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Richard
Richard, Attorney
Category: Business Law
Satisfied Customers: 46162
Experience:  32 years of experience practicing law and a businessman.
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made verbal agrrement to purchase a used vehicle from the owner.

Customer Question

made verbal agrrement to purchase a used vehicle from the owner. have made payments each month, (2), paid to repair pre-existing damage, paid for insurance. She has verbally acknowledged this agreement with multiple other people. Se has not prepared a promisory note as promised. Now apparently she's made and wants to pick the car up tomorrow and terminate the agreement. Can I stop her and how? I live in Houston, Texas.
Submitted: 1 year ago.
Category: Business Law
Expert:  Richard replied 1 year ago.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

Good morning. Yes, you can stop her. The lack of a written contract can be overcome by the concepts of promissory estoppel, detrimental reliance, and unjust enrichment. This situation arises when Person A relied upon the verbal agreement, Person A performed based on such reliance, and because Person B defaulted, such reliance is now to Person A's detriment. Where there is i) partial performance by Person A based upon the mutual promises, ii) Person A relied upon such promises to perform, iii) Person B's failure to perform would be to Person A's detriment, and iv) result in Person B being unjustly enriched, Person A can overcome the legal requirement that the agreement be in writing. You have satisfied the foregoing elements and thus can enforce your verbal contract.



Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces/stars so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!

Customer: replied 1 year ago.

Ok, I can stop her. How?

Expert:  Richard replied 1 year ago.
Is title still in her name?
Customer: replied 1 year ago.

Yes but she has lost it and apparently must get a copy from Austin.

Expert:  Richard replied 1 year ago.
Thanks. First, she cannot disturb the peace and/or break and enter to repossess the car. So, make sure it's locked up somewhere when not in use. Second, file suit against her...if the value is $10,000 or less you can do this in small claims court without the need for a lawyer....to enforce your verbal contract. If necessary, ask the court to issue an injunction against her to prevent her from event attempting to take the car until your case has been adjudicated.
Customer: replied 1 year ago.

So I can park in my controlled access parking lot at home. What do I do if she calls the police?

Expert:  Richard replied 1 year ago.
Yes....park it where she would have to break and enter to get at it. The police should not get involved because this is a civil issue. But, I would file your case immediately so a hearing is scheduled and she can be served. Then, if the police show up, you can show them the paperwork for this and they will definitely deem it to be a civil matter and tell her she will have to wait for the court ruling.
Customer: replied 1 year ago.

I will not be able to file in small claims court before she shows up tomorrow. I'm stuck at work and would have to go to downtown Houston to do that. Maybe I could take tomorrowq off to do that. Any idea what it costs to file a claim?

Expert:  Richard replied 1 year ago.
Thanks for following up. I have set forth below for you the process to be followed as well as the filing fee and the service of process fee in Harris County.



Small Claims Cases

Filing Small Claims Cases

Claim Must Be Made Under Oath

To begin an action in the Small Claims Court, the plaintiff, or claimant, must make a statement of the claim under oath. This may be done by the plaintiff, by the attorney for the plaintiff, or by an authorized agent for the plaintiff, in one of two ways:

(1) by appearing in person before the Justice of the Peace or the clerk and filing a statement of the claim under oath; or,

(2) by filing a sworn Small Claims Petition with the Justice of the Peace or clerk of the court.

Filing Fee

The Justice of the Peace must collect total fees of $34.00 for the filing of a claim in the Small Claims Court. The filing fee is set out in Section 118.121 of the Texas Local Government Code. Other fees in Small Claims Court are the same as those for cases in Justice Courts. Section 28.004, Texas Government Code. Additional fees for basic civil legal services to indigents (Section 51.941, Texas Government Code) and for an alternative dispute resolution system (Section 152.005, Texas Civil Practice and Remedies Code) are also applicable.

Issuance of Citation

In order for the Small Claims Court to acquire jurisdiction over the person being sued the defendant must be notified of the filing of the lawsuit. When the claim has been filed and the filing fee paid, the Justice of the Peace or the clerk will issue a notice of the filing called a "citation." The citation is directed to the defendant and informs the defendant of the date of the filing of the petition, the case number XXXXX to the claim, the names of the parties, and the nature of the plaintiff's demand. The citation also warns that should the defendant fail to appear at the trial of the claim a judgment by default may be rendered in favor of the plaintiff for the amount of money the plaintiff is claiming.

