Statutory Foreclosures

Ark. Code Ann. tit. 18, ch. 50

in effect

Ark. Code Ann. § 18-50-101 Definitions.

As used in this chapter: (1) “Beneficiary” means the person named or otherwise designated in a deed of trust as the person for whose benefit a deed of trust is given or his or her successor in interest; (2) “Deed of trust” means a deed conveying real property in trust to secure the performance of an obligation of the grantor named in the deed or an obligor that is secured by the deed of trust to a beneficiary and conferring upon the trustee a power of sale for breach of an obligation of the grantor or obligor contained in the deed of trust; (3) “Grantor” means the person conveying an interest in real property by a mortgage or deed of trust as security for the performance of an obligation secured by the mortgage or deed of trust; (4) “Mortgage” means the grant of an interest in real property to be held as security for the performance of an obligation by the mortgagor or other person; (5) “Mortgage company” means any private, state, or federal entity that in the usual course of its business is either the mortgagee or beneficiary of a deed of trust or mortgage; (6) “Mortgage loan servicer” means an entity that holds itself out as being able to service loans secured by liens or mortgages encumbering real property; (7) “Mortgagee” means the person holding an interest in real property as security for the performance of an obligation secured by a mortgage or his or her attorney-in-fact appointed pursuant to this chapter; (8) “Mortgagor” means the person granting an interest in real property as security for the performance of an obligation secured by a mortgage; (9) “Obligor” means a person owing an obligation that is secured by a mortgage or deed of trust; (10) “Sale” means the public auction conducted pursuant to § 18-50-107; (11) “Trust property” means the property encumbered by a mortgage or deed of trust; and (12) “Trustee” means any person or legal entity to whom legal title to real property is conveyed by deed of trust or his or her successor in interest.

Ark. Code Ann. § 18-50-102 Parties authorized to foreclose mortgage or deed of trust.

(a) Parties authorized to foreclose a mortgage or deed of trust under this chapter are limited to: (1) A trustee or attorney-in-fact who is an active licensed member of the Bar of the Supreme Court of the State of Arkansas or a law firm among whose members includes such an attorney if the attorney or law firm maintains an office that: (A) Is located within this state; (B) Is accessible to the public during regular business hours; and (C) Has the ability to accept funds from a grantor, mortgagor, or obligor to reinstate or pay off a mortgage or deed of trust; (2) A state-chartered bank, nationally chartered bank, state- chartered or federally chartered savings and loan association, state- chartered or federally chartered credit union, or a mortgage loan company subject to licensing, supervision, and auditing by a federal agency, a government-sponsored enterprise, and the Bank Commissioner or Securities Commissioner, in consultation with the Bank Commissioner, as applicable, as an approved mortgage loan servicer authorized to do business under the laws of the State of Arkansas if the state-chartered bank, nationally chartered bank, state-chartered or federally chartered savings and loan association, state-chartered or federally chartered credit union, or mortgage loan company: (A) Has a physical business location open for business for normal banking hours located within the State of Arkansas; (B) Is either the holder or the mortgage loan servicer for the holder of a note secured by a mortgage or deed of trust; and (C) Does not collect a fee or cost for any action taken under this chapter unless authorized by a court order; or (3) An agency or authority of the State of Arkansas where not otherwise prohibited by law. (b)(1) The beneficiary may appoint a successor trustee at any time by filing a substitution of trustee for record with the recorder of the county in which the trust property is situated. (2) The new trustee shall succeed to all the power, duties, authority, and title of the original trustee and any previous successor trustee. (3) The beneficiary, by express provision in the substitution of a trustee, may ratify and confirm actions taken on its behalf by the new trustee prior to the recording of the substitution of the trustee. (c) The substitution shall identify the deed of trust by stating the names of the original parties thereto, the date of recordation, and the book and page where recorded or the recorder's document number. The substitution shall also state the name of the new trustee and shall be executed and duly acknowledged by all the beneficiaries or their successors in interest. (d) A mortgagee may delegate his or her powers and duties under this chapter to an attorney-in-fact, whose acts shall be done in the name of and on behalf of the mortgagee. (e) The appointment of an attorney-in-fact by a mortgagee shall be made by a duly executed, acknowledged, and recorded power of attorney that shall identify the mortgage by stating the names of the original parties thereto, the date of recordation, and the book and page where recorded or the recorder's document number. (f) A substitution of trustee or power of attorney shall be recorded before any trustee's or mortgagee's deed executed by the substituted trustee or attorney-in-fact is recorded.

