Introduction
Eviction (called ?forcible entry and detainer? in Texas) is a process by which an owner recovers proprietary of real property and, if appropriate, a judgment for unpaid rent, attorney?s fees, and court costs against a tenant or occupant. Forcible detainer actions are held in Justice Court which has former jurisdiction over possession. The landlord?s objective is to gain a judgment and a writ of possession.
Foreclosure is the course by which a lender obtains both proprietary of and title to real property or, if the bidding is sufficiently high, liquidates its interest in the property entirely by means of a sale to a third party. Most foreclosures are non-judicial (ie., they occur without participation of a court) and are held on the first Tuesday of every month. The objective is to satisfy the debt and cut off all contentious claims to or against the property.
Evictions
Evictions or ?forcible detainer? actions are governed by Sec. 24.01 of the Texas property Code. They are thorough if there exists a landlord-tenant association (with or without a written lease) or if a person is occupying real property without authority to do so. After proper observation is given, the eviction must be filed with the Justice of the Peace in whose precinct the property is located. This Justice Court, and only this court, has former jurisdiction over proprietary of the property. At an eviction hearing, the judge determines which party has the superior right to proprietary and what damages (ie., back rent, attorney?s fees, and court costs), if any, will be awarded to the landlord. These are the only issues to be carefully by the court. A counterclaim by the tenant, regardless of subject matter or merit, is not permitted. Legal actions by tenants may be brought by cut off suit in Justice, County, or District Court.
Within 5 calendar days of judgment, the tenant can appeal to county court, with or without good reason, which results in the file being sent to the county courthouse where it will be heard as a new case. The Justice of the Peace will set an appeal bond, which may be waived if the tenant files an affidavit stating that he cannot afford the bond (also known as a ?pauper?s oath? or ?pauper?s bond?). Once an affidavit of this kind if filed, the landlord has the right to ask a hearing and contest it, although it is ordinarily pointless to do so ? it is usually granted, and the file is turned over to the county court.
This appears unfair to the landlord; note, however, that if the pauper?s affidavit is granted, the tenant is then obliged to make monthly rental payments to the county court. Otherwise, if a cash or surety bond is posted, there is no requirement that the tenant pay rent while the appeal is pending. It is therefore good practice for the landlord?s attorney to file a appeal requesting cost of rent into the court registry even if there is no pauper?s bond. A preferential setting should also be requested if the county court in quiz, does not already automatically furnish it for eviction cases. If the tenant is a professional deadbeat who has played this game before, the property can be tied up for several months.
If the tenant does not appeal within 5 days, the judgment of the Justice Court is final and the landlord may lope to enforce the judgment by obtaining a writ of possession. This requires going to the county clerk?s office and paying a nominal fee. The constable will then usually post a observation on the tenant?s door allowing 48 hours to move out. After that, the constable may forcibly evict the tenant and put the tenant?s possessions in storage.
Foreclosures
Foreclosures may be judicial (ie., ordered by a court) or non-judicial (done without court involvement by auction ?on the courthouse steps?).
The remedy of foreclosure is available to lenders if the borrower defaults. Defaults may be monetary or technical, ie., a breach of the covenants made by the borrower in the loan documents. In order to resolve if there has been a ?default,? the loan documents ? the note, the deed of trust, the loan agreement, and so forth ? must be carefully consulted. Specified observation and other requirements must be followed if the foreclosure is to be valid.
Non-judicial foreclosures are governed by Sec. 51.002 et seq. Of the Texas property Code. Foreclosures are conducted on the first Tuesday of each month in the middle of the hours of 10:00 a.m. And 4:00 p.m. At the courthouse of the county in which the property is located. Notices must specify a 3 hour duration while which the sale will take place. At least two certified mail notices are usually required, a ?Notice of Default and Intent to Accelerate? which affords an chance for the borrower to cure the default (at least 20 days for a homestead, although if the deed of trust is on the Fnma form, 30 days observation of default should be given); and a ?Notice of Acceleration and Posting for Foreclosure? (at least 21 days before the sale date). ?Acceleration? is defined as the proclamation by the lender that the entire estimate of an installment debt is now fully due and payable.
