Author Topic: How can I check if a judgement as been filed against me (Texas)?  (Read 4202 times)

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owecredit

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I may have gotten a summon from a CA about a credit debt. I need to check to see if there is a judgement made against me. How do I go about checking that? I've pulled my credit report and the 3 credit companys have not show anything about a judgement (I read somewhere that they may likely show judgement made on their credit reports). I've misused a credit card and ran up over $10,000 worth of debt. The orginal creditor (Discovercard) has written it off has "bad account". Now, a CA have gotten a hold of my account. It's about 3 1/2 years old. In Texas, open account SOL is 4 years. How likely are they going to sue me if one has not be filed? Please advise!!! Also, what would a summon look like?

Rottweiler

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Re: How can I check if a judgement as been filed against me (Texas)?
« Reply #1 on: November 14, 2006 12:14:32 AM »
I have never seen an actual summons form for TX, but they generally have the court name as a header, and the rest of the information would indicate plaintiff and defendant, what type of action it is, and when the Answer to the Complaint--which must accompany it--is due to be filed by.  If you check the TX court website, they may have sample forms on-line, or you could look at actual pleadings or forms books in a law library.

However, if you get one, I doubt you would think it was anything else!  They do also include the word "Summons" on them where you can see it.

To check if a case has been filed and that there may have been attempted (or actual--and you lost the thing or it was served at the wrong location) service?  You can often find at least the court dockets on-line; put your name in under "Party Name" (or the equivalent) and see what comes up.  Or, you could check at your friendly local Courthouse to see if anything has been filed.  I would do that soon...Discover DOES sue and they are mean suckahs!  Since you are close to the SOLC for TX, and you do owe a substantial amount, if Discover is going to sue, they may well do it soon.  If they already have, and there is a default judgment out there, you may have a chance to vacate it (if it's recent and you were not properly served).  Or, at least, you will know to watch out for a possible bank account garnishment, one of the few ways that a judgment creditor can seize assets in TX.

Also...is this CA acting up?  Violating the law--and that would involve the TX Finance Code as well as Federal Law (FDCPA)  in your case--does make for some nice counterclaims if you are sued.  Or, if Discover goes the compulsory arbitration route, a concurrent suit that could give you some real leverage in coming to a settlement.

I think this is what you want to know about TX law, BTW:

The TX Finance Code:  Title 5, Chapter 392--Debt Collection (scroll down):  http://tlo2.tlc.state.tx.us/statutes/fi.toc.htm
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

owecredit

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Re: How can I check if a judgement as been filed against me (Texas)?
« Reply #2 on: November 14, 2006 01:52:33 PM »
THANK YOU RW!!!! Man, you sure are knowlegable.

I have kept my old address, which is my mom house address. One day, my mom called me and told me a dupty was at the house to give me a letter. Or she thinks it was a police officer. I got the paper given to me but it didn't look like what you described but more like a letter from a CA so I threw it away. No SUMMON on it anywhere. I think I'm safe for the time being then...hopefully Discover won't sue me. If they do, can I delay it? It showed on my credit report the day of deliquency which will pass the SOL in March next year. I've kept my bank account to a minimum (less than $2,000) so they may think I don't have any money. And I have not big ticket itmes either. They can't go after my investment right? I'm curious as to why they haven't tried to negotiate? They have tried to sent 2 different CA after me for the money. I know because I recieved a letter from each CA stating the amount, acount number and the firm name;not to mention the constant phone calls which I don't pick up. They have inflated the amount by a SUBSTANTIAL amount.

Rottweiler

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Re: How can I check if a judgement as been filed against me (Texas)?
« Reply #3 on: November 14, 2006 03:53:40 PM »
Sounds like you made a big mistake:  If a DEPUTY delived the message, it likely was a summons.  (You open all mail when you are dealing with collections, even if it IS a collection letter, too risky not to...and you miss a lot of actionable violations if you do. )  At least, it was likely an official notice for something, probably from or for the court or the other party...let's hope Discover did not get a default judgment and that nice officer was not at the house to try to get an inventory of what you have and/or give you a sumons for an information subpoena.  (The notice that you are about to be put into arbitration would normally be delivered by a courier such as FedEx, a Deputy/police officer would not be involved.)

So, I would check the civil courts--all of the ones that could possibly have been the venue for such a case--in TX to make darned sure there is NO judgment out there.  And, get your exemptions filed with the court if there is one.

And, no, just because your bank account is fairly small is no protection, for garnishments have been placed on accounts much smalller than yours--they just take whatever is there even if it's not enough to pay the judgment, and the judgment creditor will simply try again or look for other assets to finish the process of satisfying (getting paid for). the judgment.  The only way to protect against a bank execution in most cases is...don't have one!

