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JDC Attorney responds to my Counterclaim


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Received my reply to counterclaim and pretty much what I figured.

He states my pleading seeking relief violates the rule since it was not short and to the point.

Court procedures states:

Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief.

I stated a bit more but not a big deal.

Now the attorney goes on to state, In interest in economy for them and the court "they deny all factual allegations directed against them and deny violating any laws." I claimed six FDCPA violations.

They did NOT answer any claims and used the blanket statement above.

Their affirmative defenses were:

1. The counterclaim and each paragraph therein fail to state a claim which relief may be based. (same one i used in my affirmative defense)

2. Counter claimant is guilty of comparative negligence and/or proximate cause of any harm allegedly suffered, same being denied. (No idea what they are saying here).

3.Counterclaimant has suffered no damages.

4. Counterclaimant has failed to mitigate his damages, if any same being denied. (lost here too?)

and off course they pray to the court for dismissal on my counterclaim.

How should I go from here. Should I compel them to answer each 6 allegations?

Edited by Slippy
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I do not know where you should go from here. I have not seen your claims to know.

Proximate cause, also known as legal cause. Proximate cause is the primary cause of an injury. It is not necessarily the closest cause in time or space nor is it the first event that sets in motion a sequence of events leading to an injury. Proximate cause produces particular, foreseeable consequences without the intervention of any independent or unforeseeable cause.

To help determine the proximate cause of an injury in Negligence or other tort cases, courts have devised the "but for" or "sine qua non" rule. This rule considers whether the injury would not have occurred but for the negligent act.

comparative negligence: Normally used in accident suits. A rule of law applied i to determine responsibility and damages based on the negligence of every party directly involved in the accident.

Duty to mitigate damages: This is normally used in accident suits also.

Duty to mitigate damages is based on a reasonableness standard, meaning your obligation to avoid unnecessary costs in your case will be measured according to what was reasonable given your case.

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Should I compel them to answer each 6 allegations?

no they answered your allegations.

they did it by:

"they deny all factual allegations directed against them and deny violating any laws."

comparative negligence - basically saying you are also to blame for whatever allegations you have against them and if damages are awarded to you it should be decreased based on your degree of negligence.

mitigate his damages --if you were bleeding, you didnt do anything to stop the bleeding yourself.

discovery should be around the corner, prepare for that.

this is good though, you have counterclaims and they are mad for that

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This is what I have against them. I replaced the names with generic info.

COUNTER CLAIMS

On (Date and time here) the Plaintiff called the Defendants home telephone number as first time contact; (recording saved and on file).

The FDCPA requires validation of debt as stated below.

The Plaintiff did not provide any validation as outlined in 809(a)…

The Plaintiff failed to provide the Defendant within 5 days of the initial contact;

all items as required in 809 (1), (2), (3), (4), (5)

The Plaintiff violated this law. Information was postmarked TEN days later on (Date here) and received on (Date here) (Exhibit # here)

§ 809. Validation of debts

(a) Within five days after the initial communication with a

consumer in connection with the collection of any debt,

a debt collector shall, unless the following information is

contained in the initial communication or the consumer has

paid the debt, send the consumer a written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days

after receipt of the notice, disputes the validity of the

debt, or any portion thereof, the debt will be assumed

to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request

within the thirty-day period, the debt collector will

provide the consumer with the name and address of the

original creditor, if different from the current creditor.

FDCPA §813(2) (A) allows for Statutory Damages for any violation of FDCPA in the amount of up to One Thousand ($1,000.00) Dollars

STATEMENT OF FACT

It is a violation of the FDCPA for Debt Collectors to disclose to other people that a consumer owes a debt. Although Debt Collectors are prohibited from disclosing the call is regarding a debt when communicating with third parties, when communicating with the consumer, they must disclose their identity, state that they are a Debt Collector attempting to collect a debt and that any information obtained will be used for that purpose. An interesting situation arises where a Debt Collector leaves a message on a voice mail or answering machine. If they disclose that they are a debt collector and a third party overhears the recording they have violated the FDCPA. If they don’t disclose they are a debt collector, then they violate the FDCPA. It is simply suggested they do not leave messages on answering machines.

A recent Order Denying a Debt Collector’s Motion to Dismiss in a FDCPA lawsuit explains how this plays out in a situation where a Debt Collector leaves a message on a consumer’s answering machine. In Berg v. Merchants Association Collection Division, the Court denied the Debt Collector’s Motion to dismiss the law suit. <SNIP> to shorten post.

