CHAPTER 51. PROVISIONS GENERALLY APPLICABLE TO LIENS - Texas Statutes

PROPERTY CODE

TITLE 5. EXEMPT PROPERTY AND LIENS

SUBTITLE B. LIENS

CHAPTER 51. PROVISIONS GENERALLY APPLICABLE TO LIENS

Sec. 51.0001. DEFINITIONS. In this chapter:

(1) "Book entry system" means a national book entry system for

registering a beneficial interest in a security instrument that

acts as a nominee for the grantee, beneficiary, owner, or holder

of the security instrument and its successors and assigns.

(2) "Debtor's last known address" means:

(A) for a debt secured by the debtor's residence, the debtor's

residence address unless the debtor provided the mortgage

servicer a written change of address before the date the mortgage

servicer mailed a notice required by Section 51.002; or

(B) for a debt other than a debt described by Paragraph (A), the

debtor's last known address as shown by the records of the

mortgage servicer of the security instrument unless the debtor

provided the current mortgage servicer a written change of

address before the date the mortgage servicer mailed a notice

required by Section 51.002.

(3) "Mortgage servicer" means the last person to whom a

mortgagor has been instructed by the current mortgagee to send

payments for the debt secured by a security instrument. A

mortgagee may be the mortgage servicer.

(4) "Mortgagee" means:

(A) the grantee, beneficiary, owner, or holder of a security

instrument;

(B) a book entry system; or

(C) if the security interest has been assigned of record, the

last person to whom the security interest has been assigned of

record.

(5) "Mortgagor" means the grantor of a security instrument.

(6) "Security instrument" means a deed of trust, mortgage, or

other contract lien on an interest in real property.

(7) "Substitute trustee" means a person appointed by the current

mortgagee or mortgage servicer under the terms of the security

instrument to exercise the power of sale.

(8) "Trustee" means a person or persons authorized to exercise

the power of sale under the terms of a security instrument in

accordance with Section 51.0074.

Added by Acts 2003, 78th Leg., ch. 554, Sec. 1, eff. Jan. 1,

2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

903, Sec. 1, eff. June 15, 2007.

Sec. 51.001. EFFECT ON OTHER LIENS. Except as provided by

Chapter 59, this subtitle does not affect:

(1) the right to create a lien by special contract or agreement;

or

(2) a lien that is not treated in this subtitle, including a

lien arising under common law, in equity, or under another

statute of this state.

Acts 1983, 68th Leg., p. 3525, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 51.002. SALE OF REAL PROPERTY UNDER CONTRACT LIEN. (a) A

sale of real property under a power of sale conferred by a deed

of trust or other contract lien must be a public sale at auction

held between 10 a.m. and 4 p.m. of the first Tuesday of a month.

Except as provided by Subsection (h), the sale must take place at

the county courthouse in the county in which the land is located,

or if the property is located in more than one county, the sale

may be made at the courthouse in any county in which the property

is located. The commissioners court shall designate the area at

the courthouse where the sales are to take place and shall record

the designation in the real property records of the county. The

sale must occur in the designated area. If no area is designated

by the commissioners court, the notice of sale must designate the

area where the sale covered by that notice is to take place, and

the sale must occur in that area.

(b) Except as provided by Subsection (b-1), notice of the sale,

which must include a statement of the earliest time at which the

sale will begin, must be given at least 21 days before the date

of the sale by:

(1) posting at the courthouse door of each county in which the

property is located a written notice designating the county in

which the property will be sold;

(2) filing in the office of the county clerk of each county in

which the property is located a copy of the notice posted under

Subdivision (1); and

(3) serving written notice of the sale by certified mail on each

debtor who, according to the records of the mortgage servicer of

the debt, is obligated to pay the debt.

(b-1) If the courthouse or county clerk's office is closed

because of inclement weather, natural disaster, or other act of

God, a notice required to be posted at the courthouse under

Subsection (b)(1) or filed with the county clerk under Subsection

(b)(2) may be posted or filed, as appropriate, up to 48 hours

after the courthouse or county clerk's office reopens for

business, as applicable.

(c) The sale must begin at the time stated in the notice of sale

or not later than three hours after that time.

