Foreclosure is the final remedy that a lender has in the State of Texas to enforce their rights in a property. Sometimes there are errors or fraud that occur in the foreclosure process. A common scenario is that consumer feels they are working with their lender in a modification process and the lender still forecloses on the property. If the property is foreclosed upon the consumer may not necessarily receive the property back unless:
- The lender still has control of the property at the time a lawsuit is filed. This means that another investor did not purchase the property at the foreclosure auction.
- Where the property was sold for unpaid taxes, there is a 2 year redemption period for homestead property and 6 months for non-homestead property
- If a homeowners association forecloses an assessment lien, Texas Property Code Sec. 209.011 provides that the homeowner may redeem the property until no “later than the 180th day after the date the association mails written notice of the sale to the owner and the lien holder under Sec. 209.101.” A lien holder also has a right of redemption in these circumstances “before 90 days after the date the association mails written notice . . . and only if the lot owner has not previously redeemed.” Note that an HOA is not permitted to foreclose on a homeowner if its lien is solely for fines assessed by the association or attorney´s fees. These provisions are part of the Texas Residential Property Owners Protection Act designed to reign in the once (and continuing) arbitrary power of HOA´s (Chapter 209 of the Code).
Wrongful Foreclosure Lawsuits
Even if it is not possible to keep the property it may be worthwhile to file a wrongful foreclosure lawsuit against the lender to recoup money lost and possibly win money for damages. Filing a lawsuit early is best so that a lis pendens can be placed in public record letting everyone know there is a dispute on the real property. This may stop the lender from selling the property while the dispute is being litigated.
Some of the main reasons a wrongful lawsuit is filed are:
- Improper Notice of Default and right to cure. A lender must first tell a consumer they are in default (not current on the mortgage) and then give them the opportunity to pay what is owed to be current
- Improper Notice of Foreclosure. A lender must send at least 21 days in advance of the foreclosure date a letter via certified mail, return receipt requested and regular mail a notice of the foreclosure.
- Improper Foreclosure process
- Lender made an inappropriate bid at the foreclosure auction
- The lender did not have the right to foreclose upon the home. This is often called the “show me the note” lawsuit that alleges that the lender did not have proper ability and right to foreclose.
- CFPB Violations. Since 2014, consumers have new rights bestowed by the Consumer Finance Protection Bureau (CFPB) that may hinder the lender in foreclosing and or add necessary documentation to foreclose.
We offer aggressive representation at reasonable rates. We do not usually accept contingency cases on wrongful lawsuit cases. Our usual retainer is $3,500.00 for this type of case.
If you feel that you have been a victim of wrongful foreclosure please contact us today. Call (713) 636-5215 or email [email protected]