Sequestration is the process by which, during the course of a lawsuit, funds or property are removed from the person or entity in possession of same and held by a third party, for example a Sheriff or Constable, during the pendency of the litigation. The most common type of sequestration is filed in conjunction with a lawsuit for the judicial foreclosure of a security interest in a vehicle or piece of equipment.
Generally, the procedure for this type of relief involves the filing of a lawsuit and an application for a writ of sequestration supported by an affidavit. An ex parte (a hearing or communication with the court held by one party without giving notice to the party against which relief is sought) motion is also filed requesting a hearing. If the motion is granted by the judge, an Order for issuance of the writ of sequestration is entered which sets a bond amount to be secured by the party seeking the writ. Once the bond is secured and filed with the clerk of the court, the writ will issue and be served upon the party holding the property sought. If that party does not file its own replevy bond within a certain time, the property will be transferred to the other party.
Either at the commencement of a suit or at any time during its progress the plaintiff may file an application for a writ of sequestration. The application shall be supported by affidavits of the plaintiff, his agent, his attorney, or other persons having knowledge of relevant facts. The application shall comply with all statutory requirements and shall state the grounds for issuing the writ, including the description of the property to be sequestered with such certainty that it may be identified and distinguished from property of a like kind, giving the value of each article of the property and the county in which it is located, and the specific facts relied upon by the plaintiff to warrant the required findings by the court. The writ shall not be quashed because two or more grounds are stated conjunctively or disjunctively. The application and any affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence; provided that facts may be stated based upon information and belief if the grounds of such belief are specifically stated.
Texas Rule of Civil Procedure 696 provides as follows:
No writ shall issue except upon written order of the court after a hearing, which may be ex parte. The court, in its order granting the application, shall make specific findings of facts to support the statutory grounds found to exist, and shall describe the property to be sequestered with such certainty that it may be identified and distinguished from property of a like kind, giving the value of each article of the property and the county in which it is located. Such order shall further specify the amount of bond required of plaintiff which shall be in an amount which, in the opinion of the court, shall adequately compensate defendant in the event plaintiff fails to prosecute his suit to effect and pay all damages and costs as shall be adjudged against him for wrongfully suing out the writ of sequestration including the elements of damages stated in Sections 62.044 and 62.045, Civil Practice and Remedies Code. The court shall further find in its order the amount of bond required of defendant to replevy, which shall be in an amount equivalent to the value of the property sequestered or to the amount of plaintiff’s claim and one year’s accrual of interest if allowed by law on the claim, whichever is the lesser amount, and the estimated costs of court. The order may direct the issuance of several writs at the same time, or in succession, to be sent to different counties.
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