Texas Servicing Reference Guide
- Kacey Olson
| Citation | Topic | Requirement |
| Rules of Civil Procedure / Tex. R. Civ. Proc. Rule 736.13 | Affidavit in Support of Petitioners Application | Include an affidavit of material facts in accordance with Rule 166a(f) signed by the petitioner or the servicer describing the basis for foreclosure and, depending on the type of lien sought to be foreclosed, attach legible copy of: (A) the note, original recorded lien, or pertinent part of property owners' association declaration establishing the lien, and current assignment of the lien, if assigned; (B) each notice required to be mailed to any person under applicable law and the loan agreement, contract, or lien sought to be foreclosed before the application was filed and proof of mailing of each notice; and (C) for transferred or property tax lien or contract, the sworn document and certified statement attesting to the transfer of the lien. |
| Rules of Civil Procedure / Tex. R. Civ. Proc. Rule 736.1. | Application for an Expedited Order - Filing | An application for an expedited order allowing the foreclosure of a lien listed in Rule 735 to proceed must be filed in a county where all or part of the real property is encumbered and may not be filed until the opportunity to cure has expired. |
| Rules of Civil Procedure / Tex. R. Civ. P. Rule 735/736 | Application for ab Expedited Order - Required Content | Required Contents of Application and Affidavit Though applicants have always been required to attach a supporting affidavit with evidence proving up the existence of a default, the rules now specifically require that the application describe or state as of a date not more than 60 days prior to the date the application is filed: 1) number of months in default; 2) amount required to cure the default, and; 3) the amount required to pay off the lien. If the default is non-monetary, the affidavit must establish the facts creating the default. In addition, documents establishing the lien, including any necessary assignments, must be attached to the affidavit. Finally, legible copies of all required notices and associated proofs of mailing must also be attached to the supporting affidavit. |
| Finance Code / Tex. Fin. Code Ann. §307.052(a) | Collateral Protection Insurance Notice | A lender who requires insurance on the property paid for by a borrower may place collateral protection insurance this notice has been issued or included in the loan agreement. The lender must mail a notice to the borrower no later than 31 days after the date collateral protection insurance is charged to the borrower, by prepaid, first class mail |
Complaints Notice | A servicer must provide to the borrower of each residential mortgage loan this disclosure no later than 30th day after the servicer begins servicing the loan. | |
| Rules of Civil Procedure / Tex. R. Civ. Proc. Rule 736.13 | Declaration in Support of Petitioners Application | An affidavit or declaration of material facts describing the basis for foreclosure must be attached to the application. |
| Tex. Prop. Code Ann. §51.004 | Deficiency Judgment | (b) Any person obligated on the indebtedness, including a guarantor, may bring an action in the district court in the county in which the real property is located for a determination of the fair market value of the real property as of the date of the foreclosure sale.  The suit must be brought not later than the 90th day after the date of the foreclosure sale unless the suit is brought by a guarantor who did not receive actual notice of the sale before the date of sale, in which case the suit must be brought by the guarantor not later than the 90th day after the date the guarantor received actual notice of the sale.  The fair market value shall be determined by the finder of fact after the introduction by the parties of competent evidence of the value. |
| Tex. Busi. and Commerce Code. Ann. §22.006 | Distribution of Proceeds of Sale | (a) The trustee or substitute trustee shall ensure that funds received at the sale are maintained in a separate account until distributed. The trustee or substitute trustee shall cause to be maintained a written record of deposits to and disbursements from the account. (b) The trustee or substitute trustee shall make reasonable attempts to identify and locate the persons entitled to all or any part of the sale proceeds. (c) In connection with the sale and related post-sale actions to identify persons with legal claims to sale proceeds, determine the priority of any claims, and distribute proceeds to pay claims, a trustee or substitute trustee may receive: (1) reasonable actual costs incurred, including costs for evidence of title; (2) a reasonable trustee's or substitute trustee's fee; and (3) reasonable trustee's or substitute trustee's attorney's fees. (d) A fee described by Subsection (c): (1) is considered earned at the time of the sale; (2) may be paid from sale proceeds in excess of the payoff of the lien being foreclosed; and (3) is conclusively presumed to be reasonable if the fee: (A) is not more than the lesser of 2.5 percent of the sale proceeds or $5,000, for a trustee's or substitute trustee's fee; or (B) is not more than 1.5 percent of the sale proceeds, for trustee's or substitute trustee's attorney's fees incurred to identify persons with legal claims to sale proceeds and determine the priority of the claims. (e) A trustee or substitute trustee who prevails in a suit based on a claim that relates to the sale and that is found by a court to be groundless in fact or in law is entitled to recover reasonable attorney's fees necessary to defend against the claim, which may be paid from the excess sale proceeds, if any. (f) Nothing in this section precludes the filing of an interpleader action or the depositing of funds in a court registry. |
