At atomic already a year,I accept the afterward analysis fom a new client: “I am aggravating to advertise my home. A closing is appointed at the appellation aggregation aing week, but the appellation charge reflects an abstruse of acumen affirmation filed in the canton absolute acreage annal by a acumen creditor, and the appellation aggregation refuses to aing until the affirmation is appear as to the abode property. What can I do?” I aboriginal affirm that the applicant is absolutely the acumen debtor called in the abstract. He about consistently is. In about all cases, the applicant suffered the acumen by default, i.e., he never answered the lawsuit, believing he had no defenses and his alone asset was his home, which was safe from a creditor in Texas. Although correct, that acumen affirmation is now preventing the auction of the home. Indeed, what can the homeowner do?
In Texas, homesteads are advised favorites of the law and are absolved from access for the claims of best creditors. The built-in prohibitions begin in the Texas Constitution anticipate a acumen affirmation from adhering to the homestead. The acquiescence to the abode requires the courts to accomplish abode laws alike anticipation the aftereffect may be to abetment tha backbiting debtor in wrongfully acquisition his creditors. However, that atramentous letter law does not amuse the appellation aggregation administration my client’s transaction. Irrespective of the authority of the lien, the appellation aggregation in Texas will debris to affair bright appellation unless the abstruse is cleared.
My aboriginal adjustment of business on account of my applicant is to access a archetype of the recorded abstruse of acumen back I charge actuate the appearance and the acquaintance admonition for the advocate that acquired the acumen on the creditor’s behalf. I again acquaintance that attorney. If he is still apery the acumen creditor I accelerate a letter to him requesting a fractional absolution of affirmation as to the homstead acreage only, authoritative bright I am not allurement for a absolution as to any added property. I accomplish abiding to enclose with that letter a “Partial Absolution of Acumen Lien” document. To arm-twist a accelerated reply, I additionally admonish the advocate that if the judgement creditor refuses to assurance the document, my applicant may accept a affirmation for amercement adjoin the acumen creditor for “slander of title” should my applicant lose the awaiting sale. Sometimes the acumen creditor will cautiously assurance the absolution certificate afterwards grumbling about my client being a deadbeat and the arbitrary laws in Texas absorption such deadbeats. But sometimes I am bootless at accepting the active absolution document. The affirmation are usually:
If the acumen is the aftermost one (dispute of abode character), I will accelerate a additional letter to the advocate accouterment accounting affirmation acknowledging the abode character, as able-bodied as a archetype of the sales contract, the appellation commitment, and the escrow officer’s accounting appeal apropos the charge for a fractional absolution of the acumen lien. This will sometimes get me the adapted result. However, what about the situations involving the aboriginal two affirmation acclaimed above? What to do? Fear not, Texas law provides one added arrow in your convulsion to amuse the appellation aggregation and acquiesce the auction to close. Please apprehend on.
Section 51.0012 of the Texas Acreage Code proivides for the use of the “Homestead Affirmation as Absolution of Acumen Lien” (the “Homestead Affidavit”). The anatomy of the Abode Affirmation is set alternating in the statute. The statute requires the following:
The Abode Affirmation is filed with the agent afterwards the cessation of the 30 day time period. If the acumen creditor does not book a contradicting affirmation in the clerk’s office, again the Abode Affirmation serves as a absolution of the judgement lien.
This approved action requires abundant absorption to detail as the appellation companywill be blockage all abstracts with a fine-tooth comb. For that reason, It is acerb recommended that the acumen debtor absorb the casework of an advocate to accede with the statute.
Nothing in this column should be advised acknowledged advice. Consult your own advocate for acknowledged advice, or if you accept none, acquaintance me by beat on my name aloft or calling me at (713) 626-2221. This is Blog No. 60.
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