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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26693
Experience:  Began practicing law in 1992
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A default judgment was entered against my husband and I in

Customer Question

A default judgment was entered against my husband and I in June 2009. It was an eviction in JP court. The property never terminated our lease and ended up evicting the next tenant. We were never served because they served our old address, and I discovered the issue in October of that year after checking our credit. Since then we have been fighting this with the credit bureaus, and have been successful on 5 out of 6 reports. At this point, the bureau us saying we have to get the judgment vacated or dismissed for them to delete it. The property is willing to do whatever is necessary to help up get this cleared up, but we have no idea what to do to from here without involving attorneys - no one wants to sue anybody. Everybody just wants to fix the paperwork error.
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

I can tell you what has to be done but I can't tell you how to draft the forms and they are complciated.

Customer:

Okay if you can tell me the process, at this point I am willing to spend a bit on a lawyer to draft the required documents

Customer:

I just don't want to sue the property necessarily

Customer:

unless of course the attorney's fees are very large

JD 1992 :

Is the property company that you said would cooperate the same one that has a judgment against you?

Customer:

Yes

JD 1992 :

Let me look something up, please wait right here in chat and I will be right back.

Customer:

okay - thank you

JD 1992 :

I'm looking for a specific rule number to refer you to. Be right back.

JD 1992 :

Still looking...

Customer:

Okay - take your time

JD 1992 :

This is going to take a little longer than I thought. You can continue to wait or if you want to exit then I will post the answer here and you can check back a little later. I think you get an email if you're not in chat and I post something.

Customer:

Okay - I can hang out here and multitask - I am a computer consultant so I have to be on here anyway. If I have to leave the chat, I will watch for the email. I really appreciate your diligience.

JD 1992 :

Great. It shouldn't take too long. The method I was thinking of is limited in time to less than 6 months after the judgement was awarded so I need to find the other method. I know there is one I just need to locate it.

Customer:

Okay - thanks

Customer:

My own research came up with a "bill of review"

JD 1992 :

I believe the Bill of Review is the correct method or a Writ of Error. However, there are very specific limits on the amount of time that they can be considered and you would have to file those in a higher court, you can't actually do them in the JP court since the JP court has lost plenary power. However, I know there is a method you can use where there was no service and therefore the judgment is improper, I just have to find the specific rule.

JD 1992 :

Or case law.

Customer:

okay - excellent

JD 1992 :

Okay, I figured out the issue.

Customer:

Okay - I;m ready

JD 1992 :

The Bill of Review is an equitable remedy, not statutory, which is why I was having a hard time finding it in the rules.

JD 1992 :

A bill of review has very specific requirements, which I'm going to cut and paste from a case:

JD 1992 :

A bill of review is an independent action to set aside a judgment that is no longer appealable or subject to challenge 927*927 by a motion for new trial. See Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998). Although it is an equitable proceeding, the fact that an injustice has occurred is not sufficient to justify relief by bill of review. See Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). Generally, bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies against a former judgment and, through no fault of its own, has been prevented from making a meritorious claim or defense by the fraud, accident, or wrongful act of the opposing party. See Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex.1989); Petro-Chemical. Transp., Inc. v. Carroll, 514 S.W.2d 240, 243 (Tex. 1974). If legal remedies were available but ignored, relief by equitable bill of review is unavailable. See Caldwell, 975 S.W.2d at 537.

JD 1992 :

... before a petitioner is entitled to initiate a claim for a bill of review, he must allege and prove that he has exercised all due diligence to pursue all adequate legal remedies to the judgment in controversy or show good cause for failing to exhaust the same. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998); Griffith v. Conard, 536 S.W.2d 658, 661 (Tex.Civ.App.-Corpus Christi 1976, no writ). If a petitioner had legal remedies which were available but ignored, relief by equitable bill of review is unavailable. Wembley Inv. Co. v. Herrera,11 S.W.3d 924, 927 (Tex. 1999); French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967). One with an available appeal who fails to pursue that remedy is not entitled to seek relief by way of bill of review.Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980).

Customer:

Okay - so since we discovered the issue after the appeal time of 6 months we really would not have had any other legal remedies, right?

Customer:

Or would we?

JD 1992 :

Knowing this, then you have to attach an affidavit saying 1) that you had a meritorious defense to the claim and 2) That you didn't receive notice within the time to file a regular appeal or anything other than a bill of review.

Customer:

well, I guess it was within 6 months, but at that time we got a letter from the property compnay that let us clear it from most of the credit reports

JD 1992 :

Since the other side isn't going to object that will make it a lot easier.

Customer:

okay - now - what kind of lawyer do I need

JD 1992 :

You file a Bill of Review in the same cause number as the original case and you can put "Agreed Bill of Review" in the title.

JD 1992 :

Look for a lawyer that does civil trial law or that has a general practice.

JD 1992 :

Since it is agreed it isn't going to be that difficult.

Customer:

Okay - excellent

Customer:

and preferably one in county where the suit was filed correct?

JD 1992 :

Yes, it would be better to get one in the county in which the original suit was filed.

JD 1992 :

There are other motions, like a Motion to Vacate or a Writ of Error, etc. but you're outside the time limits for those so a Bill of Review is the only mechanism.

Customer:

Okay - I really appreciate you help. Do you know how I can save this chat to a file by chance?

JD 1992 :

Once you issue your rating, hopefully Excellent, the question will change to a Q and A format and you can print it then or use the screen print. A positive rating also locks the question open and you can come back to it at any time in the future.

Customer:

I am rating Excellent - thanks!

Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26693
Experience: Began practicing law in 1992
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