Panel Discussion of Receivership Issues

Similar documents
Post-Judgment Civil Procedure

Discovery. Thea Whalen. Executive Director, TJCTC

Civil Practice & Remedies Code Collection Of Judgment Through Court Proceeding

STUDY GUIDE SAMPLE QUESTIONS with ANSWERS

Court of Appeals. First District of Texas

TURNOVER PROCEEDINGS. JAMES M. McGEE Munsch Hardt Kopf & Harr, P.C Lincoln Plaza 500 N. Akard Street Dallas, Texas (214)

Court of Appeals. Ninth District of Texas at Beaumont

NUTS AND BOLTS OF TURNOVER RECEIVERSHIPS

Enforcement of Judgments Against Local Government A Practical Guide to Collecting from Local Sovereigns

Fourth Court of Appeals San Antonio, Texas

Receiverships Under Attack! MIKE BERNSTEIN. Michael S. Bernstein, P.C. 325 Gold Street, Suite 104 Garland Texas 75042

When Judgments Go Wrong

QUARTERLY REPORT. June 2016 MESSAGE FROM THE NEW EXECUTIVE DIRECTOR THEA WHALEN

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI EDINBURG

Master Clerk Certification Exam Review

STUDY GUIDE FOR CIVIL PROCESS PROFICIENCY CERTIFICATION EXAM - FY2015

CASE NO CV

Court of Appeals. First District of Texas

Fourteenth Court of Appeals

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

In The Court of Appeals Seventh District of Texas at Amarillo

Fourth Court of Appeals San Antonio, Texas

IN THE SUPREME COURT OF TEXAS

Court of Appeals. First District of Texas

NO CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 7, 2009 STEVE ASHBURN, APPELLANT

In The Court of Appeals For The First District of Texas NO CV. VICTOR WOODARD, Appellant

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS O P I N I O N

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

Fourteenth Court of Appeals

In The Court of Appeals Fifth District of Texas at Dallas. No CV. SCOTTIE PARKS, Appellant V. INVESTMENT RETRIEVERS, Appellee

NOTICE TO SHOW CAUSE. WHEREAS, the Court of Appeals for the Second District of Texas on February 28, 2014 made and entered the following order:

POST JUDGMENT DISCOVERY AND ENFORCEMENT

In The Court of Appeals Fifth District of Texas at Dallas. No CV

Texas Courts Split On Certificate Of Merit

NO. TO THE COURT OF CRIMINAL APPEALS OF TEXAS. DEMARCUS ANTONIO TAYLOR, Appellant v. The State of Texas, Appellee ***************

In The Court of Appeals For The First District of Texas NO CV

NUMBER CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS TEXAS STATE BOARD OF NURSING, BERNARDINO PEDRAZA JR.,

THE CERTIFICATE OF MERIT STATUTE

Fourth Court of Appeals San Antonio, Texas

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Emily Miskel, KoonsFuller PC emilymiskel.com

Unique & Special Collections Roads Less Travelled

Discovery in Justice Court

Court of Appeals. First District of Texas

prohibited expenditures and contributions under , , & of the

Emergency Detention Orders and Art Mental Assessments

In The Court of Appeals Fifth District of Texas at Dallas. No CV No CV No CV

Court of Appeals. First District of Texas

No CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS

Court of Appeals. First District of Texas

Interlocutory Appeal Update

Court of Appeals. First District of Texas

REPORTING REQUIREMENT GUIDE FOR JUSTICE COURTS 2017 Edition

NOTICE OF CLAIM. Co-Author MIKE YANOF Stinnett Thiebaud & Remington, L.L.P.

In The Court of Appeals Fifth District of Texas at Dallas. No CV

REPORTING REQUIREMENT GUIDE FOR JUSTICE COURTS

CAUSE NO. IN THE COURT OF CRIMINAL APPEALS OF TEXAS INTERNATIONAL FIDELITY INSURANCE CO., AGENT GLENN STRICKLAND DBA A-1 BONDING CO., VS.