(d) Notwithstanding any agreement to the contrary, the mortgage

servicer of the debt shall serve a debtor in default under a deed

of trust or other contract lien on real property used as the

debtor's residence with written notice by certified mail stating

that the debtor is in default under the deed of trust or other

contract lien and giving the debtor at least 20 days to cure the

default before notice of sale can be given under Subsection (b).

The entire calendar day on which the notice required by this

subsection is given, regardless of the time of day at which the

notice is given, is included in computing the 20-day notice

period required by this subsection, and the entire calendar day

on which notice of sale is given under Subsection (b) is excluded

in computing the 20-day notice period.

(e) Service of a notice under this section by certified mail is

complete when the notice is deposited in the United States mail,

postage prepaid and addressed to the debtor at the debtor's last

known address. The affidavit of a person knowledgeable of the

facts to the effect that service was completed is prima facie

evidence of service.

(f) Each county clerk shall keep all notices filed under

Subdivision (2) of Subsection (b) in a convenient file that is

available to the public for examination during normal business

hours. The clerk may dispose of the notices after the date of

sale specified in the notice has passed. The clerk shall receive

a fee of $2 for each notice filed.

(g) The entire calendar day on which the notice of sale is

given, regardless of the time of day at which the notice is

given, is included in computing the 21-day notice period required

by Subsection (b), and the entire calendar day of the foreclosure

sale is excluded.

(h) For the purposes of Subsection (a), the commissioners court

of a county may designate an area other than an area at the

courthouse where sales under this section will take place that is

in a public place within a reasonable proximity of the county

courthouse and in a location as accessible to the public as the

courthouse door. The commissioners court shall record that

designation in the real property records of the county. A sale

may not be held at an area designated under this subsection

before the 90th day after the date the designation is recorded.

The posting of the notice required by Subsection (b)(1) of a sale

designated under this subsection to take place at an area other

than an area of the courthouse remains at the courthouse door of

the appropriate county.

Acts 1983, 68th Leg., p. 3525, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1984, 68th Leg., 2nd C.S., ch. 18, Sec.

3(b), eff. Oct. 2, 1984; Acts 1987, 70th Leg., ch. 540, Sec. 1,

eff. Jan. 1, 1988; Acts 1993, 73rd Leg., ch. 48, Sec. 5, eff.

Sept. 1, 1993; Acts 2003, 78th Leg., ch. 554, Sec. 2, eff. Jan.

1, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

533, Sec. 1, eff. June 17, 2005.

Acts 2005, 79th Leg., Ch.

555, Sec. 1, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

903, Sec. 2, eff. June 15, 2007.

Sec. 51.0021. NOTICE OF CHANGE OF ADDRESS REQUIRED. A debtor

shall inform the mortgage servicer of the debt in a reasonable

manner of any change of address of the debtor for purposes of

providing notice to the debtor under Section 51.002.

Added by Acts 2003, 78th Leg., ch. 554, Sec. 1, eff. Jan. 1,

2004.

Sec. 51.0025. ADMINISTRATION OF FORECLOSURE BY MORTGAGE

SERVICER. A mortgage servicer may administer the foreclosure of

property under Section 51.002 on behalf of a mortgagee if:

(1) the mortgage servicer and the mortgagee have entered into an

agreement granting the current mortgage servicer authority to

service the mortgage; and

(2) the notices required under Section 51.002(b) disclose that

the mortgage servicer is representing the mortgagee under a

servicing agreement with the mortgagee and the name of the

mortgagee and:

(A) the address of the mortgagee; or

(B) the address of the mortgage servicer, if there is an

agreement granting a mortgage servicer the authority to service

the mortgage.

Added by Acts 2003, 78th Leg., ch. 554, Sec. 1, eff. Jan. 1,

2004.

Amended by:

Acts 2005, 79th Leg., Ch.

555, Sec. 2, eff. September 1, 2005.

Sec. 51.003. DEFICIENCY JUDGMENT. (a) If the price at which

real property is sold at a foreclosure sale under Section 51.002

is less than the unpaid balance of the indebtedness secured by

the real property, resulting in a deficiency, any action brought

to recover the deficiency must be brought within two years of the

foreclosure sale and is governed by this section.

