53-6-176. Notice of application — proof of notice — request for issuance of writ of execution. (1) The department shall provide notice, as required by this section, of the filing of the application for a writ of execution pursuant to 53-6-175 to all persons having a recorded interest in the property or residing lawfully on the property.

Terms Used In Montana Code 53-6-176

  • Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
  • Affidavit: means a sworn written declaration made before an officer authorized to administer oaths or an unsworn written declaration made under penalty of perjury as provided in 1-6-105. See Montana Code 1-1-203
  • Clerk of court: An officer appointed by the court to work with the chief judge in overseeing the court's administration, especially to assist in managing the flow of cases through the court and to maintain court records.
  • Department: means the department of public health and human services provided for in 2-15-2201. See Montana Code 53-6-155
  • Lien: A claim against real or personal property in satisfaction of a debt.
  • Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
  • Property: means real and personal property. See Montana Code 1-1-205
  • State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
  • Writ: A formal written command, issued from the court, requiring the performance of a specific act.
  • Writ: means an order in writing issued in the name of the state or of a court or judicial officer. See Montana Code 1-1-202

(2)The notice must contain a description of the property and must state that the department has a lien under 53-6-171 upon the described property, that the department has filed an application for a writ of execution seeking sale of the property, and that a writ will be issued unless an action challenging issuance of the writ has been filed in accordance with 53-6-177 within 60 days of the date of mailing or service of notice or first publication of notice. The department shall include with the notice a copy of the application for the writ. The notice must also include notice of the right to seek an undue hardship exception as provided in 53-6-180.

(3)(a) The department may mail a copy of the notice, postage prepaid and return receipt requested, to the name and address stated in the recorded instrument creating each person‘s interest in the property or, in the case of a person residing on the property, to the address of the residence on the property. Mailing as provided in this subsection (a) is sufficient notice to the addressee if the return receipt is returned to the department and indicates that the notice was received by or on behalf of the addressee.

(b)If the return receipt is not returned to the department indicating that the notice was received by or on behalf of the addressee, the department shall attempt with reasonable diligence to locate the addressee and to personally serve or mail notice to that person.

(c)If after the exercise of reasonable diligence the department is unable to locate the person owning the interest in the property, the department shall publish the notice required by subsection (2) three times, once each week for 3 successive weeks, in a newspaper published in the county in which the property is located if a newspaper is published in the county. If a newspaper is not published in the county, then publication must be in a newspaper having a general circulation in the county.

(d)With respect to a person residing lawfully on the property but having no recorded interest in the property, the notice may be delivered to the residence and delivery is sufficient notice as to that person.

(e)In the alternative, the notice and application may be personally served upon any person entitled to notice under this section.

(4)(a) After giving notice as required by this section, the department shall file with the clerk of court an affidavit describing:

(i)the manner in which notice has been provided to each person entitled to notice;

(ii)the date of mailing, personal service, or first publication of the notice; and

(iii)the date by which each person is required to file an action to challenge issuance of the writ of execution.

(b)The department shall attach to the affidavit the return receipt, the affidavit of personal service, the affidavit of publication, or other proof of service of the notice. If no action has been filed within the time required by 53-6-177, the affidavit must so state and may request immediate issuance of the writ.

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