Houston Foreclosure - My home is being foreclosed?!
In a Foreclosure conducted in Texas, there are 2 different methods that are commonly utilized by the mortgagee (i.e. mortgage lender/holder of the security interest) to foreclose on real property, Judicial Foreclosure and Non-Judicial Foreclosure.
In a Foreclosure conducted in Houston, Texas and the state of Texas, the Texas Property Code Chapter 51 governs the Foreclosure procedure.
Texas Foreclosure laws require that the Mortgagee/Foreclosing party to have followed the Foreclosure procedure stated under the Texas Property Code Chapter 51.
This article will address the Non-Judicial Foreclosure of your Homestead by your Mortgage Lender/Mortgage Servicer.
Understanding your Foreclosure Rights in Houston Texas
If you are facing a Foreclosure in Houston, Texas on your home, Texas Foreclosure laws requires that you received proper notice at certain stages prior to your home being set for a foreclosure sale.
The Mortgage Lender/Servicer will utilize the Non-Judicial Foreclosure process to proceed with the foreclosure of your home. This means that your Mortgage Lender/Sender will not have to file a lawsuit first with the Court to proceed with the foreclosure.
Specifically for a Foreclosure on a real property that is your home, the Mortgage Lender/ Mortgage Servicer will generally be required to send you the following notices prior to the Foreclosure Sale:
- Demand Notice (aka Notice of Default)
- A written notice of default providing a 20 days to cure the default amount will be served on the Debtor's residence by certified mail.
- Notice to Accelerate
- A written notice that if the Debtor does not cure the default amount then the Mortgage Servicer/Lender will accelerate the mortgage note to the entire unpaid balance under the Acceleration Clause in the Deed of Trust
- The Notice of Default and the Notice to Accelerate may be combined
- Notice of Acceleration
- If the Debtor does not cure the default amount within the 20 days period, than the Mortgage Servicer/Lender has accelerated the entire unpaid balance of the note.
- Notice of Foreclosure Sale
- A Notice of Foreclosure will be sent 21 days before the foreclosure sale date by certified mail to the Debtor's last recent address on the Mortgage Servicer/Lenders records.
- The Notice of Foreclosure will identify 3 things
- Time of the Foreclosure Sale- In Texas, the Foreclosure Sale may occur between 10AM-4Pm but must be within 3 hours of the specified time on the Notice of Foreclosure Sale.
- Date of the Foreclosure- In Texas, a Non-Judicial Foreclosure will be conducted on the 1st Tuesday of the Month.
- Foreclosure Sale Location- A written Notice of Foreclosure Sale must be posted on the posted at the "courthouse doors" in the county where the real property is located. The same written notice will be filed with the county clerk where the property is located.
What are my Options?
Whenever you are facing a foreclosure you must act fast. Your options may be limited but you still have the opportunity to save your home.
- File a Chapter 13 Bankruptcy
- Filing a Chapter 13 Bankruptcy will immediately stop the foreclosure sale at the time of filing your bankruptcy case. This is due to the "Automatic Stay" that becomes your legal shield to protect you and your assets from any further collections actions including the prevention of the foreclosure of your home.
- The Chapter 13 Bankruptcy will allow you to protect your home and afford you the opportunity to reorganize the behind payments (arrearages) on your mortgage and get you current by the time your bankruptcy is concluded.
- Additionally, during the time you are in the Chapter 13 Bankruptcy, you can proceed with applying for a modification once again. This time around, your mortgage will most likely be transferred to your mortgage bankruptcy department and the process (from some clients) becomes more smoother and expedited.
- File a Lawsuit against the Mortgage Lender/Servicer AND a TRO (Temporary Restraining Order)
- Many times people need extra time to work out a deal with the mortgage company and consider filing a TRO in the State Court to stop the foreclosure for a temporary period. HOWEVER, a TRO is a ancillary form of relief meaning that it has to be filed WITH a legitimate lawsuit has been filed against your Mortgage lender/servicer. A TRO cannot be filed alone in itself.
- If you do not have a legitimate cause of actions against the Mortgage lender/servicer you may be subject to fines and penalties by the Court for filing a "Frivolous" lawsuit resulting in the case being dismissed and you going back to square 1 (one) with more money that you lost.
The Law Firm of Min Gyu Kim provide a FREE Consultation for our 1st meeting either over the phone or at either of our 2 offices located in Houston.
Please Contact us so that we can help you during your difficult time!
The Law Firm of Min Gyu Kim, PLLC is a Bankruptcy Law Firm providing Bankruptcy assistance in the Houston areas of Harris County, Fort Bend County, Brazoria County, Montgomery County and the surrounding areas of Houston.