expedited foreclosure: new rules 735 and 736 · hyatt regency hill country resort & spa san...

19h Annual Robert C. Sneed

TEXAS LAND TITLE INSTITUTE

Expedited Foreclosure: New Rules 735 and 736

December 3-4, 2009 Hyatt Regency Hill Country Resort & Spa

San Antonio

Mr. G. Tommy Bastian Barrett Daffin Frappier Turner & Engel, L.L.P. 15000 Surveyor Blvd., Suite 100 Addison, TX 75001 [email protected] 972.340.7939

G. Tommy BastianBarrett Daffin Frappier Turner & Engel, L.L.P.

15000 Surveyor Blvd., Ste. 100Addison, Texas 75001

[email protected]

G. Tommy Bastian is Board Certified in Residential Real Estate Law by the Texas Board of Legal Specialization and focuses his practice on mortgage banking issues related to title, real estate, probate and class action litigation, as well as legislative matters. He is the author of more than 50 articles and publications, to include the MERS chapter in the Thomson/West Texas Practice Series on Texas Foreclosure: Law and Practice edited by W. Mike Baggett, and a frequent lecturer on mortgage banking related issues in both Texas and nationwide. Mr. Bastian is a graduate of Howard Payne University, Texas Tech Law School, the U.S. Army Command and General Staff College, and the U.S. National Defense Security University. Currently, he is a Director of the Texas Mortgage Bankers Association; a member of the American Land Title Association Education Committee; member of the MBA State Legislative and Regulatory Committee; and the State Bar of Texas Real Estate Legislative Affairs Committee. In 2006, he served on the Residential Foreclosure Task Force mandated by House Bill 1582 and was the Course Director for the State Bar of Texas Real Estate Advanced Course 2006. Mr. Bastian served as the principal draftsman for the Texas Supreme Court Task Force responsible for Rule 735 and 736 dealing with foreclosure of home equity, reverse mortgage, home equity line of credit, and transferred tax liens. Designated as a Texas Super Lawyer for the years 2004 – 2009, Mr. Bastian was also selected as a National Banking Super Lawyer - Corporate Counsel Edition 2008.

Expedited Foreclosure New Rule 735 and 736

G. Tommy BastianBarrett Daffin FrappierTurner & Engel, L.L.P15000 Surveyor Blvd., Ste. 100Addison, Texas 75001Phone: 972.341.0500Facsimile: 972.341.0734E-mail: [email protected]

2009 TEXAS LAND TITLE INSTITUTE

Proposed Texas Rules of Civil Procedure 735 and 736

At the time this presentation was due to the TLTA for printing the course materials, the 103rd draft of the new rules proposed by the Texas Supreme Court Task Force, and twice vetted by the Supreme Court Advisory Committee, was under final review by the Texas Supreme Court.

1


Principles UnderlyingT.R.C.P. 735 and 736

TEX. CONST. art. XVI §50(r)

EXPEDITE

Tax Code §32.06(c)

“The supreme court shall promulgate rules of civil procedure for expedited foreclosure proceedings related to the foreclosure of liens under Subsection (a)(6) of this section andto foreclosure of a reverse mortgage lien that requires a court order.”

“To execute quickly and efficiently”American Heritage Dictionary

“Except as otherwise provided by this section, the transferee of a tax lien and any successor in interest is entitled to foreclose the lien:

(2) in the manner specified in Section 51.002 Property Code, and Section 32.065 Tax Code, after the transferee or a successor in interest obtains a court order for foreclosure under Rule 736 Texas Rules of Civil Procedure.”

CAVEAT: Published versions of Tax Code §32.06 do not contain Section 4 of SB 1520 [80th Legislature] that states that all transferred tax liens that were transferred prior to September 1, 2007, do not require a court order for a non-judicial foreclosure.

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Task Force Drafting PrinciplesDon’t change current Texas foreclosure law

The foreclosure process should be challenged by a regular lawsuit, not the expedited rule required by the Constitution

Rule 736 is modeled on the forcible entry and detainer statutes, i.e., a quick determination of one issue: whether the applicant may continue a foreclosure under the loan agreement and Chapter 51, Tex. Prop. Code

All respondents are entitled to a hearing but only if the respondent files a written response with the court

The form and nomenclature of the pleadings should be distinctive so that clerks will know a Rule 736 proceeding is not a regular lawsuit

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If a respondent fails to file a response, a default order should be signed without delay so the file may be closed and removed from the docket

Since a §50(a)(6) or (7) loan is non-recourse without personal liability, a Rule 736 proceeding is an in rem action against the property securing the debt, not a person; therefore, if the mortgagor is deceased and no probate is pending, the heirs should be named as parties and served with process

A Rule 736 order does NOT foreclose the property. After a Rule 736 order is signed, the regular foreclosure process continues. After an order is signed, the respondent must be given at least 21 days written notice of the date and time of a foreclosure sale at a minimum

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Task Force Drafting Principles


Similar to an eviction suit, a Rule 736 order is appealed by filing a regular lawsuit challenging any aspect of the foreclosure process de nova

A respondent may vacate a Rule 736 order by filing a regular lawsuit by 5:00 p.m. on the Monday prior to the scheduled foreclosure sale date without having to file a TRO and post a bond

The Task Force members drafting the new rules represent most of the interest groups affected by the rules: judges, district clerks, court coordinators, lenders, consumers, title companies, legal aid clients, mortgage servicers, transferred tax lien lenders, realtors, and the public

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Task Force Drafting Principles


Foreclosure TimelineForeclosure Process Starts

30 days after debtor misses a mortgage

payment

Month 1

At least six calls and two letters from mortgage

servicer to debtor seeking to cure default status

Month 2At least six calls and three letters to debtor from the

mortgage servicerNotice of default sent pursuant to TPC 51.002

Month 3

At least eight calls and two letters from

mortgage servicer to debtor to cure default

Month 4Foreclosure referral sent to law firm

Fair Debt Collection Practices Act (FDCP) letter sent to debtor

During foreclosure process, the mortgage servicer attempts to cure the default by

various loss mitigation alternatives, and the foreclosure sale date is postponed if a cure

is viable

Month 9 and 10

Foreclosure sale – first Tuesday of the month

2009 Texas Mortgage and Foreclosure StatisticsLoans Seriously Delinquent

Texas Loans Serviced (90 days due or in foreclosure)1st Quarter 2nd Quarter 1st Quarter 2nd Quarter

Total Loans 3,105,746 3,094,268 140,069 144,811Prime Loans 2,017,919 1,997,822 42,981 46,948Subprime Loans 369,560 359,817 51,701 56,743Source: MBA National Delinquency Report

Month 5

TRCP 736 application filedRespondent is served with the application

Month 6

Respondent’s response (answer) is due 38 days

after service of process

Month 7

If a response is filed, a hearing is held; otherwise,

a default order is granted

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Month 8Notice of foreclosure sale date sent to the debtorPosting notice filed in accordance with T.P.C.

51.002

6


Unique Working Terms

25 DefinitionsHeirHolder of a Recorded Preexisting First Lien on the PropertyInvestorLoan AgreementMERSMortgage ServicerMortgageeTransferred Tax LienTransferee or Property Tax Lender

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Foreclosure ProceedingsAn application is filed in district court in the county where a major portion of the secured property is

located

UNLESS

The respondent is deceased and then in a probate court where an administration is

pending or a determination to declare heirship proceeding would be filed

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Promulgated FormsAPPLICATION for:

Home Equity

Reverse Mortgage

Home Equity Line of Credit

Separate APPLICATION for:Transferred Tax Lien

DECLARATION

CITATION

DEFAULT ORDER

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Duties of Applicant with Regards to Service

Provide sufficient copies of application, declaration, and mandated exhibits to clerk of court

Provide name and last known address for each respondent to clerk of court

Provide the appropriate response date for each citation

All filing fees and citation costs must be paid as a condition precedent for filing an application

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CitationOne citation for each debtor and mortgagor

Two citations for service on the property

Additionally for a transferred or property tax loan:Property ownerHolder of recorded preexisting first lien

If a respondent is deceased, citation for:Personal representative; orThe “heirs” in accordance with Tex. Prob. Code §50

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Mailing of Citation by Clerk

First class mail to each respondent

Response date:From the date of mailing, 38 days and next Monday – unless it falls on a federal holiday, and then the next day

$10 fee paid to clerk to mail citation

Citation cost must be paid at the time of filing

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Service of Citation on PropertyCitation directed to “RESIDENT of [Property Address]”

Served on any person over 16 years of age residing at property

If service on a person is not possible, citation affixed to front door in envelope with notation “TO THE RESIDENTS OF [PROPERTY ADDRESS] –IMPORTANT LEGAL DOCUMENTS INSIDE”

If citation envelope can’t be affixed to front door:Citation served by U.S. Postal Service Express Mail or by a commercial delivery service within 24 hours

No response date for a citation served on property

Return of citation on property must be on file at least 20 days before default order may be signed

13


Service on “Holder of a Recorded Preexisting First Lien on the Property”

Personal service by sheriff, constable, or any other person authorize to serve process under T.R.C.P. 103

Delivery of citation directed to:Person, if natural personTexas registered agentPresident, vice-president or general counselIf non-resident, Texas Secretary of State under T.C.P.R.C.

§17.044 and §17.045Office managerMortgage servicerOtherwise:

Holder of lien listed on recorded deed of trust under T.R.C.P. 106(b)

14


Dead Debtor Application and Service

If a dependent or creditor’s probate administration is pending and a qualified personal representative is appointed, proceed as a preferred claim against the estateIf an independent administration is pending, service on the qualified personal representative and suit filed in district courtIf no probate is pending or no personal representative is qualified, application filed against all heirs in probate court with a contemporaneous application to determine heirship under Tex. Prob. Code §§48-50

15


Amendment of Application

If either the beneficial ownership or servicing of a loan agreement changes before a Rule 736 order is signed, the application must be amended to reflect changes

Amended application must be re-served on all respondents if mortgage servicer changes

16


Response

Response in the form of a general denial

Response must affirmatively plead:Debtor or mortgagor didn’t sign loan agreementDollar amount of default is materially incorrectAny document attached to the application is not a true and correct copyProof of payment in accordance with T.R.C.P. 95

COUNTERCLAIMS, CROSS CLAIMS, THIRD PARTY CLAIMS, INTERVENTIONS, OTHER CAUSES OF ACTION AND CLAIMS

MUST BE FILED IN AN INDEPENDENT SUIT

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Hearing When Response Filed

If a Response is filed, applicant must obtain a hearing date. The hearing must be set not earlier than 20 days and not later than 30 days after the request for hearing was made.

THE ONLY ISSUE TO BE DETERMINED IS WHETHER A RULE 736 ORDER SHOULD BE

GRANTED OR DENIED

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DefaultApplicant must file a motion for default and attach a proposed order ready for Judge’s signature

Judge must sign a default order within 20 days after a motion for default is filed

All matters alleged in application are accepted as prima facie evidence of truth of matter alleged

Application and declaration must be same or similar to promulgated form

Mailing and service of citation must be properly made and return of citation timely filed with clerk of the court

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Discovery

NONE

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OrderA promulgated form

Not subject to motion for rehearing, new trial, or appeal under Texas Rules of Appellate Procedure

Presiding judge must provide reason why an order is denied

A Rule 736 order is “appealed” by filing a regular lawsuit in a court of competent jurisdiction

A Rule 736 order expires in 180 days from date of signing

21


Effect of Order

No effect on any other judicial proceeding and a Rule 736 order cannot be construed as an admission of liability by respondent

22


Bankruptcy

If a respondent files bankruptcy after an application is filed, unless the automatic stay is lifted or the bankruptcy is dismissed or closed within 90 days of mailing citation to debtor, the Rule 736 proceeding is dismissed.

