Foreclosure Questions Texas
The foreclosure sale in Texas takes place on the first Tuesday of every month. The foreclosure sale date is the same everywhere in the State of Texas, so whether you live in Austin, Dallas, San Antonio, Houston, or anywhere else in Texas, the foreclosure sale is the first Tuesday of the month. Every month, there are thousands of people in Texas whose homes are posted for foreclosure. If you are behind on mortgage payments, property taxes, or homeowner’s association dues, and are facing foreclosure of your Texas home or property, you probably have many questions. More than likely you have questions about how to stop the foreclosure and save your home.
If you live anywhere in the State of Texas, and are facing foreclosure, you need to know your legal options once the foreclosure process has started. Don’t wait until the last minute to seek legal advice on how to stop foreclosure. Contact Texas Bankruptcy Attorney R.J.Atkinson for a free bankruptcy evaluation and a free bankruptcy means test to assess you legal options to stop foreclosure and keep your home.
The following are some frequently asked questions about foreclosure in Texas:
- 1. What is a foreclosure?
- Foreclosure in Texas is a legal process by which a bank, financial institution, mortgage company or secured lender can terminate your legal rights or other interest in your home or other real property. Most often this happens after you have fallen behind on your mortgage payments, property taxes, or homeowner’s association dues. At a foreclosure sale, the bank, financial institution, taxing authority, mortgage company, or secured lender may sell your real property on the courthouse steps at the foreclosure sale to satisfy the secured debt as well as the legal costs involved in the foreclosure process. The proceeds from the foreclosure sale are then applied to the debt.
- 2. When does the Foreclosure Sale in Texas happen?
- The foreclosure sale throughout the State of Texas takes place on the first Tuesday of every month. So whether you live in Houston, Austin, San Antonio, or Dallas, the foreclosure sale will take place rain or shine and despite holidays on the first Tuesday of the month.
- 3. Where are foreclosure sales in Texas held?
- Foreclosure sales in Texas are held at the County Courthouse for the County where your Texas home is located. The foreclosure sale takes place on the steps of the courthouse at the County courthouse for that County.
- 4. Once the foreclosure process starts is there anything that can be done to stop it?
- Yes, there are many options to stop foreclosure available, depending on the facts of your particular situation. The sooner you seek professional advice to determine your legal options, the more options you will have available. It’s usually not a good idea to wait until the day before the foreclosure sale to address a foreclosure. It is extremely important to explore your options and exercise your rights prior to the foreclosure sale.
- 5. If my home is posted for foreclosure, can the bank just come and kick me out of my home?
- Absolutely not. Only an order of the court can compel you to leave your home. Just because you owe money and may be behind on your house payments, the mortgage company, taxing authority, the bank, your homeowner’s association, nor any other party cannot just go to you house, throw you out, and change the locks. There is a legal process that must be adhered to. All creditors must follow the rules within their legal rights to do so. Remember that you have legal rights to stop a foreclosure on your property. You may be eligible to exercise those rights under the Bankruptcy Code to stop the foreclosure and save your Texas home. No bank or lender can just kick you out without adhering to the legal process.
- 6. If I don’t stop the foreclosure sale when do I have to move out of my house?
- It depends on what happens at the foreclosure sale. Should you determine that the best option for you is to let the property be foreclosed, then your home will be sold to the highest bidder at the foreclosure sale. When and if your home is purchased at the foreclosure sale, that transfers ownership of the house from you to the high bidder. That transfer of ownership becomes final following the foreclosure sale. At that point you automatically become a tenant in the property you previously owned. You may not be a tenant that has a formal lease or one that is welcome, but you are considered a tenant. From then on, the new owner must follow the legal process to evict you from the premises. If the property is not sold and goes back to the bank or lender, then the same thing applies. The new owner must initiate legal proceedings to evict you. In some situations you may be able to negotiate something with the new owner to continue to occupy the property. Alternatively, the new owner may act immediately to evict you from the premises. So depending on who the new owner is will determine how long you can remain in the house.
- 7. How long does the foreclosure process usually take?