Ark. Code Ann. § 18-50-103 Conditions to exercise of power of sale.

A beneficiary or mortgagee may not initiate a foreclosure under this chapter unless: (1) The deed of trust or mortgage is filed for record with the recorder of the county in which the trust property is situated; (2)(A) The beneficiary or mortgagee: (i) Has personal knowledge of the records and information provided under this subdivision (2); and (ii) At least ten (10) days before initiating the foreclosure has provided by standard mail to the grantor, mortgagor, or obligor at the address of the property encumbered by the mortgage or deed of trust or the mailing address of the grantor, mortgagor, or obligor: (a) A true and correct copy of the note with all required endorsements, the mortgage, or the deed of trust; (b) The name of the holder and the physical location of the original note; (c) A true and correct copy of the original mortgage or deed of trust and if in the possession of the beneficiary or mortgagee, each assignment or allonge of the mortgage or deed of trust; (d) Information, including the applicable telephone number and Internet address, regarding the availability to the grantor, mortgagor, or obligor of each program for loan modification assistance or forbearance assistance offered: (1) Solely by the beneficiary or the mortgagee; or (2) By a government agency if the beneficiary or mortgagee participates in the government agency's program; and (e) If the default is the result of the failure to make payment, a payment history showing the date of default. (B) If a true and correct copy of the original note, mortgage, deed of trust, or an assignment or allonge of the note, mortgage, or deed of trust is lost or otherwise unavailable, the beneficiary or mortgagee may, instead of providing true and correct copies of the note, mortgage, deed of trust, or assignment or allonge of the note, mortgage, or deed of trust, provide a statement that the document is lost or otherwise unavailable, and shall recite the good faith efforts the beneficiary or mortgagee has made to locate the document. (C) The duties of the beneficiary or mortgagee to provide information under this subdivision (2) are not delegable to the beneficiary's trustee or the mortgagee's attorney-in-fact; (3) There is a default by the mortgagor, grantor, or obligor with respect to any provision in the mortgage or deed of trust that authorizes sale in the event of default of the provision; and (4) No action has been instituted to recover the debt or any part of it secured by the mortgage or deed of trust or, if such action has been instituted, the action has been dismissed.

Ark. Code Ann. § 18-50-104 Prerequisites for foreclosure sale — Contents of notice of sale — Persons to receive notice.

(a) 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 (3)(A)(i) 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: (a) The beneficiary or mortgagee; or (b) A government agency if the beneficiary or mortgagee participates in the government agency's program. (ii) 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. (B) 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. (b) 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. (c) 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. (d) 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.

Ark. Code Ann. § 18-50-105 Publication of notice.

The mortgagee or trustee shall publish the notice: (1) In a newspaper of general circulation in the county in which the trust property is situated or in a newspaper of general statewide daily publication one (1) time a week for four (4) consecutive weeks prior to the date of sale. The final publication shall be no more than ten (10) days prior to the sale; (2) By employing a third-party posting provider to post notice at the place at the county courthouse where foreclosure sales are customarily advertised and conducted; and (3) By employing a third-party Internet foreclosure sale notice information service provider.

Ark. Code Ann. § 18-50-106 Trustee's affidavit.

On or before the date the mortgagee or trustee conducts the sale, a duly acknowledged affidavit of mailing and publication of the notice of default and intention to sell shall be filed for record with the recorder of the county in which the trust property is situated.

Ark. Code Ann. § 18-50-107 Manner of sale.

