“Judgment Collection”

January 12th, 2012

When you or your company is owed money, it is often necessary to turn to the legal system to collect the debt.  The attorneys at Bailey & Galyen have the experience necessary to maximize your recovery and minimize your cost while collecting the money your or your business is owed.

If you are owed a debt, Texas law allows a number of pre- and post-judgment collection methods, including:

  • Pre- and post-judgment garnishment proceedings;
  • Filing lis pendens;
  • Abstracting judgments; and
  • Obtaining turnover orders.

Under the right circumstances, these collection methods may provide a quick and cost-effective mechanism for collecting a debt.  The attorneys at Bailey & Galyen can assist our clients in using these methods to collect the debts they are owed.  The attorneys at Bailey & Galyen are also experienced in aggressively pursuing post-judgment discovery to uncover a debtor’s assets that may be subject to seizure to satisfy a debt.

 

Josh Borsellino has years of experience helping individuals and business collect the debts they are owed.  With offices in Dallas, Arlington, Fort Worth, Houston, and McAllen, to name a few, Bailey & Galyen has the resources to assist you with in collecting the debts your are owed throughout Texas.

 

When you need experienced legal counsel to aggressively pursue those that owe you money, call our law firm at (866) 378-4705, or contact us online, to arrange a consultation. Our business attorneys stand ready to enforce your rights and collect the money that you are owed.

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Writ of Garnishment

August 30th, 2011

Originally printed in the Dallas Bar Association Headnotes publication by author Peter Chen

Does your company hold a judgment against one of its ex-customers?

If so, Bailey & Galyen can help you collect the judgment in a number of different ways.  One way is through a writ of garnishment.

Pursuant to CPRC §63.001(3), a post-judgment writ of garnishment is available if ”a plaintiff has a valid, subsisting judgment and makes an affidavit stating that, within the plaintiff’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment.” In light of what appear to be relatively simple requirements, Texas courts have long held that garnishment is a summary and harsh remedy, requiring strict compliance with the statutory provisions and related rules.

 

Unlike a writ of execution, a post – judgment writ of garnishment may be applied for and issued immediately after entry of a final judgment. TRCP 657. Thus, post – judgment garnishment actions are often quick-strike opportunities, as a debtor will likely withdraw assets from any suspected target of collection actions. Accordingly, it is vitally important that a post-judgment garnishor gets it right the first time around. The following are five common, though not exclusive, errors to be avoided:

  1. 1) Affidavits that merely regurgitate the statutory language are insufficient. The rules require that the affidavit be either based on personal knowledge, “set[ting] forth such facts as would be admissible in evidence,” or based on information and belief, provided “the grounds of such belief are specifically stated.”
  2. 2) In cases where the underlying judgment is against multiple defendants, an affidavit that addresses only one defendant is insufficient.
  3. 3) A writ of garnishment that does not issue from the court that issued the underlying judgment is defective.  Note that when instituting garnishment proceedings that arise from a judgment rendered in another state, this requirement necessitates domestication of the foreign judgment under the Uniform Enforcement of Foreign Judgments Act, CPRC chapter 35.
  4. 4) A writ served on the garnishee by a private process server cannot be sustained. TRCP 663 makes explicitly clear that only a sheriff or constable may serve the writ of garnishment on the garnishee.
  5. 5) Without service on the debtor, a garnishment cannot be sustained. The rules require that a copy of the writ be served on the judgment debtor ”as soon as practicable following the service of the writ.” Although this rule does not provide an explicit deadline, a 15-day delay before serving the debtor has been held to be too long, according to Texas courts.  In contrast to the requirements for service on the garnishee, the rules allow for service on the debtor as provided in TRCP 21a. And, it is worth noting that ”[a]ctual knowledge or a voluntary appearance by the debtor is insufficient and does not waive rule 663’s requirement of service.”

If you or your company has any “bad debts,” feel free to contact the attorneys at Bailey & Galyen to see if we can help turn those bad debts into good money.

