How Foreclosure Works in Texas

Both. Most Texas home foreclosures are non-judicial ("power of sale") foreclosures: if the deed of trust has a power-of-sale clause, the lender can sell the property at a public auction without filing a lawsuit. Judicial foreclosure, where the lender sues and gets a court judgment before the sale, is rare in Texas. A court order is required for certain liens, such as home equity loans, reverse mortgages and property owners' association assessments; these often use an "expedited" court procedure under Texas Rules of Civil Procedure 735 and 736.

For a home used as the borrower's residence, the mortgage servicer must first send a written notice of default by certified mail giving the borrower at least 20 days to cure before a notice of sale can be given. The notice of sale must then be given at least 21 days before the sale by posting it at the courthouse door of each county where the property is located, filing a copy with the county clerk, and sending it by certified mail to each debtor obligated on the loan. Counties must post filed notices of sale on their websites along with the sale date, time and location. Notices to the debtor must include a statement about rights of active-duty military members.

The statute sets these minimums for a non-judicial sale: at least 20 days to cure after the notice of default before the notice of sale can be given, and at least 21 days between the notice of sale and the sale. The sale must be a public auction held between 10 a.m. and 4 p.m. on the first Tuesday of a month (the first Wednesday if the first Tuesday falls on January 1 or July 4), at the area of the county courthouse designated by the commissioners court.

For a residence, the servicer's written notice of default must give the borrower at least 20 days to cure the default before the notice of sale can be given. The day the default notice is given counts toward the 20 days, and the day the notice of sale is given does not.