Civil Practice & Remedies Code / Tex. Civ. Prac. & Rem. Code Ann. §17.031 | Expedited Foreclosure Proceeding Notice | For a power of sale exercised by the filing of an application for an expedited court order allowing the foreclosure of a contract lien under the Tex. R. Civ. Proc. Rule 736, service of citation must be completed in accordance with expedited foreclosure proceeding rules. |
| TX Secondary Mortgage Loan Act | Tex. Fin. Code Ann. §342.302(c) | Late Payment Fees | Sec. 342.302. ADDITIONAL INTEREST FOR DEFAULT: REGULAR TRANSACTION OR TRANSACTION INCLUDING SIMPLE INTEREST. (a) A secondary mortgage loan that includes precomputed interest and that is a regular transaction may provide for additional interest for default if any part of an installment remains unpaid after the 10th day after the date on which the installment is due, including Sundays and holidays. (b) A secondary mortgage loan contract that uses the scheduled installment earnings method and that is a regular transaction may provide for additional interest for default if any part of an installment remains unpaid after the 10th day after the date on which the installment is due, including Sundays and holidays. (c) The additional interest for default under this section may not exceed five cents for each $1 of a scheduled installment. (d) Interest under this section may not be collected more than once on the same installment. (e) A secondary mortgage loan that includes simple interest may provide for additional interest for default if any part of an installment remains unpaid after the 10th day after the date on which the installment is due, including Sundays and holidays. |
| Property Code / Tex. Prop. Code Ann. §51.002 | Notice of Default | A mortgage servicer must send a debtor in default under a deed of trust or other contract lien on real property used as the debtor's residence with a written Notice of Default. The Notice of Default must be sent by certified mail. The Notice of Default must state that the debtor is in default under the deed of trust or other contract lien and give the debtor at least 20 days to cure the default. A Notice of Sale may not be given until 20 days after a Notice of Default is provided. The notice must state the name and address of the sender of the notice and contain a statement that is conspicuous, printed in boldface or underlined type, and specific language. |
| Property Code / Tex. Prop. Code Ann. §51.002 | Notice of Default | A mortgage servicer must send a debtor in default under a deed of trust or other contract lien on real property used as the debtor's residence with a written Notice of Default. The Notice of Default must be sent by certified mail. The Notice of Default must state that the debtor is in default under the deed of trust or other contract lien and give the debtor at least 20 days to cure the default. A Notice of Sale may not be given until 20 days after a Notice of Default is provided. |
| General Provisions / Tex. Ins. Code Ann. §§3502.201 - 3502.203 | Notice of Right to Cancel Private Mortgage Insurance | A lender that requires a borrower to purchase mortgage guaranty insurance/private mortgage insurance must provide annually to the borrower a copy of this written notice printed in at least 10-point bold-faced type. |
| Property Code / Tex. Prop. Code Ann. §51.002 | Notice of Sale | Notice of a foreclosure sale must be given at least 21 days before the sale by: (1) posting at the courthouse door of each county in which the property is located a written notice designating the county in which the property will be sold; (2) filing in the office of the county clerk of each county in which the property is located a copy of the notice; and (3) serving written notice of the sale by certified mail on each borrower who, according to the records of the mortgage servicer of the debt, is obligated to pay the debt. The notice must state the name and address of the sender of the notice and contain a statement that is conspicuous, printed in boldface or underlined type, and specific required wording. |
| Rules of Civil Procedure / Tex. R. Civ. P. Rule 647 | Notice of Sale | NON-JUDICIAL- Notice of a foreclosure sale must be given at least 21 days before the sale. JUDICIAL - The Notice of Sale must be published in the English language once a week for 3 consecutive weeks prior to the date of the sale. The Notice of Sale must be published in some newspaper published in the county where the property is situated. The first date of publication may not appear less than 20 days immediately prior to the date of the sale. |
Assignment of Rents to Lienholder / Tex. Prop. Code Ann. §64.055 | Notice to Pay Rents to Person other than Landlord | After default, or as otherwise agreed by the assignor, the assignee may give to a tenant of real property that is subject to an assignment of rents a notice demanding that the tenant pay to the assignee all unpaid accrued rents and all unaccrued rents as they accrue. |
OCCC Notice (Complaints & Inquiries Notice/Written Contract Disclosure) | This notice must be given by the licensee in the language in which a transaction is conducted to let borrowers know how to file complaints. It must be given with each privacy notice and must also be included in any written contract. | |
| Tex. Prop. Code Ann. §51.015 | Special Rules for Service Members | (d) A sale, foreclosure, or seizure of property under a mortgage, deed of trust, or other contract lien described by Subsection (b) may not be conducted during the military servicemember's period of active duty military service or during the nine months after the date on which that service period concludes unless the sale, foreclosure, or seizure is conducted under: (1) a court order issued before the sale, foreclosure, or seizure;  or (2) an agreement that complies with Subsection (e). |