- From the time you miss your first payment to the actual foreclosure sale it’s not uncommon for three to six months or more to go by. It really depends on how aggressive your mortgage company, taxing authority, or homeowner’s association is. How aggressively they decide to pursue your case will determine how fast the foreclosure process ensues as well as how quickly your home will be posted for foreclosure. Generally, once you have received notice of the foreclosure sale date it is a count down to that date so it is important to explore your legal options as soon as possible. In Texas, your home can be sold at foreclosure in as little as 45-60 days in a default or no response situation. That is if you don’t respond to the notices as per the procedure outlined under the Texas Property Code.
- 8. I’m behind on my mortgage payments and the mortgage company is threatening to foreclose, but as far as I can tell, they haven’t formally filed anything yet. What should I do?
- Since a foreclosure could terminate your ownership of your home or real property, you should take their threat seriously. Contact them and try to work something out. Many mortgage companies have programs that may allow you to repay any arrears or missed payments back over time. When you contact them ask if they in fact have initiated foreclosure proceedings. Just because you haven’t seen anything doesn’t mean they haven’t initiated foreclosure proceedings. They may advise you to speak only to their attorneys. Make sure you accept any certified mail as in most cases they only need to send notice of foreclosure to your address on file. If you avoid certified mail you may not be fully informed. If your mortgage company, taxing authority, the bank, your homeowner’s association, is threatening foreclosure you should seek legal advice immediately.
- 9. My home is posted for foreclosure and I have been receiving lots of mail from all kinds of companies and people that claim they can help me. Where are they getting my address from?
- If your home is posted for foreclosure then it’s a matter of public record. Since the foreclosure process is a legal proceeding, it is considered public information so your name and address is likely available through the court’s records system. Additionally, there are many companies that collect and publish this type of information for legal journals and mailing lists which they in turn resell. The letters you are receiving probably came from these types of journals or mailing lists, which were most likely obtained from public records.
- 10. There is only 10 days before the foreclosure sale and a Mortgage Broker claims they can help stop the foreclosure sale. Can they really help me?
- All things are possible. If there is enough equity in your property, it may be possible for a mortgage broker to assist you in refinancing your property by paying off your current mortgage in full, and thus stopping the foreclosure. Using a mortgage Broker is one of the many options to stop foreclosure that can work, however you must be cautious as the interest rates and closing costs that may be offered by mortgage brokers on last minute loans can be high. Really high. Sometimes the amount of closings costs can be the equivalent of the amount you are behind on your mortgage. Keep in mind mortgage brokers are usually paid on a commission basis. A Mortgage Broker has nothing to lose if your home ends up going to foreclosure. As middle men they are at the mercy of the banks they try to get financing from. If you feel confident in your Mortgage Broker, make them commit to a deadline to you in writing.
If you are facing foreclosure, your credit situation isn’t likely to be all that good, so you will probably pay much more than traditional mortgage lenders. Consider that if your home is in foreclosure now for whatever reason, why would a bank finance you since you were unable to pay the existing mortgage lender. It is not easy to refinance once you’re in foreclosure. If it can be done, be on the lookout for brokers that may try to charge more points or higher interest then another just to gouge you for more fees because they know your situation. Also consider timing. It may be highly unlikely to refinance in such a short period of time. When you originally obtained the mortgage on your property, how long did it take? Did it take 10 days? Many mortgage brokers will lead you on until the last day before the foreclosure sale and advise you that they are unable to help. Don’t let that happen to you. Make certain you explore all of your options with an experienced Texas Bankruptcy Lawyer while the mortgage broker is trying to refinance so you don’t put all of your eggs in one basket.
- 11. Can mortgage workout specialists or Mortgage Negotiators help me to stop foreclosure and save my home?
- Since all things are possible then maybe there is a chance, however slight, but I have never seen a single foreclosure stopped by a so called mortgage workout specialist or mortgage negotiator ever. In fact of the 2000 plus clients we have helped to stop foreclosure with Chapter 13 Bankruptcy, every one that may have utilized a so called mortgage workout specialist or mortgage negotiator had a negative experience. After they spent more than what I and fellow bankruptcy attorneys charge for Chapter 13 Bankruptcy on the “mortgage negotiator”, they often find out at the last minute or the day before the foreclosure sale that the “mortgage negotiator” can’t help. Eventually they ended up in my office.
