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Brachfeld & Associates tiptoes away

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I defended myself (all with help from here) against LVNV Funding (and Erica Brachfeld) with:

a timely answer to the complaint,

a CMS,

a case management meeting with the judge,

a demand for docs (discovery), including an arrangement with a local court reporter office to receive and photocopy such docs,

a notice to them to appear with most knowledgeable person and with their docs,

and a response to their discovery demand declaring that my evidence would be their docs that they are demanded to show up in court with.

I received a copy of their Request for Dismissal of Entire Action in the mail today.

My problem is that it's a request for dismissal without prejudice.

I think I want prejudice (I learned here).

Can I answer this somehow? Or maybe file my own Request (with prejudice)?

The court case actions already says "vacated."

Can I still do something?

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Oh, and P.S.: WAHOO! 8-)

Thank you (beyond words) to all you folks who helped me through this, including my beyond-ignorant problems like not knowing about pleading paper or where I might ask for discovery stuff to be turned over.

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I just sued these guys...picked up stamped copies at courthouse today.

Mailed to process server!

I'm going to smack them hard!

There will be no "tippy toes" in my lawsuit against them!

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I just sued these guys...picked up stamped copies at courthouse today.

Mailed to process server!

I'm going to smack them hard!

There will be no "tippy toes" in my lawsuit against them!

I wish you all the best in that endeavor. I'm rooting for you with all my heart!

Those people epitomized for me all the horror stories I had seen on TV and read about of JDBs and others and their tactics. Even if the debt had been valid, their tactics, IMHO, were beyond disgraceful.

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First of all, CONGRATS!!!!!!! You beat a lawyer at his/her own game. You should feel very proud of yourself.

Try the following: File a memo of costs and seek your filing fee for the complaint and any motion you filed. Also any costs of service of the complaint. They probably won't even oppose it. The Court will then enter a judgment in your favor awarding costs. Once you get the award, you will be a judgment CREDITOR and can start collection efforts.

Search my posts in the last year or so. I have done a few of them on the procedure for seeking costs and the time limits involved.

After you get the award, the plaintiff will not want to pay it (especially if it is a JDB) because it will likely be more than the JDB paid for the debt to begin with. Therefore you can often do a trade: you will waive the costs awarded if the plaintiff files a dismissal with prejudice.

Good luck.

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I have one problem with this: I had no real costs. I successfully had the court fees waived and I did my services by mail.

But I see what you mean about that strategy, and I really really would LOVE to be a judgment creditor doing collections against them. :lol:

P.S. I do feel proud of myself. I put in dozens of hours on this. But I am not fooling myself about my ability to have done it without this site, and especially the suggestions of a certain CA lawyer.

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I am proud of you CSS. You did everything right! Almost every competent pro se Defendant in all the Brachfeld cases I've seen gets a dismissal without prejudice. I sure would love to see you become their judgment creditor too!

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Well, we shall see, because I just called them and stated that I was about to file for costs but would be kind enough not to if they filed for dismissal with prejudice.

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... every competent pro se Defendant in all the Brachfeld cases I've seen gets a dismissal ...

... plus me! :lol:

Although I am a thousand times more competent now than I was last December.

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My problem is that it's a request for dismissal without prejudice.

I don't think this is a very big problem. They're not going to want to mess with you again.

Once the SOL expires (4 years in California) they can't touch you. How long will that be?

Congratulations.

DH

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I'm going to attempt to put them out of business with my suit!!!!!

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First of all, CONGRATS!!!!!!! You beat a lawyer at his/her own game. You should feel very proud of yourself.

Try the following: File a memo of costs and seek your filing fee for the complaint and any motion you filed. Also any costs of service of the complaint. They probably won't even oppose it. The Court will then enter a judgment in your favor awarding costs. Once you get the award, you will be a judgment CREDITOR and can start collection efforts.

Search my posts in the last year or so. I have done a few of them on the procedure for seeking costs and the time limits involved.

