mollymai Posted December 20, 2011 Report Share Posted December 20, 2011 So I received a letter in the mail stating that I am not the prevailing party and they should not pay me by fees. They say that each party should burden their own costs. Link to comment Share on other sites More sharing options...
calawyer Posted December 20, 2011 Report Share Posted December 20, 2011 So I received a letter in the mail stating that I am not the prevailing party and they should not pay me by fees. They say that each party should burden their own costs.Plaintiff filed a request for dismissal, correct?If so, they are wrong. CCP 1032 (a) 4 provides as follows:(4) "Prevailing party" includes the party with a net monetaryrecovery, a defendant in whose favor a dismissal is entered......CA Codes (ccp:1021-1038)But if they think you have claimed costs improperly, they should not be writing letters. They must file a motion to tax costs. If they don't do so within 15 days of the filing of your cost memo, "the clerk must immediately enter the costs on the judgment." CRC 3.1700 Title Three RulesDo they cite a legal argument in their letter? Link to comment Share on other sites More sharing options...
mollymai Posted December 20, 2011 Author Report Share Posted December 20, 2011 (edited) Plaintiff filed a request for dismissal, correct?If so, they are wrong. CCP 1032 (a) 4 provides as follows:(4) "Prevailing party" includes the party with a net monetaryrecovery, a defendant in whose favor a dismissal is entered......CA Codes (ccp:1021-1038)But if they think you have claimed costs improperly, they should not be writing letters. They must file a motion to tax costs. If they don't do so within 15 days of the filing of your cost memo, "the clerk must immediately enter the costs on the judgment." CRC 3.1700 Title Three RulesDo they cite a legal argument in their letter? Yes the plaintiff filed the dismissal request. They have Procedural Ground: info about when the complaint was entered. Dismissal W/O Prejudice: date when plaintiff filedMemo of cost: date I FILED AND AMOUNT.Defendant is not entitled to her cost as she was not prevailing party pusuant to California Rules of of court Rule 870(a)(1). Plaintiff dismissed this case.. Therefore, thee is no prevailing party. Each party should burden their own costs. Further the defendant fees are Unclear and Excessive as Defendant did not provide an explanation of cost for the $$$ cost of memorandum.Plaintinff respectfully request this court to disregard Memorandum as she is not prevailing party and not entitled to reimbursement. Typo is in their letter.The letter is Declaration of their atty. Edited December 20, 2011 by mollymai Link to comment Share on other sites More sharing options...
chiquita55 Posted December 20, 2011 Report Share Posted December 20, 2011 Did you file an explanation and proof of the costs? I believe you would have to provide receipts and an explanation for the charge to prevail. Other than that I have no idea if they dismiss the case whether we have 'won' or if the judgement is in our favor or not??? Did you try to look up that rule # he cited? Link to comment Share on other sites More sharing options...
mollymai Posted December 20, 2011 Author Report Share Posted December 20, 2011 (edited) Did you file an explanation and proof of the costs? I believe you would have to provide receipts and an explanation for the charge to prevail. Other than that I have no idea if they dismiss the case whether we have 'won' or if the judgement is in our favor or not??? Did you try to look up that rule # he cited?There is a MC-011 worksheet that I did not file with the MC-010, but was informed that in so many words that it should not matter because they know the cost but they trying to make it hard for to get my fees back. Now I need help on what to write and file. Edited December 21, 2011 by mollymai Link to comment Share on other sites More sharing options...
bad98roadster Posted December 20, 2011 Report Share Posted December 20, 2011 Isn't a debt collection law firm/attorney making a statement that you're not entitled to the fees, when in fact you are, an FDCPA violation? Link to comment Share on other sites More sharing options...
mollymai Posted December 20, 2011 Author Report Share Posted December 20, 2011 Isn't a debt collection law firm/attorney making a statement that you're not entitled to the fees, when in fact you are, an FDCPA violation?I now need help on what to write so I file it and send to them. Link to comment Share on other sites More sharing options...
mollymai Posted December 20, 2011 Author Report Share Posted December 20, 2011 prevailing party n. the winner in a lawsuit. Many contracts, leases, mortgages, deeds of trust, or promissory notes provide that the "prevailing party" shall be entitled to recovery of attorney's fees and costs if legal action must be taken to enforce the agreement. Even if the plaintiff gets much less than the claim, he/she/it is the prevailing party entitled to include attorney's fees in the collectable costs. Usually there is no prevailing party when a complaint is voluntarily dismissed prior to trial or settlement before or after trial has begun.Now i'm confused because I thought I can get my money back, but the legal dictionary says this. Link to comment Share on other sites More sharing options...
bad98roadster Posted December 20, 2011 Report Share Posted December 20, 2011 Re-read calawyers post. You are entitled to the fees.Use the CCP 1032 (a) 4.They have violated FDCPA by suggesting otherwise. Link to comment Share on other sites More sharing options...
