Write of execution, is it worth filing

[Mdavis]

i live in Texas. a fews months ago i received a default by judgment in my favor because the defendant failed to show up in court. to make a long story short, i am sueing the owner of a auto repair shop. one of his mechanics failed to put oil back in my differentail, and of course it burn up. i had the damage repair by another shop of course.
i want to persue this further in order to recover the repair costs ($1000.00) by filing an writ of execution. but i need some answers first. 1) how do i find out if the owner/defendant stills owns the repair shop-besides me calling the shop and asking them out right, only for them to lie to me. or does the constable office finds this information before seizing any property? 2)in texas can auto tools be seized and auction off and up to what amount? 3) is there any other hidden costs, besides the filing fee that may appear down the road and are there any loop holes? 4) my main question and concern is, is a writ of execution worth persuing-money wise and time wise, can/will i get the results i need by filing an execution? i don't want to give the court/city my money only to be dissappointed.any advice or knowledge will be greatly appreciated.

Mdavis

[Edited by Mdavis on 07-09-2001 at 04:17 PM]

 

[I AM ALWAYS LIABLE]

My response:

If you go to your neigborhood Barnes & Noble Booksellers bookstore, and in their "legal" section, you can buy a book on Small Claims Court procedures. Within that book is a chapter on "Collecting Your Judgment". In that chapter all of your questions are there, with the answers, too.

It will also give you step-by-step procedures, methods and forms for you to follow and use in order to get your money.

Good luck to you.

IAAL

 

[Mdavis]

reply

Thank you for your advice.

Mdavis

 

[JETX]

Q1) "how do i find out if the owner/defendant stills owns the repair shop-besides me calling the shop and asking them out right, only for them to lie to me."
A2) As you noted, you could call the shop and ask. If you are concerned about them lying to you, use a phony name or have someone else call. An alternative would be to go by your local county clerks office and look at the "d/b/a" (doing business as, or aka- also known as) file. It will tell the owner of the business.

Q2) "or does the constable office finds this information before seizing any property?"
A2) The constable will not do any pre-investigation for you. He will take the Writ that you get and serve it on the debtor at the business. If the owner is not the correct person, then he will tell the constable.

Q3) "in texas can auto tools be seized and auction off and up to what amount?"
A3) Tools of trade are exempt from seizure. With no inherent limit.

Q4) "is there any other hidden costs, besides the filing fee that may appear down the road and are there any loop holes?"
A4) Wow, this is a 'loaded question'. What types of hidden costs?? If you have received a valid judgment (see below), and have paid the fee for the Writ and for service, that should be the full cost to that point. As for 'loopholes', yes there are a bunch of potential hurdles that you might have to jump. See below for the biggest.

Q5) "my main question and concern is, is a writ of execution worth persuing-money wise and time wise,"
A5) Only you know what it is worth and what the debtor might have. And those factors will determine the value of the pursuit.

Q6) "can/will i get the results i need by filing an execution?"
A6) No one knows. That is one of the fun parts of this enforcement 'game'. The debtor could be judgment-proof (with no seizable assets), he could be the wrong person, your suit could be fatal, etc.

Q7) "i don't want to give the court/city my money only to be
dissappointed."
A7) Whenever you are having a Writ served, you have to try to minimize your risk of failure and then proceed with whatever action is necessary. There are no guarantees.

Now, to the big hurdle.... since your judgment is a default judgment it is considered a 'weak' judgment. That means it can be fairly easy for the debtor to challenge the judgment if the lawsuit wasn't 'styled' properly or if it was not served correctly. I have dozens and dozens of cases where a person tried to sue someone, especially a business, only to find that their lawsuit got thrown out due to fatal errors in party and/or service. You need to make SURE that your lawsuit was filed against the correct party, in their correct capacity and that the correct party was served with the notice. Once you have assured yourself that this was done, then and only then, should you proceed with enforcement efforts.

 

[Mdavis]

Writ of execution, is it worth filing

Thank you so much for your reply, due to your reply i have a better picture of how things can progress.

You mention a big huddle. I have a few more questions: 1)
the court told me that the defendant had up to 30 days after judgment to respond by appealing the judgment, and after 30 days they would lose that right, however according to you the defendant can still appeal the judgement, is that what you are saying ? 2)if i can't go after tools of the trade, then what can i go after, i.e. bank accounts, what other property? You mention about the papers being served to the right party, yes they were the first time served, because the defendant party re-scheduled the first trail date one month before the trial, then the court re-scheduled it a second time. 3) how can i find out if the defendant was served correctly on for both re-schedule dates? 4)can the organization 'Judgment Recovery of Texas'help me with my case? If so how if tools of the trade can't be seized in the state of Texas?

Once again thank you the advice from your first rely.

Mdavis

 

[JETX]

Q1) "the court told me that the defendant had up to 30 days after judgment to respond by appealing the judgment, and after 30 days they would lose that right, however according to you the defendant can still appeal the judgement, is that what you are saying?"
A1) No. Each of us has the Constitutional right to confront our 'accusers' (this has nothing to do with an appeal). If the defendant was not properly notified of the lawsuit so that he could defend himself against your claim, he can file a "Motion to Vacate Judgment". The court would then hear the facts of the notice and, if the court finds that the defendant in fact was not properly notified, can set the judgment aside and schedule a new trial (assuming SOL issues).

Q2) "if i can't go after tools of the trade, then what can i go after, i.e. bank accounts, what other property?"
A2) Texas is considered a debtor-friendly state in that debtors have more rights than you (the creditor) has. We hae been lobbying our state for several years to try to change this (almost got it done this last legislature), but it is still a debtor state, giving the debtor a long list of exempt property. (To see the applicable statute, click on:
http://www.capitol.state.tx.us/statutes/py/py004200.html#py001.42.001/ )

Q3) "You mention about the papers being served to the right party, yes they were the first time served, because the defendant party re-scheduled the first trail date one month before the trial, then the court re-scheduled it a second time. 3) how can i find out if the defendant was served correctly on for both re-schedule dates?"
A3) From your response, it appears that the defendant was aware of the lawsuit which should eliminate a large part (if not all) of the debtors challenge to the validity of the judgment.

Q4) "can the organization 'Judgment Recovery of Texas'help me with my case?"
A4) Yes.

Q5) "If so how if tools of the trade can't be seized in the state of Texas?"
A5) Ah, that is the 'secret' that allows us to enforce the judgment. We have access to both public and private databases that allow us to locate assets of the debtor, if any. Then, based on that investigation and by using the courts, we seize those non-exempt assets and enforce the judgment. If you are interested, you are invited to visit the website noted in my signature and I would be glad to contact you.

 

[Mdavis]

Writ of execution, is it worth filing

Once again thank you for the quick reply. You have been a great resource of information. And I will definitely take all you said in consideration, you might be hearing from me.

Thanks You
Mdavis