Lawsuit Settlement to Law Firm...HELP?

[c m chase]

The good? The bad? The mulah? RSVP. (My comments/questions are in red)

Ladies and Gentlemen:

I am in receipt of your letter dated xx/xx/2005 regarding your request for mutual dismissal of the case referenced above.

While I am willing to discuss the resolution of this matter prior to trial, a mutual dismissal will not suffice, and, more importantly, will not serve the purpose of the counter suit in general. Because of the character and number of the FDCPA and OCPA violations incurred by both CA and your law firm, a mutual dismissal would show only that such violations are trivial and repercussions of those actions are easily skirted. Too much finger shaking?

Through the course of the attempted collection of this alleged account, CA and ABC have shown nothing but disrespect for the FDCPA, the OCPA, and the legal system in general. The counterclaims in this matter are lawfully sound, and I have little doubt the judge/jury would agree.

Case law shows that a collection agency is responsible for the actions of its attorneys in the attempted collection of debts, and since ABC violated the FDCPA on several occasions during such an attempt, CA could, and undoubtedly will if this case continues, be held responsible for the statutory and punitive damages thereof. I’m sure your client realizes this.

There are nine solid federal violations and therefore nine state violations alleged in the counterclaims for this matter. However, those are not the only claims present. The additional violations are causes in a possible federal lawsuit to be filed against CA, ABC, and each of its agents directly involved. The federal complaint has been fully prepared and is ready to be filed.

Without going into too much detail here, I will explain, in short, the additional violations.

CA has reported and verified this debt to the credit reporting agency, Experian, with false information, including, but not limited to a false amount, a false status date, and a false listing as an installment account. CA verified this information with Experian after a notice of dispute and incorrectly reported it on several occasions. This violates both the Fair Credit Reporting Act (FCRA) and the FDCPA – and therefore the OCPA.

ABC stated in their petition that if a dispute was made, your firm would cease the lawsuit until the requested information was sent. On several occasions, I had requested documentation relating to this matter, and received none. The lawsuit was not ceased because, after my answer and dispute, and prior to any documentation being sent, ABC promptly propounded Discovery. Your statements in the petition were false and misleading and therefore violations of the FDCPA and OCPA. (As you are aware, the FDCPA can be applied to actions in court proceedings.)

In the Discovery your firm sent, it stated Admissions needed to be answered within 30 days after they were served. The certificate of service stated they were served via US mail on xx/xx2005. However, the corresponding envelope was postmarked xx/xx/2005 (7 days later). Since Admissions are time-sensitive, it is easily shown the certificate of service was decisively backdated in order to confuse and deceive the both person responding and the court. The false and misleading information is a violation of the FDCPA, OCPA, and court rules.

In the course of attempting to collect on the alleged debt in this matter, ABC never had in their possession any files relating to any such alleged debt. I have a letter from ABC, signed by Ms. Bitchella Ho (dated just prior to the filing of this suit) stating no such files were on hand. Case law shows that attorneys who attempt to collect a debt prior to their personal review of its specific files has not made a considered, professional judgment on the case and therefore have no meaningful attorney relationship with the client. This, too, is a violation of the FDCPA and OCPA. (see Nielson v. Dickerson, et al) Put this in or not?

The violations in this case are subject to actual, statutory and punitive damages, as well as additional relief prescribed by a judge/jury. Keeping in mind violations of the Oklahoma Consumer Protection Act are subject to fines of $2,000 per violation, please note federal and state statutory damages alone in this supplemental case easily rise above $30,000. Additionally, O.S. 15 1910 §2908 states that any corporation that willfully introduces false information onto a consumer’s credit file (which CA has done repeatedly), shall be fined up to $5,000 and be guilty of a misdemeanor.

Because of ABC’s dealings in this case, and because of the known commonplace of such, a class action suit is an option, as well. Though no agreement has yet been signed for any party, a consumer attorney has been contacted for its review.

As you can see, the violations by CA and ABC in this action are not only solid, but also prove to be continual and heedless. Therefore, though appreciative of your offer to simply dismiss with prejudice, I must graciously decline and instead, as an attempt to resolve this matter, offer a settlement for your firm and your client.

In exchange for my full dismissal of actions in this case and the potential case, I would ask of your client the following:

·A check, made payable to CMChase, in the amount of $7,500.