What is the investment?  If it's such a thing as a qualified pension plan, an annuity, or the like, you are probably safe.  Otherwise...

Chapter 34, TX Civil Practice and Remedies Code

http://tlo2.tlc.state.tx.us/statutes/cp.toc.htm

Quote
§ 34.044. STOCK SHARES SUBJECT TO SALE.  Shares of stock
in a corporation or joint-stock company that are owned by a
defendant in execution may be sold on execution.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.   

If it's stock, it's not protected.

But, the property that is--Title 5, Chapter 42, Property Code:

http://tlo2.tlc.state.tx.us/statutes/pr.toc.htm

Quote
§ 42.001. PERSONAL PROPERTY EXEMPTION.  (a) Personal
property, as described in Section 42.002, is exempt from
garnishment, attachment, execution, or other seizure if:
      (1)  the property is provided for a family and has an
aggregate fair market value of not more than $60,000, exclusive of
the amount of any liens, security interests, or other charges
encumbering the property;  or
      (2)  the property is owned by a single adult, who is not
a member of a family, and has an aggregate fair market value of not
more than $30,000, exclusive of the amount of any liens, security
interests, or other charges encumbering the property.
   (b)  The following personal property is exempt from seizure
and is not included in the aggregate limitations prescribed by
Subsection (a):
      (1)  current wages for personal services, except for
the enforcement of court-ordered child support payments;
      (2)  professionally prescribed health aids of a debtor
or a dependent of a debtor;  and
      (3)  alimony, support, or separate maintenance
received or to be received by the debtor for the support of the
debtor or a dependent of the debtor.
   (c)  This section does not prevent seizure by a secured
creditor with a contractual landlord's lien or other security in
the property to be seized.
   (d)  Unpaid commissions for personal services not to exceed
25 percent of the aggregate limitations prescribed by Subsection
(a) are exempt from seizure and are included in the aggregate.

Acts 1983, 68th Leg., p. 3522, ch. 576, § 1, eff. Jan. 1, 1984. 
Amended by Acts 1991, 72nd Leg., ch. 175, § 1, eff. May 24, 1991; 
Acts 1997, 75th Leg., ch. 1046, § 1, eff. Sept. 1, 1997.


   § 42.002. PERSONAL PROPERTY.  (a) The following personal
property is exempt under Section 42.001(a):
      (1)  home furnishings, including family heirlooms;                           
      (2)  provisions for consumption;                                             
      (3)  farming or ranching vehicles and implements;                             
      (4)  tools, equipment, books, and apparatus, including
boats and motor vehicles used in a trade or profession;
      (5)  wearing apparel;                                                         
      (6)  jewelry not to exceed 25 percent of the aggregate
limitations prescribed by Section 42.001(a);
      (7)  two firearms;                                                           
      (8 )  athletic and sporting equipment, including
bicycles;                   
      (9)  a two-wheeled, three-wheeled, or four-wheeled
motor vehicle for each member of a family or single adult who holds
a driver's license or who does not hold a driver's license but who
relies on another person to operate the vehicle for the benefit of
the nonlicensed person;
      (10)  the following animals and forage on hand for
their consumption:       
         (A)  two horses, mules, or donkeys and a saddle,
blanket, and bridle for each;
         (B)  12 head of cattle;                                                     
         (C)  60 head of other types of livestock;  and                               
         (D)  120 fowl;  and                                                         
      (11)  household pets.                                                         
   (b)  Personal property, unless precluded from being
encumbered by other law, may be encumbered by a security interest
under Subchapter B, Chapter 9, Business & Commerce Code, or
Subchapter F, Chapter 501, Transportation Code, or by a lien fixed
by other law, and the security interest or lien may not be avoided
on the ground that the property is exempt under this chapter.

Acts 1983, 68th Leg., p. 3522, ch. 576, § 1, eff. Jan. 1, 1984. 
Amended by Acts 1991, 72nd Leg., ch. 175, § 1, eff. May 24, 1991; 
Acts 1993, 73rd Leg., ch. 216, § 1, eff. May, 17, 1993;  Acts
1997, 75th Leg., ch. 165, § 30.245, eff. Sept. 1, 1997;  Acts
1999, 76th Leg., ch. 414, § 2.36, eff. July 1, 2001;  Acts 1999,
76th Leg., ch. 846, § 1, eff. Aug. 30, 1999.