Both notices are addressed to the last known address of the borrower contained in the lender?s records, but it is wise for the lender to double-check this to avoid later claims by the borrower that observation was defective. It is prudent to send the notices by both first class and certified mail. The content of foreclosure notices is technical and must be exact to insure a valid foreclosure that cannot later be attacked by a wrongful foreclosure suit.
In all foreclosures, the lender should consider doing a title hunt to ascertain, among other things, if there is an Irs lien. If so, the Irs must be notified 25 days prior to the foreclosure sale if that lien is to be removed. Otherwise, the Irs lien will survive the foreclosure. Stewart Title Services and other title companies do these searches or ?down dates? for a modest fee.
In order to resolve a fair bid price for the property, the lender may wish to order a broker?s price notion (Bpo). Otherwise, the lender often bids the estimate of the debt plus accrued fees and costs.
The ensue of the foreclosure is to cut off and eliminate all junior liens, along with mechanic?s liens.
If the price at which the property is sold a foreclosure is less than the unpaid equilibrium on the loan, resulting in a deficiency, a suit may be brought by the lender to recover this deficiency any time within 2 years of the date of foreclosure. Federally insured lenders have 4 years. As part of a defense to a deficiency suit, the borrower may challenge the foreclosure sales price if it is below fair store value, and receive thorough credit if it is not. Any money received by a lender from Pmi (private mortgage insurance) is credited to the account of the borrower. One case states that the purpose of this ?is to preclude mortgagees from recovering more than their due.?
Lenders ordinarily bid the estimate of the debt and often obtain the property in this way. If the sale generates proceeds in excess of the debt, the trustee must distribute the excess funds to other lienholders in order of seniority and the remaining balance, if any, to the borrower.
Compared to other states, Texas is fortunate to have a streamlined non-judicial foreclosure process that takes only a minimum of 41 days (although good lawyers never cut it that close). The benefit for the foreclosing party is that there are no effective defenses to this process except for the borrower to block it with a temporary restraining order or file bankruptcy. For whether option, the buyer needs money and an attorney.
Suits for Wrongful Foreclosure
A suit for ?wrongful foreclosure? can be filed if there are grounds for alleging that the loan documents (ie., the note and deed of trust) were defective in some way; if the notices important up to the foreclosure were defective; or if there was some impropriety in the sale itself.
As a normal rule, it is more effective to obtain a Tro to stop a foreclosure in the first place. Texas law favors the finality of foreclosures, development wrongful foreclosure suits an uphill battle. Note also that if the property was sold to a third party (ie., the lender did not obtain it) there is exiguous chance that the borrower will get the property back. The borrower?s remedy will likely be exiguous to monetary damages.
If a wrongful foreclosure suit is being considered, it should be filed fast so that observation of the suit (called a ?notice of lis pendens?) can be filed in the real property records. If the lender was the successful bidder, this observation may ensue in effectively preventing the lender from transferring the property to a ?bona fide purchaser? (a third party who does not have observation of the borrower?s claims). Again, once that change takes place, it is unlikely that the borrower will ever recover the property.
Post-Foreclosure Eviction
After the foreclosure is finished, it may still be vital to evict the borrower in the usual way. If the borrower continues in possession, the owner must give the usual 3 day observation to vacate, file a forcible detainer appeal in justice court, get it served, get it heard by the Justice of the Peace, and then wait 5 days for a final judgment and a writ of possession. The lender must then wait until the constable makes time to post a 48 hour observation on the door and then forcibly remove a borrower who is otherwise unwilling to leave. Elapsed time? Three to four weeks at best.
Right of Redemption
Finally, there is no right of redemption after a Texas foreclosure unless the property was sold for taxes (2 years for homestead, 6 months for non-homestead).
Evictions and Foreclosures in Texas
My Links : Galaxy HDTV Earning host Student Loans Student loan consolidation Diamond bracelet
Source: http://realestatefiles.com/evictions-and-foreclosures-in-texas/
surrogates surrogates james garner veteran aircraft carrier apocalypse now happy veterans day
কোন মন্তব্য নেই:
একটি মন্তব্য পোস্ট করুন