Legal Memorandum: Notice Requirements for Foreclosure Sale of Property

Issue: WHAT NOTICE IS REQUIRED UNDER TEXAS LAW, FOR THE FORECLOSURE SALE OF A PROPERTY BY A TRUSTEE UNDER DEED OF TRUST?

The foreclosure sale of property by a trustee under a deed of trust is subject to two notice requirements: those contained in the deed of trust, if any, and those prescribed by law.  According to the Supreme Court of Texas:  “Compliance with the notice condition contained in the deed of trust and as prescribed by law is a prerequisite to the right of the trustee to make the sale.” Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 768 (Tex. 1983) (citing Goode v. Davis, 135 S.W.2d 285, 292 (Tex. Civ. App.—Fort Worth 1939, writ dism’d judgm’t cor.); Childs v. Hill, 20 Tex. Civ. App. 162, 49 S.W.2d 652 (1898, no writ)); see also WTFO, 899 S.W.2d at 720 (before a holder of a debt is entitled to a judgment for a deficiency, it must prove that a valid foreclosure sale was held, following the notice provisions prescribed by law); National Commerce Bank v. Stiehl, 866 S.W.2d 706, 708 (Tex. App.—Houston [1st Dist.] 1993, no writ) (compliance with notice conditions in a deed of trust and as prescribed by law is a prerequisite of a trustee to make a foreclosure sale).  Defendant is entitled to summary judgment, only if there exists no issue of material fact as to whether Plaintiff received proper notice under the deed of trust and as prescribed by Texas law.

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