Although not required by law, it is a good practice for the trustee to arrange for the execution of affidavits swearing to the posting, filing, and delivery by certified mail of the notice of trustee’s sale. Pursuant to § 51.002(e) of the Texas Property Code, the affidavit of a person knowledgeable of the facts to the effect that service of notice was completed is prima facie evidence of service, which means that the affidavit will establish a case for such service which a debtor would then have the burden of proof to rebut. Such affidavits are, therefore, useful in defeating an allegation by the debtor that proper notice was not given. In addition, such affidavits are often sought by a title company issuing an owner or mortgagee policy of title insurance upon a later sale of the property to establish that the sale was conducted without irregularity. See Form of Affidavit for Posting and Filing of Foreclosure Notice and Form of Affidavit for Mailing of Foreclosure Notice located at the end of this Chapter.
Where the Bank is foreclosing on property owned by an individual (rather than an entity), the title company will typically require an affidavit which is more extensive than an affidavit covering posting, mailing and filing of the notice of trustee’s sale. In such circumstances, the Bank should determine (and obtain an affidavit which recites) that on the date of the sale, owner was neither deceased nor in the military or discharged within the previous three months from the military. If either of these averments are not true, the Bank should consult counsel with respect to whether the Bank may proceed to conduct a nonjudicial foreclosure.