The Burton Law Firm, P.C. has over 15 years of experience in this area
of the law. If you have questions about this subject please call us
at 713-222-6262; or email Randy Burton at randy@burton-lawfirm.com
or David Torok at david@burton-lawfirm.com.
Collections
- What is a judgment?
It is the official and authentic decision of a court upon the respective
rights and claims of the parties to an action or suit.
- What is a garnishment?
A writ of garnishment is a writ directed to a third party. It requires
the party served to answer stating what he is indebted to the defendant, or what effects of the
defendant the third party has in his possession, and what other persons, within his
knowledge, are indebted to the defendant or have effects belonging to the defendant. If used
to satisfy a judgment, no bond is required.
- What is an abstract of judgment?
An abstract is a summary or reflection of a judgment. It
is filed in the real property records of the county clerk's office. The judgment lien attaches
to all of the defendant's non-exempt real property in the county of recordation.
- What is discovery?
Discovery is the terms for various pre-trial devices allowed to learn or
ascertain facts or to prepare the prosecution of a claim or a defense thereto. This commonly
includes depositions, interrogatories, production requests, request for admissions and request
for disclosure.
- What is a writ of attachment?
This is a pre-judgment remedy. It is a writ which directs the
sheriff or constable to seize non-exempt assets of the defendant up to a specified amount or
value and hold them as security for the plaintiffs claim, pending entry of a final judgment.
- What is a writ of execution?
An execution is a judicial writ directing the enforcement of a
district, county or justice court judgment. The sheriff or constable is directed to levy on the
debtor's non-exempt property, sell it, and deliver the proceeds to the creditor to be applied
toward satisfaction of the judgment.
- What is a writ of sequestration?
A writ of sequestration is intended to preserve property
pending suit. It is directed against specific property. The writ directs the officer to take
possession of the property and hold it pending determination by the court as to which party
is entitled to it. As with all pre-judgment remedies, it requires the applicant to post a bond.
Both the defendant and plaintiff have a right to replevy the subject property and take
possession of it from the officer.
- What is a writ of possession?
This is a post-judgment remedy directing a constable or sheriff
to recover property and give possession of same to the person entitled to such.
- What is self-help?
The law recognizes the right of a creditor, under prescribed
circumstances, to act on his own behalf, or though an agent, and repossess property in which
he holds a security interest. However, this remedy is fraught with peril if the defendant is
not in default or a breach of the peace occurs in repossessing the property.
- What is a fraudulent transfer?
In general this is a transfer of an item (such as records,
valuables, assets) intended to delay, hinder or defraud a creditor, purchaser or other interested
person from obtaining that to which he is or may become entitled to, as through a judgment.
- What is usury?
Usury is the charging of an illegal rate of interest. It is the charging of an
interest rate in excess of what is permitted by law.
- Must a debt be in writing to be collected?
No, although many times harder to prove than a
case with a written instrument, an oral debt can be collected.
- How long do I have to collect?
A plaintiff in a collection case must timely file his suit, or
the defendant can plead the statute of limitations as a defense. Cases involving the collection
of a "debt" follow a four-year period to sue. However, merely filing suit might not stop the
running of the time period. A plaintiff must be diligent in attempting to serve the defendant.
- What is a writ of turnover?
It is a post-judgment remedy designed to aid the judgment
creditor. The court can order the property of the judgment debtor be turned over, together
with all documents or records related to the property, that is in or subject to the possession
or control of the judgment debtor to be turned over to a sheriff or constable for execution or
otherwise applied to satisfy the judgment. The subject property can also be turned over to
a court appointed receiver.
- What is joint and several liability?
A creditor may demand payment or sue one or more of
the parties to a liability separately, or all of them together at his option.
- What is a mortgage?
In general a mortgage is an interest in land created by a written
instrument providing security for the performance of a duty or the payment of a debt.
- What is a receiver?
A receiver is a person appointed by a court for the purpose of preserving
property of a debtor pending an action against him, or applying the property in satisfaction
of a creditor's claim.
- What is a deficiency?
A deficiency is that part of a debt not realized by the sale of
mortgaged or levied property.
- Where can I find a list of property exempt from seizure?
You can find this in Chapter 42 of
the Texas Property Code.
- What is a charging order?
This is a means for a creditor of a judgment debtor who is a
partner of others to reach the debtor's beneficial interest in the partnership, without risking
dissolution of the partnership.
- How quickly can a foreclosure be conducted in Texas?
Sometimes, in less than 60 days.
- Can a homestead be foreclosed on?
Yes.
- Can the foreclosure be conducted without a court?
Yes, if it is not a home equity loan; or no
other issues exist, such as a problem with the property's legal description.
- What is a home equity loan?
A home equity loan is a line of credit available to a homeowner
based on the homeowner's equity in his home.
- How does a foreclosure on a home equity loan differ from a regular foreclosure?
Essentially,
a creditor must first file with a court of competent jurisdiction an application to allow the
foreclosure. Once that order is granted, the loan is treated as a usual foreclosure.
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