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St. Mary's Law Journal

Publisher

St. Mary's University School of Law

Abstract

Much of the current law governing secured land transactions remains closely akin to common law practices of feudal England. Consequently, certain aspects of the law in this area are provincial, anachronistic, and ill-suited to the needs of the modern borrower and lender. Even a cursory examination of Texas mortgage foreclosure law demonstrates certain shortcomings of the existing system. The Uniform Land Transactions Act (ULTA) professes to simplify, modernize, and unify state laws relating to real estate transactions. ULTA expects to accomplish these various purposes through uniformity in foreclosure proceedings. ULTA suggests several distinct advantages not currently available under Texas law. One of the advantages ULTA contributes to existing Texas law is easier and less expensive access to the collateral upon default. ULTA also seeks to protect the major parties involved in secured land transactions. First, ULTA protects the commercially unsophisticated debtor by expanding time periods within which the debtor can cure and by creating the status of protected party. This protected debtor, under a residential purchase money security agreement, is immune from a deficiency judgment. Second, ULTA protects the junior lienholder by virtue of its notice provision. Ultimately, ULTA presents an attractive and workable plan for modernizing, streamlining, and improving non-judicial mortgage foreclosures in Texas. The Texas Legislature should adopt ULTA but should resist the temptation to tailor ULTA’s foreclosure procedures to the idiosyncrasies of Texas law. Alteration of the Act’s provisions would defeat ULTA’s goal of inter-jurisdictional uniformity and upset the Act’s inherent balancing of equities between debtor, creditor, and junior lienor.

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