Now all that being said, there are people who hold themselves out as mortgage workout professionals who claim they can save you from foreclosure who may be able to help. Although I have never met one doesn’t mean they don’t exist. I would be very skeptical based on my experience, but they may be out there. If you find one and choose to use them, ask for 3 references and check to see if they are a licensed business. You may also check with the Texas Attorney General’s Office to see if there are any complaints against them. If you think about it, why would you pay a “mortgage workout specialist” or “mortgage negotiator” as opposed to a licensed attorney to negotiate a repayment plan? Moreover, you yourself may be able to directly negotiate a plan with the banks or mortgage companies themselves rather than using one of these companies.
- 12. My mortgage company is foreclosing on my home but they just sent me a letter saying they want to help me to stop the foreclosure they started. What’s up with that?
- Although it might seem strange or contradictory, your mortgage holder doesn’t usually want to take your home from you. They just want their money and they want it with the least amount of expense to get it. If your home goes up for auction at the foreclosure sale it might not sell. In fact the property might not sell for months, which in turn costs the mortgage company even more money. Mortgage companies have policies and procedures, and they have a responsibility to their shareholders to take positions to collect monies past due. Foreclosure is one of those methods.
Many banks & larger mortgage lenders have created “workout programs” to allow you to reinstate your mortgage and repay your past due payments over a limited period of time. Workout programs are especially common with lenders involved with government backed mortgage facilities. They will sometimes offer you various ways to reinstate your existing mortgage. Even if these programs are guised methods to prevent them from losing more money, these programs if available, can benefit you and stop the foreclosure. If you have been offered a program within your means then reinstating your existing mortgage may be a viable option to stop foreclosure. In many cases it can be the best option if you can realistically afford it. In other cases, the program offered may be beyond your means or unrealistic to adhere to. Don’t commit to such a program if you can’t realistically afford it.
- 13. My home is scheduled to be auctioned at the foreclosure sale in less than 5 days. Is there still enough time to stop the foreclosure by filing Chapter 13 Bankruptcy?
- The simple answer is yes; however the sooner you begin the better. If you’re days away from the foreclosure sale, then you must take action now. You must of course be eligible to file for Chapter 13 Bankruptcy and comply with the Chapter 13 pre-filing requirements. The longer you wait, the greater the risk you have to run out of time. When your home is up for foreclosure, you need to be proactive if you want to stop the foreclosure by filing Chapter 13 Bankruptcy to save your home. Contact Texas Bankruptcy Lawyer R.J.Atkinson for a free bankruptcy evaluation the moment you receive a notice of foreclosure. So even if you have waited until 5 days before the foreclosure sale, by contacting us immediately instead of waiting until the last minute, you will have time to prepare your bankruptcy case.
- 14. How do I decide which is the best option for me to stop the foreclosure on my home?
- Obviously this is a tremendously complicated question. It’s all about your specific set of circumstances. The answer really depends on your assets, liabilities, available income, your expenses, as well as the underlying reason why the house is in foreclosure. The best option will also depend upon the type of mortgage or mortgages you have and where in the foreclosure process you are when you make the decision to save the house. You may best be served by a workout program from your mortgage company or a Chapter 13 Bankruptcy. There is no way to tell without knowing the facts. If you contact The Law Offices Of R.J.Atkinson for a free bankruptcy evaluation and a free bankruptcy means test, we can assess your case and help you to choose the best option to work for you and stop the foreclosure.
- 15. I am behind 3 months on my homeowner’s association dues so they posted me for foreclosure which is only about $600.00 but the legal fess are $1500.00, do I have to pay them?
