Fee Affidavit Form - Texas Department Of Criminal Justice: Fill & Download for Free

I disagree wholeheartedly with Jane. To some extent what she has suggested to you is a carbon copy form of advice; you could get it anywhere online, or probably from your local small claims court. It lacks anything in the form of strategy that would be employed by someone who operates in small business.Therefore, I’m going to be giving you advice tailored to your situation, as best as I can ascertain it. I must say, up front, I speak within the confines of the laws of the State of Texas, which may differ if you’re in a different jurisdiction. I have sued people on my own and with attorneys, and I have been sued in my official capacity. What I say is not from a book; this is experiential as much as it is theoretical.Why do we, as businesspeople, find ourselves in these situations? — We enter into arrangements with customers in which we agree to buy things on their behalves… blah blah blah. Commerce.What, really, though — got us into this problem of being near a lawsuit? Key word from your answer → lawsuit = attorney.I would say that’s a breakdown of communication between the owner and customer, and I’ll just call businesspeople owners, here, for brevity’s sake.—Let me just tell you a story!One morning, I had to get up early; one job I had was manager of a concrete plant. I had a customer who I usually made pay me up front, but because he’d been acting well as a customer lately, and due to the amount of concrete he was ordering, and my trust in the man, I allowed him to get his concrete delivered on modified COD terms; specifically, I mean — concrete is in the process of drying up from the moment you add water — you don’t really have time to bicker about payment prior to discharging and placing the concrete, so the modification was that it was COD “at end of pour.”OK. So I do my normal thing. I call the customer (the contractor), and he says he’s driving from his home to the job site, and for me to go ahead and send the concrete. This was three fully loaded concrete mixer trucks, each one with 10 cubic yards of concrete on it; these things weigh, when fully loaded, at least as much as a fully loaded regular tractor-trailer combination truck: 20 - 30 tons each.If I remember, the after-tax cost of this material delivered was around $4,200 to my customer.PROBLEM: The contractor’s customer would not allow our trucks onto his property to pour the concrete that day.We, the concrete plant, had done nothing wrong; my customer, the contractor, said send the concrete. What he had not done was call his customer, who would’ve said don’t tell them to send the concrete.You can’t “store” concrete, so when one of the drivers let me know there was a problem, I told the driver to make sure he didn’t leave without getting payment from our customer, and that I’d call our customer to figure out what he wanted to do.So, I called our customer, and I extended condolences; I asked him if he would like the concrete delivered someplace else, because — it was just business — he owned that concrete, and I was going to require him still to pay for it, even though he could not use it at that job site.CUSTOMER’S RESPONSE: Send it back to the plant!So, I told the concrete drivers to come on back to the plant, and we disposed of the perfectly good concrete. What a shame.What was more of a shame was that our customer jumped in his truck and left without giving the driver a check for the concrete!—It would have been within my power to call the local police department and report this as a theft of property, in which case there was a good chance the man, who was a preacher, would have been arrested for committing a felony.I chose not to do that; in not doing that, I forfeited my ability to pursue this matter, in all likelihood, via a criminal route. I had thus committed the company to a civil collection route.So, I sent the man a bill. I called him, and we talked. — After a while, I received no money, so I sent him another bill, and called him, and we talked. This time, he was a bit more confrontational. It was beginning to seem that he had no intention to pay for this concrete.So, after a while when he had not come in to pay, I sent him a demand letter. In some jurisdictions, sending a demand letter may be required prior to filing a lawsuit. If I remember correctly, this used to be the case in Texas, but I do know, now, it is no longer the case.Sending demand letters is just a traditional first step in the collections process. Attorneys write demand letters all the time, and in this situation, as in many, if you bought an attorney’s time to write you a demand letter, for this amount of potential loss, you’re buying the firm’s letterhead and the attorney’s signature. — Nothing more. You can do this yourself.You simply explain what the controversy is — You ordered something and didn’t pay for it. I demand payment, or else I will file suit against you in the court with jurisdiction, and in the eventuality that you lose, you will owe not only the money I’m asking for, but also my court costs, and I’ll ask for interest on the money owed, at the maximum statutory rate (in Texas, that’s 18% per annum), and the civil judgment against you will be picked up by the major credit reporting agencies, and your credit will be affected until you have paid the debt, and potentially even afterwards. Please contact me by ________ to discuss payment terms, or on _______ I will file a lawsuit against you.It’s best to send these demand letters USPS certified