Due to precautions related to COVID-19, we have expanded our options for remote consultations. Please contact our office to discuss whether a full phone consultation or video conference is appropriate for your situation.
Oliva, Saks, Garcia & Curiel, LLP | Matthew J. Obermeier | attorneys & Counselors at law
Visa | MasterCard | American Express | Discover Network
Main Navigation
Call for Your Initial Consultation
210-296-5828 / 800-820-1664
Practice Areas

What's a foreclosure by power of sale?

Texas foreclosure proceedings don't go through the court in most cases. Instead, most foreclosure proceedings are "nonjudicial foreclosures." This that the lender can take advantage of a "power of sale" clause contained within the mortgage, which permits the foreclosure of the property with less court oversight. If no power of sale clause is present, a judicial foreclosure will be necessary.

Let's take a look at the advantages and disadvantages of foreclosure by power of sale:

  • It's considerably faster.
  • It involves less oversight by the court, but it may require a judicial review -- especially if the court needs to resolve an issue related to the title.
  • A foreclosure by power of sale cannot move forward if the mortgage is an absolute deed.
  • The mortgage holder might not be able to seek a deficiency judgment in some jurisdictions.

Foreclosures by power of sale legislation may not be constitutional in terms of state laws governing notice requirements. Limited notice required for foreclosures by power of sale in some states has been called into question on various occasions. Generally, when the lawsuits involve lack of notice relating to residential foreclosures, the challenges don't gain traction. However, the lawsuits have fared better with the mortgage holders were government entities.

If your home is being foreclosed, it doesn't matter what kind of foreclosure is being conducted. You need to act fast if you want to try and prevent the loss of your residence. Ultimately, there may be some viable strategies that you can employ to try and keep your home and try to stop foreclosure in its tracks.

Source: FindLaw, "Foreclosure by power of sale," accessed Nov. 24, 2017

No Comments

Leave a comment
Comment Information