2. Learning
Objectives
What are civil law matters?
Evictions
LegalAid ofTexas
Foreclosures
Bankruptcy
See video under content:What Actually HappensWhenYou
File for Bankruptcy?
Family matters
Child Support
Lawsuits and malpractice claims against SocialWorkers
Read: Ethical Misconduct and Negligence in SocialWork
3. Civil Law
Matters
Non-criminal court actions are considered civil.
Anyone can sue anyone in civil court over any thing. It is for the
court to determine whether such a suit is legitimate or frivolous
(meaning worthy of review by a court under the law).
To win, the plaintiff (suer) must establish the respondent’s (suee’s)
liability according to the "preponderance of evidence“ (majority of
the evidence) and respondents are not entitled to the same legal
protections as those accused in the criminal system
Penalties in civil court are mostly monetary in nature (e.g.
payment of a fine, repayment of a debt, etc.)They may also result
in court order making one party to perform an action (e.g.,
landlord allow tenant to stay, parents to come up with a visitation
schedule, etc.)
Penalties in civil cases do not result in incarceration (unless the
person is found guilty of contempt of court and order to be held
until the produce a document or act in a way ordered by the court)
4. Civil Law
Matters
Civil Law matters include:
Divorce
Child Support orders
ChildVisitation order
Defamation - (including libel [written word] and slander [spoken
word]) – making disparaging remarks about another
Breach of contract (Failure to follow a written agreement)
Wrongful death (Negligence resulting in injury or death)
Property damage
Foreclosure
Eviction
Bankruptcy
5. Evictions in
Texas
An eviction is a lawsuit filed by a landlord to remove persons and
their belongings from the landlord's property.
a.k.a. "forcible entry and detainer" or "forcible detainer" suits
The number 1 reason for an eviction is non-payment of rent
followed by breaking the letter of the lease contract in some other
form like staying past its expiration date
As long as a landlord is not discriminating in violation of the Fair
Housing laws, or retaliating in violation of theTexas Property
Code, a landlord can refuse to renew a lease for any reason
6. Evictions in
Texas
Step by Step
Step #1> Notice.
The law requires the landlord to begin the eviction process by
notifying the tenant he/she needs to vacate the property
The notice must be in writing or the court will not allow the landlord to
file the eviction
Step #2> Filing with the court
If a tenant refuses to move, the landlord must file an eviction case
with the J.P. court to get approval to remove the tenant
Step #3> Service of filing
Once the suit for eviction has been filed, the tenant must be served
with a copy of the filing (eviction papers).
Service is usually done by the a constable or a sheriff’s deputy
Avoiding service does not delay the process
7. Evictions in
Texas
Step by Step
Step #4>Tenant needs to answer the filing
The filing should have the date set for a court hearing
The tenant should contact the clerk of court to get confirmation on
the court date and an answer form for the filing
If the tenant does not answer or appear by the deadline given in the
eviction papers, the court will award a default judgment against the
tenant automatically
Step #5> The court hearing
At the hearing the tenant will need to be prepared to present their
side of the story.
The tenant should take a copy of the lease, any pictures, letters,
documents, receipts, or witnesses (in person) to show the judge as
evidence
The judge or the jury will make a final decision after hearing the
case. If the landlord wins, the law allows the tenant five days to
appeal the decision or move out. If tenant wins, the landlord also has
five days to appeal the decision.
8. Evictions in
Texas
As social workers, we need to know that evictions take a few
months before taking effect
Tenant will normally not need to move out right away after they
are notified of the filing
Many tenants do not know that they should receive the eviction
notice in writing before the eviction process starts
This is helpful to us SocialWorkers as we try to find them housing
elsewhere
Evictions are serious matters that affect the tenant’s ability to
secure housing in the future.They should be advised to seek legal
counsel
LegalAid offices offer free legal advise and an attorney to
represent the tenant in these types of matters free of charge
9.
10. LegalAid
Programs in
Texas
The federal government, through the Legal Services Corporation
(LSC), funds three legal services programs that serve every county
inTexas: LegalAid of NorthWestTexas, Lone Star LegalAid and
Texas RioGrande LegalAid.
