Attorney David A. Fernandez Defending Clients Against Due Process Violations

A judgment is an official result of a lawsuit in court. The court order typically orders the defendant to pay a certain sum plus court costs and attorney fees despite the defendant not being properly served and having no way of knowing about the lawsuit.

“This type of lawsuit is called a bill of review,” said Fernandez, who has been named to the Top 100 Consumer Litigators in Texas. “According to the Texas Supreme Court, a bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment which is no longer appealable or subject to motion for new trial.”

First, a creditor will file a lawsuit and then has to serve it to the defendant, via a constable who allegedly goes to their home or business and serves them. “Then they file what is known as a ‘returned citation’ that says something like, ‘Dear Judge, I promise I delivered the lawsuit to the defendant at his home at a certain date and time,” added Fernandez, a leader in Harris County in consumer law who has handled thousands of defense collection cases. “Oftentimes, we get clients who didn’t live at the address or were not at the address at the time they were allegedly served. Service was not perfected, however, because the constable said the lawsuit was delivered to the plaintiff, the suit continues until the plaintiff gets a default judgment because no answer was filed.”

In court, Fernandez claims his clients’ due process rights were violated and proves it, stating they didn’t have an opportunity to defend themselves, therefore the judgment should be vacated. “Typically, in Texas, a creditor will get a judgment and the judge will order a statutory interest rate to be applied every year until such judgment is paid off,” noted Fernandez. 

The Law Office of David A. Fernandez is one of very few law firms in the state of Texas that file bills of review. A bill of review must be filed within 4 years of the judgment or if extrinsic fraud shows wrongful conduct outside the trial, such as keeping a party away from the court or making false promises of compromise that prevents a losing party from fully litigating rights or defenses and prevents a real trial on the issues involved. 

“Typically, our clients did not get served because of a defect in the citation or the plaintiff failed to provide the proper address to serve the defendant or the defendant just wasn’t served even though the constable claims he was served,” concluded Fernandez. “When a bill of review has been granted, the judgment is vacated and the underlying case on the debt can continue. Very often, the creditor will not move forward on the case and the case is over at the time of the granting of the bill of review.”

About David A. Fernandez, Law Office of David A. Fernandez

David A. Fernandez focuses his practice on debt defense, bankruptcy, fraud, personal injury, business litigation and wrongful death. He is a member of the Texas Bar Association, Consumer Law Section of the Texas State Bar Association, and State Bar of Texas. For more information, please call 713-893-3244, or visit www.yourhoustonconsumerattorney.com. The law office is located at 2190 N. Loop West, Suite 102, Houston, TX 77018.

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