Many times people who have lost their homes to foreclosure refuse to vacate. Their continued possession of the property poses obvious problems for the purchaser at the foreclosure or trustee's sale because, as former owners, they have no lease and no obligation to pay rent. In addition, former owners are frequently hostile and resentful of the fact that the foreclosure occurred. This resentment can result in purposeful damage to the property or a "hunkering down" mentality characterized by a refusal to accept the validity of the foreclosure or the Substitute Trustee's Deed conveying the property to a new owner.
Lawyers or organizations offering "foreclosure relief," "foreclosure assistance" or "foreclosure mitigation" services typically seek to prevent foreclosure by identifying alleged defects in the foreclosure process. When reliance upon these alleged deficiencies does not successfully stop a property from being foreclosed, the next step is usually the filing of a "wrongful foreclosure" lawsuit that claims that the Substitute Trustee's Sale was somehow void or improper and should be reversed. Sometimes the new owner of the property is joined as a Defendant in such a lawsuit.
When the new owner of the foreclosed property (most frequently the purchaser at the Trustee's Sale) cannot get the prior (now-foreclosed) owner to vacate or surrender possession, there is no option but to commence an eviction suit. Almost like clockwork, the former owner will assert that the Justice Court cannot hear the eviction suit because such a suit implicates title to the property, and in Texas, jurisdiction to consider title is reserved for the district courts. Thus, the argument goes, a determination of possession cannot be made without also determining title, and this determination cannot be made in the context of an eviction case pending in the Justice Court.
Texas courts of appeals have repeatedly considered and rejected this argument.
Instead, courts have relied upon the language contained in the prior owner's Deed of Trust to hold that the foreclosure sale separates the issue of title from that of a right of possession. This holding typically turns on language in the Deed of Trust whereby the Borrower (the former owner) agrees that
"if the Property is sold pursuant to [the acceleration and remedies section of the Deed of Trust], Borrower or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession or other court proceeding."
Given this agreement by the former owner (as Borrower), the foreclosure sale made him a "tenant at sufferance," and, accordingly, defects in the foreclosure process are IRRELEVANT and IMMATERIAL to the right of possession of a purchaser at such foreclosure sale.
If you are a purchaser of property at a Substitute Trustee's Sale / Foreclosure Sale who is required to evict a former owner, you should contact an experienced eviction lawyer.
