Form 14-11

This petition may be used for a suit against either an absolute or an unconditional guarantor. It assumes that the guarantor is guaranteeing payment of a promissory note. If another form of debt is the subject of the guaranty, the petition should be modified accordingly.

The attorney should review the language of the guaranty agreement to ascertain that the guarantor has made the guaranties set out in this form petition. The language may be altered to quote or paraphrase the specific language of the guaranty or may be omitted entirely, because the guaranty agreement is incorporated by reference in the petition.

Guaranties are discussed at section 14.31 in this chapter. See section 14.2 regarding exercising caution in pleading conditions precedent.

Texas Civil Practice and Remedies Code section 30.014(a) requires certain parties to include partial identification information in initial pleadings in civil actions filed in district, county, or statutory county courts. A court may order that an initial pleading be amended to contain this information if the court determines that the pleading does not contain the information. Tex. Civ. Prac. & Rem. Code § 30.014(b).

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

Petition for Suit on Guaranty

1.Discovery Level.      The damages sought are within the jurisdictional limits of this Court. Tex. R. Civ. P. 47(b). This lawsuit seeks only monetary relief aggregating $100,000 or less. Tex. R. Civ. P. 47(c)(1). Discovery is intended to be conducted under Level 1. Tex. R. Civ. P. 190.2.

2.Parties.      Plaintiff is [name of plaintiff]. [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.] Plaintiff’s address is [address, city, state]. Defendants are [name of principal obligor], Principal Obligor, who can be served with citation at [address, city, state], and [name of guarantor], Guarantor, who can be served with citation at [address, city, state].

2.Parties.      Plaintiff is [name of plaintiff]. [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.] Plaintiff’s address is [address, city, state]. Defendant is [name of guarantor], Guarantor, who can be served with citation at [address, city, state]. [Name of principal obligor], Principal Obligor, has not been made a defendant in this suit because

Guarantor has waived the requirement for joinder of the principal obligor.

Principal Obligor is actually or notoriously insolvent.

Principal Obligor cannot be reached by the ordinary process of law.

Principal Obligor’s residence is unknown and cannot be ascertained by the use of reasonable diligence.

Principal Obligor resides beyond the limits of the state.

Principal Obligor is dead.

Judgment has already been rendered against Principal Obligor.

3.Guaranty.      Attached to this petition as Exhibit [exhibit number/letter] is a copy of a guaranty agreement executed by Guarantor. The guaranty agreement is incorporated in this petition by reference. As shown on Exhibit [exhibit number/letter], Guarantor unconditionally guaranteed to pay Plaintiff all principal, interest, and collection expenses due Plaintiff on every claim against or indebtedness of Principal Obligor.

4.Debt and Principal Obligor’s Default.      Attached to this petition as Exhibit [exhibit number/letter] is a copy of a note executed by Principal Obligor. Plaintiff is the owner and holder of this note and is entitled to receive all money due under its terms. [Include if applicable: Plaintiff is a holder in due course.] The note is incorporated in this petition by ref­erence. Principal Obligor defaulted in paying the note. [Include if applicable: Plaintiff has accelerated the debt according to the terms of the note.] There is currently due the sum of $[amount], plus accrued interest as provided for in the note.

5.Guarantor’s Default.      Under the terms of Exhibit [exhibit number/letter], Guar­antor is indebted to Plaintiff for Principal Obligor’s debt described in this petition. [Include unless the guarantor has specifically waived demand: Plaintiff has demanded that Guarantor pay this debt, but Guarantor has not done so.]

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

7.Attorney’s Fees.      [Defendant’s/Defendants’] default has made it necessary for Plaintiff to employ the undersigned attorney to file suit.

This claim was timely presented to Defendant[s] and remains unpaid.

Defendant[s] agreed to pay reasonable attorney’s fees according to the terms of the [describe guaranty agreement].

Reasonable fees for the attorney’s services rendered and to be rendered through trial and appeal are no less than $[amount].

8.Prayer.      Plaintiff prays that—

a.Defendant[s] be cited to appear and answer;

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

c.Plaintiff be granted judgment for accrued and unpaid interest on the debt before maturity;

d.Plaintiff be granted judgment for prejudgment and postjudgment interest on the matured, unpaid debt 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]