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I have a client (xyz) that we have done post judgment collections…

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I have a client (xyz)...
I have a client (xyz) that we have done post judgment collections before in the past with very good success on recovery. They have come back to our law firm / collection company for additional services because of the previous success. They want us to collect 2 separate debts upon the same company / individual

1. XYZ Company, located in Houston, Texas conducted a transaction by selling a petroleum product to company ABC and delivered this product to Mobile, Alabama. ABC took possession of the product upon delivery. XYZ billed ABC. ABC would not pay. A demand was sent to ABC for payment. ABC sent an NSF Check to XYZ for payment and has not taken care of this NSF Check to date. The transaction for purchase of the petroleum product was approximately $30,000.00 It has been over 2 years since the transaction was conducted.

Q: If a judgment against ABC is sought what state has jurisdiction? Alabama or Texas. Should this be filed in a State / District / County Court or should this be filed in a Federal Court? Is this a criminal offense, and if so, what is the offense? Will this become a tortious claim for breach of contract?

2. The second collection activity exists as a loan transaction between XYZ company, lender and the ABC company and john doe individually and together. There was no formal note signed for the loan transaction but documents (emails, messenger chat dialogue, emails to accounting personnel to release funds, etc...). The total amount of all dispursements and loans to ABC / John Doe from XYZ total in excess of $400,000. A approximate amount of $150,000 was paid back to XYZ by ABC and john doe by company check and personal check from account #123 and 456. The payments ended after a period of time. Last negotiable payment made was approximately 24 months ago. Since that time 3 other checks from ABC account #123 have been sent to XYZ, signed by john doe with status of NSF. Only one of the checks was actually presented to the bank for payment and then returned NSF for $100,000. The other two checks were verified prior to deposit with the verbal status of NSF.

Q: If a judgment against ABC is sought what state has jurisdiction? Alabama or Texas. Should this be filed in a State / District / County Court or should this be filed in a Federal Court? Is this a criminal offense, and if so, what is the offense? Will this become a tortious claim for breach of contract?
Submitted: 6 years ago.Category: Criminal Law
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Answered in 2 hours by:
3/8/2012
Criminal Lawyer: Joseph, Criminal Defense Lawyer replied 6 years ago
Joseph
Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7,280
Experience: I have 15 years experience in criminal litigation including several years as a felony prosecutor
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For the case to be filed in federal court, the litigants would need to have complete diversity, meaning the entities would need to be from different states. Based on the facts as you have presented them, it appears that this test can be met. However, you would also need to meet the amount in controversy requirement. For a federal case, the minimum amount must be $75,000.

 

The first fact pattern does not meet the minimum amount in controversy requirement and, therefore, cannot be filed in federal court. The question then becomes in what state is the matter appropriate. If there was a written contract, that document might contain language as to where litigation is appropriate. If so, you would need to abide by this language. If not, then you would need to determine which state was more appropriate.

 

For XYZ to file in Texas, ABC would need to have sufficient ties to Texas. This could include being incorporated there, having a principle place of business there or even regularly conducting business there. If ABC does not meet any of these criteria, then the lawsuit would need to be filed in Alabama.

 

The second fact pattern meets the minimum amount in controversy test. Assuming ABC does not have sufficient ties to Texas as discussed above, then this fact pattern would meet the complete diversity test as well. If so, then federal court would be appropriate. Otherwise, this too would be a case for state court. And yes, there appears to be a classic breach of contract issue.

 

As to criminal charges, I would suggest that this is unlikely. I suspect the vast majority of law enforcement agencies would consider this to be entirely a civil matter and not initiate a criminal proceeding.

 

Please let me know if anything requires clarification.

 

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