Texas Commercial Law Firm

II. Steps in Foreclosing Your Liens Against Real Property.

1. Review of lien documents. Although it may seem an obvious point, you must first have a debt in order to enforce a lien. Belcher Land Mortgage Co. v. Taylor, 212 S.W. 647 (Tex. Comm'n. App. 1919). A change in the form of the debt (from note to judgment for example) will not affect the lien. Id., citing Wilcox v. National Bank, 93 Tex. 317; 55 SW 317 Wright v. Wooters, 46 Tex. 380. Filing suit does not bar a mortgagor from subsequently pursuing nonjudicial foreclosure. Stille v. Colborn, 740 S.W.2d 42 (Tex. Civ. App.--San Antonio 1987, writ den'd); Kasper v. Keller, 466 S.W.2d 326 (Tex. Civ. App.-- Waco 1971, writ ref'd, n.r.e.); Thurman v. FDIC, 889 F.2d 1441 (8th Cir. 1989).

The minimum requirements for properly conducting a nonjudicial foreclosure sale are contained in the Property Code §51.02 (the “Property Code”, set forth in the Appendix). Where the deed of trust has requirements less stringent than the Property Code for notice, posting and other foreclosure procedures, you must comply with the Property Code. Where the deed of trust's requirements exceed those of the Property Code, you must comply with the deed of trust. Roedenbeck Farms, Inc. v. Broussard, 124 S.W.2d 929 (Tex. Civ. App.-- Amarillo 1916, writ ref'd). Some very old deeds of trust, for example, may require publication in a newspaper. Rudolph v. Hively, 188 S.W. 721 (Tex. Civ. App.--Amarillo 1916, writ ref'd). It is not unusual to encounter deeds of trust which require notice of sale to be posted in three public places. If posting in three public places is required and the trustee posts in only one public place, even though he otherwise fully complies with the Property Code and the deed of trust and even if the owner has actual knowledge of the sale and attends the sale, the foreclosure sale will be invalid. Harwath v. Hudson, 654 S.W.2d 851 (Tex. App.--Dallas 1983, writ ref'd n.r.e.).

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