- Unfortunately the answer is probably yes, that is if you want to keep the house. You should review your mortgage documents and the homeowner’s association agreement. It’s likely very clear that you will be responsible for attorney’s fees should any be necessary to collect association dues or initiate a foreclosure against you. This is also true for mortgage companies, taxing authorities, and others who have a secured interest in your property. Sometimes their attorney’s fees may far exceed what you expected, and in certain cases, may be considered excessive. The Bankruptcy Court can be a great forum to determine whether or not attorney fees are excessive or not.
- 16. If I let the house sell at the foreclosure sale is there a redemption period after the sale which I could buy the house back?
- Unfortunately not. Many states have such a redemption period but Texas is not one of them. There is no redemption period for the foreclosure of a real estate mortgage. There is however a redemption period if your house is sold at a sheriff's sale or for back real estate taxes.
- 17. What about a Deed in lieu of foreclosure? Can that stop the foreclosure?
- Sometimes it can but it depends on the facts. A deed in lieu of foreclosure is when you give the property back to the lender usually in exchange for their forgiveness of any of the potential deficiencies. Depending on your specific situation this may be difficult to accomplish. Once the lender has already expended the funds to initiate the foreclosure proceeding they may have no benefit to agreeing to take the property back. If they do, they will still have to market it, potentially repair it, and incur various other expenses.
Even if you are successful in negotiating a deed in lieu, you may still owe the deficiency. This amount will be the difference between what the house sold for at the foreclosure sale and what you owe including the legal fees. While the deficiency can be settled without paying any of it, this must be agreed to in writing as it doesn’t happen automatically. There will likely be tax consequences if the lender forgives a deficiency. Your credit report may also be negatively affected as it will most likely read “Deed In Lieu”, which is considered a voluntary foreclosure. A Deed In Lieu of Foreclosure usually only benefits the lender by saving them time and money. At the end of the day, it is still a foreclosure, but it just happens quicker. A Deed In Lieu of Foreclosure is usually of no benefit to you and can adversely affect your future credit options.
- 18. My home is up for foreclosure next month. Should I Take a Second Mortgage out on my House to Cure the Amount Owed on the First Mortgage?
- It depends on your set of circumstances. If you have the ability to get a second mortgage and the payments are reasonable then maybe that can be an option, but it is a monumental process to obtain a second mortgage if your home is in foreclosure. Most lenders shy away from people whose homes are in foreclosure. If by some chance you can get a second mortgage before the sale then only you can decide. Keep in mind that second mortgages are usually quite expensive. They often have points charged, fees, closing costs, and a higher interest rate. If you have equity in your home, it may be lost if you can get a second mortgage. There may be better alternatives than a second mortgage for dealing with the foreclosure.
- 19. My home has been posted for foreclosure, I have received letters from attorneys offering to submit a Forbearance agreement to my lender for free or for $100.00 or less. What is a Forbearance agreement and why would attorneys offer it so cheaply or for free?
- A forbearance agreement is an agreement by which the lender will not to exercise their legal right to foreclose on you in exchange for an agreement to adhere to a payment plan that will cure your delinquency. So in exchange for money or you taking some other action like listing the property with a realtor, or agreeing to sell it by a certain date, the lender agrees to temporarily stop the foreclosure proceedings or legal actions against you. In essence you agree to a repayment plan that will, over a certain time period, bring your mortgage current on payments, and the lender agrees not to foreclose. A forbearance agreement is not a long-term solution. They are used by those who have temporary financial difficulties caused by unforeseen problems such as temporary unemployment or medical problems.
It is very difficult to get a mortgage company to accept one. Once your home enters the foreclosure process, the mortgage company has little to loose since they have already expended the monies to initiate foreclosure. Convincing them with a promise to pay more money every month for a certain period of time without any legal authority is very difficult. Increasing your monthly payments beyond your disposable income, even short term, is probably not going to solve your problem whatever it may be. You are probably in foreclosure because your payments were missed, unaffordable, or for any number of good reasons. So if a lender does increase your monthly payment through forbearance agreement, make sure you know your budget and what you can afford before agreeing to forbearance. If you can’t make payments on their terms then you will be back in foreclosure.
