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Wrongful Eviction - Default Judgment Unlawful Eviction

Discussion in 'Eviction, Recovery of Premises' started by Phoenix13, Sep 7, 2013.

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  1. Phoenix13

    Phoenix13 Law Topic Starter New Member

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    We have been wrongfully evicted by a landlord who won a Default Judgment, as we had no idea she was sneaking behind our backs to file this suit. There are a few important background notes:

    1) The landlord lived in the house (her primary residence) and rented a room to us (a couple).
    2) All rent was paid, contrary to what was alleged in the eviction suit.
    3) She filed the eviction in a Retaliatory manner the day after we presented her with a notice to fix the a/c. The a/c was never working, but we did not know it when we moved into the home in March. The upstairs was unbearably hot, and the landlord used a window unit in her master suite, with no relief provided to us.
    4) She breached contract by kicking us out of her home without the required 30-day notice per lease.
    5) The reason she wanted us out of the house is because she did not want us to receive notice of the eviction hearing.
    6) We did not receive notice, failed to show in court, and she won a Default Judgment against us 7 days after we moved out.
    7) The eviction hearing and 10-day appeal period passed before she notified us of her judgment.
    8) 10 days after we moved, we notified her in writing of our forwarding address, and requested return of security deposit.
    9) She failed to return or account for security deposit within the statutory 30-day period after our vacating the home.

    Obviously, we have a lawsuit planned against this person, and have lots and lots of documentation (pictures and videos of the notice of repair, cancelled checks, signed lease, illegal notice to vacate, video of the pristine condition we left the house in as we departed).

    My main question is...does anyone know if you can file a "Motion for New Hearing" in JP Court in Texas? If not, even if we win the second lawsuit against her (and, we will!), without a new hearing, we will not be able to overturn the original eviction ruling. I understand that we may be able to get the record "Sealed", but it just doesn't seem fair that this crazy lady was able to file for eviction, have the notice served to her house (which she had already kicked us out of), accept the notice, appear in court and get a judgment against us without us even knowing that a hearing (and appeal period) was taking place! I feel like she defrauded the court, and it makes my blood boil!!

    Well, any help would be appreciated. Again, the main info I need is if and how to file a "Motion for New Hearing", and if that option is off the table due to time lapse, whether I can ask for the eviction ruling to be sealed. As to the latter, do I do this as part of my new lawsuit against her? FYI, it has been approximately 2 months since the original eviction ruling.

    Thank you, legal eagles!!
     
  2. Proserpina

    Proserpina Moderator

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    I have a question which might be critical.

    WHY did you leave when she told you, versus insisting she follow the law?
     
  3. army judge

    army judge Super Moderator

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    You voluntarily abandoned the home after she asked you to leave.

    Your abandonment made the issue of the eviction moot, but the eviction sealed your fate.

    When she asked you to leave, legally you could have said nothing and stayed.

    She would then have to initiate the eviction process.

    She began an eviction anyway, and you somehow defaulted.

    Yes, an appeal would have been possible.

    But, you missed the ten day appeal window.


    However, in the case of an eviction, you ONLY have a five day appeal window.

    If the Justice of the Peace (J.P.) ruled against you in an eviction case and signs a Judgment for your eviction, you have the right to appeal.

    If you do not appeal the decision of the J.P. within five days, and you do not move out, your landlord can ask the J.P. for a writ of possession.

    This allows the constable or sheriff to give you a 24-hour warning and then to supervise the removal of your family (or other occupants), including your belongings from the premises.


    If you are dissatisfied with the decision of the Justice of the Peace Court, and the amount in controversy is more than $250.00, the dissatisfied party may appeal the final judgment to your County Court at Law.

    If the defendant wishes to appeal, he or she must bring said appeal within ten (10) days from the date of the judgment. Said defendant must file an Appeal Bond, with two or more sureties, in double the amount of the judgment. The bond is in favor of the adverse party and must promise that the defendant will prosecute the appeal to conclusion and pay any judgment that may be rendered by the County Court at Law.

    Bottom line, this is over. You have no where to go legally, so I simply and humbly suggest you move on with your life.
     
    Last edited: Sep 7, 2013
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  4. Phoenix13

    Phoenix13 Law Topic Starter New Member

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    A little more information:

    We did not simply leave when she asked us to. She brought in what I would call a "henchman" to harass us and go through our rooms (we have proof of this). Also, it's hard to sleep when your room is 95 degrees hot and you have to leave your door open. And, it's not a matter of just moving on... She was awarded a $5000 judgment (by default) against us which is totally bogus, as we never owed her a dime and cleaned the place to pristine condition. I own a home in another state (which is my primary residence...we were here short-term for a work project), and I do not want a judgment floating out there against me.

    The appeal process is a 10-day window (as I understand it) from the original eviction hearing, so my problem is that since she never notified us of any of this until the hearing AND the appeal period had lapsed, I need to either enter a "Motion for New Hearing" if that is possible in TX JP Court, or sue her as a separate action and have the original eviction "Sealed". Those are my only 2 options as I understand it. "Moving on" is not, as there is a Financial Judgment against me.

    Thanks for everything!
     
  5. army judge

    army judge Super Moderator

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    Moving on is all you have at this point.

    An appeal from an eviction judgment in Texas is five days, not ten.

