§ 38-41-206. Levy on homestead--excess--costs
38-41-206. Levy on homestead--excess--costs
(1) Before any creditor of the owner of the homesteaded property may proceed against said property, such creditor shall file with the county clerk and recorder of the proper county and the sheriff or other proper officer authorized to levy on said property:
(a) His affidavit showing:
(I) A description of the homesteaded property and the name of the claimant of the homestead exemption;
(II) The fair market value of said property;
(III) That the fair market value of said property less any prior liens or encumbrances thereon exceeds the amount of the homestead exemption fixed in section 38-41-201 for which the claimant qualifies; and
(IV) That no previous execution arising out of the same judgment has been levied upon said property;
(b) The affidavit of a professionally qualified independent appraiser showing the same information required by subparagraphs (I) to (III) of paragraph (a) of this subsection (1).
(2) If the amount offered at the sale of the homesteaded property does not exceed seventy percent of the fair market value shown in the affidavit of the independent appraiser filed pursuant to paragraph (b) of subsection (1) of this section, all proceedings to sell said property shall terminate. The sheriff or the proper officer shall then file for record in the office of the county clerk and recorder of the proper county an instrument releasing all levies on said property in connection with such sale, and the person instituting the proceedings shall pay the costs of such proceedings, and the title of the owner to said property shall not be impaired or affected.
(3) If the successful bidder at such sale is a judgment creditor, he shall be required to pay in cash to the sheriff or other proper officer making the sale an amount sufficient to pay the exemption plus the proper costs and expenses and shall not have the right to have such exempt amount applied toward the satisfaction of his judgment.
(4) If a sale is made, the proceeds thereof shall be applied in the following order:
(a) First, to the discharge of all prior liens and encumbrances, if any, on said property;
(b) Second, to the homestead claimant in the amount of the homestead exemption for which he qualifies;
(c) Third, to the sheriff or other proper officer making the sale in an amount sufficient to pay the proper costs and expenses of the sale;
(d) Fourth, to the satisfaction of the judgment; and
(e) Fifth, the balance, if any, to the homestead claimant.