The three LSC funded programs provide a wide range of civil legal
services.
Over 40% of the cases handled are family law cases. Most other
cases are in the areas of housing, consumer law, employment,
public benefits, or issues affecting the elderly.
Due to federal restrictions, these LSC funded programs cannot
handle criminal cases or immigration cases, except for
representation of immigrants who have been victims of violent
crime.
11. LegalAid
Programs in
Texas
LSC funded programs must refuse service to any applicant whose
income is above specific federal poverty guidelines.
In most situations, the family income must fall below 125% of the
federal poverty income guidelines. But in some situations, the
family income can be up to 200% of the poverty guidelines. So
even if your household exceeds the 125% guidelines, you should
still apply
12. Foreclosure in
Texas
Foreclosure is the legal process that a lender (banks) uses to take
possession of property when the borrower has not made
mortgage payments. Banks use foreclosure to remove borrowers
from their homes.
Most loans from a bank must be 120 days delinquent before
any foreclosure activity starts.
However, smaller lenders can sometimes start foreclosure even if
you are only 1 day late.
The lender is only required to send you two notices before
a foreclosure sale.
13. Foreclosure in
Texas
There is a 3-steps process to a foreclosure:
1. Notice of Default – Demand Letter – By law, the lender/servicer is
required to send a written notice allowing you 20 days to "cure" (pay
in full the amount owed) to bring the defaulted loan current. Some
loans increase this period to 30 days (most FHA,VA and home equity
loans).
2. Notice of Sale Filed, Posted and Mailed – Next, the law requires at
least 21 days’ written notice of the date on which the foreclosure sale
(auction) is to take place. Failing to collect certified mail will not stop or
invalidate the foreclosure sale.The foreclosure notice is also posted at
the courthouse and filed with the county clerk.
3. Foreclosure Sale - Foreclosure sales are held at the county
courthouse on the firstTuesday of each month. Anyone may bid.After
the auction, you do not have a right to buy back your property from
the new owner unless it is being sold by a government entity, a tax
lender or for nonpayment of homeowner’s association fees.There are
time limits involved and in some cases you must pay a redemption
fee.
14. Foreclosure in
Texas
Exception to the 3-step process:
If it is a home equity loan, home equity line of credit, a
tax lien transfer loan, or homeowner owes assessments to a
homeowner’s association a court order is usually required before
your property can be posted for sale.
In some instances, an order is also required to foreclose on a
reverse mortgage.
A lawsuit must be filed if a government entity is trying to
foreclose, for example due to property taxes or if it is a
condemned property, etc..
15. Foreclosure in
Texas –
Loss
Mitigation
Loss mitigation refers to ways to prevent foreclosure.
Under federal mortgage servicing laws, in most cases, by the time
a mortgage payment is 45 days’ delinquent, the servicer must
appoint personnel to help the borrower with loss mitigation
If the homeowner is behind in payments, they may file a loss
mitigation application packet
The loss mitigation packet may vary per borrower/homeowner. It
may contain a loan modification, forbearance, or refinancing.
For most servicers, if your application is complete and received at
least 37 days before a scheduled sale, the lender must stop
all foreclosure activities
16. Foreclosure in
Texas
If foreclosure is happening and the previous owner is still living in
the home, the new owner will have to start eviction proceedings in
order to them to vacate the property
This means, the previous homeowner does not have to move out
on the sale date.
17. Bankruptcy
Bankruptcy is a federal proceeding under the U.S. Bankruptcy
Code that helps people who cannot pay their debts get a fresh
start by liquidating assets to pay their debts or by creating a
repayment plan.
Bankruptcy laws also protect financially troubled businesses.
A bankruptcy case normally begins when the debtor files a petition
with the bankruptcy court. A petition may be filed by an individual,
by spouses together, or by a corporation or other entity.
