Eviction after Foreclosure: When is Three Days NOT Three Days

By Anthony Read

Your homestead has been sold at foreclosure sale.  You have received a three day “notice to vacate” that says you have three days to move.  How long do you have?

First, not just three days.

An aside about time.  In the eviction context, weekends count as regular days.  If you are counting five days and Saturday and Sunday are included, they count.  The only exception is if the end day is on the weekend or a holiday – then it is moved to the first workday.

When you read the notice carefully, it says if you do not vacate in three days, the new owner will file suit in the Justice of the Peace Court to have you evicted.  They can’t file that suit until you have had three days from receipt of notification.

On the fourth day (if they are on top of things), the new owner can file a law suit to have you evicted.  You will be served with this suit – called a Forcible Detainer (“FD”). Often, depending on the Justice of the Peace (“JP”) Court, you will have a court date and time included in the citation saying you’ve been sued.  The date usually gives you six days before trial.

At trial, the owner (or, most likely, their lawyer) will present a case for your eviction.  You have the opportunity to present your case against eviction.  As an aside here, having a lawyer is awfully handy in this situation (especially if you hire one before the foreclosure).

If the owner does not present a proper case or you rebut their case, the judge will dismiss the FD.  You stay in your house until the new owner refiles and retries and wins.

If the owner wins, they have to wait five days (except as discussed below) before asking for a writ of possession for the constable to evict you.  When the constable gets the writ and has time to serve it, you are given a very real 24 hour notice to vacate.  If you do not vacate, the constable will direct all possessions and persons be removed from the property.

Another route exists to the process.  First, you make sure when you have your trial that you ask the judge to set an appeal bond.  The appeal bond allows you to appeal to the County Court at Law (“CCL”). To stop the issuance of the writ of possession, you must post the bond at the JP before the end of the fifth day and file a notice of appeal.

If you cannot pay the bond amount, you can file a “pauper’s affidavit” attesting to the inability to pay the appeal bond within five days of the court’s decision (same as the bond).  The owner is notified and has five days to contest your pauper’s affidavit.  Should the owner win, you can appeal the decision to the CCL but that is outside the scope of this article.

Assuming you either pay the bond or are successful with your pauper’s affidavit, the JP court will forward the record to the CCL (this can take days or weeks).  Once the CCL has the record, you will be sent a letter giving you twenty days to pay the fee (unless you were successful with a pauper’s affidavit). If you didn’t file a written answer to the FD law suit, you have eight days to do so.

Once this is complete, the CCL will set a trial date sometime in the future.

If you win at this level, the owner can appeal to the Third Court of Appeals or completely re-do the process starting with the JP Court.  If you lose at this level, you can appeal to the Third Court of Appeals.  The Third Court appeal requires bond and is beyond the scope of this article.

If you do lose and do not appeal, you have ten days before a writ of possession can be obtained by the owner.  Once the writ is issued, the constable will place the 24 hour notice and you will have 24 hours to vacate.

This article shows that the three days isn’t really three days.  Eviction after foreclosure is a complicated process that can take weeks instead of a few days if you follow the proper steps.