LEGAL UPDATE
attempts are at the site level, the corporate
level or through a third party), you will also
likely see the advocate “tie” a debt
collection claim to a Deceptive Trade
Practice – Consumer Protection Act
(“DTPA”) Claim and these demands by
tenant lawyers are as high as $1,000.000.00;
in other words, you could be held liable
under both the Texas Act and the DTPA.
Why is this important? The DTPA allows
the claimant to recover attorneys’ fee and
expenses plus mental anguish damages;
these components of a claim could well
exceed the statutory liability for “actual
damages” as even a damages award of $1.00
under the DTPA will support an award of
attorneys’ fees of $20,000.00.
Two
Illustrative
Fact
Scenarios
Regarding Evictions:
Tenant fails to pay May rent. Notice
to Vacate is delivered. Eviction is filed in
May for possession and May rent. JP Court
sets trial for June 2.
As of June 2, the day of trial, how
much rent is due and owing? The answer is:
May rent and June rent (because the full
month of June rent was due on June 1 under
paragraph 6 of the TAA Lease).
Consequently, the landlord must request
May and June rent at trial.
Two problematic scenarios could
then occur at trial in JP Court on June 2:
1. Landlord loses the case, JP issues
judgment for tenant, landlord
does not appeal; or
2. Landlord wins case, but at trial,
landlord doesn’t ask for and is
not awarded June rent in its
judgment.
An Illustrative Fact Scenario Regarding
Accounting:
Landlord makes an error on a ledger
and posts a double late fee; since a tenant’s
payment may be applied to non-rent
obligations first and then to rent, the tenant’s
ledger then incorrectly reflects rent due
(when rent is not actually due). Landlord
files eviction on the incorrect amount or
sends the tenant to collections after the
tenant vacates.
Eviction Company Problems:
Eviction services are not attorneys
and cannot provide legal advice; some
companies cross the line and advise you
whether or not to accept rent after a default
or an eviction loss – that advice is incorrect
and create more problems for you than the
advice solves. The other problem you face
is that once a tenant appeals an eviction, the
case goes to County Court regardless of
whether the tenant vacates during the
pendency of the eviction. When a tenant
vacates during the proceedings, tenant
attorneys deliver a trial setting notice to the
eviction service and if no one shows up at
court, the lawyer takes a $2500.00 judgment
against the property, then serves discovery.
This usually occurs when the service has
advised you to obtain counsel for the appeal
and staff believes no further action is
necessary because the tenant has vacated.
The bottom line is that for every eviction
case that is appealed, you must finalize your
judgment for possession against the tenant in
county court, if you do not, you risk a
judgment against your owner.
The Additional Problems:
The Eviction Scenarios. Texas law
states, “You may join a suit for rent with an
eviction suit;” you cannot collect late fees,
nsf fees, re-letting fees and the like in an
eviction case, but you may include “rent” in
the your eviction judgment.
Texas law also follows a doctrine
called res judicata; the translation of res
judicata from Latin is “a matter already
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