Kirk Adams : Hi - my name is XXXXX XXXXX I'm a litigation attorney. Thanks for using JA!
Kirk Adams : This may be possible IF you pay the judgment amount immediately and BEFORE the judgment is "enrolled" in the judgment roll/jugment record for the county.
Kirk Adams : It usually takes a few days for a judgment to be enrolled after it is handed down. If you can get in front of the judgment being enrolled by paying the debt off and asking the clerk to stop (with verification that you've paid), it can be done.
Kirk Adams : BUT, you must act pretty quickly - - like within a day or two of the judgment.
What if it has already been handed down? Is there no way to remove it from my record?
Kirk Adams : It's ok if the judgment has already been handed down - - you just have to stop the clerk from enrolling the judgment in the records.
If I appeal the case to a higher court, will the judgment be on my record while the case is on appeal?
Kirk Adams : Once it's put in the public records, its going to be there for at least 7 years. HOWEVER, you can provide the credit agencies with proof that it's been paid off and that notation can be added to your report.
Kirk Adams : YES, the appeal doesn't stop the finality of the judgment. In other words, the judgment is final until/unless the appeals court overturns it.
Can they come after my bank account and assets while it is on appeal?
Kirk Adams : I am - - sorry. I stepped away for a moment.
Kirk Adams : Yes, the appeal does not stop collection attempts. The only way to stop this is to file a supercedes bond, which would stop collections.
Kirk Adams : This type of bond is usually for 125% of the amount of the judgment and will pay the judgment in the event that you don't prevail.
So as long as i file the superseadas bond tit stays collection attempts
Kirk Adams : Yes.
Tell me if this law would work in place of the superseadas bond
I have a negative net worth due to student loans and general liabilities
Kirk Adams : That's the relevant statute, but it doesn't mean that if you have negative net worth that you can avoid having to post a bond.
Kirk Adams : Instead, you could ask the court to reduce the amount of the bond per 52.006(c) if you can show that posting the bond in the regular amount would cause you a financial hardship.
How do you determine by reading the statute that if it is a judgement for money that i can be required to post a bond more that 50%of my net worth?
isn't that law?
Kirk Adams : let me look at it again - - the word "notwithstanding" from my reading made me think that.....hold on.
Code is law that the legislature sets over ruling any court rules right
Kirk Adams : Yes, that's right. Like I said, the word "nothwithstanding" concerns me because that usually means in spite of, despite, etc., so let me see if I can find something that interprets the rule.
Kirk Adams : I want to make sure I'm reading this right; and if I didn't, I certainly wat to tell you that as well so we're straight! Hold on for a moment please!
it is aa tricky subject
Kirk Adams : Ok. Here's the Texas Rule of Appellate Procedure, which basically mirrors the statute:
I had the motion to dismiss and the judge granted it because the judg esaid The TX rules of appellate procedure dont apply to jp bonds
Kirk Adams : I found a case that says this rule means that the appellant (you) is required to post security to equal judgment amount, not to exceed “50 percent of the judgment debtor’s current net worth. Here's the case: http://statecasefiles.justia.com/documents/texas/fourteenth-court-of-appeals/14-12-00280-cv.pdf?ts=1334157873
Kirk Adams : OK, if it's a JP case, that's right.
but ook at Tx Civil Rules of Procedure 52.005
Kirk Adams : Here's a link to the rule - 24.2 just in case you want to review it: http://www.supreme.courts.state.tx.us/rules/trap/trap-all.htm
§ 52.005. CONFLICT WITH TEXAS RULES OF APPELLATE PROCEDURE. (a) To the extent that this chapter conflicts with the Texas Rules of Appellate Procedure, this chapter controls. (b) Notwithstanding Section 22.004, Government Code, the supreme court may not adopt rules in conflict with this chapter. (c) The Texas Rules of Appellate Procedure apply to any proceeding, cause of action, or claim to which Section 52.002 does not apply.
Kirk Adams : Yeah, I saw that when I read the bond portion. I didn't realize this was a JP case.
And isnt code the law set by the legislature and over rule any rule of court
so wouldnt the TX Civil Practice and Remedies Code over rule both the TX rules of civil procedure and the appellate code both
Kirk Adams : ANYWAY, based on the interpretation of 24.2, which mirrors the rule, you can claim your negative net worth (which is subject to challenge), and the court can rule on your bond per subsection (c).
Kirk Adams : Thus, you are right that the 50% net worth is an absolute and my issues with the 'notwithstanding" aren't relevant here.
The supreme Court makes the Rules of Civil Procedure based of the Civil Practice and REmedies code right?
Kirk Adams : I think the Supreme Court is responsible for fashioning the rules of civil procedure.
Kirk Adams : But, the rules don't specifically say.
So the question is does the legislature make the law and the judges enforce it or do the judges make the law?
Kirk Adams : Here we go - the state legislature provided legislation to approve the state Supreme Court to fashion the rules of civil procedue: http://www.supreme.courts.state.tx.us/rules/history.asp
Kirk Adams : LEGISLATURE makes the law, not the JUDGES.
Kirk Adams : JUDGES are charged with interpreting the law.
thats what i thought
Kirk Adams : You've probably heard before that judges aren't allowed to "legislate from the bench". That's what this is referring to - - judges can't make the law.
Kirk Adams : You're exatly right about that.
So botXXXXX XXXXXne, if i file the notice of appeal and a Superseadas bond with my negative net worth attached , i should be able to appeal without coming up with $8,000 right?
and hopefully they won't have an enforceable judgement until the Appeals court rules
thus not being able to come after my bank account until the appeals court rules
Kirk Adams : Yes, that's right - -
Sorry fir the left field questions, you have been awesome tonight
thanks so much for your help