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HH Filed for Dismissal Without Prejudice - Violates Written Agreement


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I had a written agreement with Hunt & Henriques lawyer last September to dismiss my case. They agreed to dismiss with prejudice. Now, they have finally filed for the dismissal and requested it "without prejudice". 

How can I respond to this? Is there form to fill out? Do I send a letter to the attorney?

The statute of limitations is up in April, but it's also the principal of the matter. We had an agreement and I want them to adhere to it.

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Was the written agreement signed by all parties?  Are there any conditions in there that yo had to do?  If you have a written agreement and they did not follow it, you could press the issue, though it's probably academic at this point since your SOL runs out next month.  But if you just want to make sure that they follow it, you could object to the court, produce the written agreement, and request instead that the dismissal be with prejudice.  You could also contact HH and request that they abide by the written agreement that they gave you, and that you want the dismissal to be with prejudice.  

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The written agreement was prepared by HH. I signed and returned it, but they never provided me a copy of their signed document.

Their considerations were that they had to "enter into the mutual release", file a voluntary dismissal with prejudice, and agree not to sell the debt.

My considerations were only that I had to "enter into the mutual release", which I did by signing the agreement.

As part of the mutual release, both parties agreed to pay their own fees. If they don't hold up their end of the deal, does this mean that I can file for fees once the case is officially dismissed? It was temporarily dismissed in Sept, and was awaiting them to send the final request for dismissal.

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Depending on the court and what all has happened in court with the case, they may have to get the court's permission to dismiss the case. If it's a motion they filed, file an objection as to the "without prejudice" condition of the dismissal. The worst that can happen is the court overrules your objection and you end up with a "with prejudice" dismissal. 

One additional word about "with" vs. "without". Often, and this depends on your local statutes and applicable case law, but the SOL is considered tolled  (paused) for the period of litigation on a "without", whereas a "with" usually ignores the time in litigation. This means if the the case was in litigation for 8 months and they get a "without", they have an additional 8 months to pursue their claims in court. This does not, however, affect the credit reporting SOL in any way. 

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They do not get an additional 8 months to file a case against you. Regardless of how they dismiss the case, as far as the SOL is concerned, it will be as though they never filed a case in the first place.

You could send the lawyer a meet and confer letter asking that it be amended to with prejudice. I would let it go if it were mine. Or you could wait the month and then file for your fees (since they breached the contract (their agreement in the letter). This is assuming they don't file  a new suit in the 1 month or less that they would have to file in.

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54 minutes ago, Anon Amos said:

They do not get an additional 8 months to file a case against you. Regardless of how they dismiss the case, as far as the SOL is concerned, it will be as though they never filed a case in the first place.

You could send the lawyer a meet and confer letter asking that it be amended to with prejudice. I would let it go if it were mine. Or you could wait the month and then file for your fees (since they breached the contract (their agreement in the letter). This is assuming they don't file  a new suit in the 1 month or less that they would have to file in.

In many jurisdictions the SOL is tolled on a "without". So yes, they may get their litigation time back on the SOL.

53 minutes ago, Anon Amos said:

Also, it's their case, they don't need the court's permission to dismiss it.

Also not true in most jurisdictions. If there has been an answer filed, most jurisdictions require a stipulated dismissal or 'leave of the court'.

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4 minutes ago, Harry Seaward said:

In many jurisdictions the SOL is tolled on a "without". So yes, they may get their litigation time back on the SOL.

Also not true in most jurisdictions. If there has been an answer filed, most jurisdictions require a stipulated dismissal or 'leave of the court'.

I don't know what "many" or "most" jurisdictions are doing just like you don't know California rules. I will go on  a limb however and suggest that the OP is only concerned about the rules in her jurisdiction

If plaintiff dismisses the case then it has 1 month left on the SOL to file a new one. If the plaintiff  wants to dismiss its case the court will allow it. The court will not force the plaintiff to sue someone when they are trying to dismiss.

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California code describes specific situations where the SOL can be tolled, those codes are located in CCPs §§ 350-363. Reasons that allow the SOL to be tolled include situations where the plaintiff/defendant is a minor, defendant is out of the state or in prison, or is mentally incapacitated. Haven't read it all word for word, but it doesn't appear that filing an action within the SOL allows the remaining SOL time to be tacked back on at the end of said action.

CCP 581 (B)(1)  states that plaintiff can dismiss a case, with or without prejudice, with a written request to the clerk at any time prior to commencement of trial - (2) with or without prejudice, by any party upon the written consent of all other parties.

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Thanks, @Anon Amos and @RyanEX. You're right, my research shows that the SOL does not get tolled during a lawsuit in CA.

So, I guess the only decision is whether to 1) lay low and risk them re-filing, in which case I can maybe get my fees back, or, 2) send them a meet and confer letter to request they uphold the agreement to dismiss with prejudice. 

To be clear, a meet and confer letter is just a formal letter, correct? It doesn't need to be on pleading paper because it won't be filed with the court?

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correct. your meet and confer letter 

7 minutes ago, SoCalGal said:

To be clear, a meet and confer letter is just a formal letter, correct? It doesn't need to be on pleading paper because it won't be filed with the court?

correct. 

and yes, it does not get filed with the court. but save a copy in case you need to file it as an exhibit to a motion or hearing. 

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IMO, at this point a dismissal without prejudice is just as good as a dismissal with prejudice. I doubt they go after you again - it's not like they'll somehow come up with better/proper evidence the second time around. They now know you can defend yourself properly and that's not the kind of fight they (or any other JDB) are interested in.

Like Anon mentioned above, if you decide to let the dismissal go thru as is, I might still file a memorandum of costs within the proper time frame to keep that as an option. If they or anyone else files another suit before the SOL runs out, then definitely go after those costs. If the SOL runs out with no further action, you can decide if you want to look into going after costs since they didn't follow the agreement.

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I don't think there's anyone here who truly believes these bottom feeders can be gifted an additional 8 months to file, or that it's difficult to get a judge to clear part of his docket by allowing a case to be dismissed, rather than forcing a party to litigate.

The research here confirms your original position, they can dismiss & they will have month to file a new case if they choose.

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3 hours ago, SoCalGal said:

Thanks, @Anon Amos and @RyanEX. You're right, my research shows that the SOL does not get tolled during a lawsuit in CA.

It gets tolled in the sense that if they file a lawsuit before it runs out, time stops on the SOL right there. You don't get saved by stretching the case out and waiting for the SOL to run out. But, once they dismiss the case, the time on the SOL is as if they never filed the case at all. So, in your case it gives them one month. I know you already knew this.

 It's just kind of a shame when you end up having to research something you already knew when there is so much research and learning that has to be done in the first place. At least in your case you are at the end of the lawsuit. With good results I might add, CONGRATULATIONS!!!

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