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 FORECLOSURE DEFENSE NEWS AND INFORMATION - Texas

 

Foreclosure defense forms must be drafted to comply with the laws of your State. Standardized forms for all States are generally not acceptable. We provide attorneys and you with the state-specific forms that are correct and valid. Free Previews available. All forms are available in Word format.





TEXAS LAW AND PROCEDURES RELATING TO A SALE OF REAL PROPERTY PURSUANT TO A POWER OF SALE IN A DEED OF TRUST

2009-04-20







Texas Law and Procedures Relating to A Sale of Real Property Pursuant to a Power of Sale in a Deed of Trust.

Texas is a deed of trust - lien state. This means that a lender takes a mortgage on a residence by loaning the price to purchase the residence to a consumer, evidencing the loan with a promissory note, and simultaneously securing the notice with a deed of trust. A trustee holds the real property until the note is paid or the loan goes into default. The deed of trust gives the lender the right to foreclose its security interest if the obligor fails to pay.

In summary, a lender wishing to foreclose under Texas law must generally take the following steps:


(1) Demand for Payment - Lender must give notice of default and demand overdue payments.
(2) Notice of Intention to Accelerate - This should give at least 10 days within which the borrower can cure the default.
(3) Notice of Foreclosure - If the borrower has not cured, this is posted at the courthouse, and sent via certified mail to the homeowner.
(4) Foreclosure Sale - These must be scheduled for the first Tuesday of the month.
(5) Trustee's Deed - Final step is for the trustee to prepare a deed reflecting the sale of the property.

The Property Code, which is part of the Texas Statutes, sets forth, in detail, the required procedures, notices, and laws governing the sale of real property pursuant to a power of sale conferred by a deed of trust. The specific provision is Section 51.002, which states:

(a) A sale of real property under a power of sale conferred by a deed of trust or other contract lien must be a public sale at auction held between 10 a.m. and 4 p.m. of the first Tuesday of a month. Except as provided by Subsection (h), the sale must take place at the county courthouse in the county in which the land is located, or if the property is located in more than one county, the sale may be made at the courthouse in any county in which the property is located. The commissioners court shall designate the area at the courthouse where the sales are to take place and shall record the designation in the real property records of the county. The sale must occur in the designated area. If no area is designated by the commissioners court, the notice of sale must designate the area where the sale covered by that notice is to take place, and the sale must occur in that area.

(b) Except as provided by Subsection (b-1), notice of the sale, which must include a statement of the earliest time at which the sale will begin, must be given at least 21 days before the date of the sale by:

(1) posting at the courthouse door of each county in which the property is located a written notice designating the county in which the property will be sold;

(2) filing in the office of the county clerk of each county in which the property is located a copy of the notice posted under Subdivision (1); and

(3) serving written notice of the sale by certified mail on each debtor who, according to the records of the mortgage servicer of the debt, is obligated to pay the debt.

(b-1) If the courthouse or county clerk's office is closed because of inclement weather, natural disaster, or other act of God, a notice required to be posted at the courthouse under Subsection (b)(1) or filed with the county clerk under Subsection (b)(2) may be posted or filed, as appropriate, up to 48 hours after the courthouse or county clerk's office reopens for business, as applicable.

(c) The sale must begin at the time stated in the notice of sale or not later than three hours after that time.

(d) Notwithstanding any agreement to the contrary, the mortgage servicer of the debt shall serve a debtor in default under a deed of trust or other contract lien on real property used as the debtor's residence with written notice by certified mail stating that the debtor is in default under the deed of trust or other contract lien and giving the debtor at least 20 days to cure the default before notice of sale can be given under Subsection (b). The entire calendar day on which the notice required by this subsection is given, regardless of the time of day at which the notice is given, is included in computing the 20-day notice period required by this subsection, and the entire calendar day on which notice of sale is given under Subsection (b) is excluded in computing the 20-day notice period.

(e) Service of a notice under this section by certified mail is complete when the notice is deposited in the United States mail, postage prepaid and addressed to the debtor at the debtor's last known address. The affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service.

(f) Each county clerk shall keep all notices filed under Subdivision (2) of Subsection (b) in a convenient file that is available to the public for examination during normal business hours. The clerk may dispose of the notices after the date of sale specified in the notice has passed. The clerk shall receive a fee of $2 for each notice filed.

(g) The entire calendar day on which the notice of sale is given, regardless of the time of day at which the notice is given, is included in computing the 21-day notice period required by Subsection (b), and the entire calendar day of the foreclosure sale is excluded.

(h) For the purposes of Subsection (a), the commissioners court of a county may designate an area other than an area at the courthouse where sales under this section will take place that is in a public place within a reasonable proximity of the county courthouse and in a location as accessible to the public as the courthouse door. The commissioners court shall record that designation in the real property records of the county. A sale may not be held at an area designated under this subsection before the 90th day after the date the designation is recorded. The posting of the notice required by Subsection (b)(1) of a sale designated under this subsection to take place at an area other than an area of the courthouse remains at the courthouse door of the appropriate county.

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