SECOND CAUSE OF ACTION

The Plaintiff left a recorded message on (date Here) indicating they are a debt collector attempting to collect a debt from the named Defendant (my name here). Thus allowing 3rd parties to hear the message when it was played back.

As well, the Plaintiff did not perform due diligence as a first communication and assumed the telephone number was correct without verification by actually speaking to the Defendant in person .

The Plaintiff has violated FDCPA Rule 805 (B)

805(B) COMMUNICATION WITH THIRD PARTIES. Except as

provided in section 804, without the prior consent of the

consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

FDCPA §813(2) (A) allows for Statutory Damages for any violation of FDCPA in the amount of up to One Thousand ($1,000.00) Dollars.

STATEMENT OF FACT

The letter dated (Date here) (Exhibit # here) from the Plaintiff’s overshadows and confuses what the FDCPA allows and creates a false sense of urgency to the least sophisticated consumer.

807. False or misleading representations

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

THIRD CAUSE OF ACTION

There are two 30 days notices and confuses the defendant.

One states the defendant has 30 days to make payment arrangements but the other one states the Defendant can dispute within 30 days. So which one is it?

The statement makes it uncertain to the Defendant’s rights under the FDCPA, While creating a false sense of urgency.

The Defendant is threatened with litigation within 30 days while given 30 days to dispute.

FDCPA §813(2) (A) allows for Statutory Damages for any violation of FDCPA in the amount of up to One Thousand ($1,000.00) Dollars.

STATEMENT OF FACT

The letter dated (Date Here) (Exhibit # Here) from the Plaintiff is the initial written communication with the Defendant and fails to inform the Defendant the communication is from a debt collector.

FOURTH CAUSE OF ACTION

Plaintiff fails to disclose the written communication is from a debt collector and violates FDCPA 807(11)

807 False or misleading representations

(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with

a legal action.

FDCPA §813(2) (A) allows for Statutory Damages for any violation of FDCPA in the amount of up to One Thousand ($1,000.00) Dollars.

STATEMENT OF FACT

FDCPA §809(B) requires the Collector to cease collection activities until the Debt Collector “obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector”.

On (date here)the Defendant notified the Plaintiff using U.S. Postal certified mail return receipt (Exhibit # Here) article number (# Here) and received by the Plaintiff on (date here) signed by (name here), pursuant to FDCPA that Defendant (a) disputed the claim and pursuant to FDCPA §808(B) (15 U.S.C. 1692(f)) demanded Validation of such debt.

FIFTH CAUSE OF ACTION

The Plaintiff did not comply and the Defendant has not received validation as required by FDCPA 809(B)

of the alleged debt.

FDCPA §813(2) (A) allows for Statutory Damages for any violation of FDCPA in the amount of up to One Thousand ($1,000.00) Dollars.

STATEMENT OF FACT

§ 809. Validation of debts

(B) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment,

or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor

SIXTH CAUSE OF ACTION

Plaintiff continued collection activity by reporting to the Defendants Credit Reporting Agencies the alleged status of the alleged account, which courts have ruled are continued evidence of efforts to collect a debt.

This Complaint is also an attempt to collect or continued collections without proper validation..

The Plaintiff has violated FDCPA §809(B)

FDCPA §813(2) (A) allows for Statutory Damages for any violation of FDCPA in the amount of up to One Thousand ($1,000.00) Dollars.

Defendant reserves the right to plead additional COUNTERCLAIMS that may become available to him later, as a result of subsequent DISCOVERY.

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I see a problem here... they may petition to remove to Federal court.

If you want to head that off, I suggest filing in Federal first and dismissing the counterclaims.

I suspect they motion to move. If I dismiss to refile to fed court I loose the locked toll of time on the SOL I have against them.

There 1st violation was Aug 19 \th last year. There is only 1 year SOL on FDCPA violations. I filed before that so it stops the clock.

Then who pays the fee to move to fed court the moving party?

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I can also amend since they did violate a Nevada Statute as well which was there were to affirmative defenses citing the NRS.

Since they prayed for dismissal should I object?

I "m concerned that if I don't respond to their request to dismiss my counter the court may see that I agree and do no object. Thoughts please?

Or am I just over concerned...

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