Service of Citation

The Citation is served by an officer of the state authorized to serve other citations and may be served in any manner authorized for service of citation in a Justice Court. See Section 28.013, Texas Government Code

Citations may be served by personal delivery to the defendant, or by registered or certified mail directed to the defendant, with return receipt requested.

If attempts to serve the defendant at the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found are unsuccessful, the plaintiff can ask the Justice of the Peace to allow service in another manner. The request for an alternative method of service must be supported by an affidavit that states where the defendant can usually be found, that attempts to serve the defendant were unsuccessful, and that the manner of service suggested will be effective to give the defendant notice of the lawsuit. The Justice of the Peace can then authorize service of process by leaving a copy of the citation with anyone over 16 years of age at a specified location, or in any other manner that is reasonably effective to give the defendant notice of the lawsuit. See Rule 536, Texas Rules of Civil Procedure

Service Fees in Harris County

The Commissioners Court of Harris County sets the fee to be charged for services of the Harris County Sheriff and Constables. See Section 118.131, Texas Local Government Code. A fee of $65 is charged for service of process in a Small Claims case in Harris County. See Harris County Civil Process Service Fees.

Service Outside of Harris County

For citations to be served in a county other than Harris County, the constable or sheriff of that County should be contacted for the amount of the service fee and location for forwarding the citation.

The Defendant

No judgment may be rendered against a defendant unless the defendant has been properly served with process. Defendants may be natural persons, individuals, or persons doing business in the form of sole proprietorships, or partnerships, or corporations. Any individual doing business under an assumed name, or any business operating in the form of a partnership or corporation, may sue or be sued in the business name, but service of process must be properly accomplished.

Service of process directed to individuals is effected by delivery directly to the person. Service of process on business entities is more difficult and must be accomplished by service on an agent or person authorized to accept service.

For example, if a defendant is a partnership, the citation may be directed to one member of the partnership, and service effected on that one member authorizes a judgment against the partnership and the partner actually served. See Section 17.022, Texas Civil Practice and Remedies Code.
If several partners are jointly indebted under a contract and the citation has been served on at least one but not all of the partners, judgment may be rendered only against the partnership and against the partners who were actually served. No personal judgment or execution may be had against any partner who was not served. See Section 31.003, Texas Civil Practice and Remedies Code.

If the defendant is a limited partnership, each general partner and the registered agent of a limited partnership may be served with citation in order to effect service of process. See Section 1.08 of the Texas Limited Partnership Act, Art. 6132a-1, Texas Civil Statutes.

If the defendant is a corporation, citation may be served by serving the corporation's president or any vice-president, or the corporation's registered agent. If the corporation's registered agent cannot be found at the corporation's registered office, then service of process may be made on the Secretary of State. See Art. 2.11, Texas Business Corporation Act.

If the defendant is a limited liability company, the manager, if any, and the registered agent shall be agents upon whom citation may be served. See Art. 2.08 of the Texas Limited Liability Company Act, Art. 1528n, Texas Civil Statutes.

If the defendant is a financial institution, the registered agent of the financial institution, or in the absence of a registered agent, the president or branch manager at any office of the financial institution located in this state may be served. See Section 17.028 of the Texas Civil Practice and Remedies Code.

If the defendant is a credit union organized under the laws of this state, another state, or federal law, the registered agent of the credit union or the president or vice president in the absence of such an agent may be served. See Section 17.028 of the Texas Civil Practice and Remedies Code.

To determine the exact legal nature of a business entity, the plaintiff may look at the Assumed Name Records maintained by the Harris County County Clerk, or contact the Corporation Division of the Office of the Secretary of State at(NNN) NNN-NNNN or the Office of the State Comptroller at 1-800-252-1386.

Venue

"Venue" is the proper Justice of the Peace Precinct in which the Small Claims Court may exercise its jurisdiction. As a general rule, a suit in Small Claims Court must be brought in the county and in the Justice of the Peace Precinct in which the defendant resides. If, however, the defendant has contracted to perform an obligation in a certain county, an action may be brought in the county where the obligation was to be performed.