Most attorneys are very aware that the success rate of forbearance agreements is nominal at best. Chapter 13 Bankruptcy allows you to take control of the situation and repay any past due payments on terms you can afford. As far as attorneys offering to submit one for free or for a minimal amount, it’s probably a way to get you to their office and consider your options to stop foreclosure in Chapter 13 Bankruptcy.
- 20. If I file for Chapter 7 Bankruptcy can I stop the foreclosure and keep my house?
- The filing of a Chapter 7 Bankruptcy will stop the foreclosure on a temporary basis only. Just like Chapter 13 or any other chapter of Bankruptcy, the automatic stay, stops most all collection actions which includes foreclosure. Eventually you need to do something else to keep the house in the long run if you are facing foreclosure. Filing Chapter 7 Bankruptcy will not allow you to keep your home long term if you are behind on the payments.
- 21. If I let my house sell at the foreclosure sale and it sells for more than I owe, do I get the money?
- Typically, the sale brings in less than the debt which, in most cases, you will technically owe. Don’t count on your home selling for more than what is owed even if you have significant equity. But, if you are one of the few whose home sells for more money than is owed, then that money will be yours after legal fees, and expenses.
- 22. What happens if the house sells for less than I owe at the foreclosure sale?
- You will still owe whatever part of your debt is not paid by the sale of the property. This remaining debt is called a "mortgage deficiency". The lender will most likely try to collect the deficiency by suing you personally. Even though every foreclosure sale is different, most houses sold at the foreclosure sale almost always never bring as much money as they would if the property was sold through a licensed real estate broker. The amount of the deficiency will depend on what your real property was worth and how much money there was in the property over above what was owed on your mortgage or mortgages.
Also, there may be a potential tax consequence of a foreclosure sale deficit as the Internal Revenue Service requires all mortgage lenders to report foreclosures on form 1099 which is a miscellaneous income report. Depending on the amount of the sale you may be required to report the income from the forgiveness of debt.
- 23. I can't afford the monthly payments on my home, so why would I file bankruptcy to save my house?
- Depending on how much equity is in your home, the best reason to file bankruptcy is to protect your equity in your house. For instance, if you owe $150,000 on your mortgage, but you can’t afford the monthly payment, but had some time to prepare your house to be sold, and you could sell it for $300,000. Then if you let the house go to foreclosure, you will receive nothing from the foreclosure sale. However, a Chapter 13 Bankruptcy could provide you the necessary time to market your house for sale and realize your $150,000.00 equity.
If you have more than one mortgage on your house, a foreclosure by the first lender won’t eliminate your obligation on a second mortgage, and the second lender can still pursue collection from you. The first lender may sell the house for less at the foreclosure sale which will leave a deficit. So even if you are going to let your house go to foreclosure, a Chapter 7 Bankruptcy may be a good option to discharge all debts associated with the house.
- 24. I am behind on my mortgage payments and my house is posted for foreclosure. The sale is 20 days away. Is it too late to try to refinance my house?
- Unfortunately it is probably is too late. It has been our experience that if you are already in foreclosure, it is unlikely that a mortgage company can help you, since you are in foreclosure because you didn’t pay your mortgage. If you do decide to make application with a mortgage company don’t count on them approving you. In the majority of cases we have seen, once a foreclosure is initiated, you have most likely had several months of late payments or no payments at all. While this has been happening, your mortgage company has been reporting you over 30 days late to the credit bureau. The negative reporting may have a crushing effect on your credit score. If your home is up for foreclosure and you are working with a mortgage broker or bank, and what they tell you may sound hopeful, it is good advice to visit an experienced Texas Bankruptcy Attorney just to cover yourself in case you don’t get financed. The Law Offices of R.J.Atkinson offers a free initial consultation at which you have nothing to lose and everything to gain by knowing your options to stop foreclosure. By having a backup plan in case the refinance does not happen, you won’t eliminate any of your other options and will have enough time to gather and prepare the information necessary to compile a Bankruptcy in case you need to file.
- 25. I am posted for foreclosure and the sale takes place in 5 days. Can I still file for Chapter 13 Bankruptcy to stop the foreclosure?
