This form may be used to request a foreclosure sale of collateral securing a debt classed as a preferred debt and lien. After the sale is ordered and completed, a report of sale must be filed with the probate court, and a decree confirming the sale must be obtained. See forms 29-6 through 29-8 in this chapter.
The affidavit included in this form should not be executed by the attorney unless he has personal knowledge of the facts asserted. See section 19.17:3 regarding execution of affidavits by attorneys.
If the property is sought to be sold at public sale, notice of the sale must be posted as in the case of original proceedings in probate unless the court directs otherwise. Tex. Est. Code § 356.103.
See section 29.40:2 for discussion of preferred debt and lien foreclosure sales.
[Caption. See § 3 of the Introduction in volume 1 of this manual.]
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Use the same caption as in the petition at form 29-2. |
Application for Foreclosure Sale of Mortgaged Property
[Name of creditor], Movant, requests that the Court enter an order authorizing foreclosure of Movant’s lien against property of the estate of [name of debtor], Decedent, and shows as follows:
1.Security Interest. Movant has a security interest in the following property: [describe collateral as specifically as possible]. This security interest is evidenced by [describe security agreement]. A copy of this instrument is attached as Exhibit [exhibit number/letter] and incorporated by reference.
2.Claim Approved and Entered. Movant’s secured claim has been [allowed/established by suit], approved, and fixed according to law.
3.Property Still in Estate. The property has not been sold or distributed within six months from the date letters of administration were granted.
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Select one of the following. |
4.Administrator Has Not Performed All Terms of Contract. The Administrator has failed to perform the following terms of the debt: [describe default(s)].
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Or |
4.Administrator Has Not Performed. The Administrator has not paid all maturities accruing on the debt secured by the security interest described above.
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Continue with the following. |
5.Method of Sale. It is in the best interest of the estate to have the property [sold at foreclosure sale, according to the terms of the security agreement/[describe other method of sale or disposition]].
6.Not Exempt Property. The property is not exempt property.
7.Prayer. Movant requests that—
a.the personal representative of Decedent’s estate and all other lienholders listed on the attached affidavit of [name of affiant] be cited to appear and show cause why the property should not be foreclosed;
b.the Court enter its order granting Movant the right to foreclosure of its lien; and
c.the Court grant all further relief to which Movant may be entitled.
[Name]
Attorney for Movant
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Telecopier]
Notice of Hearing
It is ORDERED that the clerk issue notice to [name of personal representative], Respondent, and Respondent is ORDERED to appear before this Court on [date and time], at [address], to show cause why [describe collateral] should not be sold as requested in the attached motion.
SIGNED on ________________________________.
JUDGE PRESIDING
Affidavit
BEFORE ME, the undersigned authority, on this day personally appeared [name of affiant], who swore on oath that the following facts are true:
“1.My full name is [name of affiant]. I am the [claimant/authorized representative of the claimant].
“2.The property securing the claim is described as follows: [describe property].
“3.The amount of the outstanding debt owed is $[amount].
“4.The maturities that have accrued on this debt, according to its terms, are [describe all matured, unpaid obligations due on the debt].
“5.I am aware of the following other liens or claims against the property: [list other lienholders]. I have no knowledge of the existence of any debts secured by the property other than the ones listed.
“6.[I request/Creditor requests] permission to foreclose the lien described in the attached motion.”
[Name of affiant]
Affiant
SIGNED under oath before me on ________________________________.
Notary Public, State of Texas
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Attach exhibit(s). |