Ark. Code Ann. » Title 18 Chapter 50
Arkansas Code Annotated

Ark. Code Ann. § 18-50-104 (2020)

Prerequisites for foreclosure sale — Contents of notice of sale — Persons to receive notice

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  1. The trustee or mortgagee may not sell the trust property unless:
    1. The mortgagee, trustee, or beneficiary has filed for record with the recorder of the county in which the trust property is situated a duly acknowledged notice of default and intention to sell containing the information required by subsection (b) of this section;
    2. A period of at least sixty (60) days has elapsed since the recording of the notice of default and intention to sell; and
        1. The beneficiary or mortgagee has certified to its trustee or attorney-in-fact under § 18-50-102 that each mortgagor, grantor, or obligor who applied for loan modification or forbearance assistance has been notified that the mortgagor, grantor, or obligor does not meet the criteria for loan modification or forbearance assistance under any program offered by:
          1. The beneficiary or mortgagee; or
          2. A government agency if the beneficiary or mortgagee participates in the government agency's program.
        2. The notice shall be sent to the property address or mailing address of the mortgagor, grantor, or obligor by certified and first-class mail at least ten (10) business days before the sale.
      2. The duties of the beneficiary or mortgagee under subdivision (a)(3)(A) of this section are not delegable to the beneficiary's trustee or the mortgagee's attorney-in-fact.
  2. The mortgagee's or trustee's notice of default and intention to sell shall set forth:
    1. The names of the parties to the mortgage or deed of trust;
    2. A legal description of the trust property and, if applicable, the street address of the property;
    3. The book and page numbers where the mortgage or deed of trust is recorded or the recorder's document number;
    4. The default for which foreclosure is made;
    5. The mortgagee's or trustee's intention to sell the trust property to satisfy the obligation, including in conspicuous type a warning as follows: “YOU MAY LOSE YOUR PROPERTY IF YOU DO NOT TAKE IMMEDIATE ACTION”;
    6. The time, date, and place of sale; and
    7. The name, address, and telephone number of the party initiating foreclosure.
  3. The mortgagee's or trustee's notice of default and intention to sell shall be mailed within thirty (30) days of the recording of the notice by certified mail, postage prepaid, and by first-class mail, postage prepaid, to the address last known to the mortgagee or the trustee or beneficiary of the following persons:
    1. The mortgagor, grantor, and obligor of the deed of trust;
    2. Any successor in interest to the mortgagor or grantor whose interest appears of record or whose interest the mortgagee or the trustee or beneficiary has actual notice;
    3. Any person having a lien or interest subsequent to the interest of the mortgagee or trustee when that lien or interest appears of record or when the mortgagee, the trustee, or the beneficiary has actual notice of the lien or interest; and
    4. Any person requesting notice, as provided in § 18-50-113.
  4. The disability, incapacity, or death of any person to whom notice must be given under this section shall not delay or impair in any way the mortgagee's or trustee's right to proceed with a sale, provided that the notice has been given in the manner required by this section to the guardian or conservator or to the administrator or executor, as the case may be.

History. Acts 1987, No. 53, § 4; 1999, No. 983, § 4; 2011, No. 885, § 3.

Amendments. The 1999 amendment deleted former (a)(5) and redesignated (a)(6) as (a)(5); in (b), substituted “thirty (30) days” for “ten (10) days”, and deleted “return receipt requested” following “certified mail”; and made stylistic changes.

The 2011 amendment inserted present (a) and (b)(7) and redesignated the remaining subsections accordingly; and inserted “and obligor” in present (c)(1).

Research References

ALR.

Necessity of Production of Original Note Involved in Mortgage Foreclosure — Twenty-First Century Cases. 86 A.L.R.6th 411.

Action for Damages for Attempted Wrongful Foreclosure. 104 A.L.R.6th 485 (2015).

Case Notes

Due Process Guarantees.

Debtor, who had defaulted on her mortgage, alleged that the notice provisions of § 18-50-104 failed to comport with due process requirements; however, there was no state action involved in the foreclosure procedure, and mere passage of the Arkansas Statutory Foreclosure Act did not mean that there was state action or state officials involved. Parker v. BancorpSouth Bank, 369 Ark. 300, 253 S.W.3d 918 (2007).

Mailing of Notice.