If a Rule 736 order is signed and the respondent files bankruptcy thereafter, the order is void if the property is not foreclosure within 180 days after the order is signed.

23


Abatement, Dismissal, Annulment of Order

A Rule 736 proceeding is automatically abated and dismissed if before a Rule 736 order is signed, a separate lawsuit is filed in a court of competent jurisdiction and notice of the independent suit is filed in the court where the application was filed.

A signed Rule 736 order is automatically void if a separate lawsuit is filed no later than 5 p.m. on the Monday prior to the posted foreclosure sale; a copy of the suit is filed with the clerk of the original court; and the respondent makes a good faith effort to deliver a copy of the suit to the trustee, substitute trustee or applicant’s attorney before the foreclosure sale is conducted.

If respondent in “bad faith” fails to deliver notice of the independent suit which could have prevented the foreclosure sale, the respondent may be subject to monetary sanctions by the court.

24


Attachment of Order toSubstitute Trustee’s Deed

A conformed copy of the Rule 736 order must be attached to the trustee or substitute trustee’s

deed after foreclosure.

25


Future Statutory Changes Affecting Rules

Incorporates T.R.C.P. 818 and 819, which provides that the statutes and citations

contained in the current rule will be automatically updated with any successor

statutory changes

26

1

Proposed Amendments to Rules 735 and 736 of the 1

Texas Rules of Civil Procedure 2

3 PART VII. RULES RELATING TO SPECIAL PROCEEDINGS 4 5 SECTION 1. PROCEDURES RELATED TO HOME EQUITY, REVERSE 6 MORTGAGE, HOME EQUITY LINE OF CREDIT, AND TRANSFERRED TAX LIEN 7 OR PROPERTY TAX LOAN FORECLOSURES 8 9 RULE 735. Home Equity, Reverse Mortgage, Home Equity Line of Credit, and 10

Transferred Tax Lien or Property Tax Loan Foreclosures. 11 12 735.1. Applicability. 13 This section applies to foreclosure of a: 14

(a) Home equity loan agreement under Article XVI, Section 50(a)(6), Texas 15 Constitution; 16

(b) Reverse mortgage loan agreement under Article XVI, Section 50(a)(7) Texas 17 Constitution; 18

(c) Home equity line of credit loan agreement under Article XVI, Section 50(t), 19 Texas Constitution; or 20

(d) Transferred tax lien or property tax loan agreement described in Sections 32.06 21 and 32.065, Tax Code, and Section 351.002(2), Finance Code. 22

23 735.2. Definitions 24 In this section: 25

(a) “Account” means the servicing records and documents related to a debtor’s loan 26 agreement kept in the regular course of business in electronic or other format. 27

(b) “Applicant” means the person seeking a Rule 736 order. 28 (c) “Commercial delivery service” means a document delivery carrier or enterprise 29

that provides proof of delivery in the regular course of business. 30 (d) “Declaration” means a statement made by an officer or employee of the mortgage 31

servicer servicing a debtor’s loan agreement that must be attached to an 32 application filed under this rule. The statement must be sworn to before a notary 33 or made under penalty of perjury. 34

(e) “Debtor” means the person liable for payment of the debt evidenced by the loan 35 agreement that encumbers the property. 36

(f) “Heir” means in the context in which the term is used: (a) a person, including the 37 surviving spouse, who is entitled under the statutes of descent and distribution to 38 the property of a decedent who dies intestate; (b) a distributee or legatee entitled 39 to a decedent’s property under a will probated in the county where the property is 40 located; or (c) the current, qualified personal representative of the decedent’s 41 estate; and (d) if a respondent is deceased a person who is served with citation 42 under Section 50 Probate Code. 43

(g) “Holder” means a person entitled to enforce an instrument as the term is defined 44 in Section 3.301 Business and Commerce Code. 45

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(h) “Holder of a recorded preexisting first lien on the property” under Section 46 32.06(c-1), Tax Code, means the current owner, or holder, or transferee of a loan 47 agreement secured by a “recorded preexisting first lien” as that term is defined in 48 this rule. 49

(i) “Investor” means, for a loan agreement that is sold on the secondary market or 50 securitized: (a) a person who suffers the risk of loss, without reference to any 51 contractual guarantees, if the debtor defaults; (b) a person for whose benefit the 52 mortgage servicer remits the principal and interest, less servicing fee, received 53 from the debtor’s scheduled loan agreement payments; or (c) the legal, beneficial, 54 or equitable owner of the debtor’s loan agreement that may be held by a trust, 55 special purpose entity, or government sponsored enterprise. 56

(j) “Last known address” means: 57 (1) For a debtor, mortgagor, property owner, or owner of the property: 58

(i) the property address, if the person’s residence is the property 59 encumbered by the loan agreement; or 60

(ii) if the property encumbered by the loan agreement is not the 61 person’s residence, both the property address and the person’s 62 most recent address contained in the servicing records of the 63 current mortgage servicer; 64

(2) For a holder of the current recorded preexisting first lien, the current 65 address for the person described in Rule 736.6, who is to be served with 66 citation; or 67

(3) For an heir, the heir’s residence or business address. 68 (4) If a person provides a change of address in writing to the mortgage 69 servicer of the debtor’s loan agreement as provided in Section 51.0021, Property 70 Code, beginning 20 days after receipt of the change of address by the servicer, the 71 last known address is the person’s new address. Previous notices properly sent to 72 the person’s former address are not required to be re-mailed or re-served. 73

(k) “Loan agreement” means the note, security instrument, and any other instrument 74 executed contemporaneously in a document or electronic format that evidences an 75 obligation to pay a loan encumbering the property. 76

(l) “Mortgage Electronic Registration Systems, Inc.” or any derivation of the name to 77 include “MERS”, means the book entry system referred to in Section 51.0001(1), 78 Property Code, and may be the mortgagee of record in the official real property 79 records; the nominee of the lender or the lender’s successors or assigns; or the 80 beneficiary of the security instrument encumbering the property. 81

(m) “Mortgage servicer” means: 82 (1) the last person to whom a debtor has been instructed to send payments for 83

a debt evidenced by the debtor’s loan agreement and responsible for the 84 administration and servicing of the debtor’s account; 85

(2) a person authorized to administer foreclosure of the property under 86 Section 51.0025, Property Code; or 87

(3) if the debtor’s loan agreement has been securitized, the person who: 88 (i) is obligated in writing to service the debtor’s loan agreement and 89

account; and 90 (ii) remits the principal and interest, less servicing fee, received from 91

the debtor’s scheduled loan agreement payments to the investors or 92

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the person responsible for distributing the debtor’s payments to the 93 investors; or 94

(iii) the holder or transferee of the debtor’s note and loan agreement 95 (n) “Mortgagee” means: 96

(1) the owner, holder, transferee, or investor of the debtor’s loan agreement; 97 (2) the current grantee, nominee of the lender or lender’s successors or 98

assigns, beneficiary, or mortgagee of record of the recorded security 99 instrument securing the debtor’s loan agreement; 100

(3) the book entry system described in Section 51.0001(1), Property Code; 101 (4) the current mortgage servicer of the debtor’s loan agreement; or 102 (5) the owner, holder, or transferee of a transferred tax lien or property tax 103

loan agreement. 104 (o) “Mortgagor” means a person who is the grantor of a security agreement evidenced 105

by a security instrument that encumbers the property. 106 (p) “Person” means an individual, corporation, estate, trust, partnership, association, 107

joint venture, limited liability company, limited liability partnership, or any other 108 legal or governmental entity, enterprise, or organization. 109

(q) “Property” means the real property, fixtures, and improvements encumbered by a 110 loan agreement sought to be foreclosed under Rule 735 or 736. 111

(r) “Property address” means the street address assigned by the U.S. Postal Service to 112 the property and, if the U.S. Postal Service has not assigned a street address, the 113 legal description of the property. 114

(s) “Property owner” under Sections 32.06 and 32.065, Tax Code, means a debtor 115 who is liable to pay a transferred tax lien or property tax loan agreement that 116 encumbers the property, and is the “owner of the property” who must be served 117 with an application under Section 32.06(c)(2) and Section 32.06(c-1) Tax Code. 118

(t) “Property tax loan” means a loan agreement, as provided for in 32.065(b), Tax 119 Code, and as defined in Section 351.002, Finance Code. 120

(u) “Recorded preexisting first lien” under Section 32.06(c)(2) and (c-1), Tax Code, 121 means a current contractual lien that encumbered the property at the time the 122 transferred tax lien was recorded, and was recorded first in time to any other 123 current contractual lien that encumbers the property in the official real property 124 records. 125

(v) “Respondent” means a person named as a responding party in a Rule 736 126 application. 127

(w) “Security instrument” means a deed of trust or other contractual lien document 128 that evidences a security agreement encumbering the property. 129

(x) “Servicing” means activities related to the administration of a debtor’s loan 130 agreement in the regular course of business and may include: 131 (1) accounting, record keeping, escrow administration, and communication 132

with the debtor and third parties; 133 (2) receiving loan payments from a debtor and remitting to the owner or 134

investor of the debtor’s loan agreement the principal and interest, less 135 servicing fee, received from the debtor; 136

(3) administering foreclosure of the property in accordance with Section 137 51.0025, Property Code. 138

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(4) enforcing the debtor’s note as the holder or transferee, pursuant to a 139 written agreement as the agent for the principal entitled to the payments 140 due under the note and loan agreement. 141

(y) “Transferee” means a person receiving delivery of an instrument for the right of 142 enforcement as described in Section 3.203 Business and Commerce Code. 143

(z) “Transferred tax lien” or “property tax loan” means a lien, provided in Section 144 32.065(b), Tax Code, and as defined in Section 351.002, Finance Code. 145

(aa) “Transferee” or “property tax lender” under Sections 32.06(c) and (c-1) Tax Code 146 and 32.065, Tax Code, means a person authorized to pay the taxes of another and 147 the person, or the person’s successors in interest, who is the owner or investor of a 148 transferred tax lien or property tax loan and as further defined in Section 351.002, 149 Finance Code. 150

151 735.3. Foreclosure Proceedings 152

(a) A person seeking to foreclose a lien described in Rule 735.1, except as provided 153 in 735.3(c), must obtain from a district court or court with equivalent jurisdiction 154 in a county where all or a major portion of the property is located: 155 (1) a judgment for judicial foreclosure; or 156 (2) an expedited order under Rule 736 to continue with the foreclosure 157

process. 158 (b) A Rule 736 order resulting from a Rule 736 application may be obtained as a 159

counterclaim, cross claim, intervention, probate or decedent related proceeding, or 160 other third party proceeding brought in a district court or court with equivalent 161 jurisdiction. 162

