getting a mod with a 998

27 Jan

Some folks have told me that they got their modification approved using a California Civil Code 998.

Now a 998 traditionally was used in personal injury cases to put pressure on the insurance companies to settle rather than incur both sides of the litigation cost. But it applies to all civil actions. I see the advantage of a 998 in that you don’t have to file litigation to use it. This could be a useful way to start negotiation without incurring the expense of a lawsuit. Once again it costs nothing to try. The other benefit is it may get your case transferred to legal rather than some loss mitigator hence a better result in a faster time frame.

1. What is a California Code of Civil Procedure Section 998 offer to compromise?
CCP Section 998 is a statute that gives litigants leverage to settle cases. The mechanism of Section 998 is for a party to make an offer to compromise and settle a case. The offer must be in writing and must offer something in consideration for settlement. This does not necessarily need to be a dollar amount but must be something of value, such as an offer to waive costs.

There can be significant consequences to failing to accept an offer to compromise and then not securing a judgment or award better than the offer. For plaintiffs who refuse a defendant’s offer and then either suffer a defense verdict or a judgment or award less than that offer, they do not recover their post-offer statutory costs normally allowed by CCP Sections 1032 and 1033.5, and they must pay the defendant’s same costs. Further, they may be required to pay the defendant’s “actually incurred and reasonably necessary” expert witness costs, including costs incurred pre-offer.1 For defendants who reject a plaintiff’s offer and then suffer a verdict or judgment in excess of the value of the offer, they may be required to pay the plaintiff’s statutory costs, as well as post-offer expert witness costs. In personal injury actions, defendants also will be liable for prejudgment interest.2

A statutory offer also can be a strategic tool to force a settlement. Applied with care and foresight, counsel can structure the value of an offer as a reasonable settlement amount, which then puts pressure on the other party to either accept the offer or risk having to reimburse the other side’s regular and expert witness costs.

One Response to “getting a mod with a 998”

  1. JoAnna Jensen January 28, 2011 at 4:33 pm #

    Timmothy,
    how do you have time to work?
    Do these things actually work in either stopping a foreclosure action in CA and or getting a permanent Mod?

    I have been told in Ca it does not matter if the lender doesnt have our note but to me it seems if they dont have the note they dont have legal stanging to foreclose.

    How do you use the 998 to settle and would it actually work in an offer in compramise when a home is completely underwater if the homeowner offer a fair offer to go in at 105% of cmv the lender would actually be making out because we all know in any short sell they always get under market and have to pay all kinds of fees.

    Who do you know that has done this and would they be willing to work with our law firm in CA.

    JoAnna Jensen
    Crazy Legal Assistant

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