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Posted in Arrest Record, Business Law, Business Litigation, Corporate Law | No Comments »

Clearing Your Record

August 30th, 2011

By John Robinson

Anytime a person is arrested and booked into jail, a record is created.  This record quickly proliferates through many databases and is easily accessible to the public. In fact, many counties in the Dallas-Fort Worth area have booking photos of each person arrested available online at no cost.  Even if the case is ultimately dismissed, there is a not guilty finding or community supervision is successfully completed, the stigma of arrest remains for all the public to see.  Further, the reality is that the arrest record alone is effectively as harmful as being found guilty is to most prospective employers.

In Texas there are two main avenues used to limit an arrest and case record from public view: expunction and nondisclosure.  An expunction is the complete erasure of the arrest and case record from government databases and down-line reporting companies. This expunction does not include stories that end up on sites like Yahoo! or Google. For example, even though O.J. Simpson would be eligible for an expunction had his case tried been in Texas, expunction would have been pointless because all the news stories about his case, both online and in print, do not fall under the Texas statute requiring removal of the record.  An expunction is only available if a person is acquitted of the charge, the charge is dismissed (but not dismissed through a deferred adjudication) and the statute of limitations has run out, or the charge was pardoned by the governor’s office.  There are also other factors, such as other felonies, that limit a person’s eligibility for an expunction.

Nondisclosure is a partial erasure of the record.  It prohibits arrest and case information from being made available to the public but allows law enforcement and most state agencies to access it.  Nondisclosure is only applicable to offenses where deferred adjudication community supervision (probation) was granted and the case was dismissed after its successful completion.  After the case is dismissed, there is a five year wait for all felonies and a two-year wait for some misdemeanors, during which time the accused must not have any new convictions or probations, before a nondisclosure can be filed.  Further, certain offenses, for example cases involving family violence, kidnapping or stalking, or cases that require sex offender registration, are not eligible for nondisclosure.  Finally, nondisclosure is discretionary to the court where the original case was filed.  Unlike with expunction where you either qualify or you don’t, there is no right to a nondisclosure.  If the district attorney agrees, most judges will grant the nondisclosure.  If the district attorney doesn’t agree, however, then it is up to the petitioner to prove that it is in the best interests of justice to grant the nondisclosure.

A person’s background check can be the difference between getting a job and not getting a job.  It can affect many other things in one’s daily life.  If you have been arrested for an offense and fall into one of the above categories, you should definitely take action to clear your record.

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Deceptive Trade Practices Prohibited in Texas

July 8th, 2011

by Michael Cramer

Texas law protects consumers from “false, misleading or deceptive acts or practices.”

The term “false, misleading or deceptive acts or practices” includes, but is not limited to, the following acts:

