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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 34860
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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California - BK Attorney REQUEST**

Customer Question

I was sued by TERI, a student loan lender (now in Chap 11 BK since 2008) in CA Superior Ct. We reached a settlement agreement in 2007. I just received an OSC re Dismissal of Settled Case. What does this mean and do I need to file a response to this? I should add that the Court served the former atty of record who had to quit his practice and is under suspension by the Bar. I have been paying a collection agency atty. They (the previous atty or the current one) obviously have not informed the court. I want this dismissed- any chance? Also would this be dismissed due to jurisdiction? (Fed BK ct vs State ct)?
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  Justice4U2 replied 3 years ago.
Hello,

I am an expert at JustAnswer and will be assisting you. I would like to address a few important issues before answering your question.

Please note, nothing herein is intended as legal advice, no legal advice is being provided, no attorney-client relationship will be established and only general information is provided so that you may analyze your situation.

ANSWER:

Once a case is settled there is no longer an issue in controversy before the court and the case is dismissed. It appears that you have been notified by the court that the case has been dismissed due to the settlement. In that situation, the settlement is not impacted. The dismissal is a normal function of a court after settlement.

If you were to breach the terms of a settlement agreement, that may result in a new civil suit to enforce the terms of that agreement. It does not sound as though that has happened in your situation.

Please feel free to follow-up. These detailed matters are difficult to address in this context
because of the vast number of variables. Sometimes the back and forth dialogue can help us
sort through those issues. My goal is leave you with a satisfactory response.

Please do not forget to accept the answer if the information provided has been satisfactory to
this point. We can continue our dialogue with additional follow-up questions even after you press the accept button. Last and most importantly, please be so kind as to leave me positive
feedback.

Thank you so much
Customer: replied 3 years ago.
Relist: Incomplete answer.
The settlement was in place since 2007 and the court retained jurisdiction over it for the past 4 yrs as per the agreement. The answer stated the obvious that the court would dismiss b/c there is a settlement. The answer was incomplete as it did not address my main question which is about TERI's Chap 11 BK effect on case- jurisdiction (Fed vs State) and also the effect of the fact that the atty of record for the Plaintiff has been suspended from the practice of law. Would the case more likely to be dismissed b/c of jurisdiction (BK) and the lack of followup w/the court by the former and current atty? I think this should be answered by a BK atty.
Expert:  Justice4U2 replied 3 years ago.
Are you asking if the bankruptcy will prevent collection of your debt?
Customer: replied 3 years ago.
Not really. If that were the case, this would have been taken care of in 2008 when the Plaintiff filed for BK. The court retained jurisdiction over the settlement. I would prefer to speak to a BK atty who is familiar with how debtors of the BK company are handled in CA state ct when a benchXXXXX XXXXXke this arises (i.e. 5 years since suit filed- Ct wants to be rid of it) TERI was not in BK when the settlement was reached. Now, there is an OSC hearing re dismissal b/c the CA state ct routinely does this to clear its books of cases that they retained jurisdiction over. From what I understand the Plaintiff can appear and request that the Ct retain jurisdiction b/c the settlement has not be fully pd. Here the Plaintiff is in BK- no one can reach anyone there despite the fact that my settlement stipulated that I am entitled to have a contact person and working phone # XXXXX someone there. The original atty has been suspended from practice of law due to trust acct violations with no replacement filed with the ct. I have been unable to get a balance of amts pd. The settlement provides for dismissal when all amts pd. Procedurally I would hope that those things may equal dismissal. I would also like to know if any attys out there have experience dealing with TERI.
Expert:  socrateaser replied 3 years ago.
Hello,

Different expert here. Please permit me to assist. I have asked customer service to transfer this question to the bankruptcy law category. Meanwhile, you asked:

I just received an OSC re Dismissal of Settled Case. What does this mean and do I need to file a response to this?

A: An OSC is an "order to show cause," which is a hearing asking the court to order the other party/ies to appear and show cause as to why the order requested by the moving party should not be granted by the court.

