Note: When preparing this form, the attorney should carefully review Tex. Prop. Code §§ 51.0001, 51.0025, and 51.0075 and Tex. Bus. & Com. Code §§ 3.203 and 3.301 to ensure any reference to a person accurately describes the role the person holds or performs in the context of a foreclosure proceeding, e.g., references to “noteholder,” “beneficiary,” “owner,” “lender,” “obligor of the debt,” “mortgagor,” “mortgagee,” or “mortgage servicer” as appropriate.
Notice of Acceleration and Foreclosure Notice Letter
[Date]
[Name and address of borrower]
Re: Notice of acceleration and foreclosure sale regarding the following instruments, among others (collectively, the “Loan Documents”):
[Exact title of deed of trust] (“Deed of Trust”):
Dated: [date]
Grantor: [name of grantor]
Trustee: [name of trustee]
Lender: [name of lender]
Recorded in: [recording data] of the real property records of [county] County, Texas [include if applicable: being in renewal and extension of [exact title of deed of trust] recorded in [recording data] of the real property records of [county] County, Texas]
Secures: [exact title of promissory note] (“Note”) in the original principal amount of $[amount], executed by [name of borrower] (“Borrower”) and payable to the order of Lender [include if applicable: and all other indebtedness of Borrower to Lender]
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Include the following if applicable. |
Modifications
and Renewals: [describe most recent document(s) known to preparer, using exact title(s)] (as used herein, the terms “Note” and “Deed of Trust” mean the Note and Deed of Trust as so modified, renewed, and/or extended)
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And/Or |
Assignment: The Note [and/,] the liens and security interests of the Deed of Trust [, and the Guaranty] were transferred and assigned to [name of beneficiary] (“Beneficiary”) by an instrument dated [date], recorded in [recording data] of the real property records of [county] County, Texas
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And/Or |
Guaranty: The Note [and all other indebtedness of Borrower to Lender] is guaranteed by a [exact title of guaranty] dated [date], and executed by [name of guarantor] in favor of Lender
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And/Or |
Substitute Trustee: [name of substitute trustee]
[Salutation]
This letter is written at the request and on behalf of our client, [Lender/Beneficiary]. Written notice dated [date], was served on Borrower by [name] on behalf of [Lender/Beneficiary] by certified mail, return receipt requested, informing Borrower of the existence of one or more defaults under the Note and the Deed of Trust (“Defaults”). The Note, among other things, constitutes part of the indebtedness secured by the Deed of Trust (“Indebtedness”). In that notice, demand was made on Borrower to pay the unpaid past due amounts then owing under the Note and Borrower was advised of [Lender/Beneficiary]’s intention to accelerate the maturity of the Note if the Defaults were not cured.
According to the records of [Lender/Beneficiary], Borrower has not cured the Defaults. Therefore, [Lender/Beneficiary], by this letter, accelerates the maturity of the Indebtedness (including all unpaid principal of, and all lawful accrued and unpaid interest and other lawful amounts due under, the Note) and declares the entire Indebtedness immediately due and payable. [Lender/Beneficiary] makes demand (1) on Borrower and on all persons and entities obligated on the Note (except to the extent that obligation is expressly limited by written contract or applicable law) for payment in full of the entire Indebtedness and (2) on Grantor for payment of rents and proceeds of any rents to which [Lender/Beneficiary] is entitled under the Loan Documents and Texas Property Code chapter 64, Assignment of Rents to Lienholder.
[Lender/Beneficiary] has instructed [Substitute] Trustee to sell the Property (as defined in the notice below) at a nonjudicial foreclosure sale (“Foreclosure Sale”). A copy of the Notice of Foreclosure Sale (“Notice”) specifying the date, time, place, and terms of the Foreclosure Sale is enclosed with this letter. If all amounts due and owing have not been paid [include if applicable: or if other arrangements satisfactory to [Lender/Beneficiary] have not then been made] by the Foreclosure Sale, [Substitute] Trustee will conduct the Foreclosure Sale on the date and at the time and place specified in the Notice, as authorized by and in accordance with the provisions of the Deed of Trust and applicable law.
If the proceeds of the Foreclosure Sale are insufficient to repay the Indebtedness, then, except to the extent the Indebtedness is expressly nonrecourse or any party’s liability is expressly limited by written contract or applicable law, each person and entity obligated to repay the Indebtedness will be jointly and severally liable for the deficiency.
If any party who receives this letter is a debtor in a bankruptcy proceeding subject to the provisions of the United States Bankruptcy Code (title 11 of the United States Code), this letter is merely intended to be written notice of the defaults under the Note in compliance with the Loan Documents and applicable law. This letter is not an act to collect, assess, or recover a claim against that party, nor is this letter intended to violate any provisions of the Code. Any and all claims that [Lender/Beneficiary] asserts against that party will be properly asserted in compliance with the Code in the bankruptcy proceeding. In addition, all of [Lender/Beneficiary]’s claims, demands, and accruals regarding the Loan Documents, whenever made, and whether for principal, interest, or otherwise, are intended to comply in all respects, both independently and collectively, with all applicable usury laws, and are accordingly limited so that all applicable usury laws are not violated.
Nothing contained in this letter is intended to waive any default or event of default; waive any rights, remedies, or recourses available to [Lender/Beneficiary]; or be an election of remedies resulting from any default that may exist with respect to the Loan Documents.
You may contact [name] of [name of lender or beneficiary] at [address and telephone number], regarding any questions that you may have, including the outstanding balance of the past due amounts on the Note as of any particular date. If you have any questions that you believe I can answer, you or your attorney may contact me at the telephone number or address listed below.
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As required by Tex. Prop. Code § 51.002(i), include language substantially similar to the following that is conspicuously printed in bold-faced or underlined type. |
Assert and protect your rights as a member of the armed forces of the United States. If you are or your spouse is serving on active military duty, including active military duty as a member of the Texas National Guard or the National Guard of another state or as a member of a reserve component of the armed forces of the United States, please send written notice of the active duty military service to the sender of this notice immediately.
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Continue with the following. |
Sincerely yours,
[Name of attorney]
Attorney for [name of lender or beneficiary]
State Bar No.:
[Email address]
[Address]
[Telephone]
[Telecopier]
Certified Mail No. [number]
Return Receipt Requested
c: [name of lending officer]
c: [name of grantor, if applicable]
c: [name of borrower’s counsel, if applicable]
c: [name of general partner(s) of borrower, if applicable]
c: [name of guarantor, if applicable]
c: [name of assumptor, if applicable]