Monday, March 20, 2017

KNOW YOUR RIGHTS REGARDING DEFAULT JUDGMENTS

DEFAULT JUDGMENTS: NOT AN ATTORNEY OR INTENDED TO BE USED AS LEGAL ADVISE. CONSULT AN ATTORNEY: An area of advantage for the judicial community is that Judges and Law makers are off springs of lawyers; that is especially true for Judges. That means they speak the same language.

 One expected secret is that this family would like us to believe this language is too complicated for common understanding. In fact some family court judges in Houston frequently remind litigants that it takes 4 years to obtain a law degree and that is necessary for understanding processes of the court. NOT SO YOUR HONOR. Below is a map of civil events in America where ordinary folks like me learn about their Human and Civil rights.

 PLEASE FIND ONE OF THESE EVENT AT WWW.PEOPLEPOWER.ORG every spot on the map is a civil right event accepting participation.
If we accept this as fact, we would have lost every sense of independence and would have to be subjected to the wills and fancy of courts, lawyers and judges. Common sense it now endangered. We cannot surrender to lawyers and expect to obtain justice.

Judges and lawyers are 6 of one kind half a dozen of another. If we are to do justice to ourselves we need to find time to help ourselves regarding defense incases we or our family are involved.

 What I have done here is take excerpts from an actual case regarding default judgments. Family courts love default judgments, especially when they suspect they will not be challenged or not challenged in a timely manner. Your attorney may want to manage your case in a way that does not complicate things for them. Most, especially new, minority and not well know lawyers are literally afraid of judges.

 Judges silently remind lawyers don't upset their apple cart. The constitution demands you provide a defense to allegations against you, and that you have the right to petition your Government to address your grievance. That includes questionable decisions from the court. We have protection family courts would like us to be ignorant about. Family courts usually follow Default Judgments with temporary orders. NEXT TOPIC WILL BE TEMPORARY ORDERS.

 Below are legal justification against judges arbitrarily imposing default judgments. If you are unfortunately involved with any case civil or otherwise and you hear of a default judgment. Take consolation that you are facing one of the most troubling procedures, to appeal a judges ruling. These are some decisions used by judges and higher courts to determine viability of default judgments. Educate your self, then speak with a knowledgeable lawyer.

 Attempting to keep and set aside default judgments are not tasks for the fainthearted. In fact, historically, a default judgment has one of the highest rates of reversal on appeal. At every juncture, potential problems lie in wait for the novice and expert alike. The purpose of this paper  is to talk about default judgments in general, to review the rules of service (which should be the starting place for one trying to keep or set aside a default judgment), to explain the methods of attacking a default judgment, and finally, to review select significant Texas appellate default judgment cases.  Default Judgment Basics . A default judgment can be generally defined as a judgment entered by a court, at the plaintiff’s request, based on a defendant’s failure to appear or file an answer within the time allowed by law. TEX. R. CIV. P. 107, 238, 239; see also Fontenot v. Hanes, No. 03-05-00551- CV, 2007 WL 2330719, at *1 (Tex. App.—Austin Aug. 17, 2007, no pet.) (default judgment improper against plaintiff who failed to appear for trial; case should have been dismissed instead).

Texas law does not authorize a defendant to take a default judgment against a plaintiff on the merits of its suit. State v. Herrera, 25 S.W.3d 326, 327 (Tex. App.—Austin 2000, no pet.). A defendant must file an answer to a lawsuit by 10:00 a.m. on the first Monday following the expiration of twenty (20) days from the date of service of the petition, unless that Monday is a legal holiday. TEX. R. CIV. P. 4, 99. A default judgment rendered before the defendant’s answer is due is erroneous and constitutes a void judgment. Conaway v. Lopez, 880 S.W.2d 448, 449 (Tex. App.—Austin 1994, writ ref’d) (and citations contained therein). Likewise, a default judgment may not be rendered after a defendant has actually filed an answer. Padrino Maritime, Inc. v. Rizo, 130 S.W.3d 243, 246 (Tex. App.—Corpus Christi 2004, no pet.).

It is a reversible error to enter a default judgment after the defendant has filed an answer, even if that answer is filed after the answer date but before the default judgment is entered. In re $475,001.16, 96 S.W.3d 625, 627 (Tex. App.— Houston [1st Dist.] 2002, no pet.). Generally, a defendant’s failure to answer a petition equates to an admission of all facts properly pleaded in plaintiff’s petition, except as to unliquidated damages, as well as a waiver of any affirmative defenses. Gardner v. U.S. Imaging, 274 S.W.3d 669, 671 (Tex. 2008); Texaco, Inc. v. Phan, 137 S.W.3d 763, 769 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Simon v. Banc Texas Quorum, N.A., 754 S.W.2d 283, 286 (Tex. App.—Dallas 1988, writ denied); First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640, 645 (Tex. App.—Dallas 1987, no writ); but see Osteen v. Osteen, 38 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding that in a divorce case, a default does not equate to a confession of the matters in the petition). Assuming the facts in the petition set out a cause of action, a default judgment conclusively establishes the defendant’s liability.

  The authors gratefully acknowledge R. Alan York, who has graciously allowed us to update a previous version of this paper. answer cannot create that liability. Doubletree Hotels Corp. v. Person, 122 S.W.3d 917, 919 (Tex. App.—Corpus Christi 2003, no pet.); see also World Sav. Bank, FSB v. Alaniz, No. 01-06- 00549, 2007 WL 1018416, at *1-3 (Tex. App.—Houston [1st Dist.] Apr. 5, 2007, no pet.).

 On the date defendant’s answer is due, a plaintiff is entitled to have the trial court call the cause for default judgment, and the trial court may properly enter a default judgment against any defendant who has not filed an answer after proper service of citation, so long as the citation, with the officer’s return, has been on file with the clerk of the court for at least ten (10) days. TEX. R. CIV. P. 107, 238, 239.

 However, a plaintiff may waive its right to a default judgment. For example, if a plaintiff proceeds to trial as if defendant had filed an answer, the plaintiff will waive its right to a default judgment. Foster v. L.M.S. Dev. Co., 346 S.W.2d 387, 397 (Tex. Civ. App.—Dallas 1961, writ ref’d n.r.e.); Dodson v. Citizens State, 701 S.W.2d 89, 94 (Tex. App.— Amarillo 1986, writ ref’d n.r.e.) (by not moving for default judgment until parties had announced ready for trial, and a jury had been selected, plaintiffs waived their right to a default judgment).

 At the time a trial court is asked to enter a default judgment, the trial judge must make two basic judicial decisions: first, whether the court has jurisdiction over the subject matter; and second, whether the court has jurisdiction over the parties to the suit. AAA Navi Corp. v. Parrot- Ice Drink Products, 119 S.W.3d 401, 402 (Tex. App.—Tyler 2003, no pet.). As such, the trial court has a duty to ascertain whether the defendant has been properly served with citation and whether the defendant has an answer on file. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968); Pino v. Perez, 52 S.W.3d 357, 360 (Tex. App.—Corpus Christi 2001, no pet.).

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