Idaho Code 6-101 – Proceedings in Foreclosure — Construction of Section — Meaning of “Action” — Effect of Foreclosure On Holder of Unrecorded Lien
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(1) There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate which action must be in accordance with the provisions of this chapter. In such action the court may, by its judgment, direct a sale of the incumbered property (or so much thereof as may be necessary) and the application of the proceeds of the sale to the payment of the costs of the court and the expenses of the sale, and the amount due to the plaintiff; and sales of real estate under judgments of foreclosure of mortgages and liens are subject to redemption as in the case of sales under execution; (and if it appear from the sheriff’s return that the proceeds are insufficient, and a balance still remains due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt), and it becomes a lien on the real estate of such judgment debtor, as in other cases on which execution may be issued.
(2) The provisions of this section must be construed in order to permit a secured creditor to realize upon collateral for a debt or other obligation agreed upon by the debtor and creditor.
Terms Used In Idaho Code 6-101
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
- Lien: A claim against real or personal property in satisfaction of a debt.
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Mortgagor: The person who pledges property to a creditor as collateral for a loan and who receives the money.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- person: includes a corporation as well as a natural person;
Idaho Code 73-114Personal property: includes money, goods, chattels, things in action, evidences of debt and general intangibles as defined in the uniform commercial code — secured transactions. See Idaho Code 73-114 Personal property: All property that is not real property. Plaintiff: The person who files the complaint in a civil lawsuit. Probate: Proving a will Property: includes both real and personal property. See Idaho Code 73-114 Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land. State: when applied to the different parts of the United States, includes the District of Columbia and the territories; and the words "United States" may include the District of Columbia and territories. See Idaho Code 73-114 Statute: A law passed by a legislature. Uniform Commercial Code: A set of statutes enacted by the various states to provide consistency among the states' commercial laws. It includes negotiable instruments, sales, stock transfers, trust and warehouse receipts, and bills of lading. Source: OCC
(3) As used in this section, an "action" does not include any of the following acts or proceedings:
(a) To appoint a receiver for, or obtain possession of, any real or personal property collateral for the debt or other obligation;
(b) To enforce a security interest in, or the assignment of, any rents, issues, profits or other income of any real or personal property;
(c) To enforce a mortgage or other lien upon any real or personal property collateral located outside of the state which is security for the same debt or other obligation;
(d) To secure a judgment outside of this state on a debt or other obligation secured by real property in this state and by real or personal property collateral located outside this state;
(e) For the exercise, pursuant to section 45-1505, Idaho Code, of a power of sale conferred pursuant to section 45-1503, Idaho Code;
(f) For the exercise of any right or remedy authorized by:
(i) The Idaho uniform commercial code, title 28, Idaho Code, except the securing of a judgment on the secured debt, including a deficiency judgment, in a court in Idaho; or
(ii) The uniform commercial code as enacted in any other state;
(g) For claim and delivery of personal property pursuant to chapter 3, title 8, Idaho Code;
(h) For the exercise of any right to set off a deposit account, or to enforce a pledge in a deposit account pursuant to a written agreement or pledge or to enforce a banker’s lien;
(i) To draw under a letter of credit;
(j) To collect any debt, or enforce any obligation or right, secured by a mortgage or other lien on real property if the property has been sold to a person other than the creditor to satisfy, in whole or in part, a debt or other obligation or right secured by a senior mortgage or other senior lien on the property;
(k) Relating to any proceeding in bankruptcy, including the filing of a proof of claim, seeking relief from an automatic stay and any other action to determine the amount or validity of a debt or other obligation;
(l) For filing a claim pursuant to the Idaho uniform probate code, title 15, Idaho Code, or to enforce such a claim which has been disallowed;
(m) Which does not include the collection of the debt or enforcement of the obligation or realization of the collateral securing the debt or other obligation;
(n) Which is exempted from the provisions of this section by specific statute;
(o) To recover costs of suit, costs and expenses of sale, attorney fees and other incidental relief in connection with any action authorized in this subsection.
(4) No person holding a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the proper office at the commencement of the action, need be made a party to such action; and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding such unrecorded conveyance or lien as if he had been made a party to the action.