(b) Any person against whom such a recovery is sought by motion

may request that the court in which the action is pending

determine the fair market value of the real property as of the

date of the foreclosure sale. The fair market value shall be

determined by the finder of fact after the introduction by the

parties of competent evidence of the value. Competent evidence of

value may include, but is not limited to, the following: (1)

expert opinion testimony; (2) comparable sales; (3) anticipated

marketing time and holding costs; (4) cost of sale; and (5) the

necessity and amount of any discount to be applied to the future

sales price or the cashflow generated by the property to arrive

at a current fair market value.

(c) If the court determines that the fair market value is

greater than the sale price of the real property at the

foreclosure sale, the persons against whom recovery of the

deficiency is sought are entitled to an offset against the

deficiency in the amount by which the fair market value, less the

amount of any claim, indebtedness, or obligation of any kind that

is secured by a lien or encumbrance on the real property that was

not extinguished by the foreclosure, exceeds the sale price. If

no party requests the determination of fair market value or if

such a request is made and no competent evidence of fair market

value is introduced, the sale price at the foreclosure sale shall

be used to compute the deficiency.

(d) Any money received by a lender from a private mortgage

guaranty insurer shall be credited to the account of the borrower

prior to the lender bringing an action at law for any deficiency

owed by the borrower. Notwithstanding the foregoing, the credit

required by this subsection shall not apply to the exercise by a

private mortgage guaranty insurer of its subrogation rights

against a borrower or other person liable for any deficiency.

Added by Acts 1991, 72nd Leg., ch. 12, Sec. 1, eff. April 1,

1991.

Sec. 51.004. JUDICIAL FORECLOSURE--DEFICIENCY. (a) This

section applies if:

(1) real property subject to a deed of trust or other contract

lien is sold at a foreclosure sale under a court judgment

foreclosing the lien and ordering the sale; and

(2) the price at which the real property is sold is less than

the unpaid balance of the indebtedness secured by the real

property, resulting in a deficiency.

(b) Any person obligated on the indebtedness, including a

guarantor, may bring an action in the district court in the

county in which the real property is located for a determination

of the fair market value of the real property as of the date of

the foreclosure sale. The suit must be brought not later than the

90th day after the date of the foreclosure sale unless the suit

is brought by a guarantor who did not receive actual notice of

the sale before the date of sale, in which case the suit must be

brought by the guarantor not later than the 90th day after the

date the guarantor received actual notice of the sale. The fair

market value shall be determined by the finder of fact after the

introduction by the parties of competent evidence of the value.

Competent evidence of value may include:

(1) expert opinion testimony;

(2) comparable sales;

(3) anticipated marketing time and holding costs;

(4) cost of sale; and

(5) the necessity and amount of any discount to be applied to

the future sales price or the cash flow generated by the property

to arrive at a fair market value as of the date of the

foreclosure sale.

(c) If the finder of fact determines that the fair market value

is greater than the sale price of the real property at the

foreclosure sale, the persons obligated on the indebtedness,

including guarantors, are entitled to an offset against the

deficiency in the amount by which the fair market value, less the

amount of any claim, indebtedness, or obligation of any kind that

is secured by a lien or encumbrance on the real property that was

not extinguished by the foreclosure, exceeds the sale price. If

no competent evidence of fair market value is introduced, the

sale price at the foreclosure sale shall be used to compute the

deficiency.

(d) Any money received by a lender from a private mortgage

guaranty insurer shall be credited to the account of the borrower

before the lender brings an action at law for any deficiency owed

by the borrower. However, the credit required by this subsection

does not apply to the exercise by a private mortgage guaranty

insurer of its subrogation rights against a borrower or other

person liable for any deficiency.

Added by Acts 1991, 72nd Leg., ch. 361, Sec. 1, eff. June 5,

1991.

Sec. 51.005. JUDICIAL OR NONJUDICIAL FORECLOSURE AFTER JUDGMENT

AGAINST GUARANTOR--DEFICIENCY. (a) This section applies if:

(1) the holder of a debt obtains a court judgment against a

guarantor of the debt;

(2) real property subject to a deed of trust or other contract

lien securing the guaranteed debt is sold at a foreclosure sale

under Section 51.002 or under a court judgment foreclosing the

lien and ordering the sale;

(3) the price at which the real property is sold is less than

the unpaid balance of the indebtedness secured by the real

property, resulting in a deficiency; and

(4) a motion or suit to determine the fair market value of the

real property as of the date of the foreclosure sale has not been

filed under Section 51.003 or 51.004.

