commenced pursuant to this chapter or otherwise, to be canceled by curing a default. (b) Views of Secretary Prior to withdrawing the security property from foreclosure in the circumstances described in subsection (a)(2) or (a)(3), the foreclosure commissioner shall afford the Secretary a rea- sonable opportunity to demonstrate why the se- curity property should not be so withdrawn. (c) Mortgage subsequent to reinstatement 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. (d) Subsequent foreclosures If the foreclosure commissioner cancels a fore- closure sale under this chapter a new foreclosure may be subsequently commenced as provided in this chapter. (Pub. L. 97–35, title III, § 369A, Aug. 13, 1981, 95 Stat. 427.) § 3710. Foreclosure sale (a) Time of sale; public auction; location The date of foreclosure sale set forth in the notice of default and foreclosure sale shall not be prior to thirty days after the due date of the earliest installment wholly unpaid or the ear- liest occurrence of any uncured nonmonetary default upon which foreclosure is based. Fore- closure sale pursuant to this chapter shall be at public auction, and shall be scheduled to begin