Memorandum of costs in California

A memorandum of costs in California is the topic of this blog post. This blog post will briefly discuss claiming prejudgment costs through the filing and service of a memorandum of costs.

A memorandum of costs must be verified by the party or their attorney and must be served and filed within a specified deadline. However I do want to emphasize that the circumstances of each case are unique and the actual deadline for any particular case depends on a variety of factors which will be discussed below.

The deadline to file and serve is set forth in California Rule of Court 3.1700(a)(1) which states in pertinent part that, “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.”

Code of Civil Procedure § 664.5 states that,

“(a) In any contested action or special proceeding other than a small claims action or an action or proceeding in which a prevailing party is not represented by counsel, the party submitting an order or judgment for entry shall prepare and mail a copy of the notice of entry of judgment to all parties who have appeared in the action or proceeding and shall file with the court the original notice of entry of judgment together with the proof of service by mail. This subdivision does not apply in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation.

(b) Promptly upon entry of judgment in a contested action or special proceeding in which a prevailing party is not represented by counsel, the clerk of the court shall mail notice of entry of judgment to all parties who have appeared in the action or special proceeding and shall execute a certificate of such mailing and place it in the court’s file in the cause.

(c) For purposes of this section, “judgment” includes any judgment, decree, or signed order from which an appeal lies.

(d) Upon order of the court in any action or special proceeding, the clerk shall mail notice of entry of any judgment or ruling, whether or not appealable.

(e) The Judicial Council shall, by January 1, 1999, adopt a rule of court for the purposes of providing that, upon entry of judgment in a contested action or special proceeding in which a state statute or regulation has been declared unconstitutional by the court, the Attorney General is promptly notified of the judgment and that a certificate of that mailing is placed in the court’s file in the cause.”

However I also want to point out that for a clerk’s notice of entry of judgment to trigger the 15-day deadline it must comply with Code of Civil Procedure § 664.5. In some cases a clerk will simply mail a file-stamped copy of the judgment with something attached known as a “Certificate of Mailing” which does not satisfy the “service pursuant to court order” requirement of subdivision of Code of Civil Procedure § 664.5 and as a result fails to start the 15-day clock as has been stated by the California Supreme Court in at least two cases.

Attorneys or parties in California should carefully review any notice of entry of judgment served by the clerk to determine whether or not the clerk has served a notice of entry of judgment that fully complies with the provisions of Code of Civil Procedure § 664.5 including a statement that document mailed by the clerk is being given upon “order of the court” or “under section 664.5. If the clerk fails to do so and no other party serves and files a notice of entry of judgment the deadline to file and serve a memorandum of costs is 180 days after entry of judgment.

To view over 300 sample legal documents created by the author of this blog post visit: http://www.scribd.com/LegalDocsPro

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

Posted in California civil litigation, California evictions, California freelance paralegal, California legal topics, California unlawful detainer | Tagged , , , , | Leave a comment

Motion to alter or amend judgment in United States District Court

A motion to alter or amend judgment in United States District Court under Federal Rule of Civil Procedure 59(e) is the topic of this blog post. This motion is sometimes incorrectly referred to as a motion for reconsideration and can only be filed within 28 calendar days after the judgment is entered. However if the stakes are high enough filing a motion to alter or amend a judgment can be an effective strategy. And a timely-filed motion extends the time to file a notice of appeal under the provisions of Federal Rule of Appellate Procedure 4(a) until the entry of the order disposing of the motion.

District courts have the power to “alter or amend” a judgment by motion under FRCP 59(e). The deadline for filing a Rule 59(e) motion is the same as a motion for new trial as FRCP 59(e) states that, “(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”

Although FRCP 59(e) does not state any specific grounds for relief the Courts have ruled that a motion is proper where there is newly discovered evidence, the judgment is based on a clear error committed by the Court or is manifestly unjust, or an intervening change in controlling law since the date of entry of judgment.

Depending on the circumstances of any particular case a party may actually have more than 28 calendar days to file a Rule 59(e) motion as in order to start the clock running on the 28 day deadline requires a final judgment requiring a separate document under Rule 58(a) which is considered entered when the judgment is both entered in the civil docket under Rule 79(a) and either (a) it is set forth on a separate document or (b) 150 days have run from entry of the judgment in the civil docket, whichever occurs first. See Rule 58(c)(2).

The moving party must meet their burden of showing sufficient facts and evidence to support their grounds and must show that a miscarriage of justice will result if the judgment is not altered or amended.

For example a party requesting to alter or amend a judgment on the grounds of newly discovered evidence must show that the newly discovered evidence was not available at the time of the judgment being challenged or if the evidence was available at the time of the judgment being challenged that the party or counsel made a diligent effort to discover the evidence but was unsuccessful.

Parties requesting to alter or amend a judgment on the grounds of a clear error committed by the Court or that the judgment is manifestly unjust must show extreme prejudice as a result of the alleged error or otherwise show that the judgment is somehow manifestly unjust.