Calculating the period of time within which notice of default must be mailed involves counting ten days from the day the Trustee's Notice of Default and Intention to Sell is filed with the recorder of the county, and the rule is that the day of the act or event from which the designated period of time begins to run is not to be included in the count. Union Nat'l Bank v. Nichols, 305 Ark. 274, 807 S.W.2d 36 (1991).

Strictly construing non-judicial foreclosure law, the court set aside the sale of certain real property as the bank failed to include the correct address in the notice of default; thus, the notice failed to satisfy the requirements of this section and sale was not authorized pursuant to § 18-50-103. In re Gatlin, 357 B.R. 519 (Bankr. W.D. Ark. 2006).

Reading this section and § 18-50-105 together, the U.S. Bankruptcy Court for the Western District of Arkansas, Texarkana Division, concluded that the notice that must be published in the newspaper, at the county courthouse, and on the internet is the notice of default and intention to sell and, therefore, must contain a legal description of the trust property and, if applicable, the street address of the property. In re Gatlin, 357 B.R. 519 (Bankr. W.D. Ark. 2006).

Place of Sale.

Where notice of default gave as the place of sale “Sebastian County Courthouse,” which encompasses two distinct locations for the place of sale, the notice, in essence specifying two possible locations for the sale, was deficient. Henson v. Fleet Mtg. Co., 319 Ark. 491, 892 S.W.2d 250 (1995).

Cited: Ellis v. State Farm Bank, F.S.B., 2009 Ark. App. 569 (2009).