- Maybe. You need to come in as soon as possible. Since, the first Tuesday of every month is when the foreclose sale takes place in Texas, Texas bankruptcy attorneys are busiest on the Friday and Monday before foreclosure. At The Law Offices Of R.J.Atkinson, our attorneys will meet with meet with clients most any day to file emergency Chapter 13 cases in order to save people’s homes. But waiting until the last minute usually causes much undue stress to those filing because of all the pre-filing requirements. One way to avoid these added stresses is to talk to a Texas bankruptcy lawyer some time before the foreclosure sale.
Another problem with waiting until the Monday before foreclosure is that there is a credit counseling course the must be taken before the attorney can file your case, even in emergency filings. Luckily, the course is offered on line. However, most attorneys don’t have extra computers laying around to allow people to take their credit counseling course. This means the Debtor must sign all the paperwork to file the case, get their course information, go home and take the course, and contact the attorney’s office to let them know they have completed the course. This can cause an unnecessary delay in getting your case filed and your mortgage company notified of the filing.
- 26. Can Chapter 13 Bankruptcy Stop Foreclosure and help me to keep my home?
- Yes. Filing Chapter 13 Bankruptcy, a Chapter 7 Bankruptcy, or a Bankruptcy of any type will stop a foreclosure. Chapter 13 Bankruptcy will stop a foreclosure and allows you 3 to 5 years to repay you past due payments. Chapter 13 also allows you to set the repayment schedule at a level that you can afford based on your disposable income. Chapter 13 Bankruptcy puts you back in control of your finances to make repayment on terms you can afford. If you have taken the Texas bankruptcy means test and are eligible to file Chapter 13 Bankruptcy, it will definitely stop the foreclosure. That being stated, if you have filed a recent or previous bankruptcy, filing bankruptcy of any kind may not stop the foreclosure without making a special motion, or application to the Bankruptcy Court. An experienced Texas Bankruptcy Lawyer can explain these situations if you have recently or previously filed.
- 27. If I do file for Chapter 13 Bankruptcy what guarantee is there that it will stop the foreclosure?
- A section of the United States Bankruptcy Code 11 U.S.C. § 362 referred to as the "automatic stay" will stop a foreclosure immediately upon the filing of a bankruptcy. The "automatic stay" applies in Chapter 13 cases as well as any other chapter under the Bankruptcy Code. As mentioned in No.25, There is an exception; in that if you have previously filed for bankruptcy. If you are considering Chapter 13 and have had prior bankruptcies, you need to consult with an attorney as soon as possible in order to determine if the automatic stay will take effect in your case or not. The bottom line is that if you are eligible to file a Chapter 13 or a Chapter 7 Bankruptcy and haven’t previously filed, then filing for Bankruptcy, even at the last minute can stop the foreclosure.
- 28. How much does it cost to file Chapter 13 Bankruptcy?
- The cost of Chapter 13 depends on the complexity of your case. In most cases, we can file your Chapter 13 Bankruptcy for the $274.00 filing fee and with no money down on attorneys fees with the balance paid through the Chapter 13 plan. Your monthly plan payment and your attorney fees will be higher if you wait until the last minute to file Chapter 13. So if you are facing foreclosure, you should contact our office immediately for more information, and to find out if you qualify for Chapter 13, at a free initial consultation.
Stop Foreclosure on Your Home. Don’t Let Your Home Be Sold…
If you are facing foreclosure, don’t just ignore it or you may end up losing your home. If you live in Austin, Houston, San Antonio, Dallas, or most anywhere throughout the State of Texas, contact the Texas Bankruptcy Lawyers at The Law Offices Of R.J.Atkinson for a free bankruptcy evaluation and a free bankruptcy means test to see how we can help you with the foreclosure. We may be able to help you file for bankruptcy to stop the foreclosure. Our Texas Bankruptcy Lawyers welcome the opportunity to discuss your legal options on how to stop foreclosure and save your home.
Questions about Foreclosure? Questions about Chapter 13 Bankruptcy to Stop Foreclosure?
Contact Texas Bankruptcy Attorney R.J.Atkinson at: 800-436-9056