  1. passing off goods and services as those of another;
  2. causing confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services;
  3. causing confusion or misunderstanding as to affiliation, connection, association with or certification by another;
  4. using deceptive representations or designatins of geographic origin in connection with goods or services;
  5. representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have, or that a person has a sponsorship, approval, status, affiliation or connection that he does not;
  6. representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used or secondhand;
  7. representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;
  8. disparaging the goods, services or business of another by false or misleading representation of facts;
  9. advertising goods or services with intent not to sell them as advertised;
  10. advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements disclosed a limitation of quantity;
  11. making false or misleading statements of fact concerning the reasons for, existence of or amount of price reductions;
  12. representing that an agreement confers or involves rights, remedies or obligations that it does not have or involve, or that are prohibited by law;
  13. knowingly making false or misleading statements of fact concerning the need for parts, replacement or repair service;
  14. misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction;
  15. basing a charge for the repair of any item in whole or in part on a guaranty or warranty instead of on the value of the actual repairs made or work performed on the item without stating separately the charges for the work and the charge for the warranty or guaranty, if any;
  16. disconnecting, turning back or resetting the odometer of any motor vehicle so as to reduce the number of miles indicated on the odometer gauge;
  17. advertising of any sale by fraudulently representing that a person is going out of business;
  18. advertising, selling or distributing a card that purports to be a prescription drug identification card issued under Section 4151.152, Insurance Code, in accordance with rules adopted by the commissioner of insurance, which offers a discount on the purchase of health care goods or services from a third-party provider, and which is not evidence of insurance coverage, unless:
    1. the discount is authorized under an agreement between the seller of the card and the provider of those goods and services, or the discount or card is offered to members of the seller;
    2. the seller does not represent that the card provides insurance coverage of any kind; and
    3. the discount is not false, misleading or deceptive;
  19. using or employing a chain referral sales plan in connection with the sale of or offer to sell goods, merchandise or anything of value, which uses a sales technique, plan, arrangement or agreement in which the buyer or prospective buyer is offered the opportunity to purchase merchandise or goods and in connection with the purchase receives the seller’s promise or representation that the buyer shall have the right to receive compensation or consideration in any form for furnishing to the seller the names of other prospective buyers if receipt of the compensation or consideration is contingent upon the occurrence of an event subsequent to the time the buyer purchases the merchandise or goods;
  20. representing that a guarantee or warranty confers or involves rights or remedies that it does not have or involve, provided, however, that nothing in this subchapter shall be construed to expand the implied warranty of merchantability as defined in Sections 2.314 through 2.318 and Sections 2A.212 through 2A.216 to involve obligations in excess of those which are appropriate to the goods;
  21. promoting a pyramid promotional scheme, as defined by Section 17.461;
  22. representing that work or services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts not replaced;
  23. filing suit founded upon a written contractual obligation of and signed by the defendant to pay money arising out of or based on a consumer transaction for goods, services, loans or extensions of credit intended primarily for personal, family, household or agricultural use in any county other than in the county in which the defendant resides at the time of the commencement of the action or in the county in which the defendant in fact signed the contract; provided, however, that a violation of this subsection shall not occur where it is shown by the person filing such suit he neither knew or had reason to know that the county in which such suit was filed was neither the county in which the defendant resides at the commencement of the suit nor the county in which the defendant in fact signed the contract;
  24. failing to disclose information concerning goods or services that was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed;
  25. using the term “corporation” or “incorporated,” or an abbreviation of either of those terms, in the name of a business entity that is not incorporated under the laws of this state or another jurisdiction;
  26. selling, offering to sell or illegally promoting an annuity contract under Chapter 22, Acts of the 57th Legislature, 3rd Called Session, 1962 (Article 6228a-5, Vernon’s Texas Civil Statutes), with the intent that the annuity contract will be the subject of a salary reduction agreement, as defined by that Act, if the annuity contract is not an eligible qualified investment under that Act or is not registered with the Teacher Retirement System of Texas as required by Section 8A of that Act; or
  27. taking advantage of a disaster declared by the governor under Chapter 418, Government Code, by:
    1. selling or leasing fuel, food, medicine or another necessity at an exorbitant or excessive price; or
    2. demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine or another necessity.

If you have been a victim of any of the above types of transactions, you may be able to recover up to three times the amount of damages that the fraudulent transaction cost you. Specifically, you may sue for the following:

  1. The consumer may sue for the amount of economic damages.
  2. If the conduct of the defendant was committed knowingly, the consumer may also recover damages for mental anguish and not more than three times the amount of economic damages.
  3. If the conduct was committed intentionally, the consumer may recover damages for mental anguish, and not more than three times the amount of damages for mental anguish and economic damages.
  4. Each consumer who prevails shall be awarded court costs and reasonable and necessary attorney fees.

If you feel that you have been the victim of any false, misleading or deceptive practice, please call the attorneys at Bailey & Galyen.

www.thetexasbusinessattorney.com

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Fuddruckers Filed For Bankruptcy? Can I Still Get My Hamburger?

July 8th, 2011

By Jim Ince

On April 22, 2010, the parent company of Fuddruckers declared bankruptcy. The interesting fact here is that very few people are aware that Fuddruckers even filed for bankruptcy.  Many of you might be saying to yourselves that you ate a Fuddruckers burger recently and everything seemed normal.  It is shocking to find out that a well-respected company can file for bankruptcy and largely keep that a secret. Planning to enjoy a day at Six Flags anytime soon?  Well, they too are in bankruptcy.