(c) If the debtor, mortgagor, property owner or owner of the property is deceased and 163 the decedent’s interest in the property is passed pursuant to Section 37, Probate 164 Code, a judgment or order described in (a)(1) or (2) must be obtained: 165

(1) in the probate court where the decedent’s estate is currently 166 pending: 167

(2) if a probate proceeding is not currently pending for the decedent’s 168 estate, in the probate court where a proceeding to declare heirship 169 under Section 48, Probate Code, should be filed; or 170

(3) if a probate application has been filed but a personal representative 171 is not currently qualified, in the probate court in which the 172 application is pending. 173

(d) After a judgment or order is obtained under Rule 735 or 736, a person may 174 proceed with the foreclosure process under the loan agreement and applicable 175 law. 176

177 Rule 736. Expedited Court Order Proceeding 178 179 Rule 736.1. A Rule 736 Forms 180

(a) A form representing the Rule 736 application, declaration, citation, and order 181 required under this rule shall be the same or substantially the same or similar to 182 the current Rule 736 Forms found on the Texas Supreme Court website at 183 www.supreme.courts.state.tx.us in the Forms subsection of the Rules section, 184 which may be altered if appropriate under these rules A Task Force appointed by 185 the Supreme Court shall update the forms within 90 days after the close of each 186

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regular legislative session to expedite a finished promulgated form effective the 187 following January 1st. 188

(b) All allegations, statements of fact, and exhibits required in the promulgated 189 Official and Procedural Rule 736 Forms are made a part of this rule by reference 190 for all purposes. All exhibits attached to an application or declaration must be 191 clearly legible and reasonably capable of being read or deciphered, unless it is a 192 copy of a government document that was filed or recorded as a public record, 193 which is not legible. 194

195 736.2. Duties of Applicant 196

(a) The applicant shall provide the clerk of the court for each citation directed to a 197 debtor, mortgagor, property owner, holder of a recorded preexisting first lien on 198 the property, or other respondent required to be served with process under this 199 rule or Section 50 Probate Code with: 200 (1) sufficient copies of the application, declaration, and exhibits for 201

attachment to each citation, unless the filing was made electronically and 202 the clerk directs that copies are not required; 203

(2) a statement containing: 204 (i) the name and last known address or address for service of process to 205

be directed to each person to be mailed or served with citation; and 206 (ii) the property address of the property sought to be foreclosed with the 207

instructions that the citation mailed to the property by the clerk of 208 the court and the citation personally served on the property shall be 209 addressed to “RESIDENT OF [property address]”. 210

(3) a self addressed postage prepaid envelope or wrapper for the return of all 211 citations served by the clerk, unless the clerk instructs otherwise. 212

(b) A condition precedent for filing an application with the clerk of the court is the 213 payment of all fees and costs due for filing the application, preparation and 214 mailing by the clerk of the court each citation directed to a respondent under this 215 rule. 216

(c) All costs, fees, and expenses shall be taxed as costs of court and paid by applicant, 217 unless the court directs otherwise. 218

219 736.3. Citation 220

(a) The response date contained in a citation mailed by the clerk of the court in 221 accordance with Rule 736.4 shall be the first Monday – unless the Monday is a 222 federal or state holiday and then the next day – after the expiration of 38 days of 223 mailing of the citation. 224

(b) The response date contained in a citation directed to the holder of a recorded 225 preexisting first lien encumbering the property shall be the Monday next 226 following the expiration of 20 days after the date service is made under Rule 227 736.6. 228

(c) For citations addressed to “RESIDENT OF [property address]”and both mailed 229 and served on the property, as provided in Rule 736.5, no return date is 230 applicable. 231

(d) The clerk of the court shall attach to each citation a copy of the application, 232 declaration, exhibits. . 233

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(e) The clerk of the court shall prepare other citations as directed by the requesting 234 party. The cost for preparing and issuing each citation shall be in accordance with 235 Section 51.317, Government Code. 236

(f) The return of service of each citation shall be in accordance with Rule 107 and as 237 provided in this rule. 238

239 736.4. Mailing of Citation by Clerk by First Class Mail 240

(a) The clerk of the court shall mail a citation by first class mail directed to each 241 respondent, the “RESIDENT OF [property address]”and as instructed by 242 applicant. 243

(b) Service is complete when a citation with application, declaration, and exhibits is 244 deposited into the custody and control of the U.S. Postal Service in a properly 245 addressed, postage prepaid wrapper or envelope. 246

(c) The return date of a citation mailed by the clerk of the court is the date a citation 247 was placed in the custody and control of the U.S. Postal Service in accordance 248 with the clerk of the court’s standard mailing procedures. 249

(d) A return of service that is regular on its face is prima facie evidence of proper 250 service by first class mail. 251

(e) If a respondent is deceased, on applicant’s instructions, the clerk of the court 252 under 735.3(c)(ii) or (iii) shall prepare and deliver citation in accordance with 253 Section 50, Probate Code. 254

(f) To compensate for the costs of handling and mailing, the clerk of the court may 255 collect a reasonable fee not to exceed $10.00 for each citation mailed under this 256 rule. 257

258 736.5. Service of Citation on the Property by Delivery to the Property Address 259

(a) The clerk or applicant shall deliver a citation directed to the property addressed to 260 “RESIDENT of [property address]” to any sheriff, constable, or other person 261 authorized by Rule 103 to serve citations. 262

(b) The citation with application, declaration, and exhibits shall be placed in a plain 263 wrapper or envelope without any other markings except the following 264 conspicuous notation: 265

TO THE RESIDENTS OF [PROPERTY ADDRESS] 266 IMPORTANT LEGAL DOCUMENT INSIDE 267

(c) The citation shall be personally served by delivering the citation to any person 268 over the age of sixteen (16) years residing at the property. 269 (1) If service on a person at the property address is unsuccessful, the citation 270

shall be served by securely affixing the envelope or wrapper to the front 271 door or main entry of the property. 272

(2) If the property cannot be accessed or is located in a gated community, the 273 authorized process server shall deposit the citation in a prepaid wrapper or 274 envelope addressed to “RESIDENT at [state property address]” with the 275 notation “DO NOT RETURN TO SENDER” into the custody and control 276 of the U.S. Postal Service’s express mail service or a commercial delivery 277 service. within 24 hours of the attempted delivery of citation on the 278 property, 279

(d) The name and address of the process server, and the date, time, and ultimate 280 method of the service of citation under (c) shall be stated on the return. If service 281

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is by prepaid express mail or commercial delivery service, the document tracking 282 number and original receipt of payment of the delivery charge shall be attached to 283 the return filed with the clerk of the court. 284

(e) The recipient of a citation addressed to the resident at the property address is not 285 required to file a response unless the recipient is otherwise named as a respondent. 286

(f) The returns of service on the property under 736.5 must be on file with the clerk 287 of the court at least 20 days before a judge may sign a default order. 288

(g) The cost for service of a citation on the property at the property address shall be 289 taxed as a cost of court and paid by the applicant. 290

291 736.6. Service of Transferred or Property Tax Lien Application on the Holder of a 292

Recorded Preexisting First Lien on the Property 293 (a) In addition to service of process on the respondents who are the debtor, 294

mortgagor, property owner or owner of the property, or, if the person is deceased 295 under Section 50 Probate Code, the applicant shall obtain personal service on any 296 person who is the current holder of a recorded preexisting first lien on the 297 property by delivery of citation to any sheriff, constable, or other person 298 authorized by Rule 103 to serve process for a transferred tax lien or property tax 299 loan application. 300

(b) Service of citation shall be directed to the current holder of a recorded preexisting 301 first lien by delivery of the citation to: 302 (1) the person, if a natural person; 303 (2) the person’s current Texas registered agent; 304 (3) the person’s president, vice president, or general counsel at the person’s 305

principal place of business; 306 (4) if the person is a non-resident, the Texas Secretary of State with a 307

statement containing the name and address of the non-resident person’s 308 residence or home office in accordance with Sections 17.044 and 17.045, 309 Civil Practices and Remedies Code; 310

(5) the office manager or the person in charge who is over 21 years of age at 311 the person’s current principal place of business address, if the person is an 312 unincorporated business association; 313

(6) the current mortgage servicer of the recorded preexisting first lien; or 314 (7) in the event that service cannot be affected under (1)-(6): 315

(i) the address of the holder of the recorded preexisting first lien on 316 the property as listed in the document evidencing the lien recorded 317 in the real property records; or 318

(ii) the person or persons otherwise entitled to service of a petition in 319 the manner set forth in Rule 106(b). 320

(c) The cost for service of a citation on any person who is the current holder of a 321 recorded preexisting lien on the property shall be taxed as a cost of court and paid 322 by the applicant 323 324

325 326

736.7. Application and Service on Heirs of Decedent 327 (a) If a debtor, mortgagor, property owner or owner of the property, or holder of a 328

recorded preexisting first lien on the property as defined in Rule 735.3 is 329

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deceased, the promulgated forms contained in Rules 736.2 and 736.17 must be 330 modified to include the following: 331 (1) The deceased person shall be identified by name and last known address 332

and thereafter identified as “Decedent” in the application, declaration, and 333 order. 334

(2) If a probate proceeding has been opened for the decedent’s estate, provide: 335 (i) the type of probate proceeding opened for the decedent’s estate; 336 (ii) if the probate proceeding requires the appointment of a personal 337

representative, the name, address, and date the person qualified as 338 the personal representative of the decedent’s estate; 339

(iii) the caption of the proceeding to include name of the decedent, case 340 or cause number, court, county, state, and date of filing of the 341 probate proceeding; and 342

(iv) a statement that [name of personal representative] is the qualified 343 personal representative of the decedent’s estate. 344

(3) If a probate proceeding has been opened for the decedent’s estate 345 requiring the appointment of a personal representative, but an order 346 appointing a personal representative has not been entered or a personal 347 representative has not been qualified, provide: 348 (i) the caption of the proceeding to include the name of decedent, case 349

or cause number, court, county, state, and filing date of the probate 350 proceeding; 351

(ii) the name and address of the person opening the probate proceeding 352 and the person’s attorney of record, if any; and 353

(iii) a statement that no person has qualified as the personal 354 representative of the decedent’s estate. 355

(4) A statement specifying whether the surviving spouse acquires all right title 356 and interest of the decedent’s interest in the property in accordance with 357 Section 45, Probate Code, as it may be amended, and if so, the name and 358 current address of the surviving spouse. 359

(5) If the surviving spouse does not acquire the decedent’s interest in the 360 property or the decedent’s spouse predeceased the decedent and no 361 personal representative for the decedent’s estate has qualified, provide: 362 (i) the name and last known address of the surviving spouse and the 363

name and last known address of each heir who has an interest in 364 the property sought to be foreclosed under the statutes of descent 365 and distribution to the second degree of consanguinity as provided 366 in Section 573.024, Government Code; 367

(ii) if the name, last known address, or whereabouts of the surviving 368 spouse or an heir is unknown, describe the due diligence exercised 369 to find or locate the whereabouts of the spouse or heir; and 370

(iii) if an heir is a minor child or non compos mentis person, state the 371 name and last known address of such person and identify by name 372 and last known address the parent, natural guardian, next friend, or 373 person with a power of attorney for the person or if a guardianship 374 has been opened for the person the name and last known address of 375 the guardian of the person’s estate. 376