(a) The sale shall be held on the date and at the time and place designated in the notice of default and intention to sell, except that the sale shall: (1) Be held between 9:00 a.m. and 4:00 p.m.; (2) Be held either at the premises of the trust property or at the front door of the county courthouse of the county in which the trust property is situated; and (3) Not be held on a Saturday, Sunday, or a legal holiday. (b)(1)(A) Any person, including the mortgagee and the beneficiary, may bid at the sale. (B) The trustee may bid for the beneficiary but not for himself or herself. (2) The mortgagee or trustee shall engage a third party that is licensed to sell real estate under the Real Estate License Law, § 17-42-101 et seq., and licensed to act as an auctioneer under the Auctioneer's Licensing Act, § 17-17-101 et seq., to conduct the sale and act at the sale as the auctioneer. (3) No bid shall be accepted that is less than two-thirds (2/3) of the entire indebtedness due at the date of sale. (c)(1) The person conducting the sale may postpone the sale from time to time. (2)(A) In every such case, notice of postponement shall be given by: (i) Public proclamation thereof by that person; or (ii) Written notice of postponement posted at the time and place last appointed for the sale. (B)(i) No other notice of the postponement need be given unless the sale is postponed for longer than thirty (30) days beyond the date designated in the notice. (ii) In that event, notice thereof shall be given pursuant to § 18-50-104. (d) The sale is concluded when the highest bid is accepted by the person conducting the sale. (e)(1) Unless otherwise agreed to by the trustee or mortgagee, the purchaser shall pay at the time of sale the price bid. (2) Interest shall accrue on any unpaid balance of the price bid at the rate specified in the note secured by the mortgage or deed of trust. (3) Within ten (10) days after the sale, the mortgagee or trustee shall execute and deliver the trustee's deed or mortgagee's deed to the purchaser. (4) The mortgagee or beneficiary shall receive a credit on its bid for: (A) The amount representing the unpaid principal owed; (B) Accrued interest as of the date of the sale; (C) Advances for the payment of taxes, insurance, and maintenance of the trust property; and (D) Costs of the sale, including reasonable trustee's and attorney's fees. (f)(1) The purchaser at the sale shall be entitled to immediate possession of the property. (2)(A) Possession may be obtained by filing a complaint in the circuit court of the county in which the property is situated and attaching a copy of the recorded trustee's or mortgagee's deed, whereupon the purchaser shall be entitled to an ex parte writ of assistance. (B) Alternatively, the purchaser may bring an action for forcible entry and detainer under § 18-60-301 et seq. (C) In either event, the provisions of § 18-50-116(d) shall apply.

Ark. Code Ann. § 18-50-108 Effect of sale.

(a)(1) A sale made by a mortgagee or trustee shall foreclose and terminate all interest in the trust property of all persons to whom notice is given under § 18-50-104 and of any other person claiming by, through, or under the person. A failure to give notice to any person entitled to notice shall not affect the validity of the sale as to persons notified. (2) A person entitled to notice, but not given notice, shall have the rights of a person not made a defendant in a judicial foreclosure. (b) A sale shall terminate all rights of redemption, and no person shall have a right to redeem the trust property after a sale, notwithstanding that the deed to and possession of the trust property have yet to be delivered. (c)(1) No notice shall be required to be given to any person claiming an interest subsequent to the filing of the notice of default and intention to sell as set forth in § 18-50-104. (2) The filing of the notice of default and intention to sell shall have the same force and effect as the filing of a lis pendens in a judicial proceeding.

Ark. Code Ann. § 18-50-109 Disposition of proceeds of sale.

The trustee or mortgagee shall apply the proceeds of the sale as follows: (1) To the expenses of the sale, including compensation of the trustee or mortgagee and a reasonable fee by the attorney; (2) To the indebtedness owed; (3) To all persons having recorded liens subsequent to the interest of the trustee or mortgagee as their interests may appear in the order of the priority; and (4) The surplus, if any, to the grantor of the trust deed or to the successor in interest of the grantor entitled to the surplus.

Ark. Code Ann. § 18-50-111 Form and effect of trustee's or mortgagee's deed.

