Real Estate, Business, Wills and Probate
With a focus on real estate law, the firm of Anderson, Bright and Associates PC in El Paso, Texas, has, since 1993, been helping families and small businesses pursue their dreams of home and business ownership in the El Paso-Juarez-Las Cruces area.
The firm's practice has expanded to the representation of financial institutions, title companies, real estate agencies, REALTORS and private lenders.
Q: Recently I spoke at a seminar and an owner of numerous notes secured by real estate, came to me and inquired about an issue with respect to one of his recent foreclosures. He indicated his notes were secured by deeds of trust on real estate. And, the deeds of trust all contain addresses for his debtors. One of his debtors had become past due under his note and after numerous attempts to bring the debtor current, this man foreclosed on the real estate secured by the deed of trust. This man is now being threatened to be sued for a wrongful foreclosure. The essential allegation is that the notices of foreclosure were not sent to the correct address of the debtor. He stated “I sent the notices to the address contained in the deed of trust by certified mail.” He asked “Isn’t this the correct address to use for my foreclosure?” He stated further, “This is the address the debtor placed in the deed of trust.”
A: I explained, foreclosures in Texas are very technical. Property Code Section 51.002(b) requires that a notice of foreclosure be served by certified mail addressed to the debtor’s last known address. I asked him if he was ever given written notice of an address change for his debtor. He indicated he had not received written notice of an address change. His response, however, was a little tentative. I then asked him had he ever had any communication about a different address for his debtor. Reluctantly, he admitted that there were a series of texts between him and the debtor wherein the debtor indicated that he had moved. And, the debtor indicated to him that payments could be picked up at that new address. Prior to the debtor’s default and before the foreclosure, he admitted, that he had picked up a check at that new address. Unfortunately, I had bad news for him. I explained that a new case out of Houston was recently published describing very similar facts. The court concluded in that case, that the texts amounted to reasonable notice of the debtor’s change of address and that an address placed in a deed of trust is not automatically the correct address for the debtor. The Property Code, the court stated, clearly recognizes that addresses of debtor’s change. Thus, it appears that he did not use the correct address.
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