Page:United States Statutes at Large Volume 76A.djvu/459

–363– -363Subchapter II—Mortgage Foreclosure § 1731. Foreclosure of mortgages on real and personal property (a) There may be but one action for the recovery of a debt, or the enforcement of a right, secured by mortgage upon real or personal property, which action shall be in accordance with the provisions of this subchapter. In the action the court may, by its judgment, direct the sale of the encumbered property (or as much thereof as may be necessary), and the application of the proceeds of the sale to the payment of the costs of court, and the expenses of the sale, and the amount due plaintiff, including, where the mortgage provides for the payment of attorney's fees, such sum for the fees as the court finds reasonable, not exceeding the amount named in the mortgage. (b) The court may, by its judgment, or at any time after judgment, appoint a commissioner to sell the encumbered property. It shall require of him an undertaking in an amount fixed by the court, with sufficient sureties, to be approved by the court, to the effect that the commissioner will faithfully perform the duties of his office according to law. Before entering upon the discharge of his duties he shall file the undertaking, so approved, together with his oath that he will faithfully perform the duties of his office. (c) If it appears from the marshal's return, or from the commissioner's report, that the proceeds are insufficient, and a balance still remains due, the clerk shall enter judgment for the balance against the defendant or defendants personally liable for the debt. (d) A person holding a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the office of the registrar of property at the time of the commencement of the action, need not be made a party to the action, and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding the unrecorded conveyance or lien as if he had been a party to the action. (e) If the court appoints a commissioner for the sale of the property, the commissioner shall sell it in the manner provided by law for the sale of like property by the marshal upon execution; and sections 541-569 of this title apply to sales made by a commissioner, and the powers therein given and the duties therein imposed on the marshal are extended to the commissioner. § 1732. Disposition of surplus If there is surplus money remaining, after payment of the amount due on the mortgage, lien, or encumbrance, with costs, the court may cause it to be paid to the person entitled to it, and in the meantime may direct it to be deposited in court. § 1733. Debt becoming due at different times If the debt for which the mortgage, lien, or encumbrance is held is not all due, the sale shall cease as soon as sufficient of the property has been sold to pay the amount due, with costs; and afterwards, as often as more becomes due, for principal or interest, the court may, on motion, order more to be sold. If the property cannot be sold in portions, without injury to the parties, the whole may be ordered to be sold in the first instance, and the entire debt and costs paid, with a rebate of interest where a rebate is proper. § 1734. Commissioner's oath, bond, report, and compensation Before entering upon his duties, the commissioner shall take an oath to perform them faithfully, and the court shall require of him an undertaking, with sufficient sureties, to be approved by the court, in an amount to MIfixedby the court, to the effect that he will faithfully perform the duties of commissioner according to law.

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