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I need to understand counterclaims a little better.

You are in court and let's say the debt is $4,800.00.

You have an agreement that says that it can stay in "small claims" as long as the claim is under $25,000.00. But, you can have the option of arbitrating, if it exceeds that amount. And of course, you do want them to feel the pressure of you might want to arbitrate . . . xangelx

How would you use counterclaims to get this claim to a point that the other side couldn't argue - no, let's stay in small claims court?

Can you list things like -

FCRA 15 U.S.C. §1681 by submitting false information on the Defendant’s credit report. Defendants seeks statutory damages of $1000.00

Defendant is seeking punitive damages of $1,000.00 from the Plaintiff for bringing a frivolous lawsuit after a diligent inquiry on behalf of the Defendant to provide evidence that would show otherwise.

How can you get this to add up to get it over the $25,000.00 small claims exemption? I need some suggestions for more counterclaims.

Also, do you have to add separate damages to exceed the $25,000.00 or does the amount of the claim itself (in this case the $4,800.00) get to add toward that $25,000.00?

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if its an fdcpa lawsuit, ask for actual damages. actual damages can be for things like stress, humiliation, loss of appetite, lack of sleep, etc. its up to the court to attach a monetary value on that though, but it can easily hit five figures if your case special with outrageous conduct by them.

are you trying to get court ordered arbitration?

or just trying to move away from small claims?

25k is alot, i want some of that

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LOL @ workingpoor! :mrgreen:

Jackson, this would be a junk debt buyer trying to sue in court for an alleged credit card debt.

Of course, I would like them to entertain the idea that a motion to compel arbitration is forthcoming. And when it comes, it will be the expensive one, JAMS.

But, according to the cardmember agreement, there is a 25,000 small claims exemption. It basically says that as long as the claim is below 25,000 even if I wanted to arbitrate, it can stay in small claims court.

However, if the claim exceeds 25,000, I can motion the court for private contractual arbitration.

Since the creditor's claim is about 4,800 and at this point, I have no counterclaims - how do I build this rascal to the point that it exceeds that small claims exemption and then I can move for arbitration and they can't do anything about it?

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LOL @ workingpoor! :mrgreen:

Jackson, this would be a junk debt buyer trying to sue in court for an alleged credit card debt.

Of course, I would like them to entertain the idea that a motion to compel arbitration is forthcoming. And when it comes, it will be the expensive one, JAMS.

But, according to the cardmember agreement, there is a 25,000 small claims exemption. It basically says that as long as the claim is below 25,000 even if I wanted to arbitrate, it can stay in small claims court.

However, if the claim exceeds 25,000, I can motion the court for private contractual arbitration.

Since the creditor's claim is about 4,800 and at this point, I have no counterclaims - how do I build this rascal to the point that it exceeds that small claims exemption and then I can move for arbitration and they can't do anything about it?

Linda,

Does it say it can, stay in small claims.Or does it say it must stay in small claims.

If it says it can stay... I interpret that to mean it is permissible to stay there.

But I do not interpret that to mean that electing private abr. is not permitted.

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reading part "1)" can you ask for an equitable remedy, i.e. an injunction or "an order enjoining and directing Defendants to comply with the FDCPA in their debt collection activities;"

another option is if you look at part "3)" where it says "you and us." all you gotta do is find a third party, i.e. maybe another debt collector or the party that assigned the debt etc and sue them within this small claims case.

i dont know if any of this will apply to you specifically, just giving you some options and ideas.

is that the arbitration agreement?

i still cant decipher if "may" really means shall within the context of that statute

Edited by jackson212
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I would look first to see if there has been any challenges to the small claim exemption as far as its legality of use, and then look to see when the small claims exemption was added to the agreement as it may have been added after the account went into default and as such the card holder would not have used the card and cannot be held to be in agreement, so it would not apply.

The CC companies are getting smart with their agreements and adding all kinds of things to screw up the consumer and put them in a better place.

They are not going to tell you oh by the way we added this clause in 2010 when the account was in default in 2008.

When it comes to damages you can claim anything I would think, but it should also be in the bounds of reality of what the Courts are accepting and approving for damages, a 1 million in damages for loss of consortium is a reach but including a laundry list of damages; loss of sleep, humiliation, loss of consortium, etc etc you can plug a single number in for everything I would think that could take you over the 25,000.00 mark.

If you have been to the Doctor, I'd include him on your witness list, affadavits from your wife girlfriend and mistress, etc.

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also IIED gets it up there. False reporting, out here in CA. Laura Nelson v. arrow financial services really ran the money up.

then there is always the securitization defense that the "account" is now just a worthless stock. The key here is the amount being literal legally a small claim is under 5000.00 in almost all courts. you could argue the clauses are vaguely ambigous as to small claim.

get a dunning letter bang compel arbitration.

And this just in I believe for counter claim you can make them get a pretrial bond which would ratchet up the money I don't know what they call those.

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Here it is -

smallclaims.gif

I could be wrong, but my take on this is...

Not withstanding the foregoing, a Claims may (IS PERMITTED TO BE) be resolved by litigation and is not subject (NOT MANDATORY) to arbitration under this Arbitration Agreement if (1) the only remedy that will be sought by either parties is monetary damages.; (2) neither party will seek a recovery in excess of $25,000, excluding Interest, costs and fees; and (3) and the only parties to the litigation will be you and us. If one party wants a Claim to be resolved by arbitration, but the other party believes the Claim may be litigated subject to the small claims exception, the party seeking arbitration may require reasonable insurance from the other party that the conditions are true and that the party wishing to resolve the Claim by litigation will take no action now or in the future to change the nature of the Claim so that it would no longer meet the conditions of this small claims exception. If such reasonable assurance is not provided, the party seeking such assurance may require the Claim to be resolved by arbitration.

