Credit and Collections

• Author: Cindy Stormer
• Pages: 637-702

7−1

CREDIT AND

COLLECTIONS

CHAPTER 7

CREDIT AND COLLECTIONS

I. General Points

§7:01 Initial Meeting With a Debtor-Client

§7:02 Statute of Limitations

§7:03 Written Acknowledgment Constitutes New Promise

§7:04 Oral Acknowledgment

§7:05 Statute of Frauds

§7:06 Investigating the Debtor

§7:07 Investigating the Creditor

§7:08 Checklist of Available Procedures

II. Debt Collection

A. General Points

§7:10 Creditor Is Responsible for Collection Agency

§7:11 Creditor May Ratify Collector’s Improper Practices

§7:12 Debtor May Not Hinder Secured Creditors

§7:13 Asset Protection Planning

§7:14 Ethics and Professionalism in Debt Collection

§7:15 Jurisdiction of the Court

B. Texas Debt Collection Practices Act

1. Regulations

§7:20 Collection Practices Are Extensively Regulated

§7:21 Threats or Coercion

§7:22 Harassment; Abuse

§7:23 Fraudulent, Deceptive, or Misleading Representations

§7:24 Right to Privacy

2. Damages and Enforcement

§7:30 Exemplary Damages

§7:31 Criminal Penalties

§7:32 Attorneys’ Fees and Fines

§7:33 Enforcement by Attorney General

C. Federal Statutes

§7:40 Statutes and Prohibitions

§7:41 When the Debtor Disputes the Debt

III. Collecting on a Judgment

A. The Judgment

§7:50 Notice of Judgment

§7:51 Abstract of Judgment Creates a Lien

§7:52 Lien Lasts for Ten Years

TEXAS SMALL-FIRM PRACTICE TOOLS 7−2

CREDIT AND

COLLECTIONS

B. Garnishment

§7:60 Prejudgment Garnishment

§7:61 When to Use Garnishment

§7:62 Applying for a Writ of Garnishment

§7:63 Review the Garnishment Return

§7:64 Notify the Judgment Debtor of Garnishment

§7:65 Garnishee Must File Answer

§7:66 Bank’s Right of Offset

§7:67 Garnishment of Wages

§7:68 Defendant’s Right to Replevy

§7:69 Attorneys’ Fees

§7:70 Garnishment by Federal Agency

C. Execution of Judgments

1. Obtaining a Writ of Execution

§7:80 The Execution Process

§7:81 Timing for the Issuance of a Writ

§7:82 The Writ

§7:83 Duty of Executing Officer

§7:84 Failure to Execute

§7:85 Improper Endorsement of Writ

2. Exempt Property

§7:90 General Points

§7:91 Homesteads

3. The Execution Sale

§7:100 General Points

§7:101 Wrongful Execution

§7:102 Secured Creditors and Execution

§7:103 Real Property

§7:104 Dormancy of the Judgment Lien

§7:105 Recovery of Seized Property

§7:106 Judgments Against Political Subdivisions

§7:107 Unclaimed Judgments

D. Post-Judgment Discovery

§7:110 Post-Judgment Discovery Takes Place in the Same Suit

§7:111 Types of Discovery

E. Turnover

§7:120 The Turnover Statute

§7:121 Purpose and Use of the Turnover Process

§7:122 How to File the Turnover

§7:123 Turnover to Determine Possession and Control

§7:124 Turnover Does Not Apply to Wages

§7:125 Turnover Statute and Its Application to Homesteads

F. Receivership

§7:130 Receivership Statutes

§7:131 Advantages and Disadvantages of Receivership

§7:132 Requesting the Receivership

§7:133 Qualifications for the Receiver

§7:134 Appointment of the Receiver

§7:135 Powers of the Receiver

7−3 CREDIT AND COLLECTIONS

CREDIT AND

COLLECTIONS

§7:136 Accounting by the Receiver

§7:137 Receiver’s Sale of Property

§7:138 Stopping a Receivership

IV. Attachment and Sequestration

A. Attachment

§7:140 Purpose and General Use

§7:141 Grounds

§7:142 Procedure

§7:143 Art Is Exempt

B. Sequestration

§7:150 Purpose and General Use

§7:151 Grounds

§7:152 Procedure

§7:153 Repossessions

V. Judgments Against Spouses

§7:160 General Points

§7:161 Separate Property Liability

§7:162 Community Property Liability

§7:163 Order in Which Spousal Property Is Subject to Execution

Forms

Form 7:10 Intake—Debts

Form 7:20 Contract for Employment—Collections/Contingency

Form 7:30 Acknowledgment of Claim

Form 7:40 Unfair Debt Collection Practices Letter

Form 7:50 Collections Letter

Form 7:60 Abstract of Judgment

Form 7:70 Letter to Client Post-Judgment

Form 7:80 Application for Writ of Garnishment After Judgment

Form 7:90 Writ of Garnishment Affidavit

Form 7:100 Writ of Garnishment

Form 7:110 Garnishment Notice

Form 7:120 Agreed Judgment on Garnishment

Form 7:130 Garnishee’s Answer

Form 7:140 Writ of Garnishment Judgment

Form 7:150 Writ of Execution Letter to Clerk

Form 7:160 Writ of Execution Letter to Sheriff or Constable

Form 7:170 Request for Production—Collections

Form 7:180 Turnover Application

Form 7:190 Turnover Order

Form 7:200 Application for Receiver

Form 7:210 Receiver Order

Form 7:220 Oath of Receiver

Form 7:230 Receivership Final Order

Form 7:240 Checklist—Collections

Form 7:250 Homestead Affidavit as Release of Judgment Lien