RyanEX

California - Post-dismissal & going after costs

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Working on getting my costs back from my 2013 suit with Midland. It's been awhile, but I just got past my last SOL on my other accounts and decided to tie up this loose end. There are a few threads with people successfully getting their costs back, but not finding what I need so far.

 

Quick recap: sued in 2013, followed CIC playbook, plaintiff dismissed the morning of trial. I filed the Memorandum of Costs within the proper time frame, plaintiff never filed a Motion to Tax. Per CA Rules of Court 3.1700, the clerk should have then have entered the costs on the judgment, of course that didn't happen

 

A month ago I submitted a JUD-100 to get the ball rolling, it was rejected. I probably missed a few check boxes, but I didn't get an explanation anyway. For anyone reading this who hasn't discovered this yet, clerks are not dependable when it comes to knowing the code or knowing what to do in your particular case; I went back and, after 5 minutes of getting nowhere, I had to show the clerk a printout of CCP 1032 for her to understand why, even after a dismissal, I'm a prevailing party who can claim costs.

 

My JUD-100: 02-21-2015-4.pdf

 

The supervisor had to come out and help me and I resubmitted the JUD-100 along with a note. It was rejected again, but least I got a little more feedback (barely): "THE COURT DID NOT AWARD COSTS. PLEASE SEEK LEGAL ADVICE"  - like before, it was rejected by the clerk of that department.

 

The rejection: 02-21-2015-1.pdf

 

I did hear one of the clerks downstairs mention me submitting a "Judgment of Dismissal" - there's no form for that, but I did find an example typed out on pleading paper. Wondering if that should be my next attempt? So far I've been rejected by the dept's clerk - since this would be written for the judge, maybe it will skip the person who, so far, has blocked my attempts and go straight to my judge?

 

Thoughts?

 

Judgment of Dismissal example: Judgment_of_Dismissal_Ameripec_.pdf

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You might want to modify the judgment of dismissal to recite that you are the prevailing party pursuant to CCP 1032.  You might also recite that a memo of costs was filed on ____, and no motion to tax was filed by plaintiff.  Therefore the Court awards costs of _____.

 

Then maybe a letter to the Judge (with a copy to plaintiff) asking that the judge sign and have the clerk return to you in the enclosed SASE.

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Thanks @calawyer, I'll add that language.

 

When I'm trying to get this into the hands of the judge, is it enough that the (proposed) Judgment of Dismissal is meant for his signature (and I would just clock and drop)? Or would I need to ask that it be directed to his department?

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My draft:

 

The Court, having granted Plaintiff  MIDLAND FUNDING LLC’s Motion for Dismissal

and having issued a formal Notice of Dismissal on [DATE] and Defendant [NAME]

as the Prevailing Party pursuant to CCP § 1032, herewith orders the entry of judgment.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
    
Plaintiff MIDLAND FUNDING LLC shall take nothing in this action, and Defendant [NAME]

shall recover from said plaintiff MIDLAND FUNDING LLC costs of the suit in the sum of

$XXX.00 as determined by the Memorandum of Costs filed on [DATE] with no motion to tax

filed by Plaintiff.

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Update: Nothing

 

I went to the courthouse 13 days ago and clocked & dropped both a Notice of Change of Address and two copies of a Proposed Judgment of Dismissal on pleading paper and with the language in the above post. I also included a letter to the Judge requesting that he sign & have the clerk mail back to me in a supplied SASE.

 

Two days later the case file was updated with the Change of Address, but so far nothing on the Judgment. As of yesterday nothing in the mail. @calawyer, would you recommend giving it more time, or resubmit the proposed judgment & letter? I'll be in the vicinity of the courthouse tomorrow.

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I would give it some more time.  The Courts are very backed up.  It actually might slow things down if you resubmit.

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Okay, gotcha :)%

 

I was concerned that it had been ignored by the clerk who had already turned me down the JUD-100. I'll chill & wait it out.

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I would give it some more time.  The Courts are very backed up.  It actually might slow things down if you resubmit.

 

Well, whaddaya know...judgment entered in my favor as of 5pm today :punknanner:

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Well, whaddaya know...judgment entered in my favor as of 5pm today :punknanner:

 

Terrific news. 

 

You should do a "Notice of entry of judgment":  http://www.courts.ca.gov/documents/civ130.pdf

 

Serve it on plaintiff and do a cover letter telling them to pony up.

 

Congrats.  You just became a debt collector. :yahoo::waah:::USA::

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Terrific news. 

 

You should do a "Notice of entry of judgment":  http://www.courts.ca.gov/documents/civ130.pdf

 

Serve it on plaintiff and do a cover letter telling them to pony up.

 

Congrats.  You just became a debt collector. :yahoo::waah:::USA::

Congratulations from AZ Judgment Debtor also turned to be Judgment Creditor!!!

I have already such one entered by Maricopa Superior Court (Appeal Cost $304 reimbursed)

and waiting entering Justice Court Judgment for me (Court Cost and Garnished

Wages $887.45). Total must be $1191.45.

Is "your" Plaintiff in your state CA?

"Mine" SLM Education Credit is in RI.

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I was pondering this for my case as well. The appellate order has been observed by trial court, and judgement officially entered for me in trial courts (how sweet was the order signed by the (overturned) trial judge).  However, since i was on fee waiver I'm not sure what i would be entitled too (probably my total costs - filing fees?)

