The practitioner should use this form along with form 35-10 (motion for relief from automatic stay) in this chapter. See form 35-12 for the order granting motion for relief from automatic stay.
Warning: The local rules of the Bankruptcy Courts for the four districts in Texas have specific requirements for the content of the captions of pleadings and orders, and they are all different. The practitioner should consult the local rules of the bankruptcy court for the district in which he intends to file for the specific requirements as to the content of captions. See section 35.1:2.
[Caption. See form 35-3 in this chapter.]
Affidavit in Support of Motion for Relief from Automatic Stay
BEFORE ME, the undersigned authority, on this day personally appeared [name of affiant], who swore on oath that the following facts are true:
“My name is [name of affiant]. I am the [title] of [name of company]. I am over the age of 18 years and am fully competent to give this affidavit.
“I am responsible for and am personally familiar with the account that Debtor, [name of debtor], has at [name of creditor], Creditor.
“Creditor is the holder of a [deed of trust/retail installment contract/financing statement] for the purchase of [describe property] (the “Contract”), a copy of which is attached as Exhibit [exhibit number/letter]. Debtor executed the Contract to purchase the [describe property] described in the Contract (the “Property”). A copy of Creditor’s security interest in the Property is attached as Exhibit [exhibit number/letter]. Creditor’s rights in the Property were perfected by filing the [deed of trust/retail installment contract/financing statement] with the [county clerk of [county] County, Texas/secretary of state of Texas], a copy of which is attached as Exhibit [exhibit number/letter].
“The fair market value of the Property is $[amount]. The fair market value was derived from [provide source for fair market value, e.g., the Kelley Blue Book; auction records].
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Include facts supporting the creditor’s request to set aside the automatic stay. Examples of possible supporting facts follow. |
“Because there is no insurance on the Property, Creditor is at serious risk. Creditor will be liable for any damage to the Property arising from accidents involving the Property.”
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Continue with the following. |
[Name of affiant]
Affiant
SIGNED under oath before me on ________________________________.
Notary Public, State of Texas
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Attach exhibit(s). |