(a)(1) The trustee's or mortgagee's deed shall contain recitals of compliance with the requirements of this chapter relating to the exercise of the power of sale and sale of the trust property, including recitals concerning mailing and publication of notice of default and intention to sell and the conduct of the sale. (2) Upon the filing of the deed for record with the recorder of the county in which the trust property is situated, the recitals shall be prima facie evidence of the truth of the matters set forth therein, but the recitals shall be conclusive in favor of a purchaser for value in good faith relying upon them. (b) The trustee's or mortgagee's deed shall convey to the purchaser all right, title, and interest in the trust property the mortgagor or grantor had or had the power to convey at the time of the execution of the mortgage or deed of trust, together with all right, title, and interest in the mortgagor or grantor or their successors in interest acquired after the execution of the mortgage or deed of trust, and the conveyance shall be deemed effective and relate back to the time of the sale.

Ark. Code Ann. § 18-50-112 Deficiency judgment.

(a)(1) At any time within twelve (12) months after a sale under this chapter, a money judgment may be sought for the balance due upon the obligation for which a mortgage or deed of trust was given as security. (2) In such action, the plaintiff shall set forth in his or her complaint, and shall have the burden of proving, the entire amount of indebtedness which was secured by the mortgage or deed of trust, the amount for which the trust property was sold, and the fair market value of the trust property at the date of sale, together with interest from the date of sale, costs, and attorney's fees. (b) Judgment shall not exceed the lesser of the following: (1) The amount for which the indebtedness due at the date of sale, with interest from the date of sale, costs, and trustee's and attorney's fees, exceeds the fair market value of the trust property; or (2) The amount for which the indebtedness due at the date of sale, with interest from the date of sale, costs, and trustee's and attorney's fees, exceeds the amount for which the trust property was sold.

Ark. Code Ann. § 18-50-113 Request for notice.

(a) At any time subsequent to the recordation of a mortgage or deed of trust and prior to a recording of a notice of default and intention to sell under the mortgage or deed, any person desiring a copy of any such notice may file for record with the recorder of the county where the trust property is situated a duly acknowledged request for a copy of any notice of default and intention to sell. (b) The request shall contain the name and address of the person requesting a copy of the notice and shall identify the mortgage or deed of trust by stating the names of the parties thereto, the date of recordation of the mortgage or deed, the book and page number where the mortgage or deed is recorded, or the recorder's document number. (c) The recorder shall index the request so that the name of the mortgagor or of the grantor in the deed of trust is indexed as the grantor and the name of the requesting party is indexed as the grantee. (d) No request, statement, or notation placed on record pursuant to this section shall affect the title to the trust property or be deemed notice to any person that any person so recording the request has any right, title, or interest in or lien or charge upon that property.

Ark. Code Ann. § 18-50-114 Reinstatement of mortgage or deed of trust.

(a)(1) Whenever all or a portion of the principal sum of any obligation secured by a mortgage or deed of trust, prior to the maturity date fixed in such obligation, has become due or has been declared due by reason of a breach or default in the performance of any obligation secured by the mortgage or deed of trust, including a default in the payment of interest or of any installment of principal, or by reason of a failure of the grantor to pay, in accordance with the terms of the mortgage or deed of trust, taxes, assessments, premiums for insurance, or advances made by the mortgagee or beneficiary in accordance with the terms of such obligation or of such mortgage or deed of trust, then the mortgagor or grantor or their successors in interest in the trust property may pay, at any time subsequent to the filing for record of a notice of default and intention to sell and prior to the sale, to the mortgagee or beneficiary or their successor in interest the entire amount then due under the terms of such mortgage or deed of trust, including costs and expenses actually incurred in enforcing the terms of the obligation and mortgage or deed of trust, and trustee's and attorney's fees other than that portion of the principal which would not then be due had no default occurred, and thereby cure the default theretofore existing. (2) Thereupon, all proceedings under this chapter theretofore had or instituted shall be dismissed or discontinued, and the obligation and mortgage or deed of trust shall be reinstated and shall be and remain in force and effect, the same as if no acceleration had occurred. (b) If the default is cured and the mortgage or deed of trust reinstated in the manner provided in this section, the mortgagee, beneficiary, or their successors in interest shall file for record with the recorder of the county in which the trust property is situated a duly acknowledged cancellation of the recorded notice of default and intention to sell under such mortgage or deed of trust.

Ark. Code Ann. § 18-50-115 Implied powers in mortgages.