·The immediate cessation of all collection activities in regard to this alleged account, including those by ABC and CA. This would include the guarantee by CA not to sell, transfer, refer or assign the alleged account to any other person, company, or agent.

·The immediate removal of any listing of such account from any occurrence of my credit file, including but not limited to any listing on credit bureaus, Equifax, Experian, TransUnion and Innovis. This would include a guarantee of permanent removal from each listed and an acknowledgement that a reinsertion or new insertion of the alleged account would be cause for an immediate lawsuit for breach of said contract.

·A written notice stating the alleged account in this matter is closed, null and void, and after the date of this signing, invalid.

·A written notice stating the mutual dismissal with prejudice will resolve all existing claims and outstanding obligations relating to the alleged facts, events and transactions of this matter, including the alleged account.

·A written acknowledgement that each party shall bear its respective court costs and attorneys fees.

If your firm and your client agree to the aforementioned stipulations, a letter of such shall be drawn up for both parties to sign. Under these conditions, and after an authorized copy of said agreement has been returned to me, the proposed mutual dismissal will be signed by me and returned to your office for immediate filing.

If your firm and your client do not agree to the aforementioned stipulations or no additional good faith offer is received, the cases shall continue in front of the judge/jury. I have no idea how to say this part

Sincerely,

Chaseypoo

[divemedic]

Good, except are you sure you can get that amount? After all, statutory damages are per action, not per act. Otherwise, it is great.

I have a great settlement document, if you want it. You can change it to suit, but a lawyer wrote it, it sounds very professional. PM me.

[c m chase]

I'd love to see your letter, Dive. I'll PM.

Also, no, I'm not sure I could get that amount. I'd take a LITTLE less. Federal statutory damages are just $1,000, but Oklahoma state statutory damages are $2,000 per violation. That equals a lot of dough since I have 10 violations.

And then I have the other potential case which is over $30,000 in statutory damages (and that's just with $1,000 for FDCPA violations...the rest is FCRA -which is per violation- and state -which is per violation).

If they don't want to play, we'll let the judge. I care not.

Thanks for the review!!

[c m chase]

Ya know....in thinking about it, I'm not wanting to haggle about this. I changed the amount to $5,000 (which is my bottom line for a settlement). If they want to go lower, I will reserve my right to file the federal complaint.

Otherwise we go to court.

[Radi8]

The good? The bad? The mulah? RSVP. (My comments/questions are in red)

Ladies and Gentlemen:

I am in receipt of your letter dated xx/xx/2005 regarding your request for mutual dismissal of the case referenced above.

While I am willing to discuss the resolution of this matter prior to trial, a mutual dismissal will not suffice, and, more importantly, will not serve the purpose of the counter suit in general. Because of the character and number of the FDCPA and OCPA violations incurred by both CA and your law firm, a mutual dismissal would show only that such violations are trivial and repercussions of those actions are easily skirted. Too much finger shaking?

No, I dont' think so. You made your point without overdoing it.

Through the course of the attempted collection of this alleged account, CA and ABC have shown nothing but disrespect for the FDCPA, the OCPA, and the legal system in general. The counterclaims in this matter are lawfully sound, and I have little doubt the judge/jury would agree.

Undoubtedly?

Case law shows that a collection agency is responsible for the actions of its attorneys in the attempted collection of debts, and since ABC violated the FDCPA on several occasions during such an attempt, CA could, and undoubtedly will if this case continues, be held responsible for the statutory and punitive damages thereof. I’m sure your client realizes this.

There are nine solid federal violations and therefore nine state violations alleged in the counterclaims for this matter. However, those are not the only claims present. The additional violations are causes in a possible federal lawsuit to be filed against CA, ABC, and each of its agents directly involved. The federal complaint has been fully prepared and is ready to be filed.

Without going into too much detail here, I will explain, in short, the additional violations.

Are you sure you want to tip your hat to the additional violations? Might be better to tell them how many additional there are, but leave them wondering what exactly they might be.

They may be envisioning something even worse than what you have listed, lol.

Just a thought.

CA has reported and verified this debt to the credit reporting agency, Experian, with false information, including, but not limited to a false amount, a false status date, and a false listing as an installment account. CA verified this information with Experian after a notice of dispute and incorrectly reported it on several occasions. This violates both the Fair Credit Reporting Act (FCRA) and the FDCPA – and therefore the OCPA.