If there is more than one Justice of the Peace within a precinct, the plaintiff may bring suit in any of the Small Claims Courts within the precinct. See Section 28.011, Texas Government Code and Section 15.099, Texas Civil Practice and Remedies Code.

Motion to Transfer Venue

A defendant may file a motion in the Small Claims Court asking that the case be transferred to a different precinct. This request must be made in writing at the earliest opportunity and must state why the precinct in which the lawsuit is filed is not the proper precinct, and also state to what precinct the action should be transferred. If the Justice of the Peace orders that the case be transferred, the original papers will be sent to the Small Claims Court in the proper precinct, and the parties and witnesses will be required to appear before the Small Claims Court to which the case was transferred. See Section 28.014, Texas Government Code.

The Rules concerning the motion to transfer are found in the Texas Rules of Civil Procedure, See Rule 527, Texas Rules of Civil Procedure.

Failure to Appear

If a defendant who has been served properly with citation does not file an answer or does not appear in the Small Claims Court on the date and at the time specified in the citation, and the plaintiff does appear, the Justice of the Peace will enter a default judgment for the plaintiff in the amount that the plaintiff proves is owed by the defendant.

If the plaintiff does not appear, the Justice of the Peace will enter an order dismissing the case. This order does not prevent the plaintiff from filing the lawsuit at a later time, if appropriate.

Either the plaintiff or the defendant who failed to appear may request that the court set aside the decision made in their absence. This request must be made in writing no later than the tenth (10th) day after the default judgment or order dismissing the case was signed, and must give a good reason for the party's failure to appear. See Section 28.031, Texas Government Code.

Certificate of Last Known Address

The plaintiff requesting a default judgment must file a Certificate of Last Known Address certifying to the Court the last known mailing address of the party against whom the default judgment is taken, so that the Court can notify the defendant of the entry of the judgment. See Rule 239a, Texas Rules of Civil Procedure.

Military Status Affidavit

The Servicemembers Civil Relief Act, 50 U.S.C. App. 501 et seq, passed December 19, 2003, requires the plaintiff in any civil proceeding in which the defendant does not make an appearance to file with the court a Military Status Affidavit stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.

The Department of Defense maintains a website for issues pertaining to the Service member's Civil Relief Act at https://www.dmdc.osd.mil/scra/owa/home.

A person who makes or uses a military status affidavit, or statement, declaration, verification, or certificate, knowing it to be false, shall be fined as provided in Title 18, United States Code, or imprisoned for not more than one year, or both.

Discovery

Reasonable discovery in Small Claims Court is limited to that considered appropriate and permitted by the judge. See Section 28.033, Texas Government Code.

Jury Trial

Either the plaintiff or the defendant may demand a jury trial. The request must be made not later than one (1) day before the date on which the hearing is scheduled. At the same time that the request is made, the party must pay the jury fee to the justice of the peace. See Section 28.035, Texas Government Code. The amount of the jury fee is $5.00. See Section 28.004, Texas Government Code, and Rule 544, Texas Rules of Civil Procedure.

Continuance

If either the plaintiff or the defendant is unable to attend the hearing on the date and at the time it is scheduled, a Request for Continuance to the court may be made to continue the hearing to a different date. The Justice of the Peace may postpone the hearing only for a good reason.

The Hearing

The goal of the Small Claims Court is to dispense speedy justice between the parties.

On the date and at the time scheduled for the hearing, the plaintiff must appear ready to present proof of the amount he or she is claiming is owed by the defendant. The defendant must appear ready to present proof of any defenses he or she may have to the plaintiff's claim.

Each party may offer written records, photographs, other tangible evidence, or the testimony of witnesses who have personal knowledge of the transaction made the basis of the lawsuit. A concise presentation, without repetitive testimony is the best way to present the case. The Justice of the Peace may allow each party to make a short argument on why that party should prevail.

The hearing is informal and the Justice of the Peace may ask questions to develop the facts of the case.

See Section 28.033 and Section 28.034, Texas Government Code.