Lastly a party requesting to alter or amend the judgment on the grounds of an intervening change in controlling law must specifically state the particular controlling law that has been changed since the date of entry of the judgment and also the effect that change has had on the validity of the judgment.

Attorneys or parties that would like to view a portion of a 13 page sample motion to alter or amend a judgment in United States District Court containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Posted in Federal civil litigation, Federal litigation, federal rules of civil procedure, United States District Court | Tagged , , , , , | Leave a comment

Motion for new trial in United States District Court

A motion for new trial in United States District Court is the topic of this blog post. Rule 59(a) of the Federal Rules of Civil Procedure authorizes the filing of a motion for a new trial on some or all of the issues. The motion can be filed only on certain specified grounds and must be filed within 28 calendar days after the judgment is entered. However if the stakes are high enough filing a motion for new trial can be very useful. And a timely-filed new trial motion extends the time to file a notice of appeal under the provisions of Federal Rule of Appellate Procedure 4(a) until the entry of the order disposing of the motion for new trial.

The main grounds for a motion for new trial after a jury trial are (1) the verdict is against the weight of the evidence; (2) newly discovered evidence: (3) prejudicial conduct by the court or opposing counsel, and (4) juror misconduct although other grounds might apply in certain situations.

Federal Rule of Civil Procedure 59(a) states that,

“(a) In General.

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.”

Rule 59(b) states that, ”(b) Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 28 days after the entry of judgment.”

In certain cases a party may actually have more than 28 calendar days to file the motion for new trial as in order to start the clock running on the 28 day deadline requires a final judgment requiring a separate document under Rule 58(a) which is considered entered when the judgment is both entered in the civil docket under Rule 79(a) and either (a) it is set forth on a separate document or (b) 150 days have run from entry of the judgment in the civil docket, whichever occurs first. See Rule 58(c)(2).

The moving party has the burden of showing sufficient facts and evidence to support their grounds and must show that a miscarriage of justice will result if the judgment is not vacated and a new trial granted.

For example a party requesting a new trial on the grounds that the verdict is against the weight of the evidence must convince the judge that the verdict is against the clear weight of the evidence or is based on evidence which is false or will result in a miscarriage of justice.

Parties requesting a new trial on the grounds of newly discovered evidence must show that the evidence in question was discovered after the date of the trial; that the moving party exercised due diligence to discover the evidence before the end of the trial; the evidence is material and not merely cumulative or impeaching; and the new evidence would likely have changed the outcome of the case.

A party requesting a new trial on the grounds of prejudicial conduct by the judge or opposing counsel must show that they were so severely prejudiced that they were prevented from having a fair trial. For example it is improper for a judgment to comment on any ultimate factual issues such as the issue of which party was negligent, which party breached the contract, etc. And a new trial can be ordered in cases where the opposing counsel committed misconduct at the trial that made it reasonably certain that the verdict was influence by the prejudicial statements. An opening or closing statement incorrectly expands any potential grounds of liability or takes away any benefit the aggrieved party may have won a prior motion such as a motion for partial summary judgment, violating an in limine order or the Federal Rules of Evidence.

The party requesting a new trial on the grounds of juror misconduct must show that the juror misconduct resulted in them suffering prejudice which could include extraneous information obtained by a juror from friends or relatives or a juror introducing facts or evidence acquired outside of the courtroom during jury deliberations.

Attorneys or parties that would like to view a portion of a 16 page sample motion for new trial in United States District Court containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/products_main.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

Posted in Federal civil litigation, Federal litigation, federal rules of civil procedure, post-trial motions in Federal Court, United States District Court | Tagged , , , , | Leave a comment

Benefits of virtual paralegals

The benefits of virtual paralegals are the topic of this blog post. My definition of a virtual paralegal is a paralegal that maintains a virtual office and provides legal research and document preparation services.

There are many benefits of retaining the services of a virtual paralegal particularly for attorneys and law firms. I will list the main benefits below.

NO training costs!

NO unemployment taxes!

NO Social Security taxes!

NO Worker’s Compensation Insurance!

NO sick time or vacation pay!

NO retirement or health plans!

NO more paying for idle time!

NO workspace issues as virtual paralegals work from home or an office!

NO overtime!

Because the legal profession is a constantly evolving practice the increased work requires more and more of an attorney’s time. Virtual and freelance paralegal jobs are one resource that more and more attorneys and law firms are utilizing particularly with the current economic situation that is resulting in downsizing at many law firms. Paralegals working as virtual or freelance contractors are available for short or long-term projects depending on the needs of a client. Most virtual or freelance paralegals have a wide range of experience allowing them to assist attorneys on a variety of projects. For instance I have worked in California and Federal litigation since 1995 in many diverse areas of the law and have collected unpaid California Court judgments since 1992.