ABC stated in their petition that if a dispute was made, your firm would cease the lawsuit until the requested information was sent. On several occasions, I had requested documentation relating to this matter, and received none. The lawsuit was not ceased because, after my answer and dispute, and prior to any documentation being sent, ABC promptly propounded Discovery. Your statements in the petition were false and misleading and therefore violations of the FDCPA and OCPA. (As you are aware, the FDCPA can be applied to actions in court proceedings.)

In the Discovery your firm sent, it stated Admissions needed to be answered within 30 days after they were served. The certificate of service stated they were served via US mail on xx/xx2005. However, the corresponding envelope was postmarked xx/xx/2005 (7 days later). Since Admissions are time-sensitive, it is easily shown the certificate of service was decisively backdated in order to confuse and deceive the both person responding and the court. The false and misleading information is a violation of the FDCPA, OCPA, and court rules.

In the course of attempting to collect on the alleged debt in this matter, ABC never had in their possession any files relating to any such alleged debt. I have a letter from ABC, signed by Ms. Bitchella Ho (dated just prior to the filing of this suit) stating no such files were on hand. Case law shows that attorneys who attempt to collect a debt prior to their personal review of its specific files has not made a considered, professional judgment on the case and therefore have no meaningful attorney relationship with the client. This, too, is a violation of the FDCPA and OCPA. (see Nielson v. Dickerson, et al) Put this in or not?

Leave it, the reference is appropriate here.

The violations in this case are subject to actual, statutory and punitive damages, as well as additional relief prescribed by a judge/jury. Keeping in mind violations of the Oklahoma Consumer Protection Act are subject to fines of $2,000 per violation, please note federal and state statutory damages alone in this supplemental case easily rise above $30,000. Additionally, O.S. 15 1910 §2908 states that any corporation that willfully introduces false information onto a consumer’s credit file (which CA has done repeatedly), shall be fined up to $5,000 and be guilty of a misdemeanor.

I'd consider removing the underlined parts. Makes the letter sound friendlier, more conversational than you intend.

Because of ABC’s dealings in this case, and because of the known commonplace of such, a class action suit is an option, as well. Though no agreement has yet been signed for any party, a consumer attorney has been contacted for its review.

As you can see, the violations by CA and ABC in this action are not only solid, but also prove to be continual and heedless. Therefore, though appreciative of your offer to simply dismiss with prejudice, I must graciously decline and instead, as an attempt to resolve this matter, offer a settlement for your firm and your client.

Underlined phrase too conversational?

In exchange for my full dismissal of actions in this case and the potential case, I would ask of your client the following:

"would" sounds like you aren't quite sure. I'd remove it.

·A check, made payable to CMChase, in the amount of $7,500.

·The immediate cessation of all collection activities in regard to this alleged account, including those by ABC and CA. This would include the guarantee by CA not to sell, transfer, refer or assign the alleged account to any other person, company, or agent.

Change to "shall"

·The immediate removal of any listing of such account from any occurrence of my credit file, including but not limited to any listing on credit bureaus, Equifax, Experian, TransUnion and Innovis. This would include a guarantee of permanent removal from each listed and an acknowledgement that a reinsertion or new insertion of the alleged account would be cause for an immediate lawsuit for breach of said contract.

Change to "shall"

·A written notice stating the alleged account in this matter is closed, null and void, and after the date of this signing, invalid.

·A written notice stating the mutual dismissal with prejudice will resolve all existing claims and outstanding obligations relating to the alleged facts, events and transactions of this matter, including the alleged account.

·A written acknowledgement that each party shall bear its respective court costs and attorneys fees.

If your firm and your client agree to the aforementioned stipulations, a letter of such shall be drawn up for both parties to sign. Under these conditions, and after an authorized copy of said agreement has been returned to me, the proposed mutual dismissal will be signed by me and returned to your office for immediate filing.

If your firm and your client do not agree to the aforementioned stipulations or no additional good faith offer is received, the cases shall continue in front of the judge/jury. I have no idea how to say this part

If your firm and client disagree with this proposed resolution and/or do not offer in good faith an alternate settlement of substantially similar composition, I shall have no alternative but to proceed with legal action including, but not limited to, the remedies previously detailed.

