Texas Commercial Law Firm
Foreclosure
3. Posting and filing notice of sale. Current Texas law requires the Notice of Sale to be provided to the borrower and posted and filed with the county clerk in the county courthouse of the county where the property is located. Tex. Prop. Code §51.002 (Vernon 1996). Occasionally, a deed of trust may be found following pre-1976 law requiring the Notice of Sale to be posted in three public places. (Tex. Rev. Civ. Stat. Ann. Art 3810 [Vernon 1968] required posting in three public places.) When this occurs, the deed of trust requirements must be followed, and the notice must be posted in three public places, one of which should be the accepted place of posting notices of foreclosure sales in that specific county. 4. Personal notice of sale. Beyond serving notice on the borrower, Texas law requires that notice also be given to each obligor on the indebtedness. This requirement has recently been held not to include guarantors however. Bishop v. National Loans Investors, L.P., 915 S.W.2d 241 (Tex. App.--Ft.Worth, 1995). (See section “h” below). Failure to provide notice to any obligor may prevent the lender from pursuing that obligor for any remaining deficiency and it may void the foreclosure sale although this issue is not clear at present.
Notice of sale is not required to be sent to any party in title who purchased the property subject to the deed of trust lien without the knowledge or consent of the lender. Hausmann v. Texas Savings and Loan Association, 585 S.W.2d 796 (Tex. Civ. App.--El Paso 1979, writ ref'd n.r.e.); Lawson v. Gibbs, 591 S.W.2d 292 (Tex. Civ. App.--Houston [14th Dist.] 1979, writ ref'd n.r.e.). Similarly, failure to send notice to a former owner who remains obligated on the debt may not be fatal or a ground for damages for wrongful foreclosure if no deficiency judgment is sought and the predecessor retained no interest in the land or had no separate contractual arrangement with the lender. Burnett v. Manufacturers Hanover Trust, 593 S.W.2d 755 (Tex. Civ. App.--Dallas 1979, writ ref'd n.r.e.). In the event the previous owner is the only party obligated on the debt then all notices must be provided to him.
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