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Unconscionability, Waiver, Limitation Of Liability: Part III

Q—What is the ‘discharge’ defense? Another sticky area of contract defenses is the area of discharge, on account of plaintiff’s repudiation of the contract or plaintiff’s own material breach of the contract.  If plaintiff repudiates a dependent promise or materially breaches the contract itself, then the defendant will allege that it has been discharged from [...]

By |2019-03-14T18:54:52+00:00March 14th, 2019|Uncategorized|Comments Off on Unconscionability, Waiver, Limitation Of Liability: Part III

Unconscionability, Waiver, Limitation Of Liability: Part II

Q-- What can be done if my contract is unconscionable? If a portion of the contract, or the entire contract, is found to be unconscionable, the court has several choices: Refuse to enforce the entire contract Sever out the unconscionable portion from the contract Limit the application of the unconscionable provision Q—Is a Waiver a [...]

By |2019-02-26T17:14:25+00:00February 26th, 2019|Collections|Comments Off on Unconscionability, Waiver, Limitation Of Liability: Part II

Unconscionability, Waiver, Limitation Of Liability: Part I

Q--‘Unconscionability’ sounds like fraud; what is it? Texas Collection attorneys will sometimes see the defense called ‘unconscionability’. Generally either in collection or factoring litigation, a contract can be deemed unconscionable if it is unfair because of the overall or gross one-sidedness of the contract terms.  There are two main issues associated with unconscionability, being first, how [...]

By |2019-02-15T23:25:10+00:00February 15th, 2019|Uncategorized|Comments Off on Unconscionability, Waiver, Limitation Of Liability: Part I

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 |2019-01-31T22:16:44+00:00October 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 |2018-07-19T18:49:07+00:00July 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 |2018-02-05T21:39:48+00:00February 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 |2017-11-28T20:40:50+00:00November 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 |2017-11-16T18:15:04+00:00November 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 |2017-10-24T17:47:22+00:00October 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 |2017-10-05T14:33:59+00:00October 5th, 2017|Texas law|Comments Off on Recovering Your Attorney’s Fees – Conclusion