Probably the largest misconception about bankruptcy is that it completely disrupts or destroys your life.  In reality, unless a company reaches the point where it simply chooses not to continue doing business, it continues to operate with little or no interruption in service.  So, why did Fuddruckers file?  It seems the company has a small handful of stores that have not been operating profitably, and that handful of stores is having a negative impact on the rest of the operation.  The company found that by continually trying to prop up the individually failing stores, it was risking collapse of the whole operation.

Individuals often find themselves in a similar situation.  They are able to continue existing day to day.  However, so much of their financial focus is on the part of their life that is not functioning well, and they are devoting more and more of their disposable income to paying credit card debt.  Much as Fuddruckers discovered, there may be aspects of the financial picture that are working extremely well.  The problem is that a substantial part of their income is tied up with purchases made long ago and ever-increasing late fees and interest.  Unlike with companies, creditors owed money by individuals do not really “negotiate” and make a plan for you to pay back your debts.

If you are struggling, it is time to sit down with an experienced bankruptcy attorney.  There are two major kinds of bankruptcy for consumers.  Chapter 7 is the traditional bankruptcy and deals primarily with credit card and medical debt.  Chapter 13 helps you if you have also gotten behind on your house and/or car, as well as with your credit card debt.  The type of bankruptcy best for a particular individual depends on a variety of factors including the type of debt that person is carrying and their amount of income.

Don’t let the situation deteriorate until there is no choice but to dig into your 401(k) or your home equity.  In Texas, these are protected assets and you need to keep them protected.  A bankruptcy will let you keep your home, cars, 401(k) and, in most cases, cash!  You won’t know until you explore.

Unlike for a Fuddruckers, personal bankruptcy is not just a business decision.  It is also an emotional situation, which a bankruptcy attorney is trained to handle.  You do not have to apologize for the situation you find yourself in.  The appointment is free.  Call now to see one of our attorneys.  Let us put you back on your feet so that you, like Fuddruckers, can manage your finances and be profitable and successful.  People do not think less of Fuddruckers or Six Flags because those companies filed bankruptcy.  I think I know where I may go for lunch today!

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Arcadia Petroleum Futures Trading Investigation

June 27th, 2011

by John Fabry

Bailey & Galyen is investigating potential claims on behalf of investors in light sweet crude oil futures or options contracts in early 2008. According to a complaint filed by the Commodity Futures Trading Commission (CFTC), traders at Arcadia Petroleum Ltd., a Swiss commodity-trading firm, manipulated the price of oil at America’s central oil hub in Cushing, Oklahoma, in January and February of 2008. The oil traders, Nicholas Wildgoose and James Dyer, are alleged to have entered into forward contracts to buy 4.6 million barrels of oil for physical delivery in February, an amount that represented 66 percent of their beginning-of-month estimate of the total physical Cushing market. Between January 3 and January 16, the pair is alleged to have also bought approximately 13,600 February futures contracts (equivalent to 13.6 million barrels of oil) and sold the same number of March futures contracts. They allegedly did so to manipulate the price of derivatives tied to the value of oil prices at that hub. More specifically, it is alleged that by creating the appearance of temporarily tighter conditions in the physical market, the February futures price would rise relative to the March and the traders would profit as they closed out their futures positions between January 16 and January 22.

If you would like to discuss your rights and interests as an investor, or have information relating to this investigation, please contact John Fabry at Bailey & Galyen’s Houston office at 381-335-7744 or by e-mail at jfabry@galyen.com.

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WARNING! Be Careful What You Post!

June 3rd, 2011

Do you have a Facebook, MySpace or other social networking account? Could anything on your site be considered inconsistent with the claims in your lawsuit? Have you posted anything that you would be embarrassed to talk about in open court if your case goes to trial? Do you believe that your postings are private — only available to those you allow access — so the insurance defense lawyer can’t get them? If you answered “yes” to any of these questions, please continue reading.

Kathleen Romano’s personal injury case made headlines when the judge ordered her to deliver a signed consent allowing the defense access to her current and historical Facebook and MySpace pages, including postings and other information she thought was private. Ms. Romano alleged in her lawsuit that she suffered “serious permanent injuries” when she sat on a defective chair manufactured by Steelcase Inc. that caused her to fall. Her claimed injuries included herniated discs, restricted motion in her neck and back, progressive deterioration, pain and loss of enjoyment of life. Ms. Romano also claimed that she had been “largely confined to her house and bed” since she fell. However, the defense lawyers in her case found her Facebook profile photo showed her standing outside of her house “smiling happily” and other content that indicated she had recently taken a trip to Florida.

