Changes to Practice Notes
Chapter 1Attorney-Client Relations in the Foreclosure Process
§ 1.5:1Disclosure of Conflicts
Updated TDRPCs to reflect updated rule numbers throughout section.
§ 1.5:2Prior Representation of Borrower and Lender
Updated block quote to TDRPC Rule 1.09(a)
§ 1.5:4Legal Fees
Updated quoted language for TDRPC Rule 1.04.
Updated citations to reflect correct sections.
§ 1.6:2Confidentiality
Updated citations to reflect correct sections of new numbered TDRPC Rules.
§ 1.9Additional Resources
Updated URLs.
Chapter 2Getting Started—Information Required
§ 2.5:3Verification of Addresses
Updated citation in first sentence.
Chapter 3Evaluating the Options for Collecting the Debt
§ 3.3:1Loans to Financially Distressed Borrowers
Updated quoted language.
§ 3.3:2Statute of Frauds and Written Loan Agreements
Updated quoted language.
§ 3.3:10Mortgagee Title Insurance Concerns in a Restructuring
Added information about Loan Policy of Title Insurance Endorsement form.
§ 3.4:3Deed in Lieu of Foreclosure
Updated quoted language.
Corrected statute citation.
Chapter 4Preforeclosure Title Concerns
§ 4.7:5Receiverships in Favor of Judgment Creditors
This is a new section.
§ 4.16Lis Pendens
Updated quoted language.
§ 4.26Paving, Water System, and Sewer System Assessments and Weed Liens
Added reference to Tex. Water Code §§ 11.051, 49.231, 55.359, 55.604.
§ 4.36Water Rights
This is a new section. Renumbered previous section 4.36 to 4.37.
Chapter 5The Note in Foreclosure
Citation cleanup throughout chapter.
§ 5.3Enforcement of Note Separate from Deed of Trust
Updated “pet. denied” for Bierwirth v. BAC Home Loans Servicing, L.P.
Chapter 6The Deed of Trust
§ 6.2Enforcement Is Independent of Note and Vendor’s Lien
Updated citation to Benbrook Economic Development Corp. v. National Bank of Texas.
§ 6.3:5Mortgage Electronic Registration Systems, Inc.
Updated effective date of MERS System Rules of Membership Rule 8.
§ 6.6:4Appurtenances
Minor changes involving sentence structure.
Updated Black’s Law Dictionary version referenced.
§ 6.6:6Manufactured Homes
Added discussion of W.H.V., Inc. v. Associates Housing Finance, LLC.
Updated URLs.
§ 6.6:7Crops, Crop Rent, and Farm Tenants
Updated block quote for section titled “Crop Rent.”
§ 6.6:8USDA Insured Farm and Ranch Property
Removed discussion about 7 C.F.R. §§ 792.1–.22.
§ 6.7:5Maintenance of Insurance
Updated pinpoint cite for Chapa v. Herbster.
§ 6.7:9Due-on-Sale Clause
Added citation for Achee Holdings, LLC v. Silver Hill Financial, LLC.
Chapter 7Consumer Debt Collection Laws
§ 7.1Introduction
Added discussion about 12 C.F.R. pt. 1006.
§ 7.2Basic Requirements of FDCPA
Added discussion about 12 C.F.R. pt. 1006.
§ 7.2:2Validation Notice
Added discussion about 12 C.F.R. pt. 1006.34(b)(5).
Added discussion about 15 U.S.C. § 1692g.
Added reference to 12 C.F.R. § 1006.38(b).
§ 7.2:3Disputes and Requests for Validation
Added reference to 12 C.F.R. § 1006.38(c).
§ 7.3Locating Consumer
Added reference to 12 C.F.R. § 1006.10.
Chapter 9Collection of Rent by Lender Before Foreclosure
General cleanup of language throughout chapter.
§ 9.3:24Conforming Amendments to Texas Business and Commerce Code
Added reference to Tex. Prop. Code § 64.061.
Chapter 10Borrower Challenges to Foreclosure and Lender Responses
§ 10.3:4Split-the-Note
Updated quotation from Tex. Prop. Code § 51.0001(1).
§ 10.3:5Assignment Challenges
Updated quotation from Puente v. CitiMortgage, Inc.
§ 10.7Breach of Fiduciary Duty and Breach of Duty of Good Faith and Fair Dealing
Updated quotation from Associated Indemnity Corp. v. CAT Contracting Co.
§ 10.7:2Duty of Good Faith and Fair Dealing
Updated quotation from Vogel v. Travelers Indemnity Co.
§ 10.11Texas Deceptive Trade Practices–Consumer Protection Act
Updated quotation from Visconti v. Bank of America.
§ 10.15:1Limitations for Home Equity Loan Claims
Updated quotation from Curry v. Ocwen Loan Servicing LLC.
§ 10.17:4Loss Mitigation and Certain Other Claims Under RESPA
Updated subsection title.
Added discussion about other claims that can be asserted under RESPA.