   § 42.0021. ADDITIONAL EXEMPTION FOR CERTAIN SAVINGS
PLANS.  (a) In addition to the exemption prescribed by Section
42.001, a person's right to the assets held in or to receive
payments, whether vested or not, under any stock bonus, pension,
profit-sharing, or similar plan, including a retirement plan for
self-employed individuals, and under any annuity or similar
contract purchased with assets distributed from that type of plan,
and under any retirement annuity or account described by Section
403(b) or 408A of the Internal Revenue Code of 1986, and under any
individual retirement account or any individual retirement
annuity, including a simplified employee pension plan, and under
any health savings account described by Section 223 of the Internal
Revenue Code of 1986, is exempt from attachment, execution, and
seizure for the satisfaction of debts unless the plan, contract, or
account does not qualify under the applicable provisions of the
Internal Revenue Code of 1986.  A person's right to the assets held
in or to receive payments, whether vested or not, under a government
or church plan or contract is also exempt unless the plan or
contract does not qualify under the definition of a government or
church plan under the applicable provisions of the federal Employee
Retirement Income Security Act of 1974.  If this subsection is held
invalid or preempted by federal law in whole or in part or in
certain circumstances, the subsection remains in effect in all
other respects to the maximum extent permitted by law.
   (b)  Contributions to an individual retirement account,
other than contributions to a Roth IRA described in Section 408A,
Internal Revenue Code of 1986, or an annuity that exceed the amounts
deductible under the applicable provisions of the Internal Revenue
Code of 1986 and any accrued earnings on such contributions are not
exempt under this section unless otherwise exempt by law.  Amounts
qualifying as nontaxable rollover contributions under Section
402(a)(5), 403(a)(4), 403(b)(8 ), or 408(d)(3) of the Internal
Revenue Code of 1986 before January 1, 1993, are treated as exempt
amounts under Subsection (a).  Amounts treated as qualified
rollover contributions under Section 408A, Internal Revenue Code of
1986, are treated as exempt amounts under Subsection (a).  In
addition, amounts qualifying as nontaxable rollover contributions
under Section 402(c), 402(e)(6), 402(f), 403(a)(4), 403(a)(5),
403(b)(8 ), 403(b)(10), 408(d)(3), or 408A of the Internal Revenue
Code of 1986 on or after January 1, 1993, are treated as exempt
amounts under Subsection (a).  Amounts qualifying as nontaxable
rollover contributions under Section 223(f)(5) of the Internal
Revenue Code of 1986 on or after January 1, 2004, are treated as
exempt amounts under Subsection (a).
   (c)  Amounts distributed from a plan or contract entitled to
the exemption under Subsection (a) are not subject to seizure for a
creditor's claim for 60 days after the date of distribution if the
amounts qualify as a nontaxable rollover contribution under
Subsection (b).
   (d)  A participant or beneficiary of a stock bonus, pension,
profit-sharing, retirement plan, or government plan is not
prohibited from granting a valid and enforceable security interest
in the participant's or beneficiary's right to the assets held in or
to receive payments under the plan to secure a loan to the
participant or beneficiary from the plan, and the right to the
assets held in or to receive payments from the plan is subject to
attachment, execution, and seizure for the satisfaction of the
security interest or lien granted by the participant or beneficiary
to secure the loan.
   (e)  If Subsection (a) is declared invalid or preempted by
federal law, in whole or in part or in certain circumstances, as
applied to a person who has not brought a proceeding under Title 11,
United States Code, the subsection remains in effect, to the
maximum extent permitted by law, as to any person who has filed that
type of proceeding.
   (f)  A reference in this section to a specific provision of
the Internal Revenue Code of 1986 includes a subsequent amendment
of the substance of that provision.

Added by Acts 1987, 70th Leg., ch. 376, § 1, eff. Sept. 1, 1987. 
Amended by Acts 1989, 71st Leg., ch. 1122, § 1, eff. Sept. 1,
1989;  Acts 1995, 74th Leg., ch. 963, § 1, eff. Aug. 28, 1995; 
Acts 1999, 76th Leg., ch. 106, § 1, eff. Sept. 1, 1999;  Acts
2005, 79th Leg., ch. 130, § 1, 2, eff. May 24, 2005.


   § 42.0022. EXEMPTION FOR COLLEGE SAVINGS PLANS.  (a) In
addition to the exemption prescribed by Section 42.001, a person's
right to the assets held in or to receive payments or benefits under
any of the following is exempt from attachment, execution, and
seizure for the satisfaction of debts:
      (1)  any fund or plan established under Subchapter F,
Chapter 54, Education Code, including the person's interest in a
prepaid tuition contract;
      (2)  any fund or plan established under Subchapter G,
Chapter 54, Education Code, including the person's interest in a
savings trust account;  or
      (3)  any qualified tuition program of any state that
meets the requirements of Section 529, Internal Revenue Code of
1986, as amended.
   (b)  If any portion of this section is held to be invalid or
preempted by federal law in whole or in part or in certain
circumstances, this section remains in effect in all other respects
to the maximum extent permitted by law.