Judgment

At the conclusion of the hearing, the Justice of the Peace must make the judgment as the justice of the case demands.

Under the law, if the judgment is in favor of the plaintiff and against the defendant, the defendant must pay the judgment immediately. See Section 28.051, Texas Government Code.

Right to Appeal

If either the plaintiff or the defendant is dissatisfied with the decision of the Justice of the Peace, and the amount in controversy is more than $250.00, the dissatisfied party may appeal the final judgment to Harris County Civil Courts at Law. The procedures for appeal are the same as if the party were appealing from a decision of the Justice Court.

If the appeal is by the defendant, within ten (10) days from the date of the judgment, the defendant must file an Appeal Bond, with two or more sureties, in double the amount of the judgment. The bond is in favor of the adverse party and must promise that the defendant will prosecute the appeal to conclusion and pay any judgment that may be rendered by the County Civil Court at Law.

If the appeal is by the plaintiff because the Justice of the Peace denied the plaintiff's claim, the plaintiff, within ten (10) days from the date of the judgment, must file an Appeal Bond, with two or more sureties, in double amount of the costs incurred in the Small Claims Court and the estimated costs in the county court, less any amounts that the plaintiff may have already paid. The bond is in favor of the adverse party and must promise that the plaintiff will prosecute the appeal to conclusion. See Rule 571, Texas Rules of Civil Procedure.

"Sureties" are persons who guarantee that their principal will perform the promise made, or pay the amount of the bond. To be a good and sufficient surety, the surety should be worth at least the amount of the bond after deducting the value of the surety's property that is exempt from execution or forced sale, and the amount of all outstanding debts owed by the surety. The surety should have property worth more than the amount of the bond that is subject to execution.

If the party wanting to appeal is unable to pay the costs of appeal or give any security for those costs, he or she is entitled to appeal by filing a pauper's affidavit (stating such inability with the Justice of the Peace within five (5) days from the date of the judgment. Notice must be given to the other party of the filing of the affidavit, and the facts of the party's inability to pay costs can be contested. See Section 28.052, Texas Government Code and Rule 572, Texas Rules of Civil Procedure.

The Affidavit of Inability to Pay must satisfy the requirements of Rule 145 of the Texas Rules of Civil Procedure. Rule 145 requires that the affidavit contain complete information as to the party's identity, nature and amount of governmental entitlement income, nature and amount of employment income, other income (interest, dividends, etc.), spouse's income if available to the party, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses. The affidavit must also state that the party is unable to pay the court costs, and that the statements made in the affidavit are true and correct. The affidavit must be sworn before a notary public.

The appeal must be accomplished within the times specified and follow the procedures specified by the applicable rules of procedure. The rules applicable to appeal from Justice Courts can be found in Part V, Section 6, Texas Rules of Civil Procedures.

When the appeal has been perfected and the transcript sent to the County Civil Court at Law, the party appealing will be notified to pay the costs on appeal to the County Civil Court at Law. Those costs must be paid within twenty (20) days after being notified to do so by the County Clerk, or the County Clerk will return all of the papers to the Justice of the Peace. The party in whose favor the judgment was rendered may then proceed to collect the judgment. See Rule 143a, Texas Rules of Civil Procedure.

Hearing on Appeal

Once the appeal to County Civil Court at Law has been perfected, the Small Claims Court judgment becomes a nullity, and the County Civil Court at Law must try the case "de novo," or over again. This means that the parties must present their respective claims, evidence, and testimony to the judge of the County Civil Court at Law. No further pleadings in the County Civil Court at Law are required.

The judgment of the County Civil Court at Law may be appealed to the Court of Appeals. See Section 28.053, Texas Government Code.
Richard, Attorney
Category: Business Law
Satisfied Customers: 46162
Experience: 32 years of experience practicing law and a businessman.
Richard and 9 other Business Law Specialists are ready to help you
Expert:  Richard replied 1 year ago.
Thank you so much for the positive rating! I appreciate having had the opportunity to serve you! If I can be of assistance to you in the future, just look me up and I will be happy to help! For easy access, my bookmark is: http://www.justanswer.com/law/expert-legalbeacon/

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