Form 29-9

This petition may be used to bring suit against an independent executor or administrator for an obliga­tion incurred by a decedent during his lifetime. The form is based on the petition for suit on note at form 14-7 in this manual and should be altered as appropriate depending on the nature of the debt. 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.

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 Independent Executor or Administrator

1.Parties.      Plaintiff is [name of plaintiff], whose address is [address, city, state]. Defendant is [name of independent executor or administrator], Independent [Executor/Admin­istrator] of the estate of [name of debtor], Decedent, 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.Conditions Precedent.      All conditions precedent have been performed or have occurred.

5.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].

6.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[;/; and]

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.] 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]