AGO 85-42.
Court | North Dakota |
North Dakota Attorney General Opinions
1985.
AGO 85-42.
Office of the
Attorney General State of North Dakota Opinion No. 85-42Date Issued: November 4, 1985Requested by: Pat S. Fricke
Executive Director Housing Finance Agency--QUESTIONS PRESENTED-- Whether the Housing Finance Agency may foreclose by advertisement a
mortgage purchased by it prior to July 1, 1983. Whether N.D.C.C. §§ 32-19.1-04, 32-19.1-04.1, and 35-22-20, as
amended by 1985 N.D. Sess. Laws 376, are applicable to the foreclosure by
advertisement of a mortgage given to the Housing Finance Agency prior to March
14, 1985.--ATTORNEY GENERAL'S OPINION--
It is my opinion that the Housing Finance Agency may foreclose by
advertisement a mortgage purchased by it prior to July 1, 1983.
It is my opinion that N.D.C.C. §§ 32-19.1-04,
32-19-04.1 and 35-22-20, as amended by 1985 N.D. Sess. Laws 376, are not
applicable to the foreclosure by advertisement of a mortgage given to the
Housing Finance Agency prior to March 14, 1985.
--ANALYSES--
I.
The remedy of foreclosure by advertisement is set out in N.D.C.C.
Ch. 35-22, and the remedy of foreclosure by action is set out in N.D.C.C. Ch.
32-19.
Prior to July 1, 1983, N.D.C.C. § 35-22-01 provided as
follows:
35-22-01. FORECLOSURE UNDER POWER OF SALE--PROHIBITION--EXCEPTION. Every mortgage of real property executed to the president of the Bank of North Dakota, as mortgagee, and every mortgage of real property heretofore or hereafter executed to the Bank of North Dakota, as mortgagee, and every mortgage negotiated by the board of university and school lands to the state of North Dakota as mortgagee, containing a power of sale, upon default being made in the conditions of such mortgage, may be foreclosed by advertisement in the manner provided by law. No other mortgage of real property shall be so foreclosed, but must be foreclosed by action.N.D.C.C. § 35-22-01, as amended by the Legislature in 1983, presently provides as follows:
35-22-01. FORECLOSURE UNDER POWER OF SALE--PROHIBITION--EXCEPTION. Every mortgage of real property held by the state or any of its agencies, departments, or instrumentalities, containing a power of sale, upon default being made in the conditions of such mortgage, may be foreclosed by advertisement in the manner provided by law. No other mortgage of real property shall be so foreclosed, but must be foreclosed by action.The following rules of statutory construction are applicable in determining the legislative intent of this amendment:
The primary purpose of statutory construction is to ascertain the intent of the Legislature. (citations omitted.) The Legislature's intent in enacting a statute must first be sought from the language of the statute itself. (citations omitted.)Furthermore, the statute must be considered as a whole, with a view toward arriving at the legislative intent. (citations omitted.) Any interpretation of a statute must be reasonable...
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