Texas Commercial Law Firm

a. Notice to Spouses. The recommended practice is that separate notices be sent to each spouse regardless of whether they are at the same or separate addresses. There is case law, however, stating that sending one notice addressed to both spouses who are not living together does not necessarily make the foreclosure sale voidable if it can be shown both spouses received actual notice more than 21 days prior to the sale. Foreister v. San Antonio Savings Association, 564 S.W.2d 160 (Tex. Civ. App.--El Paso 1978, writ ref'd n.r.e.). Likewise there is case law stating that a single notice addressed to both spouses who reside together on the property may be sufficient even if notice is not actually received. Hausman v. Texas Savings and Loan Association, Supra; Martinez v. Beasley, 616 S.W.2d 689 (Tex. Civ. App.-- Corpus Christi 1981, no writ). It is not recommended that such notices be provided as a matter of practice however.

b. Errors in providing notice. As a general rule, if typographical errors in the address on the notice or in the name of the debtor do not cause any delay in delivery of the notice to the borrower at its correct address, then notice will be sufficient. Mitchell v. Texas Commerce Bank - Irving, 680 S.W.2d 681 (Tex. App.--Fort Worth 1984, writ ref'd n.r.e.); Ogden v. Gibraltar Savings Association, 620 S.W.2d 926 (Tex. Civ. App.--Corpus Christi, 1981), rev'd on other grounds 640 S.W.2d 232 (Tex. 1982). If an error causes a significant delay in the receipt of the notice, however, the sale can be set aside or an action for wrongful foreclosure may be available even if the borrower actually received notice several days prior to foreclosure and appeared at the sale. Id. Where the notice of sale was mailed to J.D. Johnson, instead of J.H. Johnson, the court found notice not fatally defective since it was properly addressed in other respects and the correct owner did not fail to receive notice as a result of the error. Johnson v. First Southern Properties, Inc., 687 S.W.2d 399 (Tex. App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.). In the event the borrower has not provided an address to the debtor and the lender's records do not show any address for the borrower, the lender has no duty to search for the borrower's address. Crueger v. Swan, 604 S.W.2d 454 (Tex. Civ. App.--Tyler 1980, writ ref'd n.r.e.).

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