After you get the award, the plaintiff will not want to pay it (especially if it is a JDB) because it will likely be more than the JDB paid for the debt to begin with. Therefore you can often do a trade: you will waive the costs awarded if the plaintiff files a dismissal with prejudice.

Good luck.

calawyer:

Is there a way to do a pre-emptory strike with a dismissal with prejudice? For example, you kind of know when they are going to file a dismissal - it is usually right before the statutory deadlines for all the stuff they are not complying with. Would a motion to dismiss with prejudice filed a day or two before they file a dismissal work? Or would a court more likely just dismiss without prejudice and not hear the motion to dismiss with prejudice first?

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When a party files a request for dismissal, the clerk has to enter it (unless there is some problem with the form). So your motion would become moot.

But this way is actually better. If you had a lot of costs (say $500), you could even offer to forgive $250 if plaintiff dismisses with prejudice.

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I have one problem with this: I had no real costs. I successfully had the court fees waived and I did my services by mail.

How much is your time worth?

I sued Brachfeld two years ago. My attorney had me come up with a value for my time. This included the time I put forward in research (i.e. reading these forums), estimated the cost of looking for work if I wasn't involved in litigation with them (Gas, Car Maintenance, and yes - my estimated time doing so).

Stamps also cost good money, and then there are those sleepless nights I dealt with my stress and acid reflux. Anything you can think of that involved your effort and time, estimate a value.

Are you sure you cannot come up with a reasonable estimated cost for your time, lost wages, stamps...ect.? I'm sure you were wanting to do anything else but defend yourself from them - Make em pay for it.

StressPot :)++

PS> I hope you are able to do something to get it dismissed WITH prejudice!

Edited by StressPot
Grammer

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When a party files a request for dismissal, the clerk has to enter it (unless there is some problem with the form). So your motion would become moot.

But this way is actually better. If you had a lot of costs (say $500), you could even offer to forgive $250 if plaintiff dismisses with prejudice.

I forgot about lots of stuff! Filing fees (waived) are not the only costs!

Thank you to everyone for reminding me of all the other stuff.

I betcha they will try to fiddle around until my time allowed to get a judgment for costs is past, so I will be sure to research that and also remind them that I will not wait indefinitely for that dismissal with prejudice.

BTW, I am guessing that this JDB filed the suit just before the SOL date. Does this legal process that just happened start the clock running again?

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I don't think this is a very big problem. They're not going to want to mess with you again.

DH

That's a good point. Not just the SOL, but also the fact that they are never going to have a case. They don't have one now and they aren't going to have one in the future.

It's just that I want this to be gone. All gone.

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Sorry, didn't know that you got a fee waiver. Generally, in california, your time doesn't count. Did you pay for service of process? Here is the memo of costs you fill out to request costs. Maybe it will make you think of something:

http://www.courtinfo.ca.gov/forms/fillable/mc010.pdf

If not, don't worry. I can't imagine why they would want to refile this one.

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CSS , that is really neat to have done that , I am happy for you , it gives the rest of us hope . Could you put in a post that listed what you did step by step and what you filed , Motions , ect. , I am in Florida but could convert what you did to the Florida laws and rules .

It sure sounds like you made all the right moves . We could sure use a step by step process .

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Sorry, didn't know that you got a fee waiver. Generally, in california, your time doesn't count. Did you pay for service of process? Here is the memo of costs you fill out to request costs. Maybe it will make you think of something:

http://www.courtinfo.ca.gov/forms/fillable/mc010.pdf

If not, don't worry. I can't imagine why they would want to refile this one.

When I called with my offer, which I will follow up on, I saw no reason to mention the amount.

I served by mail, but as mentioned, stamps do cost money. And I also bought 15 minutes of telephone discussion.

But anyway, no matter what the total is, why would they want to pay it when they can get out of it, right?

I can't imagine them refiling, either. I would like it gone, though. Also, I liked being treated with a little respect for the first time, when I called, post-dismissal, with my offer. :lol:

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.... Generally, in california, your time doesn't count. ...

