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Accord Satisfaction and Novation

LAW OFFICES OF SAM EMERICK, P.C. Q- I was sued, but I settled the matter, now the creditor is coming back, wanting more. What can I do? Today’s subject as used by Texas collection attorneys is the defense of accord and satisfaction. Accord and satisfaction is an affirmative defense and rests on a new contract [...]

By | October 17th, 2018|Uncategorized|Comments Off on Accord Satisfaction and Novation

Types of Damages in Texas

What damages can I recover in my collection lawsuit? Actual damages, the Texas collection lawyer seeks damages called “compensatory damages”, awarded to compensate for an injury or to repair a wrong. Actual damages may be either economic or non-economic and do not include exemplary damages. Economic damages compensate for actual economic or pecuniary loss, and [...]

By | July 19th, 2018|Texas law|Comments Off on Types of Damages in Texas

Defenses- Part 1

LAW OFFICES OF SAM EMERICK, P.C. Feb. 4, 2018   Today’s blog will center on some of the defenses available in a breach of contract action, concerning Texas collections cases. The first area we will address often seen by Texas collection attorneys is the defense of ‘waiver’. A Waiver is defined as an intentional relinquishment [...]

By | February 5th, 2018|Texas law|Comments Off on Defenses- Part 1

Estoppel Defenses: Part 2

This week we're finishing up a subject relating to different ‘defenses’ available to Defendants in Texas collection cases, and specifically, doctrines known as “estoppel by misrepresentation”, also known as equitable estoppel, and on the other hand, the claim of quasi-estoppel, also known as “estoppel by conduct”. Another equitable theory not often used, but which will [...]

By | November 28th, 2017|Uncategorized|Comments Off on Estoppel Defenses: Part 2

Estoppel Defenses: Part 1

Today’s subject relates to different ‘defenses’ available to Defendants in Texas collection cases, and specifically, doctrines known as “estoppel by misrepresentation”, also known as equitable estoppel, and on the other hand, the claim of quasi-estoppel, also known as “estoppel by conduct”. First, equitable estoppel, contains the following elements: Defendant made a false representation to, or [...]

By | November 16th, 2017|Uncategorized|Comments Off on Estoppel Defenses: Part 1

QUANTUM MERUIT – I didn’t get a contract signed; can I still sue for the services I provided?

Today’s Blog addresses the Texas debt collections issue of QUANTUM MERUIT—an equitable theory of recovery, intended to prevent unjust enrichment, when there is AN IMPLIED AGREEMENT TO PAY FOR SERVICES RECEIVED. In re Kellogg Brown 166 SW3d 732 (Tex. 2005), also Barnett v. Coppell 123 SW3d 804 (Dallas, 2003). If an express written agreement covers [...]

By | October 24th, 2017|Collections, Texas law|Comments Off on QUANTUM MERUIT – I didn’t get a contract signed; can I still sue for the services I provided?

Recovering Your Attorney’s Fees – Conclusion

In most cases, Plaintiff proves his attorney’s fees by offering expert testimony. Failure to timely designate Plaintiff’s attorney as an expert witness may result in exclusion of the expert attorney fee testimony unless the party can show good cause or lack of unfair surprise. Usually, the party’s trial attorney is qualified the give expert testimony, [...]

By | October 5th, 2017|Texas law|Comments Off on Recovering Your Attorney’s Fees – Conclusion

Recovering Your Attorney’s Fees – Part 2

Regarding the element that Plaintiff must prevail, Plaintiff must secure favorable findings on both liability and damages. If Plaintiff secures a favorable finding on liability, but with no damage award, Plaintiff has not been considered to prevail and it not entitled to attorney’s fees. Plaintiff is not required to obtain a net recovery, however, before [...]

By | September 25th, 2017|Texas law|Comments Off on Recovering Your Attorney’s Fees – Part 2

Recovering Your Attorney’s Fees

From an adverse party, as permitted by statute, contract, or equity. Smith v. Patrick 296 SW3d 545 (Tex. 2009). To recover attorney’s fees, Plaintiff must establish the following: Plaintiff pled for attorney’s fees Plaintiff’s recovery of attorney’s fees is authorized either by statute or by a contract between Plaintiff and Defendant, or under principles of [...]

By | September 13th, 2017|Texas law|Comments Off on Recovering Your Attorney’s Fees

What sort of defenses should I expect? What damages can I recover?

Q- what sort of defenses should I expect him to try? Defenses sometimes asserted include Limitations, unclean hands, voluntary payment by Plaintiff, or pleading that the money is stolen money, even from a good-faith purchaser for value. Texas Bank v. Custom Leasing 498 SW2d 243 (Tyler 1973), and also ‘Unclean hands’, may include factors showing [...]

By | August 30th, 2017|Collections, Texas law|Comments Off on What sort of defenses should I expect? What damages can I recover?