(b) The guarantor may bring an action in the district court in

the county in which the real property is located for a

determination of the fair market value of the real property as of

the date of the foreclosure sale. The suit must be brought not

later than the 90th day after the date of the foreclosure sale or

the date the guarantor receives actual notice of the foreclosure

sale, whichever is later. The fair market value shall be

determined by the finder of fact after the introduction by the

parties of competent evidence of the value. Competent evidence of

value may include:

(1) expert opinion testimony;

(2) comparable sales;

(3) anticipated marketing time and holding costs;

(4) cost of sale; and

(5) the necessity and amount of any discount to be applied to

the future sales price or the cash flow generated by the property

to arrive at a fair market value as of the date of the

foreclosure sale.

(c) If the finder of fact determines that the fair market value

is greater than the sale price of the real property at the

foreclosure sale, the persons obligated on the indebtedness,

including guarantors, are entitled to an offset against the

deficiency in the amount by which the fair market value, less the

amount of any claim, indebtedness, or obligation of any kind that

is secured by a lien or encumbrance on the real property that was

not extinguished by the foreclosure, exceeds the sale price. If

no competent evidence of fair market value is introduced, the

sale price at the foreclosure sale shall be used to compute the

deficiency.

(d) Any money received by a lender from a private mortgage

guaranty insurer shall be credited to the account of the borrower

before the lender brings an action at law for any deficiency owed

by the borrower. However, the credit required by this subsection

does not apply to the exercise by a private mortgage guaranty

insurer of its subrogation rights against a borrower or other

person liable for any deficiency.

Added by Acts 1991, 72nd Leg., ch. 361, Sec. 1, eff. June 5,

1991.

Sec. 51.006. DEED-OF-TRUST FORECLOSURE AFTER DEED IN LIEU OF

FORECLOSURE. (a) This section applies to a holder of a debt

under a deed of trust who accepts from the debtor a deed

conveying real property subject to the deed of trust in

satisfaction of the debt.

(b) The holder of a debt may void a deed conveying real property

in satisfaction of the debt before the fourth anniversary of the

date the deed is executed and foreclosed under the original deed

of trust if:

(1) the debtor fails to disclose to the holder of the debt a

lien or other encumbrance on the property before executing the

deed conveying the property to the holder of the debt in

satisfaction of the debt; and

(2) the holder of the debt has no personal knowledge of the

undisclosed lien or encumbrance on the property.

(c) A third party may conclusively rely upon the affidavit of

the holder of a debt stating that the holder has voided the deed

as provided in this section.

(d) If the holder elects to void a deed in lieu of foreclosure

as provided in this section, the priority of its deed of trust

shall not be affected or impaired by the execution of the deed in

lieu of foreclosure.

(e) If a holder accepts a deed in lieu of foreclosure, the

holder may foreclose its deed of trust as provided in said deed

of trust without electing to void the deed. The priority of such

deed of trust shall not be affected or impaired by the deed in

lieu of foreclosure.

Added by Acts 1995, 74th Leg., ch. 1020, Sec. 1, eff. Aug. 28,

1995.

Sec. 51.007. TRUSTEE UNDER DEED OF TRUST, CONTRACT LIEN OR

SECURITY INSTRUMENT. (a) The trustee named in a suit or

proceeding may plead in the answer that the trustee is not a

necessary party by a verified denial stating the basis for the

trustee's reasonable belief that the trustee was named as a party

solely in the capacity as a trustee under a deed of trust,

contract lien, or security instrument.

(b) Within 30 days after the filing of the trustee's verified

denial, a verified response is due from all parties to the suit

or proceeding setting forth all matters, whether in law or fact,

that rebut the trustee's verified denial.

(c) If a party has no objection or fails to file a timely

verified response to the trustee's verified denial, the trustee

shall be dismissed from the suit or proceeding without prejudice.

(d) If a respondent files a timely verified response to the

trustee's verified denial, the matter shall be set for hearing.

