Defendant has my property, how do I get it returned under ‘Conversion’?

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Defendant has my property, how do I get it returned under ‘Conversion’?

A related cause of action is ‘conversion’, generally described as a Plaintiff who owned or possessed or had the right to immediate possession of personal property, with Defendant wrongfully exercising dominion over it, with Plaintiff suffering injury. Earlier, this theory was called suing “in detinue” or “in trover”, although we do not use these any longer, it merely being called ‘conversion’. Green International v. Solis 951 SW2d 384 (Tex. 1997).

Ownership of property may be proved by evidence that Plaintiff purchased the property, or under the UCC, Plaintiff can have legal possession of property. Intern’l Freight v. American Flange (San Antonio 1999); Ward v. Shriro (Dallas 1978).

Establishing that the property was personal property includes showing that it was money, being a specific chattel, or a specific deposit in a bank. This is opposed to a ‘general deposit’ in a bank, which is how funds are usually deposited, where a specific deposit would be a deposit accompanied by an agreement that an identical deposit will be paid out for specific purpose. Since it is still the property of the depositor, it can be concerted. This theory is usually applied to a suit against a bank that improperly applies funds on deposit. Also, a security deposit can be converted, and insurance policy proceeds can be converted. Stock certificates can be converted, and legal instruments such as titles, such as to an automobile, can be converted.

Confidential information such as trade secrets or customer lists can be converted. Chandler v. Mastercraft (Ft. Worth 1987). A conversion also occurs when a party exercises dominion and control over the collateral property subject of a security agreement. Crutcher v. Continental (El Paso 1994). Mineral interests, oil and gas, severed from the realty become personal property and can be converted. Santanna Nat. Gas v. Hamon (Austin 1997). If property that is a fixture’ is severed from the property, is becomes personal property and can be converted.

Settlement funds that are paid and meant to be paid to the carrier, as a reimbursement, can be converted. In one collections case, the carrier successfully sued for reimbursement against the third-party tortfeasor, the injured employee, and the employee’s attorney. Estrada v. Wausau 985 SW2d 480 (San Antonio 1998). Animals can be converted, but not wild animals since they cannot be confined.

Some property is not subject to a conversion claim, such as intangible property, such as a trade name, or a mis-directed email communication, or real property, or fixtures. Plaintiff must show that ‘wrongfully acquired possession’ means that the property was taken without the owner’s consent. Lone Star Beer v. 1st National (El Paso 1971). Plaintiff must also show that he demand return if Defendant originally took possession legally. Usually however, demand by Plaintiff is not necessary if Defendant’s acts amount to a clear repudiation of Plaintiff’s rights, and a demand would be useless. Also, Plaintiff must show that the acts were the proximate cause of injury to Plaintiff.

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*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion

Sam Emerick, Collections Attorney

Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate

 

 

By |2017-08-10T19:38:14+00:00August 10th, 2017|Deceptive Trade Practices Act, Texas law|Comments Off on Defendant has my property, how do I get it returned under ‘Conversion’?

About the Author:

Mr. Emerick, a seasoned collection lawyer in Dallas, and owner of the Law Offices of Sam Emerick, P.C. helps creditors obtain payments on loans and debts. Mr. Emerick delivers prompt, efficient and tangible results to creditors. The Law Offices of Sam Emerick help creditors who are frustrated attempting to collect debt. Many times, creditors believe that they will be able to resolve the problem on their own; a letter requesting payment, a phone call asking for an explanation, or a proposed meeting. Unfortunately, these measures rarely produce any tangible results.