make payments on the Agreed Judgment. Some debtors or their attorneys will negotiate that the Agreed Judgment be held in the file and not presented to the court unless and until the debtor defaults in the payment agreement. If so, provide in the Agreed Judgment that interest accrues from the date of the agreement, not the date of the judgment. Please note that a party’s agreement to the Agreed Judgment can be withdrawn at any time before it is signed by the judge. That is a downside to agreeing to hold the judgment in file. However, if the party’s agreement is withdrawn the creditor could then enforce the judgment as a contract. Debtors should try to negotiate holding the Agreed Judgment in file because, once the judgment is signed by the court, credit reporting agencies will make a report of the judgment entry. Caveat: If the court in which your suit is pending has its cases on the fast track to the DWOP docket, holding the judgment in the file may not be an option. In that case you may be limited to negotiating that the judgment will not be abstracted as long as payments are made.
Some debtors will make agreements to pay after receiving notice that a judgment has been signed, in lieu of responding to the post-judgment discovery or to prevent the judgment creditor’s exercising its post-judgment rights, including post-judgment discovery and remedies. The form in Attachment 8 can be used, minus the first paragraph. The incentive to be left alone is obvious. The creditor’s willingness to accept payments even after the judgment is taken can be communicated by letter, in the course of the post-judgment deposition, by including an interrogatory asking for a payment proposal, or even as the constable is about to levy execution.
X. Suits on Accounts.
Justice and small claims courts often provide form pleadings that are fill in the blank. Justice Courts require a sworn statement of the claim. Tex.Gov’t.Code Ann. §28.012 (Vernon Supp. 1998). As an alternative to using the court-provided form, Attachment 9 is a suggested petition for a suit on an account with a combination sworn account/business records affidavit. This form can be used in any court. It requires insertion of the Plaintiff’s name, the court in which it is to be filed, the Defendant’s name (and if the defendant is an entity, its agent for service), the defendant’s address, the Discovery Level, the suit amount and the attachment of the affidavit and account documents (which can be the account summary, although inclusion of the copies of the outstanding invoices is suggested).
Not all debt will fall under the category of account debt (and expert opinion on what qualifies varies
greatly) and may need to be couched in terms of breach of contract. Tex. R. Civ. P. 185. Whatever the nature of the debt, keep the petition simple!
XI. Where to File Suit.
A. Amount in Controversy.
Suits on debts can be filed in a number of courts depending on the balance due.
Justice and Small Claims Courts – not to exceed $10,000.00. Tex.Gov’t.Code Ann. §27.031 and 28.003. Note that Small Claims courts do not follow the rules of procedure, and discovery is allowed only upon motion. Oral pleadings are allowed, unless rule 93 requires a sworn pleading. Corporations may file in Small Claims courts, unless they are collection agencies or primarily engaged in lending money for interest. The client that is willing to learn the system may find this process to be cost efficient for claims under $10,000.00.
County Courts –concurrent jurisdiction with the justice court in civil cases exceeding $200.00 but not to exceed $10,000.00; concurrent jurisdiction with the district court in civil cases exceeding $200.00 but not to exceed $5,000.00. Tex.Gov’t.Code Ann. §26.042.
Statutory County Courts – also known as County Courts-at-law – exceeding $500.00 but not to exceed $100,000.00 Tex.Gov’t.Code Ann. §25.0003 (Vernon 1998). There are exceptions to the cap, ie. Travis County Courts at Law have a $250,000.00 cap. Tex. Gov’t. Code Ann §25.2292 (Vernon 1998). Some statutory court costs will refuse to accept claims under $10,000 even though they have jurisdiction. It is good to check with the clerk before filing suit.
Note that some counties, like El Paso and Montgomery Counties, share the district clerk, so plaintiffs must mail the petition to the district clerks, then see whether the lottery sends the case to district or county court.
District Courts – exceeding $500.00, with no limit. Tex.Gov’t.Code. Ann §24.0047 (Vernon 1988).
The County (and precinct if the suit is filed in small claims or justice court) where suit should be filed is governed in part by whether the claim is related to consumer or commercial debt. Venue provisions also vary depending on the court in which the case is filed. (See Caution note at page 2, if it is a consumer transaction).