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I was pondering this for my case as well. The appellate order has been observed by trial court, and judgement officially entered for me in trial courts (how sweet was the order signed by the (overturned) trial judge).  However, since i was on fee waiver I'm not sure what i would be entitled too (probably my total costs - filing fees?)

 

I figure you'd now be entitled to your costs on the initial suit? For those of us sued prior to 2014, generally filing fees & process server fees. If you spent money on exhibits that might be included as well, not sure...

 

3.1700

 

(1)Trial costs

A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.

 

 

 * nice getting that order signed by the trial judge!

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yeah. i was on fee waiver for superior court trial too. To be honest I don't even feel like filing out anymore paper work yet

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On 3/17/2015 at 6:49 PM, RyanEX said:

I went to the courthouse 13 days ago and clocked & dropped both a Notice of Change of Address and two copies of a Proposed Judgment of Dismissal on pleading paper and with the language in the above post. I also included a letter to the Judge requesting that he sign & have the clerk mail back to me in a supplied SASE.

 

Two days later the case file was updated with the Change of Address, but so far nothing on the Judgment. As of yesterday nothing in the mail. @calawyer, would you recommend giving it more time, or resubmit the proposed judgment & letter? I'll be in the vicinity of the courthouse tomorrow.

I'm nearing the 30 days after filing my MC-10 with the Court (September 5, 2016). To date, no tax of costs filed by Plaintiff.

I know your case happened over a year and a half ago, but do you remember if you had to serve a copy of the PROPOSED JUDGMENT OF DISMISSAL on Plaintiff, as well? Or just file two copies, a SASE, and a letter to the judge with the Court? I'm not clear if Plaintiff is entitled to a separate copy and don't want to spend $6.36 on CMRRR if I don't have to.

Thanks,RyanEx!

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6 hours ago, AuthorCat said:
 

I'm nearing the 30 days after filing my MC-10 with the Court (September 5, 2016). To date, no tax of costs filed by Plaintiff.

I know your case happened over a year and a half ago, but do you remember if you had to serve a copy of the PROPOSED JUDGMENT OF DISMISSAL on Plaintiff, as well? Or just file two copies, a SASE, and a letter to the judge with the Court? I'm not clear if Plaintiff is entitled to a separate copy and don't want to spend $6.36 on CMRRR if I don't have to.

Thanks,RyanEx!

I didn't send a copy of the proposed judgment to the plaintiff. Filed the two copies, that was it. Once the judge signed off on the judgment I sent that to the plaintiff via regular first class mail, no need for CMRRR at this point.

Edit: see calwayer's recommendation on serving a proposed judgment with a proof of service

But you don't need to do that yet. You can save the trip to the courthouse if you like and instead send plaintiff a simple letter explaining that you've filed for costs & request payment. Attach the MC. Something like:

"Attached please find the MEMORANDUM OF COSTS for the above referenced case. Please remit payment in amount of $XXX.00 within 10 days of the date of this letter."

Give them 2 or 3 weeks and see if they respond. They often do. If they don't, you can proceed with the judgment - that will get their attention.

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I agree that you should try to get plaintiff to pay before submitting a proposed judgment.

However, you should do a proof of service on plaintiff if you have to submit a proposed judgment.  No need to send CMRRR.  Just regular mail.

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11 hours ago, RyanEX said:

I didn't send a copy of the proposed judgment to the plaintiff. Filed the two copies, that was it. Once the judge signed off on the judgment I sent that to the plaintiff via regular first class mail, no need for CMRRR at this point.

Excellent! And thanks so much, RyanEx. I'll send them a letter with the stamped MC-010 attached and request payment first. But it appears I have to CMRRR that, correct? Otherwise, what proof would I otherwise have that they've received my payment request?

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9 hours ago, calawyer said:

I agree that you should try to get plaintiff to pay before submitting a proposed judgment.

However, you should do a proof of service on plaintiff if you have to submit a proposed judgment.  No need to send CMRRR.  Just regular mail.

I'll try that first, Calawyer. Thanks so much for responding.

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58 minutes ago, AuthorCat said:

Excellent! And thanks so much, RyanEx. I'll send them a letter with the stamped MC-010 attached and request payment first. But it appears I have to CMRRR that, correct? Otherwise, what proof would I otherwise have that they've received my payment request?

I don't think you need a record that they received it - it's not like serving them something during your case where you would want to be able to show that record to the judge. A proof of service should suffice.

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15 hours ago, RyanEX said:

I don't think you need a record that they received it - it's not like serving them something during your case where you would want to be able to show that record to the judge. A proof of service should suffice.

Would it be a smart thing to send it Certified only then (with PoS, of course)? That way, I can check the USPS online tracking when it was delivered and make a print-out so I know that they've received it and can't later claim they never had.

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20 hours ago, AuthorCat said:

Would it be a smart thing to send it Certified only then (with PoS, of course)? That way, I can check the USPS online tracking when it was delivered and make a print-out so I know that they've received it and can't later claim they never had.

You can, but it is not necessary if you do not want to go to the expense.  Your POS is proof of mailing.

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9 minutes ago, calawyer said:

You can, but it is not necessary if you do not want to go to the expense.  Your POS is proof of mailing.

Thanks, Calawyer.

So my question is, now that the case has been dismissed by Plaintiff, do I need to send the letter to request payment (with a copy of the MC) straight to the Plaintiff instead of the attorneys of Plaintiff?

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