Title 71

A mortgage does not entitle the mortgagee to the possession of the property unless authorized by the express terms of the mortgage, but after the execution of the mortgage, the mortgagor may agree to such change of possession without a new consideration.

No person whose interest is subject to the lien of a mortgage may do any act which will substantially impair the mortgagee's security.

(1) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is deemed a p…

Title acquired by the mortgagor subsequent to the execution of the mortgage inures to the mortgagee as security for the debt in like manner as if acquired before the execution.

A mortgage may be created upon property held adversely to the mortgagor.

The assignment of a debt secured by mortgage carries with it the security.

A power of sale may be conferred by a mortgage upon the mortgagee or any other person, to be exercised after a breach of the obligation for which the mortgage is a security.

(1) In the event of conflict between any provision of this part and the Uniform Commercial Code, the latter shall govern. (2) All mortgages and deeds of trust covering both real and personal property executed by a corporation, association, or partnership or by an individual or in…

Except as provided in 71-1-114, if a lending institution requires a borrower under a mortgage or trust indenture of real property to include in the borrower's regular payment additional payment into a reserve fund held by the lending institution for the future payment of property…

If the borrower desires, the lending institution and borrower may enter into a written contract in which they agree that the funds on reserve exceed 110% of the reasonable amount needed to pay such expenses.

Every lending institution shall keep an itemized record of each payment entered into the reserve fund and each disbursement withdrawn from the reserve fund. The lending institution shall annually mail a statement of total receipts and disbursements to each borrower under a mortga…

Any interest in real property which is capable of being transferred may be mortgaged. Such property or interest may be mortgaged to secure existing debts, to secure debts created simultaneously with the execution of the mortgage, and to secure advances then in contemplation but t…

A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. When the mortgage confers a power of sale, as mentioned in 71-1-111, possession m…

A mortgage of real property can be created, renewed, or extended only by writing, with the formalities required in the case of a grant of real property.

A mortgage of real property may be made in substantially the following form: "This mortgage, made the .... day of ...., in the year ...., by A.B., of ...., mortgagor, to C.D., of ...., mortgagee: That the mortgagor mortgages to the mortgagee (here describe the property), as secur…

Any lien entitled to actual priority over the lien of mortgage by force of any express provision of the laws of this state shall continue to have priority to the extent prescribed by law.

(1) The amount of future advances or total indebtedness that may be outstanding at any given time and subject to mortgage protection must be stated in the mortgage. The mortgagee may reserve the right, at the mortgagee's option, to refuse to make all or any part of a future advan…

(1) Mortgages of real property may be acknowledged or proved, certified, and recorded in the same manner and with the same effect as grants of real property. (2) An assignment of a real estate mortgage may be recorded in the same manner as a real estate mortgage, and the record o…

A subordination agreement or a waiver in favor of subsequent purchasers, encumbrancers, or mortgagees as regards any real estate mortgage of record or the property therein included may be recorded in like manner as a real estate mortgage, and such record shall operate as due and …

When a grant of real property purports to be an absolute conveyance but is intended to be defeasible on the performance of certain conditions, the grant is not defeated or affected as against any person other than the grantee or the grantee's heirs or devisees or persons having a…

A mortgage of real property made, acknowledged, and recorded as provided by the laws of this state is good against all from the time it is recorded until 8 years after the maturity of the entire debt or obligation secured and no longer unless the mortgagee or the mortgagee's heir…

(1) A mortgage must be discharged upon the record by the county clerk in whose custody it is recorded whenever there is presented to the clerk a certificate executed by the mortgagee or the mortgagee's personal representative or assignee, acknowledged or proved and certified as p…

After the full performance of the conditions of a mortgage and whether before or after a breach of the mortgage, a mortgagee or the personal representative or assignee of the mortgagee who refuses or neglects to execute, acknowledge, and deliver to the mortgagor a certificate of …

(1) If a discharge or release is made by the personal representative of the mortgagee, it must be accompanied by a certified copy of the personal representative's authority unless the authority is already recorded in the office of the county clerk and recorder where the mortgage …

The term "foreclosure" for the purpose of this part shall include sale or possession of real property made or taken whether by judicial proceedings or otherwise.

