Ex in TX owes $4385...Judge or jury?

[Inquiry123]

What is the name of your state? TX

I am living in AZ and am following TX SCC protocol to attempt to recover $4385 loaned to ex-spouse for rent/deposits over 9 month period. Two questions follow...

History:
Shortly following divorce (July, my ex asked to borrow $535 for utility deposits in order to move into a new rental property with our children and a roommate. The loan was to be repaid following ex's completion of college degree and securing employment (less than one year away at that time.)

Three months later, the roommate moved-out and I loaned ex the former roommates share of the rent to cover the lease until degree would be complete and ex became employed (7 months away at that time.) I sent checks for $550 monthly for 7 months (=$3850.)

After 6 months of ex being employed, I sent a polite letter requesting the $4385 be repaid and offered to accept monthly payments over a 12 month period. This letter was received but went unanswered. The following month, I sent a certified letter containing a copy of the first letter, a second letter detailing the history of the loans and demanded repayment. This letter was received but also went unanswered.

I am waiting to hear back from SCC in TX regarding hearing date.

Questions:
1. This was an oral agreement. If my ex says that the loans were just gifts then...? I have bank statements showing EFT for the deposits made to the utility companies and have copies of the cancelled checks showing "RENT HELP" in the memo area. I have not been able to locate the former roomate and am doubtful if I could get the roomate to travel to TX to testify even if I do locate. Does the fact that my ex did not even bother to respond to my requests for payment help my case?

2. In TX it appears that I have the choice of having my case heard by the Judge or by a Jury...has anyone had any experience with a Jury in SCC and given my lack of a written agreement, would a jury be better?

 

[JETX]

"This was an oral agreement. If my ex says that the loans were just gifts then...?"
*** Simply, if you are not able to convince the court (or jury) that the payments you made were in fact loans and not gifts, then you will lose your claim. If you don't have proof, you need to get proof or bolster what you do have. You might consider doing the following:
- Send him ONE more letter by certified mail (and a copy by regular mail). In your letter, detail the LOANS made to him and restate all promises of repayments, etc. that he made. Then, make a request for repayment of the loans. Close with something like, "In the even that you dispute that these were loans or the amounts, please contact me in writing within the next 5 days." This isn't solid proof, but if he fails to contact you to challenge them, you can at least show the court that his silence MAY be acceptance.

"I have bank statements showing EFT for the deposits made to the utility companies and have copies of the cancelled checks showing "RENT HELP" in the memo area. I have not been able to locate the former roomate and am doubtful if I could get the roomate to travel to TX to testify even if I do locate. Does the fact that my ex did not even bother to respond to my requests for payment help my case?"
*** Not really.


"In TX it appears that I have the choice of having my case heard by the Judge or by a Jury...has anyone had any experience with a Jury in SCC and given my lack of a written agreement, would a jury be better?"
*** I have and I would strongly suggest you not go for a jury on this type of case. Part of the reason is that the judge is more likely (in my opinion) to have heard cases like this many times before and not get 'emotionally' involved in the specifics.

 

[Inquiry123]

Possible evidence?

JETX:
Thanks...your insight is helpful and I agree. I had thought that a jury might be more understanding of the lack of a written agreement in this type of situation. I see what you mean about the Judge having heard both sides of these types of stories many times -- and will be able to make an experienced judgement.

Another question if you all have a minute: I am trying to recover a deleted Word document from my laptop sent to me in an email from my ex. The doc stated in a couple of paragraphs that after graduation and a move to TX (as opposed to AZ) that my ex would be able to 'pay me back' faster. Would this type of unsigned document hold any weight in court?

 

[JETX]

It could be used with other evidence to try to support your claim, but would probably not have much weight or value.

 

[Inquiry123]

JETX: Won the case...sort of.

History:
Traveled from AZ to TX to appear in SCC last week to try and resolve previous post.

The SCC precinct was located in a very rural area (less than 4000 population in the town.) When I arrived at the building I found my Ex's family introducing my Ex to the court (whom they all knew.) I figured my case was sunk.

