To entitle a party to foreclose by advertisement, it is requisite: 1. That default in a condition of the mortgage has occurred by which the power of sale has become operative; 2. That no action or proceeding has been instituted at law to recover the debt then remaining secured by the mortgage, or any part thereof, or if any action or proceeding has been instituted, that the same has been discontinued or that an execution upon the judgment rendered therein has been returned unsatisfied in whole or in part; and 3. That the mortgage containing the power of sale has been recorded and, if it has been assigned, that all the assignments thereof have been recorded.
35-22-03. Notice of intention to foreclose - Service - Payment - Failure to commence foreclosure within ninety days. Before any real estate mortgage may be foreclosed by advertisement, a notice of intention to foreclose such mortgage must be served on the record title owner of the real estate described in the mortgage unless the service thereof is excused by section 32-19-23. Such notice must be in the form specified in section 32-19-21, and must be served as provided for the service of such notice in foreclosure by action as prescribed in chapter 32-19, and the proof of service thereof, or the proof of death of the record title owner, must be recorded with the notice and certificate of sale. If the owner of the land or the owner's legal representative, before the expiration of thirty days from the service of the notice of intention to foreclose the mortgage, performs or complies with the conditions of the mortgage, the mortgage remains in full force and effect the same as if no default had occurred. If the notice of sale is not published for the first time within ninety days after the service of the notice of intention to foreclose, all proceedings under the notice of intention to foreclose are deemed discontinued.