(a)(1) Subject to the provisions of § 18-50-114 and notwithstanding the terms of the mortgage, a power of sale is implied in every mortgage of real property situated in this state that is duly acknowledged and recorded. (2) The exercise of the implied power of sale shall be pursuant to the provisions of this chapter. (b) A mortgagor and his or her successor in interest shall have the rights and duties of a grantor, and a mortgagee and his or her successor in interest shall have the rights and duties of a trustee and a beneficiary. (c) The mortgagee shall comply with §§ 18-50-103 — 18-50-107, 18-50-109, and 18-50-110 [repealed], and the mortgagee's deed shall comply with § 18-50-111.

Ark. Code Ann. § 18-50-116 Miscellaneous provisions.

(a) The procedures in this chapter for the foreclosure of a mortgage or deed of trust shall not impair or otherwise affect the right to bring a judicial action to foreclose a mortgage or deed of trust. (b) A notice of default and intention to sell shall be filed within the time the foreclosure of the mortgage or deed of trust by judicial action could have commenced. (c)(1) The procedures in this chapter shall apply only if the mortgagee or beneficiary is a mortgage company as defined in § 18-50-101 or is a bank or savings and loan. (2) This chapter shall not apply to a mortgage or a deed of trust encumbering trust property used primarily for agricultural purposes. (d) Nothing in this chapter shall be construed to: (1) Create an implied right of redemption in favor of any person; or (2)(A) Impair the right of any person or entity to assert his or her legal and equitable rights in a court of competent jurisdiction. (B) However, a claim or defense shall be asserted prior to the sale or the claim or defense is forever barred and terminated, except the mortgagor may assert the following against either the mortgagee or trustee: (i) Fraud by any party; or (ii) Failure to strictly comply with the provisions of this act. (C) Any of the above claims or defenses may not be asserted against a subsequent purchaser for value of the property. (D) Any claims or defenses for a violation of subdivision (d)(2)(B)(ii) of this section shall be asserted within thirty (30) days of the foreclosure sale to ensure the finality of sales that substantially comply with this chapter. (e)(1) At any time prior to the delivery of the trustee's or mortgagee's deed, the trustee or mortgagee may set aside a sale conducted pursuant to this chapter by declaring the sale null and void and returning the purchase price to the highest bidder without any further liability to the bidder. (2) In this event, the trustee or mortgagee shall file an affidavit declaring the sale null and void with the recorder of the county in which the trust property is located, and all terms and provisions of the mortgage or deed of trust shall be revived and reinstated as if no sale had occurred.

Ark. Code Ann. § 18-50-117 Foreign corporations and other entities.

No person, firm, company, association, fiduciary, or partnership, either domestic or foreign, shall avail themselves of the procedures under this chapter unless authorized to do business in this state.

Ark. Code Ann. § 18-50-118 Recovery of fees.

(a) A mortgagor may recover reasonable attorney's fees under this subchapter if a court sets aside the statutory foreclosure sale due to a mortgagee’s failure to strictly comply with any provision of § 18-50-101 et seq., under § 18-50-116(d)(2)(B)(ii). (b) A mortgagor shall not be awarded attorney's fees under subsection (a) of this section if the: (1) Mortgagor and mortgagee reach a mutual resolution of the debt and corresponding foreclosure; (2) Mortgagor files a petition for bankruptcy while the foreclosure or any related litigation is pending; (3) Mortgagee instituted the statutory foreclosure while in good faith relying on a policy of title insurance that was subsequently found to be in error; (4) Mortgagee instituted the statutory foreclosure in good faith without knowledge of unrecorded debt on the subject property; (5) Mortgagee instituted the statutory foreclosure in good faith without knowledge of assessments, taxes, or liens filed against the subject property subsequent to the final policy of title insurance being issued; or (6) Mortgage is reinstated under § 18-50-114.

Source: Public.Resource.Org / UniCourt, Official Code of Arkansas Annotated, Release 78 (2020) (unicourt.github.io/cic-code-ar)URL: https://unicourt.github.io/cic-code-ar/transforms/ar/ocar/r78/gov.ar.code.title.18.htmlFetched: 11/8/2026