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Be Weary of Dismissals due to Lack of Prosecution


rikkivs
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In CA, sometimes cases are dismissed for lack of prosecution. For many debtors, who answered their lawsuits, this can feel great. But they can always use those pesky terms like 'excusable neglect' to set aside the dismissal. See this snippet from Stanislaus County Superior Court:

652812 – WELLS FARGO BANK VS. VANNEST, DAVID – Plaintiff’s Motion to Set Aside Dismissal – GRANTED, as unopposed. Based on the moving papers and in the absence of any opposition or objection, and good cause shown therein, the Court grants the motion to set aside the dismissal based on the excusable neglect of counsel per Code of Civil Procedure § 473(B). The order of dismissal of the complaint filed herein on June 25, 2010 shall be vacated and set aside and the complaint re-instated as of the date of this hearing. Counsel for Plaintiff is directed to serve a copy of Notice of Entry of this order by mail on Defendant at his address of record. Further, the case is set for the Court's Motion to Dismiss on November 19, 2010 at 1:30 a.m. in Dept 22.

How could one argue against setting aside a dismissal for 'excusable neglect'? What a nightmare for Mr. Vannest!

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You should be weary of any lawsuit that is dismissed short of "with prejudice" coming back to haunt you. That is why even if the case is dismissed, you continue to build your case against the creditor. Then, if there is a reinstatement, you just continue right where you left off.

So how can you build a case against them? I know individual circumstances are different, but strategies you can give might help.

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If a trial judge clears his/her docket of these scummy collection actions thats good for all concerned. If some other smuck refiles as WhoCares states the defendant simply re-engages.

When served again. Answer, General Denial, Meet N Confer to Stip to cross, discovery, law library, motion to compel, motion for sanctions, motion to compel again, cross-plaintiff opposition to MSJ of cross-defendant, statutory offer, dismissal with prejudice when their money hits your account.

WhoCares made role model statements. If a person does their research as WhoCares states getting sued by one of these law firms is a gift. These guys don't try cases and I suspect the cases they try they don't win. At least I've never read a case file indicating any of these cases are not winnable by the consumer. The Chase guy from LA files tight pleadings compared to most but in the end I don't think Chase would field the wits needed to win. Way too damn expensive to try a Chase for $28,000 they Chase will probably never friggin collect. Guys don't make $2M a year not doing that math correctly.

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