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I received a Notice of Excess Funds from the District Clerk

Resolved Question:

I received a Notice of Excess Funds from the District Clerk in El Paso, TX from the court ordered sale of my fathers home. My father died about 9 years ago and owed the city over $32,000 in back taxes. We did not have the money to pay the taxes and the house was sold at auction. The letter says that we must file a petition to claim the excess proceeds, what would we need to do? The amount of excess funds is $11,838.43.
Submitted: 8 years ago.
Category: Real Estate Law
Expert:  JBaxLaw replied 8 years ago.
There is no form available from the court's website. As such, you will need the assistance of an attorney in drafting the petition. You must file the petition within two years of the sale of the home. A hearing will be set on the petition prior to the distribution of the funds.

The applicable law is below:
§ 34.04. CLAIMS FOR EXCESS PROCEEDS. (a) A person,
including a taxing unit, may file a petition in the court that
ordered the seizure or sale setting forth a claim to the excess
proceeds. The petition must be filed before the second anniversary
of the date of the sale of the property. The petition is not
required to be filed as an original suit separate from the
underlying suit for seizure of the property or foreclosure of a tax
lien on the property but may be filed under the cause number of the
underlying suit.
(b) A copy of the petition shall be served, in the manner
prescribed by Rule 21a, Texas Rules of Civil Procedure, as amended,
or that rule's successor, on all parties to the underlying action
not later than the 20th day before the date set for a hearing on the
(c) At the hearing the court shall order that the proceeds
be paid according to the following priorities to each party that
establishes its claim to the proceeds:
(1) to the tax sale purchaser if the tax sale has been
adjudged to be void and the purchaser has prevailed in an action
against the taxing units under Section 34.07(d) by final judgment;
(2) to a taxing unit for any taxes, penalties, or
interest that have become due or delinquent on the subject property
subsequent to the date of the judgment or that were omitted from the
judgment by accident or mistake;
(3) to any other lienholder, consensual or otherwise,
for the amount due under a lien, in accordance with the priorities
established by applicable law;
(4) to a taxing unit for any unpaid taxes, penalties,
interest, or other amounts adjudged due under the judgment that
were not satisfied from the proceeds from the tax sale; and
(5) to each former owner of the property, as the
interest of each may appear.
(d) Interest or costs may not be allowed under this section.
(e) an order under this section is appealable.
(f) A person may not take an assignment of an owner's claim
to excess proceeds unless:
(1) the assignment is taken on or after the 36th day
after the date the excess proceeds are deposited in the registry of
the court;
(2) the assignment is in writing and signed by the
assignor; and
(3) the assignment document contains a sworn statement
by the assignor affirming:
(A) that the assignment was given voluntarily;
(B) the date on which the assignment was made and
that the date was not earlier than the 36th day after the date the
excess proceeds were deposited in the registry of the court;
(C) that the assignor has received the notice
from the clerk required by Section 34.03;
(D) the nature and amount of consideration given
for the assignment;
(E) the circumstances under which the excess
proceeds are in the registry of the court;
(F) the amount of the claim to excess proceeds in
the registry of the court;
(G) that the assignor has made no other
assignments of the assignor's claim to the excess proceeds; and
(H) that the assignor knows that the assignor may
retain counsel.
(g) An assignee who obtains excess proceeds without
complying with Subsection (f) is liable to the assignor for the
amount of excess proceeds obtained plus attorney's fees and
(h) An assignee who files a petition setting forth a claim
to excess proceeds must attach a copy of the assignment document and
produce the original of the assignment document in court at the
hearing on the petition. If the original assignment document is
lost, the assignee must obtain the presence of the assignor to
testify at the hearing.
(i) A fee charged to obtain excess proceeds for an owner may
not be greater than 25 percent of the amount obtained or $1,000,
whichever is less.
Thank you

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