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Richard - Bizlaw
Richard - Bizlaw, Attorney
Category: Business Law
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Experience:  30 years of corporate, litigation and international law
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Going back to a case we previously discussed In the case

Customer Question

Going back to a case we previously discussed: In the case where I sued the estate of my deceased boyfriend in Texas: A settlement was reached whereby I was awarded inventory and jewelry making equipment from the corporation to which my boyfriend and I were joint shareholders. I was also awarded by the settlement and final judgment filed with the court the rights to the corporation. At a hearing in March,2011 a final judgment was filed against the estate because the defendant refused to deliver to me the remaining equipment in the home. I immediately filed a claim of lien against the real property in Texas owned by the estate to try to force delivery of the property in question. The language of the claim of lien completely mimics the language of the judgment. Today I received a citation from the estate administrator suing me for delcaratory judgment claiming that I filed a fraudulent lien on the real property. First of all: Do they have jurisdiction to sue me in Texas when I am a resident of NY? They claim jurisdiction under Texas Civil Practice and Remedies Code Section 15.011 because of a request to remove an alleged invalid lien on real property in Texas. They also claim that they have jursidiction to sue me in Texas because I availed myself of the privileges of conducting business in Texas by filing a lien on real property and improvements in Edwards County, Texas. I must answer their citation within 20 days and I would like to learn if I have any defense against their jurisdiction arguments and whether I still have to retain counsel in Texas to fight the
jurisdiction issues? Can I claim attorneys fees against them for harassment or a frivolous lawsuit or some other claim? Thanks for an answer.
Submitted: 3 years ago.
Category: Business Law
Expert:  Richard - Bizlaw replied 3 years ago.

bizlaw :

They would have jurisdiction of you for purposes of terminating the lien on the real property in TX. That is because actions involving rights in real property take place where the real property is located. Have you modified the judgment to a monetary value for the equipment that was not returned?

janeerosen :

No I have not modified the judgment to a monetary value....I was going to add the motion to modify in the same court motion requesting contempt....and do both at the same time with the District Probate Judge who allowed the entry of the final judgment. Is a lien considered illegal when in fact the corporation was awarded a judgment against the real property? Is that a defense?

janeerosen :

The question I have is must I file two different motions because the lawsuit filed on the alleged illegal lien is in a different court than the the court that allowed the entry of judgment. It seems I would have to file the contempt motion in the District Probate court...and answer the lien citation in the court that it cites. Is there any way to join them? Also, what would be my defense on the alleged illegal lien....would it be that I had every right to encumber the real property of the estate as this is the only asset of the estate that is attachable ....and they left me with little choice when they refused to deliver the property required under the judgment? Thanks for an answer.

janeerosen :

When I make a motion to modify the judgment to a monetary value....would proof of internet pricing from different companies for replacement of each item be sufficient or must I bring in expert witnesses to corroborate the internet pricing on the replacement value and to testify to the fact that there is no market for purchasing used jewelry making equipment? Can I make a motion to modify in the same motion for contempt or must they be submitted separately?

bizlaw :

There are two separate motions to be dealt with in the two different courts. You can make a motion in the probate court for contempt and to modify the judgment to add a monetary value. If the judgment granted to the corporation was for a dollar amount, the lien on real property would attach automatically. However, since the judgment was to turn over specific property, the lien on the real property is of questinoable validity. Your best defense is to lay out the history and their refusal to release the equipment. On the modification to put a value equipment pricing off the internet should suffice. You should not need an expert.

If this answer is responsive to your question, please accept it. That is how we are compensated. It would also be appreciated if you provided feed back on your view of the answer. Finally, if the answer was especially helpful you can provide a bonus. If I can be of further assistance or you have other questions in the future you can ask for me and reach me at this site.

This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.

janeerosen :

Would you agree according to the definition below that a Writ of Execution can also be used to obtain property? Also in his citation the Defendant's attorney is not contesting that property cannot be obtained under the writ but stating that the lien is fraudulent under Texas Civ Prac and Rem Code 12.002 (a)(1) and that I only have an interest in assets related to a jewelry making business and that I have never had an interest in real property in the Estate's possession. Wouldn't a judgment against the estate be sufficient grounds to file a claim of lien on the ONLY property the estate owns?

janeerosen :

Please see below the definition I found of a writ of execution ....I believe it can include property:

janeerosen :

Version:1.0 StartHTML:0000000246 EndHTML:0000003779 StartFragment:0000002490 EndFragment:0000003743 SourceURL:file://localhost/Jane's%20Documents/Randy/Jeffrey%20Mahl%20File/writ%20of%20attachment/letter%20to%20Judge%20Souli%20Shanklin.doc

From: http://legal-dictionary.thefreedictionary.com/Writ+of+execution

WRIT OF EXECUTION, practice. A writ to put in force the sentence that the law has given: it is addressed to the Sheriff (and in the courts of the United States, to the marshal) commanding him, according to the nature of the case, either to give the plaintiff possession of lands; or to enforce the delivery of a chattel which was the subject of the action; or to levy for the plaintiff, the debt, or damager, and costs recovered; or to levy for the defendant his costs; and that, either upon the body of the opposite party, his lands, or goods, or in some cases, upon his body, land, and goods; the extent and manner of the execution directed, always depending upon the nature of the judgment. 3 Bl. Com. 413.

janeerosen :

Does reference to "chattel" or "goods" above translate to property rather than debt or money?

janeerosen :

Is a filing a claim of lien against the estate for goods owed under a judgment against the estate sufficient to justify its filing?

janeerosen :

Just looked up under Texas Civil Practice and Remedies Code 12.001 (a) (1):

janeerosen :

§ 12.002. LIABILITY. (a) A person may not make, present, or use a document or other record with: (1) knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property;

janeerosen :

Could I argue that the document (lien) is not fraudulent because it is based upon a final judgment that was entered and also signed and agreed to by the estate...and that the language of the lien is the same as the language used in the final judgment....thereby demonstrating that it is not fraudulent.

janeerosen :

Forgot to mention that the estate is using 12.002(a) (1) above to justify his citation against me for filing an alleged "illegal claim of lien" I would like to include in my answer a sound rebuttal to this cite.

bizlaw :

The reference to chattel is what we generally refer to as goods in current usuage. I am having some problems with my internet connection so I will have to get back to you after I look at the statutes. I do not think the staute is likely to cover this situation because if the equipment is not returned, the estate will be liable for its value and in that case the judgment lien would apply to the real property. Once I can get to the statute I will give you a more complete take on this issue.

If this answer is responsive to your question, please accept it. That is how we are compensated. It would also be appreciated if you provided feed back on your view of the answer. Finally, if the answer was especially helpful you can provide a bonus. If I can be of further assistance or you have other questions in the future you can ask for me and reach me at this site.

This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.

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Richard - Bizlaw
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