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.]
Notice of Lien and Election of Preferred Status
In response to the estate’s demand under Texas Estates Code section 308.053 to file a claim in the estate, and based on the assumption that the above-referenced matter remains an independent probate proceeding outside the supervision of the Court, [name of mortgagee] and its successors in interest or assigns (“Mortgagee”) gives notice of the following facts:
1.This notice concerns a certain loan agreement (“Loan Agreement”), as that term is defined in Texas Business and Commerce Code section 26.002, secured by the real property and improvements (“Property”) commonly known as [address], and more particularly described as follows: [legal description].
2.The obligor of the debt under the terms of the Loan Agreement used funds advanced by the original mortgagee, as that term is defined in Texas Property Code section 51.0001(4), to purchase the Property. Mortgagee is the mortgagee of record of the Loan Agreement, which is evidenced by the documents attached as Exhibit A, and which are true and correct copies of the originals.
3.Mortgagee makes an election that its Loan Agreement be treated as a preferred debt and lien against the Property, pursuant to Texas Estates Code section 403.054.
4.According to Mortgagee’s records, payments have not been made in accordance with the terms of the Loan Agreement and the loan is currently due for the [date] payment. Therefore, there has been a material breach of the Loan Agreement. As of [date], the Loan Agreement payoff, as “pay-off” is defined in Texas Property Code section 12.017, was at least $[amount]. However, this sum increases daily under the terms of the Loan Agreement, which includes, but is not limited to, earned interest, collection costs, attorney’s fees, taxes, insurance, and other legally authorized expenses. Under the terms of the Loan Agreement, Mortgagee has advanced funds for the payment of taxes, insurance, and property preservation, in an attempt to preserve the Property and to prevent it from becoming a wasting asset subject to deterioration and vandalism. As the loan is in default, please be advised that, pursuant to the authority of Bozeman v. Folliott, 556 S.W.2d 608 (Tex. App.—Corpus Christi 1977, writ ref’d, n.r.e.), Mortgagee will initiate nonjudicial foreclosure to liquidate the Loan Agreement.
5.This notice, and the attached exhibit, are being furnished merely as a notice to the estate and is not intended to be construed as a claim under the provisions of the Texas Estates Code, which requires the estate to accept or reject a claim either expressly or by operation of law.
6.Please be advised that this firm is a debt collector attempting to collect a debt and any information obtained will be used for that purpose. You may dispute the validity of the debt, or any portion thereof, if you do so in writing, within thirty days of receipt of this letter. If the debt is disputed, this firm will obtain and provide you with written verification of the debt; otherwise, the debt will be assumed to be valid. You may also request the name and address of the original creditor, if different from Mortgagee. For your convenience, however, a copy of the instrument verifying the debt, the Deed of Trust, is included in the exhibits attached to this notice.
[Name]
Attorney for [name of mortgagee]
State Bar No.:
[Email address]
[Address]
[Telephone]
[Telecopier]
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Attach exhibits. |