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(6) State the estimated “as is” appraised or fair market value of the property 377 sought to be foreclosed, supported by documentation from two sources 378 which may be a current appraisal, broker’s price opinion (BPO), valuation 379 from an official taxing authority, or automated valuation model appraisal 380 (AVM) that is less than six months old. 381

(7) If the decedent’s will has been probated in the county where the property 382 is located, identify by name and last known address of all the distributees 383 of the property under the decedent’s will. 384

(8) State whether there is any equity in the property after deducting the payoff 385 of the lien sough to be foreclosed, any known inferior liens, and the 386 amount of any governmental liens to include ad valorem liens 387 encumbering the property as of a date that must be within 60 days of the 388 date of filing the application, and provide a schedule showing how the 389 equity calculation was made. 390

(b) The applicant is responsible for obtaining personal service on: 391 (1) the personal representative of decedent’s estate if a personal representative 392

has qualified; 393 (2) if a personal representative has not qualified: 394

(i) the surviving spouse who acquires all of the decedent’s right, title, 395 and interest in the property under Section 45, Probate Code, as 396 amended; 397

(ii) if the surviving spouse does not acquire the decedent’s interest in 398 the property under Section 45, Probate Code, as amended, the heirs 399 of the decedent in the order of taking to the second degree of 400 consanguinity under Section 573.024, Government Code, with 401 service of citation for each heir who is a minor child or a non 402 compos mentis person on the person’s legal guardian and if no 403 legal guardian has been appointed, the person’s natural guardian, 404 next friend, or person with a power of attorney for the person’s 405 estate; and 406

(iii) the distributees under the decedent’s will if it is probated in the 407 county where the property is located. 408

(c) If a surviving spouse or an heir must be served and the name or whereabouts of 409 the surviving spouse or heir is unknown, citation by publication is required under 410 Rule 109 or 109a. 411

(d) Notwithstanding other provisions of this rule, if a dependent or creditor’s probate 412 administration is pending for a decedent’s estate and a personal representative has 413 qualified for letters of administration, an application under Rule 735 or 736 must 414 be filed in the probate court where the administration is pending. 415

416 736.7A. Death of Respondent 417

(a) If a respondent with a title interest in the property subsequently dies and the 418 decedent’s interest in the property passes pursuant to Section 37, Probate Code, 419 the application, declaration, citation, and order must be modified to include the 420 following, as applicable: 421 (1) The deceased person shall be identified by name and last known address 422

and referred to as “Decedent” thereafter in the pleadings. 423

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(2) If the decedent’s interest in the property is passed to the surviving spouse 424 in accordance with Section 45, Probate Code, an affidavit of a person 425 other than the surviving spouse, showing personal knowledge of the facts 426 and under penalty of perjury, shall state that the surviving spouse 427 acquired the decedent’s interest in the property under Section 45, Probate 428 Code. 429

(b) This rule incorporates by reference the procedures used in a proceeding to 430 declare heirship under Sections 48, 49, and 50 Probate Code - with the exception 431 of Section 49(a)(7) - as the means to identify and serve with process the heirs of a 432 deceased respondent by a probate court as provided in Rule 735(c)(ii) and (iii). 433

(c) The probate court shall adjudicate a Rule 736 proceeding in accordance with this 434 rule and may adjudicate a proceeding to declare heirship contemporaneously. An 435 order incorporating Section 48(b) and 49(a)(7) Probate Code is not required 436 under this rule unless requested by the applicant or an heir. 437

(d) The probate court shall grant or deny a Rule 736 application rule against the 438 heirs of the decedent who were identified and served with process using and 439 adopting by reference the procedures found Sections 48.49, and 50 Probate Code. 440

(e) After foreclosure of the property, decedent’s share of all excess proceeds 441 remaining in the hands of the trustee or substitute trustee, after payment made in 442 accordance with the terms of the security agreement and to inferior lienholders in 443 order of priority, shall be paid to the decedent’s heirs per capita in accordance 444 with Section 37 Probate Code. If the heirs are unknown or transient persons, the 445 trustee or substitute trustee shall deliver the excess proceeds to the comptroller in 446 accordance with Chapter 74 Property Code, less a reasonable fee that shall be no 447 more than the lesser of $450 or five percent of the excess proceeds. 448

449 736.8. Amended Application 450 If the servicing or beneficial ownership rights of a debtor’s loan agreement are transferred or 451 assigned to another person after an application is filed but before an order is signed under this 452 rule: 453

(a) the application must be amended to reflect the current name, address, and status 454 of the person’s successors or assigns; 455

(b) the amended application must be served in accordance with Rule 21a on each 456 person who filed a response with the clerk of the court; and 457

(c) if a respondent receives notice of a change of the mortgage servicer in accordance 458 with 12 U.S.C. § 2605 an amended application must be re-served on all 459 respondents whose response due date has not expired. 460

461 736.9. Response 462

(a) A response shall be filed with the clerk of the court and a copy of the response 463 with any affidavits, declarations, documents, or other attachments shall be served 464 on the applicant or the applicant’s attorney in accordance with Rule 21a. 465

(b) A response may be in the form of a general denial under Rule 92 except that a 466 respondent must affirmatively plead: 467 (1) a person named as a debtor or mortgagor in the application did not sign a 468

loan agreement document evidencing the debt or did not assume the debt; 469 (2) the dollar amounts claimed as due or in arrears as of the date specified in 470

the application are materially incorrect; 471

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(3) the default under the loan agreement was cured as of the date the response 472 was filed; 473

(4) any document attached to the application is not a true and correct copy of 474 the original; or 475

(5) proof of a payment in accordance with Rule 95. 476 (c) Each response filed by a natural person pro se shall contain the person’s U.S. 477

Postal Service mailing address, property address, phone number, and facsimile or 478 email address, if the person desires to be contacted by facsimile or email. An 479 attorney filing a response shall sign the response in accordance with Rule 57. 480

(d) No counterclaim, cross claim, third party claim, intervention, or other cause of 481 action, proceeding or claim may be filed or considered by the court in a Rule 736 482 proceeding. Such claims or causes of action must be brought in a separate and 483 independent original proceeding filed in a court of competent jurisdiction. If a 484 counterclaim, cross claim, third party claim, intervention, proceeding, cause of 485 action, or claim is filed in a Rule 736 proceeding, the court shall strike such claim 486 in the original Rule 736 proceeding. 487

488 736.10. Hearing When Response Filed 489

(a) If a response is filed applicant shall obtain a hearing date, time, and place from 490 the clerk of the court. The hearing shall be held not earlier than 20 days and not 491 more than 30 days after a request for a hearing is made. The applicant or 492 applicant’s counsel shall send notice of the date, time, and place of the hearing in 493 accordance with Rule 21a to each person who files a response. A duplicate copy 494 of the notice of hearing sent to each person filing a response shall be mailed or 495 delivered to the clerk of the court. Proof of mailing or delivery of the notice of 496 hearing to each respondent filing a response shall be retained by applicant or 497 applicant’s attorney. 498

(b) The only issue to be determined at a Rule 736 hearing is whether the applicant is 499 entitled to proceed with foreclosure under Chapter 51, Property Code, the debtor’s 500 loan agreement, and, if the debtor’s loan agreement is a property tax loan or 501 transferred tax lien loan agreement, Sections 32.06 and 32.065, Tax Code. 502

503 736.11. Default 504

(a) If a respondent fails to file a response, to obtain a default order the applicant must 505 file with the clerk of the court: 506 (1) a motion for default; 507 (2) a proposed order submitted to the court for; and 508 (3) in accordance with the Servicemember’s Civil Relief Act, 50 U.S.C. App. 509

§ 521, (“SCRA Act”) a statement made under penalty of perjury that each 510 Respondent who is a natural person is not in military service and dated 511 within 20 days of the date the motion for default was sent for filing. (Note: 512 a copy of an electronic image obtained from the official SCRA website of 513 the U.S. Department of Defense Manpower Data Center, at 514 www.dmdc.osd.mil/scra/ or the successor website and dated within 20 515 days of the date the motion for default was sent for filing, shall be 516 accepted as true as to SCRA status unless a respondent files a specific 517 denial) 518

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(4) certification of respondent’s last known address in accordance with Rule 519 239a 520

(b) All matters alleged in the application and declaration shall be accepted as prima 521 facie evidence of the truth of the matters alleged if the respondent fails to file a 522 timely response. 523

(c) Within 20 days after a motion for default, proposed order, and SCRA Act 524 statement are filed with the clerk of the court, the court shall sign a default order 525 without a hearing provided: 526 (1) the record shows the application, declaration, and order substantially 527

conform to the Official and Procedural Rule 736 Forms under this rule; 528 and 529

(2) the record shows proper service on all respondents and that the return of 530 service of citation has been on file with the clerk of the court for at least 531 10 days exclusive of the date of filing or, if the return of service relates to 532 service on the property, 20 days exclusive of the date of filing. 533

534 736.12. Discovery 535 No discovery of any kind shall be permitted in a Rule 736 proceeding. 536 537 736.13. Order 538

(a) An order granting or denying an application under Rule 736 is final and is not 539 subject to a motion for rehearing, new trial, bill of review, or appeal. 540

(b) The presiding judge must provide the applicant or respondent filing a response. 541 with a reason or reasons for denial of an order and record the reason or reasons for 542 denial on the court’s docket sheet. 543

(c) Any challenge or appeal of an order signed under this rule must be made in the 544 form of a new suit filed in a separate and independent original proceeding in a 545 court of competent jurisdiction. 546

(d) An order signed under this rule is void if the property is not sold at foreclosure 547 sale within 180 days after the order was signed. 548

549 736.14. Effect of the Order 550 An order and any determination of law or fact made under this rule is without prejudice and has 551 no res judicata, collateral estoppel, or estoppel by judgment effect in any other proceeding or 552 suit. The failure of a respondent to dispute the validity of the debt under this section may not be 553 construed by any court as an admission of liability by the respondent. 554 555 736.15. Bankruptcy 556

(a) If a respondent files bankruptcy before and order is signed and a true and correct 557 file stamped copy of the first page of the bankruptcy petition is filed with the 558 clerk of the court, the Rule 736 proceeding shall be dismissed unless, within 90 559 days after the respondent was served with citation under this rule, the automatic 560 stay under the United States Bankruptcy Code, 11 U.S.C. § 362, is lifted or the 561 bankruptcy case is closed, dismissed, or respondent is discharged. 562

(b) If a respondent files bankruptcy after a Rule 736 order is signed, the order is void 563 if the property is not sold at foreclosure sale within 180 days after the order was 564 signed. 565

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566 736.16. Rule 736 Proceeding Abated and Dismissed By Filing Independent Suit 567 A Rule 736 proceeding is immediately abated and must be dismissed if, before an order is signed 568 under this rule, the respondent: 569

(a) files a separate original civil suit in a court of competent jurisdiction that puts in 570 issue any matter arising under or related to the loan agreement, the property, or 571 the foreclosure process, and 572

(b) files, in the court and under the cause number of the pending Rule 736 573 application, a notice of the filing of the separate original civil suit. 574

