Form 7-22

The sworn account suit is the usual method by which a constitutional lien is foreclosed, and this peti­tion initiates that kind of suit. By following the form petitions in chapter 14 of this manual, the attorney can modify this form to fit other situations. For other forms of party designation, see section 14.10. See also section 14.2 regarding exercising caution in pleading conditions precedent. The affidavit, state­ment of account, and any invoices must also be attached; abbreviations and other items in the account must be explained for clarity if necessary. The application for a writ of sequestration (form 7-23) should be filed when suit on the debt is filed. The sworn account procedure is discussed at section 14.21, and sequestration is discussed at sections 8.16 through 8.24.

Texas Civil Practice and Remedies Code section 30.014 requires each party to include partial identifi­cation information in its initial pleading in a civil action filed in district court, county court, or statu­tory county court.

Caveat: In calculating the amount due on the account, do not include any interest that may have been posted to it.

[Caption. See § 3 of the Introduction in volume 1 of this manual.]

Petition and Application to Foreclose Constitutional Lien on Personal Property

1.Parties.      Plaintiff is [name of plaintiff], whose address is [address, city, state]. [The last three numbers of Plaintiff’s driver’s license number are [numbers]./Plaintiff has not been issued a driver’s license.] [The last three numbers of Plaintiff’s Social Security number are [numbers]./Plaintiff has not been issued a Social Security number.] Defendant is [name of defendant], who can be served with citation at [address, city, state].

2.Facts.      In the usual course of business, Plaintiff [made/repaired] for Defendant the following article[s] of personal property: [describe property], as shown on the attached statement of account. Defendant accepted the article[s] and became bound to pay Plaintiff [its/their] designated price, which is a reasonable, usual, and customary price for such [an] item[s]. The statement of account is attached as Exhibit [exhibit number/letter] and incorpo­rated by reference. This account represents a transaction or series of transactions of which a systematic record has been kept.

3.Debt.      Defendant has defaulted by failing to make payments on the account. The principal balance due Plaintiff on the account is $[amount] after all just and lawful offsets, payments, and credits have been allowed, as shown on Exhibit [exhibit number/letter]. Plain­tiff has demanded that Defendant pay this amount, but Defendant has not done so.

4.Conditions Precedent.      All conditions precedent have been performed or have occurred.

5.Lien.      Under article XVI, section 37, of the Texas Constitution, Plaintiff holds a lien on the above-described article[s], because Plaintiff [made/repaired] the article[s] as requested by Defendant. [This/These] article[s] [is/are] now in Defendant’s possession. Plain­tiff has a right to repossess and reclaim possession of the article[s] under Plaintiff’s right to enforce and satisfy Plaintiff’s constitutional lien claim against the article[s].

6.Attorney’s Fees.      Defendant’s default has made it necessary for Plaintiff to employ the undersigned attorney to file suit. This claim was timely presented to Defendant and remains unpaid. Reasonable fees for the attorney’s services rendered and to be rendered through trial and appeal are at least $[amount].

7.Prayer.      Plaintiff prays that—

a.Defendant be cited to appear and answer;

b.Plaintiff be granted judgment for $[amount] as the principal amount due on the account;

c.Plaintiff be granted foreclosure of the constitutional lien against the property described in this petition;

d.Plaintiff be granted judgment for prejudgment and postjudgment interest at the highest legal or contractual rate allowed by law;

e.Plaintiff be granted judgment for at least $[amount] as reasonable attorney’s fees, with additional contingent amounts in the event of appellate proceed­ings;

f.Plaintiff be granted judgment for all costs of court; and

g.Plaintiff be granted all further relief to which Plaintiff may be entitled.

   
[Name]
Attorney for Plaintiff
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Telecopier]