chiquita55 Posted December 20, 2011 Report Share Posted December 20, 2011 (edited) Calawyer is right of course. You are entitled. Read 1032 again and quote it in a letter or brief to them. If they filed with the court, you file with the court and demand your costs with the brief asking for your costs. Include that form you said you didn't use before and a copy of your original request. Reread 1032 and copy the wording in asking for your costs........(4) "Prevailing party" includes the party with a net monetaryrecovery, a defendant in whose favor a dismissal is entered, adefendant where neither plaintiff nor defendant obtains any relief,and a defendant as against those plaintiffs who do not recover anyrelief against that defendant.................. Edited December 20, 2011 by chiquita55 Link to comment Share on other sites More sharing options...
mollymai Posted December 20, 2011 Author Report Share Posted December 20, 2011 Thank you all so much, im going to quote it in a letter and send it to them.I just need a little help of how to word, because i want it to be right. I will also include the mc-011 worksheet. Link to comment Share on other sites More sharing options...
1stStep Posted December 20, 2011 Report Share Posted December 20, 2011 And you may want to think about mentioning the FDCPA too... Link to comment Share on other sites More sharing options...
bad98roadster Posted December 20, 2011 Report Share Posted December 20, 2011 Yes, in the form of a summons... Link to comment Share on other sites More sharing options...
1stStep Posted December 20, 2011 Report Share Posted December 20, 2011 And since the OP is in California - add a Rosenthal violation too! 1 Link to comment Share on other sites More sharing options...
KentWA Posted December 20, 2011 Report Share Posted December 20, 2011 The letter is Declaration of their atty.Is this a reply to the courts on your motion for costs, or just a letter to you. If they filed this, then you are going to need to reply to the court so your argument is part of the record otherwise they may win the argument. Link to comment Share on other sites More sharing options...
calawyer Posted December 20, 2011 Report Share Posted December 20, 2011 Is this a reply to the courts on your motion for costs, or just a letter to you. If they filed this, then you are going to need to reply to the court so your argument is part of the record otherwise they may win the argument.Exactly my question. Except the propor response is to file a motion to tax costs. Is that what plaintiff has done?? Link to comment Share on other sites More sharing options...
chiquita55 Posted December 20, 2011 Report Share Posted December 20, 2011 I agree with Kent. These people filed a motion with the court. You must file one and answer them back or you will lose. File the answer with the court and send them a copy asap so you don't lose your rights. Link to comment Share on other sites More sharing options...
mollymai Posted December 20, 2011 Author Report Share Posted December 20, 2011 This is just a letter oppossing, I have not checked today to see if they filed anything with the court, but nothing as of last night. Link to comment Share on other sites More sharing options...
bad98roadster Posted December 20, 2011 Report Share Posted December 20, 2011 This is just a letter oppossing, I have not checked today to see if they filed anything with the court, but nothing as of last night.Is the letter asking you to withdraw your claim?What's the action item in the letter? Link to comment Share on other sites More sharing options...
mollymai Posted December 20, 2011 Author Report Share Posted December 20, 2011 The only thing they are saying is that I am not entitled to any fees because I am not the prevailing party. And the only rule they used was California rules of court rule 870(a)(1). Nothing updated on the courts domain web Link to comment Share on other sites More sharing options...
mollymai Posted December 20, 2011 Author Report Share Posted December 20, 2011 Ok so here's another answer I received from a lawyer, he stated since I did not go to court I did not prevail. So now my understanding is if you go to court and it gets dismissed there I would have prevailed, but since they dismissed it before trial I can not recover cost???? Link to comment Share on other sites More sharing options...
1stStep Posted December 20, 2011 Report Share Posted December 20, 2011 (edited) I think you've got the makings of an FDCPA suit against the lawyer...I believe Calawyer wrote that per CCP 1032 (a)4 you can go after costs...I'd politely fax the attorney a letter stating this. but keep it up, because the more time you spend pursuing it is more time Midland has to pay the lawyer fees. Edited December 20, 2011 by 1stStep Link to comment Share on other sites More sharing options...
chiquita55 Posted December 20, 2011 Report Share Posted December 20, 2011 Why would a case be 'dismissed' 'in court'. Cases are dismissed before court, not during court. In court they are either won or lost. I don't think I agree with that lawyer but I would write the letter we told you to do earlier. Link to comment Share on other sites More sharing options...
mollymai Posted December 20, 2011 Author Report Share Posted December 20, 2011 (edited) I am going to continue with this, I have found so many items to put in the letter. I thought the headache was over, but here we go again with cap 1. Edited December 20, 2011 by mollymai Link to comment Share on other sites More sharing options...
calawyer Posted December 20, 2011 Report Share Posted December 20, 2011 The only thing they are saying is that I am not entitled to any fees because I am not the prevailing party. And the only rule they used was California rules of court rule 870(a)(1). Nothing updated on the courts domain webThese are not good lawyers. They know how to take defaults but do not know how to litigate. Sit tight and do nothing unless they file a motion to tax costs. Calendar 20 days after you served your cost bill (don't count the day you served--start on the next day). That is their last day to file the motion to tax. If they don't file the motion on that day, bump this thread and we'll write them a nice response If they do file a motion to tax costs, you can file a one page opposition.Relax and have a great holiday. Link to comment Share on other sites More sharing options...
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