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.
[Caption. See § 3 of the Introduction in this manual.]
Petition for Determination of Fair Market Value after
Nonjudicial Foreclosure
1.Discovery Level. Discovery in this case is intended to be conducted under level 3 of rule 190 of the Texas Rules of Civil Procedure. Plaintiff anticipates the parties will agree to a discovery control plan and submit an agreed order to the court.
2.Parties. [Name of plaintiff], Plaintiff, is an individual residing at [address, city], [county] County, Texas. [Name of defendant], Defendant, is a Texas [specify entity, e.g., corporation], duly formed and existing under the laws of the state of Texas. Process may be served on Defendant at [address, city, state].
3.Jurisdiction. This Court has jurisdiction over this controversy because the amount at issue is within the jurisdictional limits of the Court.
4.Venue. Venue of this matter is proper in [county] County, Texas, because [the Property that is the subject of this suit is located/Defendant has its principal business office] in [county] County, Texas.
5.Facts. Defendant is the owner and holder of a deed of trust recorded in [recording data] of the real property records of [county] County, Texas. The deed of trust encumbered the real and personal property described as [describe property] (the “Property”). The deed of trust secured payment of a promissory note in the original principal amount of $[amount], dated [date], and executed by Plaintiff payable to the order of Defendant. A true and correct copy of the deed of trust is attached as Exhibit A and incorporated by reference. A true and correct copy of the promissory note is attached as Exhibit B and incorporated by reference.
Defendant caused the trustee under the deed of trust to conduct a nonjudicial foreclosure sale of the Property on [date]. The gross sale price was $[amount], of which Defendant credited the amount of $[amount] against the balance owing on the promissory note, which Defendant claims leaves a deficiency in the amount of $[amount].
6.Claims. Plaintiff alleges that the Property was sold for less than its fair market value on the date of the foreclosure sale. Plaintiff is entitled under section 51.003 of the Texas Property Code to a determination of the fair market value of the Property as of the date of the foreclosure sale and to an offset against the deficiency in the amount by which the fair market value, less the amount of any claim, indebtedness, or obligation of any kind that is secured by a lien or encumbrance on the Property that was not extinguished by the foreclosure, exceeds the foreclosure sales price.
7.Prayer. Plaintiff prays that Defendant be cited to appear and answer and that, on final trial, Plaintiff be granted the following:
a.Judgment determining the fair market value of the Property at issue in this action.
b.Judgment against the Defendant in the form of a credit against the deficiency described above, in the amount determined by the Court.
c.All further relief to which Plaintiff may be entitled.
[Name]
Attorney for [name of plaintiff]
State Bar No.:
[Email address]
[Address]
[Telephone]
[Telecopier]
|
Attach exhibits. |