The Judge asked me to explain my side of the case. The whole thing was very calm and matter-of-fact. No problem, I explained it just like the demand letter stated. The Judge asked the defendant (my Ex) if I had given all the money stated ($4385) and Ex stated that "Yes, I said that I would try to repay it, but never said when or any terms or anything. I never signed anything." The Judge rolled her eyes and said, "Well that's a verbal contract...it's as binding as a written contract."

Within 10 minutes of the start of testimony, the Judge stated, "Neither one of you is going to like my verdict. I find for the plaintiff in the amount of $535 + court costs. I'm making the defendant pay for the utility deposits -- and as for the other, I'm just going to say that along with your child support and alimony you did that for the good of your children. You all need to get along and think about your kids."

I asked the Judge if I could present any of my evidence (cancelled checks, email) and she said that it wouldn't change her judgement and that I had 10 days to appeal.

My Ex then started to complain to the Judge that $583 wasn't available. The Judge said "You better GET $583! You need to realize that this judgement is very good for you." Then we left the courtroom.

Question:
I have called a couple of local attorneys to get their estimate on an appeal to get the full amount owed and should hear from tomorrow. They both said that it's not unusual for a SCC judge to award less than the full amount, but usually not only 1/8th. If I proceed, can I ask for my attorney fees to be awarded as well?

Have you had any experience with appeals? Any advice? Thanks.

 

[JETX]

"If I proceed, can I ask for my attorney fees to be awarded as well?"
*** You can ask, but based on your post, you won't get them. This matter does not allow for attorney fees.

"Have you had any experience with appeals?"
*** Yes.

"Any advice?"
*** Certainly talk with an attorney to review your case and see if fees could be compensable under some issue not included in your thread. Advice: Don't do it. An appeal from small claims court goes to a 'higher' county court or county court at law and is a trial de novo. This means a complete new trial as if the small claims (not a court of record) ever happened. And the higher court will require full formal court procedures, usually to much for a layperson.... requiring you to hire an attorney.

"Thanks."
*** You're welcome.

 

[Inquiry123]

I understand that I'll be starting from scratch (trial de novo) and that the def. may even lie next time and conveniently forget their promise to repay the loans under oath. I have add'l evidence (email) that the def. wrote and can produce a witness who will testify that the def. told her that "the money will have to be paid back after I get out of school." I think this would bolster my case and that I can win again.

I can afford the attorney and after I see the estimated cost will see if it is worth it if att'y fees are not recoverable.

Based on your experience, is it more/less likely for any 'higher' level of judge to award the total amount actually owed on a verbal agreement in this kind of case?

The $583 awarded barely covers my travel expenses to TX (I got to see my kids, though, so that compensates.) After consulting with the att'y, I'm considering sending a follow-up letter to my Ex to notify of the appeal and add'l evidence, and offer to again settle for payments over an extended period. Hopefully the first loss will make my Ex realize that a more costly judgement that demands immediate payment could be in the future. Would this kind of offer letter hurt my case? If I offer to settle for a lesser amount (as an incentive) would it more likely help/hurt any future judgement that I might be awarded? Thanks for your advice...to my posts and others that I have read, it has been helpful (and sometimes entertaining.)

 

[JETX]

"Based on your experience, is it more/less likely for any 'higher' level of judge to award the total amount actually owed on a verbal agreement in this kind of case?"
*** In my experience a 'real' court will be less likely to favor a verbal agreement. Small claims courts (at least in Texas) are not required to follow the 'Rules of Evidence' which the higher court will follow. The small claims court simply weighs the credibility of each person and decides which is more likely the truth... or to what extent and adjusts the judgment accordingly. The county court or court at law WILL follow the Rules making it much harder for your claim of a 'verbal agreement' to be of benefit.

At this point, I would simply file your notice of intent to appeal (giving you some additional time) and send a copy to your ex. Then, try to negotiate some type of settlement. If you can't, then I would probably settle for the original judgment and move on.

 

[dv76]

Wow, this is very insightful . . . Your case is very similar to my case, except that instead of repaying a cash loan, my ex had agreed to pay back all charges she incurs on her cell phone bill . . . Of course, she refused to pay it back and wouldn't meet up to sign Transfer of Service papers, so that's why I am thinking about taking this to a SCC, too . . .