Business & Civil Litigation FAQ

It is imperative that you document everything you can about the communications–the date and time the collectors called, with whom they spoke, what they said, etc. Keep a diary or log by the phone. Save any messages that they leave on your machine. Their conduct may violate the Texas Debt Collection Practices Act or the Federal Fair Debt Collection Practices Act. You should seek counsel to prosecute such offenses. You can also file a complaint with the Texas Office of Consumer Credit Commissioner (OCCC).

Yes. Sec. 321.102 of the Texas Business and Commerce Code covers unsolicited commercial email (spam) that is sent within the state of Texas, in violation of Sec. 321.052. The statute provides:

VIOLATION OF CHAPTER: GENERAL CIVIL PENALTY AND INJUNCTIVE RELIEF.

(a) A person who violates this chapter is liable to this state for a civil penalty in an amount not to exceed the lesser of:

(1) $10 for each unlawful message or unlawful action; or
(2) $25,000 for each day an unlawful message is received or each day an unlawful action is taken.

A party can request that a court provide protection for a trade secret or a vulnerability under Texas Business and Commerce Code Sec. 321.110.

PROTECTION OF SECRECY OR SECURITY. At the request of a party to an action brought under this chapter, the court, in the court’s discretion, may conduct a legal proceeding in a manner that protects:

(1) the secrecy and security of the computer, computer network, computer data, computer program, and computer software involved so as to prevent a possible recurrence of the same or a similar act by another person; or

(2) any trade secret of a party to the action.

A collector of a consumer (nonbusiness) debt must give you information about the debt, and a chance to dispute it. You may dispute the debt within thirty days. The dispute must be in writing and should be mailed certified, return receipt requested. Make sure you keep a copy. If the collector has proof of the debt, they may contact you about it again.

No, this is a criminal offense under the Texas Penal Code Sec. 32.48. Under subsection (c) it is NOT a defense if the document states that it is not a legal process.

First offense is a misdemeanor (Class A), the second one is a felony (state jail).

If you receive notice of a lawsuit, then you have to answer the suit within a specific time period (the time depends on the court.) These time periods are typically very short. If you fail to answer the suit within the appropriate time period, you may lose the case (this is cause a default.) It becomes much more expensive to reverse a default judgment, so timing is the key. Once you answered the suit, the “discovery” portion of the case begins. During this phase, either side can ask questions of the other side regarding the case.

If you fail to answer the suit within the appropriate time period, you lose the case (this is called a default.) You cannot go back in time, and you may lose valid defenses against the debt. This is a VERY bad idea. You should answer the lawsuit and provide a defense.

If you have a judgment, either from another federal or state court, the first thing you need to do is confirm that the judgment is final. The next step is to register the judgment in Texas. Once the judgment is registered in Texas, the defendant must be notified of the judgment transfer, pursuant to the Texas rules. Once the notice period has lapsed, you can enforce the judgment in Texas, under Texas law.

It is unlikely. The Texas Property Code (Sec. 41.001) and Section 50(a)(6), Article XVI of the Texas Constitution govern which debts can “attach” to a homestead. Credit card suits do not normally attach to a homestead, even if they are reduced to a judgment.

Section 42.004 of the Texas Property Code attempts to prevent this practice (which is also commonly referred to as a fraudulent transfer to avoid creditors.) The statute provides:

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.

A credit card company may sell your debt to a collection agency. If done properly, and within a specific time limit, they have “standing” (the legal ability) to sue you for the debt. Under Texas law, as a defendant, you are entitled to know that the collection agency suing you has the standing to sue you over the debt. If the collector is different from the original credit card company, you are entitled to see the chain of ownership that establishes whether the debt collector owns the right to sue on the debt. Further, the collection agency may not have followed the appropriate procedures to obtain the debt in the first place. If they fail to follow these procedures then they may not be able to sue you and you may have a valid defense to the claim. Further, you need to be sure that you are obligated to the debt. Just because they say you owe the debt doesn’t mean that they necessarily have the legal right to collect the debt.

Yes, Texas Business and Commerce Code Sec. 321.114 gives internet service providers and email service providers the authority to block emails that the ISP or email provider reasonably believes are in violation of 321.052 (the Texas anti-Spam laws). The provider must have in place a reasonably accessible mechanism to unblock the emails, should the sender believe s/he is in compliance with the law.

You can stop a debt collector from contacting you by writing a certified letter to the collector telling them to stop. Also, if you hire a lawyer, the collector will instead contact your lawyer. This only stops the phone calls. The collection agency can still sue you.

No. Sec. 321.109 of the Texas Business and Commerce Code specifically PROHIBITS a class certification under this chapter.

There are times the officers and directors may be personally liable for their actions taken on behalf of a company. Additionally, directors and officers owe specific duties of loyalty to the company. Breaches of these duties (some of which may be fiduciary duties) are actionable. Also, problems may arise when minority shareholders are treated unfairly. A common issue is when a director of a company “self deals” at the expense of the company. Contact Us for more information.

A debt collector may not contact you at work if the collector knows that your employer disapproves of such contacts. You will need to notify the collector that you do not wish to be contacted at work. You should notify them in writing, via certified mail, and return the receipt requested. Keep a copy of the notice letter you send them. Document each and every phone call that they make to you. Record the time, person’s name, and contents of the calls.

Yes. Most likely, the credit card company will first send you a notice of default. After that, the debt is typically sold to a third-party collection agent, who then attempts to collect the debt. This usually involves a litany of letters and phone calls. If the collectors are still unsuccessful, then the collection agent may fire a lawyer to file a lawsuit against the borrower. By law, you are required to be given notice of any lawsuit against you.

Most defendants think that they owe the credit card company something, and attempt to make monthly payments. The problem is that the credit card company (or the collection agency) may not have accurate information, may have included additional fees or costs that you may or may not owe, or may include amounts barred by the statute of limitations. You should have an attorney review the most recent statement you have, copies of the demand letters, and any other correspondence or written instruments before attempting to settle the debt.

Not exactly. If you are sued, then by law you have to be given notice. You have the right to ask questions of the entity suing you, and to tell your side of the story. Credit card companies win many cases against individuals simply because the individuals fail to protect themselves. However, if you avoid service, the credit card company may be able to notify you by leaving a copy of the notice on your door.