Form 8-8

This form may be used to sequester property for which foreclosure or enforcement of a mortgage, lien, or security interest in personal property or fixtures is sought. Discussion of foreclosure of many kinds of liens is at sections 7.1 through 7.4 in this manual. If sequestration of real property is sought in a suit for title, partition, or possession for other purposes, this form must be adapted to fit existing facts. Real property is generally beyond the scope of this manual. The application and affidavit may be combined with the original petition; here, the application and affidavit are in one form, to be filed separately when or after the petition is filed. For a discussion of the application and affidavit, see section 8.17.

This form is based on the requirements for application and affidavit set forth in Tex. R. Civ. P. 696 and the grounds stated in Tex. Civ. Prac. & Rem. Code § 62.001. In most counties, the clerk will prepare the writ of sequestration and the return. In some cases, the attorney may wish to prepare them for the clerk. See forms 8-10 and 8-12.

See section 8.16:3 regarding the grounds for and availability of sequestration. See section 14.10 for other forms of party designation.

[Caption. See § 3 of the Introduction in volume 1 of this manual.]

Application and Affidavit for Writ of Sequestration

1.Parties.      [Name of plaintiff], Plaintiff, whose address is [address, city, state], makes this Application for Writ of Sequestration. Defendant is [name of defendant], who can be served with citation at [address, city, state].

2.Facts.      In this suit, now pending in this Court, Plaintiff is seeking damages from Defendant and [foreclosure/enforcement] of Plaintiff’s [security interest/mortgage/lien] in the following property: [describe each item of property with sufficient certainty that it can be iden­tified and distinguished from similar property]. Each item of property has the following value: [list each item and its value]. All this property is in Defendant’s possession at [address, city, county] County, Texas. Plaintiff has a valid and existing [security interest/mortgage/lien] in this property.

3.Default.      The debt owed to Plaintiff, as described in the original petition, is just and unsatisfied. Defendant has failed and refused to pay [number] payments of $[amount] each, although he agreed to do so. Plaintiff has exercised the right to accelerate the obligations owed by Defendant as set out in the [agreement/security agreement] between Plaintiff and Defendant. Defendant currently owes Plaintiff $[amount].

4.Grounds.      Plaintiff fears Defendant may conceal the property or may remove it from [county] County during the pendency of this suit because Defendant refused to surrender possession of the property when specifically and rightfully requested by Plaintiff to do so. This refusal by Defendant is an intentional concealment of the property and therefore jeopar­dizes Plaintiff’s [security interest/mortgage/lien] in the property.

5.Prayer.      Plaintiff prays that a writ of sequestration issue and that 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]

Affidavit

BEFORE ME, the undersigned authority, on this day personally appeared [name of affi­ant], who swore on oath that the following facts are true:

“I am [Plaintiff/[other capacity, e.g., credit manager of Plaintiff]] in this cause. [Include if affiant is agent: I am authorized to make this affidavit and to apply for a writ of sequestration in this cause.]

“I have personal knowledge of the facts stated above, and they are true and correct.”

“I make this affidavit on information and belief. The basis for that belief is the follow­ing: [state specific grounds for belief].”

   
[Name of affiant]
Affiant

SIGNED under oath before me on ________________________________.

   
Notary Public, State of Texas