(c) Within ten days of the filing of the lawsuit, the respondent shall file a motion to 575 dismiss in the pending Rule 736 proceeding. The motion shall include a file-576 stamped copy of the petition in the new lawsuit as an exhibit. The respondent 577 shall provide the court a proposed order for the court's signature. 578

(d) Upon the filing of a proper motion to dismiss, the court shall sign an order 579 dismissing the Rule 736 proceeding without a hearing. 580

581 736.17. Rule 736 Order Void by Filing Independent Suit 582 An order signed under this rule is void if, no later than 5:00 p.m. the Monday prior to the posted 583 foreclosure sale date, the respondent: 584

(a) files a separate original civil suit in a court of competent jurisdiction that puts in 585 issue any matter arising under or related to the loan agreement, the property, or 586 the foreclosure process, and 587

(b) files, in the court and under the cause number of the pending Rule 736 588 application, a notice of the filing of the separate original civil suit. 589

(c) Within ten days of the filing of the lawsuit, the respondent shall file a motion to 590 vacate the void order and dismiss the Rule 736 proceeding. The motion shall 591 include a file-stamped copy of the petition in the new lawsuit as an exhibit. The 592 respondent shall provide the court a proposed order for the court's signature. 593

(d) Upon the filing of a proper motion to vacate and dismiss, the court shall sign an 594 order vacating the void order and dismissing the Rule 736 proceeding without a 595 hearing. 596

(e) If the property has been posted for a foreclosure sale, the respondent shall provide 597 the trustee, substitute trustee, or applicant's attorney with a copy of the lawsuit by 598 personal or courier delivery, telephonic facsimile, e-mail, or certified mail, or any 599 other reasonable method of giving timely notice to stop the sale of the property. 600

(f) If the applicant, applicant's agent's, representatives or attorney, the trustee or 601 substitute trustee, or the respondent, respondent's agent, representative or 602 attorney, in bad faith fails to take the steps necessary to prevent a void foreclosure 603 sale from commencing, the court that issued the Rule 736 order may impose 604 sanctions, including monetary sanctions, on the offending party or parties in 605 accordance with the procedures in sections 10.002 through 10.005 of the Civil 606 Practices and Remedies Code. 607

608 736.18. Attachment of Order to Trustee’s Foreclosure Deed 609 After foreclosure of the property described in a Rule 736 order, a conformed copy of the court’s 610 Rule 736 order shall be attached to the trustee or substitute trustee’s deed. 611 612 736.19. Supplementation of Citations and References 613

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In accordance with Rules 818 and 819, wherever this section refers to any practice or procedure 614 in any law, statute, or regulation, or to a title, chapter, section, or article of any law or statute, or 615 contains any reference of any such nature, and the matter referred to has been supplanted in 616 whole or in part by these rules, every such reference shall be deemed to be to the pertinent part of 617 these rules. 618 619 736.20. PROMULGATED RULE 736 FORMS 620 The application, declaration, citation, and order required under this rule shall be the same or 621 substantially the same or similar to the promulgated current Rule 736 forms found on the Texas 622 Supreme Court website at www.supreme.courts.state.tx.us in the Forms subsection of the Rules 623 section, which may be altered if appropriate under these rules. 624 625

626

736.20. PROMULGATED RULE 736 FORMS 1 The application, declaration, citation, and order required under this rule shall be the same or 2 substantially the same or similar to the promulgated current Rule 736 forms found on the Texas 3 Supreme Court website at www.supreme.courts.state.tx.us in the Forms subsection of the Rules 4 section, which may be altered if appropriate under these rules. 5

6 7 8

Home Equity, Reverse Mortgage, or Home Equity Line of Credit Application Form. 9 10 11

Cause No.: [______________] 12 13 14

IN RE [ Identify type of loan agreement – see Rule 735.1 ] LOAN AGREEMENT

§ § § §

IN THE [ Type of Court ] COURT

§ APPLICANT: [Name of person seeking to enforce the debtor’s loan agreement – see Rule 735.2] “Applicant”

§ § § § § [ Name ] COUNTY, TEXAS

§ RESPONDENT: [Name of each debtor – see Rule 735.2] “Debtor” [Name of each mortgagor – see Rule 735.2] “Mortgagor” [Name of each spouse, heir, or personal representative, if applicable – see Rules 735.2 and 736.7] [ “Spouse” or “Heir” or “Distributee” or “Personal Representative” ]

§ § § § § § § § § §

[ Court Designation ]

15 THE APPLICANT IS SEEKING AN EXPEDITED RULE 736 ORDER TO ALLOW A 16 NONJUDICIAL IN REM FORECLOSURE TO PROCEED AGAINST THE 17 ENCUMBERED PROPERTY. 18 19

1. APPLICANT: [state name of the person seeking to enforce the loan agreement] 20 (“Applicant”), whose address is [state street address, city, state, and zip code], is 21 seeking to enforce a [state type of loan agreement described in Rule 735.1] loan 22 agreement against [state name of each debtor] (“Debtor”). 23 24

http://www.supreme.courts.state.tx.us/�

The property encumbered by Debtor’s loan agreement is commonly known as 25 [state property address] (“Property”). With respect to Debtor’s loan agreement: 26 [Note: complete (1-a) and (1-b), and, if applicable, (1-c) and (1-d)] 27 (1-a) [State name of the person and choose as appropriate: (“Owner”), or 28

(“Investor”)] of Debtor’s loan agreement is the person who has the legal, 29 beneficial, or equitable right to receive the principal and interest received 30 from Debtor’s scheduled loan agreement payments. 31

(1-b) [State name] (“Mortgage Servicer”), whose address is [state street 32 address, city, state, and zip code], is the current mortgage servicer 33 responsible for administrating and managing Debtor’s loan agreement 34 account [and if applicable state] is the [holder] or [transferee] of Debtor’s 35 note and loan agreement for [state name of Mortgage Servicer’s principal, 36 i.e. Owner, Investor or if Owner is acting as Mortgage Servicer for its own 37 account, state its own account]. 38

(1-c) (Note: if Mortgage Servicer is administering the foreclosure pursuant to 39 Section 51.0025, Property Code state) As Mortgage Servicer of Debtor’s 40 account, [state name of Mortgage Servicer] is administering the 41 foreclosure of the lien against the property in accordance with Section 42 51.0025, Property Code as the agent for its principal [name of owner or 43 investor]. 44

(1-d) (Note: If Mortgage Electronic Registration Systems, Inc., MERS, or a 45 similar derivation of the name is the current mortgagee or record, 46 nominee, or the beneficiary of the recorded security instrument, state) 47 “[The name or derivation of the name used in the security instrument for 48 Mortgage Electronic Registration Systems, Inc., or MERS] (“MERS”) is 49 the mortgagee of record of Debtor’s security instrument filed in the 50 official real property records of [name of Texas county]. MERS is a book 51 entry system referred to in Section 51.0001(1), Property Code [and, if 52 applicable, is the [beneficiary] and the [nominee of lender and lender’s 53 successor and assigns] of the security instrument that encumbers the 54 Property.] 55

56 2. RESPONDENT: 57 58

(Note: in Paragraph 2 complete each subpart and make a separate sub-59 paragraph for each person named as a respondent) 60 (2-a) [State name of each person liable for the loan agreement debt sought to be 61

foreclosed] (“Debtor”) is the person liable for payment of the debt 62 evidenced by the loan agreement that encumbers the property sought to be 63 foreclosed and may be served at [state last known address of each debtor]. 64

(2-b) [State name of each mortgagor of the security instrument sought to be 65 foreclosed] (“Mortgagor”) is a grantor of the security instrument that 66 encumbers the property sought to be foreclosed and may be served at 67 [state Mortgagor’s last known address]. Applicant is not seeking to collect 68 a debt against a mortgagor who is not liable for the loan agreement debt. 69

(2-c) (Note: if Debtor or Mortgagor is deceased, state as appropriate) [Name of 70 surviving spouse] is the surviving spouse and [state name of each heir and 71 describe status, i.e., heir, distribute, or personal representative] of [state 72 name of each deceased Debtor or Mortgagor] (“Decedent”) who was the 73 [state whether Debtor, Mortgagor, or both Debtor and Mortgagor] of the 74 loan agreement encumbering the property sought to be foreclosed. [state 75 name of person] may be served at [state the last known address of the 76 surviving spouse, each heir, distribute, or personal representative, as 77 applicable]. Applicant is not seeking to collect a debt against a surviving 78 spouse or heir who is not liable for the loan agreement debt. 79

3. PROPERTY: The real property, fixtures, and improvements sought to be 80 foreclosed are commonly known as [state property address of the encumbered 81 property] (“Property”) and the legal description of the property is: [state legal 82 description]. 83

4. DEFAULT: According to Mortgage Servicer’s records for Debtor’s loan 84 agreement account that are kept in the regular course of business, as of [state a 85 specific date – the date must be no more than 30 days before the date the affiant 86 executes the Rule 736.2(c) declaration attached to the application], Debtor 87 breached Debtor’s obligations under the terms and conditions of the loan 88 agreement as described in the affidavit or declaration attached to this application 89 and made a part of this application by reference for all purposes. 90 (Note: choose (4-a), (4-b), or (4-c) as appropriate) 91 (4-a) (Note: if the default is a monetary default, state:) “Under the terms of 92

Debtor’s loan agreement note, as of [date stated in 4 above], Debtor has 93 not cured the default and at least [state number of payments in arrears] 94 scheduled loan payments are in arrears. The amount necessary to cure 95 Debtor’s default, which includes principal, interest, escrow for taxes, and 96 insurance, if any, and all other fees and expenses payable by Debtor under 97 the terms of the loan agreement note and security instrument is at least 98 [state reinstatement amount in U.S. dollars] as of [date stated in 4 above]. 99 The amount necessary to pay off Debtor’ loan agreement is at least [state 100 payoff amount in U.S. dollars] as of [date stated in 4 above]. All funds 101 paid by Debtor to Mortgage Servicer have been credited to Debtor’s loan 102 agreement account, to include any funds held in a suspense account. As of 103 the filing date of this Application, Debtor has not cured the default. 104

(4-b) (Note: if the default is a non-monetary default, state:) “Debtor has 105 breached Debtor’s obligations under the terms of Debtor’s loan agreement 106 note and security instrument because [state with specificity the reason for 107 the non-monetary default]. To cure the default, Debtor must [state the 108 acts or omissions necessary to cure the default]. As of the filing date of 109 this application, Debtor has not cured the default. 110

(4-c) (Note: if the security instrument to be foreclosed is a reverse mortgage, 111 state:) “A default under Debtor’s reverse mortgage loan agreement 112 occurred on or about [state date of default] under [state Article XVI, 113 Section 50(k)(6)(c), Texas Constitution; Article XVI, Section 50(k)(6)(d), 114

Texas Constitution; or both Article XVI, Sections 50(k)(6)(c) and (d)]; 115 and 116 (i) [State the nature of the default as of the date specified in (4-c) 117

above and state what must be done to cure the default]; 118 (ii) [State how Applicant obtained the information necessary to form 119

an opinion that the debtor was deceased and there was a default]; 120 and 121

(iii) The estimated fair market value of the Property as determined by 122 [state source for obtaining value, e.g. taxing authority, Broker’s 123 Price Opinion BPO, or other credible source] was [state amount in 124 U.S. dollars] as of [state date]. 125

