93.1 KISS FM – Ask A Lawyer, Part 1

Announcer: You are listening to Mike and Tricia Mornings, 93.1 KISS FM.

Mike: It’s called “Ask a Lawyer.” It’s our new monthly feature with special guest, Michael Gopin. It starts today. It’s your opportunity to get legal advice on problems you may have and anything related to personal injury law from a qualified professional.

Tricia: Okay. So on the KISS FM free mobile app, we have got a question from Jasmine, and she said she was in an accident. She was rear-ended about a year ago. Before the pandemic, she didn’t have a chance to hire a lawyer. She said her car is still not fixed and the person who hit her isn’t answering her calls, and now she can’t get a hold of the evil insurance adjuster, so she wants to know, is it too late to try and be compensated for the damage?

Michael: Yes, that’s a very good question. No, it’s not too late. You have two years from the date of the accident to bring a claim or bring a lawsuit actually against the person who caused the accident. So it’s not too late.

Now, certainly, the insurance company, as I know from experience, likes to dodge things and not answer the calls and puts you off, but certainly, you can go to a lawyer and seek to get your proper damage fixed. And if you were injured, I don’t know by the question if you were hurt or not, but it’s not too late for that also. But if you haven’t been to the doctor and it’s a year out, you know, then it’s probably not gonna be a very strong case for anything in terms of personal injury because you hadn’t treated yet. So it’s not too late, so you can certainly call a lawyer.

Tricia: Okay. The second one off of the KISS FM app, this person says, “I have a notarized agreement signed by a person who owes me money. He’s now refusing to pay and I was wondering if I need to take this to small claims court.”

Michael: You certainly can take it to small claims court. For that type of case, you have a little bit more time. You have probably four years from the date of the contract or the notary agreement to file a claim in a small claims court. The problem that you’re gonna run into is collection.

So let’s just assume for this question that you win your case and you have a judge say, “Pay me $1,000,” or whatever the amount is owed, you’re still gonna run into the same problem of collecting the money from the person who owes it to you. They can’t throw you in jail or do things like that for not paying the money, so that’s the difficult part. So that’s where you’re going to have a problem.

Mike: But if you have a claim against a person that somehow you can be able to collect eventually, can’t you?

Michael: Just depends. In Texas, you cannot take away their home. You can’t take away their car. You can’t take away a certain amount of personal property. So most people in Texas are called what they call judgment-proof, which means you can have a judgment against them, but there’s no way to be able to collect it or enforce it. It’ll stay. So if they, at some point, own more than one piece of property or have more wealth…

Mike: Or win the lottery.

Michael: Or win the lottery, then you can collect. And the judgments are good for 10 years at a time and you can renew them so they can last for a lifetime, but it’s a lot of work and there’s certainly no guarantees that you’re gonna recover. So that’s the problem a lot of times with cases that there’s no insurance at all because most people in Texas are protected by the homestead laws and the laws regarding creditors, so it’s a tough issue.

Mike: I know that this one, it was like a person to person kind of thing with a notarized letter saying, “I borrowed this, and I owe you this.”

Tricia: “I’ll pay you back.” Yeah.

Mike: Does it work the same way when you sign a contract with a business?

Michael: Same way, same thing.

Mike: So if I signed a contract saying I would pay the window installer a certain amount and they install the windows and then I default on the payment, it would work the same way? They could come after me, but they’re not necessarily gonna get my money if I don’t have it?

Michael: The question in that type of case is, was there a mechanics lien filed because that would protect them also. So if they did a lien and did things proper on their end, they may have some additional rights that you’re not gonna get around because there’ll be a lien on the house or the home.

Mike: That’s what a mechanics lien is.

Michael: Correct.

Tricia: For the work done, yeah.

Michael: Yeah. So that would be the question. If they did it legally and properly to preserve a lien, then the person would owe the money and they really can’t get out of that debt because when the house is sold, the lien is gonna pop up and it will be paid.

Mike: So, I mean, it’s not like they can’t take your house away but…

Tricia: Right. But eventually, if you sell your house…

Mike: One of these days, someday, part of your estate or whatever, that house is gonna have to change hands.

Michael: Correct.

Mike: And that’s when.

Tricia: And that happens all the time. My dad does probate law. Yeah. My dad does probate law and that happens all the time. People, you know, the heirs are like, “Hey, wait a minute.”

Michael: “We didn’t know we had that debt.”

Tricia: “I didn’t know that there was a $50,000 lien against my dad,” you know, whatever. But this, it kind of illustrates that even though you think to yourself, “I have this piece of paper, it’s notarized. You say you’re going to pay me back. I’m going to get this money.” If you don’t go and spend a couple of hundred bucks on an attorney to make sure that you’re writing, whatever it is written correctly to save, you know, both of you guys, then you really do need to go see that lawyer. A lot of people think, “I don’t need to do this. Come on. It’s written on a piece of paper, everybody’s signatures are on it and stuff like that,” but that’s not the case.

Michael: That’s not the case because the paper is only good as, you know, what it’s written on. So, you know, you have to be able to collect, you have to be able to have some protection. That’s why with a car, for example, you have a contract with a car, would they have a lien on the car? So that’s the bank’s collateral.

And in the case of this person who lent the money out, there’s no collateral. There’s no lien. They have a duty, a moral duty, and a legal duty to pay it back, but it doesn’t mean that they’re going to actually get it because of the collection laws.

Mike: Okay. So then, like, I don’t even know if you could answer this, but so then how would a person in this kind of situation go about making sure that he wouldn’t be in this kind of situation? Is there something on top of a piece of paper with a signature saying…

Tricia: Like if you owed somebody’s money.

Mike: Yeah, “I promise that I’m going to pay you the money back, brother-in-law.”

Michael: Well, you can attach it to something, you know, real estate, for example. Not your home. The home has special laws to protect it, so you can’t necessarily give away someone a lien unless they really are proper in what they do, and that’s pretty difficult to do.

But you know, you could have your car as collateral for a loan. So, you know, you can put them in the title, you know, for the cars that they have a lien on that. So that would be the only way to protect yourself. Or you could, you know, if they’re borrowing money, you could take jewelry or something as collateral or something that you have in your possession that’s valuable to protect yourself, otherwise, blind trust.

Mike: Otherwise, they don’t pay, you keep it. Okay, all right.

Tricia: Yeah. And so, okay. So the other question that a lot of people ask is, “So can I get a free consultation?”

Michael: Most lawyers give free consultations. Not all. I know in family law, typically there is a charge for the initial consultation. For our office, for all personal injury-related, you know, ideas, or possible cases, we certainly give a free consultation to them. These days that would be, you know, by phone or Zoom as opposed to in person, but yes, certainly you can get a free consultation with any questions that you may have.

Mike: Okay. All right. Let’s take a break, and then when we come back, I know you also have an ebook that people can access and learn a little bit more about your services.

Michael: Sounds good.

Mike: So we’ll talk about that next, 93.1 KISS FM, it’s “Ask a Lawyer” with our special guest, Michael Gopin.

Michael J. Gopin

Michael J. Gopin has practiced law in El Paso since 1987. Even after more than 30 years, he still remembers his first jury case. It was two weeks after receiving his license, when he represented a person whose life had been forever changed after being blinded in a work-related incident...