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  • #16
    Texas land ownership question


    "Rusty Wallace" <[email protected]> wrote in message
    news:[email protected]
    "McGyver" <[email protected]> wrote: (snip)
    Your mother should sue the co-owner for contribution of his share of theproperty taxes. She would attempt personal service of process even thoughshe knows it will be futile. When service of process proves to beimpossible by normal means, and with the help of the affidavit of theprocess server, she would obtain the court's permission to serve processbypublication. After publication, and assuming the defendant defaults, yourmother would File for entry of default and obtain the default judgment.Somehow, in accordance with Texas lien procedures with which I am notfamiliar, she would attach a lien to the defendant's share of theproperty.Then she would foreclose on the lien. After passage of the amount of timeallowed for the owner to object to the foreclosure and/or redeem theproperty by payment of the lien amount, the sheriff would sell, atauction,the defendant's share of the property. Your mother almost surely wouldbethe only bidder. She would bid one dollar and become the sole owner oftheland, having a "Sheriff's Deed" which is as good as or better than awarranty deed. Simple.
    Simple? I suppose... If you were doing this for someone, about how much of your time do you think it would take and how much would it cost, assuming the other party never put in an appearance? If we tried to do it without an attorney, how much time and expense would be entailed - and how many pitfalls for the legally naive? I know some of this is state dependent - I'm just curious to get a very general estimate. This sounds like a procedure that would take months to a couple of years depending on how long the various waiting periods are. If he turned up right before the foreclosure wanting to preserve his ownership interest, would he be liable for paying the expenses incurred in getting to that point?
    I didn't answer your last question because I don't know the Texas rules, but
    I've decided to add my uninformed opinion anyway.

    If the defendant arrives before you have a default judgment, he might defend
    the lawsuit, but might not bother if he feels he has no defense. He might
    simply pay the amount your mother sued for. If that happens, the suit will
    be dismissed.

    If the defendant arrives after the land interest is in foreclosure, he has
    whatever redemptions rights are available under Texas law. I don't know
    what those rights are. Worst case for your mother would be the defendant
    having the right to clear the lien by payment of the judgment amount. Best
    case is no right of redemption.

    The following are general rules, which may or may not be the Texas rules.
    Generally, in both of the above cases, your mother will not be entitled to
    recover litigation expenses. But she would be entitled to increase the
    judgment amount to add interest and collection expenses, like fees charged
    by the sheriff.

    This answer must not be relied on as legal

    advice for the reasons posted here:
    http://www.msnusers.com/1LawChat/Doc...Disclaimer.doc


    McGyver




    Comment


    • #17
      Texas land ownership question


      "Rusty Wallace" <[email protected]> wrote in message
      news:[email protected]
      "McGyver" <[email protected]> wrote: (snip)
      Your mother should sue the co-owner for contribution of his share of theproperty taxes. She would attempt personal service of process even thoughshe knows it will be futile. When service of process proves to beimpossible by normal means, and with the help of the affidavit of theprocess server, she would obtain the court's permission to serve processbypublication. After publication, and assuming the defendant defaults, yourmother would File for entry of default and obtain the default judgment.Somehow, in accordance with Texas lien procedures with which I am notfamiliar, she would attach a lien to the defendant's share of theproperty.Then she would foreclose on the lien. After passage of the amount of timeallowed for the owner to object to the foreclosure and/or redeem theproperty by payment of the lien amount, the sheriff would sell, atauction,the defendant's share of the property. Your mother almost surely wouldbethe only bidder. She would bid one dollar and become the sole owner oftheland, having a "Sheriff's Deed" which is as good as or better than awarranty deed. Simple.
      Simple? I suppose... If you were doing this for someone, about how much of your time do you think it would take and how much would it cost, assuming the other party never put in an appearance? If we tried to do it without an attorney, how much time and expense would be entailed - and how many pitfalls for the legally naive? I know some of this is state dependent - I'm just curious to get a very general estimate. This sounds like a procedure that would take months to a couple of years depending on how long the various waiting periods are. If he turned up right before the foreclosure wanting to preserve his ownership interest, would he be liable for paying the expenses incurred in getting to that point?
      I didn't answer your last question because I don't know the Texas rules, but
      I've decided to add my uninformed opinion anyway.

      If the defendant arrives before you have a default judgment, he might defend
      the lawsuit, but might not bother if he feels he has no defense. He might
      simply pay the amount your mother sued for. If that happens, the suit will
      be dismissed.

      If the defendant arrives after the land interest is in foreclosure, he has
      whatever redemptions rights are available under Texas law. I don't know
      what those rights are. Worst case for your mother would be the defendant
      having the right to clear the lien by payment of the judgment amount. Best
      case is no right of redemption.

      The following are general rules, which may or may not be the Texas rules.
      Generally, in both of the above cases, your mother will not be entitled to
      recover litigation expenses. But she would be entitled to increase the
      judgment amount to add interest and collection expenses, like fees charged
      by the sheriff.