The judge ruled that because “the public portions of [Ms. Romano’s] social networking sites contain material that is contrary to her

WARNING! Be Careful What You Post

WARNING! Be Careful What You Post

claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence, such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense….” The judge ordered Ms. Romano to give the defense access to her private postings to look for other information to attack her claims. The judge ruled that Ms. Romano had no reasonable expectation of privacy online.

You should expect that the insurance defense lawyers in your case are checking social networking sites for information they can use against you. You should assume that if the insurance defense lawyers ask, the judge in your case will give them access to your private postings. Don’t be surprised if the defense lawyers in your case ask for and receive access to postings that you deleted from your site. Here’s a good rule to follow before posting: “Assume anything you post can and will be used against you in a court of law.”

Learn how Bailey & Galyen’s legal expertise and resources can ensure you achieve your business objectives. Call our office today at (866) 378-4705 or fill out an intake form to arrange a consultation

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Business Litigation and Corporate Law

July 15th, 2010

By Michael R. Cramer

Did you know that Bailey & Galyen also has a department dedicated to meeting your needs as a business owner? Bailey & Galyen is uniquely positioned to assist any size company, from mom-and-pop businesses to the largest corporation, with its legal issues.

Our firm can assist with your company’s very beginning by advising you of whether you need a partnership, joint venture, corporation, limited liability company (LLC), professional association or any other type of legal entity. Once your company is formed, we can assist in negotiating and drafting your office lease, employment contracts and sales or service contracts to use with your customers. Our firm is also able to collect your past due accounts receivable from your delinquent clients.

Finally, in the unfortunate circumstance that litigation arises, Bailey & Galyen can handle any size lawsuit, from small-claims court cases and evictions to conflicts in Federal District Court. Our firm has defended hundreds of companies and can also file suit on your behalf when someone fails to honor their obligations to you or your company.

If you are even thinking about starting a new business entity in Texas, call any of our 15 offices and speak to an attorney in the Business Litigation and Corporate Law department.

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Warrior Dash Event is moving forward ! Dallas County not going to seek TRO!!!!!!!!!!!

April 28th, 2010

Just talked to Michael Cramer Attorney – Meeting with Dallas County officials went well. They are not going to seek a TRO and the Warrior Dash event can move forward !!!!!!!!!!!!!!!!!!!!!!!!!

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Temporary Restraining Order Stands in Way of Warrior Dash

April 28th, 2010

The Kaufman County District Attorney filed an ex parte Temporary Restraining Order last week, to prevent Red Frog Events LLC from holding the Warrior Dash this weekend. The TRO was granted without any notice to Red Frog Events and was based on an erroneous assumption that all 18,000 participants would be at the event for the entire time.

Once we were able to get in front of the Judge, we were able to convince them that each race was staggered every 30 minutes and only 500 people were in each race. The Judge agreed that the number of participants expected at the event at any one time would be far greater than what the County had originally thought.

Kaufman County ruled that the event could go on as long as the organizers were able to prevent the type of numbers of that would trigger the Mass Gatherings Act.

Organizers are confident that they can keep the numbers below that amount.

To satisfy the Sheriff’s concerns about the expected traffic congestion on FM 740, the Court ordered organizers to have off-site parking facilities available and to bus in the participants. Organizers are currently working on finalizing locations for off-site parking.

Michael Cramer, Managing Attorney of the Business Litigation department of Bailey & Galyen, was brought in by Red Frog Events to fight the Kaufman County TRO. Mr. Cramer was in court in Kaufman County until 8:30 last night. Mr. Cramer has built a reputation as a tenacious litigator who zealously fights for his clients.

Mr. Cramer and the Warrior Dash promoters have scheduled a meeting with Dallas County officials this afternoon to discuss any concerns they may have, in light of the fact that Kaufman County is allowing the event to take place.

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