THAT's a pity, because there sure has been a ton of it! :lol:

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CSS , that is really neat to have done that , I am happy for you , it gives the rest of us hope . Could you put in a post that listed what you did step by step and what you filed , Motions , ect. , I am in Florida but could convert what you did to the Florida laws and rules .

It sure sounds like you made all the right moves . We could sure use a step by step process .

I certainly could, but I'm pretty sure that there are already stickies here of step-by-steps from winners. Also, I can't say that I did everything right. I doubt that. I didn't know about demurrers and I didn't do my discovery perfectly. I did it well enough, based on the results, but if my case had hinged on anything besides the plaintiff's docs (or lack thereof), it would not have been good enough.

Here are the things I did, every single one with help from this forum:

a timely answer to the complaint,

a CMCS,

a case management meeting with the judge,

a demand for docs (discovery), including an arrangement with a local court reporter office to receive and photocopy such docs,

a notice to them to appear with most knowledgeable person and with their docs,

and a response to their discovery demand declaring that my evidence would be their docs that they are demanded to show up in court with.

Also, specific to me, I filed for waiver of court fees, and I also filed a Notice of Plaintiff Using Wrong Address (a form I had to make up).

If you want details of any of those, I'll be happy to give them. How could I not, considering that without this board I never would have managed this? :D

It's scary, though, how hard it is for a lay-person to navigate the system. Even figuring out what POS means (my first guess was incorrect) and realizing that the judge is not there to guide the defendant through what s/he should say. I read another post here saying that the defendant had not been addressed at the CMC and had left as much in the dark as she was when she came in. That was when someone else posted: The judge assumes that if you don't speak, you agree with everything and/or have nothing to say. What else can s/he assume?

It took a while for me to have a light-bulb moment: I am not only the defendant, but also the defendant's representation; so I'd better start acting like it and speak up just like the other guy is speaking up.

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CSS , thank you , I just finished going over all the posts you put in and that helped me a lot , that's what I like about this site , the others helping you helped me . They hit me with 4 cases all at about the same time , that's been 4 months ago and so far I am holding my own ,I should say we , one case is my wife's , let us know if you get the with prejudice. My biggest mistake so far was not speaking up but I have corrected that , yesterday I went to my 5th case pretrial and I did not mind it at all , the people on this site gave me back my control over my situation .

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David 9041, I learned something else worth repeating, maybe.

I finally learned to DO IT and not let fear of doing it wrong paralyze me. Even when I wasn't 100% sure of the proper form or process, I filed it with POS and I always enclosed an SASE on the one that went to the court. (I was doing everything by mail.) Three times, something came back to me with instructions from court personnel for doing it right.

I even found that emails to the law library were answered, and so were emails to the court ("contact us").

The first time I filed something, I didn't know to include an SASE. I did something wrong (I forget what) and I did eventually get it back with instructions. But next time I enclosed an SASE and I got it back with instructions immediately. I suspect that in the first case someone puts it on someone's desk to type an envelope and mail it, and in the second case the person who makes the note of what I did wrong just sticks it in my SASE and puts it in the mail.

ETA: On one of my first things (maybe it was my Answer), I received the form back with a handwritten note scribbled on it from a deputy clerk of court saying "You are doing this wrong. Call me at --- ---- and I'll help you." Not legal help, exactly, but technical help. "The way things are done" help.

None of this is fast. The emails weren't answered that same day, and of course mailed scribbled instructions were not instant. However, the process, from complaint to trial, is far from rapid!

Edited by css
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I always enclosed an SASE on the one that went to the court. (I was doing everything by mail.) Three times, something came back to me with instructions from court personnel for doing it right.

Really good point. I am one of those "last minute people" so all of my filings get hand-delivered to the Court by a messenger. But if you send by mail, make sure you include an extra copy of your filing and a SASE. Ask the Court to return to you a endorsed-filed copy of the filing. That way, you know it has been filed and can proove it if need be.

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