In a non-judicial foreclosure, the homeowner will be sent a notice letting them know they are in default. This notice is often referred to as a "Notice of Default."
In a judicial foreclosure, the lienholder will file a petition with the district or county court (depending on how much money is involved) and the homeowner would then be legally served with the paperwork, usually by the county sheriff or private process server.
In most cases involving a home loan, federal regulations state the foreclosure action cannot begin until the loan is over 120 days delinquent.
Texas Civil Practice and Remedies Code Section 16.035 places a 4-year statute of limitations on foreclosure actions though there are some exceptions to this law.
In a non-judicial foreclosure, Texas law gives homeowners the right to reinstate their loan in order to avoid a foreclosure sale. The homeowner can reinstate the loan by paying the amount that was past due, not the total loan amount.
Under Texas law, this amount must be paid within 20 days of receiving the notice of default. It's also important to check the loan documents, as they may provide additional time in which to reinstate the loan.
Once the homeowner has been notified of the default, lienholders who qualify may file an "Application For Expedited Order" with the court if they would like to try and proceed with an expedited foreclosure. If granted by the court, an expedited foreclosure would allow the lienholder to proceed with the sale of the property without the need for a judgment from the court, which is required in a judicial foreclosure.
In a non-judicial foreclosure, after the 20-day "right to reinstate" period has expired and at least 21 days before the sale, the servicer must provider the borrower with a Notice of Sale, letting them know the date and earliest time of the sale. These notices can also be called “Notice of Trustee’s Sale” or “Notice of Substitute Trustee’s Sale." This notice must also be posted on the courthouse door and filed with the county clerk.
In a judicial foreclosure, once the court has issued their judgment granting the foreclosure, the clerk of the court will prepare an Order of Sale directing the sheriff or constable to sell the property at auction.
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