Americas Serving Company is working on a modification for our mortgage. They refuse any payments until this is complete but had an attorney file a citation for foreclosure. Never had to go through this in my life. How do I respond with a written answer? Is this legal for them to do this? Thank you for your help.
There are generally two ways banks make loans secured by real estate in Texas: Deeds of Trust and Home Equity Contracts. The answer depends on which you have. Typically Deeds of Trust have a power of sale which allows for non-judicial (don't have to go to court) foreclosure where the trustee( usually an attorney) sends some notices and if the defaults are not cured the property is auctioned off on the courthouse steps on the first Tuesday of the month. This would require a restraining order and petition filed by you or bankruptcy to stop. The Home Equity Contract requires a Judge to Order the sale in an expedited trial pursuant to TRCP 736. Unless a written response is filed which meets TRCP 736 requirements prior to the hearing or a petition challenging the sale is filed the Judge will most likely order the sale. These can be tricky to handle on your own and most self represented litigants fail. Its best to see a real estate attorney with some experience with foreclosure defense.