Added by Acts 2003, 78th Leg., ch. 113, § 1, eff. Sept. 1, 2003.           


   § 42.003. DESIGNATION OF EXEMPT PROPERTY.  (a) If the
number or amount of a type of personal property owned by a debtor
exceeds the exemption allowed by Section 42.002 and the debtor can
be found in the county where the property is located, the officer
making a levy on the property shall ask the debtor to designate the
personal property to be levied on.  If the debtor cannot be found in
the county or the debtor fails to make a designation within a
reasonable time after the officer's request, the officer shall make
the designation.
   (b)  If the aggregate value of a debtor's personal property
exceeds the amount exempt from seizure under Section 42.001(a), the
debtor may designate the portion of the property to be levied on. 
If, after a court's request, the debtor fails to make a designation
within a reasonable time or if for any reason a creditor contests
that the property is exempt, the court shall make the designation.

Acts 1983, 68th Leg., p. 3524, ch. 576, § 1, eff. Jan. 1, 1984. 
Amended by Acts 1991, 72nd Leg., ch. 175, § 1, eff. May 24, 1991.


   § 42.004. TRANSFER OF NONEXEMPT PROPERTY.  (a) If a
person uses the property not exempt under this chapter to acquire,
obtain an interest in, make improvement to, or pay an indebtedness
on personal property which would be exempt under this chapter with
the intent to defraud, delay, or hinder an interested person from
obtaining that to which the interested person is or may be entitled,
the property, interest, or improvement acquired is not exempt from
seizure for the satisfaction of liabilities.  If the property,
interest, or improvement is acquired by discharging an encumbrance
held by a third person, a person defrauded, delayed, or hindered is
subrogated to the rights of the third person.
   (b)  A creditor may not assert a claim under this section
more than two years after the transaction from which the claim
arises.  A person with a claim that is unliquidated or contingent at
the time of the transaction may not assert a claim under this
section more than one year after the claim is reduced to judgment.
   (c)  It is a defense to a claim under this section that the
transfer was made in the ordinary course of business by the person
making the transfer.

Acts 1983, 68th Leg., p. 3524, ch. 576, § 1, eff. Jan. 1, 1984. 
Amended by Acts 1991, 72nd Leg., ch. 175, § 1, eff. May 24, 1991.


   § 42.005. CHILD SUPPORT LIENS.  Sections 42.001, 42.002,
and 42.0021 of this code do not apply to a child support lien
established under Subchapter G, Chapter 157, Family Code.

Added by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 4.07, eff.
Sept. 1, 1991.  Amended by Acts 1997, 75th Leg., ch. 165, § 7.56,
eff. Sept. 1, 1997.

If what you own is covered under the above, you are OK...just take care of that bank account.  Just in case if there is not yet a judgment against you..as I said, Discover does sue.
« Last Edit: November 14, 2006 03:58:43 PM by Rottweiler »
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

Rottweiler

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Re: How can I check if a judgement as been filed against me (Texas)?
« Reply #4 on: November 14, 2006 04:01:01 PM »
One more thing:  They do not have to negotiate with YOU; you have to do that, if you wish to try to settle the account for less than the full amount.  They are entitled to collect whatever is due them per the contract, even if it is more than you think it should be.
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

owecredit

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Re: How can I check if a judgement as been filed against me (Texas)?
« Reply #5 on: November 16, 2006 02:57:52 PM »
Hey RW,

Can you give me your advise on this? I've check with the county civil court asking "Is there any judgement made against me on file" and the lady said there was one made in 2004 but now it was dismissed. I have no idea what that means. So, I'm still in the clear for the time being right? I like to negotiate with Discover. Should I wait until the SOL pass? I feel like with all the interest I paid them up til the when I stopped paying, that I should only pay the principle amount I owed...the good karma thing.




Rottweiler

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Re: How can I check if a judgement as been filed against me (Texas)?
« Reply #6 on: November 16, 2006 03:57:42 PM »
Since there, according to the court clerk's office, is a judgment entered against you in 2004, I would go to the court and pull the entire case file and copy it.  Somehow, I doubt that this is the case, if the term "dismissed" is accurate. If the record says the "judgment" was dismissed, I bet she meant that the plaintiff dismissed the case without prejudice OR the court dismissed the case for lack of prosecution. Therefore, in this case, it could well be a new lawsuit.