      This answer must not be relied on as legal

      advice for the reasons posted here:
      http://www.msnusers.com/1LawChat/Doc...Disclaimer.doc


      McGyver




      Comment


      • #18
        Texas land ownership question


        "McGyver" <[email protected]> wrote in message
        news:rqCPf.722[email protected]
        .....
        Your mother should sue the co-owner for contribution of his share of the property taxes. She would attempt personal service of process even though she knows it will be futile. When service of process proves to be impossible by normal means, and with the help of the affidavit of the process server, she would obtain the court's permission to serve process by publication. After publication, and assuming the defendant defaults, your mother would File for entry of default and obtain the default judgment.
        In TX, if service is by publication and the D doesn't answer, the court
        would have to appoint an atty ad litem for the absent D. As I mentioned in
        this thread, this can run into the thousands of dollars. I was appointed
        atty ad litem in a missing-D case a few yrs ago, found the D myself and got
        him served with process. IIRC, I was awarded over $2000 in atty fees. In
        other cases, it coud be much higher. Further, depending on the
        circumstances, the court may tax the atty ad litem fees as costs against the
        plaintiff. You also mention a possible redemption period. TX does have a
        redemption period. I believe it is six months but that may have changed
        recently. (I also wouldn't assume the judgment lienholder will be the only
        bidder at a foreclosure sale.) Further, in TX, an absent D served by
        publication can file a motion for new trial up to two years after final
        judgment and file a bill of review up to four years after final j. The
        missing D may not be able to reverse the sale of the property but might
        still be entitled to a money judgment.

        It sounds like the OP does not want to put much of an effort into finding
        the co-owner, and if he were to file suit without having first made a
        significant effort to do so, it might end up causing him a lot of wasted
        money and time.


        Comment


        • #19
          Texas land ownership question


          "McGyver" <[email protected]> wrote in message
          news:[email protected]
          .....
          Your mother should sue the co-owner for contribution of his share of the property taxes. She would attempt personal service of process even though she knows it will be futile. When service of process proves to be impossible by normal means, and with the help of the affidavit of the process server, she would obtain the court's permission to serve process by publication. After publication, and assuming the defendant defaults, your mother would File for entry of default and obtain the default judgment.
          In TX, if service is by publication and the D doesn't answer, the court
          would have to appoint an atty ad litem for the absent D. As I mentioned in
          this thread, this can run into the thousands of dollars. I was appointed
          atty ad litem in a missing-D case a few yrs ago, found the D myself and got
          him served with process. IIRC, I was awarded over $2000 in atty fees. In
          other cases, it coud be much higher. Further, depending on the
          circumstances, the court may tax the atty ad litem fees as costs against the
          plaintiff. You also mention a possible redemption period. TX does have a
          redemption period. I believe it is six months but that may have changed
          recently. (I also wouldn't assume the judgment lienholder will be the only
          bidder at a foreclosure sale.) Further, in TX, an absent D served by
          publication can file a motion for new trial up to two years after final
          judgment and file a bill of review up to four years after final j. The
          missing D may not be able to reverse the sale of the property but might
          still be entitled to a money judgment.

          It sounds like the OP does not want to put much of an effort into finding
          the co-owner, and if he were to file suit without having first made a
          significant effort to do so, it might end up causing him a lot of wasted
          money and time.


          Comment


          • #20
            Texas land ownership question


            "Zen Cohen" <[email protected]> wrote in message
            news:[email protected]
            "McGyver" <[email protected]> wrote in message news:[email protected] ....
            Your mother should sue the co-owner for contribution of his share of the property taxes. She would attempt personal service of process even though she knows it will be futile. When service of process proves to be impossible by normal means, and with the help of the affidavit of the process server, she would obtain the court's permission to serve process by publication. After publication, and assuming the defendant defaults, your mother would File for entry of default and obtain the default judgment.
            In TX, if service is by publication and the D doesn't answer, the court would have to appoint an atty ad litem for the absent D. As I mentioned in this thread, this can run into the thousands of dollars. I was appointed atty ad litem in a missing-D case a few yrs ago, found the D myself and got him served with process. IIRC, I was awarded over $2000 in atty fees. In other cases, it coud be much higher. Further, depending on the circumstances, the court may tax the atty ad litem fees as costs against the plaintiff. You also mention a possible redemption period. TX does have a redemption period. I believe it is six months but that may have changed recently. (I also wouldn't assume the judgment lienholder will be the only bidder at a foreclosure sale.) Further, in TX, an absent D served by publication can file a motion for new trial up to two years after final judgment and file a bill of review up to four years after final j. The missing D may not be able to reverse the sale of the property but might still be entitled to a money judgment. It sounds like the OP does not want to put much of an effort into finding the co-owner, and if he were to file suit without having first made a significant effort to do so, it might end up causing him a lot of wasted money and time.
            Thanks, Zen. I knew you would jump in to apply some actual knowledge to my
            scheming. My scheme was based on the assumption that Plaintiff and her
            process server would do a diligent job of trying to find the defendant. It
            would be foolish to try to bypass service of process except as a last
            resort. Also, my thinking was that the defendant's half interest would be
            the subject of the foreclosure sale, not the entire parcel. If I'm right
            about that, the OP's mother would be the only bidder who would end up with
            marketable title to the entire property without going through an action for
            partition. I assumed that other bidders would be deterred by the prospect.
            The expenses you described seem small in comparison to the value of half of
            60 acres of timberland.

