What is foreclosure?
Foreclosure involves a lawsuit in which a bank, a mortgage company, or other lien holder seeks to take an owner's property to satisfy a debt. The bank or lender may actually take ownership of the property or have the property sold to pay off the debt. As a result of the foreclosure, the owner loses whatever rights he or she had in the property.
Examples: If a homeowner fails to pay his or her mortgage loan on time, the lender that holds the mortgage on the house can bring a foreclosure action against the homeowner. Similarly, if a homeowner borrows money from a bank using a house as collateral (security) and fails to pay, the homeowner can lose the house to the bank in a foreclosure action.
How are Texas deeds foreclosed?
The primary method of foreclosure in Texas involves what is known asnon-judicial foreclosure. Except for certain notice provisions this type of foreclosure does not involve court action. When the deed of trust is initially signed it will usually contain a provision called apower of sale clause which upon default allows atrustee to sell the property in order to satisfy the underlying defaulted loan. Thetrustee acts as a representative of the lender to effectuate the sale which typically occurs in the form of an auction. Because this is a non-judicial remedy there are very stringent notice requirements and the legal documents are required to contain thepower of sale language in order to use this type of foreclosure method.
Power of Sale Notice Requirements:
Prior to initiating a foreclosure the lender must send a demand letter requesting the payment of past due amounts which gives the borrower twenty (20) days to pay any past due amounts otherwise foreclosure proceedings will begin.
After the twenty day notice above and at least twenty-one (21) days before any foreclosure sale, further notice of the foreclosure must: (a) be filed with the county clerk in the county in which the property is located; (b) mailed to the defaulting borrower (and other creditors whose liens affect the property) and; (c) be posted at the county court where any sale would occur.
Foreclosure sales must take place on the first Tuesday of each month (between 10AM and 4PM) at the courthouse, even if the date falls on a legal holiday. The trustee will auction the property to the highest bidder including the lender who is given credit for the value of the balance of any outstanding indebtedness under the loan.
In Texas, thelenders can also go to court in what is known as ajudicial foreclosure proceeding where the court must issue a final judgment of foreclosure. If the deed of trust does not contain thepower of sale language the lender must seek judicial foreclosure. The property is then sold as part of a publicly noticed sale. A complaint is filed in county court along with what is known alis pendens. A lis pendens is a recorded document that provides public notice that the property is being foreclosed upon.
What are the legal instruments that establish a Texas mortgage?
The documents are known as thedeed of trust,note, and in a commercial transaction, asecurity agreement. Sometimes the mortgage document is combined with the security agreement. Alternatively, amortgage is filed to evidence the underlying debt and terms of repayment, which is set forth in thenote.
How long does it take to foreclose a property in Texas?
Depending on the timing of the various required notices, it usually takes approximately 60 days to effectuate an uncontestednon-judicial foreclosure. This process may be delayed if the borrower contests the action in court, seeks delays and adjournments of sales, or files forbankruptcy.