Civil Practice & Remedies Code Collection Of Judgment Through Court Proceeding

Transcription

1 Civil Practice & Remedies Code Collection Of Judgment Through Court Proceeding Texas Justice Court Judges Association Judge Ralph Swearingin Jr. Tarrant County October 17, 2017

2 WHAT IS THE NAME OF THE MONOPOLY GUY? A) Mike Bernstein B) Matt Garcia C) Jerry Jarzombek D) Pitt Bull E) None of the Above

3 DRUM ROLL Rich Uncle Pennybags He is the mascot of the game Monopoly. He is depicted as a portly old man with a moustache who wears a morning suit and top hat. In large parts of the world he is known, additionally or exclusively, as the Monopoly Man, or Mr. Monopoly. He also appears in the related games Advance to Boardwalk, Free Parking, Don't Go to Jail, Monopoly City, Monopoly Junior, and Monopoly Deal.

4 CIVIL PRACTICE & REMEDIES CODE

5 BILL ANALYSIS HOUSE BILL 1066

6 2 EXAMPLES OF APPLICATION FOR TURNOVER AND APPOINTMENT OF RECEIVER WITH PROPOSED ORDERS.

7 A LOOK AT CPRC When following the PURPOSE of the law: To aid a judgment creditor who is entitled to aid from a court of appropriate jurisdiction to reach property to obtain satisfaction on the judgment, judges can exercise their judicial discretion and authority when considering the issuance of an order of turnover and possible appointment of a receiver. The statute (a) states: a judgment creditor is ENTITLED (is this a shall/must?) to AID from a court of APPROPRIATE JURISDICTION (what is a court of appropriate jurisdiction?) through INJUNCTION (Does a Justice Court have such authority?) or other means to reach PROPERTY (no distinction between personal or real property) to obtain satisfaction on the judgment if the judgment debtor OWNS property, including present or future rights to property that is Not Exempt from attachment, execution, or seizure for the satisfaction of liabilities

8 Continued - A LOOK AT CPRC (b) The court MAY: (a Turn Over is not required): (1) Order the judgment debtor to TURN OVER NONEXEMPT property to a sheriff or Constable for execution; The property, must be non-exempt and in the debtor s possession or is subject to the debtor s control (ownership?), and includes all documents or records related to the property How familiar are you with what your constable does? Is your constable familiar with the law, procedure and have any prior experiences with this? If familiar, does your constable have a practice or written procedure and process? Consider who you want the property turned over to; either a Sherriff/Constable or a Receiver, and remember the property cannot be turned over directly to the judgment creditor; (2) Otherwise apply the property to the satisfaction of the judgement; or This allows the court to order money placed into the registry of the court Do not have property turned over directly to the creditor

9 Continued - A LOOK AT CPRC (b) The court MAY: (a Turn Over is not required): (3) Appoint a Receiver with the authority to take possession of the nonexempt property, sell it, and pay the proceeds to the judgment creditor to the extent to satisfy the judgment. The law is silent as to who may be a Receiver (Judicial discretion) Is there a recommended Receiver in the Motion, and if so is there any vitae or information concerning their qualifications - and remember the appointment of a receiver, or any receiver is within your discretion (is the receiver an attorney; prior experience?); Within the Motion and proposed Order, fully review the requested duties and powers of the Receiver and remember that you are bestowing upon/ empowering the Receiver with the particular authority to carry out your Orders, and with that authority the Receiver derives judicial immunity protection; The receiver is not preserving property; instead is to sell or liquidate the property

10 SOME THINGS TO CONSIDER Before you begin any Collection of Judgement Through Court Proceeding hearing, ex parte or otherwise, you should: Review the applicable law Civil Practice and Remedies Code CPRC and Texas Property Code Chapter 42 (As judge you should be familiar with what property is exempt - Texas Property Code Chapter 42), etc.; Review the filing in detail, particularly the Application and any proposed Order; (Does the Application provide any facts about the original judgment; describe any non-exempt property; seek a receiver, etc.; Are you a court of Appropriate Jurisdiction (Was the judgment issued from your court); Does the Application/Motion allege that the judgment creditor is seeking exempt property and is there any form of evidence filed showing the judgment creditor is entitled to the order;

11 Continued- SOME THINGS TO CONSIDER Determine whether the hearing should be ex parte or notice to both parties; The defendant does not have to be notified and the defendant is not entitled to a hearing (h) A court MAY enter an order without identifying in the order the specific property subject to turnover. Recall that the Order does not have to identify specific property, yet within your discretion will you ask that property be identified and if so what level/type of identification will you require: itemize the property; identify the property with some reasonable particularity, or; create some general laundry list that satisfies the requirement of (h)