Notes of Decisions
Cited in 14 cases (2 in the last 5 years), 1991–2024 · leading case: Roby Clifton Davis v. Pennymac Loan Servs., LLC, 2020 Ark. 180, 599 S.W.3d 128.
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Roby Clifton Davis v. Pennymac Loan Servs., LLC, 2020 Ark. 180, 599 S.W.3d 128. · cites it 23× “Ark. Code Ann. § 18-50-104 (b) (emphasis added).”
Union Nat'l Bank v. Nichols, 807 S.W.2d 36 (Ark. 1991). · cites it 12× “The sole issue raised by appellant in this appeal is whether the ten-day notice requirement of Ark. Code Ann. § 18-50-104 (b) (Supp. 1989) is to be computed as ten consecutive calendar days or as ten days excluding intermediate Saturdays, Sundays or legal holidays, in accordance…”
Parker v. BancorpSouth Bank, 253 S.W.3d 918 (Ark. 2007). · cites it 6× “Specifically challenged is Ark. Code Ann. § 18-50-104 (Repl. 2003), which sets forth the required contents of a mortgagee’s or a trustee’s notice of default and intention to sell and the requirements for delivery of such a notice.”
Henson v. Fleet Mortg. Co., 892 S.W.2d 250 (Ark. 1995). · cites it 3× “1993) the trustee may not exercise a power of sale unless the notice of default and intention to sell contains the information required by § 18-50-104. Arkansas Code Ann. § 18-50-104 (Supp.”
In re Gatlin, 357 B.R. 519 (Bankr. W.D. Ark. 2006). · cites it 12× “Notice of default and intention to sell must be mailed to the mortgagor by certified mail and first class mail to the address last known to the mortgagee within thirty days of the recording of the notice. Ark.”
Lambert v. Firstar Bank, N.A., 127 S.W.3d 523 (Ark. Ct. App. 2003). · cites it 4× “Appellants would have this court rewrite Ark. Code Ann. § 18-50-104 to impose a requirement that the mortgage holder inform the debtor of the amount needed to cure the default.”
Citibank, N.A. v. Carruth, 2015 Ark. App. 704. · cites it 2× “In the complaint, Citibank acknowledged that Tru-Star Properties and Carruth were not provided notice of the foreclosure action as required by Arkansas Code Annotated section 18-50-104 (Supp. 2011). Arkansas Code Annotated section 18-50-108(a)(2) provides that a person entitled…”
In re Cook, 253 B.R. 249 (Bankr. E.D. Ark. 2000). “shall foreclose and terminate all interest in the trust property of all persons to whom notice is given under § 18-50-104 (b) A sale shall terminate all rights of redemption, and no person shall have a right to redeem the trust property after a sale.”
In re Bland, 227 B.R. 163 (Bankr. E.D. Ark. 1998). “shall foreclose and terminate all interest in the trust property of all persons to whom notice is given under § 18-50-104... * * * (b) A sale shall terminate all rights of redemption, and no person shall have a right to redeem the trust property after a sale.”
Hickman v. Union Nat'l Bank of Arkansas (In re Hickman), 154 B.R. 730 (Bankr. W.D. Ark. 1993). “(a) A sale made by a mortgagee or trustee of the attorney for the mortgagee or trustee shall foreclose and terminate all interest in the trust property of all per *732 sons to whom notice is given under § 18-50-104 and of any other person claiming by, through, or under such…”
Hunter v. Midfirst Bank, No. 4:21-cv-00362 (E.D. Ark. Dec. 20, 2021). · cites it 11× “Hunter alleges that MidFirst did not provide notice of loan modification or forbearance 133 See supra note 63; Pl.”
Lewis v. Mortg. Elec. Reg. Sys. Inc, No. 4:19-cv-00470 (E.D. Ark. Mar. 20, 2020). · cites it 6× “Ark. Code Ann. § 18-50-104 (a)(1). The notice of default and intention to sell, in turn, must include the following information: (1) The names of the parties to the mortgage or deed of trust; (2) A legal description of the trust property and, if applicable, the street address of…”
Show all 14 citing cases →
Ark. Code Ann. § 18-50-104(a): 1 case
In re Gatlin, 357 B.R. 519 (Bankr. W.D. Ark. 2006). “Notice of default and intention to sell must be mailed to the mortgagor by certified mail and first class mail to the address last known to the mortgagee within thirty days of the recording of the notice. Ark.”
Ark. Code Ann. § 18-50-104(a)(1): 1 case
Hunter v. Midfirst Bank, No. 4:21-cv-00362 (E.D. Ark. Dec. 20, 2021). “Hunter alleges that MidFirst did not provide notice of loan modification or forbearance 133 See supra note 63; Pl.”
Ark. Code Ann. § 18-50-104(a)(2): 2 cases
In re Gatlin, 357 B.R. 519 (Bankr. W.D. Ark. 2006). “Notice of default and intention to sell must be mailed to the mortgagor by certified mail and first class mail to the address last known to the mortgagee within thirty days of the recording of the notice. Ark.”
Hunter v. Midfirst Bank, No. 4:21-cv-00362 (E.D. Ark. Dec. 20, 2021). “Hunter alleges that MidFirst did not provide notice of loan modification or forbearance 133 See supra note 63; Pl.”
Ark. Code Ann. § 18-50-104(a)(3)(A)(i): 1 case
Hunter v. Midfirst Bank, No. 4:21-cv-00362 (E.D. Ark. Dec. 20, 2021). “Hunter alleges that MidFirst did not provide notice of loan modification or forbearance 133 See supra note 63; Pl.”
Ark. Code Ann. § 18-50-104(a)(3)(A)(ii): 1 case
Hunter v. Midfirst Bank, No. 4:21-cv-00362 (E.D. Ark. Dec. 20, 2021). “Hunter alleges that MidFirst did not provide notice of loan modification or forbearance 133 See supra note 63; Pl.”
Ark. Code Ann. § 18-50-104(a)(3)(B): 1 case
Hunter v. Midfirst Bank, No. 4:21-cv-00362 (E.D. Ark. Dec. 20, 2021). “Hunter alleges that MidFirst did not provide notice of loan modification or forbearance 133 See supra note 63; Pl.”
Ark. Code Ann. § 18-50-104(b): 1 case
Union Nat'l Bank v. Nichols, 807 S.W.2d 36 (Ark. 1991). “The sole issue raised by appellant in this appeal is whether the ten-day notice requirement of Ark. Code Ann. § 18-50-104 (b) (Supp. 1989) is to be computed as ten consecutive calendar days or as ten days excluding intermediate Saturdays, Sundays or legal holidays, in accordance…”
Ark. Code Ann. § 18-50-104(b)(4): 2 cases
Roby Clifton Davis v. Pennymac Loan Servs., LLC, 2020 Ark. 180, 599 S.W.3d 128. “Ark. Code Ann. § 18-50-104 (b) (emphasis added).”
Hunter v. Midfirst Bank, No. 4:21-cv-00362 (E.D. Ark. Dec. 20, 2021). “Hunter alleges that MidFirst did not provide notice of loan modification or forbearance 133 See supra note 63; Pl.”
Ark. Code Ann. § 18-50-104(c)(1): 1 case
Hunter v. Midfirst Bank, No. 4:21-cv-00362 (E.D. Ark. Dec. 20, 2021). “Hunter alleges that MidFirst did not provide notice of loan modification or forbearance 133 See supra note 63; Pl.”
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