5. EXHIBITS: The originals or true and correct copies of the original documents 126 related to Debtor’s loan agreement or account are attached to this application and 127 made a part of this application by reference for all purposes. The documents are 128 Rules 803(6) and 902(10) Evidence Code records of Debtor’s account kept by 129 [name of Mortgage Servicer] in the ordinary course of business. The documents 130 attached are listed and marked as exhibits in the order set out below: 131 (5-a) note and evidence, if any, of negotiation or transfer– Exhibit 5A; 132 (5-b) the recorded security instrument and current assignment of the security 133

instrument, if any, filed in the real property records with the county clerk’s 134 indexing information clearly legible – Exhibit 5B; 135

(5-c) the notice or demand to cure the default, notice of intent to accelerate, and 136 notice of acceleration of the maturity of the debt, if required, which were 137 sent to Debtor in accordance with Chapter 51, Property Code, the loan 138 agreement or applicable law– Exhibit 5C; 139

(5-d) proof of mailing by certified mail of all notices described in (5-c) (A copy 140 of an electronic image obtained from the U.S. Postal Service’s official 141 website, a copy of a return receipt or “green card”, or a declaration 142 under penalty of perjury by the Mortgage Servicer or its attorney that 143 correlates to a particular 5-c notice sent by certified mail shall be proof of 144 mailing unless a respondent files a specific denial) – Exhibit 5D; 145

(5-e) a statement by an officer or employee of the current mortgage servicer 146 servicing Debtor’s loan agreement account as provided in Rule 736.2(d) 147 and 736.1, which must be sworn before a notary or made under penalty of 148 perjury – Exhibit 5E; 149

(5-f) in accordance with the Servicemember’s Civil Relief Act, 50 U.S.C. App. 150 § 521, a statement made under penalty of perjury that each Respondent 151 who is a natural person is not in military service (A copy of an electronic 152 image obtained from the official SCRA website of the U.S. Department of 153 Defense Manpower Data Center, at www/dmdc.osd.mil/scra/ or successor 154 website, or a declaration from the mortgage servicer currently servicing 155 the debtor’s account that describes the respondent’s military service 156 status shall be accepted as true unless a respondent files a specific denial) 157 – Exhibit 5F; 158

(5-g) a statement addressed to the clerk of the court providing: (a) the name and 159 last known address and response date for each citation directed to a 160

Respondent to be served with citation under this rule, and (b) the property 161 address – Exhibit 5G; and 162

(5-h) all other notices, declarations, documents, or other instruments of any kind 163 or form required by law and proof of mailing or delivery in any manner 164 required by law up to and including acceleration as a condition precedent 165 for conducting a non-judicial foreclosure against the Property – Exhibit 166 5H. 167

6. OFFSETS AND CREDITS: According to Mortgage Servicer’s records, each 168 Debtor received the use or benefit of the funds advanced under the terms of the 169 loan agreement and all lawful offsets, payments, and credits, including amounts 170 held in suspense, if any, have been applied to the Debtor’s account as of [date 171 stated in 4 above]. 172

7. RELIEF REQUESTED: Because Debtor breached Debtor’s loan agreement 173 obligations, Applicant is seeking a court order so that it may proceed with a non-174 judicial in rem foreclosure of the lien encumbering the Property in accordance 175 with Chapter 51, Property Code, and the loan agreement. 176

7A If a respondent is deceased, applicant must modify this application form by 177 adding all the allegations, except Section 49(a)(7) Probate Code, required in an 178 application to declare heirship under Section 49 Probate Code. If applicant seeks 179 a declaration of no necessity of administration under Section 48(b) Probate Code, 180 the allegations in Section 49(a)(7) must be plead. 181

182 [Signature Block for Applicant in accordance with Rule 57] 183 184

Transferred Tax Lien or Property Tax Loan Application Form. 185 186 187

Cause No.: [______________] 188 IN RE PROPERTY TAX LOAN AGREEMENT ORDER

§ §

IN THE [ Type of Court ] COURT

§ APPLICANT:

[Name of person seeking to enforce the debtor’s loan agreement – see Rule 735.2]

§ § § § §

§ RESPONDENT:

[Name of each owner of the property who is a debtor – see Rule 735.2] “Debtor” [Name of each property owner or owner of the property – see Rule 735.2] “Property Owner” [Name of holder of the current

§ § § § § § § § §

[ Name ] COUNTY, TEXAS

preexisting first lien – see Rule 735.2] “First Lien Holder” [Name of each mortgagor – see Rule 735.2] “Mortgagor” [Name of each spouse, heir, or personal representative, if applicable – see Rule 735.3(f),(g) and (u) ] [“Spouse” or “Heir” or “Distributee or “Personal Representative”]

§ § § § § § § § § § § §

[ Court Designation ]

THE APPLICANT IS SEEKING AN EXPEDITED RULE 736 ORDER TO ALLOW A 189 NONJUDICIAL IN REM FORECLOSURE TO PROCEED AGAINST THE 190 ENCUMBERED PROPERTY IN ACCORDANCE WITH SECTIONS 32.06 AND 32.065, 191 TAX CODE, CHAPTER 51, PROPERTY CODE, AND THE DEBTOR’S 192 TRANSFERRED TAX LIEN OR PROPERTY TAX LOAN AGREEMENT. 193 194

1. APPLICANT: [state name of the person seeking to enforce the property tax loan 195 agreement] (“Applicant”) whose address is [state street address, city, state, and 196 zip code] is seeking to enforce a transferred tax lien or property tax loan 197 agreement against [state name of each debtor] (“Debtor”). 198

199 The property encumbered by Debtor’s loan agreement is commonly known as 200 [state property address] (“Property”). With respect to Debtor’s loan 201 agreement:[Note: complete (1-a) and (1-b), and if applicable (1-c) and (1-d)] 202 (1-a) [State name of the person – choose as appropriate: (“Owner”), or 203

(“Investor”)] of Debtor’s loan agreement is the person who has the legal, 204 beneficial or equitable right to receive the principal and interest received 205 from Debtor’s scheduled loan agreement payments. 206

(1-b) [State name] (“Mortgage Servicer”), whose address is [state street 207 address, city, state, and zip code], is the current mortgage servicer 208 responsible for administrating and managing Debtor’s loan agreement 209 account [and if applicable state] is the [holder] or [transferee] of Debtor’s 210 note and loan agreement. for [state name of Mortgage Servicer’s 211 principal, i.e. Owner, or Investor, or if is acting as Mortgage Servicer for 212 its own account, state its own account]. 213

(1-c) [State name], whose address is [state street address], is the current 214 transferee or property tax lender (“Transferee”) of Debtor’s loan 215 agreement debt encumbered by the Property. 216

(1-d) (Note: if Mortgage Servicer is administering the foreclosure pursuant to 217 Section 51.0025, Property Code, state) As Mortgage Servicer of Debtor’s 218 account, [state name of Mortgage Servicer] is administering the 219 foreclosure of the lien against the Property in accordance with Section 220

51.0025, Property Code as the agent of its principal [name of owner or 221 investor]. 222

(1-e) (Note: If Mortgage Electronic Registration Systems, Inc., MERS, or a 223 similar derivation of the name is the current mortgagee or record, 224 nominee for the lender, or the beneficiary of the recorded security 225 instrument, state:) “[The name or derivation of the name used in the 226 security instrument for Mortgage Electronic Registration Systems, Inc., or 227 MERS] (“MERS”) is the mortgagee of record of Debtor’s security 228 instrument filed in the official real property records of [name of Texas 229 county]. MERS is a book entry system referred to in Section 51.0001(1), 230 Property Code [and, if applicable, is the [beneficiary] and the [nominee of 231 lender and lender’s successor and assigns] of the security instrument that 232 encumbers the Property.] 233

234 2. RESPONDENT: 235 236

237 (Note: in Paragraph 2 complete each subpart and make a separate sub-238 paragraph for each person named as a respondent) 239 (2-a) [State name of each person liable for the loan agreement debt sought to be 240

foreclosed] (“Debtor”) is the person liable for payment of the debt 241 evidenced by the transferred tax lien or property tax loan agreement that 242 encumbers the property sought to be foreclosed and may be served at 243 [state last known address of each Debtor]. 244

(2-b) [State name of each mortgagor of the security instrument sought to be 245 foreclosed] (“Mortgagor”) is a grantor of the security instrument that 246 encumbers the property sought to be foreclosed and may be served at 247 [state Mortgagor’s last known address]. Applicant is not seeking to collect 248 a debt against a mortgagor who is not liable for the loan agreement debt. 249

(2-c) [State name of the holder of any recorded preexisting first lien on the 250 property as defined in Rule 735.3(g)] (“First Lien Holder”) is the current 251 holder of a recorded preexisting first lien encumbering the property that 252 was filed in the real property records before the transferred tax lien sought 253 to be foreclosed. The First Lien Holder may be served at [state address 254 and method of service as provided in Rule 736.6]. 255

(2-d) (Note: if Debtor, Mortgagor, or First Lien Holder is deceased, state as 256 appropriate) [name of surviving spouse] is the surviving spouse and [state 257 name of each heir and describe status, i.e., heir, distribute, or personal 258 representative] of [state name of each deceased Debtor or Mortgagor] 259 (“Decedent”) who was the [state whether Debtor, Mortgagor, or both 260 Debtor and Mortgagor] of the loan agreement encumbering the property 261 sought to be foreclosed and may be served at [state last known address of 262 the surviving spouse and each heir, distribute, or personal representative, 263 as applicable]. Applicant is not seeking to collect a debt against a 264 surviving spouse or heir who is not liable for the loan agreement debt. 265

3. PROPERTY: The real property, fixtures, and improvements sought to be 266 foreclosed are commonly known as [state property address of the encumbered 267 property] (“Property”) and the legal description of the Property is: [state legal 268 description]. 269

4. STATUTORY ALLEGATIONS: [State name of each property owner or owner of 270 the property liable for the property tax loan agreement] and [state name of the 271 transferee or property tax lender] entered into a contract that is secured by a 272 transferred tax lien or property tax loan agreement that encumbers the Property in 273 accordance with Sections 32.06 and 32.065, Tax Code. As required to be alleged 274 in this application by Section 32.06(c-1), Tax Code: 275 (“A”) “the lien is an ad valorem tax lien instead of a lien created under 276

Article XVI, Section 50, Texas Constitution”; 277 (“B”) “the applicant does not seek a court order required by Article XVI, 278

Section 50, Texas Constitution”; 279 (“C”) “the Transferee has provided notice to cure default, notice of intent 280

to accelerate, and notice of acceleration of the maturity of the debt 281 to the property owner and each holder of a recorded first lien on 282 the property in the manner required by Section 51.002, Property 283 Code”; and 284

(“D”) “the Transferee has confirmed that the property owner has not 285 requested a deferral of taxes authorized by Section 33.06, Tax 286 Code.” 287

