Archive for October, 2011

Costs Following Voluntary Dismissal in Superior Court of California

Monday, October 31st, 2011

Question: I was a defendant in a debt collection lawsuit, which was dismissed. Can I recover the court costs that I paid in order to answer the summons?

My response: Yes, you certainly may seek those costs. Here are the steps and applicable time limits:

1. Complete the Memorandum of Costs (Summary), Form MC-010. Here is the link to the form online, free from the Judicial Council:  Form MC-010 Link

Be sure to put the correct amount you paid the clerk of the court in Box 1 and the total at the bottom. You probably don’t have any other costs, so the total will typically match box 1.

2. Serve a copy by mail on the plaintiff’s law firm and file the original completed form MC-010 with the clerk of the court, making sure you have an extra that they can conform and return to you. There is no filing fee for this.

There are strict deadlines to file the memorandum of costs and the deadlines are different, depending on the Superior Court case (Unlimited Civil cases are $25,000 or more, Limited Civil cases are under that amount). If you file it within 10 days of dismissal, it will be timely. If the clerk or the Plaintiff or their lawyer serve you with notice of the dismissal, then the defendant has 15 days from date of service to file the memorandum of costs in Unlimited Civil and 30 days in Limited Civil. If no notice is served, then the defendant has 180 days from the date of entry of dismissal in Unlimited Civil and 90 days in Limited Civil to file the memorandum of costs.

A late memorandum will result in a waiver, unless the court grants relief for excusable delay, under Section 473, Subdivision (b) of the Code of Civil Procedure.

3. If the plaintiff does not file a motion to tax costs (which the defendant may oppose and the court will then rule on any costs that are being challenged) and the plaintiff does not pay the costs, then you should lodge with the court a judgment for the costs amount, which can then be enforced as with any judgment for money. The Judicial Council also has a form judgment, JUD-100, but it is not easy to use for this purpose, and would be easier to prepare a non-standardized form on pleading paper with the words “Judgment for Defendant” on it and the costs amount and a place for the judge or commissioner to sign for the Superior Court.

Robert Stempler
http://www.stopcollectionlawsuits.com/index.php

Settlement Paperwork if We Settle Directly with Debt Collection Agency

Saturday, October 22nd, 2011

Question:
My wife and I were sued on a credit card debt by a debt collection agency that your web site shows you have dealt with before. If I reach a settlement with the company that sued us, should there be something in writing showing the settlement?

My Response:
Yes, absolutely. If there is a settlement, but nothing in writing, then something is wrong. Without something written, you can expect numerous problems later. The problems can be significant, such as making payments that are credited towards the entire debt rather than a lower settlement balance, or the company entering a default judgment against you for the full balance or the case not being dismissed after you paid them the full settlement amount.

I have three legal guides on Avvo.com that review the settlement of a debt by the consumer directly with the debt collection law firm. If you are able to settle the debt yourself, you need something in writing, which is covered extensively in legal guide numbers 2 and 3. Here is the link to my second legal guide on Avvo: Legal Guide #2.

Robert Stempler
http://www.stopcollectionlawsuits.com/index.php