Res Judicata and Collateral Estoppel; Collection and Enforcement of Judgments Flashcards
Res Judicata
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
Res Judicata approaches
- 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
- Broad procedural duty- plaintiff has duty to join all related claims
Collateral Estoppel
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
Satisfying judgment with property
The federal rules simply adopt state collection procedures; Execution, Post-judgment garnishment, Liens, turnover; foreceable entry and detainer, eviction, writ of possession
Execution of judgment
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
Procedure of execution
Sheriff advertises, then seizes property, then sells at advertised sale
Limits of execution
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
Exemptions to execution
extensive in Texas, e.g. homestead exemption applies to both home and business property; automobile; furnishings; etc.
Post-judgment garnishment
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)
Liens
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.
Liens: problem of priorties
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
Turnover
Allows broad use of court’s equitable powers if no adequate remedy at law, on property that can’t be reached by execution
- 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
- Property on foreign jurisdiction
Discovering assets
Records; discovery methods, i.e., take debtor deposition, interrogatories, request production of debtor’s financial records, etc.
Provisional remedies types
Attachment, garnishment, lis pendens, TRO and temporary injunction, sequestration, etc.
Attachment
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
Pre-judgment garnishment
files suit against 3rd party for property in hands of 3rd party;
Lis Pendens
Notice of lawsuit concerning property; discourages transfer of title
TRO; lawyer needs
Complaint, TRO, Restraining order bond, filing fee
TRO process
- Lawyer needs 2. Greasing the skids 3. Prepare the papers 5. Hearing, Filing, Follow-up
TRO order should
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
Replevin
Sequestration, seizure of property on application of a person entitled to its possession; sever remedies for wrong seizure
Fuentes v. Shevin
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)
Fuentes reasoning
creditor has no protectable property interest even if has security interest
Private repossession is
not state action.
Subsequent sequestration cases
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
Texas Sequestration statute
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