The foreclosure sale must be conducted, if at all, on the first Tuesday of a month between the hours of 10:00 a. m. and 4:00 p.m. (and must begin within three hours of the time designated in the notice of sale as the earliest time the sale will occur) at the place designated by law and the deed of trust, all as set forth in the notice of sale. The sale site designated by the commissioners court is often a specifically designated entrance (e.g., the “north entrance”) to the county courthouse, either inside the courthouse door or outside. At the request of the Bank, trustee is entitled (subject to any contrary terms in the deed of trust) to “pull” or postpone the sale, by not showing up to conduct the sale, with neither public announcement of the postponement at the designated sale site, nor notice of postponement to the debtors.
The trustee conducts the foreclosure sale as a fiduciary for both the debtor and the Bank. The trustee (or substitute trustee) must conduct the sale and cannot delegate this duty to anyone else. The trustee cannot purchase the property for its own account. Anyone (including the Bank or trustee) may bid at the sale, even if the Bank is also the trustee, but the better practice is to have a second person (not the trustee) bidding on the Bank’s behalf.
At the sale site designated by the commissioners court for the county in which the real property is located, the trustee in a loud, clear voice introduces himself or herself, states that a sale is about to occur, then reads the notice of trustee’s sale, which describes the note and deed of trust being foreclosed and the property being sold. It is good practice for the trustee to read the property description and ask if anyone would like a copy of the property description, which the trustee should hand to anyone requesting one. Trustee asks if there are any bidders. the Bank’s representative bids the bid price previously determined by the Bank as a credit against the indebtedness. The trustee repeats the bid, states who made it, and asks if there are any other bids. If there are no other bidders, the trustee repeats the bid, again states who made it, and asks if there any other bidders. If there are still no other bidders, the trustee pronounces the property sold, states to whom sold and for what price, and states the time of the sale, all of which the trustee notes on the notice of sale. See Agenda of the Public Foreclosure Sale located at the end of this Chapter.
In the event that another bidder outbids the Bank, the trustee should adjourn the sale (upon announcement to those assembled of the adjournment and the time the sale will resume) and may accompany the successful bidder to its Bank in order to obtain cash or other cash equivalent (such as a cashier’s check) from the successful bidder. The Trustee may agree to a request from the purchaser for additional time to deliver the purchase price if the additional time period is reasonable. Trustee has the right to insist upon cash in U.S. currency or other cash equivalent (such as a cashier’s check or wire transfer of funds) and does not have to accept a personal check, note, or other I.O.U. A trustee will typically accept a cashier’s check drawn on a financial institution of unquestioned solvency. If the bidder is unable to produce cash or other cash equivalent, trustee may return to the site of the sale and resume the sale, provided that it is earlier than 4:00 p.m. on the date of the sale. Otherwise the property must be reposted posted for foreclosure. It is good practice to resume and complete the sale within three (3) hours from the time for the sale originally specified in the notice of trustee’s sale. Trustee may ask for new bids and continue the sale, including adjourning the sale again to accompany a successful bidder, until the property is sold or the time for conducting the sale has expired.