    There are many things we all learn to adjust to, or accommodate in life.

    As ten or more days have elapsed, its too late to appeal the judgment on the eviction.

    You can fight its execution (of the $5,000 in your home state), when and if that arises.

    But, your legal right to appeal has expired insofar as Texas law is concerned.

    All the other stuff is just chatter here.

    It MIGHT have held weight in JP Court (doubtful at best), but it means nothing here.

    You can speak to a lawyer or two in the county where the judgment issued, as the initial consultations are often free of charge.

    Sometimes relationships can change outcomes.
     
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  6. Phoenix13

    Phoenix13 Law Topic Starter New Member

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    Can you elaborate on which court is considered the "County Court at Law"? Thanks...
     
  7. Phoenix13

    Phoenix13 Law Topic Starter New Member

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    OK, now you have my attention with the "Sometimes relationships change outcomes" part. Can you elaborate?
     
  8. army judge

    army judge Super Moderator

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    Texas has three courts of original jurisdiction.

    Lowest level courts: Justice of the Peace or Municipal Coutr

    Middle level courts: County Courts of Law

    Highest level courts: District Courts

    Google the county where the deed went down, and you'll see JP Courts (or Muni Courts), County Courts, and District Courts.

    In what county did the eviction take place?
     
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  9. army judge

    army judge Super Moderator

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    Lawyers in "certain" counties (smaller ones) can do things that lawyers might not be able to do in Dallas County, Travis County, or Bexar County for example.

    Nothing illegal, but some smaller counties are interested in justice and equity (fairness).

    You situation illustrates why i advise never to rent a room in a home.

    Rent a a hotel room, or an apartment, or even a room in a boarding house; but NEVER a room in a private home.
     
  10. Phoenix13

    Phoenix13 Law Topic Starter New Member

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    Dallas County, Judge Gerry Cooper (Garland office)
     
  11. Phoenix13

    Phoenix13 Law Topic Starter New Member

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    Looks like this Landlord is a serial suer--almost 2 years ago, exactly, she sued another tenant (almost identical claims and judgment award). I am getting the picture that this is what she does for a living!
     
  12. Phoenix13

    Phoenix13 Law Topic Starter New Member

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    Agreed! (About the room in a private home thing!)

    It still seems like there should be some method of overturning a judgment, where in the United States of America, you were never given the opportunity to defend yourself! Let's say I offer to watch a neighbor's house while they go on African safari for 3-4 weeks, I collect their mail, and suddenly see a window of opportunity. I sue them for something, a notice is delivered and I sign for it (since I'm there), the court date arrives, judge rules Default, the appeal period passes, and they return home to find there is a $5000 judgment (or $500,000) against them. What is their recourse??
     
  13. army judge

    army judge Super Moderator

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    Irrelevant, immaterial, and speculative.

    She could argue that renters broke their leases or damaged her property.

    The smart thing is to never rent rooms in private homes, for reasons that have more to do with personal safety and privacy more so than finances.

    Bottom line, even if it anything you say was true, she has a judgment against you.

    Its beyond the time to appeal, and all you can do is defend against its enforcement in your home state.

    She'll not be able to do much to you in Texas, as we are a very debtor friendly state and we offer homestead exemptions via our constitution.
     
  14. Phoenix13

    Phoenix13 Law Topic Starter New Member

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    What would YOU do if you were the one on safari?
     
  15. army judge

    army judge Super Moderator

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    First of all, we don't allow overnight guests in our home, ever.

    We rarely allow anyone into our home, the exception being about six to twelve close relatives.

    The other exception, bonded, licensed contractors and service personnel.

    Other than that, this would never happen to me.

    I don't rent rooms in the homes of other people, and I don't rent rooms in my home.

    I also don't visit people in their homes.

    If we entertain, we do so in a public venue (ie...restaurant, hotel, etc.).

    We don't visit the homes of other people.

    I suspect that's just the lawyer in me.

    I insure everything I own.

    If it gets broken, stolen, or destroyed; I file a claim with my insurance carrier.

    Please, I mean no offense, but I'd never find myself in a situation such as this.
     
  16. army judge

    army judge Super Moderator

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    Its possible to attack the judgment on the premise that you never were served.

    If you can prove the service was defective, improper, or nonexistent; you can seek to have the judgment overturned.

    That is a very difficult process, and probably not a DIY effort.

    So, I suggest you speak to a couple general practice attorneys about the defective judgment predicated upon the fact you were never served.



    Some links will have additional useful links embedded in them.

    Here's some reading on the topic of "overturning default judgments".

    http://www.dallascounty.org/department/jpcourts/2-1/evictions.php

    http://www.dallascounty.org/legal-info/media/Eviction.pdf

    http://www.supreme.courts.state.tx.us/rules/trcp/trcp_part_5.pdf

    http://www.dallastxdivorce.com/2012...er-a-default-judgment-is-entered-against-you/

    http://www.blendenlawfirm.com/uploads/1/3/4/6/13469420/defjudgements08.pdf

    http://www.dallascourts.com/rules/locrulnw.htm
     
  17. Phoenix13

    Phoenix13 Law Topic Starter New Member

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    Thank you for the information. We will pursue the service (or lack, thereof!) angle. Thanks for your thoughts and consideration.
     

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