Res Judicata
Posted: Tue May 14, 2013 7:35 pm
Jeff, Assuming the underlying judgment was entered in CA(state or federal, makes little difference), take a look at CCP 685.040: costs must be reasonable AND necessary, and no attorneys' fees allowed on judgment enforcement unless the underlying judgment awarded them per CCP 1033.5. n principal amount for up to 10 years until/unless renewed)).
One other thought: obtaining costs/fees on a bk judgment is accomplished not by asking for them on MSJ, but by filing and serving a costs bill (FRBP 7054) as to which opposition may be filed, and Court Manual 2.8 provides a laundry list of what costs are permitted.
Gary R. Wallace
Law Office of Gary R. Wallace
4551 Glencoe Avenue, Suite 300
Marina del Rey, CA 90292
Email: garyrwallace@ymail.com
Office: (310) 775-8719
________________________________
To: cdcbaa@yahoogroups.com
Sent: Tuesday, May 14, 2013 10:03 AM
Subject: [cdcbaa] Re: Res Judicata
FRBP Rule 68.
I made that offer 18 months ago the week the case was filed BEFORE I answered, offering a Declaratory Judgment that tracked the code sections 523(a)(5) & (15).
It was ignored.
>
> Jeff:
>
> What is the rule for making an offer to settle? At home and don't recall the number.
> Immediately file the offer.
> Unfortunately, even if you cannot get two judgments, the lawyer could go back to the state court and add reasonable collection costs.
> You need to file the offer to cut off the further fees.
>
> d
>
> Sent from my iPad
>
> On May 7, 2013, at 8:21 AM, "jbsesq1965" wrote:
>
> > Assume these facts:
> >
> > Client has a fraud judgment from 2007 against him. It was fully litigated and he lost on factual findings.
> >
> > We filed BK and he was told in no uncertain terms that the debt would be found not discharged if pursued. There were other debts that were the real source of the problem, all discharged. Creditor timely filed a 523(a)(2) case. We offered, immediately, a declaratory judgment in BK court that the state judgment be found not discharged.
> >
> > Creditor counsel declined the offer! Instead he filed a summary judgment action seeking another JUDGMENT that includes his lawyers fees, and all the interest at 10% on the 2007 judgment!
> >
> > Res Judicata? Collateral Estoppel as to the AMOUNT of the debt? It seems almost axiomatic that he can't have two judgments in differing amounts for the same debt. I can't find any similar cases in 523 context but I just feel that I'm not looking in the right places here.
> >
> > Any input would be appreciated.
> >
> > Jeff Smith.
> >
> >
>
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