(1) There is only one action for the recovery of debt or the enforcement of any right secured by a mortgage upon real estate, and that action must be in accordance with the provisions of this part. In the action, the court may, by its judgment, direct: (a) a sale of the encumbere…

When a real estate mortgage confers a power of sale, either upon the mortgagee or any other person, to be executed after a breach of the obligation for which the mortgage is a security, either an action may be maintained under this part to foreclose or proceedings may be had unde…

Real estate sold under a power of sale given and contained in a mortgage of real estate, except in a trust indenture as defined in the Small Tract Financing Act of Montana, shall be advertised for sale at least 30 days before the date fixed for such sale, in a newspaper in the co…

If there be surplus money remaining after the payment of the amount due on the mortgage, lien, or encumbrance, with costs, the court may cause the same to be paid to the person entitled to it and in the meantime may direct it to be deposited in court.

If the debt for which the mortgage, lien, or encumbrance is held is not all due, as soon as sufficient of the property has been sold to pay the amount due, with costs, the sale must cease; and afterward, as often as more becomes due, for principal or interest, the court may, on m…

The court may, by injunction, upon good cause shown, restrain the party in possession from doing any act to the injury of real property during the foreclosure of a mortgage thereon.

All of the rights, powers, and privileges concerning the redemption from sales of real estate applicable to the sales of real estate under foreclosure proceedings or sales under execution shall be granted and allowed to sales of real estate under and by virtue of the power of sal…

The purchaser of land at mortgage foreclosure is not entitled to the possession of the land as against the execution debtor during the period of redemption allowed by law while the execution debtor personally occupies the land as a home for the execution debtor and the debtor's f…

An action to redeem a mortgage of real property, with or without an account of rents and profits, may be brought by the mortgagor or those claiming under the mortgagor against the mortgagee in possession or those claiming under the mortgagee unless the mortgagee in possession or …

If there is more than one mortgagor or more than one person claiming under a mortgagor, some of whom are not entitled to maintain an action under the provisions of 71-1-230 or Title 27, chapter 2, any one of them who is entitled to maintain an action may redeem in the action a di…

Upon the foreclosure of any mortgage, executed to any vendor of real property or to the vendor's heirs, executors, administrators, or assigns for the balance of the purchase price of the real property, the mortgagee is not entitled to a deficiency judgment on account of the mortg…

In an action to foreclose a mortgage of real property, the court must allow as a part of the costs a reasonable attorney's fee, which shall be fixed by the court, any stipulation in the instrument or any agreement between the parties to the contrary notwithstanding.

If the mortgagee demands attorney fees in case of the sale of real estate under and by virtue of the power of sale contained in any mortgage or deed of trust in this state, except in case of the sale of real estate by virtue of a power of sale conferred upon a trustee under a tru…

Nothing in this part shall be deemed to affect the negotiability of an instrument, and nothing in this part shall be deemed to limit remedies otherwise available to the purchaser of a promissory note secured by a mortgage unless such purchaser at the time of purchase had notice t…

This part may be cited as the "Small Tract Financing Act of Montana".

Because the financing of homes and business expansion is essential to the development of the state of Montana and because financing of homes and business expansion, usually involving areas of real estate of not more than 40 acres, has been restricted by the laws relating to mortg…

As used in this part, unless the context requires otherwise, the following definitions apply: (1) "Beneficiary" means the person named or otherwise designated in a trust indenture as the person for whose benefit a trust indenture is given or the person's successor in interest, wh…

(1) A transfer in trust of an interest in real property of an area not exceeding 40 acres may be made to secure the performance of an obligation of a grantor or any other person named in the indenture to a beneficiary. However, a trust indenture may not be substituted for a mortg…

A trust indenture is deemed to be a mortgage on real property and is subject to all laws relating to mortgages on real property except to the extent that such laws are inconsistent with the provisions of this part, in which event the provisions of this part shall control. For the…

(1) The trustee of a trust indenture under this part must be: (a) an attorney who is licensed to practice law in Montana; (b) a bank, trust company, or savings and loan association authorized to do business in Montana under the laws of Montana or the United States; or (c) a title…

(1) Upon performance of the obligation secured by the trust indenture, the trustee, upon written request of the beneficiary or servicer, shall reconvey the interest in real property described in the trust indenture to the grantor. If the obligation is performed and the beneficiar…