Texas Commercial Law Firm

Introduction

Is Foreclosure Your Best Option?
Benefits of Workouts Benefits of Forbearance Agreements Deciding Whether to Forebear, Workout or Foreclose Deeds in Lieu of Foreclosure: Not Recommended Unilateral Reconveyance
Steps in Foreclosing Your Liens Against Real Property
Careful Review of Loan File, Loan Documents and Correspondence
Review of lien documents Renewals and extensions Need all addresses Confirm no implied or actual “side agreements” between lender and borrower
Notice of Right to Cure and Intent to Accelerate
When is notice of right to cure necessary? Waiver of notice of intent to accelerate Impact of Fair Debt Collection Practices Act on consumer loans
Examining Title for Potential Problems
First lien Probate Bankruptcy Stranger in title All necessary assignments Federal tax liens State tax liens Weed liens and the like Mechanics and Materialmans liens Corporate franchise taxes Property association liens RTC and FDIC liens
FDIC liens RTC
Property Evaluation: Are You Sure You Want To Own The Property?
Appraisal: Is the property worth foreclosing? Environmental problems are the new owner's responsibility
Appointing a Substitute Trustee: Proper Authority is Essential
Appointment of substitute trustee Authority to conduct the sale Recording appointment of substitute trustee Omission of named trustee
Posting, Filing and Sending Notice of Sale: Critical Requirements
Acceleration Notice of sale Posting and filing notice of sale Personal notice of sale
Notice to Spouses Errors in providing notice Waiver of errors Date of mailing Adequacy of notice Inferior lienholder Senior lienholder Guarantors Deceased mortgagors Removal of posted notices
Does Your Borrower Have the Right to Cure and Reinstate?
When should you allow a borrower to reinstate? Reinstatement Agreements should be signed and recorded Limitations Recording Reinstatement Agreements
The First Tuesday: Conducting Foreclosure Sales
How much should be bid? Durrett is no longer a factor in determining a bid amount Foreclosure sales procedures Third party purchasers Reasonable amount of time to obtain cash Reconveying sale Rights of Third Party Purchasers Borrower has no Right to Redeem Trustee may not bid for themselves Application of proceeds of sale Holidays Time of sale If lender overbids Soldiers and Sailors Civil Relief Act of 1940 Non-Military affidavit
After The Sale: Now That You Own It, How Do You Take Control Of It?
Anyone on the property? Tenants? Rents Security deposits Eviction
Notice to vacate Filing of the Forcible Detainer Petition Issuance of the citation Service of the citation Trial Deadline for Appeal Execution of the writ
Federal Tax Liens and Rights of Redemption Consequences of Invalid an Foreclosure Sale Fair Debt Collection Practices Act
The FDCPA “Miranda Warning” Thirty-day debt validation notice Obtaining loans in default FDCPA penalty provisions Assessment of damages
Other Thorny Problems
Death of mortgagor Guardianship Receivership Inadvertent sale and the DTPA Constitutionality of Texas foreclosure law
Deficiencies
Recovering a Deficiency Judgment Deficiency Statute Calculating the Deficiency
Repossession and Foreclosure of Personal Property
The Uniform Commercial Code: History and General Principles Creating, Attaching and Perfecting Security Interests “Self-help” Remedies on Default
Defining default Self-help Breach of the peace
When “Self-Help” Doesn't Work: Judicial Remedies Foreclosure Sales of Personal Property
Lien report Public or private sale Commercially reasonable sale Valuation of property Retention of collateral in satisfaction of debt Notification is essential
Ethical Considerations in Foreclosure
Applying the Rules of Professional Conduct Attorney Fee Disputes Avoiding Conflicts of Interest Lender Liability
Lender liability in real property foreclosure DTPA Inadequacy of price Lender liability under the UCC Mitigation Not Required By The Mortgagee