A property owner or landlord is required to give you a written notice to vacate before filing an eviction lawsuit. After you received the notice to vacate, consider whether or not you have any defense to stay in the premises as discussed below:
- You may not have violated the lease as claimed.
- You may not have been given a proper notice.
- There may have been a miscalculation about the rent owed because of the abuse of late fees.
You are served with an eviction suit and a notice of hearing
The hearing is usually 4 weeks after the date of filing in the local Justice Court. If any of the court papers you received is called something like “Bond for Possession” or “Possession Bond pursuant to Rule 740” you have to demand a trial; otherwise, the property owner or apartment complex manager can obtain possession of the premises without a hearing. You must demand the trial in writing within 6 days of receiving the court papers.
File an Answer
All of the Justice Courts are online in Harris County. You should call the clerk and also check online to verify the hearing date. Read over Judge’s rules of appearance in that court. Always file an answer within 5 days and serve it out via certified mail on the landlord or the landlords attorney.
Justice Courts are not courts of record. You do not have to be a lawyer to be a Justice of the Peace, but most JP judges are licensed attorneys in the metro areas of Texas. I have not heard nor read of any Justice Judges in Harris County not being licensed attorneys. Take your copy of the apartment lease agreement, any pictures, letters, documents, receipts, or witnesses to show the judge as the evidence. You need to bring live persons with you if you want the court to hear what they have to say.
The JP Judge will render a decision after hearing the case. If the property owner wins, you have five days to appeal the decision or have to move out. If in these 5 days you are not out of the property, then they could lock out the premises and if you go to the residence, you may get arrested.
Filing Bankruptcy To Stay The Eviction
If you file a bankruptcy after your landlord has already obtained a judgment for possession of the residence, then filing a bankruptcy will not help you to stay in the residence. If you file a bankruptcy before your landlord has obtained a judgment for the possession of the property, then the automatic stay stops the landlord from starting the eviction proceedings and stays any proceedings that are pending. The landlord is required to file a motion for relief from the automatic stay to proceed with the eviction. Bankruptcy judges will usually grant the landlord’s request but this gets you about another 2 months in the property instead of 5 days.
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A Texas creditor who has a secured interest in your collateral such as television, appliances, electronics, or automobile, has the ability to take your property if you default under the terms of the contract. The creditor is not allowed to breach the peace nor enter your home unless you permit them to enter. If you are not answering the door, the creditor can petition the state court for a writ of replevin. In creditors’ rights law, replevin, sometimes known as “claim and delivery,” is a legal remedy for a person to recover goods unlawfully withheld from his or her possession, by means of a special form of legal process in which a court may require a defendant to return specific goods to the plaintiff at the outset of the action (i.e. before judgment). Repossession of personal property in Texas can be stayed by filing either a chapter 13 or a chapter 7 bankruptcy. In a chapter 7 bankruptcy, you are required to either surrender the property, redeem it, or reaffirm, but this is done during the bankruptcy process When the case is first filed, there is a window of about 75 days before you must act to do one of the above three acts mentioned.
In a chapter 13 bankruptcy, you can stay the repossession of the collateral and also could cure it over time. Thus you may be able to lower the interest or principal owed on the property that is being paid in the bankruptcy. This is called a “cram down”. Cram down sometimes can be on Houses if there is a 2nd lien or a homeowners association debt outstanding.