Archive for April, 2012

Trying to get Dismissal With Prejudice After Voluntary Dismissal

Friday, April 20th, 2012

I read on your blog at Dismissal without prejudice of a credit card lawsuit that a dismissal with prejudice is better than without prejudice, because the claims cannot be filed again. How can I get the court to dismiss a credit card lawsuit with prejudice, if the court has already dismissed it when the Plaintiff’s lawyer failed to show up for a second hearing?

My response:
To obtain a dismissal with prejudice, the court must have enough information presented to it to decide the case on its merits.  That does not necessarily require both parties to appear and present evidence, but it would require that there be an active case. To make a decision on the merits of a case would require both sides to each have an opportunity to present their side. Whether one or both sides take that opportunity is a separate issue.

Once a case has been dismissed (such as for the plaintiff’s debt collection lawyer failing to appear multiple times), the court loses jurisdiction (power) to decide the case on its merits, because there is no longer an active civil case.  Unless the Plaintiff’s lawyer gets the dismissal reversed, such as by filing a motion to explain the failure to appear multiple times, and you prove to the court that you are entitled to a judgment of dismissal in the action, there is no way for the judge to decide the case, if it was already dismissed.

One other way to have a similar result as a dismissal with prejudice would be to enter into a settlement agreement with the Plaintiff, such that once you have paid the agreed settlement amount, the debtor is released from the lawsuit and underling debt.  The debtor should have something from the Plaintiff or their lawyer approving the settlement or confirming the specific terms, in case there is a dispute later, but a settlement and release would have almost the same result as making the Plaintiff or any subsequent assignee unable to file another case for the same debt.

Robert Stempler
Twitter @RStempler

Struggling with Wage Garnishment for A Default Judgment on a Credit Card Debt

Sunday, April 15th, 2012

For two years, my husband’s wages have been garnished at $100 per paycheck, which is what a judge ordered. His paycheck is  twice a month and his take home pay is under $2,000.  We don’t know what we can do, but now we got notice from our bank that they are also levying out bank account. If our bank account is taken after his check is deposited, we cannot pay our rent on the first, and we have two children. With interest, the judgment is just under $10,000 at this time.

My response:
This is a horrible situation for you that you have been held under this suffocating wage garnishment for two years, when you clearly cannot afford it.  I don’t know why a judge would have you pay that much, given your family needs and that you are already living on the edge, financially.

Looking back, perhaps this credit card default judgment could have been set aside, if you were not served. However, now that more than two years have elapsed, it is very doubtful that a judge will set it aside, because the courts expect a defendant to promptly file the papers to set aside an invalid default judgment reasonably soon after learning about it. You and your husband have known about this for two years, so I don’t see trying to set it aside a a productive pursuit for you, at this late date.

Looking forward, I think you need to immediately file a claim of exemption with the financial statement Judicial Council Forms. Hopefully, you are able to show the judge that this money has already been garnished and you have nothing else available and you need it for your necessities (rent, food, utilities, medical) and children’s expenses.

Looking further down the road, you should file bankruptcy to discharge this and any other debt. At $200 per month, you are barely paying $100 per month in principal, after the Sheriff’s fee for the wage garnishment.  Thus, you will not have this paid off for another 8 years. It makes no sense to suffer for eight more years and to have the debt collection law firm cause you to appear in court to fight off a bank levy, which also costs you bank charges.  After the bankruptcy, you can put that extra $200 per month to use helping your family, perhaps starting to save for emergencies, education, and other future events.

Robert Stempler
Twitter @RStempler

Mandatory Settlement Conferences for Debt Collection Lawsuits in Riverside

Monday, April 2nd, 2012

Riverside County Superior Court now has a special settlement program for debt collection lawsuits, under $25,000. The program is activated by the court, once the court receives the defendant’s answer. At that point, the court sets a date for the Mandatory Settlement Conference (MSC). Here’s a link to the MSC program information.

Bonus: unrepresented consumers (pro per) are invited to attend a free workshop to prepare for the MSC. No need to RSVP for the workshop, but they suggest attending at least a week before, so that you know what materials they suggest you bring on the day of the MSC.

Before you file anything in court, I suggest you review the short videos on my home page, because knowing your options is crucial, before you “just do something,” because it sounds good.

Robert Stempler
Twitter @RStempler