Texas Commercial Law Firm
Foreclosure
A foreclosure sale held by one not authorized is void as to purchasers at the sale and subsequent purchasers with notice. Fuller v. O'Neil, 69 Tex. 349, 6 S.W. 181 (1888); Kennedy v. First Trust Joint Stock Land Bank, 41 S.W.2d 1030 (Tex. Civ. App.--Amarillo 1941, writ dismissed, judgment cor.). This includes a sale by an agent appointed by a substitute trustee where the deed of trust does not authorize appointment of an agent. Randolph v. Citizens National Bank, 141 S.W.2d 1030 (Tex. Civ. App.--Amarillo 1940, writ dismissed, judgment cor.). Where a trustee or a substitute trustee properly posts and mails notice of sale another substitute trustee may be appointed prior to sale with no need for reposting. Tarrant Savings Association v. Lucky Homes, Inc., 309 S.W.2d 473 (Tex. 1964); in re Davis Chevrolet, Inc., 135 BR 29 (N.D. Tex. 1992).
Texas law provides no presumption that a substitute trustee sale is regularly and properly conducted. Recitals in the deed of trust to such effect will create a rebuttable presumption as to the regularity of the foreclosure. Slaughter v. Qualls, 162 S.W.2d 671 (Tex. 1942); Houston First American Savings v. Munick, 650 S.W.2d 764 (Tex. 1983).
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