Get Out Of Debt

Introduction

Eviction (called “forcible entry and detainer” in Texas) is a process by which an owner recovers possession of real property and, if appropriate, a judgment for unpaid rent, attorney’s fees, and court costs against a tenant or occupant. Forcible detainer actions are held in Justice Court which has original jurisdiction over possession. The landlord’s objective is to gain a judgment and a writ of possession.

Foreclosure is the procedure by which a lender obtains both possession of and title to real property or, if the bidding is sufficiently high, liquidates its interest in the property entirely by means of a sale to a third party. Most foreclosures are non-judicial (ie., they occur without participation of a court) and are held on the first Tuesday of every month. The objective is to satisfy the debt and cut off all competing claims to or against the property.

Evictions

Evictions or “forcible detainer” actions are governed by Sec.

24.01 of the Texas Property Code. They are appropriate if there exists a landlord-tenant relationship (with or without a written lease) or if a person is occupying real property without authority to do so. After proper notice is given, the eviction must be filed with the Justice of the Peace in whose precinct the property is located. This Justice Court, and only this court, has original jurisdiction over possession of the property. At an eviction hearing, the judge determines which party has the superior right to possession and what damages (ie., back rent, attorney’s fees, and court costs), if any, will be awarded to the landlord. These are the only issues to be considered by the court. A counterclaim by the tenant, regardless of subject matter or merit, is not permitted. Legal actions by tenants may be brought by separate suit in Justice, County, or District Court.

Within 5 calendar days of judgment, the tenant can appeal to county court, with or without good reason, which results in the file being sent to the county courthouse where it will be heard as a new case. The Justice of the Peace will set an appeal bond, which may be waived if the tenant files an affidavit stating that he cannot afford the bond (also known as a “pauper’s oath” or “pauper’s bond”). Once an affidavit of this kind if filed, the landlord has the right to request a hearing and contest it, although it is generally pointless to do so – it is usually granted, and the file is turned over to the county court.

This appears unfair to the landlord; note, however, that if the pauper’s affidavit is granted, the tenant is then obliged to make monthly rental payments to the county court. Otherwise, if a cash or surety bond is posted, there is no requirement that the tenant pay rent while the appeal is pending. It is therefore good practice for the landlord’s attorney to file a motion requesting payment of rent into the court registry even if there is no pauper’s bond. A preferential setting should also be requested if the county court in question does not already automatically provide it for eviction cases. If the tenant is a professional deadbeat who has played this game before, the property can be tied up for several months.

If the tenant does not appeal within 5 days, the judgment of the Justice Court is final and the landlord may proceed to enforce the judgment by obtaining a writ of possession. This requires going to the county clerk’s office and paying a nominal fee. The constable will then usually post a notice on the tenant’s door allowing 48 hours to move out. After that, the constable may forcibly evict the tenant and put the tenant’s possessions in storage.

Foreclosures

Foreclosures may be judicial (ie., ordered by a court) or non-judicial (done without court involvement by auction “on the courthouse steps”).

The remedy of foreclosure is available to lenders if the borrower defaults. Defaults may be monetary or technical, ie., a breach of the covenants made by the borrower in the loan documents. In order to determine if there has been a “default,” the loan documents – the note, the deed of trust, the loan agreement, and so forth – must be carefully consulted. Specified notice and other requirements must be followed if the foreclosure is to be valid.

Non-judicial foreclosures are governed by Sec. 51.002 et seq. of the Texas Property Code. Foreclosures are conducted on the first Tuesday of each month between the hours of 10:00 a.m. and 4:00 p.m. at the courthouse of the county in which the property is located. Notices must specify a 3 hour period during which the sale will take place. At least two certified mail notices are usually required, a “Notice of Default and Intent to Accelerate” which affords an opportunity for the borrower to cure the default (at least 20 days for a homestead, although if the deed of trust is on the FNMA form, 30 days notice of default should be given); and a “Notice of Acceleration and Posting for Foreclosure” (at least 21 days before the sale date). “Acceleration” is defined as the declaration by the lender that the entire amount of an installment debt is now fully due and payable.

Both notices are addressed to the last known address of the borrower contained in the lender’s records, but it is wise for the lender to double-check this to avoid later claims by the borrower that notice was defective. It is prudent to send the notices by both first class and certified mail. The content of foreclosure notices is technical and must be correct to insure a valid foreclosure that cannot later be attacked by a wrongful foreclosure suit.

In all foreclosures, the lender should consider doing a title search to ascertain, among other things, if there is an IRS lien. If so, the IRS must be notified 25 days prior to the foreclosure sale if that lien is to be removed. Otherwise, the IRS lien will survive the foreclosure. Stewart Title Services and other title companies do these searches or “down dates” for a modest fee.

