Form 14-5

This petition may be used for a suit on a revolving credit account. The sworn account petition at form 14-1 in this chapter will usually also be appropriate for an action on a commercial or consumer open revolving credit account, whether secured or not. Form 14-6 should be used for a suit on a retail install­ment contract—that is, for a single purchase, not on a revolving account, that includes a time-price dif­ferential in each installment. Preparing a statement of account, showing charges, credits, and accrued interest, is not required, but it is often helpful in demonstrating the claim and is preferred by many courts.

A general request for foreclosure, in the absence of a limiting request for an order of sale, includes a request for possession. Unicut, Inc. v. Texas Commerce Bank-Chemical, 704 S.W.2d 442, 445–46 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.). See section 14.2 regarding exercising cau­tion in pleading conditions precedent.

Caveat: Do not include any interest that may have been posted to the account.

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 Revolving Credit Account

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]. Defendant is [name of defendant], who can be served with citation at [address, city, state].

3.Facts.      Attached to this petition as Exhibit [exhibit number/letter] is a copy of a revolving credit agreement between Plaintiff and Defendant. The agreement is incorporated in this petition by reference. Plaintiff sold and delivered to Defendant one or more items of goods, wares, merchandise, or services on credit under the terms of the agreement. Defendant accepted each item and became bound to pay Plaintiff the designated price, which is a reason­able, usual, and customary price for such an item.

To secure the debt created by the note, Defendant executed a security agreement grant­ing Plaintiff a security interest in [describe collateral explicitly]. The security agreement is attached as Exhibit [exhibit number/letter] and incorporated by reference.

4.Default.      Defendant defaulted in making required payments on the account. Defendant’s default constitutes an anticipatory breach of the agreement. [Include if applicable: Plaintiff has accelerated the debt according to the terms of the agreement.] The principal bal­ance due Plaintiff on the account is $[amount], plus accrued interest as provided for in the agreement, after all just and lawful offsets, credits, and payments have been allowed. [Include if applicable: This amount is shown on the statement of account attached as Exhibit [exhibit number/letter] and incorporated by reference.]

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

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.

Defendant agreed to pay reasonable attorney’s fees according to the terms of the [describe account, contract, agreed terms and conditions, etc.].

Reasonable fees for the attorney’s services rendered and to be rendered through trial and appeal are no less than $[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 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 foreclosure of Plaintiff’s security interest in the collateral; and

            [g./h.] 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]