In general, an exculpatory clause is a clause that eliminates a partys liability for damages caused by a breach of contract. A common type of exculpatory clause involves limiting liability on a loan to the collateral. In other words, if there is a default, the contract says that the damages will be limited to execution on the collateral (i.e., foreclosure on the property covered by the mortgage or deed of trust).
South Dakota Exculpatory Clause or Nonrecourse Provision in Mortgage regarding Deficiency Judgment
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How to fill out Exculpatory Clause Or Nonrecourse Provision In Mortgage Regarding Deficiency Judgment?
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FAQ
Which States Have Anti-Deficiency Laws? Alaska; Arizona; California; Connecticut; Idaho; Minnesota; North Carolina; North Dakota;
These are known as ?nonrecourse states,? and they include Alaska, Arizona, California, Connecticut, Idaho, Minnesota, North Carolina, North Dakota, Oregon, Texas, Utah and Washington.
In Texas, the lender may get a deficiency judgment with both judicial and nonjudicial foreclosures. (Tex. Prop. Code § 51.003, § 51.004).
Anti-deficiency legislation in Arizona and California shields residential borrowers from personal liability at the obvious expense of the lender.
44-8-26. Collateral real estate mortgages. A mortgage which contains the following statement in printed or typed capital letters: THE PARTIES AGREE THAT THIS MORTGAGE CONSTITUTES A COLLATERAL REAL ESTATE MORTGAGE PURSUANT TO SDCL 44-8-26, is subject to the provisions of this section.
In Florida, the lender may obtain a deficiency judgment as part of the foreclosure action if the borrower was personally served with the foreclosure complaint. The lender may also file a separate lawsuit against the borrower for a deficiency judgment unless the court denied one in the foreclosure action.
1. : the quality or state of being defective or of lacking some necessary quality or element : the quality or state of being deficient : inadequacy. suffers from a deficiency of critical thinking. 2. : an amount that is lacking or inadequate : shortage.
A power of sale clause is a part of the contract that says if the person who takes out the loan stops making payments the lender can sell the property without going to court. Most mortgages have a power of sale clause, so lenders can foreclose without going to court (non-judicial).
