AFFIDAVIT FOR PARTIAL RELEASE OF LIEN FOR SALE OF HOMESTEAD
WHAT IS THE BEST SOLUTION?
Let’s say that you are selling your homestead and buying another. Through the course of either the qualification for the loan or in the title abstract search an old judgment is discovered. If you were never served or put on notice for this a Bill of Review/Suit to set Aside Void Judgment might be the ultimate answer but meanwhile you need to sell the house. The judgment may have been assigned to another creditor, the opposing attorney has changed jobs, and maybe the debt buyer has gone out of business. You may already have a closing date and don’t have the cash to pay off the judgment, and if it comes out the proceeds of the sale of your old homestead. Since you are in a hurry, your bargaining power is compromised. What is the solution?
A few years ago the Texas Legislature created a process to expedite this. An affidavit based on the statutory language in the Texas Property Code is generated. It is then mailed to the creditor at both the address in the court file, and the last known address, and the attorney of record at both the address in the court file and the last known address. All of these are sent via certified mail, return receipt requested. Once they are signed for, or come back unclaimed, a 30 day deadline is created. Meanwhile I will do research and make calls to find out who is currently servicing the debt and try to get a release that way. Ultimately if a partial release is not granted in the time, the affidavit is executed, and filed in the property or deed records of the county where your old homestead is. You may then proceed with the sale of your homestead.
The process can take some time, so the sooner that you know about old judgments, credit reporting errors and so forth the better. If you are considering the purchase of a new car or home pull a free copy of your credit from annualcreditreport.com. A link is provided on the resources page of my site.