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Eviction after a Foreclosure Sale in Texas

by Peggy Heller
Barrett Burke Wilson Castle Daffin & Frappier, L.L.P. — USFN Member (TX)

In Texas, if a property is occupied after a nonjudicial foreclosure sale, the lender may remove the occupant and his personal property by means of a writ of possession. Chapter 24 of the Texas Property Code and the deed of trust set forth the authority and requirements for an eviction lawsuit, commonly referred to as a “forcible detainer” or “FED.” In this state, a justice court has exclusive jurisdiction to hear an FED. A justice court is considered a grassroots or people’s court. Participants are not required to have legal counsel, and the judge does not have to be a lawyer.

After the Notice

After giving the occupants notice to vacate, a lender must file a sworn written complaint in the neighboring justice court. Justice courts are supposed to set FED hearings quickly, but are often unable or unwilling to do so. After the court grants judgment, it can issue a writ of possession after the expiration of five days. The constable or sheriff posts a 24-hour warning at the property. If the occupant does not vacate the property after the 24 hours, the constable or sheriff enters the property and removes the occupant and his belongings. The constable puts the belongings on the curb or, in some counties, the lender arranges for a moving company to put the personal property into storage.

Right to Appeal

An occupant has the right to appeal an eviction judgment from the justice court to the county court at law. Most justice court judges freely allow occupants to appeal to a higher court, thus creating additional expense for the lender and further delaying it from taking possession of the property. Perfection of an appeal to the county court cancels the justice court’s eviction judgment. This means that the lender must conduct a new trial and re-prove its entire case. Most Texas county courts are so busy that eviction appeal trials are delayed for months or are not set for trial without aggressive action by the lender. As in the justice court, after the county court grants judgment for possession, a writ of possession can issue after five full days.

Personal Property

Another typical problem after a foreclosure sale involves personal property left on the premises. Even where the utilities have been turned off, the grass is two feet high, and several neighbors report that the occupants have moved, a house is not deemed vacant if personal property remains on the premises. Sometimes, due to divorce, sickness, or job change, occupants slowly remove their belongings, perhaps only on weekends over a period of several months. If a lender changes locks or takes possession of the property without a writ of possession, it may be liable for damages for removal or destruction of personal property, and anything else that might occur because of a wrongful eviction. When personal property is involved, the safest route is to allow an occupant access to the property until the court grants a judgment and the constable executes the writ.

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Nov/Dec e-Update