What this says to me is... if you elect arb. and if you initiate, they are suggesting your claims be kept under $25,000.

Seems like they are trying to make it appear you would prefer court to Arb.

Their final statement seems like a threat. At the very least double talk meant to confuse.

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I could be wrong, but my take on this is...

Not withstanding the foregoing, a Claims may (IS PERMITTED TO BE) be resolved by litigation and is not subject (NOT MANDATORY) to arbitration under this Arbitration Agreement if (1) the only remedy that will be sought by either parties is monetary damages.; (2) neither party will seek a recovery in excess of $25,000, excluding Interest, costs and fees; and (3) and the only parties to the litigation will be you and us. If one party wants a Claim to be resolved by arbitration, but the other party believes the Claim may be litigated subject to the small claims exception, the party seeking arbitration may require reasonable insurance from the other party that the conditions are true and that the party wishing to resolve the Claim by litigation will take no action now or in the future to change the nature of the Claim so that it would no longer meet the conditions of this small claims exception. If such reasonable assurance is not provided, the party seeking such assurance may require the Claim to be resolved by arbitration.

What this says to me is... if you elect arb. and if you initiate, they are suggesting your claims be kept under $25,000.

Seems like they are trying to make it appear you would prefer court to Arb.

Their final statement seems like a threat. At the very least double talk meant to confuse.

Interesting! So, you're saying that the counterclaims need to be "below" the 25,000?

You know, I've read and read this thing and I kept seeing what I felt meant that it needed to stay under the 25,000 - but, others keep saying that if you don't get it over the 25,000 that the creditor can say - "no" I still want court. I like your version better! xdancex

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Interesting! So, you're saying that the counterclaims need to be "below" the 25,000?

You know, I've read and read this thing and I kept seeing what I felt meant that it needed to stay under the 25,000 - but, others keep saying that if you don't get it over the 25,000 that the creditor can say - "no" I still want court. I like your version better! xdancex

Here's how I read it:

Answer each of the conditions in the arbitration clause.

Not withstanding the foregoing, a Claims may be resolved by litigation and is not subject to arbitration under this Arbitration Agreement if:

(1) the only remedy that will be sought by either parties is monetary damages.

(2) neither party will seek a recovery in excess of $25,000, excluding Interest, costs and fees;

AND

(3) and the only parties to the litigation will be you and us. If one party wants a Claim to be resolved by arbitration, but the other party believes the Claim may be litigated subject to the small claims exception, the party seeking arbitration may require reasonable insurance from the other party that the conditions are true and that the party wishing to resolve the Claim by litigation will take no action now or in the future to change the nature of the Claim so that it would no longer meet the conditions of this small claims exception. If such reasonable assurance is not provided, the party seeking such assurance may require the Claim to be resolved by arbitration.

By the use of the word "AND", all 3 conditions must be met for the claim to be resolved by litigation and NOT subject to arbitration. Condition #2 states IF recovery is NOT in excess of $25,000. In order to not meet the second condition, recovery from either the Plaintiff or Defendant would have to be over $25,000. By not meeting one of the conditons, the case could be subject to arbitration.

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A simple course would be to sue for an injuction as well as cash, that would take (2) out the window and is also a common approach in most law suits.

This is what I'm thinking too . . . but, how would you say it as a counterclaim?

I'm a little worried if you ask the court for anything like an injuction, aren't you again assigning the jurisdiction of the court "back" into play?

This is really confusing . . . :shock:

The reality is, you want your motion to compel arbitration heard "before" they get down to the complaint itself.

I'm wondering if you can add your counterclaims, including some kind of injuction (could you use something like deleting a tradeline?) yet, all this will be a moot point "if" you get your motion to compel arbitration heard. But, I guess you have to have it down to play the rules according to the arbitration provision.

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You could appear ex-parte because you already requested them to. Then they cannot file a complaint because it is estopped by the granted motion. you are making a special appearance.

I will look into this further but you have jurisdiction under FDCPA because all legal actions have to occur at your local court. Also If they file a lawsuit with an arb agreement in it, then that is a violation. So is discovery requests as FDCPA doesn't allow them to have such access to you. any motion for default judgment violates the arb and FDCPA because they have no right to go for legal action in court.

I had a good Idea, we Get TRO and injunction against companies who have arb agreements but sue in court. It is a breach of contract and UCL violation.

If every Court has a TRO then lawsuits go away. defaults can be vacated etc.

A pro per can initiate the TRO under States private right of action but since it would be a class action we would need to substitute class counsel in later.

All it takes is one person to file a fee waiver then booyah TRO and injunction.

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Just heard back from a friend of mine who said they have found out that you don't file the counterclaims with the court. That would put it under the jurisdiction of the court and you are trying to move to get it out from the jurisdiction of the court.

However, in your motion to compel arbitration, you mention that your claim (if you plan on initiating) or counterclaim (if you want to ask the Judge for the Plaintiff to initiate) exceeds $25,000, so that takes the argument away from the creditor that it gets to stay in court and opens your right to the arbitration provision. :)++

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