Judicial or Non-Judicial Foreclosure let’s Fifth Rule for Bank

SOUTHWICK, LESLIE H.

KING, CARLOYN DINEEN, (MRS. REAVLEY)

HO, JAMES C.

In the Fifth Circuit Court of Appeals decision,  Ditech Financial LLC v. Naumann  and unique to default judgments, among all judgments available under the Federal Rules –  that  the relief awarded “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.”

As applied here, “Ditech’s demand for judicial foreclosure gave meaningful notice that, in the event of default, a writ of possession would issue in favor of the foreclosure-sale purchaser.

Judicial or Non-Judicial Foreclosure – that is the question. Ditech requested relief from both, and despite having to choose only one in their pleadings in law, the Fifth applied the easy option to allow the Bank to foreclose, e.g.  applying judicial foreclosure in a non-judicial State.

Texas’s process of enforcing a judicial foreclosure—and specifically its mechanism for enforcing the foreclosure sale— entails issuance of the writ.

Accordingly, in this case the judgment’s provision for future issuance of the writ did not expand or alter the kind or amount of relief prayed for by Ditech.” No. 17-50616 (July 19, 2018, unpublished).