Consumer/Credit Card Debt Defense:
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Have you been sued for a consumer or credit card debt? If so, contact us now for help!
Are you facing a debt collections lawsuit? Are you worried about losing your home or assets? Debtors have rights under federal and state law that protect your privacy, homestead, and other exempt property. If you have been sued on a consumer debt account, such as a credit card, contact our firm to help you negotiate a settlement. Debt collectors often attempt to bully or intimidate debtors, hoping they do not know their rights. Competent legal defenders can quash these tactics immediately.
Here are some answers to frequently asked questions:
"I've been served with a collections lawsuit, what should I do?"
Contact our firm office immediately. If you do not file a timely answer the court will award a "default" judgment to the creditor and you lose your chance to defend yourself. In addition the original debt amount the court may add thousands in attorney's fees and costs.
"If I owe the money why should I fight the case?"
There are many ways to fight a debt case. I will be happy to discuss your options with you. One of the main ways to fight a case is to check the validity of the contract or agreement, verify charges or claims, and negotiate a reduction in debt owed.
"How much does this cost?"
The consultation is free. The fee for representation depends on the total amount owed.
You have rights under the Texas Fair Debt Collection Act!
Texas and Federal law both forbid unfair debt collection practices. Debt collectors often ignore your rights and willfully violate these laws. Phone harassment is the most common, but certainly not the only way creditors bully debtors.
The Texas Fair Debt Collection Act forbids practices such as:
Harassment
Debt collectors may not harass, oppress, or abuse you or any third parties they contact. For example, debt collectors may not:
- use threats of violence or harm
- publish a list of consumers who refuse to pay their debts (except to a credit bureau)
- use obscene or profane language
- repeatedly use the telephone to annoy someone
False statements
Debt collectors may not use any false or misleading statements when collecting a debt. For example, debt collectors may not:
- falsely imply that they are attorneys or government representatives
- falsely imply that you have committed a crime
- falsely represent that they operate or work for a credit bureau
- misrepresent the amount of your debt
- indicate that papers being sent to you are legal forms when they are not
- indicate that papers being sent to you are not legal forms when they are
- you will be arrested if you do not pay your debt
- they will seize, garnish, attach, or sell your property or wages, unless the collection agency or creditor intends to do so, and it is legal to do so
- actions, such as a lawsuit, will be taken against you, when such action legally may not be taken, or when they do not intend to take such action
- give false credit information about you to anyone, including a credit bureau
- send you anything that looks like an official document from a court or government agency when it is not
- use a false name
Debt collectors also may not state that:
Further, debt collectors may not:
Unfair practices
Debt collectors may not engage in unfair practices when they try to collect a debt. For example, collectors may not:
- collect any amount greater than your debt, unless your state law permits such a charge
- deposit a post-dated check prematurely
- use deception to make you accept collect calls or pay for telegrams
- take or threaten to take your property unless this can be done legally
- contact you by postcard
Articles Section:
Regarding judgments obtained by a creditor or lienholder, Texas has some rules you may not have ever heard about. The Texas Civil Practice and Remedies Code requires the following:
Renewal
Sec. 34.001. NO EXECUTION ON DORMANT JUDGMENT. (a) If a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived.
(b) If a writ of execution is issued within 10 years after rendition of a judgment but a second writ is not issued within 10 years after issuance of the first writ, the judgment becomes dormant. A second writ may be issued at any time within 10 years after issuance of the first writ.
(c) This section does not apply to a judgment for child support under the Family Code.
Therefore, the life of a Texas Judgment is 10 years. During this 10 year window a Judgment Creditor (JC) can RENEW a judgment and restart this 10 year window again. In order to renew, a JC can file a writ of execution.
A writ of execution is proper when:
- Should be delivered to an officer for enforcement
- Placed in the hands of an officer
- Must have intent to execute
- Issuance requires diligence, and there should not be sitting on a writ after it has been properly issued, or it risks being voidable.
- Issuance doesn’t require an expectation of recovery
- Attempted execution is enough to renew the time bar
Revival
Sec. 31.006. REVIVAL OF JUDGMENT. A dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date that the judgment becomes dormant.
Therefore, if 10 years has passed since the rendition of a judgment, the judgment will become dormant. However, there is a two year period after it becomes dormant where the judgment can be revived.
This can be done by a Judgment Creditor filing a Writ of Scire Facias (WSF). A WSF is not a new action, but a continuation of the underlying case. As such, an order entered upon an application of writ does no more than revive an original judgment. It does not add or take away from the original.
A WSF should contain all of the allegations and recitals of previous proceedings necessary to show the plaintiff’s right, and that he is entitled to all the judgment or relief prayed for in the action. The plaintiff needs to establish a Prima Facie case by attaching with its writ the original judgment and issuance of writ of execution.
From there, the Judgment Debtor (JD) must be served, and the plaintiff must serve the defendant with citation and a copy of the WSF, and demonstrate that service through a return of service.
A JD is limited in their response. They are not allowed to attack the original judgment collaterally and can raise no defense that should have been asserted prior to the judgment. Thus, the JD can attack the judgment as being void if they can plead and show its nullity, but it is more likely that they will only be able to plead the applicable defenses of: 1. Payment; 2. Accord and satisfaction; 3. Discharge.
Generally, a WSF will be granted if the Plaintiff can show Prima Facie proof of the judgment, and garnishment may be available. Once revived, the judgment regains its 10 year life.
These laws help creditors collect old debts, and provide flexibility in follow-up on collection, even when a creditor may think time has barred further pursuit by a creditor.
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