Sincerely,

Chaseypoo

Just some thoughts.

[Guest]

OK my 2 cents here

I think you should leave out the actual violations.. tell them there are more but dont tell them what.

Now as to the settlement offer.

I think you are going way too low. You should start your offer to settle high.. much higher than you expect.

If I were you ((and this is just me)) I would start at at LEAST 15,000

You want room to move when they come back with an offer.

When we sued a car lot or orignial offer to settle was for 35,000

they came back at 1

we came back woth 20,000

They came back with 2,500

We came back at 10,00

They offered 4500 and we accepted it.

All we had orignally hoped to get was 3000.so we came out ahead.

Thats just my opinion... take it for what its worth.. whcih aint much

Good luck sweetie

[c m chase]

This is awsome, awsome, awsome, AWSOME advice. And I'm going to use everything you said. PERFECT. I love it!

Thank you, Radi8 and Sky. Wow. Nice!

One comment about this:

Through the course of the attempted collection of this alleged account, CA and ABC have shown nothing but disrespect for the FDCPA, the OCPA, and the legal system in general. The counterclaims in this matter are lawfully sound, and I have little doubt the judge/jury would agree.

Undoubtedly?

The ONLY reason I even put this sentence in was because in their offer to dismiss, Mr. Cocky Lawyer said "I make this determination [of the case not being prudent] solely on the ecoonomic factors. I have little doubt that we would ultimately prevail and obtain an [sic] judgment..."

hehe! I just had to use his wording. I couldn't help myself.

Again...thank you guys!!!

[Corrine]

Sky Warner's advice is very correct. Aim much higher than you ever expect to take home. This gives you much room to haggle a lower price. If you think the ultimate take home by judge/jury could be say $30k you might want to start around $20k, pointing out that a settlement now saves them a possible $10k and attorney's fees for both you and themselves. Then let them throw the counteroffer. Their first offer will be a very lowball sum with a laugh... but laugh right back. Their next offer will go up by maybe $1k. Hold out for the third offer. If it were me, I would file suit. That always ups their incentive to settle. The only thing I didn't do that Sky did was lower my original amount. I held the original sum until they got to a figure I was comfortable with. But that's just me and my experience.

[c m chase]

I don't know why the heck my font is so gargantuan up there. I didn't scream or nothin'.

[admin]

Chasey, I agree with Sky. If you start at $7500, you are going to wind up with half or less. I'd definitely ask for $25-$20K up front and refer to every thing else as "Other violations". You don't have to settle for only what's listed as a violation. There is your time, trouble and aggravation.

[c m chase]

Ok. You guys twisted my arm. I took out the violations and put instead:

I find it pointless and extraneous to repeat the complaint here, so I say this: in this federal complaint, there are listed a combined 10 FDCPA violations, 3 FCRA (Fair Credit Reporting Act) violations, 13 OCPA violations, misdemeanor violations against CA, and violations that could be considered defrauding the courts by ABC, P.C. This is above and beyond any allegations previously made known to your respective companies, the Oklahoma Bar Association, the Attorney General’s office, etc.

And I asked for $20,000.

I also made the other changes that Radi8 suggested...except for the "have little doubt" comment. That has special meaning.

[Leadhead]

Calawyer once told me that as a plaintiff, your first offer becomes the 'ceiling'...the case won't settle for more than that. The defendant's first offer is known as 'the floor'. The case won't settle for anything less than that.

I agree that you should go the $20-25K range and you'll probable settle for $8-10K.

[c m chase]

That's just awsome....I never would have done that high of a ceiling on my own. I placed it at $20K...the floor was set last at mutual dismissal only. They should be receiving everything today, so we'll see how much they throw a fit. (As cocky as they are, it's gonna be a messy one! WOOHOO!!)

Thanks, everyone!

[retmar]

I agree with the others as to the amount, and not listing the exact violations. You don't want to give them the chance to CTA. As you know, they would definitely do so if they could.

The only things I would add is verbiage that you retain all rights to amend the complaint, and, that any signature on their response must be from an authorized representative or agent.

Also, somewhere in the past, I seem to recall that it was mentioned to not include Federal and State in the same complaint because if it is dismissed, you would not be able to file on the other. I can't remember exactly how it was said, so do check to be sure first.