§ 10.20:1OTS Implementation of HOLA
Updated quotation from Fidelity Federal Savings & Loan Ass’n v. de la Cuesta.
§ 10.22:1Furnisher of Information
Updated quotation from 15 U.S.C. § 1681p.
§ 10.24Res Judicata and Judicial Estoppel
Added citation to In re Hollie.
§ 10.25Recovery of Attorney’s Fees
Added references to In re Kessler-Muse and Garcia v. Federal Home Loan Mortgage Corp.
§ 10.26.2Developments in Notice of Acceleration Invoking Statute of Limitations
Added reference to Pitts v. Bank of New York Mellon Trust Co.
Added new section titled “Notice of Default After Acceleration Is Abandoned.”
§ 10.26.3Revival of a Time-Barred Claim for Foreclosure
This is a new section.
§ 10.27Miscellaneous Claims
Added new section titled “Equity of Redemption.”
Chapter 11Trustees and Substitute Trustees
§ 11.1Introduction
Updated several instances of “agreement” to “instrument.”
§ 11.1:3Retroactive Application
Edited quoted language of First Federal Savings & Loan Ass’n v. Sharp.
§ 11.7Trustee—Natural Person or Entity
Edited quoted language for Tex. Gov’t. Code § 311.005(2).
§ 11.25Excess Proceeds
Updated URL.
Chapter 12Notice of Foreclosure Sale
§ 12.1Introduction to Notice of Sale
This entire section has been substantially revised.
§ 12.1:2Appointment of Substitute Trustee in Notice of Sale
This entire section has been substantially revised.
Added block quote.
§ 12.3:2Filing with County Clerk
Added discussion on $2 clerk fee.
Added discussion about posting requirements.
§ 12.3:3Serving Notice on Debtor
Added discussion about party interest.
Added additional discussion about forms in this chapter.
§ 12.4Contents of Notice of Sale
Added block quote for Tex. Prop. Code § 51.002(i).
§ 12.4:1Descriptions of Security Instrument, Secured Debt, and Property to Be Sold
This entire subsection has been substantially revised.
Moved discussion about form 12-3.
§ 12.4:4Date, Time, and Location of Sale
This entire subsection has been substantially revised.
§ 12.4:6Sale at Auction for Cash
Added discussion about Tex. Prop. Code § 51.0075(a).
Chapter 13Bid Evaluation
This entire chapter has been substantially reorganized and revised.
§ 13.1Introduction to Bid Evaluation
This entire section has been substantially revised.
§ 13.2Bidder Checklist and Considerations
This is a new section.
§ 13.2:1Mortgagee vs. Third-Party Bidder
This is a new/moved section.
§ 13.2:2Appraisal
This is a new/moved section.
§ 13.2:3Due Diligence
This is a new/moved section.
§ 13.3:1BFP v. RTC and Fraudulent Transfers
This is a new subsection.
§ 13.3:3The Texas Uniform Fraudulent Transfer Act
Added new first paragraph.
Chapter 14Conducting the Sale
Minor language cleanup through chapter.
§ 14.1:1Statutes of Limitation
Reorganized paragraph.
§ 14.11Reforeclosure and Correcting Defective Trustee’s Deed
Deleted last two paragraphs.
Chapter 15Postsale Considerations
§ 15.3Receipt and Distribution of Sale Proceeds
Removed discussion regarding Canfield v. Foxworth-Galbraith Lumber Co.
Removed discussion about accepting funds from third-party bidders.
§ 15.3:1Expenses of Foreclosure
Added quote.
§ 15.3:4Any Amounts Required by Law to Be Paid Before Mortgagor
Added cross-reference to section 13.6 in this manual.
§ 15.6Equity of Redemption After Foreclosure
Added cross-references to sections 24.8 and 30.5 in this manual.
§ 15.9:1Residential Evictions Following Foreclosure
Removed discussion of topic, providing cross-reference to chapter 34 in this manual covering this topic.
§ 15.9:2Texas Protections for Military Servicemembers
Removed discussion of topic, providing cross-reference to chapter 33 in this manual covering this topic.
Chapter 16Consequences of Wrongful Foreclosure
Abbreviated case citations throughout chapter.
Chapter 17Suits for Deficiency
§ 17.6:1Request for Determination of Fair Market Value
Reorganized section.
§ 17.7:3Examples of Nonrecourse Loan Carveouts
Added quotation from U.S. Bank, Nat. Ass'n. v. Kobernick.
§ 17.6:1Request for Determination of Fair Market Value
Added discussion about Tex. Prop. Code § 51.003.
Chapter 20Judicial Foreclosure
§ 20.5Jurisdiction and Venue
Updated citation to Tex. Gov’t Code § 25.0003(c).
Chapter 21Residential Foreclosure Process
§ 21.4Homeownership Counseling
Updated URLs.
Chapter 22Commercial Foreclosure Process
In addition to the changes mentioned below, the discussions in sections 22.8 through 22.11 were deleted and replaced by cross-references to other chapters in this manual covering these topics.
