The power of sale clause within a mortgage acts as the legal means to proceed with foreclosure. The power of sale clause stipulates the foreclosure process should default occur. Within the non-judicial foreclosure, there is the requirement of public announcement of foreclosure, commonly termed as foreclosure by advertisement. The power of sale clause, a trustee acts as a representative for the lender. It gives the trustee the right to proceed with foreclosure on a mortgage in default. However, Montana courts do mandate on who is qualifies to act as a trustee in foreclosures. The trustee position in foreclosures is limited to attorneys, banks, and title agents.

Within 120 days prior to the sale of the property in default, the lender must record a notice of sale with the county clerk and serve the mortgage holder by certified or registered mail intent to foreclose within the same time frame. Notice of sale must be posted on the property at least 20 days before the sale and personally served on the borrower. The notice of sale must include a description of the default, lenders identification, break down of foreclosure, cost, fees, and date and location that the sale will be held. The mortgage holder can stop the foreclosure by paying the loan off fully prior to the sale. Notice must also be published in newsprint within the county of where the property is located for three consecutive weeks at least one time per week.

If there is no power of sale clause within the mortgage papers, the lender then must use the judicial foreclosure process. The court must issue a final judgment of foreclosure. There are no post redemption rights in Montana for non-judicial foreclosures. Generally, in non-judicial foreclosures there are no rights of deficiency for the lender. If you live in Montana and are facing foreclosure, 1st Foreclosure Prevention can help you work with you lender to stop the foreclosure process and help you to save your home.