Because a virtual paralegal career covers a variety of different assignments, they aren’t necessarily restricted to specific work environments. I along with most virtual or freelance paralegals prefer to work from home. Solo attorneys’ who work on their own, maintain a virtual office or that have started new law offices find the extra support offered by virtual paralegal employment quite helpful. It can be expensive to hire paralegal work through traditional methods such as temporary legal staffing agencies especially if there isn’t enough work to keep the paralegal busy all the time. With the use of modern technology a freelance paralegal does not even need to travel to a lawyer’s office as documents can be scanned and e-mailed to them, or can be uploaded to a file storage site or the increasingly popular “cloud” sites. This frees up billable time, makes good use of an attorney’s time and adds value to their practice.

Even in a fully staffed office, there are times when unplanned employee absences result in a backlog of work. A virtual paralegal can provide the necessary coverage without a large commitment. The great thing about virtual paralegals is that they often have years of experience and can be a valuable asset to any law office.

The author of this post, Stan Burman, has collected unpaid California judgments since 1992 and has also worked in California and Federal litigation since 1995 as a freelance paralegal. Anyone with an unpaid judgment of at least $20,000.00 entered in the State of California or that is involved in California or Federal litigation that is interested in retaining the services of Mr. Burman can contact him at DivParalgl@yahoo.com for more information. Visit his blog at http://www.legaldocspro.net/blog

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this post is NOT intended to constitute legal advice.

The materials and information contained in this post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

Posted in California civil litigation, california dissolution, California Dissolution of Marriage, california divorce, California evictions, California freelance paralegal, California legal topics, California unlawful detainer, law and motion | Tagged , , , , | Leave a comment

California Homeowner’s Bill of Rights

The California Homeowner’s Bill of Rights is the topic of this blog post.   The provisions of the statutes that comprise the California Homeowner’s Bill of Rights (HBOR) are to some extent a codification of the National Mortgage Servicing Settlement between the states attorneys’ general and the five largest mortgage servicers entered into in February 2012. The HBOR became effective on January 1, 2013 and includes sunset provisions for January 1, 2018 although some of the obligations imposed on mortgage servicers will continue beyond that date.

The HBOR provides important new protections to California homeowners and imposed new requirements on mortgage servicers. The major changes in the foreclosure process in California imposed by the HBOR are listed below.

New notice requirements are imposed by the HBOR as new notices to borrowers are required under Civil Code section 2923.55, which expands the existing pre-foreclosure notice requirements and prohibits a servicer from recording a notice of default until it has informed the borrower of their right to request copies of documents proving the mortgage servicer’s right to foreclose and that the borrower may be entitled to protections under the Servicemembers’ Civil Relief Act. In addition Civil Code § 2924(a)(5) requires a written notice to the borrower after the postponement of a foreclosure sale for more than 10 business days although a failure to comply is not grounds to invalidate an otherwise valid sale.

A ban on the practice known as “dual tracking” as a mortgage servicer in California must now place a pending foreclosure on hold and not proceed any further while a “complete” first lien loan modification application is pending, on appeal, or while the borrower is in compliance with an approved loan modification agreement. A loan modification application is “complete” when the borrower has submitted all required documents “within the reasonable timeframes” set by the servicer. See Civil Code §§ 2923.6, 2924.11, 2924.18.

Mortgage servicers in California that conduct more than 175 foreclosures per year in California must now provide a single point of contact by assigning a single individual or team of individuals with knowledge of the loan and status of the possible loan modification and must be available to the borrower as to such things as the loan status, foreclosure prevention options available and the coordination of documentation. A decision maker must also be available to a borrower.   These provisions are found in Civil Code § 2923.7.

The HBOR allows a homeowner to require any mortgage servicer to document their right to foreclose. The Act also clearly states that an entity cannot record a notice of default or otherwise initiate the foreclosure process unless it the holder of the beneficial interest under the deed of trust, the original or substituted trustee, or the designated agent of the holder of the beneficial interest. See Civil Code § 2924(a)(6).

The widespread practice known as “robo-signing” is now banned as representatives of a financial institution or servicer may not process foreclosure documents without verifying them for accuracy. See Civil Code § 2925.17.

Mortgage servicers are now required to have loss mitigation procedures under the HBOR as it states that unless a borrower has previously exhausted the first lien loan modification process, within five business days of recording a notice of default, a servicer that conducts more than 175 foreclosures per year in California must send a written notice advising the borrower regarding foreclosure prevention alternatives pursuant to Civil Code § 2924.9. Receipt of an application for loan modification or any other documents must be acknowledged within five business days pursuant to Civil Code § 2924.10. If a loan modification is denied, the servicer must provide information regarding the time to in which to appeal the denial and any reason(s) for the denial pursuant to Civil Code § 2923.6.

Homeowners in California that are either in foreclosure proceedings or are seriously delinquent on their mortgage payments will find the HBOR provides at least some welcome relief from an otherwise confusing and frustrating non-judicial foreclosure process.

The author of this blog post, Stan Burman, is a freelance paralegal that has worked in California and Federal litigation since 1995. If you are in need of assistance such as preparation of documents for defending against a pending foreclosure in California, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Posted in California foreclosure, California freelance paralegal, California legal topics, foreclosure, foreclosure defense, non-judicial foreclosure, Uncategorized | Tagged , , , , , | Leave a comment