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Opposing Party Don't Want to Pay!!!!!


mollymai
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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 monetary

recovery, 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 Rules

Do they cite a legal argument in their letter?

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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 monetary

recovery, 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 Rules

Do 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 filed

Memo 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 by mollymai
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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?

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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 by mollymai
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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.

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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 monetary

recovery, a defendant in whose favor a dismissal is entered, a

defendant where neither plaintiff nor defendant obtains any relief,

and a defendant as against those plaintiffs who do not recover any

relief against that defendant..................

Edited by chiquita55
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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.

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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??

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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????

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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 by 1stStep
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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

These 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.

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