10.12 Judicial Proceedings

10.12.1

In General

Errors or irregularities contained in judicial proceedings make the judicial proceedings subject to two different categories of attack: direct and collateral.

A direct attack is a continuation of the original proceeding which decided the issue involving the real estate. A collateral attack involves a separate proceeding. The difference between these two kinds of attack is extremely important. Methods of direct attack usually have time limits. On the other hand, collateral attack usually has no time limits and is used to relitigate the issue decided by the first court.

Examination of court proceedings requires complete knowledge of local and federal procedural statutes and regulations.

10.12.2

General Guidelines For The Examination Of Judicial Proceedings

  • Lis Pendens Notice

    Does state law require the filing of a lis pendens notice at the time or within a specified time after the filing of the complaint?
  • If required, has it been properly and timely filed?
  • Please review 11.24 Lis Pendens for discussion of orders expanding lis pendens.
  • Jurisdiction Over the Subject Matter

    Is the court empowered by statute to adjudicate the subject matter of the controversy at issue? No state court has jurisdiction over land located in another state.
 
  • Necessary Parties Defendants

    Have all the necessary parties been named as defendants?

    Have considerations been given to whether it is necessary to name as defendants the:
    • Owners spouses?
    • Parties in possession and persons under whom they claim?
  • Special Parties as Defendants

    Has it been considered that when naming any of the following parties as defendants, it is necessary to conform with certain other procedural regulations and requirements?  Guardians, including guardians ad litem, may be required.
    • Incompetents
    • Minors
    • Persons under disabilities
    • Convicts
    • Personal representatives
    • Guardians
    • Conservators
    • Trustees and beneficiaries under trust agreements
    • Unborn persons
    • Unknown owners
    • Deceased persons
    • Estates
    • Heirs, devisees, legatees
    • Personal representatives, executors, administrators
    • U.S.A
    • States
    • Quasi-public corporations
    • Churches and associations, either incorporated or unincorporated
    • Lessees and tenants in possession
    • Judgment creditors
    • Corporations, partnerships
    • Defunct corporations and stockholders
    • Trustees in bankruptcy
    • Register or recorder of deeds
 
  • Jurisdiction Over the Parties

    Have all the necessary defendants been served with notice of the action in conformance with the constitutional due process requirements?
 
  • Kind of Service of Process

    Does the kind of service comply with the Texas procedures?
    • Personal services
    • Substituted service
    • Service by mail
    • Service on a registered agent
    • Service by publication
    • Service outside the state
 
  • Affidavit of Service

    Does the record show an affidavit of service or statement of service and return of the summons by a sheriff or other officer authorized by law?
  • Sworn Statement in Regard to Service
    Does the record show a sworn statement of facts showing compliance with the statutory requirements for notice by publication in cases involving absent or unknown parties (if any)?
 
  • Appointment of Guardian Ad Litem

    Has the court appointed a guardian ad litem for the purpose of representing infants, incompetents, or any other parties under disability?
  • Action Against the United States

    Does federal statute grant permission to make the United States a party defendant? (Title 38 U.S.C.A. section 2410)
  • Action Against the State

    Does state law consent to making the state a party defendant?
  • Soldiers' and Sailors' Civil Relief Act

    Is the decree in compliance with the provisions of the Service Members Civil Relief Act
  • Decree
    • Has a decree been entered?
    • Has the decree been entered prematurely?
    • Does the decree contain jurisdictional finding?
    • Is there any finding of an undisclosed interest or lien?
    • How does the ordering or decretal part of the decree relate to the allegations contained in the compliant, answer, and cross-claim (if any)?
    • To what extent does the decree affect the real estate records?
  • Appeal
    • Is the decree final?
    • Has the statutory time to appeal expired?  (30 days in Texas).
    • Has any appeal motion been filed?
    • Has an appeal bond been filed?
  • Parties Who Have Been Served by Publication
    • Has any party been served by publication?
    • Is there any additional statutory right granted to a party served by publication?
    • If there is any such right, has the right expired?
  • Recording of the Decree or Judgment

    Does a certified copy of the final decree or judgment need to be recorded in the real estate records of the county where the property is located?

10.12.3

Judicial Sales

A judicial sale is a sale made in pursuance of an order, judgment, or decree of a court of competent jurisdiction, by an officer legally appointed and commissioned by the court to sell the property.It should be noted that there is a well-defined distinction between a judicial sale and an execution sale. An execution sale is a mere ministerial sale made by an officer under statutory authority and is based on a money judgment and a writ of execution.  Do not forget that a money judgment cannot be executed against homestead property.

10.12.4

General Guidelines for the Examination of Judicial Sales Made Pursuant to Court Decrees

  • Is the decree final and nonappealable?
  • Does the decree provide for a judicial sale of the property?
  • Does the decree specifically establish the form of sale and the conditions that will regulate it?
  • Have all of the following conditions been met?
    • Form of notice of sale
    • Parties entitled to notice of sale
    • Advertisement requirement
    • Day of sale
    • Time of sale
    • Place of sale
    • Bidding
    • Sale
    • Report of sale
    • Confirmation of sale
  • Is the order of confirmation of sale final and unappealable?
  • Is the order of confirmation of sale concordant with the form and condition of sale established by the decree?
  • Is there any outstanding redemptive right in favor of any party?
  • Has a conveyance of the property been properly executed, acknowledged and recorded?