Rule 71. Foreclosure and Partition

• Library: South Carolina Rules Annotated (SCBar) (2019 Ed.)

RULE 71. FORECLOSURE AND PARTITION

(a) Proceedings, Reference.

Actions to foreclose liens or obtain partition of real property shall be tried by the court, and shall ordinarily be referred to a master pursuant to Rule 53. In foreclosure actions the judge or master shall compute the a mounts due the plaintiff and any other claimants, which amounts when determined shall be the total debt due to each. The total debt shall as a minimum set forth clearly the principal due upon default, the rate of interest and interest from date of default to hearing date, any other relevant interest charged, any amounts due or to be credited on escrow items, the taxable costs of collection prior to hearing, and the amount of allowable attorneys fees due and anticipated through conclusion of the action. Also included shall be the rate of interest to accrue until the date of the judgment and the post judgment interest rate. The judge or master may also establish the priority and compute the amounts due of any other liens when a determination of lien priorities appears necessary or desirable prior to a foreclosure sale. Any party who has appeared in the action may present proof that the debt may be satisfied by selling the property in parcels, rather than selling the whole to satisfy the claims. Only parties who have appeared and filed pleadings in the action shall be entitled to the usual notice of hearings and other proceedings unless the pleadings state an unliquidated claim. In all cases proof shall be made of the facts and circumstances alleged in the pleadings and evidence given as to any payments which have been made or credits due. Prior to the filing of the master's report or final order of judgment, the judge or master shall assure that the plaintiff and all other claimants have complied with the statutes pertaining to the filing of notices of lis pendens. In all actions a record of hearings shall be made and preserved in the case file in the office of the clerk of court.

(b) Judgment and Sale on Foreclosure.

The judgment shall direct that the mortgaged premises (or part thereof as required to satisfy the claims established) be sold by or under direction of the master or, in counties where there is no master, other appropriate court officer. The judgment shall also contain a good and sufficient legal description of the property being sold, a provision for the necessary legal advertisement, the time and location of the sale, and notice of any senior liens, taxes, or other rights to which the property to be sold is subject. The judgment shall also specify the amount of good faith deposit necessary at the time of the sale, and the date that compliance must be made with the bid. The plaintiff or any other party may be a purchaser on such sale. Unless the pleadings state that no personal or deficiency judgment is demanded or any right to such judgment is expressly waived in writing, the bidding shall not be closed upon the day of sale but shall remain open until the thirtieth day after such sale exclusive of the day of the sale. The manner and conduct of the bidding when a deficiency has been demanded shall be as required by law. The master or other court officer making the sale shall execute a deed to the purchaser. Out of the proceeds of the sale he shall pay the costs of the sale, any amounts ordered to be paid by the judgment, then to the parties or their attorneys of record the amounts of their total claims and interest or so much of the purchase money as will pay the same. Notwithstanding the fact that the foreclosure action may have been referred to the master for final judgment, the master or other officer conducting the sale shall file a report with the court as to the sale and the receipts and disbursements made. Any surplus moneys arising from the sale shall be held by the officer making the sale and shall be paid pursuant to Rule 71(c).

(c) Disposition of Surplus.

In the event of a surplus fund resulting from the sale, the master or other officer conducting the sale shall at the time he makes his report to the court on the sale and disbursements, cause to be furnished to all parties appearing in the action a notice advising of the surplus fund. Unless otherwise provided therein, the original order of reference in a foreclosure action shall be considered to extend to the disposition of the surplus fund.

Any party to the action, or any person who had a lien on the mortgaged premises at the time of the sale, upon filing with the master or other officer...