18. Bankruptcy
There are different types of bankruptcies, which are usually
referred to by their chapter in the U.S. Bankruptcy Code
Individuals may file Chapter 7 (the most common form of
bankruptcy filing in the United States) or Chapter 13 bankruptcy,
depending on the specifics of their situation
Municipalities—cities, towns, villages, taxing districts, municipal
utilities, and school districts may file under Chapter 9 to reorganize
Businesses may file bankruptcy under Chapter 7 to liquidate
or Chapter 11 to reorganize
Chapter 12 provides debt relief to family farmers and fishermen
Bankruptcy filings that involve parties from more than one country
are filed under Chapter 15
19. Bankruptcy –
Chapter 7
Chapter 7 bankruptcy is known as a liquidation bankruptcy. Most
of property is sold and used to pay off debts.
Chapter 7 bankruptcy is generally meant for people with limited
incomes who do not have the ability to pay back all or some
portion of their debts.
Certain debts such as secured debts, certain taxes, student loans
and child support will survive your bankruptcy filing. Meaning
there will still be a debt and payments to make after the
bankruptcy is completed
Chapter 7 bankruptcy will stay on the person’s record/credit for 10
years
20. Bankruptcy –
Chapter 13
Chapter 13 bankruptcy is referred to as a reorganization
bankruptcy.The person’s property is not sold if they successfully
complete a court-mandated repayment plan.
A Chapter 13 Bankruptcy can:
Bring up to date missing payments in a mortgage on your home and
stop a foreclosure.
It can reduce the rate of interest on secured loans, such as car loans,
and in some instances reduce the amount that you need to pay on a
secured debt such as a car loan
Will stop a tax levy by the IRS or a state tax levy
Will stop a garnishment order held by a creditor
A chapter 13 plan will pay off the priority amount of the tax debt,
with no interest, discharging old taxes, penalties and interest,
protect assets that otherwise lost in a Chapter 7 bankruptcy filing
And will force the return of a vehicle that has been repossessed
Stay on a person’s record/credit for 7 years
21. Family Law
Matters
TheTexas Rules of Civil Procedure are the rules that apply
generally to the procedures by which a case proceeds in allTexas
courts.
TheTexas Family Code governs issues in family law cases.
TheTexas legislative code can be found here:
https://statutes.capitol.texas.gov/
For the most part, parties will need an attorney when properly
handling family law matters
There is no constitutional right to an attorney in a civil case.
Meaning, there is no constitutional right to an attorney when the
deprivation of liberty is not a consequence that is on the table
Only children, individual of their parents are appointed an attorney
as a Guardian-ad-litem.These attorneys are given the duty of
protecting the best interest of children during the course of the civil
action
22. Title IV-D &
ChildSupport
Division
The Social Security Act of 1975 containsTitle IV is a federal law
that, in part, requires every state to manage a child support
enforcement program
InTX, the Office of the Attorney General is assigned the mission of
managing the child support enforcement program
The federal government provides money to each state to help
support these programs - this is important because many parents
do not have an attorney to help them with child support matters or
know how to establish or enforce a court order on their own.
Title IV-D allows the state ofTexas to help these families by:
Establishing paternity
Establishing child, medical and dental support orders
Collecting child support
Modifying a child support obligation
23. Title IV-D &
ChildSupport
Division
Child Support Review Process (CSRP) is an in-office administrative
process to establish, modify, or enforce child, medical and dental
support obligations and determine paternity.
However, child support cases may be heard in court, if:
one of the parties is a victim of family violence and notifies the OAG
that they have safety concerns,
the parties did not come to an agreement during their CSRP,
one of the parties is a minor, or
the OAG determines that the court process is appropriate in that
case.
The parties will be notified of the filing and court hearing dates
Even though now the case is at the judicial level, the parties may
still work on negotiating terms (at time thorough attorneys)
24. Title IV-D &
ChildSupport
Division
Child Support Review Process (CSRP) is an in-office administrative
process to establish, modify, or enforce child, medical and dental
support obligations and determine paternity.
However, child support cases may be heard in court, if:
one of the parties is a victim of family violence and notifies the OAG
that they have safety concerns,
the parties did not come to an agreement during their CSRP,
one of the parties is a minor, or
the OAG determines that the court process is appropriate in that
case.
How does child support work?