NUMBER CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

No. 29, 433. THE STATE OF TEXAS, ) IN THE 13th DISTRICT ) COURT Plaintiff, ) ) NAVARRO COUNTY, TEXAS v. ) ) GWENDOLYN XXX, ) ) Defendant.

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS IN RE ESTATE OF MARIE A. MERKEL, DECEASED

In The. Fourteenth Court of Appeals NO CV. DAVID FURRY, Appellant

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

CROSS EXAMINATION OF THE PROFESSIONAL WITNESS

NUMBER CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN THE INTEREST OF Z.M.R., A CHILD

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Court of Appeals. First District of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

In The Court of Appeals Fifth District of Texas at Dallas. No CV. MELISSA GARCIA BREWER, Appellant V. TEXANS CREDIT UNION, Appellee

Fourteenth Court of Appeals

IN THE SUPREME COURT OF TEXAS

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

OPINION. No CV. Matthew COOKE, President, and Alice Police Officers Association, on behalf of similarly situated officers, Appellants

NO CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 29, 2009 IN THE MATTER OF THE MARRIAGE OF

Open Records: Dealing with Nightmare Open Records Requests

COURT STRUCTURE OF TEXAS

IN THE SUPREME COURT OF TEXAS

No IN THE SUPREME COURT OF TEXAS. Petitioner, Respondent. From the First Court of Appeals at Houston, Texas. (No.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Court of Appeals. First District of Texas

Information & Instructions: Seizure of debtor's property prior to judgment

CAUSE NO GINGER WEATHERSPOON, IN THE 44 th -B JUDICIAL. Defendant. DALLAS COUNTY, TEXAS DEFENDANT S PLEA TO THE JURISDICTION

Court of Appeals. First District of Texas

No CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS

Court of Appeals. First District of Texas

Case No Plaintiff, COUNTY COURT AT LAW OF v. WALKER COUNTY. Respondent. WALKER COUNTY, TEXAS TO SHOW AUTHORITY

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ORDER

IN THE SUPREME COURT OF TEXAS

Fourteenth Court of Appeals

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Fourth Court of Appeals San Antonio, Texas

STATE OF TEXAS TRANSPORTATION COMPENDIUM OF LAW

NUMBER CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG THE CITY OF PHARR, TEXAS,

NUMBER CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

IN THE SUPREME COURT OF TEXAS

In The Court of Appeals Fifth District of Texas at Dallas. No CV

AOL, INC., Appellant. DR. RICHARD MALOUF AND LEANNE MALOUF, Appellants

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS

CAUSE NO JAMES MCGIBNEY, and IN THE 67th JUDICIAL VIAVIEW, INC., v. DISTRICT COURT. Defendants. TARRANT COUNTY, TEXAS

Transcription:

Texas State University 1701 Directors Blvd, Suite 530 Austin, Texas 78744 Tel (512) 347-9927 or (800) 687-8528 Fax (512) 347-9921 www.tjctc.org FY2018 Program West TX JPCA Panel Discussion of Receivership Issues An Educational Endeavor of the Justices of the Peace and Constables Association, Inc. Funded by a grant from the Texas Court of Criminal Appeals

COPYRIGHT 2018 Texas Justice Court Training Center. All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system without the prior written permission of the Texas Justice Court Training Center unless such copying is expressly permitted by federal copyright law. Address inquiries to: Permissions, Texas Justice Court Training Center, 1701 Directors Blvd, Suite 530, Austin, TX 78744

Panel Discussion of receivership issues WTJPCA Lubbock April 11, 2018 Randall L. Sarosdy Michael Scott Jerry Jarzombek The Starting Point: A judgment creditor is entitled to receive aid from a court in order to reach property to obtain satisfaction on a judgment if: the judgment debtor owns property that is not exempt from attachment, execution or seizure for the satisfaction of liabilities. -- Section 31.002, Civil Practice and Remedies Code; Tanner v. McCarthy, 274 S.W.3d 311, 320 (Tex. App. Houston [1 st Dist.] 2008, no pet.) 1

