Month: February 2016

Claiming Costs After Entry of Judgment in California

jugClaiming costs after entry of judgment in California is the topic of this article. Claiming prejudgment costs after entry of a judgment in California is requires the filing and service of a verified memorandum of costs by the prevailing party entitled to costs.

The law in California states that 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 because each case is unique due to different circumstances the actual deadline for any particular case depends on a variety of factors which will be discussed below.

The deadline in California to file and serve a memorandum of costs is stated 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 sets for the specific requirements for the notice of entry of judgment and should be carefully reviewed.

However I cannot stress enough that in order 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 running as has been stated by the California Supreme Court in at least two published 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 the 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.

Motion to Correct Clerical Error in California Judgment

6A motion to correct a clerical error in a California judgment is the topic of this article. Correcting a clerical error in a judgment entered in California requires the filing of a motion to amend the judgment in California to correct a clerical error under the provisions of Code of Civil Procedure section 473(d).

This procedure is used to correct inadvertence or errors in recording the judgment. However it should be noted that it cannot be used to contest the intended terms of the judgment. The motion can also request that the judgment be amended nunc pro tunc as of the date the original judgment was entered.

A motion to amend a California judgment to correct a clerical error is filed on the grounds that the recorded terms of the judgment do not agree with the outcome indicated when the judgment was initially declared. This motion is a very limited tool as it is authorized to be used only to correct clerical errors.

However the trial court is given very broad discretion in classifying such errors as an omission or mistake in a judgment; a misdescription in a judgment, inadvertence in signing a faulty judgment, and an ambiguity in a judgment.

The characterization of an error in a judgment as clerical rather than judicial is critical as a clerical error can be corrected at any time, sua sponte by the court or on a motion from one of the parties, even years or decades after the case has closed. But a judicial error can be only corrected on a motion for new trial or on a motion to vacate and enter a new judgment.

Thus the party who is seeking to persuade the court that the error was merely clerical must be very careful and also aware of how to properly characterize the error, and should be sure that the error is in fact clerical and not judicial.

However it should also be noted that there are many instances in the California Supreme Court and the California Courts of Appeal have ruled in which an omission or mistake in a judgment has been characterized as a clerical error. These instances include:

An omission in the determination of an account and decree of distribution involving the probate of an estate;

The failure to include a direction that one party pay another party’s attorney’s and accountant’s fees when recording a judgment, and

The failure of a judgment to clearly name the defendants, and to state their liability to the plaintiff.

The California Supreme Court stated in a case decided over 75 years ago that California Courts have the power to correct clerical errors in their judgments at any time, regardless of how much time has passed since the error was made or the judgment entered. In that case the Supreme Court stated that a hearing and the resulting order nunc pro tunc correcting a clerical error in a decree of final distribution of an estate 35 years after the original entry was valid.

The California Supreme Court also stated in a case decided over 40 years ago that all courts have the inherent power to enter an order entering a judgment nunc pro tunc All courts have the inherent power to enter orders for judgments nunc pro tunc so that the judgment will be held effective as of the date on which it was actually entered.

Used in the right situations, a motion to amend a judgment to correct a clerical error can allow the moving party to correct a clerical error in a judgment, even if years or decades have passed since the date of the original judgment or decree. But the motion should only be used in the right situations when the error is clearly a clerical error and not a judicial error.

DISCLAIMER:

The author of this article, 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 article is NOT intended to constitute legal advice.

Proof of Claim Objections in United States Bankruptcy Court

uyA proof of claim objection in United States Bankruptcy Court is the topic of this article. The United States Bankruptcy code provides that any party in interest may file an objection to a proof of claim filed in a Bankruptcy case. All debtors in Chapter 13 cases are considered a party in interest and therefore have the right to file an objection to any proof of claim filed in their case. Debtors in other cases such as Chapter 7 may or may not be considered as a party in interest depending on the unique circumstances of their case.

It is vitally important to properly object to any claims filed in a Bankruptcy case that is not timely filed, is defective for failure to comply with Bankruptcy code requirements or is defective in any other way or relates to any debt the amount or existence of which is disputed. The reason for this is that Bankruptcy law states that unless a party in interest objects any claim filed is deemed allowed.

It is therefore critical that all proofs of claim filed in any Bankruptcy case be carefully reviewed to determine if there are valid grounds for filing an objection. The pertinent law is 11 U.S.C. § 502(a) which states in pertinent part that, any claim filed “is deemed allowed, unless a party in interest… objects.” The burden is on the party filing the objection to prove to the Court that the claim is not valid and should not be paid.

In particular a debtor or their attorney should carefully review any proof of claim filed to determine if the claim was timely filed as Federal Rule of Bankruptcy Procedure 3002(c) requires most proofs of claim to be filed no later than 90 days after the first date set for the meeting of creditors called under § 341(a) of the Code.

It should be noted that Federal Rule of Bankruptcy Procedure 3001 contains numerous detailed requirements for each specific type of proof of claim and the proof of claim should be carefully reviewed to determine if it meets the strict requirements of Rule 3001.

Any objection to a proof of claim should be filed and served as soon as it has been determined that there are valid grounds for filing an objection.

Some of the more common grounds for objecting to a proof of claim are:

The creditor failed to attach sufficient documentation to prove that a debt is owed;

The amount of the claim is incorrect;

The same claim was filed more than once;

The claim was not filed in a timely manner;

The classification of the claim as secured or priority is incorrect, and

The claim states improper interest amounts or fees.