Form 29-2

This petition may be used to bring suit against either a dependent personal representative of a dece­dent’s estate or a guardian. The form is based on the petition for suit on note at form 14-7 in this man­ual and assumes suit is against a dependent personal representative of a decedent’s estate; it should be altered as appropriate, depending on the nature of the debt or for suit against a guardian. If foreclosure or court-supervised sale of collateral is sought, an application to sell the property must be filed after the judgment is entered on the claims docket and the secured claim is classified. See section 29.40 regard­ing foreclosure sales and form 29-3 for an application for sale. See also the following sections: 14.28 regarding foreclosure of a security interest, 2.111 regarding acceleration, part II. in chapter 15 regard­ing venue, 1.18 through 1.29 regarding attorney’s fees, and 14.2 regarding exercising caution in plead­ing conditions precedent.

The suit should be filed in the court in which the administration of the estate or the guardianship is pending. See sections 29.39:1 and 29.67:1 regarding jurisdiction and sections 29.39:2 and 29.67:3 regarding pleading requirements. 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.

No. [cause number]

Petition for Suit against Dependent Personal Representative
or Guardian

1.Parties.      Plaintiff is [name of plaintiff], whose address is [address, city, state]. Defendant is [name of personal representative or guardian], [representative capacity], who can be served with citation at [address, city, state].

2.Note [and Security Agreement].      Attached to this petition as Exhibit [exhibit number/letter] is a true and correct copy of a note executed by Decedent. 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.

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

3.Default.      Decedent 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.

4.Presentation and Rejection of Claim.      A claim for this debt against Decedent’s estate was made and presented to Defendant in proper time, form, and manner. A copy of the claim is attached to this petition as Exhibit [exhibit number/letter] and incorporated by refer­ence.

Defendant failed to allow or reject Plaintiff’s claim within thirty days of presentation.

Defendant rejected Plaintiff’s claim.

Defendant rejected Plaintiff’s claim to the extent of $[amount].

5.Suit Timely Filed.      Plaintiff is filing this suit within ninety days of Defendant’s rejection of the claim.

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

7.Attorney’s Fees.      Decedent’s default has made it necessary for Plaintiff to employ the undersigned attorney to file suit.

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

Decedent agreed to pay reasonable attorney’s fees for collection in case of default, as shown on Exhibit [exhibit number/letter].

Reasonable fees for the attorney’s services rendered and to be rendered through trial and appeal are at least $[amount].

8.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 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;

g.Plaintiff be granted foreclosure of Plaintiff’s security interest in the collateral;

h.the Court order that execution of the judgment issue against property of Decedent’s estate in the hands of Defendant; and

            [g./i.] the Court enter the judgment on the claims docket for classification and
                                          further handling as if it were originally allowed and approved in the course
                                          of administration; and

            [h./j.] 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]