Procedural Violations

Every state will have a certain law or statute which details the procedure that a mortgage company must follow in order to foreclose on a property (usually it will be found in a state’s “Property Code”).  Not correctly following the proper procedures should give ground to prevent a foreclosure.  Some of the most common procedural requirements are:

  • Time and date of the sale – For example, Texas requires that every foreclosure conducted pursuant to a deed of trust be conducted between the hours of 10:00 a.m. and 4:00 p.m. on the first Tuesday of the month. 
  • Location of the sale – Texas requires that a sale occur at the county courthouse in the county in which the property resides, with the county commissioners to decide the location at the courthouse.
  • Foreclosure notice – Texas requires that notice be given of the foreclosure sale by posting a written notice at the courthouse in the county in which the property is located and by mailing a notice by certified mail, to each debtor.
  • Time for foreclosure notice – Texas requires the foreclosure notice be posted and mailed to each debtor at least 21 days before the date of the sale.
  • Place for foreclosure notice – Texas requires the foreclosure notice to be sent to each debtor at his/her “last known address.” 
  • 20-day notice of default – This notice is not required in all states, but Texas requires that before the foreclosure notice is posted and mailed, the lender must provide the debtor with a notice of default informing the debtor how much the debtor is behind and giving the debtor at least 20 days to cure the default before the lender can move forward with foreclosure proceedings.

These are certainly not the only procedural requirements a lender must follow in foreclosing on a property, but they are common requirements.  Any inaccuracy or failure to follow these requirements would be a procedural violation that should give grounds to stop a foreclosure (at least temporarily). 

It should be noted that successfully stopping a foreclosure based upon a procedural violation is not a permanent solution.  Whereas a bankruptcy would stop a foreclosure and provide a solution to getting current on the loan, this type of claim might simply stop the foreclosure.  Unless you have a follow-up plan in place to somehow get current on or pay off the loan, this would likely just require the lender to re-post the property for foreclosure and correct the error that prevented the foreclosure the first time around.

Because each state has different procedural and notice requirements relating to foreclosure, please seek out your state’s rules regarding foreclosure, or speak to a licensed attorney in your state.

Previous post:

Next post: