Debt Lawsuit Defense Topics
Have You Been Sued For An Unpaid Debt in Houston?
Common Creditors Filing Debt Lawsuits In Houston And The Surrounding Areas
The Lawsuit Process
Possible Lawsuit Outcomes
Where To Find More Information About Your Lawsuit
Your first indication that you have been sued is when you begin receiving advertisement letters from lawyers offering their help because you are being sued. Lawsuits can be scary and confusing. Lawyers can help you understand what’s happening, though. Law firms have access to the basic information contained in a lawsuit (who is suing, who is being sued, the dollar amount claimed, etc.) through the various courts’ and clerks’ computer systems.
The creditor (the company claiming that you owe them money) will usually hire a constable or a private process server to deliver the lawsuit to you. This person will attempt delivery at the last address they have on file for you (which should be the same address on the advertising letters). That begins the clock ticking on the lawsuit process, explained below.
Defending a lawsuit is filled with potential pitfalls for the unwary. The help of a lawyer is advised when dealing with a debt lawsuit. Call our law firm today to schedule a free consultation. Below is some general information as to what a lawsuit on debt is and how the lawsuit will unfold, but it is no substitute for legal advice based on the specific facts of your situation. The majority of our cases are settled prior to trial or nonsuited. The results of your case will depend on factors such as the creditor, the amount owed, the Court, the lawyers working for the creditor and the paperwork that the creditor has available regarding your debt.
We handle these types of cases on a flat fee basis that can be paid over time on a payment plan. Call today to discuss your case and to be quoted the flat fee!!
Here is a list of creditors that commonly file lawsuits for unpaid debts in Houston. Check back often as we will be updating this webpage over time to add information about each creditor as well as case results:
AmeriCredit Financial Services, Inc.
American Express Centurion Bank
American Express Bank FSB
Asset Acceptance, LLC
Atlantice & Credit Finance, LLC
Bank of America, N.A.
Capital One Bank (USA) NA
Conn’s (Conn Appliances Inc.)
Ford Motor Credit Company, LLC
GE Capital Retail Bank
Integras Capital Recovery, LLC
Investment Retrievers, Inc.
Jefferson Capital Systems, LLC
LVNV Funding, LLC
Midland Funding, LLC
National Collegiate Student Loan Trust
Portfolio Recovery Associates, LLC
SquareTwo Financial, LLC
TD Bank USA, N.A.
Troy Capital, LLC
Velocity Investments, LLC
Wells Fargo Bank, NA
1. Filing of The Petition
A lawsuit begins when the ‘Plaintiff’ (the person or company doing the suing) files the ‘Original Petition’ in the appropriate court. If the dollar amount the creditor is suing for is less than $10,000, the lawsuit will usually (but not always) be filed in a ‘Justice of the Peace’ court. Otherwise a lawsuit for an unpaid debt will typically be filed in the county court or district court for the county in which you live.
2. Service of Process
After the lawsuit is filed, the creditor will hire a constable or private process server whose job is to deliver a copy of the lawsuit to you (this process is what is referred to as ‘being served’). The constable or private process server will usually be looking for you at your last known address. Occasionally they will attempt to serve you are your place of employment.
If the constable or private process server cannot find you to serve you (for example, if they have an incorrect or outdated address or if you are at work each time they come by), the lawyers may ask the judge for permission to serve you by another method – such as leaving the lawsuit at your house with anyone over the age of 16 or affixing the lawsuit to your door.
Folks often have the misconception that if the lawsuit is not placed in their hands, they cannot be served and the lawsuit cannot proceed. This is not true and sometimes if you are served by alternative service you may not realize you have been served (if, for example, the lawsuit is affixed to your door and a nosy neighbor takes the lawsuit). If you are aware a lawsuit has been filed, do think if they have not put the lawsuit into your hands that the lawsuit cannot proceed.
Once you have been served, that triggers the deadline to file an answer, a written response to the lawsuit that gets filed with the court. If the lawsuit is filed in a justice of the peace court, the answer deadline is calculated by adding ten days to the day you were served and going to the next Monday after those ten days. If the lawsuit was filed in county court or district court, the answer deadline is calculated by adding twenty days to the day you were served and going to the next Monday after those twenty days. Failing to timely file an answer may result in a loss of possible defenses in the lawsuit and/or a judgment being entered against you.
Discovery is a formal request for information and documents during the lawsuit process. If the case is pending in a justice of the peace court, court approval must be given prior to either side beginning the discovery process. If the case is pending in a county court or a district court, court approval is not needed. Typically, but not always, discovery must be concluded thirty days before the case is set for trial.
5. Motion for Summary Judgment
If the ‘Plaintiff’ (the person or company doing the suing) believes that they have all the proof they need to win the lawsuit (and there are no disputed facts), they can file a writing with the court asking for a judgment to be entered. This writing is called a motion for summary judgment.
If the ‘Defendant’ (person being sued) believes that the Plaintiff is absolutely lacking some of the proof required to win the lawsuit, the defendant can file a writing asking that the case be dismissed. This writing is called a no-evidence motion for summary judgment.
Many of the courts in Harris County, Galveston County and Fort Bend County require mediation to be completed before a trial can be held. Mediation is when both sides meet with an independent third person who attempts to get the parties to reach an agreement. A mediator is a go-between and does not have the power to make any decisions in the case.
If neither side files or prevails on a summary judgment motion and settlement is not reached, the case will be set for trial. In a trial for an unpaid debt, the judge (or jury in some instances) decides two questions. The first question the judge decides is if the Defendant legally owes a debt to the Plaintiff or not. If it is decided a debt is owed, the second question the judge decides is how much the Defendant owes to the Plaintiff. In a debt lawsuit, the Defendant’s ability to repay the debt or reason the Defendant failed to make payments on the debt is irrelevant to the questions the judge is deciding.
A settlement is a voluntary agreement reached by the parties in the lawsuit. A settlement resolving a debt lawsuit usually addresses how much the Defendant has agreed to pay and what actions the Plaintiff will (or won’t) take as long as the payment(s) are timely made. For a long-term payment plan, the Plaintiff may require the Defendant to sign an ‘Agreed Judgment.’ An Agreed Judgment is basically the Defendant admitting that the money is owed and the Plaintiff promising not to collect on the judgment as long as the Defendant makes the agreed upon payments. Settlements can vary from very simple to very complicated. Legal counsel should be sought before signing a settlement agreement.
A ‘Motion for Non-Suit’ is what a creditor files to have its lawsuit dismissed. This can be ‘with prejudice’ (meaning a new lawsuit cannot be filed over the debt in the future) or ‘without prejudice’ (meaning the creditor has the right to file a lawsuit over the same debt in the future). A creditor may file a non-suit as part of a settlement agreement. A creditor may also file a non-suit when they realize they do not have all the documents necessary to prove the debt to a judge (or jury). If a non-suit is filed that means the lawsuit will not result in a judgment.
A judgment is a document signed by the judge stating whether the Defendant owes any money to the Plaintiff and if so, how much. A judgment is the end of a lawsuit. It is then up to the creditor (assuming the judgment is in favor of the creditor) and the creditor’s lawyers to try to collect on the judgment. The most common methods of collection for a debt lawsuit in Houston are as follows (note – this is not a complete list):
a. Bank Garnishment – A creditor has the right to garnish any bank accounts that the judgment Debtor’s name is on. In special situations there are legal defenses to stop a bank account garnishment, but these rights must be asserted.
b. Abstract of Judgment – While a judgment creditor cannot force you to sell your homestead, they can file an abstract of judgment in the real property records of your county. The filing of an abstract of judgment may prevent you from selling your home or re-financing your home.
c. Credit Score – A judgment is a public record and will be pulled into your credit report and may damage your credit score. Even if you resolve the underlying debt, you may not be able to get the judgment removed from your credit report.
d. Non-Exempt Property Seizure – A judgment creditor has a right to have a ‘Writ of Execution’ issued, which will instruct a sheriff to seize and sell any non-exempt property. This may include rental homes, vacation homes, boats and other types of personal property. Even if you do not have any property that the sheriff is allowed to take, you may still be visited by the sheriff if a Writ of Execution is issued. The sheriff will usually send you notice before they visit your home.
e. Receivership – This is a creditor’s harshest collection tool. In my opinion, this tool is not utilized as often for credit card lawsuits due to the costs involved compared to the possibility of recovering money. When a creditor gets a person called a ‘Receiver’ appointed by the court, that person has the power to collect property and funds of the judgment debtor (he steps in the judgment debtor’s financial shoes) and liquidates that property to pay the creditor.
If a creditor is unable to properly prove the required facts in their lawsuit and does not voluntarily non-suit their lawsuit, a request can be made through a ‘Motion for Summary Judgment’ or at trial that the creditor’s lawsuit be dismissed because they cannot properly prove their case. This path is very complicated and should be left to the assistance of a lawyer.
For residents of Harris County, Galveston County and Fort Bend County, you can find more information about your lawsuit on the appropriate court or clerk’s website. Other nearby and surrounding counties may or may not have online records depending on the particular county.
Defending a lawsuit involves understanding the law, and failure to timely file a document or to properly answer a question can result in a loss of rights or even a judgment being entered against you. Contact us today to schedule a free consultation regarding your lawsuit.