The court shall dismiss the trustee from the suit or proceeding

without prejudice if the court determines that the trustee is not

a necessary party.

(e) A dismissal of the trustee pursuant to Subsections (c) and

(d) shall not prejudice a party's right to seek injunctive relief

to prevent the trustee from proceeding with a foreclosure sale.

(f) A trustee shall not be liable for any good faith error

resulting from reliance on any information in law or fact

provided by the mortgagor or mortgagee or their respective

attorney, agent, or representative or other third party.

Added by Acts 1999, 76th Leg., ch. 1304, Sec. 1, eff. Sept. 1,

1999.

Sec. 51.0074. DUTIES OF TRUSTEE. (a) One or more persons may be

authorized to exercise the power of sale under a security

instrument.

(b) A trustee may not be:

(1) assigned a duty under a security instrument other than to

exercise the power of sale in accordance with the terms of the

security instrument; or

(2) held to the obligations of a fiduciary of the mortgagor or

mortgagee.

Added by Acts 2007, 80th Leg., R.S., Ch.

903, Sec. 3, eff. June 15, 2007.

Sec. 51.0075. AUTHORITY OF TRUSTEE OR SUBSTITUTE TRUSTEE. (a)

A trustee or substitute trustee may set reasonable conditions for

conducting the public sale if the conditions are announced before

bidding is opened for the first sale of the day held by the

trustee or substitute trustee.

(b) A trustee or substitute trustee is not a debt collector.

(c) Notwithstanding any agreement to the contrary, a mortgagee

may appoint or may authorize a mortgage servicer to appoint a

substitute trustee or substitute trustees to succeed to all

title, powers, and duties of the original trustee. A mortgagee

or mortgage servicer may make an appointment or authorization

under this subsection by power of attorney, corporate resolution,

or other written instrument.

(d) A mortgage servicer may authorize an attorney to appoint a

substitute trustee or substitute trustees on behalf of a

mortgagee under Subsection (c).

(e) The name and a street address for a trustee or substitute

trustees shall be disclosed on the notice required by Section

51.002(b).

(f) The purchase price in a sale held by a trustee or substitute

trustee under this section is due and payable without delay on

acceptance of the bid or within such reasonable time as may be

agreed upon by the purchaser and the trustee or substitute

trustee if the purchaser makes such request for additional time

to deliver the purchase price. The trustee or substitute trustee

shall disburse the proceeds of the sale as provided by law.

Added by Acts 2003, 78th Leg., ch. 554, Sec. 1, eff. Jan. 1,

2004.

Amended by:

Acts 2005, 79th Leg., Ch.

1231, Sec. 1, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

903, Sec. 4, eff. June 15, 2007.

Acts 2009, 81st Leg., R.S., Ch.

323, Sec. 1, eff. September 1, 2009.

Sec. 51.008. CERTAIN LIENS ON REAL PROPERTY. (a) A lien on

real property created under this code or another law of this

state in favor of a governmental entity must be recorded as

provided by Chapters 11 and 12 in the real property records of

the county in which the property or a portion of the property is

located unless:

(1) the lien is imposed as a result of failure to pay:

(A) ad valorem taxes; or

(B) a penalty or interest owed in connection with those taxes;

or

(2) the law establishing the lien expressly states that

recording the lien is not required.

(b) Any notice of the lien required by law must contain a legal

description of the property.

(c) This section does not apply to:

(1) a lien created under Section 89.083, Natural Resources Code;

(2) a state tax lien under Chapter 113, Tax Code; or

(3) a lien established under Chapter 61 or 213, Labor Code.

Added by Acts 2001, 77th Leg., ch. 827, Sec. 1, eff. Sept. 1,

2001.

Sec. 51.009. FORECLOSED PROPERTY SOLD "AS IS". A purchaser at a

sale of real property under Section 51.002:

(1) acquires the foreclosed property "as is" without any

expressed or implied warranties, except as to warranties of

title, and at the purchaser's own risk; and

(2) is not a consumer.

Added by Acts 2003, 78th Leg., ch. 554, Sec. 1, eff. Jan. 1,

2004.

