How to stop a foreclosure in Texas.
Every State is different. The information on this page pertains to the State of Texas only. Do not rely on this information if you are in any other State.
Texas has two (2) types of foreclosure. Judicial and non-judicial foreclosures. In simple terms, Judicial simply means that the mortgagee (your lender) must go before a District Court Judge and ask for permission to foreclose. A non-judicial foreclosure means that the lender may simply foreclosure with a minimum of 20 days notice to you (the mortgagor).
Let's start with Judicial foreclosures. A judicial foreclosure means exactly as it sounds. Judicial means that there must be a hearing held to get approval from a Judge to foreclose. These foreclosures are often called "Expedited Foreclosures". Texas law requires that all home equity, reverse mortgage, homeowner association and tax lien loans are now considered Expedited Foreclosures. An Expedited Foreclosure requires the Mortgagee to notify you that they have filed for a hearing in District Court. They must notify you of this filing within 10 days of the date they file. This means you will usually receive a letter in the mail stating that you have been sued. That letter will also give you 38 days to respond.
Respond means that you should file a written answer with the court. Failure to file an answer or to appear could result in a default judgment. A written answer should be drawn up and filed by a licensed attorney. Your attorney will advise you as to the best time to file your answer within the 38 day time period allowed. My experience is that if you wish to delay the date of the hearing that you should wait until the very last day to file your answer. In most cases, the court will wait to receive your answer before setting a hearing date
Shortly after you file your answer you will receive a package from the Mortgagee's attorney. This package will include all of the evidence in your case. It will also have a copy of the lawsuit (the complaint) that your lender has filed against you. You should read the documents in this package. It may have your hearing date or at the very least a request for a hearing.
Too often, I have seen the mortgagee's attorney try to slip in the court date in this package, hoping that you will overlook it.
Okay, the next step in this process is the hearing itself. You should plan on attending or have a licensed attorney there to represent you.
If you cannot afford a licensed attorney for this hearing you can represent yourself (pro-se). Pro-Se means that you are representing yourself. If you decide to go this route, you must be prepared. This would be a subject for another day and article. Basically, you should have every document and phone call to your lender documented (even if it is a simple timeline or the events that occurred leading up to the threats of foreclosure
At the hearing, your attorney or you should ask the opposing counsel a series of questions proving that the bank has all of the documents required to move forward with a foreclosure. These documents include the note and the deed, as well as all the proper notices that were required to get to this hearing.
Don't be surprised if the Judge looks at copies of those documents and states that everything appears to be in order and that the mortgagee has the right to proceed with a foreclosure. In this case, you or your attorney should ask the judge for a minimum of six (6) months before the mortgagee can actually schedule your property for a non-judicial foreclosure. Although the judge probably won't go for the six-month request, he/she may give you ninety (90) days.
Sound like we have given up? Not at all. The Judge is simply giving the mortgagee the "Right" to foreclose. So now your case becomes a Non-Judicial foreclosure. That means we still have time to put a stop to the sale of your home.
As a Non-Judicial foreclosure, the mortgagee (your bank) now has to start the notice process all over. In Texas, foreclosure sales always take place on the first Tuesday of the month. The lender is required to give you 20 days notice of the sale. This notice can come by regular mail and is not required to be sent "Certified". I say this because if you or an ex inadvertently change your mailing address, no excuse will help you in court.