Hb 1066: It is no longer a requirement that the property subject to the Turnover Order cannot be readily attached or levied on by ordinary legal process. We can all agree? Before a court may grant a turnover order, the conditions of Section 31.002(a) must exist: The entity that is to receive aid from the court must be a judgment creditor. The court that would grant aid must be one of appropriate jurisdiction. The aid to be given must be in order to reach property to obtain satisfaction on the judgment; and the judgment debtor must own property (including present or future rights to property) that is not exempt from attachment, execution, or seizure for the satisfaction of liabilities. -- Tanner v. McCarthy, 274 S.W.3d 311, 322 (Tex. App. Houston [1 st Dist.] 2008, no pet.); Black v. Shor, 443 S.W.3d 170, 175 (Tex. App. Edinburg 2013, no pet.) 2

Notice to the debtor is not required: It is up to the court to decide whether or not to hold a hearing. The court may grant an order ex parte. -- Henderson v. Chrisman, 2016 WL 1702221, at *3 (Tex. App. Dallas Apr. 27, 2016, no pet.) Must the trial court have some evidence? Section 31.002 authorizes a turnover order only upon proof of the necessary facts; therefore, the trial court must have some evidence before it that establishes that the necessary conditions for the application of 31.002 exist. -- Henderson v. Chrisman, 2016 WL 1702221, at *3 (Tex. App. Dallas Apr. 27, 2016, no pet.) What evidence is that? 3

What is a Court of Appropriate Jurisdiction? The court that issued the judgment or A court in which a judgment issued by another court was domesticated under the Uniform Enforcement of Foreign Judgments Act -- Tanner v. McCarthy, 274 S.W.3d 311, 322 (Tex. App. Houston [1 st Dist.] 2008, no pet.) Is a turnover order injunctive relief? A Turnover Order is directed to the debtor. But a Justice Court has authority to enforce its judgments under Rule 505.2 4

What are the court s options in granting a turnover order? Order the judgment debtor to turn over the designated nonexempt property that is in the debtor s possession, or subject to its control, to a designated sheriff or constable for execution; Otherwise apply the property to the satisfaction of the judgment; or Appoint a receiver with authority to take possession of nonexempt property, sell it and pay the proceeds to the judgment creditor as required to satisfy the judgment. -- Section 31.002(b); Williams Farms Produce Sales, Inc. v. R & G Produce Co., 443 S.W.3d 250, 255 (Tex. App. Corpus Christi 2014, no pet.) Sheriff or constable: Court has discretion to order debtor to turn over property to the sheriff or constable? When should the court do this rather than appoint a receiver? 5

Otherwise apply the property to the satisfaction of the judgment What does this mean in practice? When should the court use this, if ever? Appointment of a receiver Is appointment of a receiver discretionary? If so, when should the court exercise that discretion and appoint a receiver? 6

Court May Not: Order the judgment debtor to turn the property over directly to the judgment creditor. -- Black v. Shor, 443 S.W.3d 170, 175 (Tex. App. Edinburg 2013, no pet.) The order does not: Have to identify specific property to be turned over. But the property must be non-exempt. -- Section 31.002(h), Civil Practice and Remedies Code; Black v. Shor, 443 S.W.3d 170, 175 (Tex. App. Edinburg 2013, no pet.) How can the court enforce such an order by contempt? 7

Bond: The court may require the receiver to post a bond. Should it do so in all cases? How much should the bond be? Cash on hand: Should court restrict receiver s authority to take cash on hand? Or prohibit this? Potential for violence? -- Moyer v. Moyer, 183 S.W.3d 48, 53-54 (Tex. App. Austin 2005, no pet.) 8

Receiver s fee: Can it be determined in advance? Or must the results be considered in determining a reasonable fee? -- Congleton v. Shoemaker, 2012 WL 1249406, at *5 (Tex. App. Beaumont Apr. 12, 2012, pet. denied) Recent application: See handout 9

Additional issues: Other legal issues identified by creditors or debtors? Other practical problems? perspective of creditors Further comments, issues or suggested approach from the perspective of creditors 10

perspective of debtors Further comments, issues or suggested approach from the perspective of debtors Final comments Areas of agreement? Areas of disagreement? Issues for further discussion? 11