mail, and USPS priority mail with return receipt. You end up having two identical demand letters. The first is the original, and you send that certified mail; that requires the person, or some adult present, to sign for the letter. It may be to your benefit, if you do end up in a trial, that you can prove the defendant/respondent knew the possibility of a lawsuit was present.The second, which you send regular mail with return receipt, is a copy of the original letter — stamp COPY on it. See, people tend not to accept certified letters. They don’t want to sign for them — they don’t want to acknowledge they know a lawsuit is impending. So, you send a version of the letter that the other party really can’t refuse the delivery of, and the postman sends you back return receipt attesting that he delivered the letter.Really, neither of these proves the other party read the letter; it just gives you opportunity to ask the other party why he didn’t read the letter, if he received it.To win a civil judgment, you do not have to prove beyond a reasonable doubt that someone did something. The standard is more than likely.Being unwilling to read a letter that “looks important” — arguably — is consciousness of guilt. Whether a judge would allow you to say that, or whether a jury would believe it — means nothing.Our goal here is to stay out of court. So, the question is — Would the guilty other party think that his unwillingness to read the letter was consciousness of guilt?It’s a mind game. That’s the trick. That’s why you do it.—So, next — per usual, the certified letter got returned as no one signed for it, and the return receipt came back showing that the copy of the demand letter was delivered. The other party, my customer, did not respond by the date on the demand letter, so I filed a lawsuit against him in the local small claims court.I believe filing a small claims suit cost $40; then, you have to pay someone to serve the defendant with notice he has been sued (and when to show up to defend himself); in Texas, that’s often done by a constable. That costs $70 - $80. So, to sue the man cost me, up front, $110 - $120.So long as I didn’t hire an attorney, it would likely cost nothing else. So, you do a simple cost-benefit analysis. I can wager $120 and, if I win, I will get $4,200. I thought that was a good bet.—A constable is an officer of the law. This person can arrest you; he likely carries a gun. When someone like that comes knocking on your door, constantly, or comes to your job, and serves you there — in front of everybody…Think about it! The constable could have shown up to the man’s church, at which he preached, and served him in the middle of a church service — that he was being sued for nonpayment.Good human beings respond with fear when an officer of the law comes up and serves you — Hi. You are being sued.It has the effect, you hope, of making the other party start speaking to you again.It worked.—The man was served, and I received notice that a trial date had been set. During this time, the customer/defendant had called me.What I say next is what I usually do with people. The first part is also a trick. I’ll bold it.I offer to allow the person to enter into a payment agreement, in which, if all monies owed, including the court costs — and even repayment for the postage on the letter he didn’t even read!!! — are paid by a certain date — that I will drop the lawsuit.He must make a down payment on the payment agreement.—This is a trick. The down payment is a trick.Signing the payment agreement is not really a big deal for either party. Paying anything toward the debt — $1! — anything — proves that the debt is legitimate.If ever, before, the defendant had wanted to argue that the amount I was demanding was wrong, he flushed that ability down the toilet the moment he made a 1/3 down payment — which is (the amount I say you owe)/3.In this case the man made a down payment of 1/3, and then paid 1/3 for the next two months. There is no meaning to 3 payments in the payment plan; it’s arbitrary; it fit these circumstances; it is just the historical truth from this example, which is a real example.You could choose a 12-month payment plan for the customer, if you wanted. However, the longer the payment plan, the more trouble you may have with the judge. Which, I’ll get to presently.—MAIN POINT: Customer first said, I don’t owe you a dime. Then, you create a payment arrangement, which both of you sign, and in it is a quid pro quo.This is contract law.I, the owner, offers todrop a lawsuit against you if you pay;forego any claims for statutory interest on the debt you owe.The customer/defendant offers tomake a down payment, the amount of which is figured as a fraction of the amount the owner decides is owed (which now means the defendant agrees is the amount that is owed); and,in the event he does not pay all of the money, on-time, as promised, then he will owe interest on the entire balance, from the time of the original incident (i.e., when the concrete was ordered and attempted to be delivered) until the time it is paid, in full, to the company.That, in and of itself, is a legally binding contract.—Did it ever occur to you, before this point, thatI had no contract with the customer/defendant about the cost of the concrete; the terms of when it would be delivered; about anything?Not only had the man not given a check to the drivers; he had not signed the delivery tickets showing that we were even there!