12 Continued- SOME THINGS TO CONSIDER At a hearing, is there sufficient evidence presented to show: 1. The court is the one with appropriate jurisdiction (Judgment from your court); 2. Evidence must be presented to prove that the judgment creditor is entitled to the Turnover order; 3. The judgment debtor OWNS property that is Not Exempt Apply your judicial discretion to any proposed Order having it written so both you and the Receiver have a clear understanding of the terms, the extent of the duties/authority and responsibilities of the Receiver; Do you feel comfortable with the Order being both clear and concise (does the order provide guidance as to the except property that is to be turned over) Will you use your judicial discretion and impose a time limit on the life of the Order;

13 Continued- SOME THINGS TO CONSIDER Do you feel comfortable with the Receiver and their ability to understand and follow the Order without their having to interpret their duties within the Order; (the court has the discretion to limit or expand the duties of the Receiver.) Will you require the Receiver to post a bond (CPRC is silent on the issue of a bond) and if so, what amount would be fair and reasonable and to whom would the bond be made payable to? If you require a bond, what is the underlined purpose? (TRCP 695a Bond does not apply to ) Any bond required should not be in an amount that would act as a prohibitive cause or make it economically impossible for the judgment creditor to use their turnover remedy. Will you require the Receiver to be a resident of Texas and to take an oath to faithfully execute their duties, etc.(if sworn - to faithfully execute the duties and conditioned on obedience to the court s order); Will you require the Receiver to provide an inventory of all property taken and if so set a time period in which to report in writing to the you (how are the proceeds from the property applied to the debt, and to the expenses incurred by the receiver as necessary expenses/costs);

14 Continued- SOME THINGS TO CONSIDER Where will the property be stored; how and where; any details about how, when, where sold, etc.; What does the Order state about compensating the Receiver and any proposed others, and recall that the judgment creditor is entitled to recover reasonable costs and attorney s fees (Court has discretion to award these); Is the Receiver to be paid a percentage of the property turned over, or compensated on an hourly rate basis that the Receiver/attorney or the Receiver s attorney will be paid (can a court determine in advance what a reasonable fee would be?); Will you require a finding of reasonable costs, attorney fees to be made after the turnover work is completed; (c) The court may enforce the order by contempt proceedings or by other appropriate means in the event of refusal or disobedience. (the court upon motion may issue show cause or sanctions. The proper movant should be the creditor or their attorney, not the receiver because it is the creditor who is enforcing the order of judgment) Should your court have a written guiding Local Rule pertaining to Turnover Applications, Receivers and Orders, and if so, are they law compliant, reasonable and fair;

15 LIST OF ARTICLES AND RESOURCES Post Judgment Remedies - Donna Brown 2016 Nuts and Bolts of Turnover Receiverships - Mike Bernstein 2017 Texas Justice Court Training Center Quarterly Report; Turnovers -Thea Whalen; June 2016 Collection Process Matt Garcia Civil Practice and Remedies Code, June 2017 Beat the Turnover Order and Get Paid Jerry Jarzombek 2017 Ex parte Gerald W. Johnson. 654 S.W. 2d 415 Supreme Court of Texas V.T.C.A., Government Code Chapter 27 Justice Courts Texas Soup MFG. Corporation v. McQueary ET AL. 172 S.W. 2d 177

16 LIST OF ARTICLES AND RESOURCES Vernon s Ann.Texas Const. Art. 5 Section 19, Justices of the peace. Poe v. Ferguson. 168 S.W. 459 Court of Appeals Fort Worth Texas Property Code Chapter 42. Personal Property (Exception) Davis v West 317 S.W. 3d 301 Court of Appeals Houston Texas Justice Court Training Center; Turnover and Appointment of Receivers Randy Sarosdy 2017 Caulley v. Caulley 806 S.W. 2d 795 TX Rules of Civil Procedure, Rule 171 V.T.C.A., TX CIV PRAC & REM, Extraordinary Remedies, Chapter 64 Receivership

17 Questions?

18 MEET YOUR PRESENTERS Mike Bernstein Michael S. Bernstein, P.C. 325 Gold Street, Suite 104 Garland, Texas Matt Garcia Barnett & Garcia, PLLC 3821 Juniper Trace, Suite 108 Austin, Texas Jerry J. Jarzombek Jerry Jarzombek, PLLC 301 Commerce Street, Suite 2900 Fort Worth, Texas Judge Ralph Swearingin Jr Justice Court Judge, Precinct One, Tarrant County