Sec. 51.005. JUDICIAL OR NONJUDICIAL FORECLOSURE AFTER JUDGMENT AGAINST GUARANTOR--DEFICIENCY. (a) This section applies if:
(1) the holder of a debt obtains a court judgment against a guarantor of the debt;
(2) real property subject to a deed of trust or other contract lien securing the guaranteed debt is sold at a foreclosure sale under Section 51.002 or under a court judgment foreclosing the lien and ordering the sale;
(3) the price at which the real property is sold is less than the unpaid balance of the indebtedness secured by the real property, resulting in a deficiency; and
(4) a motion or suit to determine the fair market value of the real property as of the date of the foreclosure sale has not been filed under Section 51.003 or 51.004.
(b) The guarantor may bring an action in the district court in the county in which the real property is located for a determination of the fair market value of the real property as of the date of the foreclosure sale. The suit must be brought not later than the 90th day after the date of the foreclosure sale or the date the guarantor receives actual notice of the foreclosure sale, whichever is later. The fair market value shall be determined by the finder of fact after the introduction by the parties of competent evidence of the value. Competent evidence of value may include:
(1) expert opinion testimony;
(2) comparable sales;
(3) anticipated marketing time and holding costs;
(4) cost of sale; and
(5) the necessity and amount of any discount to be applied to the future sales price or the cash flow generated by the property to arrive at a fair market value as of the date of the foreclosure sale.
(c) If the finder of fact determines that the fair market value is greater than the sale price of the real property at the foreclosure sale, the persons obligated on the indebtedness, including guarantors, are entitled to an offset against the deficiency in the amount by which the fair market value, less the amount of any claim, indebtedness, or obligation of any kind that is secured by a lien or encumbrance on the real property that was not extinguished by the foreclosure, exceeds the sale price. If no competent evidence of fair market value is introduced, the sale price at the foreclosure sale shall be used to compute the deficiency.
(d) Any money received by a lender from a private mortgage guaranty insurer shall be credited to the account of the borrower before the lender brings an action at law for any deficiency owed by the borrower. However, the credit required by this subsection does not apply to the exercise by a private mortgage guaranty insurer of its subrogation rights against a borrower or other person liable for any deficiency.
Added by Acts 1991, 72nd Leg., ch. 361, Sec. 1, eff. June 5, 1991.
Notes of Decisions
Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267 (Tex. App. 2004).
· cites it 4× “See Tex. PROp.Code Ann. § 51.005 (Vernon 1995) (allowing guarantor to challenge fair-market value of property sold in non-judicial foreclosure sale as prelude to seeking offset from deficiency amount).”
Mays v. Bank One, N.A., 150 S.W.3d 897 (Tex. App. 2004).
· cites it 6× “Specifically, Mays argues he is entitled to a determination by the trial court of the fair market value of real property securing the promissory note debt, pursuant to Texas Property Code section 51.005. This analysis is complicated by the fact that Bank One did not foreclose on…”
Long v. NCNB-Texas Nat'l Bank, 882 S.W.2d 861 (Tex. App. 1994).
“” Tex.Prop. Code Ann. § 51.005(b). The legislature clearly envisioned the prospect of guarantors defending suits for deficiency after they received no notice of the foreclosure sale.”
Daniel Mandarino, Carrie Mandarino, Laura Doyle, Robert Church, Brett Beals & Linda Beals as Trs. of the Beals Fam. Revocable Trust, Robert A. Schalbe, William H. Gay, Jr., Riccardio D. Gay, Eric Johnstone, Rafal Zielinski & Vally Mestroni v. Sherwood Lane Investments, LLC (Tex. App. 2015).
· cites it 2× “2, 3, 8, 35, 40-43 Tex. Prop. Code § 51.005. . . . . . . . .”
Daniel Mandarino, Carrie Mandarino, Laura Doyle, Robert Church, Brett Beals & Linda Beals as Trs. of the Beals Fam. Revocable Trust, Robert A. Schalbe, William H. Gay, Jr., Riccardio D. Gay, Eric Johnstone, Rafal Zielinski & Vally Mestroni v. Sherwood Lane Investments, LLC (Tex. App. 2016).
“The appellant aimed to use the property’s fair market value to offset the claimed deficiency under Texas Property Code section 51.005, which only applies after a foreclosure sale results in a deficiency.”
— Tex. Prop. Code § 51.005(a) — 1 case
— Tex. Prop. Code § 51.005(a)(1) — 2 cases
— Tex. Prop. Code § 51.005(a)(4) — 1 case
— Tex. Prop. Code § 51.005(b) — 2 cases
Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267 (Tex. App. 2004).
“See Tex. PROp.Code Ann. § 51.005 (Vernon 1995) (allowing guarantor to challenge fair-market value of property sold in non-judicial foreclosure sale as prelude to seeking offset from deficiency amount).”
Long v. NCNB-Texas Nat'l Bank, 882 S.W.2d 861 (Tex. App. 1994).
“” Tex.Prop. Code Ann. § 51.005(b). The legislature clearly envisioned the prospect of guarantors defending suits for deficiency after they received no notice of the foreclosure sale.”
— Tex. Prop. Code § 51.005(b)(1) — 1 case
— Tex. Prop. Code § 51.005(b)(l)(5) — 1 case
— Tex. Prop. Code § 51.005(c) — 1 case
Mays v. Bank One, N.A., 150 S.W.3d 897 (Tex. App. 2004).
“Specifically, Mays argues he is entitled to a determination by the trial court of the fair market value of real property securing the promissory note debt, pursuant to Texas Property Code section 51.005. This analysis is complicated by the fact that Bank One did not foreclose on…”
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