If there is a judgment, it would have been discharged if paid off (which, from what you tell us, it would not have been), or vacated if it were cancelled.  Both require that the debtor know about the judgment since the debtor has to actively deal with this.  Also, if there were a judgment, it's likely you would have noticed a withdrawal you never expected from your bank account...even if that were the first you heard of it.  That, apparently, did not happen--yet.  Maybe this paper was the notice of such a garnishment.  Another unanswered question that going to the court will answer.

I suspect it's even worse:  They did get a judgment.  If so, it's likely that "piece of paper/letter" that the nice Deputy served to mama in your stead was likely a summons for a debtor's exam (information subpoena);a mere collection letter, even for a client who is collecting on a judgment, would NOT be served by an officer of the court/process server!  If that judgment is out there, and you were served a summons for an IS, you had better show up for that or be found in contempt of court.

In other words, you had better make sure of the true status of any case before you decide to talk with Discover about settlement. It may, indeed be a new case, in which case you need to answer the complaint. (SOL will be tolled (stopped) as of the filing date so waiting it out won't work.)  Going to the court and checking out the files will confirm this...and the plaintiff you need to deal with.

Also, is the CA really working for Discover, or did Discover sell the judgment to a JDB?  Contact Discover, and ask about your account.  If they tell you they don't have the record, they likely sold it.  Ditto if they tell you that they did sell it.  In that case, get the contact information of the buyer, because you will need to settle with them; if there is a judgment, you will have to pay it somehow, and you have to negotiate with the current holder of the judgment to do that.

A critical note:  If Discover has gotten a judgment, and sold it to someone else, the court will need to have a record of the judgment having been transferred to the new holder.  If the new holder did not get the judgment transferred to them and have it recorded in the court records, they likely have no right to enforce it until they do!  So, this is another possibility--this is notice of a court hearing related to this transfer, although I would not think that your presence would actually be needed, and this would simply serve as notification that there is a new judgment creditor.

This last case would also create a legitimate delay during which time you can hopefully stipulate a settlement with whomever owns the debt now if it (such judgment) cannot be vacated.
« Last Edit: November 16, 2006 04:00:38 PM by Rottweiler »
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

owecredit

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Re: How can I check if a judgement as been filed against me (Texas)?
« Reply #7 on: November 16, 2006 09:10:56 PM »
I'm going to go pull the file down at the courthouse. So are you saying that if a case is filed, the SOL is suspended? If the case is dissmiss (for whatever reason which I will find out when I pull the file), there could be a judgement made? As far as I can tell, Discovercard file a case against me in 11/2004 but then somehow the case was dismissed. I've found a docket online with the case number. I'm law illiterate! Just know what I've read here (which is an AWESOME SITE)!

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Re: How can I check if a judgement as been filed against me (Texas)?
« Reply #8 on: November 17, 2006 02:41:57 AM »
If the case was dismissed, there could be no judgment out there UNLESS you agreed to a stipulated settlement prior to trial with the plaintiff.  This did not happen, unless they fraudulently filed a "stip" that you really had no part in making--even if there were an accounts stated, they still have to sue and prevail to get a judgment, and the existance of an accounts stated DOES NOT mean you agreed to a judgment.

Now...one thing to check out:  Is a Confession of Judgment allowed for in the contract/agreement?  This would mean that you agree to a judgment against you if you default and they don't have to prevail in a lawsuit to get it!  If it is, then you had better hope the law that applies to you does not allow for such a contract term to be enforced.

Some states don't allow them...if I correctly remember what I read, TX does not.
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

owecredit

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Re: How can I check if a judgement as been filed against me (Texas)?
« Reply #9 on: November 17, 2006 02:20:20 PM »
Ok, I went down there a got some paper work. Discovercard team (I'm assuming their in house collector) file a case against me in 2004. June of 2006, this is what they said...

                                                     PLAINTIFF'S NOTICE OF NONSUIT
"NOW Plaintiff, Discovercard, (address), moves this Court to dismiss WITHOUT predudice all of the Plantiff's claims and/or causes of actions now pending against Defendant, John Doe."

What do you make of this RW?

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Re: How can I check if a judgement as been filed against me (Texas)?
« Reply #10 on: November 17, 2006 06:19:34 PM »
Discover withdrew their suit without prejudice.  That means they gave up....but can file again.  What likely happened is that they did not find their "John Doe"--you--to serve the summons, and rather than move for alternative service, simply told the court that they did not want to go ahead with it; the court let them drop the suit.

“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes