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Certified Mail Signature

Discussion in 'Small Claims & Municipal Court' started by Ed Hall, May 1, 2020.

  1. Ed Hall

    Ed Hall Law Topic Starter New Member

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    Jurisdiction:
    Texas
    In preparation for filing with Small Claims Court, I demanded payment from the defendant by sending a letter using certified mail. The letter was delivered and was signed by the defendants neighbor. The neighbor apparently had been given permission to collect and sign the mail.

    Will a signature as described above be sufficient enough in the court of law or do I need to get an actual signature from the defendant?
     
  2. zddoodah

    zddoodah Well-Known Member

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    I don't really follow your question.

    Are you under the impression that you are required to send a pre-lawsuit demand to the defendant by certified mail? If so, can you cite the law, court rule or whatever it is that requires you to do this?
     
  3. Ed Hall

    Ed Hall Law Topic Starter New Member

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    Yes....

    The following from what I found on this website says the following:
    How to Prepare for (and Win!) Your Small Claims Court Case - Kimball Tirey & St. John LLP

    A. Demand Payment

    Before you file your Plaintiff’s Claim with the Small Claims Court, demand payment from the defendant Write a letter to the defendant, explaining that you want him or her to pay you a certain amount of money and why. Give the defendant a reasonable time in which to respond. Fourteen (14) days is a good rule of thumb.
     
  4. mightymoose

    mightymoose Moderator

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    Your letter is not important. It is not a document that requires proof of service.

    If you are in court later you can use what you have to show you attempted to resolve the matter outside of court. Who signed for the letter and whether or not it was ever even read by the recipient is insignificant.
     
  5. zddoodah

    zddoodah Well-Known Member

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    First of all, the linked article is simply a guide. It is not a law or court rule.

    Second, and more importantly, the article appears on the web site of a law firm in San Diego, California, so it has nothing to do with what is and isn't required in Texas.

    Third, even if the article were of some value in connection with a Texas small claims lawsuit (or even if you were concerned with small claims rules in California), the word "certified" doesn't appear anywhere in the "demand payment" section of the article. The word "certified" does appear in the section on serving the defendant, so the fact that it isn't in the "demand payment" section is a pretty good indication that there's no reason to send a pre-lawsuit demand in that manner..

    Unless there is a Texas law or court rule that requires sending a pre-lawsuit demand letter by certified mail, then it doesn't matter if the defendant or a neighbor or Mickey Mouse signs for the letter.
     
  6. Ed Hall

    Ed Hall Law Topic Starter New Member

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    Attorney Fees

    I'm planning to file a claim against someone for refusing to pay for services I did. Their lawyer sent me a letter that if I pursue any claim of the matter, they would pursue a counterclaim against me for damages including attorney fees.

    For small claims court matters, can attorney fees be levied against me?
     
  7. zddoodah

    zddoodah Well-Known Member

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    Lawyers are allowed to represent clients in Texas small claims court, so there's no reason why attorneys' fees couldn't be awarded in appropriate cases. I did not, however, look up the rules.
     
  8. Ed Hall

    Ed Hall Law Topic Starter New Member

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    Is attorney fees being awarded to the winning side at the discretion of the judge? If so, how common is this? I believe that I have a strong case but would hate to lose because of some technicality and have to pay more than I can afford.
     
  9. adjusterjack

    adjusterjack Super Moderator

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    In the American legal legal system each party pays his own attorney unless there is a contract specifying how attorney fees are handled or unless there is a statute or rule that applies to a specific type of matter.

    Do you have a contract that specifically addresses attorney fees? If not then the attorney is BSing you in an effort to scare you away.

    Understand that it didn't cost much for the attorney to write the letter but your opponent might not be willing to spend hundreds of dollars to have the attorney represent him in small claims court where he is unlikely to be awarded attorney fees.

    What type of service did you perform and how much money are you out?
     
  10. army judge

    army judge Super Moderator

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    Mon ami:

    In Texas "small claims matters" are litigated before two distinct courts:
    Municipal Courts or Justice of the Peace Courts.

    In either court noted above a person may represent himself or herself, and may, if he or she so chooses; be represented by an attorney.

    Yes, the attorney can request the Muni Court or the JP allow attorney's fees.
    (Note, such fee requests are very rarely denied. I know this because I live in Texas and am licensed to practice law in Texas.)

    As @adjusterjack points out, such fees must arise from an alleged contract breach and dispute denoted in said contract(s).
     
  11. Tax Counsel

    Tax Counsel Well-Known Member

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    While it is true that in most states attorneys fees are not awarded in contract matters unless the contract says they do, in Texas the rule is exactly the opposite: in a contract case, the loser pays the winner's legal fees unless the contract says otherwise. Specifically, Texas Civil Practice and Remedies Code section 38.001 states:

    A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for:
    (1) rendered services;
    (2) performed labor;
    (3) furnished material;
    (4) freight or express overcharges;
    (5) lost or damaged freight or express;
    (6) killed or injured stock;
    (7) a sworn account; or
    (8) an oral or written contract.

    As a result, I disagree with you that the attorney was BSing the OP. The attorney is quite right that the OP might get stuck paying the other side's legal fees should he lose
    .
     
    army judge likes this.

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