In order to determine a fair bid price for the property, the lender may wish to order a broker’s price opinion (BPO). Otherwise, the lender often bids the amount of the debt plus accrued fees and costs.

The effect of the foreclosure is to cut off and eliminate all junior liens, including mechanic’s liens.

If the price at which the property is sold a foreclosure is less than the unpaid balance on the loan, resulting in a deficiency, a suit may be brought by the lender to recover this deficiency any time within 2 years of the date of foreclosure. Federally insured lenders have 4 years. As part of a defense to a deficiency suit, the borrower may challenge the foreclosure sales price if it is below fair market value, and receive appropriate credit if it is not. Any money received by a lender from PMI (private mortgage insurance) is credited to the account of the borrower. One case states that the purpose of this “is to prevent mortgagees from recovering more than their due.”

Lenders generally bid the amount of the debt and often acquire the property in this way. If the sale generates proceeds in excess of the debt, the trustee must distribute the excess funds to other lienholders in order of seniority and the remaining balance, if any, to the borrower.

Compared to other states, Texas is fortunate to have a streamlined non-judicial foreclosure process that takes only a minimum of 41 days (although good lawyers never cut it that close). The advantage for the foreclosing party is that there are no effective defenses to this process except for the borrower to block it with a temporary restraining order or file bankruptcy. For either option, the buyer needs money and an attorney.

Suits for Wrongful Foreclosure

A suit for “wrongful foreclosure” can be filed if there are grounds for alleging that the loan documents (ie., the note and deed of trust) were defective in some way; if the notices leading up to the foreclosure were defective; or if there was some impropriety in the sale itself.

As a general rule, it is more effective to obtain a TRO to stop a foreclosure in the first place. Texas law favors the finality of foreclosures, making wrongful foreclosure suits an uphill battle. Note also that if the property was sold to a third party (ie., the lender did not acquire it) there is little chance that the borrower will get the property back. The borrower’s remedy will likely be limited to monetary damages.

If a wrongful foreclosure suit is being considered, it should be filed quickly so that notice of the suit (called a “notice of lis pendens”) can be filed in the real property records. If the lender was the successful bidder, this notice may result in effectively preventing the lender from transferring the property to a “bona fide purchaser” (a third party who does not have notice of the borrower’s claims). Again, once that transfer takes place, it is unlikely that the borrower will ever recover the property.

Post-Foreclosure Eviction

After the foreclosure is finished, it may still be necessary to evict the borrower in the usual way. If the borrower continues in possession, the owner must give the usual 3 day notice to vacate, file a forcible detainer petition in justice court, get it served, get it heard by the Justice of the Peace, and then wait 5 days for a final judgment and a writ of possession. The lender must then wait until the constable makes time to post a 48 hour notice on the door and then forcibly remove a borrower who is otherwise unwilling to leave. Elapsed time? Three to four weeks at best.

Right of Redemption

Finally, there is no right of redemption after a Texas foreclosure unless the property was sold for taxes (2 years for homestead, 6 months for non-homestead).

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1.

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2.

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Momentum trades are by far the safest and most stable trades to make in Forex. Momentum is based on the theory that a market in motion tends to stay in motion; meaning that if a market has finally gained up enough steam to head in a specific direction then it will tend to remain moving in that direction. Moreover it will take a decent surge of counter pressure to get that market to turn around.

The theory is simple of course, as all theories are, but the practice would be much harder if it were not for one of the most beautiful trading tools called the stochastic indicator. The stochastic is nothing more that a momentum indicator that can give advanced warnings of a market that is weakening in its resolve to continue in its current direction.

How It Works

The stochastic is a set of at least two lines with the title %K and %D. These two lines have differing sensitivities to market fluctuations, with %K being the most sensitive. These lines are plotted on a scale from 1%-100%, with 100% being the highest possible value. There are many ways to use these lines as market triggers but here are the top 2.

First is an overbought and oversold indicator. When the lines on a stochastic indicator move below the 20% range or above the 80% range these are triggers of a market being over bought or over sold. A simple trade would be to purchase when the stochastic breaks out from being below 20% and moves upward. The opposite would be equally true. When the indicator breaks out downward from 80% would be a time to sell short, or exit a long position.

Secondly is trading the crossovers of the lines. As you recall there are two lines in a stochastic indicator (%K and %D). When these lines cross there is good reason to suspect that a market trend is about to change. Now this alone can be a great trigger for trading in or out of a Forex position. However when combined with the ranges mentioned above you have a more sure thing. Waiting till a stochastic falls below the 20% mark AND crosses the other line can yield a high probability trade. The opposite is of course true when the indicators are both in the 80% or better range.

Used as timing indicators, stochastics can be a real help to timing Forex market positions and they are best served when used in conjunction with other indicators, either fundamentals (economic conditions) or technical (classical chart patterns).