—In effect, if I had gone to trial, I would’ve had to subpoena (or depose via affidavit) his customer, whom I didn’t know! — that we were there with concrete.Or, I guess, I could’ve brought the three drivers to the courthouse… meaning the plant would be shut down for the day, or some of it.What about the # of cubic yards on the truck?The bill was determined as (# of cubic yards) * (selling price per cubic yard).I would claim I delivered him 30 cubic yards of concrete. — The defendant never saw the concrete.How do I prove what was on the trucks? — Lord, for all the defendant knew, the trucks could’ve been filled with air!—These are major obstacles to being able to win this lawsuit against him — which I filed.However, the moment he gave a down payment on that payment plan, it was no longer about the original incident. It was about a contract we signed some 3 months after the original incident.The payment plan is only notionally about the “failed” delivery of some concrete.Think about that.And why is not the signature at the bottom? — Why is it the down payment?—See, I can give you a loan for $1,000, and you and I can sign a “contract” saying that you agree to pay me back $1,000.There is not quid pro quo. I don’t get anything back for doing something for you. You just offer to repay me for what I gave you. That sounds sort of like a return of a gift.That’s a problem, legally. If you ever wondered why many contracts, including loans, have interest provisions, that’s why.If instead, I had said in the loan agreement — In exchange for loaning John D. Doe $1,000, John D. Doe agrees to pay Jared the sum of $1,000 plus the maximum interest allowable under the law for the term of the loan, which shall not exceed six months —something like that!Am I required to receive any interest from John? — No. If I want to forgive that interest when I have my $1,000 back in my hand, that’s my choice! But, there’s no doubt that this was a loan.Because gifts don’t have interest rates.—Having this concrete customer make a down payment, the amount of which was determined based on the figures I had for what he owed — that established the amount he owed; it was no longer a controversy.The interest provision in the payment plan made the payment plan, signed by both of us, a legal contract on its own. — It dissociated it from the unsigned delivery tickets; the notional volume of mixer trucks on some past date… blah blah blah.It made my civil case a slam dunk.—Can the customer now argue with me about what he owes? — He agreed to that in a contract.Can the customer now say he doesn’t owe me anything? — Well, if that’s true, why did you pay him anything?His signature and down payment on that payment plan won my civil case for me, and I never had to go to court.However, if I had gone to court, my primary evidence would have been the payment plan, not documents from the day of delivery, or testimony from drivers, who should be out delivering concrete to other people.And most customers have no idea that they’ve just done that when they signed the payment plan.That’s why they need lawyers; if I were on their side, I would suggest they speak to a lawyer before speaking to “Jared.”Of course, I don’t represent them; I represent the company, and if they want to own up to their own guilt, then I’d say I did a good job for the company, and they’re doing a good job for their conscience.—What about the court, and the judge?This is why a 12-month payment plan is probably not a good choice. Even the 3-month payment plan I made with the defendant, in this case, was somewhat problematic.Because, remember? — A trial date had already been set!Courts have dockets, and judges like to “clear them.” Also, there’s still the notion of a speedy trial, to some extent, in civil law, — that the defendant/respondent has the right to have this trial not hang over his head for the rest of eternity.At some point before, I had to figure this piece out, because I am not an attorney, and I’m not trained in the law. I was able to call up to the court, and the judge took my call, and I mentioned to him a continuance.He told me — Continuances are really supposed to be requested prior to the setting of a trial date.—So, I have a payment plan that gives the customer until, e.g., December to pay me back what he owes, but our trial date, e.g., is in November.How can I dismiss a case in December that has already been tried in November?—The term that pops up is — I was just reading a district court civil docket the other day, and it said, in BOLD LETTERS, signed by the judge (a much more formidable judge that a Justice of the Peace — this man, in Texas, signs death warrants). It read —CASES WILL NOT BE PASSED TO A FUTURE DATE WITHOUT COMPELLING REASON AND A HEARING TO DETERMINE THAT SUCH REASON EXISTS.Depending on your judge, you might have to present your motion for continuance (or delay) — or whatever it’s called — in person, with both parties present.I’ve never had to do that. It may be because the small claims courts I’ve dealt with have tiny civil dockets. I think this case was one civil case out of maybe 32 that judge heard per year.So, I just had to work up my compelling reason, and this was one more thing I did for the defendant, which would count as quid pro quo in my opinion.