Collections

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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

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?

Defendant is Holding My Money; How Do I Get it Back?

This cause of action, in Texas collections, used to be called ‘assumpsit’. It is an equitable claim that usually should be pleaded in the alternative to another claim such as ‘conversion’ which will be discussed later. This theory is usually applied to prevent unjust enrichment, and is based on a debt not evidenced by a [...]

By | August 2nd, 2017|Collections, Texas law|Comments Off on Defendant is Holding My Money; How Do I Get it Back?

What if the false statement of a Defendant was just ‘an opinion’?

An opinion may also be fraudulent if the Defendant knows that the statement of opinion is false, or if the opinion stated is based upon or supported with false statements of fact, that is intertwined with misstatements of fact, or if the opinion is based upon the Defendant’s special knowledge and the Defendant should have [...]

By | May 25th, 2017|Collections, Texas law|Comments Off on What if the false statement of a Defendant was just ‘an opinion’?

I’m a factoring company, and I’m not being paid; what are the elements of ‘fraud’?

We last discussed factoring agreements and breach of contract claims, in relation to Texas debt collection attorneys. Related to the factoring agreement, in collection on the contract, in the context of Texas debt Collection actions, the creditor will often discover fraud, sometimes referred as” fraudulent misrepresentation” or “fraudulent inducement”. First, let’s set forth the elements [...]

By | May 11th, 2017|Collections, Texas law|Comments Off on I’m a factoring company, and I’m not being paid; what are the elements of ‘fraud’?

Can I Draft My Own Liquidated Damages Provision? Can I Use These With a ‘Bonus Provision’ Too?

Q- Is it a good idea to draft one of these Liquidated Damages provisions myself? As would be expected, many clients, when drafting the liquidated damages provision, will specifically state in the contract, that their liquidated damages provision is not a penalty, however, you cannot depend upon the inclusion of that sort of language, though it [...]

By | April 28th, 2017|Collections, Texas law|Comments Off on Can I Draft My Own Liquidated Damages Provision? Can I Use These With a ‘Bonus Provision’ Too?

Is a ‘Liquidated Damages’ Paragraph a Good Idea in the Construction Business? And How do the Texas Courts Look at These Things?

Q- Is a ‘liquidated damages’ paragraph a good idea in the construction business? Especially in construction cases or any case involving a specific amount of time, in which the services must be performed, liquidated damages may be a proper measure of damages. So, in Dallas debt collection, the liquidated damages clause is a stipulation, between [...]

By | April 20th, 2017|Collections, Texas law|Comments Off on Is a ‘Liquidated Damages’ Paragraph a Good Idea in the Construction Business? And How do the Texas Courts Look at These Things?

What Sort of Duties are Owed, by the Fiduciary?

The second aspect, proving breach, you first must understand what duties are owed by the fiduciary.  The duties owed generally by fiduciaries are the duty of loyalty and  utmost good faith, of candor, to refrain from self-dealing, also to act with integrity of the strictest kind, and of fair, honest dealing, and of full disclosure.  [...]

By | February 8th, 2017|Collections, Texas law|Comments Off on What Sort of Duties are Owed, by the Fiduciary?

QUANTUM MERUIT – Part 2 of 2

This is the conclusion of my discussion from my previous post. When providing evidence that Defendant accepted the benefit provided, Plaintiff can prove acceptance w/ evidence that Defendant knew the services were being furnished, but made no objection. Colbert v. Dallas Joint 150 SW2d 771 (Tex. 1941), or as in a Corpus Christi case from [...]

By | December 12th, 2014|Collections|0 Comments

QUANTUM MERUIT – Part 1 of 2

Today’s Blog addresses the Texas 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 the [...]

By | December 12th, 2014|Collections|0 Comments