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.]
Authenticated Preferred and Secured Claim of [name of mortgagee]
[Name of mortgagee], its successors, and assigns (“Mortgagee”) presents its claim to the dependent administrator of the estate in the above-referenced cause as a preferred debt and lien against specific property as follows:
1.The property securing the claim, which Mortgagee desires to have allowed, is approved and fixed as a preferred debt and lien against specific property located at [address], and more particularly described as follows: [legal description].
2.Decedent was the maker of the [describe legal instrument, e.g., note, vendor’s lien, mortgage, or deed of trust] evidencing Mortgagee’s claim against the estate. Pursuant to Texas Estates Code section 355.004(b), photostatic copies of the instruments supporting Mortgagee’s claim are attached hereto as Exhibit A and made a part hereof for all purposes.
3.Mortgagee is the present owner and holder of this claim and is authorized to make this claim.
4.At the time of filing this claim, the amount owed to Mortgagee, according to Mortgagee’s records and the terms and conditions of the loan documents evidencing or supporting this claim, is $[amount] as of [date], exclusive of accruing and accrued charges, interest, fees, and costs. On the settlement date of its claim, Mortgagee reserves the right to amend its claim to reflect all amounts properly due under the loan documents supporting its claim.
5.On the settlement date of Mortgagee’s claim, Mortgagee and the undersigned law firm reserve the right to amend the claim to reflect the attorney’s fees, costs, and expenses required to settle its claim in the estate in accordance with the loan documents, as well as Texas Civil Practice and Remedies Code sections 38.001 through 38.006 and Texas Estates Code section 355.003.
6.Mortgagee requests that its claim be allowed, approved, and fixed as a preferred debt and lien against the specific property described above and that the claim be paid according to the terms and conditions of the loan documents that support its claim. If the personal representative fails to make the payments required by the loan documents supporting the claim as they become due, Mortgagee may request an order from the probate court allowing it to foreclose its security interest in accordance with its perfected Deed of Trust.
Mortgagee requests that the claim described above be allowed by the personal representative of the above-captioned estate and approved and fixed by the Court as a preferred debt and lien against the specific property securing the indebtedness, including all charges allowed by law and the loan documents supporting its claim; that if the personal representative fails to make the mortgage, escrow, and other payments as they become due that an order be entered by this Court allowing Mortgagee to foreclose its security interest perfected in the Deed of Trust; and that Mortgagee have any and all other and further relief to which Mortgagee may be justly entitled.
[Name]
Attorney for [name of mortgagee]
State Bar No.:
[Email address]
[Address]
[Telephone]
[Telecopier]
Authentication
State of Texas)
County of)
[Name of affiant] appeared in person before me today and stated under oath:
“My name is [name of affiant]. I am competent to make this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.
“I am the attorney for [name of mortgagee] and have made diligent inquiry and examination of the facts pertaining to the claim. [Name of mortgagee] is the legal owner and holder of the foregoing claim. The claim described above is just, and all legal offsets, payments, and credits known to me have been allowed.”
[Name of affiant]
Affiant
SUBSCRIBED AND SWORN TO before me on __________________ by [name of affiant].
Notary Public, State of Texas
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