—I wrote up and faxed to the court a Motion for Continuance — for one month or two months, whatever it was that would have allowed the defendant to satisfy our payment plan in a timely fashion.I told the Court I had secured a payment arrangement with the defendant. It was in the mutual interest of the plaintiff and defendant that the payment arrangement be allowed to run its course, and that I had faith it would due to my prior relationship with this customer, due to his down payment, and because I would like to retain the defendant as a customer in the future. — While we had a controversy at this moment, that did not mean our business relationship would cease, in the long run, if the defendant/customer did what he said he was going to do, and due to his character as a minister of faith and my past experiences with him — over a $100,000 worth of business, all of which — until now — he had paid in an acceptable fashion — it was my belief, as fiduciary and agent of the company I worked for, that it would be in our interest to allow him to fulfill his payment plan arrangement, and that — I had spoken with the defendant, in person, when we signed the agreement and he made his down payment, that I would be happy to communicate to the Court that he, also, was in agreement that pushing back the trial date would be in his favor as well.I attached, as a supplement to the motion (evidence), the payment arrangement, along with a copy of his check showing he’d made a 1/3 payment toward a mutually agreed-upon amount of money, which was the same amount I was seeking at trial. I also offered to submit an affidavit signed by the defendant if the Court so required it, but since we did not employ a Notary Public, I did not have the defendant sign anything in addition to the payment arrangement, because I hoped the Court would infer, from the arrangement, the defendant’s request (or agreement with my) Motion for Continuance.And, the real way you say this — is you plead the Court to do something.You end by saying —I, J. Maloney, ___ of _____, in the interest of justice, plead the Court to consider this motion, which I submit is mutually agreeable to both parties in the suit numbered ____, and to reset the trial date for the aforementioned suit to <insert date>, or to whichever date the Court feels is appropriate given the pleadings and evidence I have herein provided.—The judge did not require the defendant to say anything. It was plain, from the payment plan (which the defendant signed), and the check the defendant signed (in the same signature), that the defendant would want to be able to complete his payment plan obligations, rather than to be in court. — Had I sent the motion without the supplement (the evidence), would the judge have gone for it? — Doubt it.If I remember, the judge reset the court date to very soon after the payment plan would expire, so that either I would come up and dismiss the case, or we’d go to trial because the defendant had not paid.In reality, the customer did pay on time. However, if he had not paid on time, then I would’ve had to go to trial, or plead the Court to reset the trial date again. I’m pretty sure the judge would have denied that second motion, and told me to dismiss without prejudice, and if I wanted to refile in the future, then I could do that.Now, to do that, I’d have to repay the $110 - $120. — That’s why you seek to reset the date or continue the case, or whatever the term is. So long as you can do that, you don’t have to repay the filing fees and process server fees.Is a judge going to let you do this for 12 months? — I doubt it.—What if the judge had denied the motion?Well, you would go up and dismiss the case without prejudice. And, I’ll point out, filing a case is your prerogative. Having a case dismissed — that’s the judge’s prerogative. — You can’t dismiss a case yourself!You have to plead the Court to dismiss the case without prejudice.If the judge had only been willing to dismiss the case with prejudice, you’d be in trouble. You couldn’t go to trial, because your contractual payment plan said you would not go to trial for some time period. — That’d be bad.If the judge had agreed to dismiss the case without prejudice, then you’d just have to dismiss.In either case, you’d be hoping the defendant (or ex-defendant aka customer) would stick to his promises. If the case had been dismissed with prejudice, then you’d be in a land that likely you’d need an attorney to guide you through.—I can explain that by going through what would happen if you had to dismiss the case without prejudice, because the judge was not willing to continue the case any longer, but was willing to dismiss it without prejudice.If the customer defaulted on the payment plan, then you could refile the case; pay the money again; and, this time you would not be arguing on grounds the customer had failed to pay at time of service, per oral arrangement; you’d be arguing the customer violated a contractual agreement.So the basis of your suit would be somewhat different. Rather than — the customer ordered this and failed to pay on ____ — you’re arguing — the customer is in default of contractual agreement.The latter is much easier to win than the former.—Even though this answer is very long, and that makes it seem like this is difficult — well, it’s nuanced, not difficult.Stay away from collection agencies; I used to work at a law firm that had one attached to it, so I know collectors.Be cunning in your collection manners; use your local small claims courts.And, to end the story — the customer/defendant completed his payment plan, and paid me everything he owed, plus courts costs. I successfully dismissed his case without prejudice the day after he completed his payment plan. AND — the moment his payment plan was paid off, he asked me, “Jared — you think I can get some concrete tomorrow?”I said, yes! — But, you have to prepay.Good luck to ya.