An OSC re dismissal is probably being issued, because the plaintiff has not been paid according to the settlement, and so the plaintiff wants to have the dismissal set aside, so that a money judgment can be obtained. If the original case was originally dismissed with prejudice, then your response would be that the set aside is barred as "res judicata," and that plaintiff's only recourse now is to file an independent action for breach of the settlement agreement.

I should add that the Court served the former atty of record who had to quit his practice and is under suspension by the Bar. I have been paying a collection agency atty. They (the previous atty or the current one) obviously have not informed the court. I want this dismissed- any chance?

A: The fact that the attorney is suspended could give you grounds to object to the service as ineffective. Generally, the first postjudgment action must be personally served in the same manner as a summons and complaint, so that you receive adequate notice of the fact that the lawsuit is active again. This could get you a dismissal of the OSC, but only for the time that would be required to file it again and personally serve you with the pleadings. If you think that's worth your time, then you could ask the court to quash service as ineffective in a separate motion to quash.

Also would this be dismissed due to jurisdiction? (Fed BK ct vs State ct)?

A: If you were sued in state court by the creditor, and the bankruptcy court allowed the case to go forward to judgment or dismissal, then the state court has jurisdiction to deal with the postjudgment matter of nonpayment.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


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Customer: replied 3 years ago.
I think some facts didn't get through in my narrative. The Court, on its own motion (not the Plaintiff's mtn), is seeking dismissal b/c its routine for this to occur in Orange County Superior Ct that if the Ct was retaining jurisdiction over a case, it dismisses after 5 years. There has been no judgment entered.

The burden is on the Plaintiff to tell the Court that the settlement is not fully pd and that they do NOT want the case dismissed.

We settled in 2007 for ongoing pmts for 10 years until balance of settlement is paid. As I mentioned before, the Ct retained jurisdiction over the case to insure that a dismissal will be filed once I pay in full.
I have been on time with all pmts to date.

There has been no dismissal with or without prejudice for the Plaintiff seek relief from.

The Plaintiff's former atty did not serve me, the Court did b/c its the court's own motion so there is no defective service to seek relief from.




Expert:  socrateaser replied 3 years ago.
I think some facts didn't get through in my narrative. The Court, on its own motion (not the Plaintiff's mtn), is seeking dismissal b/c its routine for this to occur in Orange County Superior Ct that if the Ct was retaining jurisdiction over a case, it dismisses after 5 years. There has been no judgment entered.

A: Okay, I'll start over. This is not a local rule. It's statewide. An action must be brought to trial within 5 years after it is commenced against the defendant. If not, dismissal is mandatory on motion of any party, or on the court's own motion. Code Civ. Proc. §§ 583.310, 583.360.

The burden is on the Plaintiff to tell the Court that the settlement is not fully pd and that they do NOT want the case dismissed.

We settled in 2007 for ongoing pmts for 10 years until balance of settlement is paid. As I mentioned before, the Ct retained jurisdiction over the case to insure that a dismissal will be filed once I pay in full. I have been on time with all pmts to date.

There has been no dismissal with or without prejudice for the Plaintiff seek relief from.

The Plaintiff's former atty did not serve me, the Court did b/c its the court's own motion so there is no defective service to seek relief from.

A: So, if I understand correctly, you reached a settlement, and you have paid according to the agreement, but the plaintiff never moved for a CCP 664.6 judgment, to formally leave the case open for postjudgment enforcement. Now the court is issuing the automatic dismissal OSC, and you want the case dismissed.

I don't see any grounds for a dismissal other than the delay in prosecution. In my opinion, the judge will issue the CCP 664.6 judgment now, if the plaintiff requests, and that will be the end of the matter. I'm assuming that the settlement agreement contains the necessary terms and conditions to qualify for the order.

After which, the plaintiff may seek a writ of garnishment and/or execution and try to find assets in your possession to satisfy the judgment.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


And, if you need to contact me again, please put my user id on the title line of your question (“To Socrateaser”), and the system will send me an alert. Thanks!

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Attorney and Real Estate Broker -- Retired (mostly)