How Do I Answer a Writ of Sequestration in Texas?
It is important to file a proper response and/or motion after receiving a summons to avoid having a default judgment entered on your records. A "default judgment" may be rendered against a party if it is the result of a party's failure to take a necessary step in the action within the proper time; this generally means a failure to plead or otherwise defend within the time allowed. Since, under rules of procedure, allegations not specifically denied are deemed admitted, failure to file a responsive pleading will generally result in the entry of a default judgment against the defendant. When a complaint is filed and the defendant fails to file an answer within the applicable time period, a default judgment may be entered against the defendant.
An answer is a legally sufficient response to the allegations that have been alleged against you in the complaint. The answer will generally either admit or deny each claim made by paragraph, or state an inability to admit or deny for lack of knowledge. Defenses may also be raised. An affirmative defense is a defense raised in a responsive pleading relating a new matter as a defense to the complaint. An affirmative defense can contain allegations against statements of facts contrary to those stated in the original complaint. Affirmative defenses may also include, among others, lack of jurisdiction, improper service, statute of limitations, contributory negligence, or estoppel in civil actions and insanity, duress, or self-defense in criminal actions. A counterclaim or cross-claim may also be asserted. A certificate or proof of service is attached to show a copy was served to the other party(ies).
If there was a breach of the peace, such as entering a locked garage, it is possible you may file a police report as evidence. Please see the information at the following links:
In Texas, the writ of sequestration will be issued to a sheriff or constable within the State of Texas and commands that officer to take specifically described property into his possession and keep it secure pending further action by the court, unless the property is replevied by the debtor. If the debtor fails to replevy the property within ten days, the creditor may pay the amount of the replevy bond to the officer and obtain immediate possession of the property. We suggest you contact the local clerk of courts, as fees may vary by court. Typically, a replevy bond is around $40.
Unless the property has already been claimed, replevied, or sold by or to another party, the defendant may replevy the sequestered property at any time before trial. The defendant must post a replevy bond in the amount fixed by the court’s order. Either party may seek redetermination of the amount of the bonds required by the court’s order. The defendant’s replevy bond must be conditioned as provided by Rules 702 and 703. Rule 702 provides conditions for the defendant’s replevy of personal property. Those conditions are that the defendant:
1. Will not remove the property from the county.
2. Will not waste, ill-treat, injure, destroy, or dispose of the property.
3. Will have the property, plus the value of the rents and hire of the
property, available to satisfy the court’s judgment and the property
will be in the same condition as when it was replevied.
4. Or will pay the value of the property plus the value of the fruits, rents,
and hire from the property.
Rule 703 provides conditions for the defendant’s replevy of real property.
The defendant must not injure the property and must pay the value of the rents on the
We can assist you with searching to locate forms or we can draft or add forms you may need to our database. However, we cannot advise you to use one particular form over another. We can show you what is available. Please see the forms at the link below to see if the forms meet your needs. You may order the form online or by phone by calling Toll Free: 1-(877) 389-0141 between 8:30am and 5:00pm Central Time Zone Monday – Friday.
§ 62.041 CIV. PRAC. & REM. Motion for Dissolution; Stay
(a) The defendant may seek dissolution of an issued writ of sequestration by filing a written motion with the court.
(b) The right to seek dissolution is cumulative of the right of replevy.
(c) The filing of a motion to dissolve stays proceedings under the writ until the issue is determined.
§ 62.045 CIV. PRAC. & REM. Wrongful Sequestration of Consumer Goods
(a) If a writ that sought to sequester consumer goods is dissolved, the defendant or party in possession of the goods is entitled to reasonable attorney's fees and to damages equal to the greater of:
(2) the finance charge contracted for; or
(3) actual damages.
(b) Damages may not be awarded for the failure of the plaintiff to prove by a preponderance of the evidence the specific facts alleged if the failure is the result of a bona fide error. For a bona fide error to be available as a defense, the plaintiff must prove the use of reasonable procedures to avoid the error.
(c) In this section, "consumer goods" has the meaning assigned by the Business & Commerce Code.
§ 62.044 CIV. PRAC. & REM. Compulsory Counterclaim for Wrongful Sequestration
(a) If a writ is dissolved, any action for damages for wrongful sequestration must be brought as a compulsory counterclaim.
(b) In addition to damages, the party who sought dissolution of the writ may recover reasonable attorney's fees incurred in dissolution of the writ.
Please see the following TX Rules of Civil Procedure:
RULE 712a. DISSOLUTION OR MODIFICATION OF WRIT OF SEQUESTRATION
A defendant whose property has been sequestered or any intervening party who claims an interest in such property, may by sworn written motion, seek to vacate, dissolve, or modify the writ and the order directing its issuance, for any grounds or cause, extrinsic or intrinsic, including a motion to reduce the amount of property sequestered when the total amount described and authorized by such order exceeds the amount necessary to secure the plaintiff's claim, one year's interest if allowed by law on the claim, and costs. Such motion shall admit or deny each finding of the order directing the issuance of the writ except where the movant is unable to admit or deny the finding, in which case movant shall set forth the reasons why he cannot admit or deny. Unless the parties agree to an extension of time, the motion shall be heard promptly, after reasonable notice to the plaintiff (which may be less than three days), and the issue shall be determined not later than ten days after the motion is filed. The filing of the motion shall stay any further proceedings under the writ, except for any orders concerning the care, preservation, or sale of any perishable property, until a hearing is had, and the issue is determined. The writ shall be dissolved unless, at such hearing, the plaintiff shall prove the grounds relied upon for its issuance, but the court may modify its previous order granting the writ and the writ issued pursuant thereto. The movant shall, however, have the burden to prove that the reasonable value of the property sequestered exceeds the amount necessary to secure the debt, interest for one year, and probable costs.
The court's determination may be made upon the basis of affidavits, if uncontroverted, setting forth such facts as would be admissible in evidence; otherwise, the parties shall submit evidence. The court may make all such orders, including orders concerning the care, preservation, or disposition of the property (or the proceeds therefrom if the same has been sold) as justice may require. If the movant has given a replevy bond, an order to vacate or dissolve the writ shall vacate the replevy bond and discharge the sureties thereon, and if the court modifies its order or the writ issued pursuant thereto, it shall make such further orders with respect to the bond as may be consistent with its modification.
RULE 701. DEFENDANT MAY REPLEVY
At any time before judgment, should the sequestered property not have been previously claimed, replevied, or sold, the defendant may replevy the same, or any part thereof, or the proceeds from the sale of the property if it has been sold under order of the court, by giving bond, with sufficient surety or sureties as provided by statute, to be approved by the officer who levied the writ, payable to plaintiff in the amount fixed by the court's order, conditioned as provided in Rule 702 or Rule 703.
On reasonable notice to the opposing party (which may be less than three days) either party shall have the right to prompt judicial review of the amount of bond required, denial of bond, sufficiency of sureties, and estimated value of the property, by the court which authorized issuance of the writ. The court's determination may be made upon the basis of affidavits, if uncontroverted, setting forth such facts as would be admissible in evidence; otherwise, the parties shall submit evidence. The court shall forthwith enter its order either approving or modifying the requirements of the officer or of the court's prior order, and such order of the court shall supersede and control with respect to such matters.