It’s been a couple weeks since my last post–thanks to a bunch of deadlines.  Here’s a little ditty I noticed discussing judicial foreclosures, and it got me to thinking up some interesting law-school type questions about the result.

The Dallas Court of Appeals affirmed a summary judgment awarding judicial foreclosure in Brown v. EMC Mortgage Corporation, but the court reversed the judgment insofar as the remedy that the trial court afforded.  The trial court had ordered the property to be sold by EMC at public auction.  But the court of appeals concluded that Civil Procedure Rule 309 requires that the order of sale issue to any sheriff or constable, directing him to seize and sell the property under execution.  And the court of appeals concluded that the trial court committed reversible error by rendering judgment otherwise.  The court’s opinion may be found here.

So this opinion got me to wondering.  What if the appellants had not superseded the judgment during the appeal and the mortgage company had sold the property in accordance with the trial court’s order?  Would the mortgagees have any remedy?  Would they have a claim for wrongful foreclosure?  Even if they had a claim, I wonder whether they could prove any damages.