Form 15-3

Petition to Interplead Funds

I.

Nature of Case

This case involves claims for excess proceeds left over as a result of a foreclosure sale on [date] of [address] (“Property”), and more particularly described as follows: [legal description].

II.

Parties and Jurisdiction

Plaintiff/Interpleader, [name of substitute trustee], appears in his capacity as Substitute Trustee for [name of entity].

Defendant, [name of person claiming an interest in the excess proceeds of the foreclo­sure sale], claims an interest in the funds sought to be interpleaded because [state reason why defendant claims an interest in the funds] and [select one of the following: may be served at [address]/does not maintain a registered agent for service of process in the state of Texas and may be served with process at [address]].

This Court has subject matter jurisdiction over this controversy because the cause of action involves real property.

Venue is proper in this county because the real property made subject of this lawsuit is located in [county] County, Texas.

III.

Facts

Plaintiff/Interpleader is or may be subject to liability with respect to the excess pro­ceeds from a [Substitute Trustee/Trustee]’s sale of the Property pursuant to the terms of a deed of trust recorded at [recording information]. The sale was held on [date]. The sales price of the Property was $[amount], of which $[amount] was delivered to the mortgagee in accor­dance with the terms of the deed of trust, with Interpleader holding the remaining excess fore­closure sales proceeds in the amount of $[amount] (“Excess Funds”). Plaintiff/Interpleader has been contacted by the [Defendants/Defendants’ agents/Defendants’ representatives], each of whom claims to have an interest in the Excess Funds. However, Plaintiff/Interpleader has not been able to confirm this information with certainty. Because of potential rival claims by Defendants, Interpleader/Plaintiff hereby desires to tender the Excess Funds into the registry of the Court for determination of who is entitled to those funds.

IV.

Argument and Authority

A party is entitled to relief by interpleader if the party is subject to or has reasonable grounds to anticipate rival claims to the same funds or property. Heggy v. American Trading Employee Retirement Account Plan, 123 S.W.3d 770, 775 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); Olmos v. Pecan Grove Municipal Utility District, 857 S.W.2d 734, 741 (Tex. App.—Houston [14th Dist.] 1993, no writ).

Plaintiff/Interpleader is subject to or reasonably anticipates the rival claims of the Defendants to the Excess Funds.

Each Defendant may claim a portion of the Excess Funds based on his alleged interest in the Property subject to the foreclosure. These claims are adverse and conflicting, and Plain­tiff/Interpleader is unable to determine which Defendant is entitled to the Excess Funds or any portion thereof. With respect to the Excess Funds, Plaintiff/Interpleader therefore is in the position of an innocent stakeholder faced with the possibility of multiple liability and inciden­tal costs if it pays out Excess Funds on the claims of the Defendants.

Plaintiff/Interpleader neither has, nor claims, any interest in the Excess Funds, which Plaintiff/Interpleader, at all times, has been willing to deliver to the person or persons legally entitled to possession thereof.

On the filing of this petition, Plaintiff/Interpleader is prepared to make an unequivocal tender of the Excess Funds to the Court upon the Court’s order.

V.

Costs and Attorney’s Fees

When an interpleader is a disinterested stakeholder with no interest of its own in the property, the interpleader can recover its costs and attorney’s fees from the interpleaded funds. U.S. v. Ray Thomas Gravel Co., 380 S.W.2d 576, 581 (Tex. 1964). Interpleader is a disinterested stakeholder and should be awarded costs and reasonable attorney’s fees. It was necessary for Plaintiff/Interpleader to hire [name of attorney] to prepare this Petition to Inter­plead Funds.

The reasonable and necessary attorney’s fees incurred in filing this petition are $[amount], which is established by the affidavit of [name of attorney] attached hereto as Exhibit A.

 

VI.

Conclusion

For the reasons stated, Plaintiff/Interpleader requests that Defendants appear and answer, asserting their respective claims to the Excess Funds from the sale, which Plaintiff/Interpleader is ready to deposit with the Court, and that, on final hearing, Plaintiff/Interpleader have the following:

1.That Plaintiff/Interpleader be released and discharged from all liability as to each Defendant and any other third party that may make a claim to the Excess Funds from the sale.

2.That Plaintiff/Interpleader have and recover a reasonable fee for the services of its attorney, together with all costs of Court and expenses incurred by Plaintiff/Inter­pleader in this suit, with all such fees, costs, and expenses to be paid out of the Excess Funds from the sale before any award to the prevailing party.

3.Such other and further relief to which Interpleader may be justly entitled.

Respectfully submitted,

   
[Name of attorney]
State Bar No.:
[Email address]
[Address]
[Telephone]
[Telecopier]