            McGyver


            Comment


            • #21
              Texas land ownership question


              "Zen Cohen" <[email protected]> wrote in message
              news:[email protected]
              "McGyver" <[email protected]> wrote in message news:[email protected] ....
              Your mother should sue the co-owner for contribution of his share of the property taxes. She would attempt personal service of process even though she knows it will be futile. When service of process proves to be impossible by normal means, and with the help of the affidavit of the process server, she would obtain the court's permission to serve process by publication. After publication, and assuming the defendant defaults, your mother would File for entry of default and obtain the default judgment.
              In TX, if service is by publication and the D doesn't answer, the court would have to appoint an atty ad litem for the absent D. As I mentioned in this thread, this can run into the thousands of dollars. I was appointed atty ad litem in a missing-D case a few yrs ago, found the D myself and got him served with process. IIRC, I was awarded over $2000 in atty fees. In other cases, it coud be much higher. Further, depending on the circumstances, the court may tax the atty ad litem fees as costs against the plaintiff. You also mention a possible redemption period. TX does have a redemption period. I believe it is six months but that may have changed recently. (I also wouldn't assume the judgment lienholder will be the only bidder at a foreclosure sale.) Further, in TX, an absent D served by publication can file a motion for new trial up to two years after final judgment and file a bill of review up to four years after final j. The missing D may not be able to reverse the sale of the property but might still be entitled to a money judgment. It sounds like the OP does not want to put much of an effort into finding the co-owner, and if he were to file suit without having first made a significant effort to do so, it might end up causing him a lot of wasted money and time.
              Thanks, Zen. I knew you would jump in to apply some actual knowledge to my
              scheming. My scheme was based on the assumption that Plaintiff and her
              process server would do a diligent job of trying to find the defendant. It
              would be foolish to try to bypass service of process except as a last
              resort. Also, my thinking was that the defendant's half interest would be
              the subject of the foreclosure sale, not the entire parcel. If I'm right
              about that, the OP's mother would be the only bidder who would end up with
              marketable title to the entire property without going through an action for
              partition. I assumed that other bidders would be deterred by the prospect.
              The expenses you described seem small in comparison to the value of half of
              60 acres of timberland.

              McGyver


              Comment


              • #22
                Texas land ownership question

                "McGyver" <[email protected]> wrote:

                (snip)
                Thanks, Zen. I knew you would jump in to apply some actual knowledge to myscheming. My scheme was based on the assumption that Plaintiff and herprocess server would do a diligent job of trying to find the defendant.
                Wow! Thanks to both of you for such clear replies. I hope it was an
                interesting exercise for you. It's been very illuminating for me.

                If we tried to do something, we would search for him diligently. I
                just expect that a diligent search would be successful pretty quickly
                as I don't think he is missing so much as he has declined to make it
                easy for us to keep track of where he is. The prospect of him really
                being impossible to find is more of a worst case scenario as we would
                then be forced to take action to be able to do anything constructive
                with the land. I'm accutely aware that the reasonable and prudent
                solution to this difficulty is to get one party to buy out the other
                for a fair price or for both to cooperate in selling or partitioning
                the land and moving on. I'm also well aware that he may not be
                inclined to be reasonable and prudent and that we aren't terribly
                interested in sitting down at a table to try and work it out. It would
                be a simple matter to deal with if the history and emotions could be
                cut out.

                Comment


                • #23
                  Texas land ownership question

                  "McGyver" <[email protected]> wrote:

                  (snip)
                  Thanks, Zen. I knew you would jump in to apply some actual knowledge to myscheming. My scheme was based on the assumption that Plaintiff and herprocess server would do a diligent job of trying to find the defendant.
                  Wow! Thanks to both of you for such clear replies. I hope it was an
                  interesting exercise for you. It's been very illuminating for me.

                  If we tried to do something, we would search for him diligently. I
                  just expect that a diligent search would be successful pretty quickly
                  as I don't think he is missing so much as he has declined to make it
                  easy for us to keep track of where he is. The prospect of him really
                  being impossible to find is more of a worst case scenario as we would
                  then be forced to take action to be able to do anything constructive
                  with the land. I'm accutely aware that the reasonable and prudent
                  solution to this difficulty is to get one party to buy out the other
                  for a fair price or for both to cooperate in selling or partitioning
                  the land and moving on. I'm also well aware that he may not be
                  inclined to be reasonable and prudent and that we aren't terribly
                  interested in sitting down at a table to try and work it out. It would
                  be a simple matter to deal with if the history and emotions could be
                  cut out.

                  Comment

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