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Request for Dismissal & Recouping my Costs


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Is there anything I need to do as a defendant when I receive a copy of the Request for Dismissal from the plaintiff (besides have a celebratory glass of champagne!)?

Is it possible or even worth trying to recoup my costs for filing my answer and all of the things I sent to the plaintiff via CMRRR?

 

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I'm still new to all of this, so keep that in mind with my reply.

 

Was it with or without prejudice? You might be able to file an opposition to their request for dismassal and request your own, with prejudice, and costs. I'm sure someone who knows a lot more than I do will be along shortly.

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It's w/o prejudice, but I'm not too concerned. the SOL was 8/2013. 

I'm kind of exhausted from this case and am pretty happy they are dismissing it. 

Is there a simple way to recoup the costs or is it pretty labor intensive?

I'm now preparing my husband for his own case vs. PRA, too.

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If the SOL has passed, then there is no reason for the dismissal to be w/o prejudice. They can/will sell the debt on down the line and you may find yourself back in the same court with a different person trying to collect outside the SOL.

 

Seems to be pretty common in Indiana. Here is an interesting read about cases that have been dismissed w/o prejudice.

http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1124&context=law_faculty_scholarship

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I just read a post by Calawyer stating that we can't make them change it to with prejudice if they file the request before trial, which they did. 

http://www.creditinfocenter.com/community/topic/312523-how-we-object-to-plaintiffs-request-to-dismiss-without-prejudice/#

S/he also added How to Claim Costs: http://www.courts.ca.gov/documents/mc010.pdf

Thanks @calawyer!!

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I am confused - is this from the case where the last payment was in 2011 and SOL in OP's state is four years? Not sure how this became an SOL issue.

 I mentioned SOL because if the plaintiff or some other JDB  tries to sue on this debt again it will be a FDCPA violation because it will be past the SOL. OC (B of A/FIA) was out of DE and SOL is 3 years. Last partial payment made on the account was Aug 2010.

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Some additional info I found:

 
 
If you were the defendant, and the plaintiff dismissed the case against you without you having to pay anything, then yes, you were probably the "prevailing party." Unless you agreed to waive costs before the case against you was dismissed, you are probably entitled to seek costs. (Be sure to check Code of Civil Procedure sections 1032 and 1033.5 to make sure you claimed costs that are actually recoverable.) 
 
In addition to Judicial Council form MC-010, you should have also filed form MC-011. 
 
As to timing, the California Rule of Court governing of a memorandum of costs is 3.1700. As a prevailing party, you would need to file the memorandum of costs "within 15 days after the date of mailing of the notice of entry of ... dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of ... dismissal." 
 
Rule of Court 3.1390 requires that "a party that requests dismissal of an action must serve on all parties and file notice of entry of the dismissal." Thus, your time to file the memorandum of costs would run from the date of service of the notice of entry of dismissal or the clerk's notice, not the filing of a request for dismissal. 
 
Since it sounds like you filed your memo of costs within six days of the FILING of the request for dismissal, rather than a notice of entry of dismissal, you probably filed too early, and the opposing side might object on that ground. (Very often, attorneys forget to send a formal Notice of Entry of Dismissal and the clerk usually doesn't send one either, so you might have been waiting around a while!) Being too early probably isn't too big of a deal. The court could just postpone a hearing or decision on the memo of costs if the other side objects and asks for more time.  
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I mentioned SOL because if the plaintiff or some other JDB  tries to sue on this debt again it will be a FDCPA violation because it will be past the SOL. OC (B of A/FIA) was out of DE and SOL is 3 years. Last partial payment made on the account was Aug 2010.

  

Ah - the beauty of the borrowing statute.

Right, I was just going to ask if FL has a borrowing statue.

The foreign SOL defense is a novel one but if your state does not automatically import the SOL from the choice of law in the contract you're going to have an uphill battle establishing it. Not to mention, them re-suing on it isn't a violation until you convince the court on the foreign SOL first.

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Yesterday I checked with the court and found the complaint against has been dismissed and everything has been vacated from the docket. 

Somewhat amusing happened after I discovered this.

I got a call on my cell phone from the plaintiff's attorney's office. (I'm not sure how they even got that number.) But I answered the phone and got their "this is a debt collector and we are trying to collect a debt".

Then she asked me if I was ready to make a payment or set up a payment plan!

I told the woman that the complaint had been dismiss by the plaintiff and she agreed. Then she asked again to set up a payment. 

I told her that I denied being responsible for the debt or knowing anything about it. 

She tried to asked me some more question, but I cut her off and stated that they will have to file a new complaint in court to get anything from me. She stated, "So, you are willing to go to court over this debt?". I just laughed and stated, "Yes, I believe that's why your plaintiff dismissed the case in the first place!"

 

After I hung up with her I started to worry. Did I screw anything up?

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Yesterday I checked with the court and found the complaint against has been dismissed and everything has been vacated from the docket. 

Somewhat amusing happened after I discovered this.

I got a call on my cell phone from the plaintiff's attorney's office. (I'm not sure how they even got that number.) But I answered the phone and got their "this is a debt collector and we are trying to collect a debt".

Then she asked me if I was ready to make a payment or set up a payment plan!

I told the woman that the complaint had been dismiss by the plaintiff and she agreed. Then she asked again to set up a payment. 

I told her that I denied being responsible for the debt or knowing anything about it. 

She tried to asked me some more question, but I cut her off and stated that they will have to file a new complaint in court to get anything from me. She stated, "So, you are willing to go to court over this debt?". I just laughed and stated, "Yes, I believe that's why your plaintiff dismissed the case in the first place!"

 

After I hung up with her I started to worry. Did I screw anything up?

 

No you didn't screw anything up but don't risk it by speaking to them anymore.  The reason they tried to get a payment out of you is THAT would reset the SOL and they could refile and sue you.  No payment:  still out of SOL.

 

I would send a cease and desist all contact letter or block their phone number so I didn't risk talking to them again.

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look in homelessinca's thread, he kinda gave all the steps he had to go through to collect his costs.  It can be labor intensive, as the court moves like a turtle, and then collecting from the JDB is not so easy either.  He was determined, and got a judgement against his.

 

:offtopic:

Ah, the power of incentives.  Funny how when someone owes the court/state money they are a world class model of efficiency.  If it's owed to someone else, the court does the bare minimum to make it look like they are going through the motions.

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