5. DEFAULT: According to Mortgage Servicer’s records for Debtor’s loan 288 agreement account that are kept in the regular course of business, as of [state a 289 specific date – the date must be no more than 30 days before the date the affiant 290 executes the Rule 736.2(c) declaration attached to the application], Debtor 291 breached Debtor’s obligations under the terms and conditions of the loan 292 agreement as described in the affidavit or declaration attached to this application 293 and made a part of this application by reference for all purposes. 294 (Note: Choose (5-a) or (5-b) as appropriate) 295 (5-a) (Note: if the default is a monetary default, state:) “Under the terms of 296

Debtor’s loan agreement note and security instrument as of [date stated in 297 5 above], Debtor has not cured the default and at least [state number of 298 payments in arrears] scheduled loan payments are in arrears. The amount 299 necessary to cure Debtor’s default, which includes principal, interest, 300 escrow for taxes and insurance, if any, and all other fees and expenses 301 payable by Debtor under the terms of the loan agreement note and security 302 instrument is at least [state reinstatement amount in U.S. dollars] as of 303 [date stated in 5 above]. The amount necessary to pay off Debtor’ loan 304 agreement is at least [state payoff amount in U.S. dollars] as of [date 305 stated in 5 above]. All funds paid by Debtor to Mortgage Servicer have 306 been credited to Debtor’s loan agreement account, to include any funds 307 held in a suspense account. As of the filing date of this application, Debtor 308 has not cured the default. 309

(5-b) (Note: if the default is a non-monetary default, state:) “Debtor has 310 breached Debtor’s obligations under the terms of Debtor’s loan agreement 311

note and security instrument because [state with specificity the reason for 312 the non-monetary default]. To cure the default, Debtor must [state the 313 acts or omissions necessary to cure the default]. As of the filing date of 314 this application, Debtor has not cured the default. 315

6. EXHIBITS: The originals or true and correct copies of the original documents 316 related to Debtor’s loan agreement are attached to this application and made a part 317 of this application by reference for all purposes. The documents are Rules 803(6) 318 and 902(10) Evidence Code records of Debtor’s account kept by [name of 319 Mortgage Servicer] in the ordinary course of business. The documents attached 320 and marked as exhibits in the order listed below are: 321 (6-a) note and evidence, if any, of negotiation or transfer– Exhibit 6A; 322 (6-b) the recorded security instrument and current assignment of the security 323

instrument, if any, filed in the real property records with the county clerk’s 324 indexing information clearly legible – Exhibit 6B; 325

(6-c) the notice or demand to cure the default, notice of intent to accelerate, and 326 notice of acceleration of the maturity of the debt, if required which were 327 sent to Debtor and each First Lien Holder, as provided in Section 32.06(c-328 1)(C), Tax Code, and Chapter 51, Property Code, the loan agreement, or 329 applicable law – Exhibit 6Cc; 330

(6-d) proof of mailing by certified mail of all notices described in (6-c); (Note: a 331 copy of an electronic image obtained from the U.S. Postal Service’s 332 official website, a copy of a return receipt or “green card”, or a 333 declaration under penalty of perjury by Mortgage Servicer or its attorney 334 that correlates to a particular 6-c notice sent by certified mail shall be 335 proof of mailing unless a respondent files a specific denial) – Exhibit 6D; 336

(6-e) a statement made under penalty of perjury by an officer or employee of 337 the current mortgage servicer servicing the Debtor’s loan agreement 338 account as provided in Rule 736.2(d), and 736.1 which must be sworn 339 before a notary or made under penalty of perjury – Exhibit 6E; 340

(6-f) in accordance with the Servicemember’s Civil Relief Act, 50 U.S.C. App. 341 § 521, a statement made under penalty of perjury that each Respondent 342 who is a natural person is not in military service (Note: a copy of an 343 electronic image obtained from the official SCRA website of the U.S. 344 Department of Defense Manpower Data Center, at 345 www.dmdc.osd.mil/scra/ or the successor website, or a declaration from 346 the mortgage servicer currently servicing the debtor’s account describing 347 the respondent’s military service status shall be accepted as true unless a 348 respondent files a specific denial) – Exhibit 6F; 349

(6-g) a statement addressed to the clerk of the court providing: (a) the name and 350 last known address and response date for each citation directed to a 351 Respondent to be served under this rule, and (b) the property address – 352 Exhibit 6G; 353

(6-h) all transferred tax lien documents required to be recorded in the real 354 property records under Section 32.06(d), Tax Code, – Exhibit 6H; and 355

(6-i) all other notices, declarations, documents, or other instruments of any kind 356 or form required by law and proof of mailing or delivery in any manner 357

required by law up to and including acceleration as a condition precedent 358 for conducting a non-judicial foreclosure against the Property – Exhibit 6I. 359

7. OFFSETS AND CREDITS: According to Mortgage Servicer’s records, each 360 Debtor received the use or benefit of the funds advanced under the terms of the 361 loan agreement and all lawful offsets, payments, and credits, including amounts 362 held in suspense, if any, have been applied to Debtor’s account as of [date stated 363 in 5 above]. 364

8. RELIEF REQUESTED: Because Debtor breached Debtor’s loan agreement 365 obligations, Applicant is seeking a court order so that it may proceed with a non-366 judicial in rem foreclosure of the lien encumbering the Property in accordance 367 with Chapter 51, Property Code, and the loan agreement. 368

8A If a respondent is deceased, applicant must modify this application form by 369 adding all the allegations, except Section 49(a)(7) Probate Code, required in an 370 application to declare heirship under Section 49 Probate Code. If applicant seeks 371 a declaration of no necessity of administration under Section 48(b) Probate Code, 372 the allegations in Section 49(a)(7) must be plead. 373

374 375

[Signature Block for Applicant in accordance with Rule 57] 376 377 378

Declaration Form 379 380

(Note: choose one: [NOTARIZED AFFIDAVIT or DECLARATION MADE UNDER 381 PENALTY OF PERJURY]) IN SUPPORT OF AN APPLICATION FILED BY [NAME OF 382 APPLICANT] RELATED TO THE PROPERTY COMMONLY KNOWN AS [PROPERTY 383 ADDRESS OF PROPERTY SOUGHT TO BE FORECLOSED]. 384 385 (Choose one: state) [Before me, the undersigned authority, personally appeared (name of 386 affiant)] who being by me duly sworn, deposed that the following statements are true and correct 387 or Under penalty of perjury, I [name of affiant]) swear that the following statements are true and 388 correct]: 389

“My name is [state name of affiant] “Affiant.” I am over eighteen years of age, of sound 390 mind, capable of making this affidavit, and I am personally acquainted with the facts stated 391 herein as to the status and circumstance of [state name of each debtor] (“Debtor’s”) loan 392 agreement account that is being serviced by [state name of mortgage)] (“Mortgage Servicer”). I 393 am [state (officer) or (employee)] of [state name of Affiant’s employer], whose address is [state 394 street address, city, state, and zip code], and my job function is [state Affiant’s title and job 395 function]. 396

All the facts stated in this declaration are true and correct, were formed after a personal 397 review of the business and public records related to the servicing of Debtor’s loan agreement 398 account or by an inquiry of a person under my supervision who personally reviewed the business 399 records of Debtor’s loan agreement account, and based on my: (a) knowledge of the customary 400 mortgage servicing records and processes which are under my custody and control as to Debtor’s 401 account; (b) knowledge that all the records related to Debtor’s account were made and prepared 402 in the ordinary course of business of originating and servicing Debtor’s account and that the 403

persons or employees who maintained such accounts and records did so for the business purpose 404 of maintaining a complete and accurate record of matters related to the servicing Debtor’s loan 405 agreement and account; and (c) familiarity with the manner and processes in which Mortgage 406 Servicer compiles and maintains the records and files related to Debtor’s account, whether in 407 paper or electronic form. 408

I adopt by reference the application, records, and declaration attached to the application 409 on the date stated. 410

The documents attached to the application or my declaration were made and kept in the 411 regular course of business for originating and servicing Debtor’s loan agreement account; the 412 documents were made at or near the date and time reflected in the documents; and the 413 information contained in Debtor’s servicing account file was recorded by a person with 414 knowledge of the transmitted information, in accordance with Rule 902(10) Evidence Code. 415 According to the mortgage servicing records of Debtor’s account, the documents attached to the 416 application are the originals or true and correct copies of the originals. 417

The business records of [state name of Mortgage Servicer] indicate that all the 418 foreclosure related notices attached to the application were properly addressed to each addressee 419 and timely delivered into the custody and control of the U.S. Postal Service. 420

According to mortgage servicing records of Debtor’s account, [state name of each 421 Debtor] is the maker of the note or the current obligor of the note evidenced by the loan 422 agreement that encumbers the property sought to be foreclosed. Debtor has had the use and 423 benefit of all funds advanced under the terms of the loan agreement by the original lender to 424 Debtor and Debtor has not indicated that Debtor is not liable for the loan agreement debt. The 425 property securing Debtor’s loan agreement is commonly known as [property address] and is 426 more specifically described as: [legal description]. 427

[Name of holder or transferee of the Debtor’s original note as, “holder” and 428 “transferee” are defined in Tex. Bus. & Com. Code §§ 3.301 and 3.203 respectively, which 429 typically is he mortgage servicer ] maintains custody and control of the Debtor’s original note 430 for its principal [name of investor or payee of debtor’s loan payments] as part of its servicing 431 responsibilities under a written servicing agreement and the copy of the note which is attached to 432 the application came from the mortgage servicing records of Debtor’s account. Pursuant to a 433 written servicing agreement with its principal, [Name of holder or transferee of the Debtor’s 434 original note as “holder” and “transferee” are defined in Tex. Bus. & Com. Code §§ 3.301 and 435 3.203 respectively] is the current [holder] or [transferee] of the Debtor’s original note, which 436 was specifically negotiated to [name of investor or payee of debtor’s loan payments] or 437 negotiated in blank, and the copy of the Debtor’s original note attached to the application or my 438 declaration is a true and copy of the original in the custody and control of [name of person with 439 custody and control] 440

According to a review of Mortgage Servicer’s records relating to Debtor’s account that 441 was made on [state date which must be no more than 30 days before Affiant executes this 442 declaration and should be the same as the date contained in the application], the number of 443 Debtor’s loan payments which were in arrears were [state number]. As of [date – typically a date 444 30 days in the future of the date the application is prepared] the amount necessary to cure 445 Debtor’s default is [state reinstatement amount in U.S. dollars], and the payoff amount is [state 446 amount in U.S. dollars] according to Mortgage Servicer’s records. All lawful offsets, payments, 447 and credits to include funds held in suspense, if any, have been applied in the calculation of what 448 Debtor owes under the terms and conditions of the loan agreement. 449

It is the customary business practice of Mortgage Servicer to terminate a foreclosure 450 proceeding if Debtor’s account is brought current at any time before the property encumbered by 451 Debtor’s loan agreement is auctioned at a foreclosure sale. 452

According to the servicing records of [state name of the person servicing Debtor’s 453 account], [state name of the owner, or investor of Debtor’s account] is the [state “Owner” or 454 “Investor”] of Debtor’s loan agreement and is the person: (a) for whose benefit Mortgage 455 Servicer of Debtor’s account remits the principal and interest received from Debtor; and (b) who 456 suffers the risk of loss if Debtor defaults. (Note: if applicable, state:) [state name of Mortgage 457 Servicer] is the duly authorized agent for loan service administration for [name of Owner, or 458 Investor] and has been retained to administer all loan servicing activities related to Debtor’s loan 459 agreement to include foreclosure in accordance with Section 51.0025, Property Code. 460