§ 22.1Introduction to Commercial Foreclosure
This section has been substantially rewritten.
§ 22.2:1Identification of All Loan Documents
This section has been substantially rewritten.
§ 22.2:2Title Concerns
This section has been substantially rewritten.
§ 22.2:3Waiver of Notice and Other Waiver Clauses
Added block quote from Shumway v. Horizon Credit Corp.
Added cross-reference to section 8.5 in this manual.
§ 22.2:4Types of Default
This section has been substantially rewritten.
§ 22.3Demand to Cure
This section has been substantially rewritten.
§ 22.4Abandonment and Waiver of Acceleration
Added cross-reference to form 3-3 in this manual.
Chapter 23Tax Consequences of the Foreclosure Process
§ 23.1Introduction
Added sentence advising practitioners to refer to IRS publications and forms.
Chapter 24Foreclosures Resulting from Ad Valorem Taxation
§ 24.9Limitation Periods
Added discussion about taxpayer filing an affidavit of inability to pay.
Chapter 26Deceased Mortgagor Foreclosure Process
§ 26.3Notice of Mortgagor’s Death
Updated URL.
Correct quoted language throughout section.
§ 26.6Efforts by Survivors to Thwart Foreclosure by Delaying Probate
Added discussion about Mohensi v. Hartman.
§ 26.11:3Determination of Heirship
Added paragraph about amended Tex. Est. Code § 202.151.
Chapter 27Condominium Foreclosures
§ 27.5:3Other Remedies
Updated citations of quoted statutes.
Chapter 28HEL/HELOC Foreclosure Process
§ 28.8Order
Added reference to form 28-4.
Chapter 29Manufactured Housing Unit Foreclosure Process
§ 29.1Introduction
Added numerous paragraphs to this section.
§ 29.4Procedure to Perfect Lien on MHU as Real Property
Altered discussion about Application for Statement of Ownership and Location.
Updated URL.
Updated “TxDOT” to “TxDMV.”
§ 29.9Foreclosure of MHU as Real Property
Updated URL.
§ 29.11Conversion of MHU from Personal Property to Real Property
Updated URL.
§ 29.12Conversion of MHU from Real Property to Personal Property
Updated URL.
Chapter 30Property Owners’ Association Foreclosure Process
§ 30.2:2Opportunity to Cure
Added new first paragraph.
Added practice tip.
Chapter 32USDA Farm, Ranch, and Housing Loan Foreclosures
This chapter has been substantially reorganized.
§ 32.1Introduction
Substantially edited this section.
§ 32.3Farm Program Loans
Retitled section.
§ 32.3:1Goal
Expanded on section.
§ 32.3.2Persons Eligible for Loans
This section has been substantially rewritten.
§ 32.3.3Purpose of Loans
This is a new subsection.
§ 32.3.4Additional Collateral
This is a new subsection.
§ 32.3.5Debt Restructuring and Servicing
Added new first paragraph.
Added reference to 7 U.S.C. § 2001(o).
Chapter 33Servicemembers Civil Relief Act
§ 33.1Introduction
Updated URL.
Chapter 34Residential Evictions Following Foreclosure
§ 34.9:6Citation
Updated item 14 in the list.
§ 34.10:13Motion to Reinstate and Motion to Set Aside Default Judgment
Added discussion of Tex. R. Civ. P. 505.3(a).
§ 34.11Writ of Possession
Added discussion of Texas Rules of Civil Procedure 507 and 510.
Updated 2(d) in list.
§ 34.15Common Issues at Trial
Added new second paragraph.
Chapter 36Federal and State Foreclosure Assistance Programs
§ 36.3:2Notice to Homeowner
Updated URLs.
Changes to Forms
Chapter 1Attorney-Client Relations in the Foreclosure Process
Form 1-2Engagement Letter
Updated form.
Chapter 9Collection of Rent by Lender Before Foreclosure
Form 9-1Assignment of Leases and Rents
Minor language updates throughout form.
Form 9-2Texas Assignment of Rents Act Addendum to Deed of Trust
Minor language updates throughout form.
Form 9-3Notice to Pay Rents to Person Other Than Landlord [Original]
Minor language updates throughout form.
Added line for Assignee Address.
Form 9-4Notice to Pay Rents to Person Other Than Landlord [Modified]
Minor language updates throughout form.
Form 9-5Assignee’s TARA Inserts to Tenant Form Lease
Minor language updates throughout form.
Chapter 17Suits for Deficiency
Form 17-1Petition for Determination of Fair Market Value After Nonjudicial Foreclosure
Added new item 3 and renumbered subsequent items in list.
Chapter 26Deceased Mortgagor Foreclosure Process
Form 26-5Notice of Lien and Election of Preferred Status
Corrected statute citation in item 1.
Chapter 34Residential Evictions Following Foreclosure
Form 34-3Judgment of Possession
Added paragraphs about attorney’s fees and monetary damages.