Sec. 51.015. SALE OF CERTAIN PROPERTY OWNED BY MEMBER OF THE

MILITARY. (a) In this section:

(1) "Active duty military service" means:

(A) service as a member of the armed forces of the United

States; and

(B) with respect to a member of the Texas National Guard or the

National Guard of another state or a member of a reserve

component of the armed forces of the United States, active duty

under an order of the president of the United States.

(2) "Dwelling" means a residential structure or manufactured

home that contains one to four family housing units.

(3) "Military servicemember" means:

(A) a member of the armed forces of the United States;

(B) a member of the Texas National Guard or the National Guard

of another state serving on active duty under an order of the

president of the United States; or

(C) a member of a reserve component of the armed forces of the

United States who is on active duty under an order of the

president of the United States.

(4) "Person" has the meaning assigned by Section 311.005,

Government Code.

(b) This section applies only to an obligation:

(1) that is secured by a mortgage, deed of trust, or other

contract lien on real property or personal property that is a

dwelling owned by a military servicemember;

(2) that originates before the date on which the servicemember's

active duty military service commences; and

(3) for which the servicemember is still obligated.

(c) In an action filed during a military servicemember's period

of active duty military service or during the nine months after

the date on which that service period concludes to foreclose a

lien or otherwise enforce an obligation described by Subsection

(b), the court may after a hearing and on the court's own motion,

and shall on the application by a servicemember whose ability to

comply with the obligations of the contract secured by the lien

is materially affected by the servicemember's military service:

(1) stay the proceedings for a period of time as justice and

equity require; or

(2) adjust the obligations of the contract secured by the lien

to preserve the interests of all parties.

(d) A sale, foreclosure, or seizure of property under a

mortgage, deed of trust, or other contract lien described by

Subsection (b) may not be conducted during the military

servicemember's period of active duty military service or during

the nine months after the date on which that service period

concludes unless the sale, foreclosure, or seizure is conducted

under:

(1) a court order issued before the sale, foreclosure, or

seizure; or

(2) an agreement that complies with Subsection (e).

(e) A military servicemember may waive the servicemember's

rights under this section only as provided by this subsection.

The waiver must be:

(1) in writing in at least 12-point type;

(2) executed as an instrument separate from the obligation to

which the waiver applies; and

(3) made under a written agreement:

(A) executed during or after the servicemember's period of

active duty military service; and

(B) specifying the legal instrument to which the waiver applies

and, if the servicemember is not a party to the instrument, the

servicemember concerned.

(f) A person commits an offense if the person knowingly makes or

causes to be made a sale, foreclosure, or seizure of property

that is prohibited by Subsection (d). An offense under this

subsection is a Class A misdemeanor.

(g) On application to a court, a dependent of a military

servicemember is entitled to the protections of this section if

the dependent's ability to comply with an obligation that is

secured by a mortgage, deed of trust, or other contract lien on

real property or personal property that is a dwelling is

materially affected by the servicemember's military service.

(h) A court that issues a stay or takes any other action under

this section regarding the enforcement of an obligation that is

subject to this section may grant a similar stay or take similar

action with respect to a surety, guarantor, endorser,

accommodation maker, comaker, or other person who is or may be

primarily or secondarily subject to the obligation.

(i) If a judgment or decree is vacated or set aside wholly or

partly under this section, the court may also set aside or

vacate, as applicable, the judgment or decree with respect to a

surety, guarantor, endorser, accommodation maker, comaker, or

other person who is or may be primarily or secondarily subject to

the obligation that is subject to the judgment or decree.

(j) This section does not prevent a waiver in writing by a

surety, guarantor, endorser, accommodation maker, comaker, or

other person, whether primarily or secondarily liable on an

obligation, of the protections provided under Subsections (h) and

(i). A waiver described by this subsection is effective only if

it is executed as an instrument separate from the obligation with

respect to which it applies. If a waiver under this subsection

is executed by an individual who after the execution of the

waiver enters active duty military service, or by a dependent of

an individual who after the execution of the waiver enters active

duty military service, the waiver is not valid after the

beginning of the period of the active duty military service

unless the waiver was executed by the individual or dependent

during the applicable period described by 50 U.S.C. App. Section

516, as that section existed on January 1, 2009.

Added by Acts 2009, 81st Leg., R.S., Ch.

992, Sec. 1, eff. June 19, 2009.