8.2 Statutory Notice Timelines & First Tuesday Auctions

Two clocks govern a Texas residential foreclosure calendar. Candidates who collapse them miss exam items. Federal servicing law decides when a covered servicer may make the first notice or filing required to start foreclosure. Texas Property Code § 51.002 then decides how a trustee with a power of sale must notify, post, file, mail, and sell. Learn them as stacked requirements, not as one blended waiting period.

Keep the CFPB 120-day gate separate

12 C.F.R. § 1024.41(f)(1) provides that a servicer shall not make the first notice or filing required by applicable law for any judicial or non-judicial foreclosure process unless the borrower's mortgage loan obligation is more than 120 days delinquent, unless a listed exception applies (due-on-sale, or joining another lienholder's foreclosure). Official Bureau interpretations look to state procedure to identify that "first notice or filing." In a Texas non-judicial file, servicers treat the earliest required state foreclosure notice as that first filing. Small servicers are exempt from much of § 1024.41, but § 1024.41(j) still holds them to § 1024.41(f)(1).

That federal rule does not say "wait 120 days and then sell on the next first Tuesday." It only bars the opening foreclosure notice until the loan is more than 120 days delinquent. After that gate opens, Texas still requires the § 51.002(d) 20-day residential cure notice before a notice of sale, and then the § 51.002(b) 21-day notice of sale. A candidate who adds 120 + 20 + 21 into one magic number, or who treats the Texas 20-day letter as a substitute for 120 days of delinquency, has collapsed two regimes.

Section 51.002(d): 20 days to cure before any notice of sale

For real property used as the debtor's residence, § 51.002(d) is mandatory: "Notwithstanding any agreement to the contrary, the mortgage servicer of the debt shall serve a debtor in default under a deed of trust or other contract lien ... with written notice by certified mail stating that the debtor is in default ... and giving the debtor at least 20 days to cure the default before notice of sale can be given under Subsection (b)."

Read that wording on the exam. The 20 days run before notice of sale may be given, not 20 days before the auction itself. The statute requires certified-mail notice of default and an opportunity to cure. It does not, in those sentences, recite "intent to accelerate." Texas notes and deeds of trust, and Texas acceleration case law, commonly also require a notice of intent to accelerate and a later notice of acceleration unless effectively waived. Servicers often combine default, cure, and intent to accelerate in one letter. The non-waivable statutory piece is still the 20-day residential cure window before any § 51.002(b) notice of sale. Commercial or non-residence collateral does not get this § 51.002(d) overlay.

Counting rule. Section 51.002(d) includes the entire calendar day the default notice is given, regardless of the hour, and excludes the entire calendar day the notice of sale is given. If the default notice is given on October 20, October 20 is day one. Day 20 is November 8. Because the notice-of-sale day is excluded, the earliest day a notice of sale may be given is November 9.

Mailbox completion. Section 51.002(e) provides that certified-mail service under § 51.002 is complete when the notice is deposited in the United States mail, postage prepaid, and addressed to the debtor at the debtor's last known address. An affidavit of a person who knows the facts is prima facie evidence of service. Actual receipt is not required. The statute says certified mail; it does not add "return receipt requested" as a condition of valid service.

Last known address and § 51.0021. For a debt secured by the debtor's residence, § 51.0001(2) treats the last known address as the residence address unless the debtor gave the mortgage servicer a written change of address before the servicer mailed a § 51.002 notice. Section 51.0021 requires the debtor to inform the mortgage servicer, in a reasonable manner, of any change of address for § 51.002 notices. A borrower who moves and never tells the servicer does not defeat a notice mailed to the homestead address on the servicer's records.

Section 51.002(b): 21-day notice of sale, three methods

Except for the weather/disaster catch-up in § 51.002(b-1), notice of sale must be given at least 21 days before the date of the sale by all of the following:

1. Posting at the courthouse door of each county in which the property is located, designating the county in which the property will be sold.
2. Filing a copy of that posted notice with the county clerk of each such county.
3. Serving written notice of the sale by certified mail on each debtor who, according to the mortgage servicer's records, is obligated to pay the debt.