(If Debtor’s loan agreement is a transferred tax lien or property tax loan, state) Debtor’s 461 loan agreement is a transferred tax lien or property tax loan and [state name and current address 462 of transferee] is the current transferee of Debtor’s loan agreement. All conditions precedent 463 required by Sections 32.06 and 32.065 of the Tax Code for initiating a foreclosure under Texas 464 Rule of Civil Procedure 735 or 736 have been timely accomplished. 465

466 [NOTE: If a respondent is deceased, applicant must modify this 467 declaration form by adding all the allegations, required by 468 Section 49(b) Probate Code affidavit supporting a declaration to 469 declare heirship. If applicant is not seeking a declaration of no 470 necessity of administration under Section 48(b) Probate Code, 471 facts as to Section 49(a) (7) Probate Code is not required to be 472 plead.] 473

On the date I signed this declaration, the default status of Debtor’s account had not been 474 cured and all the information contained in the application and my declaration was true and 475 correct as of the stated date. 476

477 Dated this ____ day of ___________, _____. 478

479 [Signature of Affiant] 480 [Printed name of Affiant and Title] 481 [Address of Affiant] 482 483 (CHOOSE ONE OF THE VERIFICATION OPTIONS BELOW) 484 485 “I, [state name of Affiant] am the [state title or job responsibility of Affiant] am an [state (officer) 486 or (employee)] of [state name and address of Mortgage Servicer servicing Debtor’s loan 487 agreement] and declare under penalty of perjury that I have read the application and all attached 488 exhibits to which my declaration is to be affixed and the statements and averments made in the 489 application and exhibits and my declaration are true and correct as of the date stated. 490 ___________________________ 491

[Signature of Affiant] 492 OR 493

STATE OF [state] 494 COUNTY OF [county] 495

Before me, on this day personally appeared [state name of Affiant] an [state (officer) or 496 (employee)] of [state name and address of the Mortgage Servicer servicing Debtor’s loan 497 agreement] (choose one, state [known to me or proved to me on the oath of (name of witness) or 498 proved to me through (description of identity card or other document)]) to be the person whose 499 name is subscribed to the foregoing instrument and being sworn by me acknowledged to me that 500 s/he read the application and all attached exhibits to which his or her declaration is affixed and 501 the statements and averments made in the application and exhibits are true and correct as of the 502 date stated. 503 504 Sworn to and subscribed on this [day] day of [month], [year]. 505 [SEAL] ___________________________ 506 [Title of notary or officer] 507 My commission expires: [date] 508 509 510 511

Citation Form 512 513 514

A citation under this rule shall be sufficient if, when completed, the citation is regular on its 515 face and is substantially the same or similar to the promulgated citation form contained in this 516 rule, but the form may be altered as appropriate to suit the circumstances and the clerk’s 517 procedures. 518

519 THE STATE OF TEXAS 520

CITATION FOR A TEX. R. CIV. PROC. 736 ORDER 521 522

[NOTE: The clerk of the court may use the clerk’s customary caption for a 523 citation, but at a minimum, the caption must contain the name and location 524 of the court, cause or suit number on the docket, the date the application 525 was filed, the names of the parties, the property address or the name and 526 address of the person to be served, and the date the citation was 527 prepared.] 528 529

[NOTE: If a respondent is deceased, citation must be directed in 530 accordance with Section 48 and 50 Probate Code] 531

532 YOU HAVE BEEN SUED 533 534 You should carefully read and understand the allegations contained in the application, 535 declaration, and exhibits attached to this citation because it may affect your rights in the 536 described property. You may employ an attorney. 537 RESPONSE DATE 538 The response date marked in the box below is the date you or your attorney should file a 539 response with the clerk of the court. 540

□ (a) As a debtor, mortgagor, property owner, spouse, heir, or personal representative, you or 541 your attorney must file a written response to the allegations contained in the application 542 with the clerk of the court at the clerk’s address listed below on [the specific date certain 543 provided by applicant to the clerk of the court calculated in accordance with Rules 544 736.3]. 545

□ (b) As the holder of a current recorded preexisting first lien on the property, you or your 546 attorney must file a response with the clerk of the court on or before 10:00 AM on the 547 first Monday after the expiration of 20 days from the date the citation was served on you 548 in accordance with Texas Rule of Civil Procedure 736.6. 549

□ (c) For a citation addressed to “RESIDENT at the Property Address”, no response is required 550 from you, unless you have been served with citation as a debtor, mortgagor, property 551 owner or owner of the property, spouse, heir, or personal representative. 552

553 IF YOU OR YOUR ATTORNEY DOES NOT FILE A TIMELY WRITTEN RESPONSE 554 WITH THE CLERK OF THE COURT, YOUR FAILURE TO RESPOND WILL BE 555 DEEMED YOUR CONSENT FOR AN ENTRY OF A DEFAULT ORDER BY THE 556 COURT WITHOUT A HEARING. AN ORDER WILL ALLOW THE APPLICANT OR 557 ITS SUCCESSOR TO PROCEED WITH FORECLOSURE OF A LIEN ENCUMBERING 558 THE PROPERTY. 559 560 If you file a written response, it must contain at a minimum the following information: (a) your 561 name and the current mailing address for you or your attorney [so that a notice of the date, time, 562 and place of a hearing in this matter may be sent]; (b) the cause or case number and the name, 563 county, and number of the court, which may be obtained from the application that was attached 564 to the citation served on you; and (c) your response or defense to the allegations contained in the 565 application. 566 567 [NOTE: The clerk of the court may use the clerk’s customary form of citation 568 verification. However, at a minimum, the verification must include the date of 569 issuance of the citation, signature block and seal of the court, and the name and 570 address of person signing the citation on behalf of the clerk.] 571 572 -- - -- - -- - -- - -- -- - -- - -- - -- - R E T U R N -- - -- - -- - -- - -- - ---- - -- 573 Came to hand on the _____ day of [month], [year] at ______ o’clock ____M., and executed on 574 the _____ day of [month], [year] at ________ o’clock __ M. by delivery of an original or a 575 duplicate original citation to the person or property named in the citation, with a true and correct 576 copy of the application, declaration, and all exhibits attached, by: 577 (MARK ONE) 578

□ Service was made on respondent by the clerk in accordance with Texas Rule of Civil 579 Procedure 736.4. 580

□ Service was made on the property by the clerk in accordance with Texas Rule of Civil 581 Procedure 736.4 582

□ Service was made on the property by a sheriff, constable or authorized person in 583 accordance with Texas Rule of Civil Procedure 736. 5(c). 584

□ Service was made on the property by a sheriff, constable or authorized person in 585 accordance with Texas Rule of Civil Procedure 736.5(c)(1). 586

□ Service was made on the property by a sheriff, constable or authorized person in 587 accordance with Texas Rule of Civil Procedure 736.5(c)(2). and attached is the original 588 payment receipt with tracking number as required by Texas Rule of Civil Procedure 589 736.5(d).d). 590

□ Service on the current holder of the current recorded preexisting first lien against the 591 property was made in accordance with Texas Rule of Civil Procedure 736.7, by 592 delivering a citation to [state name of person representing the holder of the current 593 recorded preexisting first lien on the property in accordance with Rule 736.6(b)] at [state 594 location where citation was personally served] by [state means or method of service in 595 accordance with Rule736.6(b)(1)-(6)] on [state date]. If the person served was the 596 mortgage servicer of the current recorded preexisting first lien against the property state 597 [name of mortgage servicer] is the mortgagor servicer for [name of the current holder of 598 the recorded preexisting first lien against the property]. 599

□ Service on a spouse, heir, or personal representative was made by delivery of a citation to 600 [state name of person] at [state location where citation was personally served] in 601 accordance with Texas Rule of Civil Procedure 736.8. 602

603 604 605

[Signature of Process Server]_____ 606 [Printed Name of Process Server]_____ 607 [Address of Process Server]_________ 608 [State authority of Process Server, i.e. Sheriff, Constable, Rule 103] 609 610 STATE OF TEXAS 611 COUNTY OF [________________] 612 This instrument was acknowledged before me on [date] by [name of officer or authorized person 613 under Rule 103], [title or authority of person servicing citation] acting in his/her official or 614 authorized capacity. 615 616 __________________________________ [SEAL] 617 Notary Public in and for the 618 State of [___________] 619 Notary Name: [Printed] 620 My commission expires: [Date] 621 622 623

DEFAULT ORDER 624 625 626

CAPTION OF THE APPLICATION CURRENTLY 627 ON FILE WITH THE CLERK OF THE COURT 628

629 DEFAULT ORDER 630

631

1. O632 n the ______ day of ____________, the court considered the 633 application filed in this cause by [name of applicant and 634 applicant’s street address, city, state, and zip code]. The court has 635 determined that it has jurisdiction over the subject matter and the 636 parties in this proceeding. Though properly served with the citation 637 and the application, declaration, and exhibits, [name or each party 638 who failed to file a timely response – the court may conspicuously 639 cross out the name of any person against whom the default order 640 does not apply], (hereinafter “Respondent”) failed to file a 641 response within the time required by law and wholly made default. 642 The court deems a Respondent’s failure to file a response as the 643 Respondent’s consent for the court to enter a default order. The 644 citation and proof of service have been on file with the court in the 645 time provided by Rule 736.11(c). 646

647 NOTE: If a respondent is deceased, applicant must modify the 648

order to conform to Section 48, 49 and 50 Probate Code]. 649 650

651 652

2. The property made the subject of the application is commonly known as [property 653 address] and the legal description of the property is [legal description]. 654

3. Based on the declaration of the applicant or applicant’s representative, any Respondent 655 who is a natural person and who is subject to this default order is not a member of the 656 United States military. 657

4. Therefore, the court GRANTS an order allowing the applicant to proceed with 658 foreclosure under Chapter 51, Property Code, the loan agreement, ,applicable law and, 659 [Sections 32.06 and 32.065, Tax Code, if applicable ]. 660

5. This order is final and not subject to a motion for rehearing, new trial, or appeal. Any 661 challenge of this order must in the form of a new suit filed in a separate and independent 662 original proceeding in a court of competent jurisdiction before 5 p.m. on the Monday 663 before the property is scheduled to be foreclosed. Notice of the new suit must be 664 provided to the trustee or substitute trustee or applicant’s attorney in accordance with 665 Texas Rule of Civil Procedure Rule 736.18 before the property is auctioned at the 666 foreclosure sale. The court can sanction any party who violates Rule 736.18. 667

6. The clerk of the court is directed to hand deliver or mail by first class mail a conformed 668 copy of this order to applicant or applicant’s counsel and to each Respondent. 669

7. The applicant or its agents or attorneys may communicate with any party or other person 670 as reasonably necessary to affect a foreclosure sale. 671

8. This order shall expire if the property made the subject of this order is not foreclosed 672 within 180 days after the date this order is signed. 673

674 SIGNED this ____ day of ________, 20__. 675

676 ___________________________ 677

JUDGE PRESIDING 678

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