Res Judicata and Collateral Estoppel; Collection and Enforcement of Judgments

Question 1

Res Judicata

Answer 1

Claim preclusion, claim is barred by previous judgment; sometimes called merger and bar
Needs: Previous final judgment covering same facts (same claim, same facts, or “diligence” rule (closely related claim) between same parties, their privies, or their predecessors

Question 2

Res Judicata approaches

Answer 2

1. Transactional- defines breadth of claim for res judicata to embrace all the remedial rights of a plaintiff growing out of the relevant transaction or series of transactions
2. Broad procedural duty- plaintiff has duty to join all related claims

Question 3

Collateral Estoppel

Answer 3

Issue preclusion
Needs: 1.Previous final judgment
2. between same parties, privies, predecessors (some courts only require party to be bound by estoppel by the same)
3. involving an adjudication of an issue in the prior suit which is an issue in the present suit
4. Which is material to both judgments

Question 4

Satisfying judgment with property

Answer 4

The federal rules simply adopt state collection procedures; Execution, Post-judgment garnishment, Liens, turnover; foreceable entry and detainer, eviction, writ of possession

Question 5

Execution of judgment

Answer 5

Having a final judgment, plaintiff issue a writ of execution for the seizure and sale of goods (In Texas, it is a ministerial act and the clerk issues); Procedure, limits, exemptions, execution

Question 6

Procedure of execution

Answer 6

Sheriff advertises, then seizes property, then sells at advertised sale

Question 7

Limits of execution

Answer 7

Value of property must bear reasonable relation to judgment; if real property, sheriff is supposed to subdivide. If debtor specifies order of property sold, sheriff must honor designation

Question 8

Exemptions to execution

Answer 8

extensive in Texas, e.g. homestead exemption applies to both home and business property; automobile; furnishings; etc.

Question 9

Post-judgment garnishment

Answer 9

to get at a debt owed the debtor controlled by a third party (technically lawsuit against third party as garnishee; ancillary and separately numbered claim; defendant needs to be given notice and opportunity to appear, but theoretically third party is the defendant), e.g. to collect on bank deposits; cannot use on wages in Texas (except for child support)

Question 10

Liens

Answer 10

By abstracting judgment and filing it of record in the county, can make it into a lien on realty in county (file in every county you believe there is real property.) Increase chance of collection because it places encumbrance on defendant’s real estate in the county (like a mortgage; if property is sold, lien follows). Purchasers take subject to judgment debt; Way to get around homestead act.

Question 11

Liens: problem of priorties

Answer 11

first in time, first in right; purchase money creditor will have priority; so will prior judgment creditors; IRS if filed before; important for your lien to be first in line

Question 12

Turnover

Answer 12

Allows broad use of court’s equitable powers if no adequate remedy at law, on property that can’t be reached by execution

1. Property that is mere expectancy; afraid defendant will get rid of it before you can execute on it; court orders defendant to hand it over to court as soon as he receives it
2. Property on foreign jurisdiction

Question 13

Discovering assets

Answer 13

Records; discovery methods, i.e., take debtor deposition, interrogatories, request production of debtor’s financial records, etc.

Question 14

Provisional remedies types

Answer 14

Attachment, garnishment, lis pendens, TRO and temporary injunction, sequestration, etc.

Question 15

Attachment

Answer 15

Separate remedy is provided to unsecured creditors allowing seizure of a debtor’s property, even if the creditor does not have a specific security or other ownership interest, provided that the creditor makes a satisfactory showing of emergency need under the appropriate statute

Question 16

Pre-judgment garnishment

Answer 16

files suit against 3rd party for property in hands of 3rd party;

Question 17

Lis Pendens

Answer 17

Notice of lawsuit concerning property; discourages transfer of title

Question 18

TRO; lawyer needs

Answer 18

Complaint, TRO, Restraining order bond, filing fee

Question 19

TRO process

Answer 19

1. Lawyer needs 2. Greasing the skids 3. Prepare the papers 5. Hearing, Filing, Follow-up

Question 20

TRO order should

Answer 20

track complaint, define the injury, stating specifically why injury is irreparable, stating why order was granted without notice, providing for the posting of a bond as prerequisite, specifically setting out the act enjoined, specifically stating the order is binding on the parties, setting a date, within 10 days, for a hearing on application for temporary injunction

Question 21

Replevin

Answer 21

Sequestration, seizure of property on application of a person entitled to its possession; sever remedies for wrong seizure

Question 22

Fuentes v. Shevin

Answer 22

state action seizure of property is unconstitutional (even to protect a property right or creditor’s interest) unless there is notice and opportunity for a prior adversary hearing (Bond and prompt post-seizure hearing not enough)

Question 23

Fuentes reasoning

Answer 23

creditor has no protectable property interest even if has security interest

Question 24

Private repossession is

Answer 24

not state action.

Question 25

Subsequent sequestration cases

Answer 25

Mitchell v. WT Grant indicates seizure prejudgment without notice and hearing is constitutional if it based on sword testimony before neutral office, prompt seizure hearing opportunity provided, bond filed by plaintiff for damages; if these safeguards are absent, Fuentes applies

Question 26

Texas Sequestration statute

Answer 26

Sworn application (entitlement of property and need for the prejudgment writ); Notice with seizure; must show probable injury (you own, you have right to it, and won’t be able to collect debt at the end); defendant can get property back by filing replevy Bond and has right to 10 day hearing