The notice must state the earliest time at which the sale will begin. Section 51.002(c) then requires the sale to begin at the time stated in the notice or not later than three hours after that time. Section 51.0075(e) requires the trustee's name and a street address on this notice. Section 51.002(i) requires a conspicuous SCRA warning on notices served on a debtor under § 51.002.

21-day counting rule. Section 51.002(g) includes the entire calendar day the notice of sale is given and excludes the entire calendar day of the foreclosure sale. Counties must also post the filed notice on a public county website page with other auction information under § 51.002(f-1). That website posting is in addition to, not a substitute for, courthouse posting, clerk filing, and certified mail.

If the courthouse or clerk's office is closed because of inclement weather, natural disaster, or other act of God, § 51.002(b-1) allows the posting or filing to be completed up to 48 hours after the office reopens. That is a posting/filing safety valve. It is not a general "holidays move the auction" rule.

First Tuesday auctions — and the January 1 / July 4 exception

Section 51.002(a) is the classic MLO fact: a sale under a power of sale "must be a public sale at auction held between 10 a.m. and 4 p.m. of the first Tuesday of a month." Except as provided by subsection (h), the sale must take place at the county courthouse in the county in which the land is located. If the land lies in more than one county, the sale may be at the courthouse in any county where the property is located. The commissioners court designates the area at the courthouse. Under § 51.002(h), the commissioners court may instead designate another public place in reasonable proximity of the courthouse, as accessible as the courthouse door; sales held on or after the 90th day after that designation is recorded must use the designated area. Courthouse-door posting of the notice still occurs at the courthouse door.

Current subsection (a-1), still in the statute: "If the first Tuesday of a month occurs on January 1 or July 4, a public sale under Subsection (a) must be held between 10 a.m. and 4 p.m. on the first Wednesday of the month." That is the only holiday shift in § 51.002(a-1). A first Tuesday that is some other holiday does not move the sale to Wednesday. July 4, 2028 falls on a Tuesday; the July 2028 Chapter 51 sale date is Wednesday, July 5, 2028, between 10 a.m. and 4 p.m. Measure the 21-day notice from that Wednesday sale date, not from July 4.

The trustee conducts a public auction. Section 51.0075(a) allows the trustee to set reasonable conditions if they are announced before bidding opens for the trustee's first sale of the day. The purchase price is due without delay on acceptance of the bid, or within a reasonable time the purchaser and trustee agree if the purchaser requests time. The trustee disburses proceeds as provided by law.

Worked calendar: December 1, 2026 sale

December 1, 2026 is a Tuesday, so it is the first Tuesday of December 2026. Assume the loan is already more than 120 days delinquent, so 12 C.F.R. § 1024.41(f) no longer bars the first Texas foreclosure notice.

• Sale date: Tuesday, December 1, 2026, sometime between 10 a.m. and 4 p.m., beginning at the time stated in the notice or within three hours after that time, at the Travis County courthouse (or the commissioners court's designated public area) because the homestead is in Travis County.
• 21-day notice of sale. Sale day December 1 is excluded. If the notice of sale is given on November 10, November 10 is included. November 10 through November 30 is 21 days, so November 10 is the last timely day to post, file, and mail for a December 1 sale.
• 20-day cure before that notice of sale. If the § 51.002(d) default notice is given on October 20, October 20 is included and the notice-of-sale day is excluded. Day 20 is November 8, so the earliest notice of sale is November 9. A November 10 notice of sale is therefore after a completed 20-day cure window and still 21 days before December 1.
• If this were July 2028 and the first Tuesday were July 4, the auction would be Wednesday, July 5, 2028. The 21-day clock would be counted back from July 5, not from July 4.